S v Van Wyk and Others (575/08, 721/08, 761/08) [2009] ZAFSHC 12 (12 February 2009)

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[2009] ZAFSHC 12
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S v Van Wyk and Others (575/08, 721/08, 761/08) [2009] ZAFSHC 12 (12 February 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 575/08
Review No. : 721/08
Review No. : 761/08
In
the
review
between:-
THE
STATE
versus
DINEO
ANNAH VAN WYK
First
Accused
MORAKE
MOSHOESHOE
Second
Accused
THABISO
MOTSHOANAKABA
Third
Accused
_______________________________________________________
CORAM:
RAMPAI,
J
et
C.J.
MUSI, J
_______________________________________________________
JUDGMENT
BY:
RAMPAI,
J
et
C.J.
MUSI, J
_______________________________________________________
DELIVERED
ON:
12
FEBRUARY 2009
_______________________________________________________
[1]
These
three cases came to us on automatic review. The accused were
separately arrested and charged. They appeared before the magistrate

Ladybrand where they were convicted on their respective pleas of
guilty. As the case numbers indicate, these were different and

unrelated cases in the court below.
[2] Since
the cases came from the same district court, where the accused faced
the same charges, where they were tried by the same
judicial officer
and since the same issue arises in all of the matters, we decided,
for the sake of expediency, to consolidate
them in order to write one
instead of three separate judgments.
[3] A
prohibited substance, namely cannabis, was found in their respective
possessions. Each of them was charged for dealing in
cannabis in
contravention of section 5(b), Act No. 140 of 1992, alternatively
possession of cannabis in contravention of section
4(b), Act No. 140
of 1992. Each of them pleaded guilty to both the main as well as the
alternative charges.
[4] The
magistrate then applied section 112(1)(b) of the Criminal Procedure
Act, No. 51 of 1977(the Act). The questioning elicited
the following
answers, among others, from the accused – Ms D.A. van Wyk:
“
I made an
arrangement with a certain
Lesotho
national at our place of residence to bring me some dagga so that I
could
sell
it and earn money ...”
She also admitted that
10,3 kg of cannabis was found in her possession at Maseru Bridge in
the Ladybrand district on 1 July 2008.
[5] In
response to the magistrate’s questions in terms of section
112(1)(b) of the Act, the accused, Mr. M. Moshoeshoe, answered:
“
The dagga was
mine. My intention was to
exchange
the dagga for maize so that I can take it to
Lesotho
.”
He
also admitted
,
among others, that the mass of the cannabis he was carrying from
Lesotho while on a rural road to Frikkies Farm in the Ladybrand

district on 16 August 2008 was 1,34 kg.
[6] In
response to the magistrate’s questions in terms of section
112(1)(b) of the Act, the accused, Mr. T. Motshoenakaba, admitted
to
importing cannabis and answered that:
“
I was
from
Lesotho
to Bekkersdal with that bag containing dagga: I was going to use that
dagga for medicinal purposes.”
He also admitted that he
carried 16,8 kg of cannabis at the time of his arrest at Maseru
Bridge, district Ladybrand on 11 September
2008.
[7] Notwithstanding
the aforegoing explanations, through which each of the accused
admitted that he/she imported cannabis from a
neighbouring country
into this country either for personal use or for the purpose of
selling it, which is an illegal transaction
prohibited by section
5(b) read with section 1 of Act No. 140/1992, none of them was
convicted of dealing in cannabis. Instead,
all of them were found
guilty of illegal possession in contravention of section 4(b), Act
No. 140/1992.
[8] Having
perused and considered the three records as amplified by the three
explanatory statements received from the magistrate,
it is our
considered opinion that in all of these three cases the convictions
were certainly not in accordance with justice.
[9] The
illegal dealing in cannabis attracts a stiff mandatory sentence for
an offender. The relevant legislation prescribes no
mandatory
sentence for the illegal possession of cannabis. This drastic
distinction underlines the fact that dealing in a prohibited

