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[2012] ZAECPEHC 35
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S v Gerber (CA&R NO.: /2012) [2012] ZAECPEHC 35 (23 May 2012)
3
IN THE HIGH COURT OF
SOUTH AFRICA
PORT ELIZABETH,
EASTERN CAPE
Review no.: 120050
CA&R
NO.: /2012
Date
delivered: 23 May 2012
In the matter between:
THE STATE
And
DARUIS GERBER
REVIEW
JUDGMENT
DAMBUZA J,
[1] This matter comes
before me on special review from the magistrate, Port Elizabeth. In
the referral letter the magistrate states
that the sentence imposed
on the accused is incompetent and suggests that the sentence imposed
be set aside and that either a fresh
sentence be imposed or that the
matter be remitted to the magistrate for sentence to be considered
afresh. A further issue which
according to the magistrate, is a cause
for the referral, is that no inquiry was held, in the court
a quo
,
in terms of Section 103 of Act 60 of 2000.
[2] The accused was
convicted, on a plea of guilty to dealing in dagga. He was then
sentenced as follows:
“ Beskuldigde gevonnis word to
R5
000-00 (vyf duisend) of 5 (vyf) maande
gevangenisstraf en daarbenewens tot ‘n verdere 6 (ses) maande
gevangenisstraf. Die
laaste gedeelte word opgeskort vir ‘n
tydperk van vyf (5) jaar op voorwaarde dat die bekuldigde nie skuldig
bevind word aan
O/Artikel 5 (b) Wet 140 van 1992 (Handel in dwelms)
wat gepleeg is gedurende tydperk van opskorting nie.”
[3]
The
magistrate suggest that the sentence imposed is incompetent because
the first portion thereof imposes a fine with an alternative
of
imprisonment AND ONLY THEREAFTER a sentence of a term of
imprisonment is imposed. According to the magistrate the court in
S
v Mohome
1
held
that
“(die
hof (moes) eers die gevangenisstraf opgele het.”
[4] I do not agree.
Firstly Section 17 (e) of the Act provides that a person convicted of
dealing in dangerous dependence producing
substance
2
shall be liable:
“to
imprisonment for a period not exceeding 25 years
,
or to both such imprisonment and such fine as the
court
may deem fit to impose.”
[5] The sentence
therefore complies with the provisions of Section 17 (e) of the Act
in that a term of imprisonment (though suspended)
has been imposed.
What the court held in
S
v Mohome
,
to which the magistrate refers is only that upon a conviction for
dealing in drugs, in addition to any fine with alternative
imprisonment
which may be imposed, a further term of imprisonment
,
suspended or unsuspended and without an alternative of a fine
,
must always be imposed
.
In the words of Smit J in Mohome:
“
benewens enige boete met alternatiewe gevangenisstraf wat opgele mag
word daar altyd ‘n verdere termyn gevangenisstraf
met of sonder
opskorting en sonder die keuse van ‘n boete opgele moet word.”
That is
what has been done in this case.
[6] I do agree that in
as far as the provisions of section 103 of Act 60 of 2000 were never
brought to the attention of the accused,
the proceedings before the
court
a quo
were not in according with justice and that the
matter has to be remitted to the magistrate for an inquiry to be
held accordingly.
Consequently:
The conviction and
sentence are confirmed.
The record is remitted
to the magistrates court for the provisions of Section 103 of Act 60
of 2000 to be complied with.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
I agree,
_________________________
J.W EKSTEEN
JUDGE OF THE HIGH COURT
1
(1993 (1) SACR 504T)
2
(Contravention of S5 (b) of the Act.)