IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG

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1 REPORTABLE IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH AFRICA REVIEW CASE NO.: R511/2010 In the matter between : THE STATE versus NHLANHLA WISEMAN TSHABALALA ACCUSED REVIEW JUDGMENT Delivered on : 12 NOVEMBER 2010 PATEL DJP : [1] The accused in this matter, Mr Nhlanhla Wiseman Tshabalala was convicted of contravening Section 65 (1) (a) of Act No. 93 of 1996, namely, driving under the influence of intoxicating liquor and sentenced to pay Two Thousand Rand (R2000,00) or undergo Eight (8) months imprisonment. This matter served before my brother Gorven J as a review who raised, inter alia, the following query : It does not appear from the record that the learned magistrate conducted the requisite enquiry in terms of S35 of Act 93 of 1996, or made the requisite finding, regarding the suspension or otherwise of

2 the accused s drivers licence. He is requested to comment on this aspect. [2] The magistrate responded as follows to this particular query : Procedurally, I think, the Public Prosecutor is the one who must apply. I do not think it is in order for a court to invoke Section 35 on its own despite the fact that it allows it to do so. Orders are made on application. If the Public Prosecutor wants it to be invoked, it could still be done even after the case has been reviewed. [3] I might, at the outset, point out that the proceedings are in accordance with justice. This review judgment is occasioned by the learned Magistrate s response that a magistrate has no power to invoke Section 35 of the National Road Traffic Act 93 of 1996 ( the Act ) of his or her own accord. The learned Magistrate is further of the view that an order in terms of the Act can only be made on application by the Prosecutor. [4] Section 35 of the Act reads : On conviction of certain offences licence and permit shall be suspended for minimum period and learner's or driving licence may not be obtained. (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 2

3 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 person is the holder of a driving licence or a licence and permit, shall be suspended in the case of (i) (ii) (iii) a first offence, for a period of at least six months; a second offence, for a period of at least five years; or 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 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 exist which do not justify the suspension or disqualification referred to in subsection (1) or (2), respectively, the court may, notwithstanding 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 deem fit. (4) A court convicting any person of an offence referred to in subsection (1) 3

4 shall, before imposing sentence, bring the provisions of subsection (1) or (2), as the case may be, and of subsection (3) to the notice of such person. (5) The provisions of section 36 shall with the necessary changes apply to the suspension of a driving licence or a licence and permit in terms of this section. [5] The title to the above section as well as subsections (1) and (2) contain the word shall and this is a clear indication that the Legislature has mandated the courts on convicting the accused to suspend his or her licence or disqualify him or her from obtaining such a licence. Subsection (3) gives the court a discretion, which is evidenced by the words the court may, in certain circumstances to order that the suspension or disqualification shall not take effect. Subsection (4) places a duty on the court to bring the relevant subsections to the attention of the accused before imposing sentence. The record in the present review reveals that the magistrate failed to comply with his statutory duty to bring the provisions of subsections (1) or (2), as the case may be, and (3) of the Act to the notice of the accused before imposing sentence. In addition, the magistrate s contention that Orders are made on application overlooks the fact that, as will be seen below, s 35 provides for automatic suspension or disqualification on conviction on the accused. [6] Section 35 is comparable to s 147 of the Road Traffic Ordinance 21 of 1966 (T), which placed a duty on courts to issue an order for the suspension or 4

5 cancellation of a licence or permit or disqualify a person from obtaining a learner s licence or permit [Kruger, A Hiemstra s Criminal Procedure LexisNexis (May 2010) SI 3 at 30 24]. In S v Botha 1978 (4) SA 543 (T), the magistrate had convicted the accused of driving under the influence of intoxicating liquor. However, the magistrate had failed ( versuim ) to make an order in terms of s 147(3) of the Ordinance in respect of the accused s driver s licence [at 544C E]. The court ordered that the case be remitted to the magistrate for the issuing of an appropriate order [at 546A]. Clearly, the magistrate was supposed to have invoked the powers contained in the Ordinance. [7] A court s powers under s 35 of the Act were considered in S v Wilson 2001 (1) SACR 253 (T). The accused was convicted of driving under the influence of intoxicating liquor. The magistrate s court ordered that the accused be disqualified from applying for a driver s licence for a period of six months from the date of the court order [at 255e f]. Southwood J, on review, held that very little information had been placed before the court and the sentence was disproportionate [at 259c]. The court stated that the courts should make more use of s 35 of the Act as it provides for powers of automatic suspension of a driver s licence for a certain period or automatic disqualification from obtaining such a licence for a certain period. The court regretted the fact that our courts have too often ordered that the accused s licence was not suspended merely because the accused alleged that the licence was necessary for work purposes [at 259f g]. The court held that an order that an accused be disqualified in terms of s 35(2) was not a competent order. The court held 5

6 further that unless a court made an order to the contrary in terms of s 35(3) the accused was disqualified from obtaining a licence for a period of six months [at 259h]. It is submitted that the reason for this finding is that s 35(2) provides for automatic disqualification and there is no need to make an order to this effect. The case supports the proposition that Magistrate Khanyile erred in submitting that an Order are made on application. [8] An automatic review of conviction and sentence on a charge of drunken driving was considered in S v Louw [2002] JOL (T). The accused was sentenced to a fine and the magistrate ordered that the accused s driver s licence be endorsed with the conviction. The review concerned the validity of the endorsement order [para 2]. The magistrate mero motu directed the following remark to the reviewing judge [para 3]: It was the objective of the sentence that the accused should keep his driver s licence. However the court erred in that it provided for the endorsement of the accused s driver s licence. This provision is not provided for in the current National Traffic Act 93 of The court was therefore not competent to give such an order. The Honourable reviewing judge is therefore humbly requested to correct the sentence to reflect the intention of the court being: 1. that the suspension of the accused s driver s licence shall not take effect, in terms of section 35(3) of Act 93 of 1996; 2. 6

7 [9] The court held that it was clear from the record that no order for the suspension or cancellation of the driver s licence had been made [para 6]. The magistrate s endorsement order was set aside. The magistrate mero motu requested that the reviewing judge correct the sentence and in doing so invoked the provisions of s 35(3) of the Act. [10] The Act places a duty on courts to suspend or disqualify, as the case may be, unless the court is satisfied that the circumstances justify an order that the suspension or disqualification shall not take effect. The magistrate in the present matter is therefore incorrect to assert that s 35 cannot be invoked mero motu. [11] In my view it will be jejune to summon the accused to Court again for the purpose of questioning in terms of the Act. This review, I hope provides the Magistrate with guidance as to how he or for that matter any other Magistrate should consider the power granted to them by Section 35 of the Act. PATEL DJP I agree : MNGUNI J 7