dependence producing substance such as cannabis, is a serious social
evil in our society. Where the evidence is crystally clear
that the
accused imported it for personal consumptive purposes or for
commercial purposes, she or he must be convicted of the main
charge.
The admissions they made showed that they had contravened section
5(b) by importing and/or possessing the cannabis in
order to sell it.
[10] The
court has no discretion, whatsoever, to by-pass the serious
implications of a section 5(b) contravention by willy-nilly
opting to
convict an offender on the less serious alternative charge. In these
instant cases, the magistrate conceded that she
misdirected herself
by disregarding three pertinent pleas of guilty on the main charges
by convicting on the alternative charges
for no sound reason other
than her personal preference. It is impermissible to do so.
Circumventing the prescripts of the Act
and sentencing rules in this
manner can lead to arbitrary practices with all their adverse impact
on the administration of justice.
[11] Once
the court is satisfied that all the elements of the main charge have
been admitted and that the accused is in fact guilty
of the main
charge, it is bound to convict on the main charge. See section
112(1)(b) of the Act. The question which arises in
these cases is:
In what way should we intervene on review?
[12] The
powers of the review court are fully outlined in section 304(2)(c)
Criminal Procedure Act No. 51 of 1977
. Of particular relevance to
these cases are the provisions of sub-sections 2(c)(i) and
sub-sections 2(c)(iv).
Section 304(2)(c)
as a whole reads:
“
Such court,
whether or not it has heard evidence, may, subject to the provisions
of
section 312
–
confirm, alter or quash the
conviction, and in the event of the conviction being quashed where
the accused was convicted on one
of two or more alternative charges,
convict the accused on the other alternative charge or on one or
other of the alternative
charges;
confirm, reduce, alter or set aside
the sentence or any order of the magistrate’s court;
set aside or correct the proceedings
of the magistrate’s court;
generally give such judgment or
impose such sentence or make such order as the magistrate’s court
ought to have given, imposed
or made on any matter which was before
it at the trial of the case in question; or
remit the case to the magistrate’s
court with instructions to deal with any matter in such manner as
the provincial division
may think fit; and
make any such
order in regard to the suspension of the execution of any sentence
against the person convicted or the admission
of such person to
bail, or, generally, in regard to any matter or thing connected with
such person or the proceedings in regard
to such person as to the
court seems likely to promote the ends of justice.”
[1
3] The
authors, Du Toit
et
al
:
Commentary
on the
Criminal Procedure Act
,
p. 30-15 comment as follows on the aforesaid section:
“
In terms of
s
304(2)(
c
)
a review court has unusually wide powers. Apart from the explicit
powers of confirmation, amendment or setting aside of the sentences,

orders and convictions of magistrate’s courts and many others,
s
304(2)(
c
)(iv)
grants seemingly unlimited powers to the review court. According to
this particular provision the court of review may, when
the
proceedings were not in accordance with justice, deliver the judgment
or order or impose the sentence which the magistrate’s
court should
have delivered or imposed (
S
v Addabba; S v Ngeme; S v Van Wyk
1992
(2) SACR 325
(T) 330
g
– h
.”
[1
4] Our
primary function as a court of review is to exercise control over the
lower courts. The proceedings in the lower courts
are reviewed in
order to ascertain whether their outcomes were arrived at in
accordance with the dictates of justice. On review
we are called
upon to determine whether the end results, in other words, the
verdict and the sanction were in keeping with the
substantive and
procedural dimensions of the case at hand. If we find otherwise,
then we have to correct the error one way or
the other.
[15] In
S
v MOKOENA
1984 (1) SA 267
(O) at 269E – F Kotze J observed:
“
Dit is duidelik
dat hierdie Hof die bevoegdheid op hersiening het om ‘n laer hof se
bevinding tot ‘n meer ernstige misdaad te verander kragtens
art 304
(2) (
c
)
(iv) van die Strafproseswet. Hierdie bevoegdheid kan uitgeoefen word
nie alleenlik wanneer ‘n skuldigbevinding op ‘n alternatiewe
klag
na ‘n skuldigbevinding op die hoofklag verander word nie (vgl
R
v V
1953 (3) SA 314
(A)) maar selfs ook waar ‘n skuldigbevinding op ‘n
mindere, bevoegde, misdaad na ‘n skuldigbevinding aan die meer
ernstige
misdaad verander word. Sien
S
v E
1979
(3) SA 973
(A).”
By
virtue of our very wide powers of review, we may intervene in these
case
s
by substituting a wrong conviction in each case with a correct
conviction on a more serious crime –
S
v VILJOEN
1989 (3) SA 965
(T) at 975D – G.
[16] Where
an accused was erroneously convicted on a less serious offence then
that which he should have been convicted of, the
court has the power,
on written notice to the accused, to alter the conviction accordingly
–
S
v E
1979 (3) SA 973
(AD). We hasten to point out that
S
v E,
supra,
was
before the court on appeal and not on review.
[17] It
follows without saying that altering a conviction from a less to a
more serious offence ordinarily entails revisiting the
sentence and a
possible substitution thereof with a heavier sentence than the one
already imposed. Seeing that such alteration
holds potential
prejudice for an accused, considerations of justice and fairness
often require that the accused concerned be notified
of the danger
inherent in the process of altering his conviction. The accused
should, in appropriate cases, be offered an opportunity
of arguing
against the contemplated alteration of the conviction and its
attended consequences. See
S
v MZIZI AND ANOTHER
1990 (1) SACR 503
(N) at 508g – i where Alexander J, with whom
Didcott J concurred, said that where there was little to choose
between offences
which equally deserve the same censure there was no
need to invite the offender’s view before an irregular conviction
could be
altered on review. We agree. This, however, is not such a
case.
[18] In
S
v E
,
supra
,
the offender was, on appeal, called upon to adduce argument why the
conviction on indecent assault should not be altered to one
of rape
and why, if the conviction on indecent assault was not altered, the
sentence should not be sharpened. According to Hiemstra:
Suid-Afrikaanse
Strafproses
,
3
rd
Edition, p. 703 where a higher court itself considers to alter a
conviction to a more serious one, a written prior notice to that

