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FREE STATE HIGH COURT. BLOEMFONTEIN REPUBLIC OF SOUTH AFRICA

Review No. : 7/2011

In the review between:

THE STATE

versus

MOHAU GILBERT THORISO …............................................................Accused

CORAM: MOLOI, J et KUBUSHI. AJ

JUDGMENT BY: MOLOI, J

DELIVERED ON: 02 JUNE 2011

REVIEW JUDGMENT

MOLOI, J

[1] This is a special review in terms of section 304(4) of the Criminal Procedure Act No 51 of 1977. The matter was referred to this court by the magistrate at Ficksburg.

[2] After convicting the accused of contravention of section 5(b) read with, inter alia, section 17(e) and 13(f) of the Drugs and Drug Trafficking Act No 140 of 1992 in that the accused dealt 11,1 kilograms of dagga the magistrate imposed a sentence of R1 500.00 or four(4) months imprisonment and ordered that the dagga be forfeited to the state.

[3] The accused paid the fine and was released. Afterwards the magistrate realised that the sentence imposed was incompetent as it conflicted with the penal provisions of section 17(e) of the said Act reading as follows:

"Any person who is convicted of an offence under this Act shall be liable in the case of an offence referred to in section 13(f) to imprisonment for a period not exceeding 25 years or to both such imprisonment and such fine as the court may deem fit to impose".

[4] The essence of the above provision is that the court convicting a person of the offence of contravening section 5(b) read with section 17(e) and 13(f) is constrained to impose imprisonment without the alternative of a fine as sentence whether such sentence is wholly or partially suspended. In addition the court may impose a further sentence of a fine failing payment of which, a period of imprisonment.

[5] A court of review, having found that the magistrate imposed a sentence contrary to the provisions above, as in this case, would, in the interest of justice set aside the sentence and remit the matter to the magistrate to impose a sentence as the law dictates. The practicalities of such remission becomes paramount i.e. whether the accused would be traced and be brought before the court as soon as it is practically possible so that he can enjoy the right to address the court and lead evidence as to the new sentence to be imposed.

[6] In this case the practicalities do not permit such remission because the accused is a Lesotho citizen whose address is difficult to determine, as the charge sheet reflects his address as merely Belabela, Lesotho. The state will have difficulty in finding a person in such circumstances as the logistics of entering a foreign country and searching for a person there as well as the costs and time will be prohibitive. Neither will it be in the interest of the accused to be brought before the court to face a more onerous sentence. This is not done at the expense of justice being sacrificed by imposing an appropriate sentence as the iaw require but justice will be better served by bringing closure to further criminal litigation: S v ZULU 1967(4) SA 499(T) at 502 F. See also S v MQIKELA 2005(2) SACR 397(E) and cases sited therein and unreported judgment of the division in S v MABAFOKENG NTELEKi Review No. 232/08 handed down on 29 May 2008.

[7] In the result, I am of the view that the interest of justice will be served if the conviction and sentence imposed are confirmed.

MOLOI, J

I concur.

KUBUSHI, J

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