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[2012] ZAFSHC 107
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S v Mathe (103/2012) [2012] ZAFSHC 107 (31 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 103/2012
In the review between:-
THE STATE
and
GIFT MATHE
_______________________________________________________
CORAM:
JORDAAN, J
et
DAFFUE, J
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED:
31 MAY 2012
_______________________________________________________
[1] On 6 February 2012
the accused was convicted of possession of 77 grams of dagga in
contravention of
section 4(b)
of the
Drugs and Drug Trafficking Act,
140 of 1992
and sentenced to payment of a fine of R5 000,00 or 6
(six) months’ imprisonment. The accused was declared unfit to
possess
a firearm in accordance with the provisions of
section 103(1)
of the
Firearms Control Act, 60 of 2000
.
[2] On 15 May 2012 when
the matter originally came before me on automatic review I
immediately directed two queries to the learned
magistrate. Firstly,
an irrelevant record was attached which had to be rectified.
Secondly, it was my
prima facie
view based on the information
that was provided to me that the sentence was excessive insofar as
accused is a first offender, the
type of offence – possession
and not dealing – and the relatively small amount of dagga.
[3] On 25 May 2012 I
received the learned magistrate’s comments together with a
record of the correct proceedings, although
to a large extent
nonsensical, probably due to faulty recording devices.
[4] The learned
magistrate reported as follows pertaining to my suggestion that the
sentence was excessive.
“
The sentence
imposed should be looked at together with the circumstances under
which the offence was committed though I admit that
indeed the
sentence is EXCESSIVE for a normal first time offender, and a mere
possession of dagga weighing 77 grams. In this case
accused was
arrested in court building bringing dagga to a person, an arrested
person or a trial awaiting inmate in court 20.”
[5] I considered this
with those parts of the record that made sense and decided to
immediately order the release of the accused
who could not pay the R5
000,00 and has been incarcerated from 6 February 2012, i.e. for a
period of nearly four months. I indicated
in my order that my written
judgment would follow.
[6] The accused is 26
years old, a first offender with no dependants. He does part-time
jobs and earns R850,00 every fortnight.
He smokes dagga twice a day.
He accompanied a friend, who apparently wanted to show some moral
support to a friend of his who had
to appear in the Bloemfontein
Magistrates’ Court. He was arrested when he tried to enter the
court building and just after
being screened at the security gates.
Dagga which he concealed inside his shoes was found. This occurred on
3 February 2012 and
three days later he appeared before court when he
pleaded guilty, was convicted and sentenced.
[7] The accused
apologised to the court in mitigation. The learned magistrate relied
upon the information tendered by the prosecutor
just before sentence
to the effect that when the accused was arrested, he alleged to the
person that arrested him that he was taking
the dagga to a person in
court 20, but that he refused to identify this person. This version
of the prosecutor was denied by the
accused, who informed the court
that he mentioned that he was indeed on his way to court 20, but that
he never said that it was
his intention to deliver the dagga to a
person in court 20.
[8] The learned
magistrate committed a material misdirection in accepting this
hearsay version and in imposing such a heavy sentence
as a
consequence which he admits to be excessive in normal circumstances,
was it not for the aforesaid finding. In any event the
sentence is so
excessive that it should be revisited.
[9] The sentence imposed
is higher than sentences that are often imposed for dealing in dagga.
See
S v GCOBA
2011 (2) SACR 231
(KZP) where a fine of
R4 000,00 or 12 (twelve) months’ imprisonment was imposed and a
further 5 (five) years’ imprisonment
suspended for a period of
3 (three) years. In
S v FEDANI
2000 (1) SACR 345
(E)
the accused was sentenced for dealing in 83 grams of dagga to R3
000,00 or 12 (twelve) months’ imprisonment, half of
which was
suspended for 5 (five) years on normal conditions.
[10] In the following
judgments lesser sentences than
in casu
were imposed
notwithstanding the fact that the accused in each of these cases were
found in possession of higher quantities of dagga.
In
S v
MBATHA
2000 (2) SACR 409
(W) the accused was found in
possession of 100 kilograms of dagga and sentenced to R3 000,00 or 12
(twelve) months’ imprisonment
and a further 12 (twelve) months’
imprisonment was suspended for 5 (five) years on certain conditions.
In
S v MOTSIAWEDI
1993 (1) SACR 306
(W) an accused
found in possession of one kilogram of dagga was sentenced to R2
000,00 or 6 (six) months’ imprisonment of
which one half was
suspended for 3 (three) years on certain conditions. In
S v
MOOROSI
1999 (1) SACR 336
(O) an accused found in possession
of 100 kilograms of dagga was sentenced to R3 000,00 or 9 (nine)
months’ imprisonment
plus 6 (six) months’ imprisonment
suspended for 4 (four) years on certain conditions. In
S v
KOLOBE
2006 (1) SACR 118
(O) this court accepted that a fine
of R1 600,00 or 8 (eight) months’ imprisonment for possession
of dagga (the quantity
not appearing from the judgment), was in
order. I have taken note of the parameters regarded as proper
sentences in the Free State
High Court and it appears as if sentences
for possession of dagga varying from R600,00 or 2 (two) months’
imprisonment to
R1 800,00 or 9 (nine) months’ imprisonment
appear to be a reasonable norm in respect of first offenders.
[11] I accept that the
place where dagga is possessed, e.g. in prison or on a school
playground or at court as
in casu
may be an aggravating
factor, but even so the penalty meted out remains excessive. Taking
into consideration the factors referred
to herein and excluding the
hearsay evidence of the prosecutor that the dagga was intended for
another person in court 20, an appropriate
sentence is R1 200,00 or 3
(three) months’ imprisonment. Such a sentence would probably
allow the accused to pay the fine
in order to avoid committal to a
correctional centre. As it turns out it was not possible for him to
pay the excessive fine of
R5 000,00.
[12] The learned
magistrate declared the accused unfit to possess a firearm in terms
of
section 103
of the
Firearms Control Act, 60 of 2000
. There is no
indication on the record that the learned magistrate enquired from
the accused why he should not be declared unfit
to possess a firearm.
More importantly, the learned magistrate did not consider the
judgment of this court in
S v KOLOBE
,
loc cit
,
where it was found that such an order cannot be made in the event of
an accused found guilty of
possession
of dagga. There is no
indication that the accused abuses dagga and he was also not
convicted of such an offence. See
section 103(1)j.
In
section
103(1)(k)
provision is made for a declaratory order to be made in the
event of the accused being found guilty of
dealing
in dagga
(and not mere possession). Therefore this order should also be set
aside.
[13] Consequently the
following orders do issue:
The conviction is
confirmed.
The sentence is set
aside and replaced by the following:
The accused is sentenced
to a fine of R1 200,00 or 3 (three) months’ imprisonment, the
sentence to be ante-dated to 6 February
2012.
The order declaring the
accused to be unfit to possess a firearm is set aside.
_____________
J.P. DAFFUE, J
I concur.
_________________
A.F. JORDAAN, J
/sp