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2012
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[2012] ZAFSHC 215
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S v Makhalanyane (430/2012) [2012] ZAFSHC 215 (22 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 430/2012
In
the review between:-
THE
STATE
and
MAMODIEHI
MAKHALANYANE
_____________________________________________________
CORAM:
KRUGER,
J
et
THAMAGE, AJ
_____________________________________________________
JUDGMENT
BY:
KRUGER, J
_____________________________________________________
DELIVERED
ON:
22 NOVEMBER 2012
_____________________________________________________
[1] This is a special
review sent by the magistrate at Ficksburg. The accused pleaded
guilty to and was convicted on charges of
-
(1) possession of dagga,
a contravention of section 4(b) of Act 140 of 1992; and
(2) not having a valid
passport, a contravention of section 49(1)(a) of Act 13 of 2002.
The two charges were
taken together for purposes of sentence. A fine of R300,00 (three
hundred rand) or 30 (thirty) days imprisonment
was imposed, together
with imprisonment of 6 (six) months suspended for five years on
condition that she is not convicted of a
contravention of section
5(b) of Act 140 of 1992 committed during the period of suspension.
The accused was legally represented.
[2] Subsequently the
magistrate realised that the sentence was inappropriate, because the
two offences are unrelated and each is
governed by its own statute,
which differs from the other.
[3] The accused pleaded
guilty to a charge of possession of 2,75 kg of dagga, a contravention
of section 4(b) of Act 140 of 1992.
The reference to section 5(b) in
the conditions appears to be inappropriate, but an amendment of the
conditions of suspension
to section 4(b) would embrace an increase in
the sentence, which cannot be done on review in these circumstances.
The two convictions
should not have been taken together for purposes
of sentence. The J4 indicates that the fine was paid and the accused
was released.
The J15 indicates that the accused is a Lesotho
National. It might be difficult to trace her. In the circumstances
it would
be appropriate for this court to rectify the sentence, as
the magistrate requests.
[4]
ORDER
1. The sentence imposed
by the magistrate is set aside and replaced with the following:
Count 1:
R300,00 or 30 (thirty)
days imprisonment, plus 6 (six) months imprisonment wholly suspended
for five years on condition that the
accused is not convicted of a
contravention of section 5(b) of Act 140 of 1992 committed during the
period of suspension. The
dagga is forfeited to the State.
Count 2:
Accused is cautioned and
discharged.
__________
KRUGER
I
agree.
________________
S.J. THAMAGE, AJ
/sp