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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES: SIMPHIWE GIVE RWEQANA

And

THE STATE

1. Registrar: CA&R 154/07

2. Magistrate:

3. High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 18/03/09

DATE DELIVERED: 14/05/09

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

1. for the Appellant(s): ADV: T.N. Price

2. for the Respondent(s): ADV: N.C. Turner

Instructing attorneys:

• for the Appellant(s): NOGCANTSI ATTORNEYS / MILI ATTORNEYS

• for the Respondent(s): DIRECTOR OF PUBLIC PROSECUTION (GHT)

CASE INFORMATION -

1. Nature of proceedings : APPEAL

Not reportable

THE HIGH COURT OF SOUTH AFRICA

In the Eastern Cape High Court

Grahamstown CA&R 154/07

In the matter between

SIMPHIWE GIVE RWEQANA Appellant

and

THE STATE Respondent

Coram JONES and DAMBUZA JJ

Summary Appeal – sentence – driving while under the influence of intoxicating liquor contra s 65(1)(a) of Act No 93 of 1996 – sentenced to 3 years’ imprisonment, 1 year’s imprisonment suspended on certain conditions – possibility of appellant being addicted to liquor – whether magistrate misdirected himself by failing to act in terms of s 274(1) to investigate this issue with a view to committing the appellant to a treatment centre in terms of s 296 rather than imposing a term of imprisonment – held on appeal that on the facts there was no misdirection.

JUDGMENT

JONES J

[1] On 10 June 2007 the appellant was charged with three counts of contravening the National Road Traffic Act No 93 of 1996. The offences were allegedly committed in a public road in Port Elizabeth on 23 March 2005. They were

• driving a motor vehicle whilst under the influence of liquor in contravention of s 65(1)(a);

• failing to licence his motor vehicle in contravention of s 18 of the regulations promulgated under the Act;

• driving with a smooth tyre in contravention of s 212(j)(i) of the regulations promulgated under the Act.

He was convicted on all three charges. Previous convictions were then proved. The appellant admitted 5 previous convictions:

3. on 13/8/1992, R600 or 3 months’ imprisonment, half suspended, for driving whilst under the influence of intoxicating liquor;

4. on 13/8/1992, R600 or 3 months’ imprisonment, half suspended, for reckless or negligent driving;

5. on 19/9/95, R1000 or 100 days’ imprisonment, R400 or 40 days’ suspended, for driving whilst under the influence of intoxicating liquor;

6. on 8/4/1998, 2 years’ correctional supervision for driving whilst under the influence of intoxicating liquor;

7. on 31/12/2003, payment of an unspecified admission of guilt fine for driving whilst under the influence of intoxicating liquor.

The first four convictions were in contravention of the old Act, but the offences are identical to those under the legislation currently in force. The trial was at that point remanded for a pre-sentence report.

[2] On 19 March 2008 a pre-sentence report prepared by an official from the Probation Services of the Department of Social Development, Eastern Cape was handed in by consent. The report recommended that the appellant be sentenced to a term of periodical imprisonment. The appellant, who did not testify on the merits of the conviction, gave evidence in mitigation of sentence, and both the prosecutor and the defence attorney addressed the court at length on the issue of sentence. The magistrate then sentenced the appellant. On count 1 he imposed a sentence of 3 years’ imprisonment, 1 year of which was conditionally suspended for 5 years, and on counts 2 and 3 he imposed appropriate fines with the alternative of imprisonment. The appellant’s driver’s licence was suspended for 5 years. The appellant’s application for leave to appeal against his conviction was refused, but he was given leave to appeal on sentence. He did not prosecute an appeal against the sentences on counts 2 and 3, or against the suspension of his licence. His appeal against the sentence of imprisonment on count 1 is now before us.

[3] Much of the argument on appeal is premised on the need in cases such as this for enlightened and restorative sentencing. It is difficult to criticize the submission that by reason of his personal circumstances the appellant is not a candidate for imprisonment, and that, because he is good human material and a useful member of society, he should be sentenced in a way which helps him to overcome a drinking problem rather than by the imposition of a custodial sentence. In theory, that is all very well. But the question is whether, in all the circumstances, this is a proper case for giving the rehabilitative element of criminal sentence priority over considerations like the seriousness of the offence and the concerns of society in combating the evils of drunken driving. Furthermore, as a court of appeal we cannot interfere with the magistrate’s decision on sentence merely because we may have imposed a different sentence or merely because we think that the magistrate would have done well to adopt a more ‘enlightened and restorative’ approach to sentence. We can only interfere with the sentence within well defined limits, which are set out by Holmes JA in S v Giannoulis 1975 (4) SA 867 (A) at 868E-G as follows:

‘1. In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal -

(a) should be guided by the principle that sentence is

"pre-eminently a matter for the discretion of the trial Court";

and

(b) should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been "judicially and properly exercised".

2. The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate.’

In other words, we are not entitled to interfere with the sentence unless, on the facts of this case, we are satisfied that it was a material misdirection for the magistrate not to have followed the more enlightened and restorative approach to sentencing advanced on the appellant’s behalf by Mr Price.

[4] The argument on appeal was preceded by an application by Mr Price to amend the grounds of appeal by the addition of a new ground. That application was not opposed and was granted. The amended notice of appeal raised a single point directed at a specific and confined issue: that the trial magistrate misdirected himself in not invoking the provisions of section 274(1) of the Criminal Procedure Act No 51 of 1977 (which empowered him to receive evidence, inter alia, on the possibility that the appellant was addicted to alcohol), in not requiring a second probation officer’s report specifically on that issue, and, in consequence of this failure, in precluding himself from considering whether or not the appellant should not be referred to a treatment centre in terms of section 296, read with the Prevention and Treatment of Drug Dependency Act No 20 of 1992.

[5] Mr Price’s heads of argument on behalf of the appellant raised a number of arguments attacking various aspects of the magistrate’s reasons for sentence. But on appeal before us he has confined himself solely to the point raised in the amended notice of appeal. The amended notice was not drawn to the magistrate’s attention, and the magistrate has not had the opportunity of commenting upon the amended ground of appeal. It is necessary that he be given that opportunity. In order to save time and money, and with the acquiescence of counsel for both parties, we decided to hear argument on the matter before receipt of any further reasons which the magistrate may wish to make, with the right of the parties to submit any further written arguments that they care to make in the light of his further reasons. We have now received the magistrate’s further reasons. Ms Turner, for the prosecution, has made a brief response, but Mr Price does not consider it necessary to do so because he has already dealt fully with all issues and has nothing to add.

[6] The argument on appeal is that the magistrate should have considered as a possibility that the appellant was addicted to alcohol, and this should have prompted him to investigate the issue with a view to committing him to a treatment centre instead of imposing a term of imprisonment. As I have explained, his failure to do so is alleged to be a misdirection. This was not part of the appeal as a specific issue prior to the amendment. But it was not entirely new. The importance of addiction to alcohol to the issue of sentence was clearly in the mind of the appellant’s attorney, especially because of the appellant’s four previous convictions for drunken driving, and the record shows that that was the reason why he asked for and why the magistrate called for a pre-sentence report. The report itself does not directly address the issue of addiction and does not raise the possibility of referral to a treatment or rehabilitation centre in terms of section 296 in lieu of or in addition to an ordinary sentence. One of the reasons for this was that the appellant did not attend the series of interviews with a social worker connected to an alcoholic rehabilitation centre which was arranged by the probation officer charged with drawing up the report. Although it is now suggested that the magistrate misdirected himself in not investigating the possibility of treatment of the disease of alcoholism, this course was never suggested to the magistrate at the trial, either by the prosecution or the defence or the probation officer. Further, nobody ever suggested that this may be a proper case for referral for treatment under the Prevention and Treatment of Drug Dependency Act. Indeed, I have a strong impression from the way the defence was conducted that the notion of an involuntary committal to a centre under that Act for an indeterminate period would have been entirely unacceptable to the appellant. The emphasis of the defence was that the appellant was not drunk, which is inconsistent with a plea that he should be helped because the offence was caused by an uncontrollable addiction. The tenor of his attorney’s argument on sentence was not that the appellant needed treatment for an illness. It was directed at dissuading the magistrate from imposing periodical imprisonment, and at persuading him, instead, to impose a stiff fine with the alternative of a period of imprisonment, coupled with a fully suspended sentence of imprisonment.

