Court name
High Court
Case name
S v Shivute
Media neutral citation
[2007] NAHC 202















CASE
NO.: CR 171/07






IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



THE STATE



versus






BENJAMIN
SHIVUTE






(HIGH
COURT REVIEW CASE NO.: 1636/07)


CORAM:
MAINGA, J et
VAN
NIEKERK, J



Delivered on:
2007-12-13



REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:





[1]
In this case the accused was convicted by the Magistrate, Ondangwa,
on a charge of reckless driving in contravention of section 80(1) of
the Road Traffic and Transport Act, 1999 (Act 22 of 1999). He was
sentenced to a fine of N$4000 or two years imprisonment. The accused
was given the opportunity to pay the fine in instalments.






[2] The
magistrate suspended the accused's driving licence for three years
without giving the accused any opportunity to address him or to lead
any evidence on the subject.






[3] The accused
was informed of his right to forward a written statement to the
reviewing judge in terms of section 303 of the Criminal Procedure
Act, 1977. The accused made use of this opportunity,

albeit more than 2½
months late, after which the matter was forwarded on review.






[4] In
his letter the accused explained that he was employed at the time of
the offence for a courier services provider as a driver and he is
running the risk of losing his employment because of the suspension
of this licence. He attaches a letter by his employer confirming
that he is to be discharged unless he is able to obtain a driving
licence.






[5] It was, of
course, irregular for the magistrate to suspend the accused's driving
licence for longer than the compulsory minimum period of three months
without hearing the accused.

When the accused
made his statement in mitigation of sentence, he did not mention the
fact that his livelihood depends on him having a driving licence or
that his job was that of driver. If the magistrate had heard him on
the issue of the suspension of the licence, I am sure that the
accused would have mentioned these facts. In his letter the accused
does not seem to have any problem with the fine imposed. The gist of
his letter is directed at the suspension of the licence. Although
the accused was not heard at the time, there are now sufficient facts
on which this Court can determine the period of suspension.






[6] From
the evidence led it is clear that the accused was in a hurry to make
deliveries of blood, that he was late and that he drove too closely
to the vehicle in front of him. When that vehicle suddenly braked
and stopped for a dog, he could not stop in time. He could also not
swerve off the road to the left as there was a ditch. He therefore
took the risk to swerve to the right in the face of oncoming traffic,
which he could not see, and caused a head-on collision on the right
side of the road. The accused is a 30 year old offender, who had
been employed as a driver for 12 years. During the accident no
serious injuries were caused. In view of all the circumstances I
think a suspension of 6 months would suffice.





[7] Accordingly
the following order is made:






1. The conviction
and sentence are confirmed.





2. The
order suspending the accused's licence and any driving licence which
the accused may hold is set aside and substituted with the following
order:






"Every
driving licence which the accused, Benjamin Shivute, Identity Number
7411100259, holds is hereby suspended for a period of 6 (six) months
with effect from 10 May 2007."






3. The Registrar
of this High Court shall forward a copy of this judgment to Benjamin
Shivute by registered post to PO Box 81060, Olympia and by fax to fax
no. 061-225706, Windhoek.











______________________________



VAN NIEKERK, J






I agree










_______________________________



MAINGA, J