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[2013] ZAFSHC 159
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S v Maine and Others (211/2013) [2013] ZAFSHC 159 (22 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 211/2013
In the matter between:
THE STATE
and
KABI MAINE
MOTSEKI MOLISE
THANKISO MOLISE
MATSHPALE LETSIELO
_____________________________________________________
JUDGMENT BY
:
JORDAAN, J
et
THAMAGE, AJ
_____________________________________________________
DELIVERED ON
:
22 AUGUST 2013
_____________________________________________________
[1] This matter has been
referred to this court as a special review in terms of
section 304(4)
of the
Criminal Procedure Act no 51 of 1977
. Although only the court
file in respect of S v Khabi Maine has been made available to this
court, it appears that all four cases
are similar in all material
respects and what applies to this matter applies to all four of them.
[2] In all the
abovementioned matters the accused were charged with contravention of
section 5(b)
of Act 140 of 1992 (dealing in drugs) being count 1.
They were also charged with another count concerning illegal
immigrants which
is not relevant for the purposes of this matter.
[3] In all four matters
the trial court decided to act in terms of
section 112(1)(a)
of the
Criminal Procedure Act and
convicted the accused without further ado.
Specifically, the court did not apply the provisions of subsection
(b) of the aforesaid
section of the Act.
[4] The accused Kabi
Maine was sentenced on the first charge (count 1) to a fine of
R500,00 or 50 days imprisonment and in addition
4 months imprisonment
wholly suspended for 3 years on appropriate conditions.
[6] After the aforesaid
convictions and sentences, the magistrate realised that the sentences
imposed are in excess of the sentences
applicable to proceedings in
terms of subsection (a) of section 112(1) and remitted the matter to
this court for special review.
This is because the additional 3
months imprisonment, although suspended, constitutes an order of
direct imprisonment without the
option of a fine in conflict with the
prescripts of subsection (a) of the aforesaid section of the CPA.
[7] On the other hand,
the prescripts of section 17(e) of Act 140 of 1992 requires direct
imprisonment to be imposed, although it
can be suspended in the
whole.
[8] The learned
magistrate correctly points out that, in view of the aforesaid, the
conviction and sentences are not in accordance
with law and must be
set aside.
[9] In view of the
aforesaid the following orders are granted:
9.1. The conviction and
sentences in respect of count 1 in all four matters are set aside.
9.2. The matters are
remitted to the trial court to act in accordance with this judgment
and the prescripts of
section 112(1)(b)
of the
Criminal Procedure Act
no 51 of 1977
.
________________
F. JORDAAN, J
I
concur.
_________________
S. J. THAMAGE, AJ
eb/