IN THE HIGH COURT OF ESWATINI
Review Case No. 10/2019
In the matter between
Neutral Citation: Chicco Shivambo and Rex
(10/2019)  SZHC 96 (05 June 2019)
Coram : MAMBA J.
Considered: 05 JUNE 2019
Delivered : 05 JUNE 2019
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 E2000.00 or a term of imprisonment without an option of a fine or whipping.
 This matter comes before me on automatic review. It is one of many cases that come before this Court on automatic review after a rather long time from the date on which they were finalised by the Court below. Again, as in the several cases of this nature, there is, regrettably, no explanation what has caused these delays. The present case was concluded by the court a quo on 30 December 2017. The typed record of the proceedings is a mere 11 short lines. The record, however, could only be placed before a Judge for review on 04 June 2019. The delay is not explained. This is a real serious indictment on our system on criminal review which calls for urgent interventions to be put in place to correct this.
 The accused, who was unrepresented, appeared before the Magistrate’s Court in Manzini on 30 December 2017, facing two counts. The first count alleged a contravention of Section 122 (1) and (2) of the Road Traffic Act 6 of 2007. The charge sheet alleged that the accused had, on that date, driven a motor vehicle on a public road whilst he was under the influence of intoxicating liquor or drugs. On the second count, it was alleged that he had driven a motor vehicle, on a public road, whilst he was not licensed to do so.
 Before being arraigned, he was duly apprised of his constitutional rights to legal representation. He opted to conduct his own defence. On being arraigned, he pleaded guilty on both counts and the Public Prosecutor accepted his plea and led no evidence to prove his case. In turn, the Learned trial Magistrate convicted him on both counts as charged.
 The conviction of the accused appears to be in order or justified.
 On the first count; that of driving whilst under the influence of intoxicating liquor or drugs, he was sentenced to pay a fine of E5000.00 failing which to undergo imprisonment for a period of 2 years. He was ordered to pay a fine of E500.00 or a period of imprisonment for 3 months on the second count.
 The penalty imposed in respect of the second account is in order. The sentence on the first count is irregular or incompetent inasmuch as it is contrary to the provisions of Section 238 (1) of the Criminal Procedures and Evidence Act 67 of 1938 (as amended). Because the Crown did not lead any evidence and the accused was simply convicted on his own plea, the sentence imposed on him should not have been more that E2000.00 or 2 years of imprisonment. Plainly therefore, the fine component or portion of that sentence is irregular or incompetent. The Court has, on countless occasions or cases repeated these provisions of the law. It is disturbing indeed that these Judgments go unheeded by some of our lower Courts.
 In Rex V Sipho Ntshangase (126/17  SZHC 227 (13 February 2017), this court stated as follows:
‘ The sentence imposed in respect of count one is plainly incompetent. The reason for this is simply that the crown did not offer any evidence before the Learned Magistrate. Because of this fact, the matter was dealt with under Section 238 (1) (b) of the Criminal Procedure and Evidence Act 67 of 1938, which stipulates in peremptory terms that in such a case any sentence imposed in respect of a single count may not exceed E2000.00 or 2 years of imprisonment. Countless judgments have been made by the Supreme Court and this court on this issue. It is desperately disappointing that after all these judgments, such elementary errors still plague our lower courts. These errors greatly and gravely affect the never ending back log of cases before our courts. (For cases on Section 238 (1) (b) of the Criminal Procedure and Evidence Act 67 of 1938 see; Rex v Mxolisi 2Bob Shongwe (04/15)  SZHC 48 (23 March 2015) and the cases cited therein.’
These remarks are apposite in this case and are hereby repeated.
 For the above reasons, the following order is made:
8.1 The Conviction of the accused is confirmed (on both counts).
8.2 The sentence meted out in respect of Count 2 is upheld or confirmed.
8.3 The penalty imposed on Count 1 is hereby set aside and substituted with the following:
The accused is ordered to pay a fine of E2000.00 failing which to serve a term of 2 years of imprisonment.
8.4 A sum of E3000.00 is to be refunded to the accused; (this being the difference between the fine imposed by the lower Court and that which ought to have been imposed).
 The accused is to be subpoenaed by the Crown to have this Judgment explained to him by the Learned trial Magistrate. Thereafter, the record is to be re-submitted to this Court for further orders.