Enquiry in terms of Section 105-A (9) Criminal Procedure Act, 1977 not a post-sentence procedure; appeal upheld: HC of South Africa

High Court of South Africa, Western Cape Division:  This appeal was filed before a 2-Judge Bench comprising of J I Cloete and M K Parker, JJ., against the order of Magistrate where appellant was convicted and sentenced without following the relevant provision.

Facts of the case were that the appellant was charged for contravening Section 65(2) (a) read with Section 89 (1) and (2) of the NRTA for drinking and driving. It is pertinent to note that appellant was convicted in 2010 for similar offence but under Section 65(1) (a). Court then ordered the suspension of the order of imprisonment of 4 months till 4 years during which he ought not to be found guilty of the same offence. In terms of the agreement, the appellant pleaded guilty of the charges against him. Appellant had submitted mitigating factors such as his fixed job, sole breadwinner of the family, under debt and had been convicted for a similar offence. Magistrate enquired under Section 35 of the National Road Traffic Act, 1996 as a consequence of which his driving licence was suspended.

The issue before the Court was to see if an agreement formed according to Section 105-A of the Criminal Procedure Act, 1977 regarding the suspension of accused driving licence for a period of time without any enquiry by Court under Section 35 was required to be dispensed with.

Appellant contended that the magistrate was misdirected when he unilaterally altered the terms of plea and sentence agreement related to the period of suspension without informing the parties of proceedings of his intention to do the same based on the finding in the case of  State v. DJ, 2016 (1) SACR 377 (SCA).  The above contention led to the question of whether the magistrate could have done so.

High Court agreed with the findings of the case of S v. Lourens, 2016 (2) SACR 624 (WCC) and accordingly observed that enquiry under Section 35 was an important part so as to determine the sentence. Magistrate erred in concluding above provision as a post-sentence procedure and he should have followed Section 105-A (9). Therefore, appellant’s conviction and sentence ought to be set aside and the matter was remitted back to District Court Mitchells Plain for trial de novo before another magistrate. [Micheal Muller v. State, 2018 SCC OnLine ZAWCHC 2, dated 16-11-2018]

 

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