S v Moalodi (758/2007) [2007] ZAFSHC 134 (29 November 2007)

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[2007] ZAFSHC 134
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S v Moalodi (758/2007) [2007] ZAFSHC 134 (29 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review
No.: 758/2007
In
the matter between:
THE STATE
and
TSHEPO MOALODI
CORAM:
VAN ZYL, J
et
MABESELE,
AJ
_____________________________________________________
JUDGEMENT:
VAN ZYL, J
_____________________________________________________
DELIVERED ON:
29 NOVEMBER 2007
_____________________________________________________
[1] The
accused was charged in the Magistrate’s Court of Ficksburg 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 5.4
kilogram dagga. He pleaded guilty to the said charge and was rightly
convicted. The accused
was then sentenced to 6 months imprisonment.
[2] The
matter then served before me on automatic review in the ordinary
cause and I posed the following query to the magistrate:
“Should
the option of a fine not have been included in the sentence? Reasons
for sentence are requested.”
[3] In
response to the aforesaid query, the magistrate reacted as follows:
¡°
The
accused indicated before court that he will not be in a position to
pay a fine (record page 6). The court held a view that it
will be
inappropriate to include an option of a fine in the circumstances.
In
S
v NTLELE
1993 (2) SACR
610
(W), it was held that before a court would be justified in
imposing a fine clearly beyond the ability of the accused to pay, a
proper
enquiry by the court should be held. In the present case such
enquiry was held to establish if the accused was in a position to
pay
or not. (
Record page 6
lines 15-19
). I concede
that when I made this enquiry I did not want to send the accused
directly to jail in the light of his personal circumstances
especially the fact that he is a first offender, pleaded guilty and
had nothing to hide to the court.
I
therefore concede that this case needs interference based on the
aforesaid. However, it is respectfully submitted that, based on
the
enquiry that was made, it would still be inappropriate to include a
fine since it is clear that the accused cannot afford to
pay same.
I have, however, taken cognizance of
the case of
S v Makoae 1997
(2) SACR p. 706 (O),
where
it was held that the income of the accused is not a decisive factor
to establish his ability to pay a fine. In Makoae’s
case it was
also held that an option of a fine has to be provided in cases of
this nature. I am however of the view that its imprisonment
wholly
suspended on condition that the accused is not again convicted of
contravention of
sections 5(b)
or
4
(b) Act 140 of 1992 committed
during the period of suspension, is a suitable sentence in the
present matter. This recommendation
is based on the following
aggravating factors: this offence is very prevalent in the area of
Ficksburg and it should be prevented
from further happening, this was
relatively a high quantity of dagga (5,4 kg), this dagga was conveyed
to Marquard for purposes of
sale.
I
am of the view that this sentence will serve as deterrence towards
prospective offenders whereas on the other hand it will promote
respect for the law.” (
sic
)
[4] I
agree with the magistrate’s concession that the accused should not
have been sent directly to jail and the imposed sentence
therefore
justifies interference. However, I do not agree that a fully
suspended sentence is appropriate, as it will be too lenient
in the
circumstances of this case.
[5] The magistrate, in my
view, correctly referred to the principles set out in the matter of
S
v MAKOAE
1997 (2) SACR 706
(O). In this regard I wish to specifically refer
to the conclusion drawn by Wright J on 709 b – c:
¡°
Hierdie
is duidelik 'n geval waar die beskuldigde nie in staat sal wees om
uit sy eie inkomste 'n boete wat gepas sal wees in die
lig van die
erns van die misdryf te betaal nie. Nogtans word daar saamgestem met
die beginsel, dat in misdade van hierdie aard, die
keuse van 'n boete
aan 'n eerste oortreder verskaf moet word. (Cf bv S v Nxumalo
1992
(2) SACR 268
(O) en S v Monisa
1992 (2) SACR 671
(O) op 672i.)”
[6] In
this instance the accused is a 25 year old first offender. He is
married with two children. His wife is unemployed and at
the time of
his arrest the accused was a hawker selling fruit and he from time to
time assists on farms during plough time. He does
not have a steady
income, but he sometimes earn up to R50,00 per week. I also take
into consideration in the accused’s favour
the fact that he pleaded
guilty to the said charge and that he was only charged with and
convicted of possession of dagga and not
dealing therein.
[7] The aforesaid
mitigating factors and personal circumstances of the accused should
be properly balanced against the aggravating
factors pertaining to
the nature of the offence and the interest of the community. As
correctly pointed out by the magistrate, this
offence is very
prevalent within the area of jurisdiction of the court
a
quo
and
it is the court’s duty to protect the community against the
continuous reoccurrence of these offences. The imposed sentence
should therefore suit both the accused and also serve as deterrence
for prospective offenders.
[8] After a careful
consideration of all the aforesaid facts and circumstances of this
case and in view of the principles stated in
S
v MAKOAE
,
supra
,
with which I respectfully agree, I consider it appropriate that the
accused be granted the option of a fine.
[9] Accordingly
the following order is made:
The conviction is
confirmed.
The imposed sentence is
set aside and substituted with the following:
“
A fine of R800,00 or
in the event of non-payment thereof, 4 months imprisonment.”
9.3 The aforesaid
sentence should be considered to have been imposed on 15 August 2007.
_______________
C. VAN ZYL, J
I
concur.
___________________
M.
M. MABESELE, AJ
/em