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[2017] ZAFSHC 10
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S v Moqhoba (R282/2016) [2017] ZAFSHC 10 (5 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: YES
Review
number: R282/2016
In
the matter between:
THE
STATE
and
DAVID
MOAHLOLI MOQHOBA
CORAM:
DAFFUE,
J
et
REINDERS, J
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
5
JANUARY 2017
SPECIAL
REVIEW IN TERMS OF SECTION 304(4)
OF
THE CRIMINAL PROCEDURE ACT, 51/1977
[1]
This is a special review in terms of
s 304
of the
Criminal Procedure
Act, 51 of 1977
.
[2]
Upon his plea of guilty in respect of a count of dealing in dagga in
accordance with the provisions of
s 5(b)
of Act 140 of 1992 (“the
Act”) the accused was properly convicted by magistrate Mohala
in the Ladybrand Magistrates’
court and thereupon sentenced to
payment of a fine of R6 000 or 12 months’ imprisonment, half of
the sentence being suspended
for three years on condition that the
accused is not convicted of contravening s 5(b) of the Act committed
during the period of
suspension. In terms of s 25 of the Act
the dagga was declared forfeited to the State.
[3]
The Judicial head of the Magistrates’ court in Ladybrand,
magistrate JJ Van Zyl, was of the view that an impermissible
sentence
was imposed and that the matter should be sent on special review.
He relied on the provisions of s 17(e) of the
Act which obliges a
court to impose direct imprisonment and requested his colleague to
address the issue.
[3] Magistrate Mohala
responded as follows and I quote him
verbatim
:
“
I
will proceed and respond specifically to issues raised in relation to
s 17(e) of Act 140 of 1992.
Without
necessarily quoting the relevant proviso, I am of the view that the
section empowers the court to impose a term of imprisonment
not
exceeding 25 years in relation to offence referred to in section
13(f),
or
to both such an imprisonment
and
such fine as the court may deem fit to impose. The relevant
section is
not
peremptory
and confers wide discretion to the court.
I
therefore respectfully hold the view that no other interpretation can
be afforded this section as the wording is explicit and
literal
interpretation of the law should be applicable.
It
is further my request that this particular matter should not be sent
for a special review, unless reasons other than those interrogated
are brought to my attention as I have only replied specifically to
issues raised.”
(emphasis added)
[4]
In light of the response of magistrate Mohala I deemed it unnecessary
to refer the matter back to him insofar as I’m satisfied
that
this matter should be dealt with as a special review. I shall
consider only the issues raised by the two magistrates.
[5]
Section 5(b) of the Act must be read with ss 13(f) and 17(e) of the
Act. Section 17 deals with penalties to be imposed
for the
various offences created in s 13, read with the particular sections
referred to therein. Section 17 reads as follows:
“
17.
Penalties -
Any
person who is convicted of an offence under this Act
shall
be liable –
(a) ….;
(b) …..;
(c) …..;
(d) …. and
(e)
in the case of an offence referred to in section 13(f), 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.”
(emphasis
added)
[6]
Insofar as magistrate Mohala is of the view that no other
interpretation could be afforded to the section as the one relied
upon by him, it is necessary to refer to the following summary of the
current state of our law regarding the interpretation of
documents,
including statutes, as summarised by Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
SCA at para [18]
:
“
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the
language
used
in the light of the
ordinary
rules of grammar and syntax
;
the
context
in which the provision appears; the
apparent
purpose
to which it is directed and the
material
known
to those responsible for its production. Where more than one meaning
is possible, each possibility must be weighed in the light
of all
these factors. ... The 'inevitable point of departure is the
language of the provision itself’,
read
in context and having regard to the purpose of the provision and the
background to the preparation and production of the document.”
(emphasis
added)
[7]
In my view the language used, bearing in mind the ordinary rules of
grammar and syntax, is clear. The sentence options
are, bearing
in mind language, context, the apparent purpose of the provision and
the material known to the legislature, i.e. the
Criminal Procedure
Act as
well as the repealed
1971 Act:
1.
Imprisonment
(not exceeding 25 years);
2.
Imprisonment
as in 1 above plus a fine (unlimited in amount);
3.
Imprisonment
plus a fine (unlimited in amount) with an alternative period of
imprisonment in terms of
section 287(1)
of the
Criminal Procedure Act
as
long as the total period of imprisonment does not exceed 25
years.
No
doubt, nothing prevents the sentencing court to suspend either wholly
or partially any of the above.
