[REPORTABLE]

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Coram: Hlophe, JP et Saba, AJ

CASE NO: A130/11

In the matter between:

and

SABA, AJ

[1] This is an appeal against sentence imposed by the magistrate sitting in Cape Town on 5 March 2010. The appellant was charged with the contravention of Section 65(1) (a)/ (b) read with Sections 1. 65(3). 65(4). 65(8), 65(9). 69(1), 73 and 89 of the National Road Traffic Act 93 of 1996 ("The Act") - in that on 21 July 2009 he drove a motor vehicle at Kloofneck Street. Cape Town while under the influence of intoxicating liquor.

[2] The facts giving rise to this appeal may be summarized as follows: On 19 January 2010, the appellant, who was assisted by a legal representative, Mr Mihalik, pleaded guilty to driving a motor vehicle while under the influence of intoxicating liquor and in contravention of section 65(1 )(a) of the Act. He was convicted on his plea of guilty. Appellant was sentenced to three years correctional supervision in terms of section 276(1 )(h) of the Criminal Procedure Act 51 of 1977. With the leave of the court a quo granted on 13 April 2010. the appellant now appeals against sentence.

[3] The events leading to the arrest of the appellant are in the main not in dispute. On 21 September 2009 the appellant drove a Volkswagen Polo at Kloof Nek Drive, a public road in Cape Town while under the influence of intoxicating liquor and his car collided with an oncoming vehicle. In mitigation of sentence, it was placed on record that the appellant was a 21 year old first offender who. shortly after his release from custody in connection with this case, submitted himself to a therapeutic programme concentrating on substance abuse. Appellant was an in patient at Stepping Stones Rehabilitation Centre for four weeks. The matter was then postponed for Correctional and Probation Officer's reports to be obtained On 5 March 2010 both reports were completed and available before Court. The Probation Officer had recommended that a fine should be imposed; whereas the Correctional Officer had recommended a sentence of Correctional Supervision in terms of section 276(1 )(h) of the Criminal Procedure Act.

[4] The following excerpt is the essential part of what happened before sentence was imposed:

"Court : I take it that you are in receipt of the probation officer's and the correctional officers reports, the copies of which you received Mr Mihalik?

[5]   The record then reveals the following:

SENTENCE

[6] It is clear from the above passage that the magistrate failed to give Mr Mihalik an opportunity to address the Court on the contents of the probation and correctional officers reports before imposing sentence

[7] The issue to be determined is whether the magistrate's failure to afford Mr Mihalik an opportunity to address the court before imposing sentence, even though counsel for the appellant had specifically stated that "he would like to address the [Court] on it thereafter', amounts to a gross violation of an accused's right to a fair trial.

"Section 35(3) of the Constitution forms the bedrock of the right to a fair trial.

At page 458a-c. the learned Judge emphasized the importance of the right to address court at the conclusion of evidence when he said:
The right to address court at the conclusion of evidence is of such fundamental nature as not to be departed from unless expressly waived by the parties'".

[11] In his heads of argument, Mr Mihalik. counsel for the appellant referred us to the case of S v Mtolo 2009 (1) SACR 443 (OPD) where the accused who had been referred to a treatment centre, was not given an opportunity to challenge the evidence led at an enquiry held in terms of s22 of Prevention and Treatment of Drug Dependency Act 20 of 1992. At page 446f-h. Musi J said the following;

"In this matter the accused was not given any say in the matter. His voice was taken away completely. When the prosecutor intimated that the accused said that he had a drug dependency problem he was not asked to verify that information When the probation officer's report was handed in the contents thereof were not read to him. He could therefore not object to anything that was written in the report. When the letters from Aurora and Magaliesoord were handed in he was not informed by the magistrate why
he was rejected. The probation officer's report that was sent to Swaartfontein was not handed in. No reason therefore was given. Swaartfontein's letter of acceptance and the conditions of acceptance- there were many- were not explained to him..,	".

At paragraph [9). the learned Judge made the following finding:

"The negation of the accused's right to challenge the evidence presented before sentencing rendered the whole sentencing process unfair and was therefore a serious misdirection".

[12] I am in respectful agreement with the finding of the court in Mtolo. In the Mtolo case, the probation officer's reports and letters from the treatment centres rejecting the accused were not read to him before a decision to take him to Swaartfontein Treatment centre was made. In casu Mr Mihalik for the appellant had an insight into the probation and correctional officers reports. However, he was not given an opportunity to address the court on the contents of both reports before sentence was imposed,

[13] Counsel for the state, Ms Hendry, in her heads of argument stated the following:

"Whilst a denial of an opportunity to challenge evidence will indeed vitiate the proceedings, it is arguable whether a denial of the opportunity to comment should vitiate the proceedings. This is especially so in light of the fact that counsel for the appellant had on a previous occasion had the opportunity to address the court Nothing appears now to have been overlooked in the reports."
I am unable to agree with Ms Hendry on this point In fact her argument is untenable to say the least.

[14] The magistrate totally ignored the provisions of section 175 (1) of the Criminal procedure Act 51 of 1977, which are as follows:

"After all the evidence has been adduced, the prosecutor may address the court, and thereafter the accused may address the court"

[15] After gaining insight into the probation and the correctional officers' reports, it cannot be speculated what Mr Mihalik would have added to the submissions he made in mitigation of sentence. The fact that the recommendations of the probation and correctional officers' were different, (a fine and correctional supervision in terms of section 276{i)(h) of the Criminal Procedure Act. respectively), was reason enough to afford Mr Mihalik an opportunity to address the court and persuade it on the type of sentence that would be suitable for the appellant.

[16] The constitutional right of the accused to a fair hearing must be real and not illusory. The accused person has a right to a proper and effective hearing. (See S v Halgryn 2002(2) SACR 211 SCA at 216h). Failure to allow Mr Mihalik an opportunity to address and or challenge what was contained in the reports before sentence was imposed was a serious irregularity which resulted in a failure of justice. It resulted in the magistrate not taking into account all the factors pertaining to sentence.

[17] Notwithstanding the irregularities highlighted above and according to the submission made by Mr Mihalik at the hearing of this application, the appellant has undergone a rehabilitation programme for thirteen weeks as an in and out patient at Stepping Stones Rehabilitation Centre. In the circumstances. I am of view that the appellant has already served his sentence pursuant to the order of the court a quo and therefore, further punishment is unwarranted.

[18]   In the result, the following order is proposed:
(1) Appeal against sentence succeeds;
(2) Sentence imposed by the court a quo is set aside and substituted with the following sentence;
Accused is sentenced to thirteen weeks correctional supervision in terms of section 276(1)(h)' 
The substituted sentence is antedated to 19 July 2010.

I agree and it is so ordered.