IN
THE HIGH COURT OF SWAZILAND
In
the matter of:
THE
KING
vs
JOBHA
MDLULI
DISTRICT
OF MANZINI
REVIEW
CASE NO. 38/89
JUDGMENT
ON REVIEW
(22.2.1989)
DUNN.
J.
The
accused appeared before the Magistrate, Manzini, charged with
possession end cultivation of dagga in contravention of Sections 7
and 2(1)(b) respectively of the Opium and Habit Forming Drugs Act
No.37/1922. The accused pleaded guilty and was sentenced to a total
fine of E210.00 in default of which 200 days imprisonment. The
sentence was imposed on the 9th January 1989 and the Magistrate
ordered that the sentence be backdated to the 30th December 1938.
The
order that the sentence operate retrospectively calls for correction.
Section 318 of the Criminal Procedure and Evidence Act No.67/1933
reads:-
Subject
to Sections 300(2) and 313, a sentence of imprisonment shall take
effect from ana include the whole of the day on which it is
pronounced unless the court, on the same day on which sentence is
passed, expressly orders that it shall take effect from some day
prior to that on which it is pronounced,
2
This
section deals specifically with a sentence of imprisonment and does
not empower a court to order a sentence of a fine to operate
retrospectively. See R v. ALSON MVUBU Review Case No.257/83 and THE
QUEEN v. PATRICK MTHONTA Review Case NO.460/84.
If
it was intended by the Magistrate that the order back-dating the
sentence should only operate in the event of the accused being unable
to raise all or a portion of the fine the order should have been
framed as such.
The
conviction and sentence are hereby confirmed. The order back dating
the sentence is substituted by the following:-If the whole or any
portion of the period of imprisonment has to be served as a result of
the accused's inability to pay the fine, such period of imprisonment
is to be with effect from the 30th
December
1988.
B.
DUNN
JUDGE
