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[2022] ZAMPMBHC 87
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S v Magagula (R17/2022) [2022] ZAMPMBHC 87 (30 November 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
HIGH
COURT REF NO: R17/2022
MAGISTRATE
CASE NO. E14/2022
MAGISTRATE
REFERENCE NO. L14/2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
OF
INTERESTS TO MAGISTRATES: YES
REVISED.
30
November 2022
In
the matter between:
THE
STATE
And
PHUMULANI
MAGAGULA (THE
ACCUSED)
REVIEW
JUDGMENT
RATSHIBVUMO
J
[1].
The accused, a
21-year old man appeared in Barberton Magistrate Court sitting in Low
Creek facing two criminal offences. In count
1, it was alleged that
he contravened
section 5(b)
of the
Drugs and Drug Trafficking Act,
no. 140 of 1992
– the Drugs Act (dealing in 2,5 kilograms of
dagga, an undesirable dependence producing substance). In count no 2,
it was
alleged that he contravened section 49(1)(a) of the
Immigration Act, no. 13 of 2002 (entering or remaining in the
Republic without
a valid document or passport).
[2].
On 27 January
2022, the accused pleaded guilty to all the charges and was convicted
on his plea. He was sentenced on the same day
as follows:
“
Count
1: Accused is sentenced to pay a fine of R3 000.00 (three
thousand rand) or undergo 12 (twelve) months imprisonment,
half
suspended for a period of 05 (five) years on condition that accused
is not convicted of contravening the provisions of section
5(b) read
with the
sections 1
,
13
,
17
to
25
and
64
of the
Drugs and Drug
Trafficking Act, no. 140 of 1992
.
Accused
is further sentenced to pay a fine of R1 500 (one thousand rand
five hundred rand) or undergo 03 (three) months imprisonment
suspended for a period of 03 (three) years on condition that accused
is not convicted of contravening the provisions of
section 5(b)
read
with the
sections 1
,
13
,
17
to
25
and
64
of the
Drugs and Drug
Trafficking Act, no. 140 of 1992
– Dealing in drugs.
Count
2: Accused is sentenced to pay a fine of R5 000.00 (five
thousand rand) or undergo 06 (six) months imprisonment suspended
for
a period of 03 (three) years on condition accused is not convicted of
contravening the provisions of
section 49(1)(a)
read with
sections 1
,
9
,
10
,
10A
,
10B
,
25
of the
Immigration Act, no. 13 of 2002
, committed
during the period of suspension.”
In
terms of
section 35
of the
Criminal Procedure Act 51 of 1977
–
Dagga is forfeited to the State.”
[3].
This matter
came to the attention of Senior Magistrate De Beer who was of a view
that the sentence imposed in respect of count 1
was incompetent. He
immediately sent the case on special review as provided in
section
304(4)
of the
Criminal Procedure Act, no. 51 of 1977
. It is not clear
as to when the matter was sent on review as his covering letter is
undated. It is however apparent that his view
was based on the
provisions of section 17(e) of the Drugs Act which, as he
interpreted, has no room for the imposition of a fine
as a sentence
unless it is imposed alongside a sentence of imprisonment without an
option of a fine.
[4].
Section 17(e)
of the Drugs Act provides as follows,
“
Any
person who is convicted of an offence under this Act shall be liable
–
(e)
in the case of an offence referred to in
section
13
(f)
(contravention of a provision of
section
5
(b)),
to
imprisonment for a period not exceeding 25 years, or to both such
imprisonment and such fine
as the court may deem fit to impose.
”
[My
emphasis].
[5].
The
above provision has been the subject of interpretation by various
divisions of the High Courts in a number of judgments. Senior
Magistrate De Beer referred to the judgment of
S
v Mohome
[1]
where the High Court in interpreting the penalty clause provided for
contravening s 2(a) of Act 41 of 1971 (dealing in drugs under
the
predecessor to the Drugs Act) said, “upon a conviction for
dealing in dagga in contravention of s 2
(a)
of
Act 41 of 1971, in addition to any fine with alternative imprisonment
which may be imposed, a further term of imprisonment
suspended
or unsuspended and without the alternative of a fine must always be
imposed.”
[6].
This
interpretation has been followed with approval in a number of
judgments such as
S
v Mqikela
,
[2]
S
v Mlambo
[3]
and
S
v Madibane
.
