About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2024
>>
[2024] ZAMPMBHC 66
|
|
S v Mkhonza (R16/2023) [2024] ZAMPMBHC 66; 2024 (2) SACR 535 (MM) (16 September 2024)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
HIGH
COURT REF NO: R16/2023
MAGISTRATE CASE NO.
P149/2023
MAGISTRATE SERIAL NO.
01/2023
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
OF INTERESTS TO MAGISTRATES: YES
(4)
REVISED.
DATE
:
16 September 2024
SIGNATURE
In
the matter between:
THE
STATE
And
CELUCOLO
MICHAEL MKHONZA
(THE ACCUSED)
REVIEW JUDGMENT
RATSHIBVUMO
ADJP
[1].
This matter was first placed before Kgoele
J (as she then was) for review, in terms of section 302 of the
Criminal Procedure Act,
no. 51 of 1977 (the
Criminal Procedure Act).
This
was after the conviction and the sentence of the accused by the
Magistrate for the District of Chief Albert Luthuli, sitting in
Mayflower. The accused was convicted of dealing in drugs (dagga) in
contravention of
section 5(b)
of Act 140 of 1992 (the Drugs and Drug
Trafficking Act). Following the conviction, and on 10 May 2023, he
was sentenced to 3 (three)
years imprisonment, which was
conditionally suspended for a period of 5 (five) years. A further
sentence of a fine of R5 000.00
(five thousand rand) or 24
(twenty-four) months imprisonment was also imposed on him.
[2].
On 06 September 2023, Kgoele J caused the
review record to be sent back to the presiding Magistrate with some
queries. She also
directed that the Magistrate should reply to her
queries by no later than 15 September 2023, and that should that not
be possible,
her office should be informed in advance and in writing
of the full reasons for the delay. A response from the Magistrate,
comprising
of one page (excluding the heading and the signature) was
dated 12 February 2024. No letter of explanation was availed to the
Review
Judge prior to this date.
[3].
Following the elevation of Kgoele J to the
Supreme Court of Appeal, this matter was later allocated to me. Upon
receipt of the file,
I immediately asked for an opinion from the
office of the Director of Public Prosecutions, Mpumalanga Division
(the DPP). I
am indebted to the submissions received on 12 July
2024 from the office of the DPP, prepared by Advocates TS Msibi and Z
Mata,
under the guidance of Advocate N Mpolweni, the Deputy Director
of Public Prosecutions. Without their research and the reference
to
case law and authorities, this judgment would not have been possible.
[4].
The transcribed record forming part of the
review bundle reflects that on 08 May 2023, the accused appeared
before Acting Magistrate
MH Ledwaba before whom he indicated that he
wanted to conduct his own defence and that he was pleading guilty to
the charge preferred
against him. The Magistrate then proceeded to
ask him questions in terms of
section 112(1)(b)
of the
Criminal
Procedure Act. After
explaining various rights to the accused, the
following appears from the record of proceedings:
COURT:
It is alleged
in the charge sheet that on or about 7 May 2023 and at
or near Mayflower, in the district of Chief Albert Luthuli you were
arrested?
ACCUSED:
That is correct.
COURT:
What were you
arrested for?
ACCUSED:
I was arrested because I was found with dagga.
COURT:
Can you
elaborate on your answer? In other words, with your own words
tell the court why you were arrested.
ACCUSED:
I was found in possession of dagga without a permit, papers, a
document permitting me to possess
such a substance.
COURT:
Who arrested
you?
ACCUSED:
The soldiers.
COURT:
You said you were in possession of dagga?
ACCUSED:
Yes your worship.
COURT:
What were you going to do with the dagga in question was in your
possession (sic)?
ACCUSED:
I was taking it to someone. Someone had requested me to bring it to
him.
COURT:
Where was this someone?
ACCUSED:
In Witbank.
COURT:
Where did you get the dagga from?
ACCUSED:
I got it from this other person from Swaziland.
COURT:
It is alleged that you were dealing in dagga in question, in drugs.
What is your answer to that?
ACCUSED:
I was not dealing in dagga. I was [indistinct].
COURT:
Is there any other thing you wish to bring to attention of the court?
ACCUSED:
No, I just want to apologise.
COURT:
Is that all?
ACCUSED:
Yes, your worship.
COURT:
It is said in the charge sheet that the dagga weight was 3.26
kilogram.
ACCUSED:
I agree your worship.
COURT:
Was the dagga weighed in your presence?
ACCUSED:
Yes, your worship.
COURT:
Anything else Public Prosecutor?
PROSECUTOR: None your
Worship, in accordance with the State’s case, court pleases.
COURT:
Does the State accept the plea of guilty in this regard?
