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[2008] ZAFSHC 87
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S v Motsamai (242/2008) [2008] ZAFSHC 87 (21 August 2008)
In the
High Court of South Africa
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 242/2008
In
the review case between:
THE
STATE
and
MATHATO
ALICE MOTSAMAI
_____________________________________________________
CORAM:
VAN
ZYL, J
et
MOCUMIE,
J
_____________________________________________________
JUDGMENT
BY:
VAN
ZYL, J
_____________________________________________________
DELIVERED
ON:
21
AUGUST 2008
_____________________________________________________
[1] The accused was
correctly convicted in the Magistrate’s Court, Ladybrand, on a
charge of dealing in 13,4kg dagga (contravention
of section 5(b) of
the Drugs and Drug Trafficking Act, Act No. 140 of 1992). She was
sentenced to R6 000,00 or 12 months imprisonment
as well as an
additional 12 months imprisonment wholly suspended for 5 years on
condition that the accused is not convicted of
contravention of
section 5(b) of Act No. 140 of 1992 committed during the period of
suspension.
[2] The matter was then
referred to this Court in the cause of an automatic review and I
raised the following query with regard
to the imposed sentence:
“
1. Is the
sentence not too harsh?
2. Are the fine and the term of
imprisonment not disproportionate to each other?”
[3] With regard to my
first query, the presiding Magistrate responded as follows:
“
I
respectively submit that the sentence is not too harsh, based on the
fact that this kind of offence is prevalent in the district
of
Ladybrand, the court is dealing this kind of offence on daily basis,
both our Sout African citizen and Lesotho citizen, they
take
advantage of transporting dagga from Lesotho to South Africa.”
(sic)
With regard to my second
query, the Magistrate responded as follows:
“
It is my
humble submission that, fine and term of imprisonment are
proportionate to each other. According to my calculation one
month is
R500-00. R6000-00 ÷ 500-00 = 12 months.
With respect if the Honourable Judge
is of the opinion that the fine is too harsh, I will recommend to be
reduced or set aside.”
(sic)
[4] With regard to the
personal circumstances of the accused, it is evident from the record
that she is 30 years of age and is estranged
from her husband. She
has two children whom she has to maintain. In addition hereto, she is
also maintaining her brother’s
three siblings. She is
unemployed. The accused explained that she intended selling the dagga
in order to earn money to maintain
the aforesaid children. She
specifically indicated that she does not have any money to pay a
fine.
[5] The fact that the
accused is a first offender and that she pleaded guilty, are
important extenuating factors.
[6] It
was correctly pointed by the presiding Magistrate that offences
regarding dagga occur frequently in the area of jurisdiction
of the
Court
a
quo.
That
is definitely an aggravating factor that should be kept in mind.
However, in my view the presiding Magistrate over-emphasised
the
seriousness of the offence to the extent that it appears as though
the accused is to be punished for the crimes of all other
persons
smoking and dealing in dagga. In this regard the Magistrate remarked
as follows on p.7 of the record:
“
I do not
know whether you get a lot of money when you cross the border and
sell the dagga because it also cost our taxpayers, you
sell this
dagga, you get the money and (indistinct) feed your siblings and your
children but when those people are smoking this
dagga, they end up in
mental institution we are these taxpayers, us who have to pay to
rehabilitate those people. Besides that
the people who are smoking
dagga they end up in rehabilitation, some of them they are committing
serious offences, high jacking
of our cars, raping our children or
chasing the pregnant women with axes after they smoke this dagga.”
(sic)
[7] In
addition to the presiding Magistrate’s over-emphasis of the
seriousness of the offence and its alleged consequences,
I am
furthermore of the view that the current sentence does not reflect a
balance between the fine imposed and the alternative
imprisonment –
the fine imposed is disproportionately high in comparison with the
term of alternative imprisonment. It is
trite that the balance
between the fine imposed and alternative imprisonment should be
reasonable in view of all the circumstances
of the particular case.
This balance cannot and should never be determined on the basis of a
mathematical calculation. In this
regard the following was stated in
S
v KAPENG
1992
(1) SASV 596 (O) at 599 F – 600 B:
“
Daar is al
by herhaling beslis dat die verhouding tussen die boete en die
gevangenisstraf wat in die alternatief daartoe opgelê
moet word
redelik moet wees en afhanklik is van al die omstandighede van die
betrokke beskuldigde en die misdaad wat gepleeg is.
Reeds solank
terug soos 1924 het Regter Feetham in
R
v Frans
1924
TPD 419
op 419 soos volg verklaar:
'Where a fine is imposed as an
alternative to imprisonment it should, I think, bear some relation to
the probable resources and
earnings of the person on whom it is
imposed and to the number of months' imprisonment which are
considered sufficient as an alternative
punishment.'
