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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: CA & R 19/2025
In the matter between:
XOLANIMAY Appellant
and
THE STATE Respondent
Neutral citation: May v The State (CA & R 19/2025) (19 September 2025)
Coram: PHA TSHOANE DJP and MAMOSEBO J
Heard: 21/07/2025.
Delivered: 19/09/2025.
Summary: Criminal Law - Appeal against sentence of five years' imprisonment
for contravention of s 4( b) of the Drugs and Drug Trafficking Act, 140 of 1992 -
Whether the trial court over-emphasized the seriousness of the offence and the
interests of society - Under-emphasized the personal circumstances of the
appellant - Whether all sentencing options other than direct imprisonment were
considered - Whether the sentence is shockingly harsh or inappropriate.
YES/ NO
YES / NO
YES/ NO
YES / NO
2
ORDER
On appeal from: the Magistrates' Court for the District of ZF Mgcawu,
Upington (Magistrate Maje, sitting as a trial court):
1. The appeal against the sentence is upheld.
2. The sentence imposed by the trial court on 26 September 2024 is set aside,
and replaced with the following:
'The accused is sentenced to two years' imprisonment, of which one year
is suspended for three years on condition that the accused is not found
guilty of contravening s 4( a) or 4( b) of Act 140 of 1992 during the period
of suspension.'
3. The sentence is antedated to 26 September 2024.
JUDGMENT
Mamosebo J (Phatshoane DJP concurring)
[ 1] At the heart of this appeal is the question whether the Magistrate,
following the conviction of the appellant in the Magistrates' Court for the
district of ZF Mgcawu, Upington, erred in imposing a five-year
imprisonment on him. The appellant had pleaded guilty in terms of s
112(2) of the Criminal Procedure Act 51 of 1977 (the CPA) to possession
or use of 5 Mandrax tablets and 13 quarter Mandrax tablets containing
methaqualone in contravention of s 4( b) of the Drugs and Drug
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Trafficking Act 140 of 1992. With leave of this Court, he is before us on
appeal against his sentence only.
[2] The grounds upon which the appellant relied for this appeal were that the
trial court erred in over-emphasizing the seriousness of the offence and
the interests of society; under-emphasizing the personal circumstances of
the appellant; not considering the other sentencing options other than
direct imprisonment; and imposing a sentence that is shockingly harsh
and inappropriate.
[3] What can be distilled from the appellant's plea explanation is the
following. He made the statement freely and voluntarily without undue
influence whilst in his sound and sober senses. He pleads guilty to
possession of drugs. On 13 May 2024, he was at his place of residence in
Upington when he was accosted by the police. They enquired whether
drugs are being sold at his residence. He denied selling drugs but admitted
to smoking them. He gave them permission to search the house. They
found the drugs described in paragraph 1 above. He admits the correctness
of the affidavit compiled by W/O Rixile Adelaide Mthombeni in terms of
s 212 of the CPA that determined that the exhibit contained methaqualone.
He knew that his actions were unlawful and punishable by law. The State
accepted the appellant's plea to possession of drugs and the Magistrate
convicted him as charged. The State did not prove any previous
convictions.
[4] The following were the personal and mitigating circumstances. The
appellant is a first offender. He was 34 years old on conviction. He was
cohabiting with his girlfriend. He has two children aged 14 and 7 years.
He has a chronic health condition and is unemployed. He is supported by
his family and girlfriend. His highest level of education is Grade 12. He
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was awaiting trial for three days whilst in detention. It was contended for
him that he is a suitable candidate for rehabilitation. It was further
submitted that he has stopped using drugs since his incarceration. He has
pleaded guilty and did not waste the court's time. The defence requested
a wholly suspended sentence, as being appropriate in the circumstances.
[5] In aggravation of sentence, the prosecutor submitted that the offence was
prevalent in the court's area of jurisdiction; that the drugs that the accused
had been found to have possessed contained methaqualone, which is
highly addictive. This drug dependence leads to domestic violence, which
is destroying the future of the community; housebreaking; and increased
robbery statistics. However, there was no evidence before the trial court
to support these submissions. The State supported the defence that a
suspended sentence would be suitable.
[6] The trial court regarded the offence as very serious and remarked:
'The accused is convicted of a very serious offence when one looks at the charge sheet
there is a question that comes to the court's mind why he was not charged for dealing
in drugs? Because a person who is unemployed cannot be found in possession of
5 full Mandrax tablets and 13 quarters. Mandrax is not like water or food parcel or
something that government can give you for free. They are expensive and you cannot
afford so many of them if you are not working.
