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2025
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[2025] ZANCHC 92
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S v Ndaba (R 5/25) [2025] ZANCHC 92 (12 September 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case no: R 5/25
In
the matter between:
THE
STATE
and
SIPHO
NDABA
Accused
Neutral
citation:
S v Ndaba
(Case no
R5/25);
Coram:
Tlaletsi
JP & Lever J
Delivered
:
12 September
2025.
Coram:
Tlaletsi JP and Lever J
ORDER
The following order is
made:
The conviction of the
accused under the provisions of section 5(b) of the Drugs and Drug
Trafficking Act is confirmed.
The sentence of the
court
a quo
is set aside and replaced with “The accused
is sentenced to five (5) years direct imprisonment without the
option of a
fine.”
REVIEW JUDGMENT
Lever J
1.
This matter was referred to me on review.
It is not clear why as it
appears it is not subject to automatic review as the accused was
represented by Legal Aid South Africa.
There was also no covering
letter indicating that a senior magistrate sent it to the High Court
on review. When the matter was
first referred to me it was evident
that certain parts of the transcribed record were missing. After a
written enquiry the missing
parts of the record were provided.
However, the exhibits were still missing.
2.
The accused
was charged and convicted of dealing in drugs under the provisions of
section 5(b) of the Drugs and Drug Trafficking
Act
[1]
.
The accused was found with 78 mandrax pills. There was a slight
discrepancy between laboratory report which listed 76 mandrax
pills
together with some broken pills and powder. The broken pills and
powder may account for the slight discrepancy.
3.
The evidence placed before the court is that
one of the State
witnesses testified that the accused told him that the pills were
broken in half and each half pill was sold for
twenty (20) Rand.
There was no other evidence as to the value of the drugs seized from
the accused. Assuming this to be correct,
the relevant drugs would
have a value of three thousand one hundred and twenty (3120) Rand.
4.
The evidence in mitigation of sentence placed
before the court
a
quo
was that at the time of sentencing the accused was 53 years
old. He is the only person working in his family and he is providing
for the financial needs of his five grandchildren as well. The
accused is diabetic and needs medical care for the condition. Accused
earns three thousand (3000) Rand per month and receives a SASSA grant
of three hundred and seventy (370) Rand per month. The accused
also
had two (2) previous drug related convictions but these were older
than ten (10) years old and the learned trial magistrate
treated
accused as a first offender for sentencing purposes.
5.
The learned
trial magistrate quoted the provisions of sections 13(f) and 17(e) of
the Drugs and Drug Trafficking Act
[2]
verbatim. Despite this the learned trial magistrate from her judgment
clearly believed that the minimum sentence was 25 years direct
imprisonment. Whereas the said section 17(e) clearly states that any
sentence is not to
exceed
25 years. (my emphasis)
6.
Although
section 51(2) of the Criminal Law Amendment Act
[3]
(CLAA) was referred to in the charge put to the accused, the learned
trial magistrate did not consider it in sentencing. Section
51(2) of
the CLAA is only applicable if the value of the drugs in the first
instance is more than fifty thousand (50,000) Rand
or secondly
ten thousand (10,000) Rand if the evidence shows a syndicate is
involved.
7.
Clearly, section 51(2) does not apply because
the value of the drugs
is far less than the amounts required in the CLAA.
8.
On all this information, the learned trial
magistrate sentenced the
accused to twenty years direct imprisonment without the option of a
fine.
9.
I am
satisfied that the conviction is sound. It is beyond any doubt that
there has been a failure of justice on sentencing. Even
though I am
not sure how this matter came before me I am empowered to deal with
this failure of justice by the provisions of section
304(4) of the
Criminal Procedure Act
[4]
.
10.
The learned trial magistrate misread and misapplied the provisions
of
section 17(e) of the Drugs and Drug Trafficking Act. This led
directly to the failure of justice outlined above.
11.
As the learned trial magistrate indicated and found drugs are having
a devastating effect on our communities leading directly to acts of
violence that manifest themselves on the trial roll of the
magistrate’s court concerned. This is an important and
legitimate concern. The learned trial magistrate also points out that
drugs affect our youth depriving them of both their youth and future
prospects in society. Also, a very important concern. The
learned
magistrate also correctly points out that drugs are a threat to the
very fabric of our society. Again, a valid concern.
12.
Despite all of these valid concerns, the correct balance has to be
established in sentencing the accused. There has clearly been a
misdirection in the court
a quo
in sentencing the accused.
This reviewing court has sufficient evidence before it to pass a just
and balanced sentence on the accused.
13.
The sentence of the court a quo stands to be set aside.
14.
In my view a just and balanced sentence in all of the circumstances
of the case would be five (5) years direct imprisonment without the
option of a fine.
Accordingly, the
following order is made:
1.
The conviction of the accused under the provisions
of section 5(b) of
the Drugs and Drug Trafficking Act is confirmed.
2.
The sentence of the court
a quo
is set aside and replaced with
“The accused is sentenced to five (5) years direct imprisonment
without the option of a fine.”
_____________
L.G. Lever
Judge
Northern Cape Division,
Kimberley
I agree,
_______________
L. P Tlaletsi
Judge President
Northern Cape Division,
Kimberley
[1]
Act 140 of 1992.
[2]
As Above.
[3]
Act 105 of 1997.
[4]
Act 57 of 1977.