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2004
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[2004] ZAFSHC 107
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S v Ramohlabi (1593/2004) [2004] ZAFSHC 107 (18 November 2004)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 1593/2004
In
the review between:
THE
STATE
versus
THABO
RAMOHLABI
_____________________________________________________
CORAM:
WRIGHT
J
et
RAMPAI
J
JUDGMENT:
RAMPAI
J
DELIVERED ON:
18
NOVEMBER 2004
[1] The accused was
convicted in the Wepener district court on 29 June 2004 for
possession of 4,45 kg of dagga in contravention of
section 4(b) Act
No. 140/1992. On 12 July 2004 he was sentenced to R4 000,00 or 4
months imprisonment in addition to a prison term
of 8 months which
was conditionally suspended for 5 years.
[2] Subsequently the case
came on review before Van der Merwe J. He asked the magistrate to
furnish reasons for the sentence.
[3] The
magistrate responded by saying that the sentence was an appropriate
punishment because Wepener was on the border between this
province
and Lesotho from where the criminals often smuggled dagga into this
country as the accused had done. He went on to say
that the sentence
would teach the accused that crime does not pay.
[4] The
following are mitigating factors:
The quantity of dagga
found in the possession of the accused was 4,45 kg.
He was a first
offender.
[5] I am of the opinion
that the sentence is shockingly severe and inappropriate in these
circumstances. It is not commensurate to
the crime committed. I
would therefore set it aside.
[6] There is one aspect
which I find particularly disturbing. I wish to deal with it before
I make an order in this case. The sentence
was imposed on 12 July
2004. The magistrate signed the J4 review form about six weeks
later, on 27 August 2004. The registrar received
the file from the
magistrate on 29 September 2004, over ten weeks after the sentence
was imposed. Van der Merwe Jâs query to the
magistrate was written
on 30 September 2004. The magistrateâs reply thereto dated 1
November 2004 was received by the registrar
yesterday on 10 November
2004. All these delays have seriously prejudiced the accusedâs
right of review. The effect of it all
is that the intervention of
this Court on review becomes a meaningless exercise for the accused.
If he was unable to pay the excessive
fine, he probably served a
longer prison term he was not supposed to have served.
[7] I do not know the
reasons for all these delays. However, I would urge the magistrate
to ensure that files for reviews are immediately
sent to this Court
so that recurrences of this nature can be avoided in the future. I
am aware that postal delivery service aggravated
the situation to a
certain extent, which is so much the reason why reviews should always
be posted in good time.
[8] Accordingly I make
the following order.
The conviction is
confirmed.
The sentence is set
aside.
The sentence is
replaced with the following:
The accused is fined R1
500,00 or 3 months imprisonment plus a further 3 months imprisonment
which is wholly suspended for 3 years
on condition that he is not
again found guilty of possession of dagga committed during the period
of suspension.
The dagga in question
is declared forfeited to the State.
The sentence shall be
deemed to have been imposed on 12 July 2004.
Should the accused have
paid more than R1 500,00 in respect of the fine; the difference
must be repaid to him.
______________
M.H. RAMPAI, J
I concur.
_____________
G.F WRIGHT, J
/spieterse