S v Mkhonza (R16/2023) [2024] ZAMPMBHC 66; 2024 (2) SACR 535 (MM) (16 September 2024)

S v Mkhonza (R16/2023) [2024] ZAMPMBHC 66; 2024 (2) SACR 535 (MM) (16 September 2024)

The magistrate convicted the accused of dealing in dagga solely on the basis of the statutory presumption in section 21(1)(a)(i) of the Drugs and Drug Trafficking Act, despite the accused's denial of dealing. This presumption was declared unconstitutional by the Constitutional Court in S v Bhulwana, S v Gwadiso, and has been invalid for nearly three decades. The application of this invalid provision resulted in a conviction and sentence that cannot stand. The procedural delays in transmitting the record for review further compounded the injustice suffered by the accused. The High Court set aside both the conviction and sentence, and directed that the judgment be brought to the attention...

Citation
[2024] ZAMPMBHC 66
Parties
Applicant: The State; Respondent: Celucolo Michael Mkhonza
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
16 September 2024
Case Number
R16/2023
Procedural Posture
Criminal Review / High Court Review of Magistrate's Conviction and Sentence
Outcome
Conviction and sentence set aside.
Judges
TV Ratshibvumo, N Mazibuko
Legal Topics
Reverse Onus Presumption, Drugs and Drug Trafficking Act, Constitutional Invalidity, Fair Trial Rights
Criminal Law Constitutional Law Reverse Onus Presumption Drugs and Drug Trafficking Act Constitutional Invalidity Fair Trial Rights

Case Brief

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Parties

The State

Applicant

Celucolo Michael Mkhonza

Respondent

Procedural Posture

Criminal Review / High Court Review of Magistrate's Conviction and Sentence

Legal Issues

  1. 1 Whether the conviction for dealing in dagga was lawful where the accused denied dealing and the magistrate relied on a statutory presumption.
  2. 2 Whether section 21(1)(a)(i) of the Drugs and Drug Trafficking Act could lawfully be applied after its declaration of constitutional invalidity.
  3. 3 Whether the accused suffered substantial injustice due to procedural delays and application of an invalid provision.

Ratio Decidendi

The magistrate convicted the accused of dealing in dagga solely on the basis of the statutory presumption in section 21(1)(a)(i) of the Drugs and Drug Trafficking Act, despite the accused's denial of dealing. This presumption was declared unconstitutional by the Constitutional Court in S v Bhulwana, S v Gwadiso, and has been invalid for nearly three decades. The application of this invalid provision resulted in a conviction and sentence that cannot stand. The procedural delays in transmitting the record for review further compounded the injustice suffered by the accused. The High Court set aside both the conviction and sentence, and directed that the judgment be brought to the attention...

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and the sentence are set aside.
  • 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 of the judgment.