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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 311
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S v Ndlovu (R75/16) [2016] ZAGPPHC 311 (4 May 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
A286/16
9/5/16
CASE NO: R75/16
Not
reportable
Not
of interest to other judges
In
the matter between:
THE STATE
and
RICHARD
NDLOVU
Accused
JUDGMENT
Tuchten
J
:
1.
This matter was submitted for special review by the chief magistrate
at Mbombela (Nelspruit). The accused, who was unrepresented,
pleaded
guilty in the magistrate's court at Mbombela under case no.2595/2015
to a charge, of contravening
s 4(b)
of the
Drugs and Drug Trafficking
Act, 140 of 1992
. It was alleged that the accused possessed 0,24gm of
dagga. The accused was convicted on a plea of guilty and sentenced to
6 months
imprisonment, suspended for a period of 18 months on certain
conditions.
2.
Unfortunately, the proceedings were affected, due to the presiding
magistrate's inexperience, by a number of irregularities:
the
sentence exceeded the court's jurisdiction; it was not established
that the plea of guilty was tendered voluntarily; and the
rights of
the accused regarding appeal and the process of review were not
explained to the accused.
3.
The chief magistrate asks that the sentence be set aside and replaced
with an appropriate sentence. However, in light of the
irregularities, particularly in relation to the tendered plea, I
consider that the proper course would be to set aside the entire
proceedings and remit them to the court below to start the
proceedings afresh before another magistrate.
4.
As the facts are clear and the order I intend making is in favour of
the accused, I consider it unnecessary to obtain the views
of the
Director of Public Prosecutions before I dispose of the matter.
5.
I accordingly make the following order:
1. The proceedings in
Mbombela case no 2595/2015, S v Richard Ndlovu, are hereby set aside.
2. The case is remitted
to the Mbombela magistrate's court for trial afresh. The trial must
serve before a magistrate other than
the magistrate who heard the
proceedings which have been set aside pursuant to paragraph 1 of this
order.
___________________
NB
Tuchten
Judge
of the High Court
5
May 2016
___________________
EM
Kubushi
Judge
of the High Court
5
May 2016