Marijuana. Picture: iStock
A man’s jail sentence over dagga has been overturned after a magistrate applied a law that was declared unconstitutional 29 years ago.
Celucolo Michael Mkhonza was sentenced to three years in prison by the Chief Albert Luthuli Magistrate’s Court in Mpumalanga on 10 May 2023, following his arrest for marijuana (dagga) possession three days prior.
His sentence was conditionally suspended for five years.
Additionally, the accused was fined R5 000 or given the alternative of serving 24 months in prison.
Mkhonza appeared before Acting Magistrate MH Ledwaba on 8 May 2023, where he informed the court that he would represent himself and intended to plead guilty to the charge against him.
The accused admitted to possessing 3.26 kilograms of marijuana, which he was transporting to someone in Witbank.
He also acknowledged receiving the dagga from “this other person from Swaziland”, but denied that he was involved in drug dealing.
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The magistrate subsequently convicted Mkhonza of drug dealing under the Drugs and Drug Trafficking Act.
However, on 6 September 2023, the presiding officer was asked to clarify the legal basis for his conviction and explain which section of the Act he relied on to conclude that Mkhonza was dealing drugs based on the quantity of marijuana he possessed.
Ledwaba responded to the high court’s queries on 12 February 2024.
In his letter, the magistrate admitted that he had applied section 21(1)(a) of the Act, but later realised that this section had been declared constitutionally invalid.
This section states that where an accused is found in possession of marijuana in excess of 115 grams, it shall be presumed that the accused was guilty of dealing drugs.
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He explained that he had been under the impression that the section was still valid at the time of the conviction.
“I erred in applying the said section and only realised after the query of the court,” the one-page letter read.
“I shall abide by the decision of the honourable review judge.”
Ledwaba concluded by apologising for his delayed response, which came after the 15 September deadline.
The magistrate stated that he had only received the record with the query on 29 January.
In the review judgment, Acting Deputy Judge President Takalani Ratshibvumo highlighted that the particular section was declared unconstitutional in a 1995 ruling delivered by the Constitutional Court (ConCourt).
“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,” Ratshibvumo said in his judgment on Monday.
The acting judge stated that the only way to correct the situation was to overturn Mkhonza’s conviction and sentence.
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“This may however be too little comfort for the accused, who may have suffered substantial injustice at this stage.
“As indicated above, the accused in this case was also sentenced to a fine with an alternative prison term, of which it remains unknown if he paid the fine or underwent the prison term,” the judgment reads.
He criticised Ledwaba for failing to answer the question of whether Mkhonza had paid his R5 000 fine “despite the belated response”.
The acting judge also noted that the accused may have suffered an injustice as a result of the delays.
“It is not clear as to where the record got delayed after it was sent back as the magistrate indicated that he received it more than four months after it was dispatched from the office of the review judge.
“Investigating the source of the delay at this stage would only serve to delay this judgment, and that is not warranted.
“In case the accused could not afford a fine, he may have served the sentence already and possibly released on parole by now.”
In addition to setting aside Mkhonza’s conviction and sentence, Ratshibvumo ordered an investigation into the delays.
A report detailing the findings and outlining remedial measures to prevent similar delays in the future must be submitted to the high court within 30 days of the judgment.
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