“238. (1) If a person arraigned before any court upon any charge has pleaded guilty to such charge, or has pleaded guilty to
having committed any offence (of which he might be found guilty on the indictment or summons) other than the offence with which he
is charged, and the prosecutor has accepted such plea, the court may, if it is –
(a)
the High Court, and the accused has pleaded guilty to any offence other than murder, sentence him for such offence without hearing
any evidence; or,
(b)
a magistrate’s court, sentence him for the offence to which he has pleaded guilty upon proof (other than the unconfirmed evidence
of the accused) that such offence was actually committed:
Provided that if the offence to which he has pleaded guilty is such that the court of opinion that such offence does not merit punishment
of imprisonment without the option of a fine or of whipping or of a fine exceeding sixty rand, it may, if the prosecutor does not
tender evidence of the commission of such offence, convict the accused of such offence upon his plea of guilty, without other proof
of the commission of such offence, and thereupon impose any competent sentence other than imprisonment or any other form of detention
without the option of a fine or whipping or a fine exceeding sixty rand, or it may deal with him otherwise in accordance with law”.
It is clear from the aforegoing that on the appellants plea of guilty, accepted as it was by the prosecution, the court a quo, being the High Court, could sentence him without hearing evidence. It could, however, in the absence of evidence of the commission
of the offence with which he was charged not sentence him to imprisonment. Did the Statement of Agreed Facts provide the requisite
evidence of the commission of the offence? Mr. Mabila submitted that it did not and that the trial court should have required oral
evidence as provided for in Section 172(1) of the Code. He cited certain South African cases as authority for that submission. Those
cases, however, do not assist him. Some dealt with the situation where, in the days when preparatory examinations were held, the
trial court could not receive the evidence tendered at the preparatory examination and convict accused person on that evidence. Others
were not relevant at all to the present issue. In my view, the contents of the Statement of Agreed Facts are sufficient to constitute
a compliance with the requirements of Section 238(1). They contained admissions of the factual elements which any viva voce evidence by the Crown witnesses would have placed before court.
Moreover, if any doubt still exists in this regard it is resolved by Section 272(1) of the Criminal code which reads as follows:
“In any criminal proceedings the accused or his representative may admit any fact relevant to the issue and any such admission
shall be sufficient evidence of that fact”.
In casu the admissions of the relevant facts were formally and unequivocally recorded in the statement which the appellant and his attorney
wished the court to consider for the purposes of the trial. There is accordingly no validity in the appellant’s attack on the
proceedings in the court a quo and his application for leave to appeal and to amend his grounds of appeal to do so must be refused.
On sentence, Mr. Mabila again referred to Section 238(1) arguing that the trial court in the absence of evidence, should only have
imposed a fine on the appellant. I have rejected this argument as to the absence of evidence. He contended, however, alternatively that in imposing the custodial sentence that he did the learned trial Judge had misdirected himself in certain respects.
One of these, he said, was contained in a finding by the Judge that the appellant possessed a large quantity of mandrax tablets “acting as a courier for a supplier”. There was, he contended, no basis for such a finding. However, in his submissions on mitigation to the trial court Mr. Mabila told
the court that the appellant, who was a driver for a company, travelled between Swaziland, Mozambique and South Africa and at the border gate between Mozambique and Swaziland had met “an Indian fellow” who had promised him an incentive for conveying the mandrax. Having regard to the very large number of tables – 25 000 – which obviously were not for his own use, the inference is irresistible that in conveying them, and seeking to keep them hidden while doing so,
he was acting as a courier for a supplier. There was thus no misdirection on the learned Judge’s part.
Mr. Mabila further contended that the learned Judge had not considered the factors advanced by him in mitigation of sentence. In a
careful and well-reasoned judgment on sentence, Maphalala J, indeed did advert to all the mitigatory factors which Mr. Mabila also
advanced. They are also those advanced by him in this Court. He took into account the fact that the appellant was a first offender
and had shown remorse by his plea of guilty. He, however, also pointed to the fact that the penalty laid down in Section 12(1)(a)
of the Act for possession of a potentially harmful drug such as mandrax was, in the case of a first offender, a fine not exceeding
E15 000 or imprisonment not exceeding 15 years. The offence is therefore regarded in a most serious light by the Legislature. He
also drew attention to the fact that drug trafficking and the taking of drugs by the youth of the country was rampant. Sentences
with a sting were therefore appropriate to act as deterrents to would-be offenders. To be effective courts’ sentences should
be attuned to current criminal trends. With all these comments I am in complete agreement Mr. Mabila also referred this Court to
sentences in a number of other cases notably that in REX V BILAL AHMED ABDUL AZIZ KASKAR CRIMINAL TRIAL NO.214/94 (unreported) where
an accused who was found in possession of 79,671 tablets was sentenced by Twala J to six years or E6 000,00 fine of which two years or E2 000,00 was conditionally suspended. Mr. Mabila urged this Court to follow
that and other cases where lesser sentences than the present had been imposed.
