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[2009] ZAGPJHC 87
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S v Mchunu (47/05) [2009] ZAGPJHC 87 (28 July 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND
LOCAL DIVISION)
REFERENCE
NUMBER:
Magistrate’s
review. no: 47/05 (Westonaria)
Westonaria
serial number A
60/05
THE
STATE
versus
MICHAEL
MCHUNU
...........................................
Accused
REVIEW
JUDGMENT
WILLIS
J:
The accused was charged with
contravening section 4(B) of Act 140 of 1992 – possession of
dagga.
He was convicted and sentence
to a fine of R2000 (two thousand) rand or 12 (twelve) months’
imprisonment of which R1000 (one
thousand) or 6 (six) months was
suspended for a period of 5 (five) years on condition that the
accused is not found guilty of section
5(b) or 4 (B) of Act 140 of
1992 committed during the period of suspension. The dagga was
declared forfeited to the State. The
learned magistrate was Mrs F.B.
Khan. The sentence was imposed on 25
th
May, 2005.
It would appear that the matter
was referred to the High Court for automatic review. It is not clear
whether the matter was ever
reviewed.
It would appear from statements
filed by Mrs C.M. Van Heerden, the Acting Head of the Court at
Westonaria and Ms L. Daniel, the
clerk of the court that despite
numerous attempts to follow up the matter, the record of the
proceedings has been lost.
The only way in which the
matter can now be regularized is to set aside the conviction and
sentence of the accused.
The following order is made:
The conviction and sentence of
the accused are set aside.
DATED
AT JOHANNESBURG THIS 28th DAY OF JULY, 2009.
N.P.
WILLIS
JUDGE
OF THE HIGH COURT
I
agree.
F.H.D.
VAN OOSTEN
JUDGE
OF THE HIGH COURT