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[2012] ZAFSHC 83
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S v Mahako (403/2011) [2012] ZAFSHC 83 (3 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 403/2011
In
the review between:
THE
STATE
versus
THABO
MAHANKO
_____________________________________________________
CORAM:
LEKALE, J
et
MHLAMBI, AJ
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
3 MAY 2012
_____________________________________________________
[1] The accused, a
Lesotho National, was convicted of and sentenced for dealing in dagga
and being an illegal foreigner in the Republic
of South Africa by the
Ficksburg Magistrates’ Court on 1 August 2011.
[2] He pleaded guilty on
both charges and the charges were taken together when he was
sentenced to R3 000,00 or 18 (eighteen) months
imprisonment with a
further 18 (eighteen) months imprisonment being conditionally and
wholly suspended for 4 (four) years.
[3] In convicting the
accused on charge 2 for being an illegal foreigner in contravention
of section 49(1)(a) of
Immigration Act No. 13 of 2002
, the trial
court invoked the provisions of section 112(1)(a) of the Criminal
Procedure Act No. 51 of 1977 (CPA). The matter, thereafter,
served
before my sister Naidoo AJ on automatic review and she felt
uncomfortable with the sentence imposed in the light of the
applicability of section 112(1)(a) of the CPA. She, therefore,
directed the following query to the trial magistrate:
“
Whether
the consideration of counts 1 and 2 as one count for the purpose of
sentence is proper, in view of the limitations on sentencing
prescribed in Section 112(1)(a).
”
[5] The learned
magistrate has since responded for which the court is grateful. In
response the trial magistrate,
inter alia
, points out that:
“
... the
sentence in my view [is] proper because it is not prejudicial to the
accused... and I [am] of the view that the limited
sentence in terms
of section 112(1)(a) of Act 51/1977 is in any event superceded by the
sentencing jurisdiction of the Drugs and
Drug Trafficking Act
140/1992.
”
[6] The learned
magistrate further opines that the sentence is both proper and
advantageous to the accused and it did not vitiate
the proceedings at
all.
[7] It is true that the
practice of taking offences together for sentencing purposes is
well-founded and generally advantageous
to accused persons insofar as
it avoids duplication of sentences and resultant undue harshness
where,
inter alia
, justice demands that the offences be viewed
as one transaction by imposing a composite or joint sentence. (See
FOURIE v S
[2001] 4 ALL SA 365
(SCA) at par. [20].)
[8] The aforegoing
opinion by the trial magistrate, however, with respect, misses the
point. The question is whether or not the
trial court, in law, has
the power to impose the sentence in question where it invokes the
provisions of section 112(1)(a) of CPA.
The view in question,
further, with due respect, loses sight of the fact that, in law, the
composite sentence imposed should be
competent in respect of each of
the offences involved when looked at individually. (See
S v S
1981 (3) SA 377
(A) and
S v HAYMAN
1988 (1) SA 831
(NC).)
[9] The trial magistrate
correctly concedes that the invocation of section 112(1)(a) procedure
limits the penal jurisdiction of
the trial court and that the
sentence imposed herein exceeds that limit.
[10] In the circumstances
of the present matter where the severity of the sentence competent
for dealing in drugs exceeds the penal
jurisdiction of the court in
respect of the offence of being an illegal foreigner, the proper
approach, in my view, is that separate
competent sentences be imposed
in respect of each offence and the severity of their cumulative
effect be tempered by making them
to run concurrently, where
appropriate, or by imposing a suspended sentence in respect of one of
them. (See Kriegler and Kruger:
Hiemstra’s Criminal
Procedure
at 28-41.)
[11] I am satisfied that
the convictions are in accordance with justice but that the sentence
imposed is, however, a nullity in
law and falls to be corrected. (See
S v NTULI
1975 (1) SA 429
(A) at 435 C.)
[12]
ORDER:
For the aforegoing
reasons the convictions are confirmed and the sentence of the trial
court is set aside and in its place and stead
is substituted the
following:
“
Charge
1
:
The accused is sentenced to R3 000,00 fine or 18 (eighteen) months
imprisonment with a further 18 (eighteen) months imprisonment
suspended in whole for 4 (four) years on condition that the accused
is not convicted of contravention of section 5(b) of the Drugs
and
Drug Trafficking Act No 140/1992 committed during the period of
suspension.
Charge 2
:
The accused is sentenced to a R500,00 (five hundred rand) fine or 10
(ten) days imprisonment which is suspended in whole for 3
(three)
years on condition that the accused is not convicted of the
contravention of section 49(1)(a) read with sections 1, 10,
25 and 26
of the
Immigration Act No 13 of 2002
.
”
[13] The sentences are
antedated to take effect from 1 August 2011.
_____________
L.J. LEKALE, J
I concur.
________________
J. J. MHLAMBI, AJ
/sp