S v Balette (1325/2006) [2007] ZAFSHC 8 (2 February 2007)

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[2007] ZAFSHC 8
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S v Balette (1325/2006) [2007] ZAFSHC 8 (2 February 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 1325/2006
In
the review between:-
THE
STATE
versus
ROSALIA
BALETTE
_____________________________________________________
CORAM:
WRIGHT
J
et
VAN ZYL J
JUDGMENT
BY:
WRIGHT J
_____________________________________________________
DELIVERED
ON:
1 FEBRUARY 2007
_____________________________________________________
[1] In this matter the
accused was convicted of dealing in dagga (the contravention of
section 5(b) of Act No. 140 of 1992) and sentenced
to a fine of R7
000,00 or 6 (six) years imprisonment with a further 2 (two) years
imprisonment suspended for 4 (four) years on appropriate
conditions.
[2] With regard to the
personal circumstances of the accused it can be mentioned that she
made the following submissions. She was
50 years old and separated
from her husband. She has four children who are 25, 18 and 16 years
old (the other one died). She is
selling second-hand items in the
street and earns approximately R1 000,00 per month from the sales.
She is an out-patient with high
blood pressure which was first
diagnosed as low blood pressure and she suffered frequent attacks as
a result of this condition which
affected her legs. She has two
grandchildren who are attending school. She obtained the dagga by
exchanging clothes which she sells.
[3] Important also is the
fact that she pleaded guilty and also had no previous convictions.
[4] The aggravating
circumstances are the fact that this is a crime which occurs
frequently in the area of jurisdiction of the Court
a quo
.
There was also a large amount of dagga involved namely 123,45
kilogram.
[5] The magistrate
referred to the matter of
S v KHANJWAYO
;
S v
MIHLALY
1999 (2) SACR 651
(O). This is however a matter in
which a crime was regulated by section 51 of Act No. 105 of 1997 and
where a minimum sentence was
applicable. This is not the case in the
present matter. A further case which can be referred to is the
matter of
S v HLONGWANE
1998 (1) SACR 221
(O) where
148,25 kilogram dagga was involved. In this matter the accused, a 35
year old first offender, was sentenced to four years
imprisonment of
which two years was suspended. This was confirmed on appeal. It is
significant that a larger amount of dagga was
involved in the present
matter.
[6] A further important
point is that there must be a balance between the fine imposed and
alternative imprisonment. This was pointed
out in the matter of
S
v KAPENG
1992 (1) SASV 596 (O). See also
S v MAKOAE
1997 (2) SACR 705
(O). The following passage on p. 709 b – f of
the latter judgment is particularly relevant:
“
Wat
meer kommentaar vereis is die verhouding tussen die boete en die
alternatiewe gevangenisstraf. Dit het in elk geval geblyk dat
die
beskuldigde nie eers in staat was om die boete van R3 000 te betaal
nie. Selfs al sou die boete dubbel die bedrag wees wat inderdaad
opgelê is, sou dit nog 'n relatiewe ligte straf wees in verhouding
tot 30 maande gevangenisstraf. Selfs 'n persoon met 'n relatiewe
geringe inkomste van ongeveer R6 000 per jaar, sou eerder ten alle
koste wou poog om die boete te betaal eerder as om vir twee en
'n
half jaar tronk toe te gaan. Die verhouding van boetes wat opgelê
word teenoor die alternatiewe gevangenisstraf het nie tred
gehou met
die waardevermindering van geld nie. (Sien
S
v Kapeng
1992 (1) SACR 596
(O) en die sake daar aangehaal, asook die
hersieningsuitspraak in
S
v Andries Motsamai
(hersieningsno 132/97).) Dit geld des te meer in 'n geval soos
hierdie waar dit vir die landdros duidelik moes gewees het dat die
beskuldigde nie in staat sal wees om die boete te betaal tensy hy
finansiële hulp van 'n vriend of familielid ontvang nie of oor
ander
onverklaarde bates beskik wat hy te gelde kon maak.”
[7] In this matter
alternative imprisonment of six years is totally out of proportion
with a fine of R7 000,00.
[8] Considering all the
factors 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.
[9] Accordingly the
conviction is confirmed and the sentence set aside and substituted
with the following sentence:
A fine of R7 000,00
(seven thousand rand) or 30 (thirty) months imprisonment plus a
further 2 (two) years imprisonment wholly suspended
for 4 (four)
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 30 October 2006.
_____________
G.F. WRIGHT, J
I concur.
____________
C.
VAN ZYL, J
/sp