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[2017] ZAFSHC 166
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S v Mavuso (R123/2017) [2017] ZAFSHC 166 (14 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
R123/2017
In
the application between:
THE
STATE
and
MAKEKA
MAVUSO
CORAM:
REINDERS, J
et
CHESIWE, AJ
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
14
SEPTEMBER 2017
REVIEW
JUDGMENT
[1]
This is a special review under section 304 (4) of Act 51 of 1977, as
requested by Magistrate Redelinghuys of Parys.
[2]
After the conclusion of the trial and sentencing on 7 July 2017 the
learned Magistrate Redelinghuys noted on signing the warrant
that the
sentence imposed was not in accordance with the provisions of the
Act.
The
sentence reads:
“
The
accused is sentenced to a fine of R10 000,00 or 18 months
imprisonment.”
[3]
The background facts of the case and the reason for the request of
the learned magistrate are fully set out in a memorandum
which is
referred to this court together with the records of the proceedings.
[4]
The memorandum reads:
“
1.
On 7/7/2017 at Parys Magistrates
Court, the accused represented by Me Moogudi from the Legal Aid
Board, pleaded guilty and was convicted on am offence of contravening
section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
, for
dealing in 62,87 kg of dagga.
2.
The court thereupon imposed imposed a sentence of a fine of R10 000
(ten thousand
Rand) or 18 (eighteen) months imprisonment.
3.
After the case was
finalized and the warrant was submitted to me to be signed, I
realized that the sentence that was imposed is not in accordance with
the provisions of this Act.
4.
The accused is found guilty of contravening section 5(b) read with
section 13
(f) of Act 140 of 1992.
5.
Section 17(e) of Act of 1992 read as follows:
“
17.
Penalties – any person who is convicted of an offence under
this Act shall be liable – (e) In this case of an offence
referred to in section 13(f) to imprisonment for a period not
exceeding 25 years, or to both such imprisonment and such fine as
the
court my deem fit to impose”
6.
For this offence it is then imperative that the sentence in the first
place must
be imprisonment (though it might be suspended) (and a
further portion of a sentence, for example a fine with the
alternative of
imprisonment may be added.)
7.
The court erred for not imposing imprisonment as sentence as required
by the
Act.
8.
The learned review Judge is humbly requested to set this sentence
aside and referred
this case back to the court to impose a sentence
in accordance with the law.”
[4]
Section 17(e) of the Drugs and Drug Trafficking Act 140 of 1992 (the
Act) provides that:
Penalties
- any person who is convicted of an offence under this Act shall
liable:
“
(e)
In this case of an offence referred to in section 13(f) to
imprisonment for a period not exceeding 25 years,
or to both such
imprisonment and such fine as the court my deem fit to impose.”
[5]
I am in full agreement with the magistrate that the sentencing court
being functus officio there is not much it could do with
the problem
of changing its own sentence. Neither do the provisions of
Section
298
of the
Criminal Procedure Act of 1977
provide a remedy for the
magistrate.
Section 298
of the act reads:
“
When
by mistake a wrong sentence is passed the court may, before or
immediately after it is recorded, amend the sentence.”
[6]
I agree with the magistrate’s insistence that the sentence
should be rectified, because to do so will give certainty to
a future
court dealing with sentencing of the accused in the event that the
accused is convicted of a similar crime. The learned
magistrate to
also take into consideration when correcting the sentence that the
accused is not prejudiced by this correction.
[7]
To my mind the true intention of the trial magistrate can at best be
ascertained from the record that after finalising the trial
and when
the warrant was submitted for his signature, he noted that the
sentence imposed is not in accordance with the provisions
of the Act.
[8]
The learned magistrate is correct in that for this offence it is
imperative that the sentence in the first place must be imprisonment
though it may be suspended with a fine and the alternative of
imprisonment may be added.
[9]
I therefore conclude that the learned magistrate is correct that the
correct sentence should be imposed in terms of the Act.
[10]
In the result thereof, I make the following order:
1.
The conviction shall stand.
2.
The sentence is set aside and the matter is referred back to the
trial court for sentencing in accordance with Section
17(e) of Act
140 of 1992.
______________
CHESIWE, AJ
I
concur
_______________
REINDERS, J