CRIMINAL REVIEW CASES – CONTRAVENING PROVISIONS OF THE ROAD & TRANSPORTATION ACT
S v Hangula NAHCMD (6 February 2023) – Blood sample for alcohol analysis must be taken within 2 hours – failure to question the accused in terms of section 112(1)(b) fatal to elements of the offence
The unrepresented accused appeared in the magistrate’s court on one count of driving with an excessive breath alcohol level, in contravention of section 82(5)(a), read with sections 1, 82, (6), 82(7), 86, 89(1) and 89(4) of the Road Traffic and Transportation Act 22 of 1999 (the Act). He pleaded guilty, and upon completion of the questioning, the court was satisfied that the accused admitted all the allegations in the charge, and convicted him as charged. He was sentenced to pay a fine of N$ 3000, or to 9 (nine) months imprisonment.
The matter came to the High Court for review, and the court directed a query to the magistrate’s court (court a quo) on why it failed to establish during section 112(1)(b) questioning whether the breath alcohol analysis was taken within the prescribed period of two hours. The court a quo conceded that it failed to establish whether the breath alcohol analysis was taken within the prescribed period of two hours. The High Court reviewed the matter and stated:
‘[5] Section 82(3) of the Road Traffic and Transportation Act 22 of 1999 provides:
‘Driving while under the influence of intoxicating liquor or a drug having a narcotic effect, or with excessive amount of alcohol in blood or breath
82. …
(3) Where in any prosecution for an offence under subsection (2), it is proved that the concentration of alcohol in any specimen of blood taken from any part of the body of the person concerned exceeded 0,079 grams per 100 millilitres at any time within two hours after the alleged offence, it shall be presumed, in the absence of evidence to the contrary, that such concentration exceeded 0,079 grams per 100 millilitres at the time of the alleged offence.’
[6] When questioning an accused in terms of section 112(1)(b), in respect of an offence of driving a vehicle with excessive blood alcohol level, the learned magistrate must establish whether the blood sample was taken within two hours after the accused was found driving a vehicle. Failure to establish that fact means one vital element of the offence has not been admitted.
[7] In the present matter, the court a quo failed to ask the accused whether the breath alcohol analysis was taken within the prescribed period of two hours. The conviction and sentence are accordingly not in order, and fall to be set aside.’
Accordingly, the conviction and sentence were set aside, and the order by which the accused’s licence was suspended was set aside. The matter was remitted to the court a quo in terms of section 312 of the Criminal Procedure Act 51 of 1977 with the direction to question the accused in terms of section 112(1)(b), and to bring proceedings to its natural conclusion.
Sv Ephraim NAHCMD (6 February 2023) – Failure to conduct the statutory inquiry is fatal
The unrepresented accused appeared in the magistrate’s court on one count of operating a vehicle whilst the permissible axle unit mass is exceeded. He was convicted on his plea of guilty, and sentenced to pay a fine of N$ 6000 or 6 (six) months’ imprisonment. In addition, the magistrate’s court made a forfeiture order to the effect that the copper weighing 2,560 kg is forfeited to the State in terms of section 108 of the Road Traffic and Transportation Act 22 of 1999 (the Act).
The matter was sent to the High Court for review, and the court directed a query to the magistrate as regards what satisfied the court a quo that the proviso in section 108 of the Road Traffic and Transportation Act had been met as regards the rights of the owner to the load (copper). Suffice it to say the magistrate failed to provide a sufficient explanation to the query.
Section 108 of the Act provides:
Forfeiture
‘108. (1) The court convicting a person of an offence by virtue of any provision of this Act or the regulations referred to in section 107(2) may, without notice to any person, declare a vehicle or its load or both which was or were used in the commission of the offence and which was or were seized under that section, or the convicted person’s rights in such vehicle or load or both, to be forfeited to the State: Provided that such declaration shall not affect any right which any person other than the convicted person may have to the vehicle or load or both, if that other person did not know that the vehicle or its load or both was or were being used or would be used in the commission of the offence concerned or could not prevent such use.
(2) Section 35 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), shall mutatis mutandis apply with reference to any forfeiture under subsection (1), and in such application the expression “weapon, instrument, vehicle, container or other article” in that section shall be construed as “vehicle or its load or both”.’
The High Court had regard to the provisions of section 108 of the Act, and concluded that the proviso in section 108 (underlined part) requires that the court holds an inquiry as regards the rights of the owner of the load (copper). This was unfortunately not done during the court’s questioning. Hence, the court could not have been satisfied that the proviso of section 108 was met.