[7] There is only one suggestion in the evidence before the court which might raise grounds for investigating the possibility of an addiction to alcohol. It is a passage in the course of the appellant’s evidence in chief in which he was asked whether he had a drinking problem. He answered, somewhat ungrammatically, ‘yes, I would say so because during this last incident when I was arrested’. He was then asked: ‘And you call it bad luck. You cannot control your drinking or what is the position, sir’? He answered: ‘I would say I cannot control it’. Mr Price’s argument is that on the strength of this piece of evidence the magistrate should meru motu have raised and investigated whether or not the appellant was a candidate for committal to a treatment centre, and that his failure to do so constituted a misdirection which entitles us to set aside his sentence on appeal.

[8] The evidence allegedly sounding an alarm about possible alcohol addiction is scant. But it must not, of course, be considered in isolation. It must be considered in the context of all relevant features of the case, including information about the appellant’s history and background, the inferences to be drawn from his previous convictions, the rest of his evidence on sentence, the contents of the pre-sentence report, the evidence of the collision giving rise to the charge of drunken driving, and the description of the appellant’s condition and conduct at the scene. Does this information properly support a conclusion that he is the kind of person in respect of whom section 296 and the provisions of the Prevention and Treatment of Drug Dependency Act would apply?

[9] Mr Price was dismissive of the value of the pre-sentence report. He regarded it as totally inadequate for the purposes of section 296, which indeed requires a report by a probation officer. For that reason he suggested that the magistrate should have called for another report, and that his failure to do so was part of the misdirection. It is indeed so that the report does not deal with the disease of alcoholism or a possible referral under section 296. But this was through no fault of the probation officer. In any event his report cannot be dismissed as valueless. It contains relevant and important information which bears directly on the issue of a possible misdirection. It helps to place the question of possible addiction to alcohol in its proper context within the framework of the case as a whole. The appellant is a 36 year old public prosecutor employed in the maintenance court in Port Elizabeth. He has two law degrees. He lives with his life partner in a home in Kwamagxaki, a good suburb in the Port Elizabeth townships. They have one child. He comes from a good family. His mother is a teacher. His father, who is deceased, was a businessman and thereafter was employed by the Department of Justice, first as a prosecutor and then as a presiding officer in labour disputes. The appellant is in effect the breadwinner in the family, his partner making but a small contribution from casual employment. He is in receipt of a good salary, but finds it difficult to make ends meet, what with bond repayments, payments on a vehicle, furniture accounts and the like. He contributes towards the maintenance of his mother. He is in good health, both physically and psychologically, but had a blackout during 2006 which his doctor thought might have been an epileptic seizure. His employment record is good. After getting his degree he was employed by the Legal Aid Board, and, since 2000, as a prosecutor. His immediate superiors reported that he has been reprimanded at times for coming to work reeking of alcohol, and on one occasion he was spoken to about the use of liquor at work. Other than that, they experienced no problems with him. It must be accepted that he performed the court work and other exacting duties of a public prosecutor in a satisfactory manner. This history is important to the present enquiry. The appellant’s drinking has not adversely affected his employment or the way he does his cases. It has also not affected his ability to support himself and his family properly. There is no suggestion that, even if he is addicted to alcohol, this causes danger to his or his family’s health, or causes him to squander his assets. Everything points to a person who is presently able to cope with his liquor problem, if he has one, insofar as his daily life is concerned.

[10] The pre-sentence report does not give an account of the appellant’s drinking habits. There is no description of the type or quantity of liquor he drinks, or the frequency of his intake of alcohol. He was introduced to the use of liquor at a young age by an uncle with a drinking problem, but really started drinking as a university student. He told the probation officer who compiled the report that at present he struggles to go without drinking alcohol, and that he has not stopped drinking but merely reduced his intake. He was referred to SANCA (SANCA Alcohol and Drug Centre – an alcoholic rehabilitation organization) pending finalization of the report. eHH He attended the intake-session, but none of the subsequent sessions. He explained that he could not attend the other sessions because they were during court hours and he could not get anyone to replace him at work. There is no suggestion that he consulted an alternative organization, or took medical advice, or underwent psychological assessment, to make up for his inability to use the services of SANCA. It would seem that he is solely responsible for the lack of detailed information about his drinking. There is no explanation why he did not include it in the course of giving evidence. There is, further, no suggestion that he has ever been admitted to a hospital or private clinic for an alcohol-related problem, or that these avenues have ever been considered as possibly appropriate in his case.

