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South Africa: Free State High Court, Bloemfontein
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2019
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[2019] ZAFSHC 37
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S v Ugala (R28/2019) [2019] ZAFSHC 37 (25 April 2019)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
number: R28/2019
In the matter between:
THE STATE
And
CHARLES UGALA
CORAM:
REINDERS,
J et CHESIWE, J
JUDGMENT
BY:
CHESIWE,
J
DELIVERED
ON:
25
APRIL 2019
[1]
This
matter has been referred to the High Court for special review in
terms of Section 302 of the Criminal Procedure Act 51 of 1977
(CPA).
The Additional Magistrate for Bloemfontein pointed out that the
accused pleaded not guilty to three counts.
Two counts of
contravening the provisions of section 5 (a), 5(b), read with
sections 1, 13, 17, 19. 20, 21 and section 64 of the
drugs and Drug
Trafficking Act 140/92. Count 3 contravening
section 49(1)
(a)
of the
Immigration Act 13 of 2002
. Hereafter the accused was found
guilty on all counts and was sentence to seven years imprisonment on
count 1 and on count 2 was
fined R500 or 50 days imprisonment.
[2]
The matter was referred to the Review Judge in chambers without any
explanation or a memorandum attached.
I send a query to the
Presiding
officer to request reasons as to why the matter was send for review.
[3]
The learned magistrate send a memo dated 20 February 2019 and stated
the following reasons: “……
It
is my humble submission that the conviction of the offender on both
counts is in accordance with justice. I further submit
that the
sentence falls above this court’s jurisdiction. I
respectfully refer this matter to the Honourable Reviewing
Judge for
review as per the aforementioned section.”
[4] The accused was
legally represented throughout the trial by Adv. Shuping.
[5]
Section
302
of the CPA provides that: “
if
a sentence imposed by a judicial officer who has not held the
substantive rank of magistrate of higher for a period of seven
years,
or which exceeds a period of six month, if imposed by a judicial
officer who has held the substantive rank of magistrate
or higher for
a period of seven years or longer……. Shall be
subjected in the ordinary course to review by a
judge of the
provincial or local division having jurisdiction.”
[6] On
perusal of the record, the Presiding Officer’s date of
appointment to the rank of magistrate was 1 November
2004. Thus
the date of services as a magistrate exceeded the required dates as
determined in
section 302
of the CPA. Accordingly the
sentenced imposed is in accordance with justice and do not need to be
tampered with.
[7]
Subsection (3) of
s302
of the CPA provides that subsection (1) shall
apply- (a) with reference to a sentence which is imposed in respect
of an accused
who was not assisted by a legal adviser. The
accused throughout the trial was legally represented by Adv.
Shuping.
Therefore the
section 302(3)
is not applicable in this
instance.
[8]
Section 64 of the Drug and Drug Trafficking Act 140 of 1992 (the
DDTA) provides that: “
Jurisdiction
of Magistrates Courts – a magistrate ‘s court shall have
jurisdiction- (a) to impose any penalty mentioned
in section 17, even
though that penalty may exceed the punitive jurisdiction of a
magistrate’s court; and (b) to make any
order referred”
to in section 35(1), even though the amount payable under that
order may exceed the civil jurisdiction
of a magistrate court
.”
[9]
I therefore conclude that the learned magistrate in terms of section
302 has the necessary jurisdiction
to impose the sentence and with
regard to section 64 of the DDTA, the court has the necessary
jurisdiction to impose the said sentence.
[10] In
the result thereof, I make the following order:
1. The conviction
shall stand.
2. The sentence
imposed by the trial court is confirmed.
S.
CHESIWE, J
I
CONCUR
C.
REINDERS, J