Ndaba v S [2008] ZAFSHC 9 (21 February 2008)

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[2008] ZAFSHC 9
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Ndaba v S [2008] ZAFSHC 9 (21 February 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : 18/2005
In
the appeal between:-
DANIëL
ELLIOT NDABA
Appellant
versus
THE
STATE
Respondent
CORAM:
VAN
ZYL J
et
MOCUMIE
AJ
_____________________________________________________
HEARD
ON:
18
FEBRUARY 2008
_____________________________________________________
DELIVERED
ON:
21
FEBRUARY 2008
_____________________________________________________
JUDGMENT
BY:
MOCUMIE
AJ
_____________________________________________________
JUDGMENT : APPEAL
_____________________________________________________
[1] The
appellant was convicted in the Regional Court, Bethlehem on a charge
of contravention of section 5(b) of the Drugs Trafficking
Act, 140 of
1992, in that he dealt in 147.25 kilograms of dagga. He was
sentenced to eight years imprisonment on 22 April 2005.
[2] He
now appeals against his sentence only.
[3] The undisputed facts
can be summarised as follows:
On
2 October 2000 the appellant was arrested upon entering South Africa
from Lesotho through the Clarens-Fouriesburg border post.
He was
found in possession of five bags containing dagga. He intended to
re-sell the dagga in question to gain extra income. His
defence that
he was not aware of the dagga was rejected by the trial court.
[3] The trial court
described the crime as a very serious offence which has a very
devastating effect on the society, afflicting the
most vulnerable,
those that are drug dependent and are addicts. The appellant is not
a first offender as he was convicted of the
same offence in 2000. He
was 64 years of age in 2005 and a pensioner providing for his two
minor children. He is sickly. Before
sentence was imposed he had
suffered two strokes and was cared for by his unemployed wife at
their home.
[4] This is one of the
most serious and rife offences committed in this country especially
through border posts. That the appellant
should be punished heavily
is clear. In my view correctional supervision will not be an
appropriate sentence in this case. At the
same time it seems to me
in these circumstances the sentence the trial court imposed, is so
severe that the Appeal Court may intervene.
[5] Just
as a word of caution, the Regional Magistrate and prosecutor in this
case are advised to read Du Toit et al:
Commentary
on the
Criminal Procedure Act 51 of 1977
and
cases referred to
at
28 – 10L under the heading
“Also
for dealing in LSD”
with
reference to the imposition of correctional supervision.
[6] In the result the
sentence imposed by the Regional Magistrate is set aside and is
substituted by the following:
“
1. In
terms of
section 276(1)(i)
of the
Criminal Procedure Act, 51 of 1977
,
accused is sentenced to 5 (five) years imprisonment.
2. In terms of
section 282
of the
Criminal Procedure Act, 51 of 1977
, the sentence
is antedated to 22 April 2005.”
________________
B.C. MOCUMIE, AJ
I concur.
____________
C. VAN ZYL, J
On behalf of
appellant: Adv. T.B. van Rensburg
Instructed
by:
Legal
Aid Board
KROONSTAD
On
behalf of respondent: Adv. D.W. Bontes
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp