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2010
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[2010] ZAFSHC 128
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S v Sethoka (414/2010) [2010] ZAFSHC 128 (26 August 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 414/2010
In
the review between:-
THE
STATE
versus
DIMAKATSO
ALETTA SETHOKA
CORAM:
CILLIé,
J
et
JORDAAN, J
_____________________________________________________
JUDGMENT
BY:
CILLIé, J
_____________________________________________________
DELIVERED
ON:
26 AUGUST 2010
_____________________________________________________
JUDGMENT
[1] The accused in this
matter was convicted of contravening section 5(b) of Act 140 of 1992
to wit dealing in 78 kg of dagga.
The conviction is in order. The
magistrate imposed the following sentence:
“
Fined Seven Thousand Rand
(R7000,00) or Six (6) years imprisonment. Half of the sentence
wholly suspended for four (4) years on
condition that the accused is
not convicted of contravention of Section 5(b) Act 140/1992 committed
during the period of suspension.”
[2] This,
however, is an incompetent sentence for dealing in dagga. Section
17(e) read with 13(f) of Act 140 of 1992 prescribes
that imprisonment
must
be
imposed. This is usually done in cases of a first offender when a
fine is imposed with alternative imprisonment plus the said
peremptory period of imprisonment, which is suspended. See
S
v MQIKELA
2005 (2) SACR 397
(E);
S v MOSOLOTSANE
1993 (1) SACR 502
(O);
S v MOHOME
1993 (1) SACR 504
(T).
[3] The day after
imposition of sentence the magistrate realised his oversight. He
submitted the matter for review requesting the
sentence to be set
aside and the matter remitted to him to impose a competent sentence.
This is in fact what should be done in
this case.
For that reason the
following order is made:
The sentence is set aside
and the matter is remitted to the magistrate to impose sentence
afresh.
____________
C.B. CILLIé, J
I agree.
_______________
A.F. JORDAAN, J
/sp