English Translations of selected Afrikaans Judgments

S v SCOBIE

(TRANSVAAL PROVINCIAL DIVISION)

1978 July 10   MYBURGH and LE Roux JJ

Criminal law-Traffic offences-Licences-Driver's licence-Cancellation of under s 147 (3) of Ord 21 of 1966 (T)-Accused again convicted of driving under the influence of liquor while previous order of court still in effect-Not necessary to again issue an order of cancellation.

Where an accused, whose driver's licence has, on a prior conviction, been cancelled by an order of court, which order has not yet expired, is again convicted of driving under the influence of intoxicating liquor, it is not necessary again to issue an order under s 147 (3) of Ord 21 of 1966 (T).

S v Olivier 1971 (2) SA 195 (O) not followed.

Review.

LE Roux J: The accused was charged with a contravention of s 140 (1) (a) or (b) of Ord 21 of 1966 (T), to wit that he drove a vehicle on a public road while he was under the influence of intoxicating liquor or a drug having a narcotic effect. He pleaded not guilty but was rightly convicted by the magistrate of Alberton and, after a proper enquiry and a thorough report of a probation officer, it was ordered that he be detained in a rehabilitation centre in terms of s 296 of the Criminal Procedure Act 51 of 1977. No fault can be found with the finding that the accused is addicted to alcohol as contemplated by s 29 of Act 41 of 1971 and the resultant order of detention, seen in the light of the accused's record of previous convictions and his information to the probation officer and nothing further need be said hereanent.

The Judge before whom the case was placed on review however asked the question whether something ought not to have been done regarding the accused's driver's licence under s 47 (3) of the Road Traffic Ordinance 21 of 1966 (T). The magistrate immediately conceded that owing to an oversight on his part, no order of incompetence was made and he suggested that this should be added to the original order on review and that the accused be declared incompetent indefinitely to obtain or to possess a driver's or learner's licence.

The Deputy Attorney-General to whom the case was sent for comment, did not agree with this concession and raised a totally new point of view. He adopted the attitude that upon a correct interpretation of the provisions of the Road Traffic Ordinance, the declaring of an accused to be a person imcompetent to possess a licence is unnecessary and ought not to be made in the present case. He suggested that the decision in the case of S v Olivier 1971 (2) SA 195 (O) goes much too far where it lays down the general rule that a declaration of incompetence is obligatory after two previous convictions for offences mentioned in s 147 (1) and ought not to be followed in this Division. This, he says, follows from an analysis of the provisions of ss 72 (1) and 61 (d) which makes it clear that as long as an order of cancellation in terms of an order of court in a previous conviction has not lapsed, a statutory incompetence exists to ac­ quire a licence which makes any further declaration unnecessary. The proviso of s 72 (1) has the effect, he stated, of postponing the commencement of the period of three years within which endorsements on licences lapse, until the period of suspension has passed. It follows that in the case of an indefinite suspension the three year period can never start to run and the incompetence also continues indefinitely despite the provisions of s 72 (1).

It appears from the accused's list of previous convictions that he was convicted on 30 March 1977 at Sabie of a contravention of s 140 (2) of Ord 21 of 1966 (T) in that he had driven a motor vehicle while the concentration of alcohol in his blood had exceeded the limit laid down. This was the second offence committed by him under s 140 of the Ordinance within a year and on that occasion his licence was cancelled indefinitely.

It would appear as if the magistrate overlooked this previous cancellation of the accused's licence or did not understand the implications thereof. In my opinion no doubt can exist that the attitude adopted by the Deputy Attorney-General is correct and that the previous indefinite cancellation of a licence creates an incompetence under s 61 of the Road Traffic Ordinance which is not affected by the three year period of s 72. There was therefore no necessity to issue such an order of incompetence again after the latest conviction.

From. the aforementioned it also follows that I do not agree with the general rule laid down by L C STEYN AJ (as he then was) in S v Olivier (supra). The provision contained ins 147 (3) of the Free State Ordinance (which reads identically to that in Ord 21 of 1966 (T)) is not peremptory in all cases and one exception is a case such as the present where the incompetence has already been created by a previous order of court and still continues to exist.

In the result no order is made in terms of s 147 (3).

MYBURGH J concurred.