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South Africa Judgment

Free State High Court, Bloemfontein

S v Mdebele (74/2013) [2013] ZAFSHC 130 (11 July 2013)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The sentence imposed by the magistrate was not competent as it contravened section 17(e) of the Drugs and Drug Trafficking Act, which requires a mandatory custodial sentence without the option of a fine, unless the fine is imposed as a further sentence. The conviction was sound, based on the accused's guilty plea and section 112(2) statement. The court confirmed the conviction, set aside the improper sentence, and substituted it with a sentence compliant with the statutory requirements.

Court disposition

Conviction confirmed; sentence set aside and substituted with compliant sentence.

Orders

  • The conviction is confirmed.
  • The sentence imposed by the magistrate is set aside.
  • The accused is sentenced to 12 months imprisonment and a further R40,000 (forty thousand rand) or 24 months imprisonment, suspended in whole for three years on condition that the accused is not found guilty of dealing in dagga during the period of suspension.
  • The sentence is antedated to 30 October 2012.

02

Material facts

Parties

The State

Applicant

Buhle Mdebele

Respondent

Amounts and remedies

  • Original Fine Imposed: ZAR 60,000
  • Substituted Fine Imposed: ZAR 40,000

03

Procedural history

  1. Posture

    Special Review / Review of Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The State, through the trial magistrate, submitted that the sentence imposed was not in accordance with section 17(e) of the Drugs and Drug Trafficking Act, which prescribes a mandatory prison sentence without the option of a fine, except as a further sentence at the court's discretion. The magistrate requested confirmation of the conviction and substitution of the sentence with one compliant with the Act.
Respondent
The accused pleaded guilty to dealing in cannabis and was legally represented. No substantive argument was advanced against the review; the section 112(2) statement supported the conviction.

05

Court’s reasoning

  1. 01

    Drugs and Drug Trafficking Act 140 of 1992

    Section 17(e) of the Drugs and Drug Trafficking Act prescribes a mandatory prison sentence not exceeding 25 years without the option of a fine, except as a further sentence at the court's discretion.

  2. 02

    S v Tagcoba [2010] ZAKZPHC 75

    A sentence not in accordance with statutory provisions is not in accordance with justice and must be set aside on review.

06

Ratio, limits and disposition

Ratio decidendi

The sentence imposed by the magistrate was not competent as it contravened section 17(e) of the Drugs and Drug Trafficking Act, which requires a mandatory custodial sentence without the option of a fine, unless the fine is imposed as a further sentence. The conviction was sound, based on the accused's guilty plea and section 112(2) statement. The court confirmed the conviction, set aside the improper sentence, and substituted it with a sentence compliant with the statutory requirements.

Obiter and limits

  • The conviction cannot be faulted, regard being had to the section 112(2) statement submitted for and by the accused.
  • The sentence is antedated to 30 October 2012 to reflect the date of original sentencing.

Court disposition

Conviction confirmed; sentence set aside and substituted with compliant sentence.

  • The conviction is confirmed.
  • The sentence imposed by the magistrate is set aside.
  • The accused is sentenced to 12 months imprisonment and a further R40,000 (forty thousand rand) or 24 months imprisonment, suspended in whole for three years on condition that the accused is not found guilty of dealing in dagga during the period of suspension.
  • The sentence is antedated to 30 October 2012.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2013] ZAFSHC 130

REPUBLIC

OF SOUTH AFRICA

Special Review No. : 74/2013

In the review between:

THE

STATE

versus

BUHLE

MDEBELE

CORAM: LEKALE, J et MHLAMBI.AJ

JUDGMENT BY: MHLAMBI,AJ

DELIVERED ON: 11 JULY 2013

[1] This matter came before us by way of special review in terms of section 304(4) of Criminal Procedure Act 51 of 1977.On 30 October

2012 the accused, who was legally represented, appeared before the Bloemfontein Magistrates’ Court on the charge of contravening

the provisions of section 5(b) read with sections 1, 13, 17, 25 and 64 of the Drugs and Drug Trafficking Act 140 Of 1992 (the Drugs Act) in that she dealt in 9,270kg of cannabis. She pleaded guilty and was, thereupon, convicted and sentenced to 3(three) years imprisonment or R60 000 (sixty thousand rand) fine.

[2] The trial magistrate has since discovered that the sentence is not in consonance with the provisions of section 17(e) of the Drugs Act and requests that

“...the Honorable Judge confirms the conviction, and set aside the sentence and impose the appropriate sentence as prescribed by section 17(e) ....”

[3] I am in respectful agreement with the learned magistrate that the sentence is not competent insofar as section 17(e) of the Drugs Act provides for mandatory prison sentence not exceeding 25 years without the option of a fine, which may be suspended in whole or in part, or for the imposition of such a custodial sentence together with a fine, in the discretion of the court, as a further sentence. (See S v TA

GCOBA [2010] ZAKZPHC 75)

[4] The sentence is, therefore, not in accordance with justice while the conviction cannot be faulted regard being had to the section 112(2) statement submitted for and by the accused.

ORDER

[5] The conviction is confirmed but the sentence is set aside and in its place and stead is substituted the following:

“The accused is sentenced to 12 months imprisonment and a further R40 000 (fourty thousand rand) or 24 months imprisonment which is suspended in whole for three years on

condition that the accused is not found guilty of dealing in dagga during the period of suspension.”

[6] The sentence is antedated to 30 October 2012.

JJ MHLAMBI,

AJ

I concur.

LJ LEKALE, J

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Tagcoba [2010] ZAKZPHC 75

Case cited

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

Drugs and Drug Trafficking Act 140 of 1992

Legislation

Legislation referenced in the available case record.

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