[4]
In all these cases, sentences where a fine was imposed were set aside
and replaced with sentences of imprisonment without an option
of a
fine, irrespective of whether such sentences were fully suspended,
partially suspended or not suspended at all.
[7].
Office of the
Director of Public Prosecutions (the DPP), Mpumalanga was asked to
make remarks or submissions regarding the views
expressed by the
Senior Magistrate as contained in the covering letter. The court is
indebted to Adv Mpolweni the Deputy Director
of Public Prosecutions,
together with Adv Mata who penned an opinion which was relevant and
of great help. The DPP agrees with
Senior Magistrate De Beer in
concluding that the sentence imposed in respect of count 1 above was
incompetent.
[8].
The
DPP however referred this court to a number of decisions in which
some divisions of the High Court had confirmed or imposed
the
sentences of a fine with imprisonment only as an alternative thereof
in respect of a similar offence.
[5]
The DPP argues that these cases were wrongly decided and attributed
this to “the wording of the section which is somehow
perplexed
and ambiguous and as a result, it is often misconstrued.” I
agree with the DPP that these judgments were wrongly
decided.
[9].
I am however
reluctant to join in the choir critical of the legislative framework
and the wording of section 17(e) of the Drugs
Act. It is my
respectful view that section 17(e) is unambiguous in its current
format. In case I am wrong in this regard, the law
reports are
replete with authorities in which this section was interpreted by
various divisions of the High Court. I have however
noted that all
the judgments referred to above by the DPP as having been wrongly
decided, did not deal with the interpretation
of section 17(e) of the
Drugs Act nor was anything regarding the competency of the sentences
imposed brought to the attention of
the courts reviewing the
proceedings. Had this been brought to their attention, I have no
doubt that the correct interpretation
of this section would have been
reached. This should however not be interpreted as condonation for
not considering all issues before
the courts reviewing proceedings
from the Lower Courts.
[10].
Before the
DPP’s office was requested to submit its views, the Magistrate
who presided over the trial was implored to obtain
submissions from
the accused, so as to afford him active participation in the review
proceedings in light of the real possibility
that the sentence
imposed on him could be set aside and replaced with one of direct
imprisonment. This was also in line with the
principle of natural
justice that requires both sides to be heard before the suspect’s
fate is determined (the so called
audi
).
In response was brought to the court’s attention that the
accused paid a fine of R1 483.42 on 28 January 2022 and
was
deported to his country of origin. In light of the charge in count 2,
this did not come as a surprise.
[11].
The DPP also
weighed in and roped in the services of the Investigating Officer in
this case who gave a similar report. The result
was that the accused
could not be traced. The DPP submitted that the court should proceed
and alter the sentence irrespective of
the absence of the accused, so
as to correct the incompetent sentence imposed in this case. It was
also submitted that the accused
would not suffer substantial
prejudice as his submissions in mitigation for the sentence are on
record. Moreover, the DPP requested
that a custodial sentence that is
wholly suspended should be imposed. I agree with these submissions.
[12].
The DPP also
requested that the court should consider an order directing that a
fine paid by the accused should be refunded back
to him. My concern
with this submission is over the practicality in light of the
information to the effect that he has since been
deported to his
country of origin and the possible expense associated with tracing
there. I do not think this is necessary and
warranted.
[13].
I therefore propose the following
order.
[12.1]
The conviction in respect of the two charges is confirmed.
[12.2]
The sentence imposed in respect of count 1 is set aside and replaced
with the following:
[12.2.1]
The accused is sentenced to a fine of R1 483.42 (one thousand
four hundred and eighty-three, forty-two cents. A further
12 (twelve)
months imprisonment is imposed but suspended for a period of 03
(three) years on condition that accused is not convicted
of
contravening
section 5(b)
of the
Drugs and Drug Trafficking Act, no.
140 of 1992
, committed during the period of suspension.
[12.3]
The sentence imposed in respect of count 2 is confirmed.
[12.4]
The sentences above are antedated to 27 January 2022.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I
agree
D
GREYLING-COETZER
ACTING
JUDGE OF THE HIGH COURT
30
NOVEMBER 2021
[1]
1993
(1) SACR 504 (T)
[2]
2005
(2) SACR 397 (E)
[3]
2007
(1) SACR 664 (W)
[4]
2014
(2) SACR 88 (GP)
[5]
See for example,
S
v Fedani
2000 (1) SACR 345
(E),
S
v Mahlangu
2004 (1) SACR 280
(T) and
S
v Sokweliti
2002 (1) SACR 632
(Tk).