S v Hantsi (370/2005) [2005] ZAFSHC 121 (7 April 2005)

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[2005] ZAFSHC 121
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S v Hantsi (370/2005) [2005] ZAFSHC 121 (7 April 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review Case No.: 370/2005
In
the case between:
THE STATE
and
MOTLALEPULA SNYMAN
HANTSI
CORAM:
HANCKE J
JUDGEMENT:
HANCKE J
_____________________________________________________
DELIVERED ON:
7 APRIL 2005
_____________________________________________________
According
to the J4 form the accused was convicted of contravening Section 4(a)
or 4(b) read with Section 1,3,17 to 25 and 64 of Act
140/1992
(possession or use of drugs).
He
was sentenced as follows: R3 000,00 or 18 months imprisonment of
which R1 000,00 or 6 months imprisonment is suspended for a period
of
3 years on condition that the accused is not again convicted of
contravening Section 5(b) of Act 140/1992 committed during the
period
of suspension.
When
sending the matter on review, the magistrate stated the following:
“
It appears to me that the
conviction can either be of contravening Section 4(a) or contravening
Section 4(b) of Act 140/1992 and not
both.”
I
agree with these remarks.
It is apparent from the
record of the proceedings that the accused was charged with
contravening Section 4(b) of the said Act and
that he was found
guilty “as charged.”
Although the accused was
found in the possession of 1,12kg dagga he is a 41 year old first
offender. He earned R700,00 as a driver
but he lost his job due to
the fact that he was arrested for the present case and spent some
time in custody. He is a married man
with two children. He uses the
dagga for medicinal purposes because he has difficulty in breathing.
Apart from the fact that the
sentence refers to a contravention of
Section 5(b) which is wrong, the sentence also appears to be too
severe in the circumstances.
Accordingly
the following orders are issued:
1. The conviction is set
aside and substituted with the following:
“
Contravening
Section 4(a) read with Section 1, 3, 17 to 25 and 64 of Act 140/1992
(possession of dagga).”
2. The sentence is set
aside and substituted with the following:
“
A
fine of R1 200,00 or 6 months imprisonment of which R600,00 or 3
months imprisonment is suspended for a period of 3 years on condition
that the accused is not again convicted of contravening Section 4(a)
of Act 140/1992, committed during the period of suspension.
The
sentence is antedated to 23
rd
March 2005.
________________
S.P.B.
HANCKE, J
/em