S v Zwane

• Jurisdiction: South Africa
• Judgment Date: 08 June 2004
• Citation: 2004 (2) SACR 291 (N)

S v Zwane
2004 (2) SACR 291 (N)

2004 (2) SACR p291

Citation	2004 (2) SACR 291 (N)
Case No	R2468/02
Court	Natal Provincial Division
Judge	Combrinck J and Msimang J
Heard	June 8, 2004
Judgment	June 8, 2004

Flynote : Sleutelwoorde

Review — Automatic review — In what cases — Where E proceeding not in accordance with justice — Meaning of in s 304(1) of Criminal Procedure Act 51 of 1977 — What is meant is that proceedings must be in accordance with real and substantial justice insofar as interests of convicted person are concerned. F

Review — Automatic review — Powers of Court — Proceedings having been confirmed by reviewing Judge — Before Court can vary magistrate's judgment certificate of reviewing Judge must be withdrawn either by reviewing Judge or other Judges of Division — Certificate can be withdrawn in proper case — Such case is where Judge's attention subsequently drawn to irregularity in proceedings, where she G or he discovers that mistake made or where facts discovered which, if known before confirmation, would have resulted in withholding of confirmation.

Headnote : Kopnota

Where, in terms of the provisions of s 304(1) of the Criminal Procedure Act 51 of 1977, it must appear to a reviewing Judge 'that the proceedings are in accordance with justice', what is meant is that H those proceedings must be in accordance with real and substantial justice insofar as the interests of that convicted person are concerned. (At 294e.)

Before a Court can vary a magistrate's judgment the proceedings in respect of which have been confirmed by a reviewing Judge the I certificate of the reviewing Judge must be withdrawn either by the reviewing Judge or other Judges of the Division. A certificate can be withdrawn in a proper case. Such a case is where the Judge's attention has subsequently been drawn to an irregularity in the proceedings, where she or he discovers that a mistake has been made or where facts are discovered which, if they had come to her or his notice before confirmation, would have resulted in the withholding of the confirmation. (At 295e - g.) J

2004 (2) SACR p292

Annotations:

Cases cited

Reported Cases

R v Coetzee 1950 (1) SA 101 (C): applied A

R v Pirison 1959 (1) SA 102 (N): applied

S v Madonda 1979 (3) SA 795 (Tk): applied

S v Maseko 1971 (4) SA 475 (T): applied

S v Mbayi 1976 (4) SA 638 (Tk): not B followed

S v Mboyany en 'n Ander 1978 (2) SA 927 (T): considered

S v Mokoena 1975 (4) SA 295 (O): not followed

S v Ngcobo; S v Mzindle; S v Nxusa 1988 (4) SA 374 (N): dictum at 382A - B applied

S v Nkosi (1); S v Nkosi (2); S v Mchunu C 1984 (4) SA 94 (T): applied

S v Zulu 1967 (4) SA 499 (T): not followed.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 304(1): see Juta's Statutes of South Africa 2003 vol 1 at 1-391.

Case Information

Review. The facts appear from the reason for judgment. D

Judgment

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...