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[2013] ZAFSHC 130
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S v Mdebele (74/2013) [2013] ZAFSHC 130 (11 July 2013)
REPUBLIC
OF SOUTH AFRICA
Special
Review No. : 74/2013
In
the review between:
THE
STATE
versus
BUHLE
MDEBELE
CORAM:
LEKALE,
J
et
MHLAMBI.AJ
JUDGMENT
BY:
MHLAMBI,AJ
DELIVERED
ON:
11
JULY 2013
[1]
This matter came before us by way of special review in terms of
section 304(4) of Criminal Procedure Act 51 of 1977.On 30 October
2012 the accused, who was legally represented, appeared before the
Bloemfontein Magistrates’ Court on the charge of contravening
the provisions of section 5(b) read with sections 1, 13, 17, 25 and
64 of the Drugs and Drug Trafficking Act 140 Of 1992 (the Drugs
Act)
in that she dealt in 9,270kg of cannabis. She pleaded guilty and was,
thereupon, convicted and sentenced to 3(three) years
imprisonment or
R60 000 (sixty thousand rand) fine.
[2]
The trial magistrate has since discovered that the sentence is not in
consonance with the provisions of section 17(e) of the
Drugs Act and
requests that
“
...the
Honorable Judge confirms the conviction, and set aside the sentence
and impose the appropriate sentence as prescribed by
section 17(e)
....”
[3]
I am in respectful agreement with the learned magistrate that the
sentence is not competent insofar as section 17(e) of the
Drugs Act
provides for mandatory prison sentence not exceeding 25 years without
the option of a fine, which may be suspended in
whole or in part, or
for the imposition of such a custodial sentence together with a fine,
in the discretion of the court, as a
further sentence. (See
S
v TA
GCOBA
[2010]
ZAKZPHC 75)
[4]
The sentence is, therefore, not in accordance with justice while the
conviction cannot be faulted regard being had to the section
112(2)
statement submitted for and by the accused.
ORDER
[5]
The conviction is confirmed but the sentence is set aside and in its
place and stead is substituted the following:
“
The
accused is sentenced to 12 months imprisonment and a further R40 000
(fourty thousand rand) or 24 months imprisonment which
is
suspended
in
whole for three
years
on
condition
that the accused is not found guilty of dealing in dagga during the
period of suspension.”
[6]
The sentence is antedated to 30 October 2012.
JJ
MHLAMBI,
AJ
I
concur.
LJ
LEKALE, J