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2009
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[2009] ZAGPPHC 388
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Makambilwa and Another v S (A1046/2006) [2009] ZAGPPHC 388 (23 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION. PRETORIA
CASE
NUMBER: A1046/2006
DATE:
21/09/2009
TOMBO
MAKAMBILWA
1
st
APPELLANT
M
HADIZ
2
nd
APPELLANT
V
THE
STATE
RESPONDENT
Review
Judgment:
Makhafola
J
Mabuse
AJ
JUDGMENT
MAKHAFOLA
J:
INTRODUCTION
:
1.
The 1
st
Appellant stood trial in the Piet Rerief Regional Court as Accused 2
and he was represented by counsel. He faced two counts namely
counts
5 and 7 relating to dealing in MDMA tablets also known as “ecstasy”
and 0.19 gram cocaine also known as “halfmoon
rock cocaine.”
He pleaded guilty and he was found guilty as charged. He was
sentenced to 8 years imprisonment.
2.
The 2
nd
appellant who stood trial in the same court was accused 3. He pleaded
guilty to counts 1 and 8 relating to dealing with “ecstasy”
tablets and “halfmoon cocaine" respectively. He was found
guilty as charged and he was sentenced to 15 years imprisonment.
3.
They are now appealing against the
sentences imposed on them on 8 August 2006.
4.
The sentencing powers arc within the
judicial discretion o the court that tries the accused.
Vide:
R
V Mapulo and Others
1920 AD 56
at 57
S
V RUNDS
1978 (4) SA 304
(A)
S
V ISAAK
1957 (2| SA 385
(O) at 386
5.
Once there is no misdirection committed
by the sentencing court, the appeal court will not interfere in that
sentence.
6.
The sentences imposed on the appellants
are not shocking at all, and I
find
no good ground that this court should set them aside.
7.
The sentences imposed on the appellants
are not inappropriate or shocking to say the least. The trial court
was actually lenient
by taking the counts together for the purposes
of sentencing even where the offences were remote in time becausc
they had been
committed on different dates.
8.
The Zinn triad was duly considered by
the court a quo during sentencing. I find no misdirection in the
manner the court had assessed
and evaluated the facts during the
sentencing stage.
Vide:
S
V ZINN
1969 (2) SA 537
|A).
9.
I
further find nothing on record to
suggest that the court did not exercise its judicial discretion which
is bound bv judicial precedent
and authorit.
Vide:
S
V JUTA
1988 (4| SA 962
(TK) at 927 D-F.
10.
I find that the sentences are
proportionate to the serious offences for which the appellants had
been convicted. The sentences are
deterrent in csscnce which is a
crucial aspect of sentencing. The main purposes of punishment are to
deter, prevent, reform and
retribute the offender and the would-be
offenders. The sentences imposed serve that purpose.
Vide:
S
V RABIE
1975 (4| SA 855
(A).
11.
This court is not competent to interfere
with correct findings of a lower court. In the circumstances, I am of
the view that the
appeals are without merit and should be dismissed.
I
give the following order:
(a)
The sentences imposed by the court a quo are confirmed.
(b)
The appeals of both appellants are dismissed.
K.
MAKHAFOLA
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered.
P.M.
MABUSE
ACTING
JUDGE OF THE HIGH COURT