IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE HIGH COURT, GRAHAMSTOWN) APPEAL JUDGMENT. against an order

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE HIGH COURT, GRAHAMSTOWN) REPORTABLE Case no: CA&R 58/2011 In the matter between: HENRY VAN ROOYEN Appellant and THE STATE Respondent APPEAL JUDGMENT D. VAN ZYL J: Background 1] This is an appeal, with leave granted by this Court, against an order made by the Magistrate for the district Uitenhage confirming the suspension of the appellant s driving licence for a period of five years as provided for in section 35(1) of the National Road Traffic Act ( the

2 2 Act ) 1. The facts are that the appellant was charged with a contravention of section 65(2)(a) read with section 89(1) of the Act by driving a motor vehicle on a public road when his blood alcohol was in excess of the statutory limit. In a written plea of guilty in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 the appellant pleaded guilty to the charge. 2] According to the appellant in his section 112(2) statement, he was driving a motor vehicle on a public road in Uitenhage on 15 November His vehicle was stopped by a police officer in the course of a routine inspection. On suspicion that he had consumed alcohol the appellant was taken to the Uitenhage Provincial Hospital where a blood specimen was taken. An analysis thereof has shown the concentration of alcohol in the specimen to be 0.21 gram per 100ml, which is considerably in excess of the legal limit of 0.05 gram per 100ml as provided in section 65(2)(a) of the Act. The State accepted the averments and facts set out in the appellant s plea and he was duly convicted as 1 Act 93 of 1996.

3 3 charged. 3] Before sentencing the prosecution proved a previous conviction which was admitted by the appellant. According to his criminal record he was convicted in June 2008 of having contravened the provisions of section 65(1)(a) of the Act. The Magistrate thereupon sentenced the appellant to a fine of R or 10 months imprisonment. In addition the Magistrate confirmed the suspension of the applicant s driving licence for a period of 5 years in accordance with the provisions of section 35(1)(c) (ii) of the Act after having conducted an enquiry as envisaged in subsection (3) of that section. The statutory provisions 4] The statutory provisions in the Act relevant to the appeal are subsection (1)(a) of section 34 and subsections (1), (2) and (3) of section 35 of the Act. Section 34(1)(a) provides: (1) Subject to section 35, a court convicting a person of an offence in

4 4 terms of this Act, or of an offence at common law, relating to the driving of a motor vehicle may, in addition to imposing a sentence, issue an order, if the person convicted is a) the holder of a licence, or a licence and permit, that such licence or licence and permit be suspended for such period as the court may deem fit or that such licence shall be dealt with as provided in subsection (3) 5] Prior to its amendment and the appellant s conviction on 15 November 2010, subsections 35(1) to (3) were in these terms: (1) Subject to subsection (3), every driving licence or every licence and permit of any person convicted of an offence referred to in (a) section 61(1)(a), (b) or (c), in the case of the death of or serious injury to a person; (b) section 63(1), if the court finds that the offence was committed by driving recklessly; (c) section 65 (1), (2) or (5), Where such a person is the holder of a driving licence or a licence and permit, shall be suspended in the case of- (i) a first offence, for a period of at least six months; (ii) a second offence, for a period of at least five years; or iii) a third or subsequent offence, for a period of at least ten years, calculated from the date of sentence. (2) Subject to subsection (3), any person who is not the holder of a driving licence or of a licence and permit, shall, on conviction of an offence referred to in subsection (1), be disqualified for the periods mentioned in paragraphs (i) to (iii), inclusive, of subsection (1) calculated

5 5 from the date of sentence, from obtaining a learner s or driving licence or a licence and permit. (3) If a court convicting any person of an offence referred to in subsection (1), is satisfied, that circumstances relating to the offence exist which do not justify the suspension or disqualification referred to in subsection (1) or (2), respectively, the court may, nothwithstanding the provisions of those subsections, order that the suspension or disqualification shall not take effect, or shall be for such shorter period as the court may consider fit. 6] Section 35(1) was amended with effect from 20 November 2010 by section 12(a) of the National Road Traffic Amendment Act. 2 The effect of the amendment was to add two offences relating to the exceeding of the speed limit to the list of offences as envisaged in sub-section (1). 3 These offences are now listed in paragraph (aa) of section 35(1). Subsection (3) was also amended. 4 The effect thereof is to require the presentation of evidence under oath that circumstances relating to the offence exist, which do not justify the suspension or 2 Act 64 of (i) a speed in excess of 30 kilometers per hour over the prescribed general speed limit in an urban area was recorded; or (ii) a speed in excess of 40 kilometers per hour over the prescribed general speed limit outside an urban area or on a freeway was recorded; 4 The words after the presentation of evidence under oath were inserted therein.

