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2007
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[2007] ZAFSHC 77
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S v Mhosohane (83/2007) [2007] ZAFSHC 77 (1 February 2007)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review Case No.: 83/2007
In
the case between:
THE STATE
and
THABANG JOSEPH
MHOSOHANE
CORAM:
VAN DER MERWE, J
et
VAN ZYL, J
JUDGEMENT:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
1 FEBRUARY 2007
_____________________________________________________
[1] The accused, a
citizen of Lesotho, was convicted in the magistrateâs court of
Ficksburg of three offences, namely first, dealing
in 35kg dagga in
contravention of section 5(b) of the Drugs and Drug Trafficking Act,
Nr. 140 of 1992, second, wilfully hindering
members of the South
African Police Service in the performance of their duties by
resisting arrest in contravention of section 67(1)(a)
of the South
African Police Service Act, Nr. 68 of 1995 and third, entering into
or remaining in the RSA in contravention of the
Immigration Act, Nr.
13 of 2002. The convictions are in order. The three counts were
taken together for purposes of sentence and
the accused was sentenced
to a fine of R2 000,00 or 12 months imprisonment.
[2] The sentence is
incompetent in respect of the said first offence, as section 17(e)
read with section 13(f) of Act Nr. 140 of 1992
provides that for
contravention of section 5(b) a sentence of imprisonment, albeit
suspended or with or without a fine and alternative
imprisonment,
must be imposed. It follows that the sentence is clearly not in
accordance with justice. The accused may be prejudiced
if the matter
is not forthwith dealt with by this Court on review.
[3] The sentence must
therefore be set aside and the matter be remitted to the magistrate
to impose sentence afresh. For this purpose
the accused must be
brought before the magistrate and afforded all the rights that a
convicted person has before sentence is imposed
on him. When the
accused is sentenced afresh, the portion of the previous sentence
that has already been served or put into operation,
must obviously be
taken into account.
[4] The convictions are
confirmed but the sentence set aside and the matter is remitted to
the magistrate to be dealt with in accordance
with this judgment.
________________________
C.H.G.
VAN DER MERWE, J
I
concur.
_____________
C. VAN ZYL, J
/em