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[2011] ZAFSHC 112
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S v Thoriso (7/2011) [2011] ZAFSHC 112 (2 June 2011)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review No. : 7/2011
In the review between:
THE
STATE
versus
MOHAU
GILBERT THORISO
…............................................................
Accused
CORAM:
MOLOI, J
et
KUBUSHI.
AJ
JUDGMENT
BY: MOLOI, J
DELIVERED
ON: 02 JUNE 2011
REVIEW
JUDGMENT
MOLOI,
J
[1]
This is a special review in terms of
section 304(4)
of the
Criminal
Procedure Act No 51 of 1977
. The matter was
referred
to this court by the magistrate at Ficksburg.
[2]
After convicting the accused of contravention of
section 5(b)
read
with,
inter
alia,
section
17(e)
and
13
(f) of the
Drugs and Drug Trafficking Act No 140 of 1992
in that the accused dealt 11,1 kilograms of dagga the magistrate
imposed a sentence of R1 500.00 or four(4) months imprisonment
and
ordered that the dagga be forfeited to the state.
[3]
The accused paid the fine and was released. Afterwards the magistrate
realised that the sentence imposed was incompetent as
it conflicted
with the penal provisions of
section 17(e)
of the said Act reading as
follows:
"Any
person who is convicted of an offence under this Act shall be liable
in the case of an offence referred to in
section 13(f)
to
imprisonment for a period not exceeding 25 years or to both such
imprisonment and such fine as the court may deem fit to impose".
[4]
The essence of the above provision is that the court convicting a
person of the offence of contravening
section 5(b)
read with
section
17(e)
and
13
(f) is constrained to impose imprisonment without the
alternative of a fine as sentence whether such sentence is wholly or
partially
suspended.
In
addition
the
court may impose a further sentence of a fine failing payment of
which, a period of imprisonment.
[5]
A court of review, having found that the magistrate imposed a
sentence contrary to the provisions above, as in this case, would,
in
the interest of justice set aside the sentence and remit the matter
to the magistrate to impose a sentence as the law dictates.
The
practicalities of such remission becomes paramount i.e. whether the
accused would be traced and be brought before the court
as soon as it
is practically possible so that he can enjoy the right to address the
court and lead evidence as to the new sentence
to be imposed.
[6]
In this case the practicalities do not permit such remission because
the accused is a Lesotho citizen whose address is difficult
to
determine, as the charge sheet reflects his address as merely
Belabela, Lesotho. The state will have difficulty in finding a
person
in such circumstances as the logistics of entering a foreign country
and searching for a person there as well as the costs
and time will
be prohibitive. Neither will it be in the interest of the accused to
be brought before the court to face a more onerous
sentence. This is
not done at the expense of justice being sacrificed by imposing an
appropriate sentence as the iaw require but
justice will be better
served by bringing closure to further criminal litigation:
S
v ZULU
1967(4)
SA 499(T) at 502 F. See also
S
v
MQIKELA 2005(2) SACR 397(E) and cases sited therein and unreported
judgment of the division in
S
v
MABAFOKENG
NTELEKi Review No. 232/08 handed down on 29 May 2008.
[7]
In the result, I am of the view that the interest of justice will be
served if the conviction and sentence imposed are confirmed.
MOLOI,
J
I
concur.
KUBUSHI,
J