Mavunjana v Magistrate Lusikisiki and Another

• Jurisdiction: South Africa
• Judge: Miller AJ
• Judgment Date: 05 June 1995
• Citation: 1995 (2) SACR 368 (TK)
• Hearing Date: 05 June 1995
• Counsel: J N M Poswa (with him M R Madlangs) for the applicant N Botha for the respondents
• Court: Transkei Supreme Court

Miller AJ:

The applicant makes application for the issue of a rule nisi calling upon the respondents to show cause why an order in the following terms should not be granted:

'(1)

That the criminal proceedings conducted in the matter of S C v Mbulelo Msindo and Mavis Mavunjana on 13 March 1992 be reviewed and set aside insofar as they relate to applicant;

(2)

that respondents pay the costs of this application in the event of opposing it.'

She also asks that she be granted bail pending the finalisation of this D application and an application to be brought before the Constitutional Court for the invalidation of s 10(1)(e) of Act 41 of 1971.

On 12 March 1992 the applicant was a passenger in a motor vehicle owned by herself and being driven by one Mbulelo Msindo. The vehicle was stopped at a roadblock and searched by members of the Transkeian Police and 12 bags of dagga weighing 317,8 kg were found in the vehicle. The E applicant and the said Msindo were, on 13 March 1992, charged in the magistrate's court, Lusikisiki, of contravening s 2(a) of Act 41 of 1971 (dealing in dagga), alternatively, of contravening s 2(b) of Act 41 of 1971 (unlawful possession of dagga). The said Msindo pleaded not guilty to the main charge but guilty to the alternative charge and applicant F pleaded not guilty to both the main and alternative charges.

The trial took place on that same day. The applicant did not testify at the trial. Both Msindo and the applicant were found guilty of dealing in dagga and were both sentenced to undergo six years' imprisonment. In addition, applicant's vehicle was declared forfeit to the State. Neither the said Msindo nor the applicant were represented at their trial and, G apparently, they were not advised of their rights to legal representation.

The applicant thereafter noted an appeal to the General Division of the Supreme Court of Transkei against both her conviction and sentence.

On 18 March 1993, the applicant's appeal against conviction was dismissed H and her appeal against sentence was upheld. The sentence imposed by the magistrate was set aside and substituted by a sentence of six years' imprisonment of which two years were suspended for five years on certain conditions.

It is clear from the appeal judgment that the presumption contained in s 10(1)(e) of Act 41 of 1971 was relied on in dismissing the applicant's I appeal against conviction. The irregularity of not being advised by the magistrate of applicant's right to legal representation at her trial was not raised as a ground of appeal nor was it dealt with on review by the Court of appeal.

Application for leave to appeal was then made on behalf of applicant and such application was refused.

J Thereafter the applicant petitioned the Chief Justice of the Supreme

Miller AJ

A Court of Transkei for special leave to appeal against conviction and sentence. Such petition was, on 13 December 1993, refused.

The applicant, in her founding affidavit in this application, stated that the Court file in the appeal matter under case No C A & R 464/92 would be made available at the hearing of this matter, but, unfortunately, such B file could not be traced. However, Mr Botma, who appeared for the respondents, handed a copy of applicant's aforesaid petition to the Court. It is apparent from the petition that applicant relied...