PROSECUTOR: Court
pleases your worship… I agree also with the court your
worship, is satisfied that the accused admitted
…[indistinct]
and he is guilty of the offence which he admitted to your worship,
also …[indistinct], as the court
pleases.
JUDGMENT
COURT:
After questioning the accused, the court is satisfied that the
accused admits all the allegations in the charge, though he does not
directly admit that he was dealing in dagga.
The
presumption in the Act, Act 140, 1992 is very clear that the weight
of dagga that he was carrying is presumed that he was dealing
in
dagga.
Accused is found
guilty as charged.
[5].
In a query referred to above, the
Magistrate was asked to explain how he convicted the accused on his
plea, for contravening section
5(b) of the Drugs and Drug Trafficking
Act, in circumstances where he vehemently denied that he was dealing
in drugs. He was also
asked to clarify the section of that Act which
he relied on to presume that the accused was dealing in drugs by
virtue of the weight
of dagga he carried with him; and whether the
same was not declared unconstitutional. In essence, he was asked to
indicate if the
questions asked and the responses given by the
accused sufficed for him to be convicted of dealing in drugs.
[6].
To this, the Magistrate responded as
follows,
“
1.
It is humbly submitted that the accused
denied dealing in dagga in contravention of section 5(b) of Act 140
of 1992. I followed
section 21(1)(a) of Act 140 of 1992 at the time
of my judgment, which I later realized, after the constitutional
query of the validity
of the section by the Honourable Judge.
(a)
Section 21(1)(a) of Act 140 of 1992 of
which I unequivocally agree with the Honourable Review Judge it was
declared constitutionally
invalid. I erred in applying the said
section and only realised after the query of the court.
(b)
I discovered that I erroneously applied the
section that was declared constitutionally invalid after the query of
the Review Judge.
(c)
It were (sic) not the answers advanced by
the accused, but, the presumption of dealing in terms of section
21(1)(a) of Act 140 of
1992, which I now know it was declared
constitutionally invalid. At the time of conviction, I was still
under the impression that
the section was still valid. I shall abide
by the decision of the Honourable Review Judge.”
[7].
The Magistrate concluded by apologising for
only responding on 12 February 2024 instead of 15 September 2023
saying it was because
he only received the record with the query on
29 January 2024.
[8].
Office of the DPP also weighed in as
indicated above. It suffices for purposes of this judgment that the
DPP agrees with the concessions
made by the Magistrate to the effect
that the presumptions he relied on are unconstitutional. The DPP
further requests that the
conviction and the sentence be set aside.
[9].
The section that the Magistrate relied on
in convicting the accused (section 21(1)(a)(i) of the Drugs and Drug
Trafficking Act)
provides,
“
[I]f
in the prosecution of any person for an offence referred to in
section
13
(f)
it is proved that the accused was found in possession of dagga
exceeding 115 grams; it shall be presumed, until the contrary
is
proved, that the accused dealt in such dagga or substance.
”
[1]
[10].
It
is indeed settled law for almost three decades now, that the
provisions of section 21(1)(a)(i) of the Drugs and Drug Trafficking
Act, are unconstitutional. In
S
v Bhulwana, S v Gwadiso,
[2]
the Constitutional Court had to determine the constitutionality of
this section under the 1993 Constitution.
[3]
In
that matter, the section was attacked for imposing a burden of proof
on the accused, a so-called “reverse onus” provision,
which was contrary to the provisions of section 25(3) of the
Constitution.
[4]
Section 25(3)
provided that “every accused person shall have the right to a
fair trial, which shall include the right to
be presumed innocent and
to remain silent during plea proceedings or trial and not to testify
during a trial.”
[11].
In 1994, and in separate trials, both
Messrs. Bhulwana and Gwadiso were convicted of dealing in dagga by
the Magistrates in different
districts of Western Cape. In all these
cases, the convictions would not have materialised without the
presumptions contained in
section 21(1)(a)(i) of the Drugs and Drug
Trafficking Act. After expressing doubts on the constitutionality of
this section, the
High Court sent these cases to the Constitutional
Court for determination in accordance with the prevailing provisions
of the 1993
Constitution.
[12].
In its judgment dated 29 November 1995, the
Constitutional Court declared section 21(1)(a)(i) of the Drugs and
Drug Trafficking
Act
to
be inconsistent with the Republic of South Africa Constitution
Act 200 of 1993 and was, with effect from the date of
this
judgment, declared to be invalid and of no force and effect. The
Constitutional Court further ordered that this declaration
of
invalidity invalidated any application of section 21(1)(
a
)(i) of
the Drugs and Drug Trafficking Act, in any criminal trial in which
the verdict of the trial court was entered after
the Constitution
came into force, and in which, as at the date of the judgment, either
an appeal or review was pending or the time
for the noting of an
appeal had not yet expired.
