S vs Moloke [2007] ZAFSHC 105 (20 September 2007)

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[2007] ZAFSHC 105
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S vs Moloke [2007] ZAFSHC 105 (20 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 775/07
In
the review between:-
THE
STATE
versus
MASIKANE
JOSEPH MOLOKE
_______________________________________________________
CORAM:
VAN
ZYL, J
et
MOLEMELA,
AJ
_______________________________________________________
JUDGMENT
BY:
MOLEMELA,
AJ
_______________________________________________________
DELIVERED
ON:
20
SEPTEMBER 2007
_______________________________________________________
[1] The
accused was charged with the offence of contravention of
section 4(b)
of the
Drugs and Drug Trafficking Act, 140 of 1992
being the use or
possession of 2 g of dagga. The accused was then sentenced as
follows:
“
Fined
R1000.00 (One Thousand Rands) or 100 (Hundred) days imprisonment
which is accused (sic) suspended 3 (Three) years on condition
that
accused
accused are (sic) not to be found guilty of contravening
Section 5(b)
or
4
(b) of Act 140/1992 committed during the period of suspension.”
[2] The matter was then
sent to this Court as an automatic review. The record of the
proceedings was sent to this Court together
with a letter from the
magistrate in which the following was stated:
“
After
imposing a sentence in case A2492/07, S v M.J. Moloke I realized that
the sentence as imposed is to
o
harsh and respectfully request you to intervene and impose a suitable
sentence.”
[3] The
magistrate, quite correctly, did not declare the accused unfit to
possess a firearm – see
S
v KOLOBE
2006 (1) SACR 118
(O).
[5] With regards to the
sentence imposed, I do agree with the magistrate that an intervention
is necessary. In the first place, the
erroneous inclusion of the
word “accused” renders the sentence somewhat vague. In the
second place, the amount of the fine is
disproportionately heavy in
relation to the alternative period of imprisonment. Thirdly, when
consideration is had to the weight
of the dagga (2 g), that the
accused readily pleaded guilty to the charge and that he was a first
offender, the whole sentence seems
rather harsh under the
circumstances. I would consider a wholly suspended sentence of
R500.00 (five hundred rand) or 2 (two) months’
imprisonment to be a
more appropriate sentence.
[6] 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 R500.00 (five
hundred rand) or 2 (two) months’ imprisonment, wholly suspended for
3 (three) years on condition that the
accused is not convicted again
of contravention of
section 4(b)
of Act 140 of 1992, committed during
the period of suspension.
__________________
M.B. MOLEMELA, AJ
I
concur.
____________
C. VAN ZYL, J
/sp