South Africa Judgment

North West High Court, Mafikeng

S v Mokgothu (47/2002) [2002] ZANWHC 23 (13 June 2002)

Criminal Law Possession of Dependence Producing Substance Sentence Suspension Criminal Review Contravention of Drugs and Drug Trafficking Act

Citation: [2002] ZANWHC 23
Status: Judgment
Jurisdiction: South Africa
Court: North West High Court, Mafikeng
Panel: O.A. Pako, B.E. Nkabinde
Case number: 47/2002

More details

Court: North West High Court, Mafikeng
Panel: O.A. Pako, B.E. Nkabinde
Case number: 47/2002

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Professional case brief

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Source document

Holding and result

The court found that the original verdict of 'guilty as charged' was ambiguous because the charge sheet referenced both section 4(a) and 4(b) of Act 140 of 1992. The magistrate clarified that the conviction was intended under section 4(a) only. The court held that justice required the verdict and sentence to be amended to reflect conviction and suspension conditions solely under section 4(a). The proceedings were found to be in accordance with justice, subject to these amendments.

Court disposition

The verdict and sentence were set aside and substituted with conviction and sentence under section 4(a) of Act 140 of 1992.

Orders

The verdict of 'guilty as charged' is set aside and substituted with 'Guilty of contravening section 4(a) of Act 140 of 1992'.
The sentence is set aside and substituted with: R1000 or six months imprisonment wholly suspended for three years on condition that the accused is not convicted of contravening section 4(a) of Act 140 of 1992 during the period of suspension.

Material facts

Parties

The State

Applicant

Isaac Sehularo Mokgothu

Respondent

Amounts and remedies

Fine Imposed: ZAR 1,000
Suspended Imprisonment (months): 6
Suspension Period (years): 3

Procedural history

Posture

Review Application / Automatic Review

Questions and positions

Legal issues

01
Whether the verdict of 'guilty as charged' was appropriate given the charge sheet referred to two offences under section 4(a) and 4(b) of Act 140 of 1992.
02
Whether the sentence and condition of suspension were correctly formulated in accordance with the conviction.

Party arguments

Applicant: The State charged the accused with contravening section 4(a) or (b) of Act 140 of 1992, alleging unlawful use or possession of 200 grams of dagga. The magistrate clarified that the conviction was for contravening section 4(a) only and had no objection to amending the verdict and sentence accordingly.
Respondent: The accused did not contest the charge or conviction. The magistrate's response indicated acceptance of the amendment to reflect conviction under section 4(a) only.

Court’s reasoning

Legal principles

01
Drugs and Drug Trafficking Act 140 of 1992

A verdict must accurately reflect the specific statutory provision contravened, especially where multiple offences are referenced in the charge sheet.
02
Drugs and Drug Trafficking Act 140 of 1992

Sentences with suspended imprisonment must clearly state the condition and period of suspension, linked to the specific offence for which the accused was convicted.

Ratio, limits and disposition

Ratio decidendi

The court found that the original verdict of 'guilty as charged' was ambiguous because the charge sheet referenced both section 4(a) and 4(b) of Act 140 of 1992. The magistrate clarified that the conviction was intended under section 4(a) only. The court held that justice required the verdict and sentence to be amended to reflect conviction and suspension conditions solely under section 4(a). The proceedings were found to be in accordance with justice, subject to these amendments.

Obiter and limits

The magistrate's willingness to amend the verdict and sentence demonstrates proper judicial cooperation in review proceedings.
Automatic review serves as a safeguard to ensure that convictions and sentences are legally sound and accurately recorded.

Court disposition

The verdict and sentence were set aside and substituted with conviction and sentence under section 4(a) of Act 140 of 1992.

The verdict of 'guilty as charged' is set aside and substituted with 'Guilty of contravening section 4(a) of Act 140 of 1992'.
The sentence is set aside and substituted with: R1000 or six months imprisonment wholly suspended for three years on condition that the accused is not convicted of contravening section 4(a) of Act 140 of 1992 during the period of suspension.

Source and reliance status

North West High Court, Mafikeng

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Judgment text

The complete available source text.

Source document

North West High Court, Mafikeng

Judgment

[2002] ZANWHC 23

CA NO.47/2002

THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA

PROVINCIAL DIVISION

THE STATE

ISAAC

SEHULARO MOKGOTHU

REVIEW

Pako AJ: The charge against the accused, according to the charge sheet is contravening section 4(a) or (b) read with section 13(c) or (d), 17(b) or (d) 18,19,20,21 of Act 140 of 1992. The allegations in the charge sheet are that he unlawfully used or possessed a dependence - producing substance or a dangerous dependence-producing substance or undesirable dependence-producing substance, to wit 200 grams of dagga. He was found guilty as charged. He was sentenced to a term of imprisonment with an option of a fine which was suspended. The condition of suspension is that the accused must not be found guilty of contravening section 4(a) or (b) of Act 140 of 1992 committed during the period of suspension.

The matter came before me on automatic review. I then queried the verdict of âguilty as chargeâ because the charge sheet referred to two offences, namely contravention of section 4(a) and contravention of section 4(b).

-2-

The learned magistrate responded by stating that, in fact, the accused was convicted of contravening section 4(a) of Act 140 of 1992. She has no objection if the court can amend the verdict and sentence accordingly.

The proceedings are in accordance with justice. The verdict and the condition of suspension will have to be amended. In the result, the following order is made:-

The verdict is set aside and is substituted with the verdict of: âGuilty of contravening section 4(a) of Act 140 of 1992".

The sentence is also set aside and substituted with the following amended sentence:

âR1000-00 (One thousand rand) or six (6) months imprisonment wholly suspended for a period of three (3) years on condition that the accused is not convicted of contravening section 4(a) of Act 140 of 1992 committed during the period of suspensionâ.

O.A. PAKO

ACTING JUDGE OF THE HIGH COURT

-3-

I agree

B.E. NKABINDE

JUDGE OF THE HIGH COURT

DATED: 13 JUNE 2002

Authorities

Authorities used by the court

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

Drugs and Drug Trafficking Act 140 of 1992

Legislation

Legislation referenced in the available case record.

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