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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

HIGH COURT REF NO. 214053

MAGISTRATE SERIAL NO.14/08

CASE NO. 201/08

In the matter between:

THE STATE

vs

SANDILE KHANGELANI BANEKA

REVIEW JUDGEMENT

KHUZWAYO AJ

[1] The accused appeared before a magistrate for the district Mt Ayliff on two separate charges. Firstly in that upon or about 21 March 2008 on Church Street a public road the accused drove a motor vehicle with registration letters and number FXJ 670 GP whilst the concentration of alcohol in any specimen of breath exhaled by him was 0.94 milligrams per 1000 millilitres. Secondly that on the same day and under similar circumstances, whilst the accused drove FXJ 670 GP, he drove the said motor vehicle without a drivers licence. The accused pleaded guilty and was convicted accordingly.

[2] The charges against him were in terms of Section 65(1)(a) and (b) read with Section 1, 65(3), 65(4), 65(8), 65(9), 69(1), 73 and 89 of the National Road Accident Traffic Act 93 of 19996. The accused also faced another offence for driving without a drivers licence. The matter came for view that falls to be reviewed in terms of Section 303 of the Criminal Procedure Act 51 of 1977, as amended after magistrate had passed the following sentences:-

“ Count 1: To pay R10 000 (Ten Thousand) rand or undergo 12 (Twelve) months imprisonment.

Count 11: To pay R1 000.00 (One Thousand) rand or undergo 3 (three) years imprisonment.

Accused declared unfit to possess a licence.

Fine deferred until 31 – 09 – 08 (sic) “

[3] The questioning of the accused by the magistrate did not deal with certain specific and material elements of the charge in terms of Section 65(1) of the National Road Traffic Act, 93 of 1996 which provides: that no person shall on a public road – drive a vehicle, or occupy the driver’s seat of a motor vehicle under the influence of intoxicating liquor or a drug having narcotic effect. In terms of Section 89(1) a contravention of this provision constitutes an offence.

[4] In order to convict, the magistrate has to be satisfied that the accused’s answer to the questions in terms of Section 112(1)(b) were admissions:

1) Of all the elements of the offence;

2) That he was under the influence of intoxicating liquor to such a degree and extent that his skill and judgment normally required for the proper manipulation of the motor vehicle was diminished or impaired when he drove the motor vehicle in question.(State vs Lombard 1967(4) SA 538 (A)).

[5] It is my opinion, that the accused’s answers did not support the magistrate’s conclusion that the accused was guilty as charged. It is clear that the questioning of the accused in terms of Section 112 (1) (b) did not satisfy all the elements of the offence which the State in the absence of a plea of guilty would have proved against the accused. The plea of guilty should have been an unequivocal admission of all the elements of the offence against which the accused was charged.

[6] The trial magistrate after convicting the accused sought to establish mitigating factors from the accused person and these were furnished. He then specifically made the following question and answer thereto by accused:-

“Q: Would you like a sentence with an option of a fine or out.

A: Like the one with an option of a fine”

[7] Thereafter the prosecutor gave an address to which the magistrate responded by delivering sentence against the accused. In the process of delivering the sentence he passed he makes the following statements:

“I am aware even as I am fixing this fine that you probably do not have that money, you do not even have half maybe of that money but then the idea is this should really serve as a reminder to you that then this kind of conduct can be very expensive. I am aware acutely aware, that the liquor that you drank on the date in question is nowhere near the fine, and I really am aware that then the sentence does induce a sense of shock and that is exactly what it is intended to do. So you have to leave all your particulars with the Clerk of the Court and for purposes of issuing the warrant for your arrest if you do default on paying the fine. It is up to you how you wish to pay this money, as long as it is fully paid on 31 September.

Further you have a right to appeal against the sentence if you believe, which I do not, that the sentence is actually harsh, it does not fit your circumstances and the offence”.

[8] The magistrate has said a mouthful in his sentence and in no uncertain terms expressly told the accused that “the fine was unaffordable” and secondly that “the sentence he passed was intended to induce shock”. These are clear basis for an interference with the type of thinking by presiding officers when passing sentence. The magistrate has ignored one of the principles of the imposition of a just sentence, being that the sentence must fit the crime and the criminal and it must be in the interests of society, regard being had to the more important objects of criminal punishment (i.e deterrence, the prevention of crime, the protection of society against criminals, retribution, and the reliabilitation and reformation of criminals).

[9] Indeed it is necessary to achieve a proper balance between these sometimes competing considerations. One of the things a court must do to achieve this balance is to exercise its discretion by constructing a sentence which is proportionate to the gravity of the offence. If the sentence is out of proportion to the nature of the offence it does not fit the crime and cannot on that account be a just sentence (S vs Beja 2003(1) SACR 168 (SE)).

[10] A sentence which does not fit the crime because it is too severe will almost invariably overemphasise the interests of society and pay insufficient regard to the interests of the offender. It does not meet the standard set by Eksteen J, as he then was, in S vs Mdliva 1981(2) SA 475(E) at 478 G-H:

“In any civilized community (the court’s) consideration (of sentence) will also be blended with that degree of compassion for human frailty as is the hallwork of an enlightened administration. Failure to do so may well lead to the court in effect reducing itself to the plane of the criminal. (S vs V 1972(3) SA 611(A) at 614).

[11] Ex facie the record it appears that the fine passed was not as a result of an enquiry conducted to ascertain the financial position of the accused person to determine his ability or inability to pay a fine. Fines imposed in both counts are not justified even by the nature of the alternatives to the fine themselves. Count 11 has three (3) years whilst Count 1 has one (1) year. It leaves one to conclude that the failure to conduct the enquiry led to a flawed sentence. This is more compounded by the magistrate’s reasons, amongst others, that he was fixing a fine which accused probably did not have or even half of that money.

[12] In any event, the purpose of affording an accused person an option of a fine is to keep him out of prison. Such a salutary objective would no doubt be defeated or frustrated if the choice which the court offers to the accused person is not realistic. It is therefore the duty of the presiding officer to elicit sufficient information in regard to the personal financial circumstances to determine an appropriate fine. The trial magistrate in this matter failed to avail himself of such facts, hence the fines he imposed knowingly of their consequences. He was also quick to prepare for “an eventuality” by directing the accused to leave specific details for purposes of issuing a warrant for his arrest in default of payment of the fines.

Conclusion

[13] Having regard to the aforegoing, an order is made in the following terms: Conviction and Sentence is set aside and the matter is remitted to the trial magistrate to enable him to conduct a proper inquiry in terms of the provisions of Section 112(1)(b) of the Criminal procedure Act 51 of 1977 as amended and subsequently, if satisfied of the guilt of the accused, to further determine a reasonable fine which is proportionate to the accused’s ability to pay it.

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KHUZWAYO AJ

ACTING JUDGE OF THE HIGH COURT

I AGREE: PAKADE J

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JUDGE OF THE HIGH COURT

DELIVERED ON: 26 JUNE 2008

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