These days you can struggle to get cold water but not drugs. So enough is enough with
drugs ... with drug possession and drug dealers in our communities and from today
moving forward the Court will start sending a me ssage that says enough is enough.'
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These sentiments by the trial court are not borne out by the evidence and
regrettably reflect the trial court's lack of an individualised approach to
sentencing. 1
[7] In sentencing the accused to five years' direct imprisonment, the trial
court limited itself to only two sentencing options and remarked that it
could not impose a fine because the appellant was unemployed. It further
remarked that it would not be appropriate to consider cautioning and
discharging the appellant, as that sentence would send a wrong message
to the community.
[8] Mr Jacobs, for the State, conceded that the trial court has failed to exercise
its discretion judicially when sentencing the appellant and that the
sentence is shockingly inappropriate and must be set aside and substituted
with a sentence this court deems just.
[9] It is necessary to reiterate the trite sentencing principle that punishment is
pre-eminent1y a matter for the trial court's discretion.2 The circumstances
in which a court of appeal may interfere in the sentencing discretion of a
lower court are circumscribed. The principles were restated in S v Malgas3
in the following terms:
'The mental process in which courts engage when considering questions of sentence
depends upon the task at hand. Subject of course to any limitations imposed by
legislation or binding judicial precedent, a trial court will consider the particular
circumstances of the case in the light of the well-known triad of factors relevant to
sentence and impose what it considers to be a just and appropriate sentence. A court
exercising appellate jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question of sentence as if it were the trial court and then
1 See Makgobo v S (A 121/2023) [2023] ZA WCHC 238 (8 September 2023) para 9.; see also Director of Public
Prosecutions, Free Stale v Mokati [2022] 2 All SA 646 (SCA), 2022 (2) SACR l (SCA) para 53.
2 S v Rabie (1975] 4 All SA 723 (A), 1975 (4) SA 855 (A) at 857D-E.
2 S v Rabie (1975] 4 All SA 723 (A), 1975 (4) SA 855 (A) at 857D-E.
3 2001 (1) SACR 469 (SCA), 2001 (2) SA 1222 (SCA), [2001] 3 All SA 220 (A) para 12.
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substitute the sentence arrived at by it simply because it prefers it. To do so would be
to usurp the sentencing discretion of the trial court. Where material misdirection by
the trial court vitiates its exercise of that discretion, an appellate Court is of course
entitled to consider the question of sentence afresh. In doing so, it assesses sentence
as if it were a court of first instance and the sentence imposed by the trial court has no
relevance. As it is said, an appellate Court is at large. However, even in the absence
of material misdirection, an appellate Court may yet be justified in interfering with
the sentence imposed by the trial court. It may do so when the disparity between the
sentence of the trial court and the sentence which the appellate Court would have
imposed had it been the trial court is so marked that it can properly be described as
"shocking", "startling" or "disturbingly inappropriate". It must be emphasised that in
the latter situation the appellate Court is not at large in the sense in which it is at large
in the former. In the latter situation it may not substitute the sentence which it thinks
appropriate merely because it does not accord with the sentence imposed by the trial
court or because it prefers it to that sentence. It may do so only where the difference
is so substantial that it attracts epithets of the kind I have mentioned. No such
limitation exists in the former situation.'
[ 1 O] It is also trite that each case has to be decided on its own facts, and
sentences imposed in similar cases do not bind the sentencer' s discretion
but rather provides guidelines for sentencing. The Appellate Division in
S v Sinden4 explained:
'Decided cases dealing with sentence may be of value also as providing guidelines for
the trial court's exercise of discretion (see S v S 1977 (3) SA 830 (A)) and they
sometimes provide useful guidance where they show a succession of punishments
imposed for a particular type of crime. (See R v Karg 1961 ( 1) SA 231 (A) at 2360).
imposed for a particular type of crime. (See R v Karg 1961 ( 1) SA 231 (A) at 2360).
But it is an idle exercise to match the colours of the case at hand and the colours of
other cases with the object of arriving at an appropriate sentence. "(E)ach case should
be dealt with on its own facts, connected with the crime and the criminal ... "'
4 1995 (2) SACR 704 (A) at 708A- B.
