S v Maseko (598/2007) [2007] ZAFSHC 96 (13 September 2007)

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[2007] ZAFSHC 96
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S v Maseko (598/2007) [2007] ZAFSHC 96 (13 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 598/2007
In
the review between:-
THE
STATE
and
JOSEPH
MASEKO
_____________________________________________________
CORAM:
VAN
ZYL J
_____________________________________________________
JUDGEMENT
BY:
VAN
ZYL J et MOLEMELA AJ
_____________________________________________________
DELIVERED
ON:
13
SEPTEMBER 2007
_____________________________________________________
[1] The accused was
charged with the offence of contravening
section 4(b)
of the
Drugs
and Drug Trafficking Act, 140 of 1992
, being the use or possession of
2,6 kilogram dagga. He pleaded guilty to the said charge and was
rightly convicted. The accused
was then sentenced as follows:
“
Fined
R2 000.00 (two thousand rand) or 9 (nine) months imprisonment of
which 5 (five) months imprisonment or R1 000.00 (one thousand
rand)
is suspended for a period of 5 (five) years on condition that accused
is not convicted of contravening
section 4(b)
of the
Drugs and Drug
Trafficking Act 140 of 1992
committed during the period of
suspension. Plus 30 (thirty) days imprisonment wholly suspended for
a period of 5 (five) years same
conditions (applicable) as above.”
(
sic
)
[2] It was furthermore
ordered in terms of
section 103(2)
of the
Firearms Control Act, No.
60 of 2000
, that the accused was declared unfit to possess a firearm.
[3] The
matter was then sent on special review with the request that the
sentence be amended by setting aside the part of the sentence
that
reads “plus 30 (thirty) days imprisonment wholly suspended for a
period of 5 (five) years ...”. The magistrate based this
request on
the following:
“
It
is my respectful and humble submission that I bona fide erred as
imposing the above mentioned sentence…. I noticed the mistake
when
I was proof reading the record” (
sic
)
[4] The
special review served before Wright J and he then posed the following
queries to the magistrate:
“
1. Reasons for sentence are
required as the alternative imprisonment (9 months, although
partially suspended) seems heavy in relation
to the fine.
2. Reasons
are requested with regard to the decision to declare the accused
unfit to possess a firearm.
3. On
receipt of the above reasons the Court will deal with the Special
Review.”
[5] In response to the
aforesaid queries, the magistrate reacted as follows:
“
It is the humble submission of this
court that upon a proper perusal of the court record the court humbly
concedes (in retrospect)
that the sentence imposed by this court is
indeed harsh in the circumstances.
In light of the
decision in
S
v Kolobe
2006 (1) SACR 118
I humbly request the Honourable Reviewing Judge to set aside the
order declaring accused unfit to possess a firearm.
I
respectfully request that the Honourable Reviewing Judge to alter the
sentence accordingly.” (
sic
)
[6] I agree with the
magistrate that the 30 (thirty) days suspended imprisonment imposed
in addition to the sentence of R2 000,00
(two thousand rand) or 9
(nine) months imprisonment should be set aside. Although such an
additional term of imprisonment is a competent
sentence in terms of
the
Drugs and Drug Trafficking Act for
purposes of the offence of
possession of dagga, it is normally reserved for circumstances where
the applicable offence is one of
dealing in dagga. The imposition
thereof in a matter of possession of dagga, in my view, definitely
makes the sentence shockingly
harsh and not in accordance with
justice.
[7] With
regard to the rest of the imposed sentence, I agree with the view
expressed by Wright J that the term of imprisonment seems
unduly
harsh in relation to the fine. However, in my view, and even should
this imbalance be rectified, the whole of the said sentence
still
remains too harsh. In the particular circumstances of this case,
considering the weight of the dagga, the answers given during
the
questioning in terms of
section 112(1)(b)
and the personal
circumstances of the accused, I consider a sentence of R900,00 (nine
hundred rand) or 3 (three) months imprisonment
an appropriate
sentence.
[8] As
far as the order declaring the accused unfit to possess a firearm is
concerned, the magistrate in her response to the queries
raised by
Wright J, rightly referred to the judgment of
S
v KOLOBE
2006 (1) SACR 118
(O), which is on all fours with the current matter.
In that judgment Musi J, with whom Wright J concurred, stated as
follows:
“
With respect, there was no basis
for assuming that this particular accused has a propensity for
violence or that he was likely to
misuse a firearm in the future. As
a matter of fact, the offence for which he has been convicted has
nothing to do with a firearm
or use of violence of whatever nature.
The
question I posed was specifically whether it was competent to make
the order in question in the circumstances of this case.
Section
103(1)
of the
Firearms Control Act lists
the offences in respect of
which a person may be declared unfit to possess a firearm.
Subsections (h) and (j) are the only ones that
may possibly apply to
the instant case. Subsection (h) provides for declaration of
unfitness in respect of any offence for which
an accused has been
sentenced to a period of imprisonment without the option of a fine.
This provision is certainly not applicable
to the instant case.
Subsection (j) relates to any offence involving the abuse of alcohol
or drugs. Now the accused has confessed
that he kept the dagga found
in his possession for purpose of smoking it. There is no indication,
however, that he abuses it. It
is significant that the subsection
says 'abuse of alcohol or drugs'. Just as one may drink alcohol
without abusing it, so is it that
one may smoke dagga without abusing
it. It is significant also that possession of dagga has not been
included in the offences listed
under
s 103(1)
, whereas dealing in
dagga is specifically listed under the subsection immediately
following ss (j). In my view, that clearly shows
that the Legislature
could not have intended that unfitness to possess a firearm should
befall a person convicted of mere possession
of a drug.
Section
103(2)
refers to offences listed in Schedule 2 to the Act and
stipulates that a court convicting a person of such offences must
enquire
whether the person is fit to possess a firearm. The only
instance that may possibly apply to the instant case is that listed
under
item 7(a), but then, this refers to an offence provided for in
the
Firearms Control Act or
its predecessor. The accused has not been
convicted of a contravention of the provisions of the
Firearms
Control Act and
this provision does not apply to him.
I
come to the conclusion that it was not competent to invoke the
provisions of
s 103
of Act 60 of 2000. There was no basis for
invoking such provision in the instant case.”
[9] Consequently the
order declaring the accused unfit to possess a firearm, was not a
competent order and should be set aside.
[10] The
following order is therefore made:
1. The
conviction of the accused is confirmed.
2. The sentence is set
aside and substituted with the following:
A
fine of R900,00 (nine hundred rand) or 3 (three) months imprisonment.
The order declaring the
accused to be unfit to possess a firearm, is set aside.
____________
C. VAN ZYL, J
I
concur.
__________________
M.B MOLEMELA, AJ
/sp