Man’s cannabis sentence set aside after magistrate admitted she erred in her ruling

A man who was arrested for carrying cannabis has had his conviction and sentence set aside after the magistrate who nailed him admitted a year later she did not know the law she used against him had been invalid for almost three decades.

The review judgment panel led by acting deputy judge president TV Ratshibvumo, and acting judge N Mazibuko at the Mpumalanga High Court this week set aside a three-year sentence and a R5,000 fine handed to Celucolo Michael Mkhonza by acting magistrate MH Ledwaba in May last year.

Mkhonza was convicted of dealing in drugs after he was busted by soldiers in possession of 3,26kg of cannabis, which he said he had brought from eSwatini for a friend in Emalahleni. 

At the time, Mkhonza had been representing himself in court and he conceded and also apologised for carrying cannabis but denied he was a drug dealer. He pleaded guilty to the offence and was immediately convicted and sentenced. 

“After questioning the accused, the court is satisfied the accused admits all the allegations in the charge, though he does not directly admit he was dealing in dagga. The presumption in the Act, Act 140, 1992 is very clear that the weight of dagga that he was carrying is presumed he was dealing in dagga. Accused is found guilty as charged," ruled Ledwaba at the time.”

However, the sentence was sent for review at the SCA Appeals Court where the director of public prosecutions (DPP) was asked for an opinion and Ledwaba was also asked to explain the sentence and conviction she made against Mkhonza.

“The magistrate was asked to explain how she 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.

She was also asked to clarify the section of that Act which she relied on to presume that the accused was dealing in drugs by the weight of cannabis he carried with him; and whether the same was not declared unconstitutional. In essence, he was asked to indicate if the questions asked and the responses given by the accused sufficed for him to be convicted of dealing in drugs,” read the judgement from the panel. 

Ledwaba conceded she erred in her ruling by using an outdated piece of law. 

“It is humbly submitted that the accused denied dealing in cannabis in contravention of section 5(b) of Act 140 of 1992. I followed section 21(1)(a) of Act 140 of 1992 at the time of my judgment, which I later realised, after the constitutional query of the validity of the section by the Honourable Judge. Section 21(1)(a) of Act 140 of 1992 of which I unequivocally agree with the Honourable Review Judge it was declared constitutionally invalid. I erred in applying the said section and only realised after the query of the court.

“I discovered that I erroneously applied the section that was declared constitutionally invalid after the query of the Review Judge. It were (sic) not the answers advanced by the accused, but the presumption of dealing in terms of section 21(1)(a) of Act 140 of 1992, which I now know it was declared constitutionally invalid. At the time of conviction, I was still under the impression that the section was still valid. I shall abide by the decision of the Honourable Review Judge,” responded Ledwaba.

Ratshibvumo said it was 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.

“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... The judgment should also 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 the magistrates, and to avoid a recurrence of errors such as what happened in this case,” ruled Ratshibvumo.