[11] On the day of the offence the appellant was involved in a motor collision. This led to his arrest on these charges. He made a right turn across the path of the complainant’s oncoming vehicle suddenly, unexpectedly, and without warning in order to follow the vehicle immediately in front of him into a side road. The complainant was able to avoid the front car but a collision with the appellant’s car was unavoidable. The appellant accepted that he was negligent in making the turn. But the case he put in cross-examination was a denial that he was under the influence of liquor. He alleged that he had drunk two beers some hours before, which may have accounted for the smell of liquor on his breath, but he denied that he was intoxicated and not in a fit state to drive a motor-car. The defence version was correctly rejected as not reasonably possible in the face of overwhelming and uncontradicted evidence on the merits (a) by the complainant, who was an experienced police officer, (b) the passenger in the complainant’s car, and (c) the police officer who attended the scene and who arrived within 10 minutes of the collision, that the appellant was obviously very drunk. He was unable to speak coherently, to walk, to perform a test of walking along a straight line, or even to stand upright.

[12] The above is a summary of some of the more important factual considerations for determining whether the magistrate misdirected himself on the ground alleged. A conclusion that he committed a misdirection must be premised on a proper evidential basis for a finding on reasonable grounds that section 296 might be applicable and should have been considered. Section 296 says that a court convicting any person of any offence may, in addition to or in lieu of any sentence in respect of that offence, order that the person be detained at a treatment centre in terms of the Prevention and Treatment of Drug Dependency Act, No 20 of 1992, if the court is satisfied from the evidence or other information placed before it that the person is a person described in section 21(1) of that Act. Section 21(1) refers to a person

‘who is dependent on drugs [which includes alcoholic liquor] and in consequence thereof squanders his means or injures his health or endangers the peace or in any other manner does harm to his own welfare or the welfare of his family or fails to provide for his own support or for that of any dependant he is legally liable to maintain’.

It may be possible to infer from the appellant’s concession in evidence that he cannot control his drinking, and from his statement to the probation officer that he struggles to go without liquor, that the appellant may be dependent on drugs within the meaning of section 21(1), and that this was therefore a proper subject for investigation by the magistrate in terms of the first part of the section. But there is no evidential basis, or any other reasonable basis flowing from the information placed before the court, to give rise to the inference that the appellant, in consequence of a dependency on alcohol, squanders his means or injures his health or endangers the peace or is in any other way a person described in the section. Even if, on further investigation, the appellant is shown to be addicted to alcohol, all the indications in the evidence and information before the court are that he is not a person described in section 21(1). He practices an exacting profession and is able to hold down a stressful job. In doing so, he appears to be able to cope with a drinking problem. He enjoys a reasonably high standard of living. He pays for his assets, rather than squandering them. He supports his family and his mother. He has not found it necessary to seek medical or psychological help for his drinking. He has not sought help from organizations such as Alcoholics Anonymous or SANCA. In the light of these considerations it cannot be said that there was a duty requiring the magistrate to take the matter any further than he did. He certainly cannot be said to have misdirected himself in not enquiring in greater detail into the appellant’s possible drinking problem or in not calling for a further pre-sentence report with specific reference to his possible addiction to liquor. There is no indication anywhere on record that the appellant has insight into his condition, or acknowledges that he needs help, or is willing to give up drinking alcohol. There is no suggestion that he is truly a candidate for rehabilitation. All the indications before the magistrate show that the appellant did not want, and did not require, the drastic action of being committed to a treatment sentence against his will.

