A judge was shocked at the conduct of a magistrate who earlier convicted and sentenced a man who was in possession of dagga, under a section of the Drug Trafficking Act which has in fact been declared unconstitutional 28 years ago.
A magistrate for the district of Chief Albert Luthuli, sitting in Mayflower, convicted Michael Mkhonza in May last year of dealing in drugs (dagga) in contravention of the Drugs and Drug Trafficking Act.
He was sentenced to three years’ imprisonment, which was conditionally suspended for five years. A further sentence of a fine of R5 000 or 24 months’ imprisonment was also imposed on him.
The matter came under review in the Mpumalanga High Court, sitting in Mbombela a year ago. The judge dealing with the matter at the time, sent questions to the magistrate regarding her conviction and sentence of the accused.
The magistrate was given until September 15 last year to answer the questions, but the response was only delivered in February this year.
The matter was subsequently handed to Judge Takalani Ratshibvumo for review.
The transcribed record forming part of the review, reflected that the accused appeared before a magistrate where he indicated that he wanted to conduct his own defence and that he was pleading guilty.
The accused explained to the magistrate that he had received some dagga from someone, while he was taking to another man.
He denied that he was dealing in the dagga, but said he merely took it to someone who had requested it. The dagga weighed 3.6kg.
In the query by the judge to the magistrate the latter was asked to explain how he convicted the accused on his plea, for contravening section 5(b) of the Drugs and Drug Trafficking Act, in circumstances where he vehemently denied that he was dealing in drugs.
He was also asked to clarify the section of that act which he relied upon to presume that the accused was dealing in drugs by virtue of the weight of dagga he carried with him; and whether this was not declared unconstitutional.
The magistrate explained that he only later realised “after the constitutional query of the validity of the section” that he “erroneously applied the section that was declared constitutionally invalid” years ago.
The magistrate said at the time of conviction, he was under the impression that the section was still valid.
Judge Ratshibvumo commented that in 1994, and in separate trials, two accused were convicted of dealing in dagga by magistrates in different districts of the Western Cape. In all these cases, the convictions would not have materialised without the presumptions contained in the relevant section of the Drugs and Drug Trafficking Act.
After expressing doubts on the constitutionality of this section, the high court at the time sent these cases to the Constitutional Court for determination in accordance with the prevailing provisions of the 1993 Constitution.
In its judgment of November 1995, the Constitutional Court declared section 21(1)(a)(i) of the Drugs and Drug Trafficking Act to be inconsistent with the Constitution.
Since that date these sections were declared to be invalid and of no force and effect.
“It is as such inconceivable, that 29 years after this section was declared unconstitutional, it would still find application in a South African court, to the extent that an accused is convicted and given a sentence of imprisonment, without a fine, albeit, suspended,” Judge Ratshibvumo said.
He added that this has to be corrected through setting aside the conviction and the sentence. “This may however be too little comfort for the accused, who may have suffered substantial injustice at this stage,” he said.
The judge ordered that this judgment should be brought to the attention of the Chief Magistrate of Mpumalanga to help identify areas in need of training and refresher courses for the benefit of magistrates and to avoid a recurrence of errors such as what happened in this case.
He subsequently overturned both the conviction and sentence.
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