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South Africa: Free State High Court, Bloemfontein
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[2011] ZAFSHC 171
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S v Mahlomola (716/2011) [2011] ZAFSHC 171 (3 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 716/2011
In
the review between:-
THE
STATE
versus
MONERI
JOHANNES MAHLOMOLA
______________________________________________________
CORAM:
JORDAAN,
J
et
ZIETSMAN, AJ
______________________________________________________
JUDGMENT
BY:
JORDAAN, J
______________________________________________________
DELIVERED
ON:
3 NOVEMBER 2011
______________________________________________________
[1] The accused pleaded
guilty to and was accordingly found guilty of contravention of
section 5(b) of Act 140/1992 (dealing in
dagga) to the weight of 23,4
kg. He was sentenced to a fine of R12 000,00 or alternatively 24
(twenty four months) imprisonment
with a further sentence of 12
(twelve months) imprisonment conditionally suspended for a period of
5 (five) years.
[2] The accused was a
Lesotho citizen aged 37 and stated in mitigation that he earned a
salary of R1 800,00 per month, is married
and has two children aged 7
and 4 respectively. He also helps maintaining other members of his
family. According to the evidence
he had no other monies or assets
to sell so as to pay a substantial fine.
[3] The learned
magistrate was requested to give reasons for imposing the said
sentence especially in view of the fact that it is
obvious that the
accused was not in a position to pay a fine of that magnitude. In
answer the learned magistrate repeated that
the sentence is,
according to him, appropriate in view of the amount of dagga
concerned, the serious nature of the offence and
the prevalence of
the offence in the district.
[4] It appears that the
accused was a first offender, pleaded guilty and did not waste the
court’s time. The amount of dagga
concerned is quite a large
amount being 23,4 kg and it goes without saying that the offence is
serious in nature.
[5] Although the ability
of an accused to pay a certain fine is not of paramount importance,
due regard should be given to that
in assessing a proper sentence as
far as a fine is concerned. It is not inappropriate to impose a fine
that appears to be out
of reach of the accused’s financial
resources but, notwithstanding that, I am of the view that the
sentence imposed in this
matter is so shockingly inappropriate in the
circumstances of the case that interference with the sentence is
justified. Although
a hefty fine is still appropriate and although
it might be that the accused will not be in the position to pay such
fine from own
resources, it might be that he will be able to do that
with the help of family or friends or other resources.
[6] It needs to be
mentioned that, the accused being a Lesotho citizen and employed in
Lesotho, a deferred fine was not regarded
as appropriate, and rightly
so.
[7] I am of the view that
in the circumstances of this matter the imposed sentence, being
shockingly inappropriate, should be set
aside and substituted with an
appropriate sentence.
[8] In the result:
1. The conviction is
confirmed.
2. The sentence is set
aside and substituted with a sentence of R6 000,00 or 12 (twelve)
months imprisonment. In addition the
accused is sentenced to a
further 12 (twelve) months imprisonment wholly suspended for 5 (five)
years on condition that the accused
is not again convicted of
contravening section 5(b) of Act 140/1992 committed during the period
of suspension.
3. The sentence is to be
regarded as having been imposed on 5 May 2011.
_______________
A.F. JORDAAN, J
I
agree.
_______________
P. ZIETSMAN, AJ
/sp