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[2020] ZAGPJHC 348
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Manganye v S (A209/2019) [2020] ZAGPJHC 348 (14 September 2020)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES/NO
(4)
14 September 2020
CASE
NO:A209/2019
In
the matter between:
TEBOGO
MANGANYE
APPELLANT
And
THE
STATE
RESPONDENT
Summary:
Appeal against
sentence. Principles governing sentencing restated. The appellant
charged of contravening Section 5 (b) read
with section 17 and 25 of the Drugs and Drug Trafficking Act,
convicted and sentenced
to 18 years
.The
sentence set aside on the ground that the court a quo failed to
properly apply the principles of sentencing. The sentence set
aside
and replaced with the sentence of 4 years, with 1 year suspended for
5 years.
This
judgment was handed down electronically by circulation to the
parties' legal representatives by email. The date for hand-down
is
deemed to be on 14 September 2020.
JUDGMENT
VUKEYA
AJ
Introduction
[1]
This is an appeal only on the sentence which
served before this court with leave of the court a quo. The appeal
was with the consent
of both parties considered on the papers
properly before this court, in particular the heads of argument which
were electronically
filed on caselines.
[2]
The
appellant in this matter was convicted in the Orlando Magistrate’s
Court on a charge of contravening Section 5 (b) read
with section 17
and 25 of the Drugs and Drug trafficking Act,
[1]
(Dealing in drugs) after he was found with 0.57 grams of heroin
(diamorphine). He was sentenced to imprisonment with no option
of a
fine. He now in this appeal pleads for a lesser sentence than what
the court a quo imposed on him.
[3]
The appellant was legally represented and pleaded
not guilty to the charges.
Background
facts
[4]
On 22 January 2018 the appellant was arrested at
Diepkloof Zone 2 as the police were patrolling in the area. The
appellant was the
only person amongst a number of people who saw the
police and started running away. The police gave chase and
apprehended him.
They searched him and found in his person 10 small
plastic bags containing heroin and cash to the value of R 288, 00.
The contents
of these small plastic bags of heroine were put together
and weighed and were found to be weighing 0.57 grams.
[5]
As stated above the appellant was convicted for
dealing in drugs and sentenced to 18 years imprisonment without an
option to pay
a fine.
Grounds
for appeal
[6]
The appellant contends that the court a quo
misdirected itself by over-emphasizing the interests of society and
failing to sufficiently
take into consideration his personal
circumstances. It has been submitted on the appellant’s behalf
that he is a 23 year
old first offender and because of his youthful
age, there exist real prospects of him being rehabilitated. He
is a care giver
to his 4 year old daughter whose mother does not
contribute to her upbringing. It is further submitted that the
sentence
of 18 years imprisonment is shockingly inappropriate as it
is disproportionate to the value of the drugs found with the
appellant
and was imposed without due consideration of his personal
circumstances.
[7]
The respondent conceded in the heads of arguments
that the sentence imposed is shockingly inappropriate and has
submitted that it
stands to be set aside and replaced with a lesser
sentence.
The
legal principles
[8]
In
S
v De Jager and Another,
[2]
it
was held that the duty of sentence falls within the judicial
discretion of the trial court. The appeal court will only interfere
if the trial court has misdirected itself or has committed an
irregularity during the sentencing process which is prejudicial to
the accused and requires interference or the sentence is so
disturbing that it induces a sense of shock.
[9]
The main issue in the present matter is whether a
sentence of 18 years of direct imprisonment is a suitable sentence
for a first
offender convicted for dealing in drugs where the value
of the drugs in question is 0.57 grams. The court must first
determine
if there are any grounds that justify interference in the
case at hand before deciding whether the sentence can be interfered
with.
[10]
It is
trite law that when a court passes sentence, it has to consider the
triad which comprises of the accused’s personal
circumstances,
the nature and seriousness of the offence he has committed as well as
the interests of the society.
The approach
to adopt to be adopted in this regard is that which set out in
S
v Zinn.
[3]
In
that case court held that
i
t
is expected of the court to weigh and balance all the relevant
factors in considering the sentence to impose. The court cautioned
against one factor being unduly accentuated at the expense of and to
the exclusion of the others.
[11]
When determining sentence the court a quo took
into consideration that the provisions
section 17
(e) of the
Drugs and Drug Trafficking Act 140 of 1992
prescribes a sentence of
25 years imprisonment for persons convicted of dealing in drugs. It
is apparent from the reading of the
judgment that it paid little
attention to the appellant’s personal circumstances. The
appellant’s personal circumstances
were not given the
appropriate weight. It stands out from the appellant’s personal
circumstances that he is a first offender
and that he is a primary
care giver to a 4 year old minor child.
[12]
Being a first time offender is a mitigating
factor on its own although it does not automatically entitle an
offender to a non-custodial
sentence. This factor is looked at
together with others and it does not necessarily over-ride other
factors to be taken into
consideration when determining sentence. The
real purpose of bringing up that one is a first offender is to
actually bring to the
court a clear picture of the person the court
is about to sentence. In the case of the appellant, he has never been
in conflict
with the law before and subsequent to his arrest he got
convicted for dealing in drugs to the total value of 0.57 grams.
Clearly
the appellant is a chancer who was probably trying his luck
with drugs.