6 6 disqualification of a driving licence, before the Court may order that the suspension or disqualification shall not take effect, or that it shall be for a shorter period as the compulsory period of suspension. 7] A provision similar to section 35 did not exist, at least initially, in the predecessors of the present Act. The Road Traffic Act of at first provided in section 55(1)(a), similarly to section 34 of the present Act, for the endorsement, suspension or cancellation of the driving licence of a person who was convicted under that Act, or of an offence under the common law relating to the driving of a motor vehicle or a failure to stop after or report an accident. It authorised the trial Court to order in the exercise of its discretion that the licence of the offender be suspended for such period as the Court deem fit. This provision in turn corresponded with section 146(b) of the Cape Ordinance. 6 The Ordinance was repealed by and replaced with the Road Traffic Act of A provision similar to section 35 of the Act was first 5 Act 29 of No. 21 of 1966.

7 7 inserted into the 1989 Act as section 55A in The grounds of appeal 8] As stated earlier, the appeal is directed solely at the suspension of the appellant s driving licence. The appellant raised two grounds of appeal. The first is that the Magistrate erred in treating his conviction in the present proceedings as a second contravention for purposes of section 35(1) of the Act. What is immediately evident from the appellant s criminal record is that his conviction in 2008 was a conviction for impaired driving ie. driving a vehicle while under the influence of intoxicating liquor or drug having a narcotic effect contrary to section 65(1)(a) of the Act, whereas the sentence in the appeal was imposed in respect of the offence of driving a vehicle after having consumed liquor in such a quantity that the appellant had more than the permitted percentage of alcohol in his blood in contravention of section 65(2)(a). 8 The second 7 By section 10 of Act 39 of The provisions of this section were considered in S v Luies; S v Koekemoer 1995 (2) SACR (T) and S v Phago 1996 (2) SACR 631 (T). 8 A contravention of these sections constitutes an offence in terms of section 89 of the Act. These two offences are regarded as being in law two separate and distinct offences. Section 65(1) requires the State to prove that the driver s skill and judgment which is normally required of a driver in the

8 8 ground of appeal is that the failure of the Magistrate to order that the compulsory suspension of the appellant s driving licence should not take effect, as authorised in subsection (3), resulted in the imposition of an unjustly severe and inappropriate sentence to the extent that no reasonable court would impose it. The contention is that the cumulative effect of the sentence and the 5 year suspension of the appellant s driving licence, resulted in a severe sentence which warrants interference on appeal. 9] It is evident from the Magistrate s reasons for ordering the confirmation of the suspension of the appellant s driving licence for a period of five years that he regarded the appellant s conviction as a second offence as contemplated in paragraph (ii) of sub-section (1). In his reasons the Magistrate acknowledged the fact that the appellant s present conviction was for a different offence to the one he was convicted of in He however expressed the handling of a vehicle were diminished or impaired. See Hoctor Cooper s Motor Law at B and the judgments referred to. The elements of the two offences are therefore different and an offence under the one section is not included in the conviction under the other.

