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[2016] ZAGPPHC 324
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S v Okankwa (A278/2016) [2016] ZAGPPHC 324 (26 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
A278/2016
Date :26 April 2016
MAGISTRATE: Ms J.S
Naidoo
HIGH COURT REFERENCE
NO.: 536/15
MAGISTRATE'S SERIAL
NO.: 19/15
REVIEW CASE
NO.:SA98/15
THE STATE v IFEANYI
HENRY FRANCE OKANKWA
REVIEW JUDGMENT
INTRODUCTION
[1] This is a review of a
conviction in terms of Section 304(4) of the Criminal Procedure Act
51of 1977 ("the
Criminal Procedure Act&rdquo
;).
[2] The accused was found
in possession of 1,76 grams of cannabis ("dagga”) and
14.40 grams of methcathinone. He
appeared before in the Magistrate's
Court, Secunda where he was charged with, and convicted of, two
counts of contravening the
provisions of
Section 4(b)
read with
Sections 1
,
13
,
17
to
25
and
64
of the
Drugs and Drug Trafficking Act
140 of 1992
,("the Act 11 namely the unlawful possession of
dagga and the unlawful possession of methcathinone.
[3] The Acting Senior
Magistrate, Evander, ("the Acting Senior Magistrate") under
whom the Secunda Magistrate's Court
falls, and over which he is
tasked to perform judicial quality control, in transmitting this case
for special review, expressed
reservation as to the appropriateness
of the sentences imposed by the Magistrate who heard this matter.
[4] In a memorandum which
accompanied the record, this Court's attention was drawn to amongst
other things the following:
4.1. the rule against the
splitting of charges;
4.2. the wording of the
sentence imposed by the Magistrate; and
4.3. the Section 300
order.
[5] It is convenient to
now give a brief summary of the background facts in the matter.
BACKGROUND FACTS
[6] The accused, a 27
year asylum seeker, was arrested on 30 January 2015. The drugs
mentioned in paragraph 2 above were found on
his person.
[7] At the hearing of the
matter, the accused, who had prepared a written statement in terms of
Section 112(2)
of the
Criminal Procedure Act, and
who was represented
by an attorney, pleaded guilty to the two charges which were framed
as follows:
"Count 1 :
Possession or use of drugs in that upon or about 30 January 2015 and
at or near Secunda, in the district of Secunda,
the accused did
wrongfully have in his possession or use
an undesirable and
dependence producing substance as listed in
Part 3
of Schedule 2 of
[the Act}, to wit 14,4g of Methcathinone.
Count 2 : Possession
or use of drugs in that upon or about 30 January 2015 and at or near
Secunda, in the district of Secunda, the
accused did wrongfully have
in his possession or use an undesirable dependence producing
substance as listed in Part 3 of Schedule
2 of [the Act], to wit
1,76g of cannabis."
[8] Having satisfied
herself that all the elements of the crime had been admitted and that
the accused had the requisite intention
to plead guilty, the
Magistrate found the accused, who had a previous conviction, guilty
on both charges and, after being addressed
on the issue of
mitigation, imposed the following sentence:
"Five years
imprisonment wholly suspended for
5
years for a period of five
years on condition that the accused does not contravene section 4{b)
read with
section 13
,
17
, to
25
and
64
of the
Drugs and Drug
Trafficking Act, 140 of 1992
during the period of suspension and
further in terms of
section 300
of Act 51/1977 the accused is to
compensate SAVF Louis Hildebrand with the amount of R20 000.00 as
agreed upon on or before the
31 July 2015. In terms of section
103{2)(b) of Act 60 of 2000 the accused is declared unfit to possess
a firearm."
[9] I now turn to deal
with the merits of this matter.
WAS THERE AN IMPROPER
SPLITTING OF CHARGES?
[10] As can be noted from
the charges listed in paragraph 7 above, the drugs are described as
dependence producing a nd are both
listed in Part 3 of Schedule 2 of
the Act. In a matter where an accused had been convicted of dealing
in dagga and mandrax and
sentenced, separately, for each offence, the
Court in
S v Diedericks
1984 (3) SA 814
at 817 E - G having
found that both drugs were dependence-producing , had to distinguish
between a legitimate and an impermissible
combination of convictions.