[13]
Before his arrest the appellant was working at a
car wash earning approximately R1 000.00 per month, with which he
took care of
himself, his daughter; his nephews and nieces. The court
a quo drew a negative inference from the fact that the appellant
works
at a car wash and concluded that a car wash and drugs go
hand-in-hand. This statement is an unfortunate conclusion and unfair
to
the appellant because there was no evidence that the appellant was
found selling drugs at the car wash. All what the court a quo
needed
to do was to consider that even with the low levels of employment we
are experiencing as a country, the appellant was trying
his best to
survive and maintain his family with the little amount he was getting
from working at the car wash. The sentence imposed
on him was done
without thorough consideration of those facts and obviously with an
over-emphasis on the seriousness of the offence
and the fact that the
court can impose a sentence of up to 25 years.
[14]
I am mindful of the fact that
section 17
(e) of
Act 140 of 1992 permits Magistrate’s Courts to exceed
their jurisdictional limits and extends it up to 25 years
but
Magistrates should avoid getting excited by the lengthy sentences
they can pass even where circumstances do not allow. Although
their
discretion is not taken away from them, they still have a duty to
exercise it judiciously and strive to achieve a reasonable
balance of
the elements of the triad after careful consideration of all factors
relevant to sentencing.
[15]
Judicial
officers live in the same society where this offences are being
committed, they are oblivious of the problems our country
is facing
involving the sale and the use of drugs by young people of this
country. Dealing in drugs is the type of crime that kills
the very
core of our society and it is destroying our young people. It is easy
to get emotional and let your emotions get the better
of you but when
determining an appropriate sentence under these circumstances,
presiding officers must approach sentencing in a
manner that
recognises fair punishment as pointed out by Corbett JA
In
S
v Rabie
,
[4]
where he remarked as follows:
“
A
judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for him
to achieve
that delicate balance between the crime, the criminal and the
interests of society which his task and the objects of
punishment
demand of him.
Nor
should he strive after severity; nor, on the other hand, surrender to
misplaced pity. While not flinching from firmness, where
firmness is
called for, he should approach his task with a human and
compassionate understanding of human frailties and the pressures
of
society which
contribute
to criminality
.”
[16]
What the court a quo stated in the judgment
is that on the previous day he had sentenced a person to 16 years
imprisonment for dealing
in dagga and that the appellant had been
convicted for a more serious offence than the person on the previous
day. He then proceeds
to sentence the appellant to 18 years
imprisonment saying he has considered his personal circumstances and
the fact that he is
a first offender. The sentence passed on the
appellant does not reflect that his personal circumstances were
considered at all
but shows that the court a quo only wanted to break
his own record of 16 years imprisonment and pass a lengthier one.
[17]
It is clear from the above statement that the
court a quo was not interested in considering the personal
circumstances of the appellant
but focussed more on the seriousness
of the offence and the interests of the society. It totally ignored
that the appellant is
a primary care giver to a 4 year old child.
[18]
In
S
v M
,
[5]
it was held that
the
best interests of a child are paramount in every matter affecting a
child. Section 28(2) of Constitution of the Republic of
South Africa,
1996 carries the paramount principle. Although the principle should
not to be applied in a way that obliterates other
valuable and
constitutionally protected interests,
when
imposing
sentence, factors such as that the convicted person is a primary care
giver to minor children are to be taken into account.
A focused and
informed attention is to be given to interests of children at
appropriate moments in the sentencing process and the
form of
punishment imposed should be one least damaging to interests of
children, given the available choices.
Evaluation/analysis
[19]
I am inclined to agree with the appellant’s
counsel in his contention that the court a quo should have considered
that the
appellant is a primary care giver of a minor child and
should have given attention to the Constitutional provision that in
all
matters concerning children, their rights are paramount. It is
clear from the judgment and the sentence that the interests of the
minor child of the appellant were not given any attention. The
appellant did explain that even though there are other people in
his
household, he was responsible for his child and looked after her
interests.
[18]
When applying the principles as applied in the case of S
v De Jager and another
(supra),
I am of the opinion that the cout a quo did not exercise its
discretion judiciously as expected. It misdirected itself
and
committed an irregularity which was prejudicial to the appellant by
failing to consider that the appellant is a primary care
giver to a
minor child and that he is a first offender who has never been in
conflict with the law before. The drugs he carried
in his person were
also of a very small value which does not justify a sentence of 18
years imprisonment. I therefore find that
interference by this court
with the sentence of the court a quo is justified.
Order
[19]
In the premise I propose that the following order is made:
1. The appeal
against sentence is upheld;
2.
The sentence of 18 years imprisonment is set aside and replaced with
the following:
(i)
The accused is sentenced to four (4) years imprisonment, of which one
(1) year
imprisonment is suspended for a period of five (5) years on
condition he is not again convicted for the contravention of section
4 (b) or 5 (b) of Act 140 of 1992 committed during the period
of suspension.
L Vukeya
Acting Judge
of the High Court,
Johannesburg.
I
agree
E Molahlehi
Judge of the High
Court,
Johannesburg
Representation:
For
the state: Adv. N Serepo
For
the Appellant: Legal Aid South Africa
Date
of hearing: 01/09/2010
Date
delivered: 14 September 2020.
[1]
Act number 140 of 1992.
[2]
1965 (2) SA 616
(A).
[3]
1969
(2) SA 537 (A).
[4]
1975
(4) SA 855
(A)
.
[5]
[2007] ZACC 18
;
2007 (2) SACR 539
(CC).