9 9 view that it constitutes a second offence as contemplated in paragraph (ii) of section 35(1) as they both relate to driving a motor vehicle under the influence of alcohol. The scheme of the Act 10] The suspension of the driving licence of a person convicted of a contravention of the provisions of the Act is not limited to section 35. Where section 35 mandates the compulsory suspension of a driving licence for certain periods of time, the Court has a general discretionary power in terms of section 34(1) (a) to order the suspension of the driving licence of an offender for a period as the Court may deem fit. The phrase relating to the driving of a motor vehicle has been interpreted as meaning an offence involving the actual driving of a vehicle. 9 Accordingly, offences such as the failure to stop after an accident 10, to report an accident 11, illegal 9 R v Jackson 1937 (1) PH O10 (T); R v Griessel 1938 OPD 92; R v Arries 1939 CPD 112; R v Aboud 1940 (2) PH O34 (O); R v Perrins 1942 CPD 189; R v Masiza 1949 (3) SA 974 (E); R v Michaelis 1950 (2) SA 353 (SR); R v Eloff 1952 (2) PH O21 (C); S v Mlumbi 1962 (1) PH O3 (E); R v Kamunjoma 1967 (3) SA 623 (R); S v De Nobrega 1970 (3) SA 232 (SWA) ; S v Manzira 1972 (4) SA 418 (RAD); S v Muringi 1974 (4) SA 161 (R) and S v Van Rensburg 1967 (2) SA 291 (C). 10 R v Jackson supra; R v Griessel supra; R v Arries supra and R v Perrins supra. 11 R v Perrins supra; R v Michaelis supra and R v Eloff supra.

10 10 parking 12 or obstructing a public road 13 are thus not offences in respect of which a Court may exercise its power under section 34 as they are not offences which depend on the manner in which a motor vehicle is driven. It is clear from a reading of paragraphs (a) and (b) of section 34 that the period of suspension of an offender s driving licence is not limited, but is within the discretion of the Court. 14 It has however been held that the section does not empower the Court to suspend a licence indefinitely or for life. 15 As in the case of section 35, the suspension of a driving licence is considered not to be designed solely to advance the public interest, but is also regarded as part of the punishment. 16 As a result the principles guiding a Court in deciding whether to cancel a driving licence are effectively the same as those which apply to the imposition of sentence and the determination of an appropriate 12 R v Harmer 1918 EDL R v Harmer supra. 14 S v Phago supra. 15 R v Hickman 1961 (4) SA 457 (SR); R v Old 1969 (3) SA 333 (R) and S v Ticharwa 1975 (3) SA 878 (R). 16 R v Hickman supra; S v Mofokeng 1964 (1) SA 242 (O); S v Hughes 1964 (2) SA 124 (T); S v Voigt 1965 (2) SA 749 (N); S v Van Rensburg supra; R v Klein 1967 (3) SA 69 (R); S v Russell 1968 (3) SA 273 (N); R v Georgiou 1969 (3) SA 159 (RA); S v Markman 1972 (3) SA 650 (A); see also S v Roux 1976 (2) PH H140 (C).

11 11 sentence Cooper s Motor Law op cit at B Shall be suspended. 11] Whereas section 34(a) and (b) give the Court a discretion to order the suspension of a driving licence, subsection (1) of section 35 on the other hand mandates the compulsory suspension of a driver s licence for certain minimum periods in the case of a contravention of certain specified offences. 18 The period of suspension is determined by whether the contravention constitutes a first offence, a second offence or a third or subsequent offence. This provision is however subject to subsection (3). This subsection authorises the Court not only to order that the compulsory suspension will not come into effect, but also to order that it will be for a shorter period determined by the Court. To this extent the Court is mandated before sentence to draw the attention of the accused to the provisions of subsection (1) and (2) and to invite him or her to present evidence and argument which would enable the Court to exercise its discretion in terms of

12 12 subsection (3). 12] As will become clear later in this judgment, it is important for purposes of deciding the issue raised in this appeal to draw attention to the fact that sections 34 and 35 are to be read together and that they are not mutually exclusive in the sense that the suspension of the driving licences of persons convicted of the offences listed in section 35(1) are to be dealt with exclusively in terms of that section. Section 35 does not seek to do away with the unlimited jurisdiction of the Court mandated by section 34. The latter section is the dominant section which regulates the suspension of an offender s driving licence. By the use of the words subject to section 35 in section 34, the legislature simply seeks to qualify the unlimited discretion of the Court to order the suspension of an offender s driving licence for such period as the Court may deem fit. The limitation is that in the case of an offender who has contravened any of the provisions of the Act specified in section 35(1), the Court may not, subject

