S v Mdebele (74/2013) [2013] ZAFSHC 130 (11 July 2013)
- Citation
- [2013] ZAFSHC 130
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Mhlambi, Lekale
- Case number
- 74/2013
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Mhlambi, Lekale
- Case number
- 74/2013
On this page
Professional case brief
Research organized from the available case record
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
ApplicantBuhle Mdebele
RespondentAmounts and remedies
- Original Fine Imposed: ZAR 60,000
- Substituted Fine Imposed: ZAR 40,000
03
Procedural history
Posture
Special Review / Review of Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed by the magistrate was in accordance with section 17(e) of the Drugs and Drug Trafficking Act.
- 02
Whether the conviction should be confirmed despite the sentencing error.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
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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