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[2011] ZAGPJHC 119
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S v Nel (D418/10) [2011] ZAGPJHC 119; 2013 (1) SACR 155 (GSJ) (16 September 2011)
NOT
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
High Court Ref No: 165/11
Magistrate’s
Serial No: 07/11
Special Review Case No:
D418/10
DATE:16 September 2011
Magistrate
KEMPTON
PARK
THE STATE v FRANCO JOHANNES NEL
REVIEW JUDGMENT
LAMONT, J
:
[1] The accused was convicted of
contravening section 5(b) read with various other sections of Act No.
140 of 1992 “the Act”
in that on or about 15 February
2010 and at or near OR Tambo International Airport he had imported or
exported 424,74 grams of
cocaine. The accused was sentenced in terms
of section 276(1)(h) of Act No. 51 of 1977 to 3 years correctional
supervision.
[2] The Chief Magistrate forwarded the matter to us on review in
terms of section 304(4) of Act 51 of 1977 as he doubted whether
or
not the sentence imposed was appropriate in the circumstances.
[3] In terms of section 17(e) of the Act when a person is convicted
of contravening section 5(b) of the Act such person shall
be liable
to imprisonment for a period not exceeding 25 years or to both such
imprisonment and such fine as may be deemed to be
appropriate.
[4] The section stipulates the
maximum term of imprisonment for a period of up to 25 years for an
offender. Such imprisonment must
be imposed in all such convictions.
See
S v Tsita
[2003] JOL 11720
(E).
[5] Imprisonment means keeping
in prison and on the face of it does not include being kept in a
“prison” in the circumstances
contemplated by
correctional supervision. As to the definition of a prison see
Oxford English
Dictionary
, 6
th
Edition.
[6] In order to determine whether or not correctional supervision
constitutes an appropriate sentence even if it is not imprisonment
as
defined by section 17(e) of the Act it is necessary to have regard to
the provisions of the
Criminal Procedure Act No. 51 of 1977
.
[7]
Section 276
of the
Criminal Procedure Act reads
as follows:
“
276.
Nature of punishments.—(1) Subject to the provisions of this
Act and any other law and of the common law, the following
sentences
may be passed upon a person convicted of an offence, namely—
(b) imprisonment, including imprisonment for life or imprisonment
for an indefinite period as referred to in section 286B (1);
(c) periodical imprisonment;
(d) declaration as an habitual criminal;
(e) committal to any institution established by law;
(f ) a fine;
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under
correctional supervision in the discretion of the Commissioner or
a
parole board.
(2) Save as is otherwise expressly provided by this Act, no
provision thereof shall be construed—
(a) as authorizing any court to impose any sentence other than or
any sentence in excess of the sentence which that court may impose
in
respect of any offence; or
(b) as derogating from any authority specially conferred upon any
court by any law to impose any other punishment or to impose any
forfeiture in addition to any other punishment.
(3) Notwithstanding anything to the contrary in any law contained,
other than the Criminal Law Amendment Act, 1997 (Act No. 105 of
1997), the provisions of subsection (1) shall not be construed as
prohibiting the court—
(a) from imposing imprisonment together with correctional
supervision; or
(b) from imposing the punishment referred to in subsection (1) (h)
or (i) in respect of any offence, whether under the common law
or a
statutory provision, irrespective of whether the law in question
provides for such or any other punishment: Provided that
any
punishment contemplated in this paragraph may not be imposed in any
case where the court is obliged to impose a sentence contemplated
in
section 51 (1) or (2), read with
section 52
, of the
Criminal Law
Amendment Act, 1997
.
276A. Imposition of correctional supervision, and conversion of
imprisonment into correctional supervision and vice versa.—(1)
Punishment shall, subject to the provisions of
section 75
of the
Child Justice Act, 2008
, only be imposed under
section 276
(1) (h)—
(a) after a report of a probation officer or a Correctional
official has been placed before the court; and
(b) for a fixed period not
exceeding three years, or in the case of a conviction for any offence
referred to in the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007
, for a fixed period not exceeding five years.
”
[8] As appears from
section 276(3)(b)
correctional supervision is a
sentencing option available to be imposed irrespective of anything
else provided for in any other
section in any law except where such
other law requires the mandatory minimum sentence in terms of
section
51(1)
or (2) of Act 105 of 1997.
[9] Accordingly the option of
imposing correctional supervision is available save where there is a
mandatory minimum sentence as
provided for in Act 105 of 1997.
[10] Once correctional supervision is available to the court the
court must apply the normal sentencing rules and in its discretion
consider whether or not such sentence is appropriate or not.
Correctional supervision can be imposed in respect of any offence
even the so-called more serious offences.
[11] The sentence was imposed
after the appropriate procedural steps had been taken and in
accordance with the magistrate’s
discretion duly exercised in
relation to punishment.
[12] Courts have in the past
imposed correctional supervision as an appropriate sentence in
respect of convictions under section
5(b) of Act 140 of 1992. See
for example
S v Harding
1996 (1) SACR 503
(C) at 510.
[13] The Supreme Court of Appeal
did not impose correctional supervision in the matter of Abrahams but
considered it as a sentencing
option. See
S
v Abrahams
1996 (1)
SACR 570
(A).
[14] It is apparent from the
aforegoing that correctional supervision is a competent sentencing
option in respect of a conviction
in terms of section 5(b) of Act 140
of 1992.
[15] It is accordingly my view that the proceedings in this case are
in accordance with justice.
[16] I accordingly confirm both the conviction and sentence.
_____________________________
C
G LAMONT
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
_____________________________
R
MATHOPO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE STATE
....................
T
E DICKER
…...................................................................
R
BESTER
NO APPEARANCE FOR ACCUSED