13 13 to subsection (3), suspend his or her licence for any time period shorter than the periods mandated by paragraphs (i) to (iii) of section 35. What section 35(1) does not do is to seek to limit the power of the trial Court to suspend the offender s driving licence for a time period in excess of the compulsory minimum periods in paragraph (i) to (iii). 19 The reason is to be found in the wording of section 35(1). The minimum periods of suspension in paragraphs (i) to (iii) of section 35(1) are each preceeded by the words at least. Subject to these minimum periods, the unlimited jurisdiction of the Court in terms of section 34 to decide upon the time period for which a driving licence is to be suspended therefore remains intact. 20 The argument in outline 19 See S v Phago supra at 634 i-j. 20 Cooper s Motor Law op cit at B ] Mr Hattingh, who represented the appellant at the hearing of the appeal, submitted that to regard a contravention of section 65(2) as a second offence simply because it is an alcohol related driving

14 14 offence constitutes a misdirection. The reason is that it fails to recognise the fact that section 65 (1) and (2) create two separate offences. The words a second offence in paragraph (ii), or for that matter a third or subsequent offence in paragraph (iii) of subsection (1), should, according to Mr Hattingh, be read to mean a second or third contravention of the same provisions of the Act of which the accused had previously been convicted. To read section 35(1) any differently would, so it was argued, lead to absurdities and place an unfair burden on an accused. It might result in the provisions of section 35(1)(c)(ii) also finding application to an accused who had previously been convicted of an unrelated and lesser, or for that matter, more serious offence. 14] By way of example counsel referred to the situation where the licence of an accused, who was previously convicted of a contravention of section 61(1)(a) of the Act for having failed to immediately stop his or her vehicle after an accident in which there was a serious injury to a person, is suspended subsequent

15 15 upon a later conviction for the totally unrelated offence of reckless driving, or driving a vehicle while under the influence of intoxicating liquor or a drug in contravention of section 65(1) of the Act. As opposed to the latter two offences, the first mentioned offence is not directly concerned with the act of driving. 21 A contravention of section 61(1)(a) also does not per se reflect adversely on the driving ability of an accused. The interests served by requiring the suspension of an accused person s driving licence in each of these instances are therefore clearly not the same. 15] With reference to the decision in S v Mahlangu and Others 22 Mr Hattingh submitted that the Court should, in interpreting section 35(1), bear in mind that it must be presumed that the legislature did not intend to enact legislation with irrational, arbitrary or unjust consequences. If there is any doubt as to its meaning, section 35(1) must be constructed in 21 See footnote 9 above (3) SA 867 (CC) at 886D.

16 16 favour of the accused. 23 He submitted further that the section must be given a strict construction. The reasons therefore are twofold: Firstly, section 35(1) is a penal provision as it forms part and parcel of the offender s punishment. 24 Secondly, the suspension of an offender s driving licence constitutes an interference with an existing right ] Ms Obermeyer for the respondent submitted on the contrary that the construction which the appellant wishes to place on section 35(1) is incorrect. Her submission is that prior to the amendment thereof the section created three different categories of offences. 26 The offences referred to in paragraph (a) of section 35(1) all relate to the failure of a driver to act in a certain manner after an accident, those in paragraph (b) relate to reckless driving, while the offences in paragraph (c) are all alcohol related driving offences. Having separated the offences into different categories and placing them in separate 23 R v Milne and Erleigh 1951 (1) SA 791 (A) at 823 B-D. 24 See footnote 16 above and S v Mpongoshe [2002] 2 ALL SA 88 (E) at 91g. 25 With reference to Dadoo and Others v Krugersdorp Municipal Council 1920 AD at It presently has four categories. See para [6] above.

