About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 210
|
|
S v Msomi (R169/2019) [2019] ZAFSHC 210 (7 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
number: R169/2019
In
the review between:
THE
STATE
and
THAMSANQA
ABEDNEGO MSOMI
CORAM:
LOUBSER, J
et
MURRAY,
AJ
HEARD
ON:
7 NOVEMBER 2019
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
7 NOVEMBER 2019
[1]
This matter came before me in the form of a Special Review in terms
of Section 304(4)
Criminal Procedure Act 51 of 1977
. The accused was
convicted in the Villiers Magistrate’s Court for Dealing in 300
kg of Dagga in contravention of the provisions
of
Section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
. He was sentenced to a
fine of R 20 000-00 or 3 years imprisonment, half of which was
suspended for 5 years on certain conditions.
The dagga was also
declared forfeited to the State.
[2]
In submitting the matter for a review of the proceedings, the Head of
the Court informed
that he was absent with sick leave when the case
of the accused was heard by a relief magistrate. Upon his return from
his sick
leave, he went through the cases that were finalized in his
absence, and he noticed that an incompetent sentence had been imposed
in the present matter. He referred the reviewing Judge to the
provisions of
Section 17(e)
, read with the provisions of
Section
13(f)
of the said Act. He also referred to the case of
S
v
Ramone
2013 (2) SACR 596
(FB)
.
[3]
A first glance at the above mentioned Sections already shows that the
sentence imposed is
incompetent and that imprisonment without the
option of a fine must be imposed for dealing in dagga. That
imprisonment can be suspended
by the court, but the court cannot give
the alternative of a fine for that imprisonment. (See the
Ramone
– case,
supra
, at 598c). It is also clear from the
provisions in question that a fine may be imposed, but then only in
addition to the imprisonment,
and not as an alternative thereto.
[4]
It speaks for itself that the sentence imposed by the relief
magistrate is therefore incompetent
and must be replaced with a
correct sentence. In imposing the correct sentence, I will endeavour
not to deviate from the effect
of the sentence which the trial
Magistrate had in mind. It needs mentioning here that the Magistrate
allowed the fine to be paid
by the accused in monthly payments of R
1 000-00 each.
[5]
The following order is therefore made:
1.
The
conviction is confirmed.
2.
The
sentence imposed by the Magistrate is set aside and replaced with the
following:
“
The accused is
sentenced to a fine of R 10 000-00 or 18 months imprisonment. In
addition, the accused is sentenced to 18 months
imprisonment, wholly
suspended for five years, on condition that he is not convicted of a
contravention of
Section 5(b)
or
4
(b) of Act 140 of 1992, committed
during the period of suspension.”
3.
The fine
may be paid in payments of R 1 000-00 before the end of each
following month until paid in full.
4.
The accused
is not declared unfit to possess a firearm under
Section 103(1)
of
the
Firearms Control Act 60 of 2000
.
5.
The
sentence is deemed to have been imposed on 17 September 2019.
6.
The dagga
concerned is declared forfeited to the State.
P.J. LOUBSER, J
I
concur:
H. MURRAY, AJ