IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

A286/16

9/5/16

CASE NO: R75/16

Not reportable

Not of interest to other judges

In the matter between:

THE STATE

and

RICHARD NDLOVU                                                                                                 Accused

JUDGMENT

Tuchten J:

1. This matter was submitted for special review by the chief magistrate at Mbombela (Nelspruit). The accused, who was unrepresented, pleaded guilty in the magistrate's court at Mbombela under case no.2595/2015 to a charge, of contravening s 4(b) of the Drugs and Drug Trafficking Act, 140 of 1992. It was alleged that the accused possessed 0,24gm of dagga. The accused was convicted on a plea of guilty and sentenced to 6 months imprisonment, suspended for a period of 18 months on certain conditions.

2. Unfortunately, the proceedings were affected, due to the presiding magistrate's inexperience, by a number of irregularities: the sentence exceeded the court's jurisdiction; it was not established that the plea of guilty was tendered voluntarily; and the rights of the accused regarding appeal and the process of review were not explained to the accused.

3. The chief magistrate asks that the sentence be set aside and replaced with an appropriate sentence. However, in light of the irregularities, particularly in relation to the tendered plea, I consider that the proper course would be to set aside the entire proceedings and remit them to the court below to start the proceedings afresh before another magistrate.

4. As the facts are clear and the order I intend making is in favour of the accused, I consider it unnecessary to obtain the views of the Director of Public Prosecutions before I dispose of the matter.

5. I accordingly make the following order:

1. The proceedings in Mbombela case no 2595/2015, S v Richard Ndlovu, are hereby set aside.

2. The case is remitted to the Mbombela magistrate's court for trial afresh. The trial must serve before a magistrate other than the magistrate who heard the proceedings which have been set aside pursuant to paragraph 1 of this order.

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NB Tuchten

Judge of the High Court

5 May 2016

___________________

EM Kubushi

Judge of the High Court

5 May 2016