17 17 paragraphs, Ms Obermeyer s argument is that the intention of the legislature was to regulate the suspension of the driving licence of a person who has been convicted more than once of any one of the offences falling within a particular category. In other words, in the context of the present matter, the appellant s present conviction for a contravention of section 65(2)(a) would bring the provisions relating to the suspension of his driving licence into operation as he has been previously convicted of one of the offences listed in section 35(1) (c) of the Act. This interpretation of section 35(1), so it was argued, does not lead to any of the absurdities which counsel for the appellant submitted would result if it is not given the meaning which he contended for. The meaning of a second offence 17] The question raised by the two constructions placed on the section by the appellant and the State respectively is whether the compulsory suspension of an offender s driving licence for the minimum periods provided for are aimed at repeat offenders of

18 18 the same offence (ie. contraventions of the same section of the Act), or repeat offenders of similar or related offences. The proper approach to the construction of section 35(1) is to first apply the accepted and well established principle of interpretation namely, that in construing a statutory provision the purpose is to ascertain and give effect to the intention of the legislature from the language used in the enactment and its context. 27 The task is to ascertain the particular meaning and sense of the language intended in the context of the statute under consideration. This is but another way of stating that the ordinary meaning of the various linguistic constituents of an enactment must be determined with proper reference to all other structurally relevant elements of such an enactment 28 Where the language thereof is unambiguous and its meaning is clear the Court may only depart therefrom if it would lead to an absurdity so glaring that the legislature could not have contemplated it, or to a result contrary to the intention of the legislature, as shown from the 27 Birch v Klein Karoo Agricultural Co-Operative Ltd 1993 (3) SA 403 (A) at 411 E-H and Jaga v Dőnges NO and Another, Bhana v Dőnges NO and Another 1950 (4) SA 653 (A) at 664 B-C; Poswa v MEC for Economic Affairs, Environment and Tourism, Eastern Cape 2001 (3) SA 582 (SCA) at 587D. 28 Du Plessis The Interpretation of Statutes at page 107.

19 19 context concerned or by such other considerations as the Court is justified in taking into account ] Only after this primary rule of construction has been applied and there appears to be reasonable doubt or ambiguity, or if the words used are uncertain, may other principles of construction become relevant. 30 As we are dealing with a provision which is not only concerned with the public interest, but also imposes a penalty, principles of construction such as if there are two reasonably possible meanings the Court should adopt the more lenient one, or that the provision should be given a narrow or restrictive interpretation, may then find application. 31 However, these principles, such as the one referred to by counsel for the appellant relating to legislative provisions making inroads on existing rights, would only find application in the event of doubt or ambiguity. Where the legislature s intention is clear from the express words used, or follows by 29 Venter v R 1907 TS 910 at 915; Schenker v The Master and Another 1936 AD 136 at 142 and Hatch v Koopoomal 1936 AD 190 at Administrator, Transvaal and Another v J van Streepen Ltd 1990 (4) SA 644 (A) at 657 C. 31 See the judgments referred to in footnote 23 to 24 above.

20 20 necessary implication from the terms of the provisions concerned, then effect must be given thereto ] The parties have been unable to refer this Court in argument to any reported decisions where the meaning of the phrase second offence 33 was considered. Similar provisions do however exist in the legislation of other jurisdictions and case law dealing therewith may provide guidance. The ordinary meaning of the phrase has been held to mean an offence under the same section as was applicable to the previous offence 34. Further,...the words second offence and third and any subsequent offence are read as meaning an offence after a previous conviction or convictions, as the case may be, for an offence under the section. The enactment aims at a persistent breach of the law after a previous conviction 35 and Ordinarily, the terms second offence and subsequent offence (i.e., subsequent to a second offence) mean successive offences committed 32 Administrator Transvaal v J van Streepen Ltd supra. 33 The word offence means contravention in this context. The word oortreding is used in the Afrikaans text of the Act. 34 British Doughnut Company Ltd v Dale [1944] KB 228 (DC). 35 R v The Licencing Justices for the County Borough of South Shelds [1911] KB 1 (DC).

21 21 against the same section or a predecessor section. 36 A second contravention accordingly presupposes the existence of a first or earlier conviction, the identity of which is determinative of whether the present conviction constitutes a second or subsequent offence. It is succintly explained as follows in Black s Law Dictionary: Second offence. An offence committed after conviction for a first offence. The previous conviction, not the indictment, forms the basis of the charge of a second offence ] That this is the correct construction for section 35(1) is evident from a reading thereof. It is the conviction of an offence mentioned in subsection (1) that constitutes the first, second or third or subsequent offence. That this is so is also evident from the wording of subsection (2). 38 It does not provide that a previous conviction for any of the offences referred to in subsection (1) constitutes a second or third or subsequent offence. If it was the intention of 36 Negridge v R (1980) 54 CCC (2d) 304. Also R v Jack (1958) 30 CR 77, 122 CCC 241 (BCCA) and R v Ross (1956) 24 CR 271, 115 CCC Garner(ed) 8 th ed at page Subsection (2) refers to disqualification for the periods mentioned in paragraphs (i) to (iii) on conviction of an offence referred to in subsection (1).