As a result, the conviction and sentence were confirmed, but the forfeiture declaration was set aside. The matter was remitted to the court a quo with a direction to hold an inquiry in terms of section 108 of the Road Traffic and Transportation Act 22 of 1999.
Sv Calvert NAHCMD (03 February 2023) – Alternative imprisonment must be proportional to the fine and the gravity of the offence
In this matter, the unrepresented accused appeared in the District Court at Lüderitz. He was convicted on his own guilty pleas of one count of driving with an excessive breath alcohol level, in contravention of section 82(5)(a) read with sections 1, 82(5), 82(7), 86, 89(4) of the Road Traffic and Transportation Act 22 of 1999 (RTTA), and of one count of driving without a licence in contravention of section 31(1)(a), read with section 31(2) of the RTTA.
The court a quo imposed a sentence of a fine of N$5000 or 10 months’ imprisonment on count 1, and a fine of N$1000 or 6 months’ imprisonment on count 2. Furthermore, the accused was barred from applying for a Learner or Driver’s Licence for a period of 3 months from the date of sentencing.
The matter was sent to the High Court for review, and the court proceeded to review the matter without having sought a response from the magistrate concerned because sending a query and awaiting a reply would delay the outcome and cause prejudice to the accused. The court found no issues in respect of both the convictions, the sentence on count 1 and the additional order made, but the same could not be said about the sentence on count 2. The High Court stated that:
‘[5] Considering that count 2 was disposed of in terms of section 112(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA), which deals with minor offences and concomitant sentences, an imprisonment term of 6 months does not strike me as one that can be regarded as a light term of imprisonment. The principle was explained in numerous review judgements (Sv Zauisomwe (CR 10/2020) [2020] NAHCMD 44 (11 February 2020), S v Nyumba (CR31/2019) [2019] NAHCMD 97 ( 12 April 2019), which this particular magistrate has ignored.
[5] Furthermore, it is also an established principle in sentencing that when a judicial officer intends to give a fine and an alternative sentence of a period of imprisonment, that the alternative imprisonment should be in proportion to the fine and the gravity of the offence (Sv Dickson CR 129/2002 unreported, delivered 2002.08.09). This is not the case in the sentence on count 2, i.e., the 6 month’s imprisonment term is not proportional to the fine of N$ 1000. For that reason, this court will accordingly adjust the term of imprisonment.’
As a result, the convictions on count 1 and count 2, the sentence in respect of count 1 and the additional order were confirmed. The sentence on count 2 was substituted with the following sentence: ‘Accused to pay a fine of N$ 1000 or 3 months’ imprisonment. The sentence was antedated to the date of the sentence of 3 January 2023.
Sv Petrus NAHCMD (1 September 2022) – Terms of imprisonment disproportionate to fines
The accused was convicted on two counts in the district court of Swakopmund. In respect of count 1, he was convicted of negligent driving in contravention of section 80 of the Road Traffic and Transportation Act 22 of 1999, as amended, and sentenced to pay a fine of N$ 2000 or 12 months’ imprisonment. In respect of count 2, he was convicted of failure to ascertain damages in contravention of s 49(1) of Act 22 of 1999, as amended, and sentenced to pay a fine of N$ 1000 or 6 months’ imprisonment. The matter came before the High Court on automatic review. The convictions on both charges were in order, but the sentences were not.
The reviewing court took issue with the sentence in that in both counts, the terms of imprisonment were disproportionate to the fine amounts. In Sv Michael Dickson unreported case 848/2000 delivered on 2002.08.09, the High Court set aside a sentence of N$300 or 18 months imprisonment because of the disproportionate ratio between the fine and the imprisonment. In the Dickson matter, the reviewing court relied on the principle that when a judicial officer intends to sentence an accused to a fine with an alternative of imprisonment, he or she should arrange the sentence in such a way that the alternative of imprisonment is proportional to the fine and the gravity of the offence.
As far as the sentence in count 1 was concerned, 12 months’ imprisonment was too harsh in relation to a fine of N$2000, and so was 6 month’s imprisonment in relation to a fine of N$1000 in respect of count 2. The court a quo misdirected itself in that regard, and the reviewing court was at liberty to interfere with the sentences imposed. As a result, the following order was made:
The convictions in count 1 and count 2 were confirmed.
The sentences in both counts were set aside and substituted as follows:
Count 1: The accused is sentenced to pay a fine of N$2000 or 6 months’ imprisonment.
Count 2: The accused is sentenced to pay a fine of N$1000 or 3 months’ imprisonment.
The sentences were backdated to 10 August 2022.
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