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[2016] ZAGPPHC 740
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S v Tsela (A181/2016) [2016] ZAGPPHC 740 (23 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
A181/2016
7/4/16
DATE:
23 March 2016
CASE
NO: A447
HIGH
COURT REF NO: 457/15
MAGISTRATE
SERIAL NO: 16/15
REVIEW
NO: MR/22/2015
In
the matter between:
THE
STATE
And
PATRICK
INNOCENTIA
TSELA ACCUSED
SPECIAL
REVIEW JUDGMENT
TEFFO
J
1]
The accused was arrested on 6 August 2015 at or near Oshoek Port of
Entry by members of the South African Defence Force. He was
subsequently taken to the Hartebeespoort police station where the bag
that he was carrying at the time of his arrest was searched
and
dagga, which weighed 1,17 kilograms, was found inside it.
2]
He stood trial at the Eerstehoek Magistrate's Court where he faced a
charge of dealing in dagga and or possession thereof.
3]
He pleaded guilty and an enquiry in terms of
5112 (b) of Act 51 of
1977
was held. He admitted to possession of dagga and the
quantity thereof. The magistrate surprisingly convicted him of
dealing in dagga
in contravention of
Section 5(a) and (b) read
with sections 1, 13, 17, 25 and 64 of the Drugs and Trafficking Act
140 of 1992.
He was eventually sentenced to three months
imprisonment which sentence was wholly suspended for a period of
three years on condition
that he is not convicted of dealing in
dagga, which offence, is committed during the period of suspension.
The accused was further
sentenced to pay a fine of R1500,00 or serve
a period of one month imprisonment.
4]
The magistrate misdirected himself by convicting the accused of
dealing in dagga while the evidence on record only proved possession
of dagga.
5]
Under the circumstances I am of the view that the conviction of the
accused of the offence of dealing in dagga should be set
aside and be
replaced with a conviction on possession of dagga.
6]
In the light of the information received from the clerk of the
Magistrate's Court that the accused has already served a sentence
of
one month imprisonment, I am inclined to confirm the sentence imposed
by the Magistrate Court.
7]
In the result I make the following order:
7.1
The conviction of the accused on the offence of dealing in dagga in
contravention of
Section 5(a) and (b) of Act 140 of 1992
is
set aside.
7.2
The accused is convicted of the offence of possession of dagga in
contravention of
Section 5(a) and (b) of Act 140 of 1992.
7.3
The sentence imposed by the magistrate court is confirmed.
7.4
As part of the condition of his suspended sentence, the accused
should also not be found guilty of possession of dagga.
__________________________
M
J TEFFO
JUDGE
OF THE HIGH COURT
I
agree
__________________________
C
PRETORIUS
JUDGE
OF THE HIGH COURT