IN THE HIGH COURT OF SWAZILAND
REVIEW CASE NOS. 20/10, 21/10 & 24/10
In the matter between
REX
VS
BONGINKOSI KUNENE AND ANOTHER ACCUSED
NOMCEBO GABELA ACCUSED
BAFANA DLAMINI ACCUSED
JUDGEMENT
[1] These three rather similar cases came before me on automatic review. They all emanate from the Mbabane Magistrates’ court. Each of the accused faced a charge of contravening section 12 (1) of the Pharmacy Act 38 of 1929 (as amended) in that they were found in unlawful possession of dagga. All three cases were heard or tried by the same senior Magistrate. This latter fact perhaps explains the common irregularity in all of them. For these reasons, I have deemed it proper and convenient to consolidate them and deal with them in one judgement.
[2] With the exception of Bonginkosi Kunene and his co-accused, the accused were unrepresented during their respective trials. Their rights to legal representation and to cross examine witnesses and how to present their case were fully explained to them by the presiding officer. They all said they fully understood their rights in this regard. Again, all accused persons, on being arraigned pleaded guilty to their respective charges and did not lead any evidence rebutting to that led by the crown. Each, however, did lead evidence or make submissions in mitigation of sentence. They were all first offenders and unemployed and had cooperated with the police upon arrest.
[3] Bafana Dlamini, an adult male aged 27 years, was convicted of being found in unlawful possession of 20 kg of dagga. He was, rather harshly, I might add, sentenced to the maximum sentence provided for first offenders; that is to say, to pay a fine of E15,000-00 failing which to serve a term of imprisonment for fifteen (15) years. Two thirds (2/3) of this sentence was conditionally suspended for a period of three years. He had already spent about 20 days in custody awaiting trial. This sentence was handed down on 6th August 2009.
[4] About nine months latter; on 1st April 2010 Bonginkhosi Kunene and Sizwe Simelane, both adult male persons of Newcastle in the Republic of South Africa were convicted of being found in unlawful possession of 59.9 kg of dagga. This (quantity) is just three times the amount of dagga for which Bafana was convicted. They were ordered to pay a fine of E12,000.00 or undergo imprisonment for a period of 12 years. Half of this sentence was suspended on the same conditions as in the Bafana case.
[5] On 6th April 2010, barely 5 days after Kunene’s case, the court sentenced Nomcebo Gabela, a 22 year-old woman, to pay a fine of E12,000.00 or undergo imprisonment for 12 years for being found in unlawful possession of 13.6 kg of dagga. Two thirds (2/3) of the sentence was suspended conditionally for a period of 5 years. The quantity of dagga possessed by Nomcebo is less than a quarter of that possessed by Kunene and his accomplice.
[6] I observe here that section 12(1)(a) of the act prohibits and penalizes the unlawful possession “of a poison or potentially harmful drug.” In Bafana’s case, the charge sheet merely refers to possession of dagga, without stating whether such is a poison or a potentially harmful drug.
[7] A charge sheet must, as a matter of law and common sense, inform an accused in precise and clear words the nature of the charge he is facing or has to meet in court. In casu, the charge sheet ought to have informed the accused that unlawful possession of dagga is prohibited because it is either a poison or a potentially harmful drug. In the other two cases, the crown referred to the dagga, and without any demur from the court or defence, as a potentially harmful drug. This is erroneous. Dagga is described in the Act as a “poison”. It is listed in the Act under the name “cannabis indica (Indian hemp or Cunjah or African dagga or Cape wild dagga) and all solid preparations thereof (except cannabis indica plasters)”. This appears under part 1 of schedule C. Section 10 of the Act provides that all articles stipulated in schedule C shall be deemed to be poisons for purposes of the Act. It is therefore not entirely in accordance with the Act for the charge sheet to refer to dagga as a potentially harmful drug. The Act says it shall be deemed to be a poison. Potentially harmful drugs are different and fall under schedule D of the Act (See section 11).
[8] I am, however, of the considered view that the above incorrect description of the dagga in the particular circumstances of these cases did not result in a failure of justice or that it was so grossly irregular as to cause prejudice to the accused. There was, in any event, no contest as it were, between the crown and the accused herein; in view of the pleas of guilty. It may very well be that in certain or appropriate cases, to refer to the substance or article merely as dagga without specifying its nature, specie or derivative as the act specifies, may not be sufficient; for it is not every and any dagga that is prohibited or classified or deemed as a poison – it is only “cannabis indica and all solid preparations thereof (except cannabis indica plasters).”