[13].
It is as such
inconceivable, that 29 years after this section was declared
unconstitutional, it would still find application in
a South African
court, to the extent that an accused is convicted and given a
sentence of imprisonment, without a fine, albeit,
suspended. This has
to be corrected through setting aside the conviction and the
sentence. This may however be too little comfort
for the accused, who
may have suffered substantial injustice at this stage. As indicated
above, the accused in this case was also
sentenced to a fine with an
alternative prison term, of which it remains unknown if he paid the
fine or underwent the prison term.
In her query to the Magistrate,
Kgoele J did ask if the accused paid the fine imposed in this case,
but that question was not answered,
despite the belated response. The
Review Judge must have been mindful of the injustice likely to be
suffered by the accused when
she gave strict timelines by which the
response should have reached her office. Sadly, those timelines were
not adhered to.
[14].
Section 303
of the
Criminal Procedure Act,
which
deals with the transmission of record to the High Court for
review purposes, provides,
“
303.
Transmission of record.
The
clerk of the court in question shall
within
one week after the determination of a case referred to in paragraph
(a) of
section
302
(1)
forward
to the registrar of the provincial or local division having
jurisdiction the record of the proceedings in the case or a
copy
thereof certified by such clerk, together with such remarks as the
presiding judicial officer may wish to append thereto,
and with any
written statement or argument which the person convicted may within
three days after imposition of the sentence furnish
to the clerk of
the court, and such registrar shall, as soon as possible, lay the
same in chambers before a judge of that division
for his
consideration.
”
[My
emphasis].
[15].
It is not clear as to where the record got
delayed after it was sent back as the Magistrate indicated that he
received it more than
four months after it was dispatched from the
office of the Review Judge. Investigating the source of the delay at
this stage would
only serve to delay this judgment, and that is not
warranted. In case the accused could not afford a fine, he may have
served the
sentence already and possibly released on parole by now.
[16].
The one week provided for in
section 303
of
the
Criminal Procedure Act, within
which the record should have been
dispatched to the High Court for review, is meant to prevent
avoidable injustices that may occur
such as in this case. It could be
that dispatching the record in just one week may prove to be
impractical given the lengthy period
it takes to get the record
transcribed; but a delay such as the one
in
casu
is unjustified and inexcusable
given the directives ordered by the Review Judge which were ignored.
With the advent of technology,
requesting and advancing reasons from
the trial court should be possible within 24 or 48 hours, by means of
email communication.
Sadly, this was not considered here.
[17].
Presenting
a case for review after the accused has served the sentence defeats
the whole purpose of review. It is the duty of all
the officers
involved within the Department of Justice and Constitutional
Development and Office of the Chief Justice, to give
effect to the
legislative provision and the court directives meant to protect the
accused’s rights in a review.
[5]
[18].
Failure to give heed to the directives
given by the Review Judge in this case, needs to be investigated in
order to identify the
source of delay so as to avoid a repeat in the
future. For this reason, this judgment should be brought to the
attention of the
Court Managers for the High Court, Mbombela and for
the Chief Albert Luthuli District. The Court Managers should compile
report(s)
to be filed with the Chief Registrar of this court within
30 days of this judgment, in which they identify the source of delay
after the record was dispatched by the Review Judge, and also
indicate the remedial steps taken to avoid similar delays in the
future. The judgment should also be brought to the attention of the
Chief Magistrate of Mpumalanga to help identify areas in need
of
training and refresher courses for the benefit of the Magistrates and
to avoid a recurrence of errors such as what happened
in this case.
[19].
For the reasons given above, the following order is made.
19.1
The conviction and the sentence are
set aside.
19.2
The Chief Registrar is directed to
avail this judgment to the Court Managers for Mbombela High Court and
Chief Albert Luthuli District,
and to the Chief Magistrate of
Mpumalanga to act in accordance with paragraph 18 above.
TV RATSHIBVUMO
ACTING DEPUTY JUDGE
PRESIDENT
MPUMALANGA
I agree
N MAZIBUKO
ACTING JUDGE OF THE
HIGH COURT
MPUMALANGA
16 SEPTEMBER 2024
[1]
See
section 21(1)(a)(i) of the Drugs and Drug Trafficking Act.
[2]
[1996]
1 All SA 11
(C
C)
1996
(1) SA 388; 1995 (12) BCLR 1579 (29 November 1995)
.
[3]
Act
200 of 1993.
[4]
Similar
provisions are contained in section 35(3) of the current
Constitution of the Republic of South Africa (Act 106 of 1996).
[5]
See
S
v Nyumbeka
2012
(2) SACR 367
(WCC) and
S
v Jacobs and six other similar matters
2017
(2) SACR 546
(WCC).