S v Makhalanyane (430/2012) [2012] ZAFSHC 215 (22 November 2012)

S v Makhalanyane (430/2012) [2012] ZAFSHC 215 (22 November 2012)

The review court found that the magistrate erred by taking two unrelated offences together for purposes of sentence, as each offence is governed by its own statute and should be sentenced separately. The condition of suspension referred to section 5(b) of Act 140 of 1992, which was inappropriate since the accused was convicted under section 4(b). Amending the condition to refer to section 4(b) would constitute an increase in sentence, which is impermissible on review. Given that the fine was paid and the accused released, and that she is a Lesotho national who may be difficult to trace, the court deemed it appropriate to rectify the sentence as requested by the magistrate. The sentence...

Citation
[2012] ZAFSHC 215
Parties
Applicant: The State; Respondent: Mamodiehi Makhalanyane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 November 2012
Case Number
430/2012
Procedural Posture
Review Application / Special Review Following Conviction and Sentence in Magistrate's Court
Outcome
Sentence imposed by the magistrate is set aside and replaced with separate sentences for each count.
Judges
Kruger, Thamage
Legal Topics
Possession of Dagga, Sentencing Procedure, Suspended Sentence, Passport Offences
Criminal Law Possession of Dagga Sentencing Procedure Suspended Sentence Passport Offences

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

The State

Applicant

Mamodiehi Makhalanyane

Respondent

Procedural Posture

Review Application / Special Review Following Conviction and Sentence in Magistrate's Court

Legal Issues

  1. 1 Whether it was appropriate to take two unrelated offences together for purposes of sentence.
  2. 2 Whether the conditions of suspension were correctly formulated in relation to the relevant statutory provision.
  3. 3 Whether the sentence imposed by the magistrate should be rectified on review.

Ratio Decidendi

The review court found that the magistrate erred by taking two unrelated offences together for purposes of sentence, as each offence is governed by its own statute and should be sentenced separately. The condition of suspension referred to section 5(b) of Act 140 of 1992, which was inappropriate since the accused was convicted under section 4(b). Amending the condition to refer to section 4(b) would constitute an increase in sentence, which is impermissible on review. Given that the fine was paid and the accused released, and that she is a Lesotho national who may be difficult to trace, the court deemed it appropriate to rectify the sentence as requested by the magistrate. The sentence...

Court Disposition

Sentence imposed by the magistrate is set aside and replaced with separate sentences for each count.

Orders

  • Count 1: R300,00 or 30 days imprisonment, plus 6 months imprisonment wholly suspended for five years on condition that the accused is not convicted of a contravention of section 5(b) of Act 140 of 1992 during the period of suspension. The dagga is forfeited to the State.
  • Count 2: Accused is cautioned and discharged.