IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE REVIEW CASE NO. 04/2015
In the matter between:
MXOLISI 2-BOB SHONGWE
Neutral citation: Rex v Mxolisi 2-Bob Shongwe (04/15)  SZHC 48 (23 March 2015)
CORAM MAMBA J
CONSIDERED : 23 MARCH 2015
DELIVERED: 23 MARCH 2015
Criminal Procedure - sentence – application of section 238(1) of the
Criminal Procedure and Evidence Act 67 of 1938 (as amended).
Accused tried in a Magistrate’s Court. Where accused pleads guilty and the Crown accepts his plea and tenders no evidence in support of its case, the court may not impose a sentence in excess of E2 000.00 or a term of imprisonment without an option of a fine or whipping.
 This matter comes before me on automatic review after the accused was convicted for a contravention of section 12 (1) (a) of the Pharmacy Act 37 of 1929 (as amended). He was convicted of having been found in unlawful possession of 37 blocks of dagga weighing a total of 9.19kg. The offence is alleged to have occurred at the Ngwenya Border Gate on 13 February 2015. The court record, however, indicates that he appeared before the court for the first time on ‘05/02/2015’. Nothing turns on this apparent anomaly in this judgment though.
 At his trial the accused was represented by Counsel. He pleaded guilty to the charge and his plea was accepted by the crown; meaning that the crown tendered no evidence in support of its case against him. The accused was accordingly found guilty on his own plea.
 During mitigation of sentence, it was brought to the knowledge of the presiding officer that the accused was not a first offender. This was not disputed by the defence. His record of previous conviction indicated that he had been found guilty and sentenced to pay a fine of E1500.00 or six months imprisonment for a similar offence on 20 November 2014.
 Submissions regarding sentence were done and completed by Counsel on 05 February 2015 and the matter was postponed to the next day for sentence. In a written judgment, the learned trial magistrate sentenced him, surprisingly, without demur by any one, to pay a fine of E5000.00 failing which to serve a term of imprisonment for five (5) years.
 The sentence stated above is plainly irregular. The crown accepted the plea by the accused and tendered no evidence. The accused was tried by an ordinary magistrate. He or his trial, was dealt with under the provisions of section 238 (1) (b) of the Criminal Procedure and Evidence Act 67 of 1938 (as amended). Not long ago in Mbongeni Mtsetfwa v Magistrate Simangele Mbatha N.O and Another (150/2014)  SZHC 343 (05 September 2014) this court made the following observations, which are herein repeated:
‘ As the Crown did not lead any evidence in support of its case and the accused was therefore convicted and dealt with in terms of section 238(1) (b) of the Criminal Procedure & Evidence Act 67 of 1938, the court a quo erred in imposing a straight custodial sentence on him, notwithstanding that this was in addition to the fine of E2 000.00. A lot of ink has been spilt in this jurisdiction on the meaning and application of section 238(1) (b) of Act 67 of 1938 (as amended). That section provides as follows:
“238(1) If a person arraigned before any court upon any charge has pleaded guilty to such charge, or has pleaded guilty to having committed any offence (of which he might be found guilty on the indictment or summons) other than the offence with which he is charged, and the prosecutor has accepted such plea, the court may, if it is –
(b) a Magistrate’s Court other than Principal Magistrate’s Court, sentence him for the offence to which he has pleaded guilty upon proof (other than the unconfirmed evidence of the accused) that such offence was actually committed;
Provided that if the offence to which he has pleaded guilty is such that the court is of the opinion that such offence does not merit punishment of imprisonment without the option of a fine or of whipping or of fine exceeding E2 000.00; it may, if the prosecutor does not tender evidence of the commission of such offence, convict the accused of such offence upon his plea of guilty, without other proof of the commission of such offence, and thereupon impose any competent sentence other than imprisonment or any form of detention without the option of a fine or whipping or a fine exceeding E2 000.00, or it may deal with him otherwise in accordance with law.”
 From the above-cited section, it is plain that where an accused is dealt with under section 238(1) (b) of the Act, he may not be sentenced to a term of imprisonment or any other form of detention without the option of paying a fine. See also Dlamini William Touch v R (22/2002), dated 15 November 2002 where Tebbutt JA categorically stated that –
“It is clear from the aforegoing that on the appellants plea of guilty, accepted as it was by the prosecution, the court a quo, being the High Court, could sentence him without hearing evidence. It could, however, in the absence of evidence of the commission of the offence with which he was charged not sentence him to imprisonment.”
See also R v Mfanukhona Nhlabatsi, Review Case No.185/2007, judgment of this court delivered on 12 December 2007 and Thulani Motsa and 2 Others v R, Criminal Appeal 30/2006, judgment delivered on 04 August 2006 and the cases therein cited. The learned trial magistrate was therefore in error in imposing the three month custodial sentence, without a fine, on the accused. This portion of the sentence was clearly incompetent and is hereby quashed or set aside.’
 From the above cases, it was not competent for the court a quo to impose the above sentence on the accused. The fact that the accused was not a first offender was irrelevant. It counted for nothing. The court’s sentencing powers were restricted or limited to a sentence of a fine not exceeding E2000.00 or 2 years of imprisonment.
 For the foregoing reasons, the conviction of the accused herein is confirmed. The sentence imposed on him is, however, set aside. The matter is remitted to the trial magistrate for him to reconsider the issue of sentence and thereafter to resubmit the matter to this court on automatic review.