Dit is by herhaling
beklemtoon dat straf soveel moontlik geïndividualiseer moet word
(vgl
S
v V
1972
(3) SA 611
(A)). …………….Dit is
egter duidelik dat die verhouding tussen 'n boete en 'n periode van
gevangenisstraf
nooit op 'n wiskundige wyse bereken of toegepas
behoort te word nie.”
[8] In the circumstances
of this particular case I am of the view that there is an imbalance
between the fine imposed and the alternative
imprisonment, which in
itself would have had the result that the imposed sentence cannot
stand.
[9]
However, in addition to the aforesaid, I am in any event of the view
that the term of imprisonment in this instance is also
too long
considering all the facts and circumstances of this particular
matter. In this regard one should be mindful of the fact
that when
the appropriateness of a sentence is considered, the suspended term
of imprisonment that was additionally imposed, should
also be taken
into consideration. In
S
v MAKOAE
1997
(2) SASV 705 (OPA) at 709 G – 710 A this principle was
confirmed in the following words:
“
By die
beoordeling van 'n gepaste vonnis moet die opgeskorte gevangenisstraf
wat addisioneel opgelê is, ook in aanmerking
geneem word. Die
benadering wat toegepas behoort te word, word uiteengesit in
S
v Setnoboko
1981
(3) SA 553
(O) op 556E - G, waarna daar al by herhaling in
hersieningsuitsprake van hierdie Hof verwys is:
''n Suiwerder
benadering is egter om nie 'n opsplitsing van die vonnis te doen nie
maar om te beoordeel of die oplegging van vyf
jaar gevangenisstraf
waaraan die reeds genoemde opskortingsvoorwaarde gekoppel is, 'n
houdbare uitoefening van die landdros se
diskresie was.
Dit
sou verkeerd wees om na slegs 'n deel van die vonnis te kyk asof die
opgeskorte gedeelte nie ondergaan hoef te word nie. Van
die
opgeskorte gedeelte kan net gesê word dat dit nie noodwendig
ondergaan hoef te word nie. Dit bly egter deel van die vonnis
van die
hof en wel 'n deel wat moontlik ondergaan sal moet word. Die noodsaak
van noukeurige afweging van 'n vonnis wat as geheel
geskik is, kan
nie verslap word slegs omdat daar 'n moontlikheid bestaan dat die
opgeskorte gedeelte van die vonnis uiteindelik
nie werklike inslag
sal hê in die sin dat dit ondergaan moet word nie. Dit bly
belangrik om deurgaans onder andere in gedagte
te hou dat die volle
opgelegde vonnis desnoods uitgedien moet word en gevolglik om die
periode van opgeskorte straf in samehang
met die onopgeskorte straf
in noukeurige oorweging te neem.'
Indien bogemelde benadering toegepas
word en daar gelet word op veral die feit dat die beskuldigde 'n
eerste oortreder is en meer
as twee maande in hegtenis was toe hy
gevonnis is, is die alternatiewe gevangenisstraf sowel as die
opgeskorte gevangenisstraf
sodanig onvanpas dat daarmee ingemeng moet
word.”
Also
see
S
v SEOELA
1996
(2) SASV 616 (O).
[10] Considering all the
factors I mentioned, I consider the sentence imposed to be
inappropriate to such an extent that it should
be interfered with.
The sentence mentioned below would be appropriate in view of all the
circumstances of this case as appears
from the record and the
Magistrate’s written reasons.
[11]
It is necessary to mention that it is evident from the record that
there were a number of delays in this matter, both on the
side of the
Court
a
quo
and
this Court. It appears that these delays were due to administrative
problems on the side of the both Courts. Considering when
the accused
was sentenced and considering the reduction of the sentence which I
intend imposing, I consider it in the interest
of justice that a copy
of this judgment should forthwith be send to the Clerk of the Court
a
quo
via
facsimile with the instruction to immediately bring this judgment
under the attention of Correctional Services at the prison
where the
accused is being detained.
[12] Accordingly the
following order is made:
12.1 The conviction is
confirmed.
12.2 The sentence is set
aside and substituted with the following:
“
A
fine of R3 200,00 (three thousand two hundred rand) or 9 months
imprisonment plus 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 140 of 1992 committed during the
period of suspension.”
The sentence must be
deemed to have been imposed on 8 January 2008.
The Registrar is
requested and directed to forthwith send a copy of this judgment
via facsimile to the Clerk of the Court, Ladybrand,
and the said
Clerk of the Court is requested and directed to immediately bring
this judgment to the attention of Correctional
Services at the
prison where the accused is being detained.
____________
C. VAN ZYL, J
I concur.
________________
B. C. MOCUMIE, J