effect must be given to the appellant. In principle, we can see no
valid reason why such a fair and just practice should not apply
in
appropriate cases, to alterations of convictions on review. The
facts of the particular review will determine which course
the
reviewing judge takes. The judge will be guided by factors such as
the nature of the offence of which the accused was convicted;
the
nature of the offence which substitutes it; whether the “new”
conviction is subject to mandatory sentences and whether
the “new”
offence deserves a stiffer sentence. Where, for example, the
magistrate after convicting on a lesser common law
offence exhausts
his/her penal jurisdiction and the conviction is altered, on review,
to a more serious common law offence which
would also attract the
same sentence, it would be unnecessary to solicit the accused’s
views before the conviction could be altered
on review.
[19]
Section
304(2)(c)(iv)
empowers us to set aside an irregular conviction and to
give such judgment as the magistrate ought to have given on the
evidence.
However, in these matters, we cannot do so in the absence
of the three offenders concerned. To do so might infringe their
fundamental
right to a fair trial. Moreover, the alteration of their
verdicts will necessarily convert their criminal status from illegal
possessors to illegal dealers. There is a vast difference between
the turpitude of the two types of offenders –
S
v MZIZI
,
supra
,
at 508h. Even where all things are equal, an illegal dealer and an
illegal possessor do not equally deserve the same censure.
For these
two reasons we would rather refrain from altering the verdicts here
and now on review.
[20] Accordingly,
we are bound to set the verdicts and the sentences aside. The
magistrate court will have to recall the offenders
and afford them an
opportunity of advancing reasons why the magistrate should not act
along the lines set out in this judgment.
After hearing each of them
and the prosecutor, the magistrate must then consider the appropriate
verdict or procedural step. The
pleas and questioning of the
respective accused were in order. There is no reason to quash it.
Likewise there is no need to order
that these matters be dealt with
by a magistrate other than the one that dealt with these matters.
[21] Once
the aspect of the conviction has been disposed of the magistrate will
have to consider sentencing afresh. The accused
were sentenced to
fines with alternative prison sentences. These sentences would be
incompetent if the convictions are altered
to dealing in cannabis.
See
S v MOSOLOTSANE
1993 (1) SASV 502 (O) at 503 e – h. The magistrate must take into
consideration any period served in prison by the accused,
as a result
of this case.
[22] Accordingly the
following order is made in respect of each case:
22.1 The conviction and
sentence are set aside.
22.2 The case is
remitted to the magistrate Ladybrand, to deal therewith as set out in
this judgment.
22.3 The pleas of guilty
and the admissions made during the
section 112(1)(b)
questioning
shall stand.
______________
M.H. RAMPAI, J
___________
C.J. MUSI, J
/sp