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2007
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[2007] ZAFSHC 53
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S v Tlhorisho (390/2007) [2007] ZAFSHC 53 (28 June 2007)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 390/2007
In the review between:-
THE STATE
versus
PHILLIP AYANDA
TLHORISHO
_____________________________________________________
CORAM:
VAN
DER MERWE J
et
VAN ZYL J
_____________________________________________________
JUDGMENT BY:
VAN
DER MERWE J
_____________________________________________________
DELIVERED ON:
28
JUNE 2007
_____________________________________________________
[1] The accused pleaded
guilty to possession of dagga in contravention of
section 4(b)
of the
Drugs and Drug Trafficking Act, No. 140 of 1992
and he was properly
convicted in accordance with his plea of guilty. The accused was
then sentenced to a fine of R1 200,00 or 4
(four) months imprisonment
as well as an additional 3 (three) months imprisonment wholly
suspended for a period of 5 (five) years
on condition that the
accused is not convicted of contravention of
section 4(b)
of Act No.
140 of 1992 committed during the period of suspension.
[2] In the charge sheet
it was alleged that the accused was in possession of 60 grams of
dagga. During questioning in terms of section
112(1)(b) of the
Criminal Procedure Act, No. 51 of 1977
, the accused was not asked to
admit the alleged mass of the dagga. The accused however said that
he was in possession of two âcushionsâ
of dagga which he bought
for R5,00 apiece for purposes of smoking them himself. The accused
should therefore have been sentenced
on the basis that he was in
possession of dagga of which the so-called street value was only
R10,00.
[3] The accused was
undefended. He elected not to testify under oath before sentence.
However during specific questioning by the
magistrate in this regard,
the accused said that he will not stop smoking dagga. This was
regarded by the magistrate as a strong
aggravating factor. The
magistrate also held it against the accused that he was smoking dagga
with so-called street kids and that
he therefore did not have their
best interests at heart. Moreover, the magistrate sentenced the
accused on the basis that street
kids get dagga â... from people
like youâ.
[4] I strongly doubt
whether it is a fair procedure for a magistrate to question an
accused in these circumstances on whether he intends
to stop smoking
dagga or not. In any event, to regard an answer by the accused that
he will not stop smoking dagga as an aggravating
factor, in my view
amounts to punishing the accused for his honesty whilst ignoring the
addictive effect of smoking dagga. Common
experience shows that the
majority of accused persons who in these circumstances promise to
stop smoking dagga, are either downright
dishonest or will fail to
keep a promise honestly made. There was no evidentiary material
before the magistrate to the effect that
the accused smoked dagga
with or even in the presence of the street kids. The accused only
said that when he was arrested for being
in possession of dagga, he
was in the presence of the street kids who were themselves in
possession of their own dagga. Similarly,
there is no basis
whatsoever for a finding that the accused belongs to a group of
persons that supply street kids with dagga. As
a result of these
misdirections, the sentence cannot stand.
[5] The
accused is 28 years of age, single and a first offender. He is
unemployed but did odd jobs for R150,00 â R250,00 per day.
As
stated above, he was in possession of a small amount of dagga for own
use. In my view a sentence of R600,00 or 2 (two) months
imprisonment
is appropriate in the circumstances of this case.
[6] In the result the
sentence is set aside and replaced with a fine of R600,00 or 2 (two)
months imprisonment.
________________________
C.H.G. VAN DER MERWE,
J
I agree.
____________
C. VAN ZYL, J
/sp