[9] So much for the Charge Sheet and now for the sentences meted out by the learned senior magistrate. His jurisdiction regarding sentence in criminal matters is regulated by the empowering or enabling legislation. In terms of Legal Notice Number 57 of 1988 a Senior Magistrate may not impose a sentence in excess of 7 years. However, it is not uncommon that a particular Act of Parliament may in specified cases specifically empower a Magistrate with additional or increased jurisdiction regarding sentence. I have not seen any provision in the relevant Act herein or in any other piece of legislation that specifically confers increased sentencing jurisdiction on a Senior magistrate in dealing with cases under the Pharmacy Act. The Legislature could for example have said any court convicting an accused for any contravention of the Act shall have the power to impose any of the penalties stipulated in the Act; if the desire was to cloth a magistrate court with increased sentencing powers in respect of a contravention of the Act.
[10] In the case of R v Sanele Vilane and another Review Cases 55 and 57 of 2009, dealing with the same point, I had occasion to say the following which I hereby re-say:
“If Parliament wanted to empower a Magistrate with jurisdiction to impose the stated maximum sentence or a more severe sentence it would have specifically said so. Words such as “notwithstanding any other law regarding the criminal jurisdiction of the court” or words to that effect are often used to express such legislative intent.”
See also Rex v Mangaliso Samson Mazibuko Review case No. 18/10, judgement by this court dated 10th May, 2010.
A provision in point is Section 19 of the Stock Theft Act 5 of 1982 (as amended) which specifically provides:
“19. Notwithstanding anything in any other law, a Magistrate’s Court of the First Class shall have jurisdiction to impose upon a person convicted of an offence in respect of which the penalty is prescribed in section 18(1) any penalty in accordance with that section and to order the payment of any compensation under section 20.”
(The underlining is mine).
[11] For the foregoing reasons, the sentence passed by the court in each of these cases under review can not be allowed to stand. Each sentence is set aside. The conviction in each case is, however, upheld.
[12] In view of my conclusion in the preceding paragraph, the appropriate order is to remit the cases to the trial magistrate for him to reconsider sentence. This is the order that I make in respect of Bafana Dlamini and Nomcebo Gabela’s cases. There are, however, factors that militates against such an order in respect of the third case.
[13] As stated above, Kunene and Simelane were peregrini of this court. They were from Newcastle in neighbouring South Africa. Whilst it is indicated in the Charge Sheet that they were from Osizweni Township no specific physical address is given. It would be therefore rather onerous and time consuming to try and compel them to return to this jurisdiction to receive their sentences afresh. Extradition proceedings, preceded of course by appropriate diplomacy and investigations would be necessary. The time, work and possible expenses involved would be substantial and this would not be in the interests of justice. The courta quo having committed an irregularity or erred herein, this court is at large to consider sentence anew. I hereby do so.
[14] The two accused persons were found in possession of a substantial quantity of dagga; 59.9 kg to be precise. They were ordered after suspension of part of their sentences to pay a sum of E6000-00 failing which to serve a term of 6 years in prison. The sentence of E12000.00 or twelve (12) years of imprisonment is too harsh in my judgement. It is too close to the maximum sentence stipulated in the law and one immediately wonders what sentence would the learned Magistrate have imposed if he had immediately after this case dealt with two similarly situated individuals but who were in possession of double the quantity of dagga, 120 kg? I fail to understand why a first offender convicted of possessing 60kg or 20kg of dagga should be visited with the maximum sentence stipulated for first offenders. That a portion of that sentence is suspended makes very little difference. A suspended sentence still remains a real and substantive one. This is, however, water under the bridge now as I have already set aside all three sentences passed by the court a quo.
[15] Bearing in mind all the relevant facts in this case (Kunene’s), I am of the view that the unsuspended fine of E6,000-00 or period of imprisonment for 6 years in respect of each of the accused herein would meet the justice of this case. I accordingly set aside the sentence imposed by the trial court on Kunene and Simelane. Instead they are each sentenced to pay a fine of E6000-00 failing which to serve a term of imprisonment for six (6) years. This sentence shall be deemed to have commenced on 31st March 2010, that being the date on which both accused were apprehended and detained into custody.
MAMBA J
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