S v Mtolo

• Jurisdiction: South Africa
• Judge: Kruger J and CJ Musi J
• Judgment Date: 14 December 2007
• Citation: 2009 (1) SACR 443 (O)
• Docket Number: 881/2007
• Hearing Date: 14 December 2007
• Counsel: Automatic review. The issues appear from the judgment of CJ Musi J, in which Kruger J concurred.
• Court: Orange Free State Provincial Division

CJ Musi J:

[1] This matter came before me by way of automatic review in terms of F s 302 read with s 304 of the Criminal Procedure Act 51 of 1977.

[2] The accused was convicted by the magistrate Brandfort, of contravening s 4(b) of Act 140 of 1992: possession of dagga. The magistrate was satisfied that the accused, who has four previous convictions for possession of dagga, is a person as described in s 21(1) of the Prevention G and Treatment of Drug Dependency Act 20 of 1992 and in terms of s 296(1) of Act 51 of 1977 she referred him to a rehabilitation centre. In addition to that he was sentenced to six months' imprisonment which was wholly suspended for five years on certain conditions.

[3] On 21 May 2007, after conviction but before the accused's previous H convictions were proved, the prosecutor requested a postponement because the accused informed him that he was dependent on dagga. This information was not verified. The matter was postponed to procure a probation officer's report and for the accused's criminal record.

[4] On 4 July 2007 the magistrate put the following on record:

I SA - maatskaplike werker het verslag voorberei maar versoek geleentheid om beskuldigde na sentrum te neem vir evaluasie. - Beskuldigde blyk ongeletterd te wees. Verslag gemerk Bewysstuk A.

The probation officer recommended that the accused be sent to a treatment centre. The accused was sent to the Aurora Alcohol and Drug J Centre and the Magaliesoord Centre for assessment. Aurora rejected

CJ Musi J

him, inter alia, because 'he displayed a low level of motivation during the A interview'. Aurora recommended that he be referred for long-term treatment. His admission to Magaliesoord was not approved because of his 'physical condition and lack of insight into his substance abuse problem, thus lack of motivation for rehabilitation'. The rejection letter from Aurora was handed in as exhibit B2 and the one from Magaliesoord B as exhibit C. The contents of both exhibits were not explained to the accused.

[5] The probation officer wrote an undated letter to the prosecutor which was handed in as exhibit E, wherein he said the following:

Please be informed that the above mentioned case is receiving our C utmost attention. The probation officer has applied for the admission of the accused in Swartfomtein (sic) rehabilitation centre Mpumalanga. The centre is on (sic) the process of assessing the report that will determine his admission...