22 22 the legislature to provide that a previous conviction for any of the offences in subsection (1), or for that matter, in any particular paragraph thereof, was to be deemed to be a second or subsequent offence 39, or alternatively, as in essence contended by the State, that the compulsory suspension of an offender s driving licence would take effect if the offender has a previous conviction for any one or more of those offences, it could easily have said so. A further consideration which strengthens the aforementioned construction of the subsection is the purpose and scope thereof in the scheme of the Act. I shall deal with this when considering the question whether the ordinary meaning of the phrase second offence leads to an absurdity ]Section 35(1) on a reading thereof in my view says nothing more than that subject to the provisions of subsection (3), the driving licence of a person whose conviction of an offence referred to in subsection (1) 39 As for instance provided in section of the Canadian Criminal Code 1970 considered in Negridge v R supra. 40 See paragraph [23] to [25] below.

23 23 constitutes a first, second and subsequent offence, shall be suspended for the time periods referred to in paragraphs (a), (b) and (c). Whether or not such a conviction constitutes a second or subsequent conviction is to be determined with reference to the nature of the offender s prior conviction. If they correspond, then the later conviction constitutes a second offence for purposes of section 35(1). 22] The next question is whether this interpretation produces an absurdity or would lead to a result contrary to the intention of the legislature. 41 The absurdity which the State contended would result is that to attribute the above meaning to the section would mean, by way of an example, that the licence of a person who, in the context of present appeal, has successive convictions for contraventions of the provisions of section 65(1), (2) and (5), could only be suspended for a period of 6 months on each occasion. This, it was submitted, does not conform with the public interest consideration in suspending 41 Schenker v The Master and Another supra.

24 24 the licence of drivers who pose a danger to the public, and could not have been the intention of the legislature. Ms Obermeyer also submitted it to be absurd that a prior conviction for section 65(1) can be taken into account as an aggravating factor for purposes of imposing an appropriate sentence for a subsequent conviction under section 65(2), but does not constitute a prior conviction for purposes of section 35(1). 23] I am not persuaded that either of these complaints constitutes a glaring absurdity 42 which justifies a departure from the ordinary meaning of the language of section 35(1). As stated earlier 43, section 35 does not do away with the authority of the Court to, in the exercise of its discretionary power in terms of section 34, suspend the driving licence of a repeat offender of any of the offences under the Act, for a time period in excess of that mandated by section 35(1). It is accordingly not correct to state that the 42 Schecker v The Master supra; Hatch Koopoomal supra and Savage v Commissioner for Inland Revenue 1951 (4) SA 400(A). 43 See paragraph [12] above.

25 25 offender in the hypothetical scenario sketched by Mrs Obermeyer will only be subject to a 6 month suspension of his or her driving licence on each occasion. 24] Further, as Mr Hattingh quite correctly in my view pointed out, the construction which the State wishes to place on section 35(1), namely that the compulsory suspension of a driving licence is to be confined to repeat offenders of offences falling within any of the categories created by paragraphs (1), (b) or (c), is not free of the concerns raised by the State to the ordinary meaning of section 35(1). He referred to the situation where an offender, who has contravened the provisions of the Act relating to speeding, and who is thereafter convicted of reckless driving and driving under the influence of alcohol would similarly, on Ms Obermeyer s submission, not face a compulsory suspension of his or her driving licence for more than 6 months on each occasion. 25] It may similarly be argued that the public policy

26 26 element that underlies the suspension of an offender s driving licence, namely that a person who is unfit to drive a motor vehicle on a public road should in the interests of the safety of the general public not be the holder of a driving licences, is negated by such an interpretation. Once again, the answer to this is simply that an offender in the scenario sketched by Mr Hattingh can similarly effectively be dealt with under section 34 of the Act. As in the case of Ms Obermeyer s scenario, the provisions of section 34 would prevent repeat offenders of any of the offences in subsection (1), or those grouped together in paragraphs (a), (b) or (c), from escaping the suspension of their driving licences for longer periods of time than those mandated by section 35(1). 44 Accordingly, viewed in the context of the scheme of the Act, the ordinary meaning of the term a second offence, does not lead to a glaring absurdity which could not have been contemplated by the legislature. 44 See paragraph [12] above.

