S v Zwane

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Combrinck J and Msimang J
• Judgment Date: 08 June 2004
• Citation: 2004 (2) SACR 291 (N)
• Hearing Date: 08 June 2004
• Docket Number: R2468/02

Msimang J:

In this matter the accused had been convicted of dealing in dagga in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the Act) by the Msinga district court and sentenced to pay a fine of R3 000 or, in default of payment thereof, to undergo a period of 15 months' imprisonment. Half E of the sentence was suspended on the usual conditions. Section 17 of the Act makes provision for a variety of penalties for contravention of the provisions of the Act and, in the case of contravention of s 5(b), s 17(c) prescribes a term of imprisonment not exceeding 25 years or both such imprisonment and such fine as the court may deem fit to impose. It therefore follows that the F sentence imposed by the magistrate herein was incompetent for failure to comply with the said penalty clause.

When the record of the proceedings in the district court was placed before me on automatic review in terms of s 304(1) of the Criminal Procedure Act 51 of 1977 (the Criminal Procedure Act) and having taken into consideration the purpose of the system of automatic review, on G 12 November 2002, I certified that the proceedings in that court were in accordance with justice notwithstanding such non-compliance. The said record has since been resubmitted by the magistrate and placed before me on special review with a request that I correct the sentence imposed by her to ensure compliance with the provisions of the penalty H clause.

After having perused the papers and after having considered the matter, a number of issues perturbed me and, as a result, I sought the following assistance from the office of the Director of Public Prosecutions: I

'I would like the office of the Director of Public Prosecutions to comment on the following:

1.

Is this Court, having dealt with the matter on automatic review and having certified that the proceedings in the district court were in accordance with justice, qualified to deal with the matter in terms of ss (4) of s 304 of Act 51 of 1977? In other words is this Court not now functus officio? J

Msimang J

2.

In the event that this Court is not functus officio, A can it deal with the matter in the manner suggested by the magistrate without any notice first being given to the accused.'

The Deputy Director has duly and expeditiously responded to my cry for help and I am deeply indebted to him for his assistance. However, before I consider the issues raised in my memorandum to the B office of the Director as well as the input from the Deputy, it is necessary and indeed peremptory to sketch briefly the history of the system of automatic review as it has, over the years, been applied in South Africa.

According to Mr Justice Q de Wet this system can be traced back to the Cape when it was introduced by the Resident Magistrates' Court Act 20 of 1856. [1] The jurisdictional facts C necessary for the submission of the proceedings to automatic review were contained in s 47 of that Act and dealt only with the severity of sentence imposed by a...