S v Nteleki

• Jurisdiction: South Africa
• Judge: Van der Merwe J and Van Zyl J
• Judgment Date: 29 May 2008
• Citation: 2009 (2) SACR 323 (O)
• Docket Number: 232/2008
• Hearing Date: 29 May 2008
• Counsel: Information not supplied
• Court: Orange Free State Provincial Division

Van Zyl J:

[1] The accused was charged with the offence of a contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, in that she G allegedly dealt in 2,05 kg of dagga. She pleaded guilty, whereupon she was rightly convicted as charged. The accused was sentenced to a fine of R1 500 or three months' imprisonment, wholly suspended for five years on condition that she is not again convicted of a contravention of s 5(b) of Act 140 of 1992 committed during the period of suspension.

H [2] The matter was then sent on special review in terms of s 304(4) of the Criminal Procedure Act 51 of 1977. The magistrate, in her referral letter, referred to the provisions of s 17(e) of Act 140 of 1992 on the basis of which she stated that the imposed sentence is an incompetent sentence and that she therefore requests that the sentence be set aside I and that the matter be remitted to the court a quo for the imposition of a proper sentence.

[3] Section 17(e) of Act 140 of 1992, which is the relevant penalty clause, reads as follows:

'Any person who is convicted of an offence under this Act shall be liable J in the case of an offence referred to in section 13(f), to imprisonment

Van Zyl J

for a period not exceeding 25 years, or to both such imprisonment and A such fine as the court may deem fit to impose.'

It therefore compels a court to impose a sentence of imprisonment without the option of a fine (although it may be wholly or partly suspended), with or without a fine and alternative imprisonment. See S v Mqikela 2005 (2) SACR 397 (E) at 399a-d. In the current matter B this was not done.

[4] The powers of a court on automatic review do not include the power to increase a sentence or to make orders more onerous for the accused, where the sentence was a competent sentence. See S v November and Three Similar Cases 2006 (1) SACR 213 (C) at 219e-i. Where, however, C a magistrates' court has imposed an unlawful or incompetent sentence, the court may on automatic review impose the correct sentence, even where this would result in the sentence being increased. See S v Msindo 1980 (4) SA 263 (B) at 265F-G.

[5] In the current matter the setting-aside of the incompetent sentence D and the subsequent imposition of a competent sentence will result in a more onerous sentence. In my view, the principles of justice will be violated if this were to be done in the absence of the accused, without giving her the...