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[2011] ZAFSHC 76
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S v Brand and Another (155/2011) [2011] ZAFSHC 76 (19 May 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 155/2011
In
the review between:-
THE
STATE
versus
ANGELO EDWIN BRAND
…......................................
Accused
Number 1
YOLANDA MAARMAN
…...........................................
Accused
Number 2
______________________________________________________
CORAM:
VAN DER MERWE, J
et
JORDAAN, J
______________________________________________________
JUDGMENT
BY:
JORDAAN, J
______________________________________________________
DELIVERED
ON:
19 MAY 2011
______________________________________________________
[1] This matter was sent
for a special review in terms of
section 304(4)
of the
Criminal
Procedure Act, No. 51 of 1977
, by the magistrate of Boshof.
[2] The two accused were
charged with two counts, namely
count 1 –
contravention of
section 5(b)
of Act 140 of 1992 (dealing in dagga);
and
count 2 –
contravention of section 4(b) of Act 140 of 1992 (possession of
dagga).
From the record it
appears that both charges emanated from exactly the same set of facts
but, in stead of charging the accused on
the two aforesaid different
charges in the alternative, both charges were dealt with as if
separate counts.
[3] Both accused (who
were represented by a legal representative) pleaded guilty to both
the charges and both made statements in
terms of
section 112(2)
of
the
Criminal Procedure Act wherein
they admitted that they were
guilty of both charges and in which all the material elements of
dealing in dagga were admitted.
[4] The presiding
magistrate convicted both accused on both charges and, taking the
convictions together for purposes of sentence,
sentenced each accused
to a fine of R800,00 or imprisonment for a period of six (6) months,
wholly suspended for a period of five
(5) years on condition that the
accused are not convicted of possession or dealing in dagga committed
during the period of suspension.
[5] After the matter was
finalised the learned presiding magistrate realised that the
convictions on both charges were irregular
and submitted the matter
for special review as aforesaid. The learned magistrate reports as
follows:
“
2. After the
matter was finalised I revisited my decision and doubted its
correctness on the following basis:
2.1 Counts 1 and 2 arise from the same
criminal episode and both accused ought to have been charged in the
main or alternative and
not on two separate charges. Counts 1 and 2
boils down to splitting of charges.
2.2 My decision to convict on both
counts is incorrect as it amounts to a duplication of convictions.
3. On the basis of the aforementioned
I humbly request the Honourable Judge to make the following orders:
(a) Confirm the convictions for both
accused in respect of count no. 1.
(b) Set aside the convictions on count
no. 2.
(c) Confirm the imposed sentence and
the subsequent orders or,
(d) Make any order necessary on (sic)
the circumstances.”
[6] As far as the
convictions are concerned, the learned magistrate is clearly correct.
The convictions on count 1, dealing in dagga,
appears to be in
accordance with law and justified in the circumstances and should be
confirmed. However, the convictions on count
2, possession of dagga,
clearly constitute a splitting of charges and are irregular. It
should be set aside.
[7] In view of the fact
that the accused have both been convicted on a charge of dealing in
dagga, the sentences imposed are clearly
not competent. Firstly, the
imposition of a fine with alternative imprisonment without a further
term of imprisonment, whether
suspended or not, is not competent. See
S v MOSOLOTSANE
1993 (1) SACR 502
(O) and
S v
MOHOME
1993 (1) SACR 504
(T). Secondly, a suspended sentence
imposed after a conviction of dealing in dagga and containing a
condition that the accused
is not convicted of,
inter alia
,
possession of dagga, is frowned upon in this division and should not
form part of the conditions of suspension. See
S v MOKOENA
1986 (2) SA 106
(O) at 107 F – 108 A,
S v NXUMALO
1992 (2) SACR 268
(O) at 273 h – 274 b and
S v MONISA
1992 (2) SACR 671
(O).
[8] The sentences can
therefore not be confirmed as requested by the learned magistrate.
[9] In the result the
following orders are made:
1. The convictions of
both accused in respect of count 1 are confirmed.
2. The convictions of
both accused on count 2 are set aside.
3. The sentences imposed
on both accused are set aside and the matter is remitted to the trial
court for purposes of sentencing
the accused afresh.
_______________
A.F. JORDAAN, J
I
concur.
________________________
C.H.G. VAN DER MERWE,
J
/sp