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South Africa: Free State High Court, Bloemfontein
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2011
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[2011] ZAFSHC 92
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S v Thene (23/2011) [2011] ZAFSHC 92 (31 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 23/2011
In the case between:
THE STATE
and
MAMOTSEPA CALEXTINE
THENE
_____________________________________________________
CORAM:
KRUGER, J
et
VAN DER MERWE, J
JUDGMENT:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
31 MARCH 2011
_____________________________________________________
[1] The accused was
correctly convicted of giving him 15,7kg dagga in contravention of
section 5(b) of Act no. 140 of 1992. The
accused admitted that she
travelled from Lesotho in order to sell the dagga at Pietermaritzburg
and that she was apprehended after
crossing the border from Lesotho
into South Africa. The accused was sentenced to R10 000,00 or 20
months imprisonment and in addition
thereto a further 12 months
imprisonment wholly suspended for 5 years on condition that the
accused is not convicted of contravening
section 5(b) of Act no 140
of 1992 committed during the period of suspension.
[2] Not only is the
sentence heavier than usually imposed for dealing in a relatively
small quantity of dagga, but the circumstances
of this case called
for a measure of mercy. The magistrate’s reasons for sentence
indicate that this was not realise and
that the prevalence of dealing
in dagga in the area of jurisdiction of the magistrate was over
emphasised.
[3] The accused is a
citizen of Lesotho. She is 42 years of age. She has been a widow for
about 10 years. She ______ for her five
children, aged between 12 and
21 years. She earns approximately around R600,00 per month by
cleaning other peoples gardens. She
is a first offender. She pleaded
guilty and frankly explained how she became involved in this crime as
follows:
“
The reason
why I got involved in committing this crime, Your Worship, was to try
and supplement my (indistinct) earnings and due
to the fact that I am
having a lot of children whom it is difficult to maintain. One of the
children is doing form C. One of the
children is currently at the
driving school. The owner of the business demanded to be paid an
amount of R2 000,00 and I realised
that my wages were sufficient for
all those expenses. I saw other successfully selling dagga, so I
decided to take a chance too.
The owner of the driving school
business allowed my child to attend on credit. The agreement between
us is that I am supposed to
pay the amount of R2 000,00 by December
and that is why I decided to commit this offence and earn extra money
to meet my expenses,
Your Worship. My children were suffering from
hunger. I didn’t have money to buy them cloths. That is all,
Your Worship.”
[4] In my view a sentence
of R4 500,00 or 9 months imprisonment as well as a further 9 months
imprisonment conditionally suspended
is appropriate in the
circumstances in this case.
[5] The sentence is set
aside and replaced with a sentence of R4 500,00 or 9 months
imprisonment as well as a further 9 months imprisonment
wholly
suspended for a period of 5 years on condition that the accused is
not convicted of a contravention of section 5(b) of Act
no. 140 of
1992 committed during the period of suspension. The sentence must be
deemed to have been imposed on 16 November 2010.
_________________________
C. H. G. VAN DER
MERWE, J
I concur.
______________________
A. KRUGER, J
/eb