S v Nteleki (232/08) [2008] ZAFSHC 32; 2009 (2) SACR 323 (O) (29 May 2008)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2008
>>
[2008] ZAFSHC 32
|

|

S v Nteleki (232/08) [2008] ZAFSHC 32; 2009 (2) SACR 323 (O) (29 May 2008)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. :
232/08
In
the review case between:-
THE
STATE
and
MABOFOKENG NTELEKI
_____________________________________________________
CORAM:
VAN
DER MERWE, J et VAN ZYL, J
_____________________________________________________
JUDGMENT
BY:
VAN
ZYL, J
_____________________________________________________
DELIVERED
ON:
29
MAY 2008
_____________________________________________________
[1] The
accused was charged with the offence of contravention of
section 5(b)
of the
Drugs and Drug Trafficking Act, No. 140 of 1992
, in that she
allegedly dealt in 2,05kg of dagga. She pleaded guilty, whereupon
she was rightly convicted as charged. The accused
was sentenced to a
fine of R1 500,00 or 3 months imprisonment, wholly suspended for 5
years on condition that she is not again convicted
of contravention
of
section 5(b)
of Act 40 of 1992 committed during the period of
suspension.
[2] The
matter was then sent on special review in terms of
section 304(4)
of
the
Criminal Procedure Act, No. 51 of 1977
. The magistrate, in her
referral letter, referred to the provisions of
section 17(e)
of Act
140 of 1992 on the basis of which she stated that the imposed
sentence is an incompetent sentence and that she therefore requests
that the sentence be set aside and that the matter be remitted to the
court
a
quo
for the imposition of a proper sentence.
[3] Section
17(e) of Act 140 of 1992, which is the relevant penalty clause, reads
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.”
It
therefore compels a court to impose a sentence of imprisonment
without the option of a fine (although it may be wholly or partly
suspended), with or without a fine and alternative imprisonment. See
S
v MQIKELA
2005 (2) SACR 379
(ECD) on 399 A – D. In the current matter this
was not done.
[4] The
powers of a Court on automatic review do not include the power to
increase a sentence or to make orders more onerous for the
accused,
where the sentence was an competent sentence. See
S
v NOVEMBER AND THREE SIMILAR CASES
2006 (1) SACR 213
(C) at 219 E – I. Where, however, a magistrate’s
court has imposed an unlawful or incompetent sentence, the Court may
on automatic
review impose the correct sentence, even where this
would result in the sentence being increased. See
S
v MSINDO
1980 (4) SA 263
(BH) at 265 F – G.
[5] In
the current matter the setting aside of the incompetent sentence and
the subsequent imposition of a competent sentence will
result in a
more onerous sentence. In my view the principles of justice will be
violated if this were to be done in the absence
of the accused
without given her the opportunity to be heard. See
S
v MOKOENA
1984 (1) SA 267
(O) at 269 E – 270 A. The most appropriate manner
to afford the accused the opportunity to be heard in an instance like
this,
would be to refer the matter back to the magistrate’s court.
In this regard the following is stated in Commentary on the
Criminal
Procedure Act, Du
Toit
et
al
,
at p. 30–16:
“
Although
the High Courts have on several occasions increased sentences on
review, it is submitted that cases in which an increase
of sentence
would be appropriate, be referred back to the magistrate’s court.
In so doing the court could avoid the increase of
the sentence
imposed by the magistrate without the accused having had any say in
the matter (Kriegler & Kruger 808).”
[6] In
this matter the accused was sentenced on 4 December 2007.
Considering that the whole of the sentence was suspended, it must
be
accepted that the accused was also released on 4 December 2007. The
special review only reached the registrar’s office on 7
May 2008.
It is evident from the record that the accused is a Lesotho citizen
who resides in Lesotho, but that her address had not
been confirmed.
The J15 indicates the address only as “Maputsoe, Lesotho”. On
probabilities the accused would already have
returned to Lesotho,
especially considering that her husband and two children also reside
in Lesotho.
[7] In
terms of
section 304
of Act 51 of 1977 a Judge is required to certify
that the proceedings are in accordance with justice. This does not
require the
Judge to certify that the proceedings are in accordance
with strict law. See
S
v ZULU
1967 (4) SA 499
(T) at 502 D – F. In assessing whether the
proceedings are in accordance with justice, it is the duty of the
Court to see that
justice is done both to the accused and the state.
See
S
v ZULU,
supra
at 501 G. In this regard it is also in the interests of justice that
litigation should come to finality. See
S
v ZULU,
supra
at 502 F. Accordingly, when it was required by the interests of
justice, the Courts have refused to interfere even with an
incompetent
sentence. See
S
v ZULU,
supra,
S
v BOSHOFF
1991 (1) SASV 221 (T) and
S
v NDLOVU
1998 (1) SACR 599
(W) at 602 A – C.
[8] In
the circumstances of this case, it is clear that considerable time,
effort, inconvenience and expense to both the state and
the accused
would be involved in bringing the accused before court again. In this
regard I am mindful of the fact that the accused
is a Lesotho citizen
and therefore the required (and probably cumbersome) procedures will
have to be followed in the state’s endeavours
to bring her back to
South-Africa. Moreover, considering that the address of the accused
had not been confirmed, the state might
even go to such effort and
especially incur the accompanying expense without being successful in
tracing the accused. This will result
in the matter not being brought
to finality. All of the aforesaid will bring about results which
neither the accused nor the state
desire and will not serve the
interests of either party. I am therefore satisfied that the
interests of justice demand that the
proceedings be confirmed.
[9] The
conviction and sentence are confirmed.
____________
C.
VAN ZYL, J
I
concur.
_________________________
C.
H. G. VAN DER MERWE, J
/EM