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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 134

PARTIES:

ANTHONY JOHNSON                                                     APPLICANT

and

MR VAN ZYL N O                                                         FIRST RESPONDENT

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTION                                                        SECOND RESPONDENT

REFERENCE NUMBERS -

• Registrar: 1856/06

• Magistrate:

• High Court: South Eastern Cape Local Division

DATE DELIVERED: 26 October 2006

JUDGE(S): Dambuza J and Somyalo JP

LEGAL REPRESENTATIVES -

Appearances

• for the State/Applicant(s)/Appellant(s):

• for the accused/respondent(s):

Instructing attorneys:

• Applicant(s)/Appellant(s):

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings : Review

• Topic:

• Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)                                                

                 CASE NO: 1856/06

In the matter between:                                                                        “NOT REPORTABLE”

ANTHONY JOHNSON                                                     APPLICANT

and

MR VAN ZYL N O                                                         FIRST RESPONDENT

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTION                                                        SECOND RESPONDENT

______________________________________________________________

JUDGMENT

______________________________________________________________

DAMBUZA J:

1.         This is an application for review of the conviction and sentence imposed by the magistrate, Komga on the applicant. 

2.         The applicant was charged with and convicted of dealing in 25 kilograms of dagga valued at R25 000.00 under the Drugs and Drug Trafficking Act, Act No 140 of 1992.  The record reveals that he pleaded guilty to the charge.

3.         The magistrate then conducted an enquiry in terms of Section 112 (1) (b) of the Criminal Procedure Act (the Act).  The relevant portion of the enquiry reads as follows:

            “V:        Is dagga op 6/4/06 in u besit gevind?

            A:         Ja

            V:         Wie se dagga is dit?

            A:         Myne.

            V:         Wat wou u daarmee maak?

            A:         Gebruik saam met ander Rastafariers.

            V:         Hoe het dit gebeur dat u die dagga haal?

A:         Ek het besluit om dit te gaan haal en onder die ander te versprei omdat daar n fees is in die Perel vir Rastas?

V:         Enige reg om dagga te besit of daarin handel te dryf?

A:         Nee

V:         Geweet dis teen die wet?

A:         Ja

V:         Was u teenwoordig toe die dagga geweeg is?

A:         Ja

V:         Het dit 25kg geweeg?

A:         Ja.”

4.         The magistrate then convicted the applicant of dealing in 25 kilograms of dagga and sentenced him to five years imprisonment, two of which were suspended on certain conditions.  At the sentencing stage of the proceedings, the applicant was represented by Mr Van Breda.

5.         The first respondent is not opposing the application and has opted to abide by the decision of this court.  The second respondent is sued on the ground that it is nominally liable for the conduct of the public prosecutor, Vuyisile Mafuna who represented the second respondent during the criminal proceedings.

6.         The main basis for the application is that the record is incorrect insofar as it reveals that the applicant pleaded guilty to the charge of dealing in dagga.  The magistrate therefore recorded an incorrect plea.  According to the applicant he pleaded guilty to the alternative charge of possession of dagga.

7.         Both respondents have filed answering affidavits.  Neither deals with the allegations by the applicant regarding his plea and the alleged incorrect recordal thereof.  The first respondent only states that:

            “I provided the applicant with ample opportunity to ventilate any issues regarding his plea of guilty, but was satisfied at the end of the day that the accused was in fact guilty and did plead guilty of the charge as convicted.”

8.         Whatever the first respondent intended to convey in this regard, our view is that his affidavit does not state that the accused pleaded guilty to the charge of dealing in dagga.

9.         It has been submitted on behalf of the applicant that the court may proceed on the basis that the factual averments by the applicant are incorrect.  That this is so, it was further submitted, is supported by the fact that the first respondent’s questioning in terms of Section 112 (1) (b) of the Criminal Procedure Act focused on the element of possession rather than that of dealing. 

10.       We are persuaded, in the absence of denial of the allegation that the plea was incorrectly recorded that it is indeed so.  Such failure to correctly record the applicant’s plea constitutes an irregularity and for this reason the conviction and sentence fall to be set aside.

11.       Even if we are wrong in finding that the applicant’s plea was incorrectly recorded our view is that the conviction is not supported by the evidence or the answers given by the applicant on being questioned by the first respondent should have entered a plea of not guilty subsequent to the Section 112 (1) (b) enquiry.  This is particularly so in view of the fact that the applicant was unrepresented and probably did not appreciate the definition of dealing in as contained in the Drug Trafficking Act.  The courts have the dangers of putting leading questions to accused in Section 112 (1) (b) enquiry have been repeatedly.  See:  S v Phundula 1974 SA (2) 877 (T).The applicant, in response to a leading question posed to him by the first respondent, admitted that the dagga was found in his possession.

12.       We agree with the submission on behalf of the applicant that the applicant’s further response that dagga was to be used at a Rastafarian festival should have left the first respondent with doubt as to whether the applicant had correctly pleaded guilty to the charge of dealing in dagga.

13.       See:  S v Peter 1996 (2) SACR 212 (C) wherein the accused pleaded guilty to the alternative charge of possession of dagga and on being questioned by the magistrate admitted not only the alternative charge but also the main count as a result of which he was convicted of dealing in dagga.  The court held that the questioning was irregular in the absence of the prosecutor indicating acceptance of the plea.

            It is therefore our view that the conviction herein was incorrect.

14.       The applicant initially sought that the conviction and sentence be set aside and the matter remitted to Magistrate’s Court.  Ms Hartle now represent the applicant (only from the stage of drawing supplementary Heads of Argument) has submitted that in view of the period of imprisonment that the applicant has served (about six months, from 28 April 2006) the interests of justice would best be served by this court substituting the conviction of dealing in dagga with that based on the alternative charge of possession of dagga and substituting the sentence imposed by the first respondent with an appropriate sentence.

15.       As the applicant’s main contention was that his intended plea was that of guilty to possession of dagga, our view is that the matter will best be dealt with at the Magistrate’s Court where all relevant evidence will be available.

The following order will therefore issue:

(a)       The conviction and sentence imposed by the first respondent are set aside;

(b)       The matter is remitted to the Magistrate’s Court to be heard de novo; and

(c)        Each party shall pay its own costs.

__________________________

N DAMBUZA

JUDGE OF THE HIGH COURT                                              26 October 2006

I agree and it is so ordered:

__________________________

C M SOMYALO

JUDGE PRESIDENT OF THE HIGH COURT                        26 October 2006

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