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[11] Similarly, in S v D 5, it was aptly stated that 'decided cases on sentence
provide guidelines, not straitjackets'. Further, in S v PB 6 the Supreme
Court of Appeal cautioned against a slavish following of decided cases on
sentences, which could result in an abdication by the court of 'its duty and
discretion to consider sentence untrammelled by sentences imposed by
another court, albeit in a similar case'. 7 On the other hand, it is equally
important that sentences imposed in similar cases must be seen to be
consistent. 8 And it is indeed also for this reason that value can be gained
by considering sentences imposed in comparable cases.9 Regard being
had to these principles, I now turn to consider a few cases.
[12] In S v Collins10, the 37-year-old appellant was convicted of dealing in one
Mandrax tablet in contravention of s 2(a) of the Abuse of Dependence
Producing Substances and Rehabilitation Centres Act 41 of 1971. He was
sentenced to four years' imprisonment of which two years were
conditionally suspended for five years. On appeal, the sentence was
altered to two years' imprisonment wholly suspended for five years on
appropriate conditions.
[13] The accused in S v Harding11 was convicted on three counts of
contravening s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992,
in that he had sold 112 tablets of lysergic acid diethylamide (LSD)
through police traps on three separate occasions. On appeal, the
convictions were confirmed, but the sentence of eight years imprisonment
5 1995 (1) SACR259 (A) at 260E .
6 2013 (2) SACR 533 (SCA) para 16.
7 See also Director of Public Prosecutions, Free State v M okati, Ibid fn l, para 87.
8 See S v McMillan 2003 (1) SACR 27 (SCA) para 10.
9 S v Tiry and Others 2021 (1) SACR 349 (SCA) para 120.
10 1990 (1) SACR 577 (A).
II 1996 (]) SACR 503 (C).
8
was set aside and substituted with a sentence of three years of correctional
supervision in terms of s 276(l)(h) of the CPA.
[14] The accused who was 42 years old and a first offender was convicted in
the Magistrates' Court of possession of six Mandrax tablets in S v
Markus 12. Because he had already spent five months in prison awaiting
trial, and earned R3 50 per week with four minor children to support, the
appeal court found the sentence of R2000 or 18 months' imprisonment to
be harsh. The appeal court set aside the sentence and substituted it with a
fine ofR500 or four months' imprisonment.
[15] The Appellate Division in S v Masike13 set aside the sentence of eight
years' imprisonment which was conditionally suspended for the sale of
250 Mandrax tablets. The court found that the 53-year-old appellant
committed a serious offence and had criminal propensity, but played a
minor role in the sale of the tablets. The sentence was substituted with
four years' imprisonment, of which two years were suspended for five
years on specified conditions.
[ 16] In casu, the number and form in which the tablets were found at the
appellant's residence raises a cause for concern. However, a court must
adjudicate the matter on the objective facts placed before it and exclude
speculative hypotheses, contrary to what the Magistrate has done. Regard
being had to the above considerations and authorities; submissi.ons made
from the point of view of deterrence, retribution, prevention and
rehabilitation; as well as the appellant's plea of guilty and personal
mitigating circumstances, the imposition of a lesser sentence is justified.
In any event, the sentence imposed is out of kilter with those imposed in
comparable cases as well as the sentence this Court would impose under
u 1997 (2) SACR 538 (C).
13 1992 (1) SACR 667 (A).
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the circumstances. Accordingly, this Court is entitled to interfere and alter
the sentence. The sentence of five years' direct imprisonment was not
warranted. The appellant was sentenced on 26 September 2024 and has
served almost ten months of his sentence.
[ 17] In the result, the following order is made:
1. The appeal against the sentence is upheld.
2. The sentence imposed by the trial court on 26 September 2024 is
set aside, and replaced with the following:
Appearances
'The accused is sentenced to two years' imprisonment, of which
one year is suspended for three years on condition that the accused
is not found guilty of contravening s 4(a) or 4(b) of Act 140 of
1992 during the period of suspension.'
M MAMOSEBO
JUDGE -..... ~ .. ~J.~,,r,,, IDGH COURT
NORTHERN CAPE DIVISION
For the appellant: Mr H. Steynberg
Instructed by: Legal Aid South Africa (Kimberley)
For the respondent: Adv. R.E. Jacobs
Instructed by: Office of the Director of Public Prosecutions