Rex v Bulunga (2530/2017) [2017] SZHC 185 (11 September 2017);

 

 

 

IN THE HIGH COURT OF SWAZILAND

 

JUDGMENT

                                                                  

Review Case No. 2530/2017

 

In the matter between

 

 

Rex

 

vs.

 

Noel Mthobisi Bulunga

         

Neutral citation:            Rex v Mthobisi Bulunga (2530/2017) [2017] SZHC 185 (11 September 2017)

 

Coram:                          MAMBA J

 

Heard:                           11 September 2017      

 

Delivered:                      11 September 2017

 

 

                                     

[1]        This matter comes before me on automatic review.  The accused person appeared before a Magistrate in Manzini on 12 September 2016 on a charge of contravening Section 91 (1) as read together with Section 122 (1) of the Road Traffic Act No.6 of 2007.  The allegation against him was that the accused had on 10th September 2016 driven a motor vehicle whilst under the influence of intoxicating liquor or drugs.  The Crown also alleged that the alcohol content in his blood had exceeded the permissible limit of 0.38mg/litre.

[2]        Before arraignment, he was apprised of his rights to legal representation and he opted to conduct his own defence.  On being arraigned he pleaded guilty to the charge.  The Crown accepted his plea and did not offer any evidence in support of its case. The accused was accordingly found guilty as charged on his own plea.

 

[3]        After mitigation the accused was sentenced to pay a fine of E3, 000-00 failing which to undergo imprisonment for a period of twelve months.  He paid the fine on the same day and was accordingly released.

 

[4]        The sentence meted out by the learned trial magistrate is not in accordance with the law.  The Crown having accepted the plea by the accused, this meant that the accused was dealt with under Section 238 (2) of the Criminal Procedure and Evidence Act 67 of 1938; specifically, the proviso thereto.  In accordance with this proviso the sentence imposed on the accused could not exceed E2, 000-00 or twenty four months imprisonment.   In the present matter the fine is clearly in excess of the maximum fine I have already referred to.  This sentence cannot stand and is accordingly set aside.

 

[5]        The accused person is entitled to a refund of E1, 000-00 being the difference between the fine imposed by the court a quo and the maximum fine that should have been imposed.  It is accordingly ordered that a sum of E1, 000-00 be refunded to the accused, otherwise his conviction is confirmed.

 

 

MAMBA J