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[2015] ZAGPPHC 17
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S v Malmone and Another (A961/14, 826/14) [2015] ZAGPPHC 17 (9 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH DIVISION, PRETORIA
Case Nos: A961/14
826/14
Date: 9 January
2015
In the matters
between:
THE
STATE
versus
TSHEPO
MALMONE (826/14)
and
BONGANI
MICHAEL
NDLOVU
...............................................................
Accused
REVIEW JUDGMENT
1. Both matters have
been referred to this Court as special reviews in terms of section
304 (4) of Act 51 of 1977, the Criminal
Procedure Act (“CPA”).
In both instances the irregularities that have been pointed out
by the Acting Senior Magistrate
of the Magistrate’s Court
for the district of Benoni are identical. The two matters were
presided over by the same acting
Magistrate and in both matters
the accused faced charges of possession or using an
undesirable dependence producing substance
listed in Part 1 of
Schedule 2 of the
Drugs and Drug Trafficking Act 140 of 1992
,
namely cannabis or, more colloquially, dagga. Both were
sentenced on the same day. In both instances they appeared for
the first time on the 11
th
September 2014, at which stage
the matter was postponed and an attorney, apparently instructed
by Legal Aid, placed on
record that he would conduct their
defence. The accused were released on warning.
2. Both matters were
postponed to the 30
th
September 2014. When the
accused appeared they were unrepresented in spite of having had
the assistance of the attorney
at the previous hearing. In both
instances they indicated that they would plead guilty to the
charge of possession of the
prohibited substance and that they
would conduct their own case.
3. The court did not
inquire, in either event, why the attorney who had first appeared
for them was not present. The presiding
officer and the
prosecutor accepted that the accused would continue to
participate in the proceedings without legal representation.
4. Both accused were
first offenders and neither raised the issue of legal representation.
In neither charge, which was duly
put to the accused, was the amount
of the undesirable dependence producing substance found in
the accused’s possession
mentioned. Both accused pleaded
guilty.
5. The trial
magistrate proceeded to investigate the accused’s personal
circumstances before pronouncing judgment, and before
formally
recording that the accused were found guilty after the State
accepted the plea proffered by both accused. In
one instance the
fact that the accused had no previous convictions was addressed
before the formality of a finding of guilty
was recorded. After
delivering a little homily to both accused they were each sentenced
to the payment of a fine that was
suspended without imposing an
alternative of imprisonment in case the fine remained unpaid.
6. The Acting Senior
Magistrate correctly pointed out in her submission of these two
matters for special review that the trial
magistrate failed to ensure
that the accused fully understood the charge and that they
admitted all the elements of the
statutory offence of having
transgressed
section 4(b)
of Act 140 of 1992. She also correctly
underlines that the magistrate failed to explain the accused’s
rights to
address the court in mitigation of sentence and of a
review or appeal after conviction.
7. In addition, the
manner in which the fine was imposed is incorrect. A wholly suspended
fine must carry an alternative option
of imprisonment if it
remains unpaid. Any sentence that is suspended must be suspended
for a specific period not exceeding
five years on specific
conditions, the transgression of which may lead to the
termination of the suspension.
8. It is therefore
clear that a number of irregularities have occurred in these
two matters. The Senior Magistrate, who went
far beyond the call
of duty in investigating and analysing the errors that occurred
in these proceedings, suggests that
they should be set aside in
their entirety. The Court is grateful for her thorough, diligent
and thoughtful preparation of
the memorandum accompanying the
reference for a special review. It is to be hoped that the trial
magistrate concerned
will have taken these comments to heart.
Normally it would follow as a matter of course that grave
irregularities such as
those recorded above would cause the
proceedings to be set aside as not having been in accordance
with justice. The question
that must be considered, however, is
whether setting aside the conviction in these two matters would be
in the interests
of justice. Should the accused be prosecuted again
after invalidation of the proceedings on review, they would
suffer significant prejudice
and discomfort by being forced to
attend court, probably having their case postponed at least
once, and receiving a sentence
that would - and should - differ
little from the fine they had imposed upon them now.
9. It is clear that
the accused intended to plead guilty to what all parties concerned
clearly regarded as a minor offence.
The irregularities that occurred
did not muddy the quality of justice the accused received when
they were convicted.
The sentences must be corrected, but it is
unnecessary to stand upon meticulous observance of the
prescripts of the CPA if
the correct result was achieved even
though significant procedural errors occurred. The trial itself
was not rendered
unfair by the lackadaisical fashion in which
the trial was conducted.
10. The following
order is made in both matters:
1. The conviction is
confirmed.
2. The sentence is
set aside and substituted with following:
‘
A
fine of R1 000, 00 or, in the alternative, imprisonment for a period
of two months. The sentence is suspended in its entirety
for a period
of eighteen months on condition that the accused is not
convicted of the possession or use of or dealing
in any drug or
dependence producing substance committed during the period of
suspension.
3. The sentence is
backdated to 30 September 2014.
Signed at Pretoria
on this eighteenth day of December 2014.
E BERTELSMANN
Judge of the High
Court
I agree.
K.M. KUBUSHI
Judge of the High
Court