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[2004] ZAFSHC 151
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S v Dongala (1594/2004) [2004] ZAFSHC 151 (2 December 2004)
IN THE SUPREME
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No: 1594/2004
In
the review of:
THE
STATE
versus
MATSHIDISO
REGINA DONGALA
CORAM:
WRIGHT
J et VAN DER MERWE J
JUDGMENT:
VAN
DER MERWE J
DELIVERED ON:
2
DECEMBER 2004
[1] The accused in this
matter was convicted of possession of 11 kilograms of dagga in
contravention of
section 4(b)
of the
Drugs and Drug Trafficking Act,
no. 140 of 1992
. On 12 July 2004 the accused was sentenced to a
fine of R4000,00 or 8 months imprisonment and a further 12 months
imprisonment
wholly suspended for a period of 5 years on condition
that the accused is not convicted of contravention of
section 4(b)
or
5
(b) of Act no. 140 of 1992 committed during the period of
suspension. The record of proceedings was received by the
Registrar of
this Court only on 29 September 2004 and reasons
requested the following day, were received in the office of the
Registrar on 10
November 2004. No reasons for the delay were
furnished. The conviction is in accordance with justice but the
sentence, in my
judgment, is not.
[2] In reasons for
sentence supplied by the magistrate
inter
alia
the following was said:
âAccused
was found in possession of 11 kilograms of
dagga. Accused was
taking the dagga to its
destination.
It was clear that accused was not
going to use that
substance herself. She was either delivering
it to someone else or she was going to sell it herself. The
accused did not have
the
necessary certificate or permission
from a duly
qualified doctor to possess and use that substance.
The street value of the said dagga is estimated at
about
R11 000-00.â
[3] The aforesaid reasons
for sentence of the magistrate contain serious misdirections. The
accused pleaded guilty and was at no
stage required to explain why
she was in possession of the dagga. There is no basis for the
finding that the accused was not in
possession of the dagga for
personal use but possessed it for the purpose for either delivering
it to somebody else or to sell it herself. In any event,
the
accused was charged with and convicted of possession of dagga and
can clearly not be sentenced on the basis that she may have
dealt in
dagga within the definition thereof in section 1 of Act no. 140 of
1992. Also there is no evidential basis on record
at all for the
aforesaid estimation of the street value of the dagga. It follows
that the sentence cannot stand.
[4] The accused is 24
years of age and a first offender. She pleaded guilty. She is
single and unemployed but has two children.
In all these
circumstances I consider a fine of R1200,00 or 4 months imprisonment
to be a suitable sentence.
[5] The conviction is
confirmed but the sentence is set aside and replaced with a sentence
of a fine of R1200,00 or 4 months imprisonment,
which must be deemed
to have been imposed on 12 July 2004.
________________________
C.H.G.
VAN DER MERWE, J
I
CONCUR:
______________
G.F.
WRIGHT, J
/ec