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[2013] ZAFSHC 116
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S v Ramone (67/2013) [2013] ZAFSHC 116; 2013 (2) SACR 596 (FB) (27 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 67/2013
In the review of:
THE STATE
and
MOEKO RAMONE
______________________________________________________
CORAM:
KRUGER
et
MOLOI , JJ
_____________________________________________________
JUDGMENT
BY:
KRUGER, J
______________________________________________________
DELIVERED
ON
: 27 JUNE 2013
_______________________________________________________
[1] This is a review
judgment. The accused, a 25 year old unemployed Lesotho citizen,
pleaded guilty to and was convicted of dealing
in 12 kg dagga in the
magistrates’ court at Ladybrand.
[2] The magistrate
imposed the following sentence:
“
ACCUSED IS
SENTENCE TO PAY A FINE OF R3 000-00 (THREE THOUSAND RAND) OR TO
UNDERGO 9 (NINE) MONTHS’ OF IMPRISONMENT.
FURTHERMORE TO PAY A
FINE OF R3 000-00 (THREE THOUSAND RAND) OR TO UNDERGO 9 (NINE)
MONTHS’ OF IMPRISONMENT WHOLLY SUSPENDED
FOR 5 (FIVE) YEARS ON
CONDITION HE IS NOT CONVICTED OF POSSESSION OR DEALING IN DRUGS
DURING THE PERIOD OF SUSPENTION.”
[3] In an attempt to make
sense of this sentence it can be abbreviated as follows:
(i) R3 000 fine or 9
month’s imprisonment
plus
(ii) R3 000 or 9
month’s imprisonment wholly suspended.
[4] Formulated in a more
comprehensible manner, the sentence imposed by the magistrate would
read:
“
A
fine of R6 000 or 18 months’ imprisonment, half of which
is suspended...”
Had the magistrate
formulated his sentence in this manner, he might have seen that his
sentence did not comply with section 17(e)
of Act 140 of 1992.
[6] I addressed the
following enquiry to the magistrate:
“
1. Does the
sentence comply with section 17(e) of Act 140 of 1992? See
Terblanche,
Guide
to Sentencing in South Africa
2
nd
Ed (2007) at 36 par 4.3.10 and
S
v Mazibuko
1992 (2) SACR 320
(W) at 323a and
S
v Xaba and Another
2005 (1) SACR 435
(SCA) par [12]. Does the section not require that
imprisonment without the option of a fine be imposed?”
[7] The magistrate
responded that his sentence is in order. He misses the crucial
distinction between the word “or”,
and the word “and”
which is used in
section 17(e)
of the
Drugs and Drug Trafficking Act
140 of 1992
, which reads as follows:
“
(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.”
The word “both”
used in
section 17(e)
is important. “Both” does not mean
“alternatively”. “Both” means in
addition
to
, not “or”. “The one and
the other (and not just one)”
Shorter
Oxford English Dictionary
.
[8] Let me spell out the
meaning of
section 17(e)
clearly. If an accused has been convicted of
dealing in drugs, imprisonment
without the option of a fine
must be imposed. The court can
suspend
that imprisonment. What
the court
cannot
do is to give the alternative of a fine to
that imprisonment. To use a simple example, where
both
a fine
and imprisonment are imposed, such sentence would read as follows:
“
The
accused is sentenced to undergo imprisonment for 5 years. In addition
to this, the accused is ordered to pay a fine of R10 000.”
[9] The fine is, in the
wording of
section 17(e)
, not an alternative to the imprisonment, it
is imposed
in addition to
the imprisonment. The magistrate
might know that many statutory penalty provisions state that the
maximum penalty for an offence
is a certain term of imprisonment, or
a stated maximum fine, or both such fine and imprisonment.
Terblanche, Guide to Sentencing in South Africa
2
nd
Ed (2007) explains this penalty clause in para 4.3.10 at page 36:
“
4.3.10
Imprisonment, or a fine and imprisonment
The
Drugs and Drug
Trafficking Act contains
yet another kind of penalty clause in
section 17(
e
), providing for
‘
imprisonment
for a period not exceeding twenty five years, or to both such
imprisonment and such fine as the court may deem fit
to impose’.
In this case imprisonment
has to be imposed, although it may be partly or totally suspended.
The court may, in its own discretion,
add a fine of any amount it
chooses.”
The point is that the
court must impose imprisonment. It can add (
Not
as an
alternative) a fine.
[10] The sentence which
the magistrate imposed is incompetent and must be replaced with a
correct sentence. The alternative fine
in the second part of the
sentence must be deleted.
[11] A further problem
with the sentence relates to the condition of suspension. If a
sentence is suspended in whole or in part,
the condition of
suspension must be the commission of the offence in the suspended
period, not a further conviction in the suspended
period. It is the
conduct during the period which is important, not the ultimate
finding that the individual committed the prohibited
act. The
reference should be to the date of the commission of the offence, not
to the date of conviction, as the sentence imposed
by the magistrate
reads.
[12]
ORDER:
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 R3 000 or 9 months’
imprisonment. In addition the accused is sentenced to 9 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 accused is not
declared unfit to possess a firearm under section 103(1) of Act 60 of
2000.
4. This sentence is
deemed to have been imposed on 10 January 2013.
____________
A. KRUGER, J
I agree.
____________
K. J. MOLOI, J
/wm