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[2012] ZAGPPHC 30
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S v Taunyane (A126/2012) [2012] ZAGPPHC 30 (2 March 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: A126/2012
REVIEW
NO. 1/2011
DATE:02/03/2012
In
the matter between:
THE
STATE
And
LEHLOGONOLO
TAUNYANE
...........................................................................
THE ACCUSED
REVIEW
JUDGMENT
[1]
This is a special review of the judgment of the Magistrate Court of
Obrholzer. On 2 December 2011 the accused, a 23 year old
male, who
acted in person, pleaded guilty to a charge of possession of 10g
dagga (Cannabis) in contravention of Section 4(b) of
Act 140 of 1992
(The Drugs and Drug Trafficking—Possession of drugs Act 140 of
1992). The dagga was valued at R90. 00.
[2]
The Magistrate sentenced him to eighteen (18) months imprisonment of
which, six (6) months was suspended for four (4) years
on condition
that the accused is not convicted of contravening s4(b) Act 140/92
committed during the period of suspension. The
dagga was declared
forfeited to the State and he was declared unfit to possess firearm.
[3]
The accused during the trial was not legally represented as he chose
to conduct his own trial, although his rights to a legal
representative of his own choice or one provided by the State were
duly explained to him.
[4]
The magistrate referred the matter for special review, for the
setting aside of the conviction and sentence because, at the
instance
of the public prosecutor, had dealt with the matter in terms of
s112(1)(a) instead of s112(1)(b) of Act 51 of 1977.
[5]
I subsequently referred the matter to the offices of the Director of
Public Prosecutions to opine on it. The senior State Advocate
P.N.
Ngcobo has since obliged me with his opinion, with which the Deputy
Director of Public Prosecutions S. Mlambo agrees, for
which I am
grateful.
[6]
In the matter of S v Gunda 2007 (1) SACR (NC) 75 (CPD) the court
stated that "[3] The provisions of s112(1 )(a) are clearly
to
the effect that, where an accused person has been convicted on the
basis of such provisions, no sentence of 'imprisonment or
any other
form of detention' will be competent." As a matter of fact, what
s112(1)(a) proscribes is a sentence of imprisonment
or detention
without an option of a fine.
[7]
In casu, the sentence of eighteen (18) months imprisonment imposed
against the accused was without an option of a fine. The
sentence
imposed was therefore incompetent, irregular and not in accordance
with justice and stands to be set aside in terms of
s304(2)(ii).
[8]
The director of public prosecutions recommended that the sentence
should be set aside and the matter be remitted to the magistrate
for
re-sentencing.
[9]
The accused was sentenced on 2 December 2011 and has most possibly
gained some credits to date. The magistrate, when he deals
with the
matter, in terms of s112(1)(b), as he should have done, when he
imposes sentence, must take into account the period already
served by
the accused. In order to meet this aspect, he shall have to order the
sentence to be retrospective to 2 December 2011
to avert any
prejudice to the accused.
[10]
In the result I make the following order:
1.
That the proceedings of 2 December 2011 are in toto set aside;
2.
That the case is remitted to the magistrate for retrial and proper
sentence.
N
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree
DATED
THE 24 FEBRUARY 2011
A.
W. MSIMEKI
JUDGE
OF THE HIGH COURT.