[8]
Magistrate Mohala pointed out that
s 17(e)
is not peremptory and
confers a wide discretion on the sentencing court. I do not
agree
in
toto
.
The use of the word “shall” in
s 17
is indicative of a
peremptory meaning. Therefore the sentencing court has no
choice than to impose one of the three sentencing
options referred to
supra
.
The use of the word “or” in
ss 17(e)
clearly dispels a
point of view that the sentencing court has a discretion not to
impose direct imprisonment. Direct imprisonment
must be
imposed, even if it is wholly or partially suspended. The discretion
of the sentencing court may be exercised in respect
of which
sentencing option to be selected, the amount of the fine, the period
of imprisonment subject to the prescribed maximum
and whether or not
the sentence is to be wholly or partially suspended.
[9]
Marais, J with whom Borchers, J concurred, summarised the different
approaches pertaining to s 17(e) of the Act in
S v Mlambo
2007 (1)
SACR 664
(WLD)
and stated as follows at 666d - j:
“
On
the contrary, the wording of the section leaves no doubt that the
opposite is intended and that the court is obliged to impose
a
sentence of direct imprisonment and, only when it has done so, may it
couple a sentence of a fine with an alternative of imprisonment
to
the sentence of direct imprisonment.
The
first part of the sentencing provision provides only for direct
imprisonment ('imprisonment for a period not exceeding 25 years').
The court is then authorised to impose an alternative form of
punishment which is 'or
to
both such imprisonment and such fine
as
the court may deem fit.' ... To interpret this section as
authorising the imposition of
any
of
the bouquet of punishments is to ignore the effect of the words
'both' and 'and'. The Legislature is stating clearly
that the only
alternative to a sentence of direct imprisonment is the imposition of
'both such imprisonment'
and
a
fine.
My
conclusion is underlined by the significantly different penalties
provided in s 17(a)(b)(c) and (d) where the wording differs
materially from that of s 17(e). In each previous section the
court is authorised to sentence the accused to a ‘fine
…
or to imprisonment … or to both such fine and
such
imprisonment.’
In
each case the first sentence option is a fine, and imprisonment is
thereafter authorised as an alternative sentence to the imposition
of
a fine. This difference makes the intention of the legislature
in s 17(e) even clearer, as the preceding sections authorise
a fine
as the first of three options. Section 17(e) signally does not,
and only authorises a fine in conjunction with imprisonment.
The
change in wording was clearly not accidental.”
[10]
In my view the learned Judges’ interpretation of ss 17(a) to
(e) and s 17(e) in particular is in line with the
state of the
law as expressed by Wallis JA in
Endumeni
supra.
The learned judges not only considered the language used in the light
of the ordinary rules of grammar and syntax, but also the
context in
which the provisions appear. They might have referred to the
apparent purpose of the penalty provisions with reference
to the
material known to the Legislature. There is no doubt that a s
5(b) offence is a more serious offence than the offences
referred to
in ss 13(a) to (e) read with ss 17(a) to (d).
[11]
Bertelsmann, J with whom De Vos, J concurred, agreed with Marais, J’s
exposition of the law in
S
v Madibane 2014 JDR 0065 (GNP)
and
I quote from para 9:
“
The
court is indebted to advocate E Leonard, Deputy Director of Public
Prosecutions, North Gauteng, Pretoria, and to State Advocate
Coetzer,
whose helpful comments were of significant assistance in determining
an appropriate sentence. Section 17(e) of Act
140 of 1992
obliges
the court
upon
conviction of an accused of the offence of
having
contravened section 5(b)
of the Act
to
impose
a
period of
direct
imprisonment
,
which may however be suspended in its entirety, see Marais, J’s
thorough discussion of this issue in
S
v Mlambo
2007 (1) SACR 664
(W)
.”
(emphasis
added)
[12]
I agree with the approach in Mlambo and Madibane and confirm that,
in my experience, it has been followed constantly
in the Free State
Province. I am therefore also in agreement with the approach
of magistrate Van Zyl referred
to
supra
.
[13]
This court cannot now impose direct imprisonment in addition to the
sentence imposed, even if such imprisonment is wholly suspended
on
certain conditions. This would be detrimental to the accused
and unfair towards him. The imposed sentence should
be set
aside and the matter remitted to the trial court to impose sentence
afresh, bearing in mind what I have stated
supra
.
[14] Therefore the
following orders are made.
1.
The
conviction is confirmed.
2.
The
sentence is set aside and the matter is remitted to the trial court
to sentence the accused afresh.
____________
JP
DAFFUE, J
I
concur
_____________
C
REINDERS, J