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[2014] ZANCHC 34
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Sass v S (37/2013) [2014] ZANCHC 34 (22 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE DIVISION, KIMBERLEY]
JUDGMENT
CASE NUMBER
: REF 37/2013
SERIAL NO: 1/2014
PATRICK WILLIAMS
SASS
AND
THE STATE
Date of the judgment: 22 August 2014
Coram: Phatshoane J and Mamosebo AJ
Phatshoane
J.
1.
This matter
comes before us by way of special review in terms of s 304(4) of the
Criminal Procedure Act, 51 of 1977, (the CPA).
It follows after the
accused was convicted of contravening
s 5(b)
of the
Drugs and Drug
Trafficking Act, 140 of 1992
, in that he had transported 8,175 Kg of
cannabis on the Calvinia/ Williston Road on 04 October 2012. He was
sentenced to nine years
imprisonment in terms of
s 276(1)(i)
of the
CPA by Mr E.S. Morolong, a Magistrate for the District Court of
Calvinia.
2.
We were not
provided with the record of the proceedings. The Court Manager and
the Quality Assurance Officer of the Magistrates’
Court of
Calvinia informed us that, for reasons unknown, the proceedings were
not digitally recorded. I therefore directed that
the record be
reconstructed and that the presiding Magistrate forward to us his
reasons for his decision. What is disconcerting
and apparent from the
explanation is that following my directive the file was lost in the
system at the Registrar office, which
resulted in further unjustified
delay.
3.
The
reconstructed record signed by the accused, his legal representative,
the presiding Magistrate and the State reads in part as
follows:
“
Ter uitvoering van u
opdrag om die rekord te rekonstrueer, het die betrokke partye op 12
Mei 2014 te Calvinia byeengekom.
Beskuldigde was weereens
verteenwoordig deur Mnr Symington, ‘n privaat prokureur.
Rekonstruksie:
Nadat die aanklagte gestel was,
het die beskuldigde skuldig gepleit op die aanklag hom ten laste
gelê.
Volgens die verdediging, sowel
as die Staat, het die verdediging in hul Artikel 112(2) pleit
verduideliking aangevoer dat daar handel
gedryf was deurdat die dagga
soos in die aanklag vermeld na Calvinia vervoer was deur die
beskuldigde. Geen afskrif van die pleitverduideliking
is beskikbaar
nie. Die beskuldigde was toe skuldig bevind soos aangekla. Die Staat
het vorige veroordeling bewys. ‘n Voorvonnisverslag
waarin
korrektiewe toesig aanbeveel was, was tydens vonnisverrigtinge
toegelaat. Hierdie verslag het gehandel oor die beskildigde
se
persoonlike omstandighede en moontlikheid op rehabilitasie. Na
aanleiding van hierdie verslag en die Staat wat daarmee saam
gestem
het, was gevangenisstraf ingevolge Artikel 276(1)(i) opgelê.
Angesien ek het geen notas en/of
‘n onafhanklike geheue oor die meriete voor vonnis het nie, kan
ek nie verdere redes vir
vonnis verskaf nie.
Geteken te Calvinia op 12 Mei
2014.”
4.
The
presiding Magistrate explained that, through an error on his part, he
imposed a sentenced in excess of five years imprisonment
which runs
counter to the provisions of
s 276
(1)(i) of the CPA. For this
reason he requested that the sentence be set aside and the matter be
remitted to the Magistrate Court,
Calvinia, for sentencing
de
novo.
5.
Upon
receipt of the reconstructed record I requested the office of the
Director of Public Prosecutions to give their input on the
matter. I
am grateful to Senior State Adv C.G. Jansen for her assistance on
this score.
6.
What one
gathers from the record is that, without demur, the accused admitted,
on more than one occasion, that he dealt in dagga.
Therefore, this is
not a case where the conviction should be upset. There can be no
prejudice.
7.
Insofar as
the sentence is concerned the Magistrate intimates that he cannot
recall the merits of the case before he passed sentence
on the
accused and cannot provide reasons for the sentence he imposed. It is
as well to remember that s
17(e)
of the
Drugs and Drug Trafficking Act, 140 of 1994, provides that:
“
Any
person who is convicted of an offence under this Act shall be liable-
in the case of an offence referred to in section 13 (f)
[contravention of s 5(b)], to imprisonment for a period not exceeding
25 years, or to both such imprisonment and such fine as the
court may
deem fit to impose.”
8.
Nevertheless,
on a plain reading of s 276(3)(b), correctional supervision is a
sentencing option that may be imposed, irrespective
of anything else
provided for in any other law, except where such other law calls for
the mandatory minimum sentence in terms of
s 51(1)
or (2) of the
Criminal Law Amendment Act 105 of 1997
. See also
S v Nel
2013
(1) SACR 155
(GSJ) at 157c para 8.
9.
A sentence
in excess of five years imprisonment, as in this case, would not be
competent to impose under
s 276(1)(i)
of the CPA because it may
undermine the exercise of the discretion by the Commissioner of
Correctional Services. For this reason
alone it stands to be set
aside. In
S v Cassiem
2001 (1) SACR 489
(SCA) at 494c-e
para 11 the Court made the following pronouncement:
“
The effect of this was
the appellant was, in effect, sentenced to a total of seven years'
imprisonment. This the magistrate was
not empowered to do under
s
276(1)(i).
This Court in
S
v Stanley
1996 (2)
SACR 570
(A) has already decided that the suspended period of
imprisonment forms an integral part of the total period of
imprisonment. It
was held that to render the sentence under
s
276(1)(i)
competent the total period of imprisonment should not
exceed five years, because such excess may interfere with the
exercise of
the discretion by the Commissioner of Correctional
Services under the section. In my view, the sentence imposed by the
magistrate
offended against the provisions of
s 276(A)(2)(b)
which
forbids the imposition of a sentence in excess of five years under
s
276(1)(i).
”
See also
S v Howells
1999(1) SACR 675 (C) at 682j-683a;
S v
Bangiso
2013 (1) SACR 558
(GNP) at 563b-d para 23.
10.
We are not at liberty
to alter the sentence or to impose a sentence which we believe the
Magistrate ought to have imposed anent
the requirement of
s 276(1)(i)
of the CPA in the absence of material facts and reasons
by the Magistrate for imposing the sentence of nine years
imprisonment.
Therefore, it follows that the matter ought to be
remitted to the Magistrates’ Court for sentencing afresh by the
trial Magistrate.
In the result:
ORDER:
1. The
conviction of the accused is confirmed.
2. The
sentence is set aside.
3. The
matter is remitted to the Magistrate Court, Calvinia for sentencing
de novo
by the trial Magistrate, Mr E.S Morolong.
MV
PHATSHOANE J
I agree
MC
MAMOSEBO AJ