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2023
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[2023] ZAFSHC 407
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S v Nwodo (R41/2023) [2023] ZAFSHC 407 (20 October 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
CASE
NO
:
R41/2023
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In the matter between:
THE
STATE
and
KENNETH
CHUKWUEBUKA NWODO
ACCUSED
CORAM:
OPPERMAN, J et HEFER, AJ
JUDGMENT BY:
HEFER, AJ
DELIVERED
ON
: 20
OCTOBER 2023
[1]
This matter served before us as a special review in terms of Section
304(4) of the Criminal Procedure Act
(“
the
CPA”
).
[1]
The Accused was charged in the Bethlehem Magistrates Court on seven
counts of contravening the provisions of Section 5(b)
of Act 140 of
1992, the Drugs and Drug Trafficking Act (read with the provisions of
Section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
) –
dealing in drugs.
[2] The
State and the Accused, who was legally represented, entered into an
agreement in terms of
Section 105A
(1) of Act 51 of 1977 in respect
of:
(i)
pleads of guilty by the Accused to the seven counts against him; and
(ii) a
just sentence to be imposed by the Court.
[3]
After pleading the Accused was convicted on all seven counts
according to the Section 105 agreement.
[4] The
Magistrate sentenced the Accused in accordance with the sentence
agreement as follows:
“
All
seven counts are taken together for purposes of sentencing and the
Accused is sentenced to 6 years imprisonment in terms of
Section
276(1)(a)
of the
Criminal Procedure Act 51 of 1977
of which years is
wholly suspended for 5 years on the following conditions:
That the Accused is
not convicted of contravening
Section 5(b)
of the
Drugs and Drug
Trafficking Act 140 of 1992
with specific reference to
Part 3
of
Schedule 2 and the second condition, that the Accused must compensate
the State to the amount of R50,000.00 of which the first
payment of
R2000.00, is payable to the Clerk of the Court, Bethlehem Magistrates
Act on or before the 30
th
of June 2023 and thereafter as
per page 5 of the agreement consecutively’.”
[5]
According to a letter from Magistrate H.J.M Bothma from the Bethlehem
Magistrates Court dated
19 September 2023, the Presiding Magistrate,
in sentencing the Accused, erred in applying Section 276(1)(a) of Act
51 of 1977 in
that Section 276(1)(a) of Act 51 of 1977 does not exist
whereas it was deleted by Section 34 of Act 105 of 1997. It needs to
be
mentioned at this stage that this letter from Magistrate Bothma
refers to “
the State v Tumelo Godfrey Khambule”
.
The Magistrates Court serial number as well as the case number being
“
05/2023”
and “
A295/2022”
however, respectively correspond with the documentation placed before
me in the review in respect of the Accused K.C Nwodo.
[6]
It needs to be pointed out that the plea and sentence agreement dated
27 June 2023 originally
made reference to
Section 276(1)(b)
of the
Criminal Procedure Act 51 of 1977
which was apparently amended by
hand and initialled accordingly by the respective parties.
[7]
From the record of proceedings it is also evident that originally the
Presiding Magistrate sentenced
the Accused in terms of
Section
276(1)(b)
of the
Criminal Procedure Act 51 of 1977
but the prosecutor
then “
corrected”
the Presiding Magistrate by
stating that reference should be made to Section “
276(1)(a)
”
instead.
[8]
According to the letter from Magistrate Bothma the error was noticed
when the sentence was queried
by the Department of Correctional
Services. The Presiding Magistrate, the prosecutor as well as the
advocate who appeared on behalf
of the Accused, conceded that the
agreement upon
Section 276(1)(a)
of Act 51 of 1977 was a
bona fide
mistake. According to Magistrate Bothma, Adv Maxaka, who appeared on
behalf of the Accused, consulted with the Accused in person
and they
agreed on an amendment of the Section 105A agreement. It also appears
that Frank Botha Attorneys, who instructed Adv Maxaka,
as well as the
prosecutor, agreed to the amendment of the agreement. A signed
agreement also dated 27 June 2023 now referring to
Section 276(1)(b)
has also been placed before me.
[9]
I found it astounding that both the Presiding Magistrate as well as
the prosecutor and to a lesser
degree Adv Maxaka who represented the
Accused, erred in referring to a subsection of the
Criminal Procedure
Act which
was repealed in 1997 already.
[10] Be
that as it may, whereas the incorrect reference to a repealed section
of the
Criminal Procedure Act was
referred to, because of a
bona
fide
mistake by all parties and representatives involved, the
sentence stands to be corrected.
ORDER
:
1.
The conviction is confirmed.
2.
All seven counts are taken together for
purposes of sentencing and the Accused is sentenced to six (6) years
imprisonment in terms
of
Section 276(1)(b)
of the
Criminal Procedure
Act 51 of 1977
of which three (3) years is wholly suspended for five
(5) years on the following conditions:
2.1
That the Accused is not convicted of
contravening
Section 5(b)
of the
Drugs and Drug Trafficking Act 140
of 1992
with specific reference to
Part 3
of Schedule 2; and
2.2
That the Accused must compensate the State
to the amount of
R50,000.00
of which the first payment of
R2000.00
is payable to the Clerk of the Court, Bethlehem Magistrates Court on
or before the
30
th
of June 2023
and thereafter as per page
5 of the agreement consecutively.
HEFER, AJ
I concur
OPPERMAN, J
[1]
Act 51 of 1977.