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[2018] ZAFSHC 211
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S v Sisir (R238/2018) [2018] ZAFSHC 211 (24 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: R238/2018
In
the review of:-
THE
STATE
and
JONE
HASSAN
SISIR
CORAM:
MUSI, AJP
JUDGMENT
BY:
MUSI,
AJP
DELIVERED
ON:
24
December 2018
[1]
This matter was sent on special review by the Magistrate,
Jagersfontein.
[2]
The accused was convicted of contravening section 49(1)(a) of Act 13
of 2002 and contravening section 4(b) of Act 140 of 1992
–
possession of dagga.
[3]
When he testified under oath in mitigation of sentence he said that
his asylum seeking permit expired ten days before his arrest
and that
he did not have enough money to go and renew it.
[4]
The magistrate was of the view that this explanation might be a
defence to the charge of contravening section 49(1)(a).
The
magistrate referred the matter on special review, requesting that the
conviction be set aside.
[5]
Section 113 of the Criminal Procedure Act, 51 of 1997 reads as
follows:
“
(1)
If the court at any stage of the proceedings under section 112 (1)
(a)
or
(b)
or 112 (2) and before sentence is passed is in doubt whether the
accused is in law guilty of the offence to which he or she has
pleaded guilty or if it is alleged or appears to the court that the
accused does not admit an allegation in the charge or that
the
accused has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge or if the court
is of the
opinion for any other reason that the accused's plea of guilty should
not stand, the court shall record a plea of not
guilty and require
the prosecutor to proceed with the prosecution: Provided that any
allegation, other than an allegation referred
to above, admitted by
the accused up to the stage at which the court records a plea of not
guilty, shall stand as proof in any
court of such allegation.
(2)
If the court records a plea of not guilty under subsection (1) before
any evidence has been led, the prosecution shall
proceed on the
original charge laid against the accused, unless the prosecutor
explicitly indicates otherwise.”
[6]
Section 113 can therefore be applied at any stage before sentence is
passed. Sentence was not passed in this matter.
[7]
The magistrate should have applied section 113 instead of sending the
matter on review. The matter should therefore be
remitted to
the magistrate to apply section 113.
[8] I therefore make the following
order.
The
matter is remitted to the Magistrate Jagersfontein to deal therewith
in accordance with this judgment and the law.
____________
C.
J. MUSI, J