[13] The record of evidence and the magistrate’s reasons show that the magistrate did not make the mistake of ignoring the possibility that the appellant may have had a drinking problem. His attention was drawn to the possible relevance of alcoholism to sentence when he was requested to call for a report, and that was the reason for calling for a report. He was very much aware that he was dealing with an aggravated case of drunken driving. During argument on sentence he was referred to one of the more recent authorities which discuss the role of alcoholism in passing sentence for driving under the influence of liquor, namely S v Sithole 2003 (1) SACR 326 (SCA). He knew that he was dealing with an offender who had four previous convictions which show a pattern of drinking and driving over a number of years. It speaks for itself that the imposition of partially suspended sentences and fines with the alternative of imprisonment did not deter or rehabilitate the appellant. The appellant does not appear to have benefited from the sentence of 2 years’ correctional supervision. The magistrate did not follow the recommendation to impose periodical imprisonment, probably because, by reason of the aggravated nature of the case, he considered that a period of 3 years’ imprisonment (partially suspended) was a just and proper sentence. This sentence is considerably heavier than the maximum period of 800 hours which can be imposed as periodical imprisonment. In my view, there can be no suggestion that the sentence of 3 years’ imprisonment is unreasonably or shockingly severe, or disturbingly inappropriate, when regard is had to the aggravated nature of the offence and the interests of society. If that is so, 800 hours’ periodical imprisonment would not be an adequate sentence. The result is that an appropriate custodial term was the only proper option. It is now necessary for the appellant to face the reality of imprisonment for continuing to repeat this offence. The magistrate did not in these circumstances misdirect himself by deciding to impose it.

[14] This conclusion is entrenched by the judgment in Sithole’s case supra which refers at 329f-g to ‘the tension that tends to arise in cases of this kind between deterrent and preventative (on the one hand) and reformatory aims (on the other) and the endeavour to find a satisfactory balance between the two’. In paragraphs 7, 8 and 12 Conradie JA puts the issue of alcoholism and sentences for driving under influence of liquor in perspective:

‘[7] Courts in this country have long acknowledged that alcohol addiction is a disease and that it would be to the benefit of society and of the offender if the condition can be cured. But it is necessary to make the obvious point that drunken driving is not a disease. One is distressingly familiar with maudlin pleas in mitigation that the drunken driver in the dock is an alcoholic, as if the disease excused the crime. It does not (S v Fraser 1987 (2) SA 859 (A) at 864B - D).

[8] Addiction to alcohol is not an excuse for driving under the influence of liquor. In many cases the addiction would be an aggravating feature of the offence. The alcoholic who takes his car to the pub knows when he parks it outside that he will probably not be sober enough to drive it home. He recklessly courts the danger of criminal conduct. His conduct is more reprehensible than that of the person who carelessly has one too many. . . .

[12] The thrust of the appellant's argument on appeal was that correctional supervision under s 276(1)(h) - an entirely non-custodial sentence - would have adequately taken account of societal interests. I disagree. A person with the appellant's record cannot expect to escape prison altogether. Too many people die on our roads for that to be an option. Driving under the influence of intoxicating liquor is a serious crime and repeated offences greatly augment its seriousness, particularly where, as here, one of the offences is committed during the currency of a suspended sentence for the very same kind of offence, and another is committed while awaiting trial on an earlier offence of the same kind.’

The present appellant did not commit an offence during the currency of a suspended sentence or while awaiting trial. But his criminal record is otherwise not much different from that in Sithole, and he has in addition been given the advantage of correctional supervision without beneficial results. The same line of reasoning and the same choice of language as in Sithole is applicable – ‘a person with his record cannot expect an entirely non-custodial sentence’ on the ground that it might rehabilitate him. ‘Too many people die on our roads for that to be an option. Driving under the influence of intoxicating liquor is a serious crime, and repeated offences greatly augment its seriousness’. Even if it is assumed in favour of Mr Price’s argument that the appellant suffers from the disease of alcoholism, it does not follow, on the facts of this case at any rate, that the magistrate misdirected himself in not considering a non-custodial sentence in order to treat his illness.

[15] In the result the appeal is dismissed.

RJW JONES

Judge of the High Court

12 May 2009

DAMBUZA J I agree

N DAMBUZA

Judge of the High Court

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