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[2015] ZAFSHC 87
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S v Shale (38/2015) [2015] ZAFSHC 87 (30 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review No: 38/2015
In the review
between:
THE STATE
versus
TALADI
SHALE
........................................................................................................................
ACCUSED
CORAM:
DAFFUE
J
et
NAIDOO,
J
JUDGMENT:
NAIDOO,
J
DELIVERED
ON
:
30
APRIL 2015
REVIEW
JUDGMENT
[1] This is a Review
that came before us in terms of section 302(1) of the Criminal
Procedure Act 51 of 1977 (the Act).
[2] The accused was
charged with one count of contravening the provisions of section
4(b), read with
sections 1
,
3
,
17
to
25
and
64
of the
Drugs and Drug
Trafficking Act 140 of 1992
, in that he was found in possession of a
mandrax tablet. The accused conducted his own defence and pleaded
guilty on 13 October
2014 and after
section 112(1
)(b) of the Act was
invoked, the magistrate proceeded to question him in accordance with
that section. He was convicted as charged.
The accused was sentenced,
on the same day, to pay a fine of Three Thousand Rand (R3000) or Six
(6) months’ imprisonment,
which was wholly suspended for a
period of five (5) years, on condition that the accused is not
convicted of contravening section
4(b) of Act 140 of 1992, committed
during the period of suspension.
[3] During routine
checking of the work of magistrates in March 2015, the Acting Senior
Magistrate discovered that the magistrate,
who was a temporary
magistrate, was unaware that the matter was subject to automatic
review in terms of the Act and consequently
did not forward the
matter to the High Court. It also became evident that the accused’s
rights of review were not explained
by the magistrate. The Acting
Senior Magistrate referred the matter to this court on 13 March 2015.
[4] The matter came
before Jordaan J, who referred the matter back to the magistrate on
31 March 2015, with the following queries;
4.1
“
Did
the accused admit to knowledge of Mandrax being an illegal substance?
4.2
Did he admit that he knew that it is illegal to be in possession of
such substance?”
[5] The magistrate
responded to the queries raised by Jordaan J on 7 April 2015 and
conceded that the accused did not admit that
he knew Mandrax to be an
illegal substance and that it was illegal to be in possession of such
a substance. The magistrate further
conceded that the conviction is
not in order and requested the Reviewing Judge to set aside the
conviction and sentence. In addition,
it is also apparent from the
record that the accused’s review rights were not explained to
him.
[6] In view of the
above, it is clear that the accused did not admit all the essential
elements of the offence with which he was
charged and that he ought
not to have been convicted.
[7] I accordingly
make the following order:
The conviction and
sentence imposed on the accused are set aside.
S. NAIDOO, J
I agree.
JP DAFFUE, J