27 27 26] I am further of the view that the ordinary meaning of the said term cannot be said to produce results which are contrary to the intention of the legislature. In terms of its ordinary meaning section 35(1) is intended to strike at repeat offenders of the same offence as opposed to repeat offenders of the offences listed in section 35(1) or, on the proposed interpretation of the State, of related offences. In determining the intention of the legislature the Court must bear in mind a number of considerations. It is not for the Court to speculate about the probable intent of the legislature beyond the language it expressed in the statute. Before the ordinary meaning of words used in a provision of an enactment may be modified by reading something into the provision or changing the wording thereof to give effect to the intention of the legislature, it must at least be clear that the proposed intention was indeed the legislative intent. 45 In Schenker v The Master and Another 46 de Villiers JA said: Kloppers v Ko-operatiewe Wijnbouwers van Zuid-Afrika Bpkt SA 408 (C) 425; R v Le Roux SA 342 (C) 351; S v Klopper SA 773 (A) Supra. 47 At 143.

28 28 Moreover, as has often been remarked by eminent Judges, it is dangerous to speculate as to the intention of the Legislature, and what seems an absurdity to one man does not seem absurd to another. The absurdity must be utterly glaring and the intention of the Legislature must be clear, and not a mere matter of surmise or probability ] I am satisfied that when the provisions of section 35 are looked at in its proper context with reference to section 34, and given its ordinary and plain meaning, the phrase a second offence in subsection (1) correctly expresses the intention of the legislature. I therefore conclude that it must be accorded its ordinary meaning, namely a second contravention of the provisions of the same section in the Act. A previous conviction for a contravention of another section in the Act is however not without relevance. It is not only a factor relevant to the determination of an appropriate sentence, but also in deciding 48 See also Savage v C.I.R. supra at 408 H- 409A; R v Oosthuizen SA 541 (T) 545; Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk, Red Head Boer Goat (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk, Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk SA 407 (A) and Du Plessis v Joubert 1968 (1) SA 585 (A) at 595 A-B.

29 29 whether, in the exercise of the Court s discretion in terms of section 34, the driving licence of the offender should be suspended, and if so, for what period of time. The suspension of the appellant s driving licence 28] It accordingly follows that the appellant s conviction in the present matter is for purposes of section 35(1) a first offence and that the order of the Magistrate confirming the suspension of his driving licence for a period of 5 years must be set aside. Mr Hattingh requested this Court not to remit the matter to the trial Court but to dispose of the issues relating to the suspension of the appellant s driving licence as all the information relevant to that enquiry is on record. I agree that it would be appropriate to do so in the present circumstances. Accordingly, the first step in the enquiry is to determine in terms of section 35(3) whether circumstances relating to the offence exist which do not justify the suspension of the

30 30 appellant s driving licence for at least six months. Mr Hattingh in my view quite correctly acknowledged that there does not exist any reason to order that the suspension of the appellant s driving licence should be for a shorter period or that the mandatory minimum suspension should not take effect. The next step in the enquiry is to determine, in the exercise of the Court s discretion in terms of section 34(1)(a), whether it may be appropriate to suspend his driving licence for a period other than that prescribed in section 35(1). As stated earlier 49, sections 34 and 35 are to be read together, and the latter section does not in any way remove the authority of the trial Court to order the suspension of a licence in terms of section 34 for a longer period then the minimum prescribed in section 35(1). 49 See para [12] of this judgment. 50 Supra. 29] As stated by Jones J in S v Mpongoshe 50, the cancellation or suspension of the driving licence of an accused is not simply an administrative adjunct to the sentence. Its aim is not solely to advance the

