S v Mashiyana

JurisdictionSouth Africa
JudgeMunnik JP, Conradie J
Judgment Date18 March 1988
Citation1989 (1) SA 592 (C)
Hearing Date18 March 1988
CourtCape Provincial Division

Conradie J:

On 13 April 1987 the appellant, who was the first accused, appeared with two other accused in the magistrate's court at Wynberg B charged with the offence of contravening s 2(a) of Act 41 of 1971 in that on 12 April 1987 and at or near Guguletu she dealt in ñ 40 kilograms of dagga. The accused were, in the alternative, charged with having possessed the dagga in contravention of the provisions of s 2(b). When the matter was called on 13 April 1987, the day after the accused had been arrested, the charges against accused Nos 2 and 3 were withdrawn.

The appellant was asked to plead and, after having been warned of C the scope and purpose of a questioning in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, the appellant told the court that the police arrived at her shack in which they found the dagga and arrested her. She had obtained two bags of dagga in the Transkei and was making them up into 120 parcels which she intended to sell at R5 per parcel when the police arrived. She said that she had paid R200 for the D dagga, that she knew that it was unlawful to sell dagga and that her plea was voluntary.

The prosecutor requested that the matter be disposed of without proof of previous convictions and the court acceded to that request. After a brief inquiry into the appellant's personal and financial circumstances she was sentenced to imprisonment for five years of which two years were suspended for four years on condition that she was not convicted of E a contravention of s 2(a) or (b) of Act 41 of 1971 committed during the period of suspension and in respect of the latter offence sentenced to unsuspended imprisonment for a period of nine months or longer.

The appellant was also the applicant in an application to review the magistrate's decision on the basis that a serious miscarriage of F justice had taken place. I shall, however, continue to refer to her as the appellant. Mr McDougall for the appellant contended before us that it was clear from the tenor of her allegations in the review application that she had wanted to be legally represented, that she had never previously been to court and had been completely ignorant of court procedure. In the appellant's affidavit dated 15 April 1987 she says G the following:

'3. I was arrested at my house on Sunday 12 April 1987 together with two other people. I was held in the police cells at Guguletu where I was advised by a White policeman that I would get bail on this case. I did not know that I would be required to plead to the charge on my first appearance in court. I was not able to contact my husband H or a lawyer as I was not allowed to use the telephone. I was taken to Wynberg magistrate's court on the morning of 13 April 1987. I hoped that my husband would be able to arrange for a lawyer to be at court to do my case. I did not have any chance to discuss the case with anybody who could give me proper legal advice and I did not properly have the chance to prepare myself for a trial. I honestly thought that my appearance in the Wynberg magistrate's court would...

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16 practice notes
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...SACJ 48 at 49, 58; S v Mthetwa; S v Khanyile 1978 (2) SA 772 (N) at 776E-F; S v Baloyi 1978 (3) SA 290 (T) at 293F-H; S v Mashiyana 1989 (1) SA 592 (C) at 596D-E; Dugard 'The Right to Counsel: South African and American Developments' (1967) 84 SALJ at F The Khanyile decision: The ambit of t......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...SACJ 48 at 49, 58; S v Mthetwa; S v Khanyile 1978 (2) SA 772 (N) at 776E-F; S v Baloyi 1978 (3) SA 290 (T) H at 293F-H; S v Mashiyana 1989 (1) SA 592 (C) at 596D-E; Dugard 'The Right to Counsel: South African and American Developments' (1967) 84 SALJ at The Khanyile decision: The ambit of t......
  • S v Mabaso and Another
    • South Africa
    • Invalid date
    ...and Another 1988 (3) SA 795 (N) at 815D - H, 816A; S v Gwebu 1988 (4) SA 155 (W); S v Morrison 1988 (4) SA 164 (T); S v Masjiyana 1989 (1) SA 592 (C); S v Chaane 1978 (2) SA 891 (A) at 897A - B; S v Mpongoshe and Another 1980 (4) SA 593 (A) at 630B - D; S v Nkosi 1984 (3) SA 345 (A) at 353B......
  • S v Davids; S v Dladla
    • South Africa
    • Invalid date
    ...C actual decisions that seem to clash with it, those reached in S v Mthetwa; S v Khanyile 1978 (2) SA 773 (N) and S v Mashiyana 1989 (1) SA 592 (C). Indeed, he goes further than the Court which gave the ruling did, holding that it amounts always and not just sometimes to an irregularity for......
  • Request a trial to view additional results
16 cases
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...SACJ 48 at 49, 58; S v Mthetwa; S v Khanyile 1978 (2) SA 772 (N) at 776E-F; S v Baloyi 1978 (3) SA 290 (T) at 293F-H; S v Mashiyana 1989 (1) SA 592 (C) at 596D-E; Dugard 'The Right to Counsel: South African and American Developments' (1967) 84 SALJ at F The Khanyile decision: The ambit of t......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...SACJ 48 at 49, 58; S v Mthetwa; S v Khanyile 1978 (2) SA 772 (N) at 776E-F; S v Baloyi 1978 (3) SA 290 (T) H at 293F-H; S v Mashiyana 1989 (1) SA 592 (C) at 596D-E; Dugard 'The Right to Counsel: South African and American Developments' (1967) 84 SALJ at The Khanyile decision: The ambit of t......
  • S v Mabaso and Another
    • South Africa
    • Invalid date
    ...and Another 1988 (3) SA 795 (N) at 815D - H, 816A; S v Gwebu 1988 (4) SA 155 (W); S v Morrison 1988 (4) SA 164 (T); S v Masjiyana 1989 (1) SA 592 (C); S v Chaane 1978 (2) SA 891 (A) at 897A - B; S v Mpongoshe and Another 1980 (4) SA 593 (A) at 630B - D; S v Nkosi 1984 (3) SA 345 (A) at 353B......
  • S v Davids; S v Dladla
    • South Africa
    • Invalid date
    ...C actual decisions that seem to clash with it, those reached in S v Mthetwa; S v Khanyile 1978 (2) SA 773 (N) and S v Mashiyana 1989 (1) SA 592 (C). Indeed, he goes further than the Court which gave the ruling did, holding that it amounts always and not just sometimes to an irregularity for......
  • Request a trial to view additional results

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