In the matter between:
THE MAGISTRATE THABA-TSEKA
(Mr Kolisang) 1st Respondent
THE CLERK OF COURT (THABA-TSEKA
MAGISTRATE 2nd Respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS 3rd Respondent
Coram: Hon. Hlajoane J
Date Hearing: 21st February, 2012.
Date of Judgment: 21st February, 2012.
Application for review – Difference between Review and Appeal – Whether case before Court is for Review or Appeal – Applicant not denying commission of offence but challenging decision – court exercising its Judicial discretion to correct the sentence in terms of Amendment of S 43 of Internal Security (Arms and Ammunitions/ (Amendment) Act 4 of 1999.
 The Applicant had been charged before the Resident Magistrate of the district of Thaba-Tseka with the offence of contravening Section (3) (2) (9) of Internal Security Arms and Ammunition Act No.17 of 1966 as amended byAct No.4 of 1999.
 The allegations being that the applicant was found in wrongful and unlawful possession of a 9mm firearm with 18 ammunitions without holding a firearm certificate.
 The magistrates have designed a form at that area of Thaba-Tseka in instances where proceedings will have been conducted in the absence of an interpreter. The said form was used in this case. The form is said to be designed in line with Legal Notice No.76 of 2006.
 According to how the form is designed the applicant after the charge was put to him was accordingly informed of his right to legal representation by a lawyer of his choice and of his right to apply for bail. Accused opted to proceed with the case unrepresented.
 Applicant pleaded guilty to the charge and an outline of facts was made by the prosecution. The record reflects that applicant admitted the outline as correct.
 He was found guilty as charged and after being found to be a first offender he was sentenced to a one year term of imprisonment without an option of a fine.
 In his application for review the applicant has pointed out to some irregularities which he said the magistrate committed in dealing with his case.
 Among others, the applicant said the magistrate misdirected himself in not explaining to him the nature and consequences of the plea of guilt.
- That it was wrong to have said there was bad usage of such firearm.
- Court failed to take into account the mitigating factors.
- Court failed to consider the tendering of plea of guilt in the passing sentence.
- Court having failed to consider if plea was free and voluntary as had been influenced by the investigating officer, with the promise of getting an option of a fine.
- That the Court did not take any effort in ensuring that applicant signed the summary of facts which were reduced into writing.
- The Court failing to consider whether facts outlined disclosed an offence.
 When looking at all what the applicant is complaining about as irregularities the Court finds that what he is challenging is the decision arrived at by the trial Court. He opted to proceed unrepresented. He is not denying the commissioner of the offence but only that he had hoped for an option of a fine.
 The Court would not have interfered with the sentence passed by the trial Court had it not been because on its checking on the relevant Act as amended under which the applicant was charged the Court realized that the prescribed penalty was less than what the trial Court imposed.
 The Court in the exercise of its discretion confirmed the conviction but interfered with the sentence imposed.
 Section 43 (1) as amended by Act 4 of 1999 of The Internal Security (Arms and Ammunition) (Amendment) Act 4 of 1999 has amended the penalty for contravening section 3 (2) of the Act to M500.00 or six months imprisonment.
 The sentence so imposed by the trial Court is set aside and replaced by one of M500.00 or six months imprisonment.
For Applicant: Mr Mohanoe
For Respondent: Mr Mahao
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