Baker J in
Diedericks supra,
stated that reference to dagga
and mandrax in the charge sheet was put there merely to enable the
accused to know in what sort of
substance he has allegedly and
illicitly been dealing. The learned Judge found that dealing in dagga
and methaqualone on the same
occasion was in reality one transaction
with a single intent. The reasoning and conclusions in
Diedericks
were followed by the Full Bench of the Natal Provincial Division
in
S v Mkhize and Others
1987 (4) SA 430
where Law J held that
a person found in possession of dagga and methaqualone, at one and
the same time, in circumstances not amounting
to dealing, was guilty
of one offence. The ratio of
Diedericks
was also followed by
the Full Bench of the Cape Provincial Division in
S v
Maansdorp and Another
1985 (4) SA 235
(C) and the Full Bench
of the Transvaal Provincial Division in
S v Swartz
1986 (3) SA
287
(T).
[11] I accordingly find
that, based on the authorities cited above, the accused was
incorrectly charged. This led to a duplication
of convictions. The
accused was guilty of only one offence. In the result, I propose that
the separate convictions are set aside
and replaced by a conviction
of one count of possession of cannabis and methcathinone in
contravention of Section 4(b) read with
Sections 1
,
13
,
17
to
25
and
64
of the Drugs and
Drug Trafficking Act 140
of 1992.
IS THE SENTENCE PROPERLY
WORDED AND APPROPRIATE IN THE CIRCUMSTANCES?
[12] The sentence imposed
on the accused consists of three parts. First: five years
imprisonment which is conditionally wholly suspended
for five years;
Second: payment of the sum of R20, 000.00 to the Non
Governmental Organisation named in the sentence, and
Third: declaring
the accused unfit to possess a firearm.
[13] Regarding the first
part of the sentence, it is worth noting that the Magistrate treated
both counts as one for purposes of
sentence. Despite having
consolidated the two counts into one, I find that that part of the
sentence is appropriate.
[14] The Acting Senior
Magistrate, in his helpful memorandum referred to in paragraph 4
above, correctly in my view, suggested that
the phrase " ...
the
accused does not contravene
... " in the second line of the
sentence should be replaced with the words " ...
the accused
is not convicted of
[the named offence]
...committed
... I
agree that the first portion of the sentence falls to be amended.
[15] In the second part
of the sentence, the Magistrate invokes, incorrectly,
Section 300(1)
of the
Criminal Procedure Act
["the Act"] to order the
accused to compensate SAVKF Louis Hildebrand with an amount of R20,
000.00 by a certain date.
[16] Section 300(1) of
the Act is only applicable where the offence caused damage to a
person or loss of property. The person, who
is so damaged or has lost
property, can bring an application to be compensated, or the
prosecutor can, acting on the instructions
of that person, bring such
an application on his or her behalf. The record in this matter does
not show that such an application
was made during the proceedings in
Court. Also, no damage or loss of property was sustained by anyone in
this matter, nor SAVF
Louis Hildebrand to whom the Magistrate ordered
the accused to pay an amount of R20 000.00.
[17] The record also
reveals that the Magistrate, in chambers rejected a plea and sentence
agreement concluded by the accused and
the State in terms of Section
105 A of the
Criminal Procedure Act. Notwithstanding this
rejection
of the agreement, the Magistrate made an order of compensation which
was part of the Plea and Sentence Agreement she
had rejected.
[18] The Magistrate acted
irregularly in issuing that order of compensation. The Plea and
Sentence Agreement should have been placed
on record, whereafter the
Magistrate's views should have been conveyed to the parties. The
procedure set out in
Section 105(A)
9
(b) of the
Criminal Procedure
Act should
then have been followed. This did not happen.
[19] I am of the view
that we should interfere with this part of the sentence and set it
aside.
[20] I propose that we do
not interfere with that portion of the sentence declaring the accused
unfit to possess a firearm.
[21] In the event, I
propose the following order:
1. The separate
convictions on counts 1 and 2 are replaced with a conviction of one
count of possession of cannabis and methcathinone
in contravention of
Section 4(b}
read with
Sections 13
,
17
to
25
and
64
of the
Drugs and
Drug Trafficking Act 140 of 1992
.
2. The sentence is
amended and substituted as following:
Five years imprisonment
wholly suspended for 5 years on condition that the accused is not
convicted of a contravention of
Section 4(b)
read with
Sections
1
,
13
,
17
to
25
and
64
of the
Drugs and Drug Trafficking Act 140 of
1992
, committed during the period of suspension;
3. The accused is
declared unfit to possess a firearm in terms of
Section 103(
2
)(b) of
Act 60 of 2000.
______________________
M.P CANCA
Acting Judge of the
High Court of South Africa Gauteng Division,
Pretoria
I agree and it is so
ordered
_____________________
A. LEDWABA
Deputy Judge President
High Court of South
Africa Gauteng Division,Pretoria