S v Khopjwa (102/2013) [2013] ZAFSHC 112 (30 May 2013)

S v Khopjwa (102/2013) [2013] ZAFSHC 112 (30 May 2013)

The magistrate imposed a sentence that included direct imprisonment, which is not permitted under section 112(1)(a) of the Criminal Procedure Act. The High Court concurred with the magistrate's concession that the sentence was irregular. The conviction for possession of dagga stands, but the sentence is set aside and replaced with a lawful sentence of either three months imprisonment or a fine of R600. The sentence is antedated to the original date of sentencing in the lower court.

Citation
[2013] ZAFSHC 112
Parties
Applicant: The State; Respondent: Tshediso Khopjwa
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 May 2013
Case Number
102/2013
Procedural Posture
Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction upheld; sentence set aside and replaced with lawful sentence.
Judges
N.W. Phalatsi, L.J. Lekale
Legal Topics
Sentencing Irregularity, Criminal Possession, Criminal Procedure Act, Review Proceedings
Criminal Law Sentencing Irregularity Criminal Possession Criminal Procedure Act Review Proceedings

Case Brief

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Parties

The State

Applicant

Tshediso Khopjwa

Respondent

Procedural Posture

Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the sentence imposed by the magistrate was irregular under section 112(1)(a) of the Criminal Procedure Act.
  2. 2 Whether direct imprisonment may be imposed under section 112(1)(a) of the Criminal Procedure Act.
  3. 3 What is the appropriate sentence for contravention of section 4(b) of Act 140 of 1992.

Ratio Decidendi

The magistrate imposed a sentence that included direct imprisonment, which is not permitted under section 112(1)(a) of the Criminal Procedure Act. The High Court concurred with the magistrate's concession that the sentence was irregular. The conviction for possession of dagga stands, but the sentence is set aside and replaced with a lawful sentence of either three months imprisonment or a fine of R600. The sentence is antedated to the original date of sentencing in the lower court.

Court Disposition

Conviction upheld; sentence set aside and replaced with lawful sentence.

Orders

  • The conviction stands.
  • The sentence imposed by the magistrate is set aside and replaced with: The accused is sentenced to 3 (three) months imprisonment or a fine of R600,00.