31 31 public good, but is regarded as a significant part of the punishment. 51 In the context of the present matter where the appeal does not lie against the sentence imposed, the question is whether a sentence of R or 10 months imprisonment plus the suspension of the appellant s driving licence is an appropriate sentence. To this extent factors such as the personal circumstances of the appellant, the hardship which the suspension of his driving licence may cause him, his previous conviction, the seriousness of the offence and the circumstances in which it was committed, and the interests of the community are to be considered and weighed up. 30] Like all other considerations relevant to the determination of a just sentence, the effect of the suspension of a driving licence on the individual offender is a material consideration. 52 The impact which it may have on the employment of an accused is as a result an important aspect that needs to be considered. It should be borne in mind that the 51 S v Van Rensburg supra and the judgments referred to in footnote 16 above. 52 S v Markman supra at 656 A-B and S v Mpongoshe supra at 92f.

32 32 imposition of a long suspension of a driver s licence may be a more severe punishment to a person who is engaged in a calling which requires him to use a motor car in going about his daily business. If he is deprived of his licence for a long period and has to engage the services of a driver in order to enable him to carry out his duties, he is at once placed under heavier penalty than the ordinary offender who does not need a motor car. 53 This statement is appropriately qualified with a note of caution: If it is true, of course, that a person who requires a motor vehicle for his business, if he is irresponsible and likely to drive while under the influence of strong drink, adds enormously to the dangers on the road just because he uses his car frequently for his business purposes. 54 The fact that the suspension of an offender s driving licence would cause inconvenience may serve as an effective deterrent. Potential offenders are less likely to drive and drink if they know that, if caught, they will be precluded from driving their vehicles for 6 months, and that they will have to be fetched and carried by chauffeurs or members of their family on a daily basis until their period of suspension is over. 55 I agree with 53 Per Davidson J in S v Maseko and Others 1972 (3) SA 348 (T) at 351 C-D. See also S v Mpongoshe supra at 92e and 93c. 54 Ibid. 55 Per Jones J in S v Mpongoshe supra at 92d.

33 33 the statement in S v Mpongoshe 56 that the deterrent aspect of the suspension of an offender s driving licence comes to the fore in cases of drunken driving or driving with an impermissible amount of alcohol in the blood, particularly in cases where the accused is a repeat offender. 31] The appellant is 29 years of age, he is unmarried and in gainful employment. He is employed as a foreman at what appears to be a construction firm. Save for stating that he uses a motor vehicle to drive to work and to get things on site 57, there is nothing to indicate that the appellant would lose his employment if his licence is suspended. With regard to the gravity of the offence, although a contravention of section 65(2) is regarded as less serious than a contravention of section 65(1) and should be treated as such 58, it goes without saying that as an alcohol related driving offence it is a serious offence. 59 The number of accidents and loss 56 Supra at 92j. 57 Hy moet goed op site kry. 58 S v Serabo and five similar cases 2002 (1) SACR 391 (E). 59 S v Serabo supra at 394c.

34 34 of life and damage to property which annually result from drivers driving after having consumed alcohol emphasises that. An aggravating factor that must be given weight is the fact that the appellant has a previous conviction and that he committed the offence in the present matter barely 5 months after his earlier conviction. 32]Having regard to the aforementioned factors as well as the cumulative effect of the sentence imposed by the Magistrate and the suspension of the appellant s licence, I am of the view that suspension for a period of 12 months would be appropriate. Order 33]In the result the appeal is allowed. The order of the Magistrate relating to the suspension of the appellant s driving licence is set aside. It is replaced with the following order. The driving licence of the accused is suspended for 12 months.

35 35 34]In terms of section 35(1) of the Act the period of suspension is to be calculated from the date of sentence. D. VAN ZYL JUDGE OF THE HIGH COURT Mjali J : I agree. G.N.Z MJALI JUDGE OF THE HIGH COURT Matter heard on : 30 November 2011 Judgment delivered on : 15 December 2011 Counsel for Appellant : Adv A. Hattingh Counsel for Respondent : Adv H.L. Obermeyer

36 36