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[2012] ZAFSHC 162
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S v Melato (126/2012) [2012] ZAFSHC 162 (24 August 2012)
FREE
STATE HIGH COURT. BLOEMFONTE1N REPUBLIC OF SOUTH AFRICA
Review No. :
126/2012
In the review
between:
THE
STATE
versus
RAYMOND
MOTSAMAI MELA
TO
CORAM:
MOCUMIE,
J
et
MOLEFE,
AJ
DELIVERED:
24
AUGUST 2012
JUDGMENT
BY:
MOLEFE,
AJ
REVIEW
JUDGMENT
[1] On the
22
nd
February 2012, the accused person, Mr Raymond Motsamai Melato,
residing at 1733 Mamafube, Petrus Steyn, was found guilty of
contravening
the provisions of section 5(b) of the Drugs and Drug
Trafficking Act 140 of 1992
("the
Drug Trafficking Act"),
dealing
in dagga weighing 466.3 grams, by the Magistrate Court, Lindley. He
was sentenced to eighteen months imprisonment.
[2] The
accused subsequently applied for leave to appeal against the
sentence. The trial court denied him leave to appeal on the
basis
that when sentenced, the court took into consideration his previous
convictions of 2005 and 2010, the seriousness of the
offence and the
weight of the dagga. The trial court was also of the opinion that no
other court would impose a different sentence
and thus come to a
different conclusion as he did.
[3] Some time
after leave to appeal was dismissed, the case was remitted to this
Court in terms of section 302 of the Criminal Procedure
Act 51 of
1977
("the
CPA").
The
automatic review served before Molemela, J. In her letter dated 08
June 2012, she raised the following query:
"Have
the provisions applicable to automatic review not ceased to apply,
given the fact that the accused unsuccessfully applied
for leave to
appeal?
(see
section
302
(1)(b)(iii) of the
Criminal Procedure Act 51 of 1977
)"
[4] The
presiding officer has since responded as follows:
"Artikel
302(1)(b)
van die Strafproseswet 51/1977 lees soos volg 'Die bepalings van
paragraaf (a)-
(iii)
hou op om ten opsigte van 'n beskuldigde van toepassing te wees
wanneer uitspraak in die appel gelewer word.'
Ek was van
oordeel dat dit beteken het dat daar 'n uitspraak in die
Hooggeregshof moes wees.
Die enigste
literatuur wat ek in die verband kon vind is
Hiemstra's
Criminal Procedure Commentary op p. 30-17 'Qualifications- The above
prescriptions are subject to the following qualifications:
1
..........
2
..........
3 A
case which is on appeal is not reviewable, but becomes reviewable if
the appeal is withdrawn. As soon as judgement is
given in the
appeal, the case is no longer reviewable (subsection (1)(b))'.
Dit
blyk dus dat my interpretasie van die artikel verkeerd was. Die appel
is nie teruggetrek nie. Die uitspraak wat ek gelewer het
toe ek die
aansoek om verlof om te appelleer geweier het is sekerlik ook 'n
uitspraak soos bedoel in artikel
302(1)(b)
Wet 51/1977."
[5]
Section
302(3)(a)
of the CPA states that an automatic review only takes place
in respect of 'a
sentence
which is imposed in respect of an accused who was not assisted by a
legal adviser*.
Although
it is called 'review', it is actually more in the nature of an
automatic appeal without argument. The powers of the reviewing
judge
(determined in
section 304)
are not limited to irregularities only.
Any point which could have been raised on appeal may also receive
attention. (See Du Toit
ef a/:
Commentary
on the
Criminal Procedure Act;
Kriegler
et
Kruger;
Hiemstra,
Suid-Afrikaanse
Strafproses,
(2002)
799.)
[6]
Section
302(1)
(a) states that any sentence imposed by a Magistrate's Court,
shall be subject to the ordinary course to review by a Judge of the
provincial or local division having jurisdiction.
Section 302(1)
(b)
(iii) provides that the provisions of paragraph (a) shall cease to
apply in respect of an accused when judgment in the appeal
is given.
[7] In this
case, in my view, the trial court made a
'judgment
in the appeal'
as
contemplated in
s302
(1)
(b)
by
refusing the accused leave to appeal. Therefore, the automatic review
ceased to apply herein. The provisions of
section 302(1
)(b)(iii) are
clear. This is but an oversight by the presiding officer, which he
correctly conceded in his reply.
[8] In terms
of the CPA the accused could have petitioned the Judge President of
this Division if he so wished and was advised to
do so in the event
that he was not satisfied with the decision of the trial court in the
first instance and when it refused to
grant him leave to appeal.
[9] Having
come to the conclusion I have come to in the above paragraphs, in
terms of
s302
read with 304 of the CPA since the accused was not
legally represented during his trial, it is also necessary to
consider whether
the proceedings then are in accordance with justice.
[10] As
indicated already the accused pleaded guilty on contravention of s5
(b) of the Drug Trafficking Act. Based on his answers
in terms of
s112 of the CPA he was convicted as charged and sentenced to eighteen
months imprisonment. I am satisfied that the
conviction is in order.
In respect of sentence, it is clear that the presiding officer
correctly applied his mind in coming to
a just sentence taking into
account the personal circumstances of the accused, the seriousness of
the offence and the interest
of society. What was clearly aggravating
in his case was the fact that he had two previous convictions and had
been given an option
of a fine and a suspended sentence on those two
occasions which sentences did not deter him from continuing to commit
the same
offences unabated. I am satisfied that the proceedings are
in accordance with justice.
[10] In the
circumstances the following order is made
"The
conviction and sentence of the trial court as on 22
nd
February 2012, are confirmed."
D.S.
MOLEFE, AJ
I agree.
B.C.
MOCUMIE, J