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[2004] ZAFSHC 92
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S v Mokheea (1075/2004) [2004] ZAFSHC 92 (7 October 2004)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No.: 1075/2004
In the review of:
THE STATE
versus
TEBOGO MOKHEEA
_____________________________________________________
CORAM:
VAN
DER MERWE J
_____________________________________________________
JUDGMENT:
VAN
DER MERWE J
_____________________________________________________
DELIVERED ON:
7
OCTOBER 2004
_____________________________________________________
[1] In consequence of his
plea of guilty, the accused in this matter was convicted of a
contravention of section 4(b) of Act No 140
of 1992, in that he was
in the possession of 7,6 kilogram cannabis. On 25 May 2004 he was
sentenced to a fine of R3 000,00 or six
months imprisonment and a
further 12 months imprisonment wholly suspended for a period of five
years on condition that the accused
is not convicted of contravening
sections 4(b) or 5(b) of Act No 140 of 1992 committed during the
period of suspension.
[2] The record of
proceedings in the magistrate court, consisting of six typed pages,
reached the office of the Registrar of this
Court on 8 July 2004.
Per letter dated 9 July 2004 the magistrate was requested to furnish
reasons for the sentence. Such reasons,
although dated 29 July 2004,
reached the office of the Registrar only on 29 September 2004,
without any explanation. I sincerely
hope that the person or persons
responsible will keep in mind in future that the liberty of citizens
are at stake in these matters
and that such delays will not be
repeated.
[3] The accused is 22
years of age. He is unmarried but the father of a child of three
years old. He passed grade 12 in the year
2002 but was unable to
obtain a permanent job. He did odd jobs for approximately R25,00 per
day. He was supposed to attend an interview
for a job at Ellerines
Furniture on 8 June 2004. From the above it appears that the accused
has the potential to make a useful contribution
to society. The
magistrate did not inquire from the accused as to the purpose of his
possession of the cannabis. Accordingly it
must be accepted for the
purpose of sentence that he possessed it for personal use. The
accused is a first offender.
[4] In these
circumstances the sentence imposed is in my view startingly
inappropriate. Also, the magistrate seriously misdirected
himself by
sentencing the accused on the basis that the accused was in
possession of the dagga for purposes of transporting it to
be used
for a purpose other than personal use. The sentence must therefore
in my judgment be set aside. In all the circumstances
a sentence of
a fine of R750,00 or three months imprisonment is in my view
appropriate.
[5] The conviction is
confirmed but the sentence is accordingly set aside and substituted
with a sentence of a fine of R750,00 or
three months imprisonment,
which must be deemed to have been imposed on 25 May 2004.
________________________
C.H.G. VAN DER MERWE.
J
/sp