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South Africa: Free State High Court, Bloemfontein
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2008
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[2008] ZAFSHC 108
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S v Mahlobo (457/08) [2008] ZAFSHC 108 (7 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Special Review No. :
457/08
In
the review between:
THE
STATE
versus
MBUSO
SIPHIWE MAHLOBO
_____________________________________________________
CORAM:
EBRAHIM,
J
et
VAN
DER MERWE, J
_____________________________________________________
JUDGMENT:
EBRAHIM,
J
DELIVERED ON:
7
AUGUST 2008
[1] This is a special
review in terms of
section 304(4)
of the
Criminal Procedure Act 51 of
1977
.
[2] The accused was
convicted in the magistrates court for the district of Harrismith of
contravening section 5(b) of the Drugs
and Drug Trafficking Act, 1992
(Act 40 of 1992) as amended and sentenced as follows:
“
Fined R4 000,00 or 8 (eight)
months imprisonment, half of which is suspended for 3 (three) years
on condition that the accused is
not again convicted of section 5(b)
of Act 140 of 1992 committed during the period of suspension. In
terms of section 103(1)(k)
of Act 60 of 2000 accused is declared
unfit to possess a firearm. Dagga forfeited to the State.”
[3] The accused is at
present in custody serving this sentence. The sentence is
incompetent as the learned magistrate failed to
impose direct
imprisonment as required by the penalty provisions contained in
section 17(e) of Act 140 of 1992. That being so,
I am of the view
that the proceedings are not in accordance with justice.
[4] Accordingly the
conviction is confirmed but the sentence set aside and the matter is
referred to the magistrate to sentence
afresh after hearing the
accused.
_____________
S. EBRAHIM, J
I
concur.
_______________________
C.H.G. VAN DER MERWE,
J
/sp