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1996
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[1996] ZASCA 6
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S v Phako (423/95) [1996] ZASCA 6 (7 March 1996)
Case No 423/95
/MC
IN THIS SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between
HLONGWANA PHAKO
APPELLANT
and
THE STATE
RESPONDENT
CORAM: VIVIER, HARMS JJA et ZULMAN AJA.
HEARD: 7 MARCH 1996.
DELIVERED: 7 MARCH 1996.
TRANSCRIPT OF REASONS ORALLY DELIVERED IN OPEN COURT
ON THURSDAY 7 MARCH 1996, BY VIVIER JA AND
CONCURRED IN BY HARMS JA AND ZULMAN AJA.
2
VIVIER JA:
The appellant was convicted in the Komga Magistrate's Court on a charge of dealing in 292 kilograms of dagga in contravention of sec
5 (b) of Act 140 of 1992. He was sentenced to eight years'
imprisonment of which three years were suspended for five years on certain conditions. His appeal against the sentence to the Eastern
Cape Division was unsuccessful and with the necessary leave he
appeals to this Court against the sentence imposed upon him.
The appellant pleaded guilty at the trial and in his statement
handed in in terms of sec 112 of Act 51 of 1977 he admitted that
he had been found in possession of the said quantity of dagga and
that he had accordingly dealt in it. No evidence was led at the
trial and nothing further is known about the circumstances in which
the crime was committed, except that the appellant was on his way
to
Cape Town
with the dagga when he was apprehended.
3
The appellant's personal circumstances are that he is 25 years
old and married with two minor children. He is in fixed
employment and is a first offender. All these factors, as well as
the fact that the appellant had shown remorse, were taken into
account by the magistrate in mitigation of sentence. On the other
hand the magistrate had regard to the gravity of the offence and, in
particular, the prevalence of the offence in the Komga district. He said that the incidence of the crime in the Komga district had
more
than doubled in 1994 when the crime was committed, compared
with the figures for 1993. The magistrate also said that the dagga
involved was sufficient to prepare 292 000 socalled zols with a
street value of R292 000-00.
On appeal it was submitted on behalf of the appellant that the
magistrate misdirected himself by taking into account the prevalence
of the offence in his district as well as the street value of the dagga
4
in the absence of any evidence to that effect having been placed before him. In my view the magistrate was perfectly justified to
have regard to the prevalence of the offence in his district as it can
safely be accepted that he had personal knowledge of this fact. (S
v M
1990 (2) SACR 509
(E) at 512 f-g; S v Nkosi
1992 (1) SACR 607
(T) at 609 f-g.) The Court a guo remarked in this
regard that all the judges in its division know from their reading of
review cases from Komga about the increase in this type of offence
in the district. The figures relating to the street value of the dagga
mentioned by the magistrate mean no more than that dagga of a substantial value was involved. And that is self-evident
considering the large quantity of the dagga.
It was further submitted that the magistrate over-emphasised
the interests of society at the expense of those of the appellant. I
do not agree. That there is a need to protect society against the
5
ever increasing trade in dagga is clear, and I can find no indication
in the present case that this was done without due consideration to
the appellant's personal circumstances.
It was further submitted that the appellant merely conveyed
the dagga for someone else and that he did not himself deal in it.
There is no evidence to justify a finding that this reduced his moral
blameworthiness in any way.
Counsel for the appellant referred us to a number of reported
decisions on sentences imposed in similar cases. He submitted that these cases show that the sentence imposed in the present case
was
so severe as to induce a sense of shock. There is little point in
embarking upon a comparative analysis of similar cases as each
case must depend upon its own facts and circumstances. It is
sufficient to say that I do not regard the sentence imposed in the
present case as excessive.
6
It was submitted that the magistrate misdirected himself by
ignoring the change in legislative policy regarding sentences brought
about by Act 140 of 1992. There is no merit in this submission.
The magistrate quoted the correct penal provisions of the present
Act and the mere fact that he referred to cases decided under the
previous Act clearly does not mean that he overlooked the provisions of the present Act.
It was submitted that the magistrate misdirected himself by
not considering a sentence of correctional supervision. There is
no indication that the magistrate did not do so. As the Court a guo
has pointed out, this was not raised as a ground of appeal in the
appeal to that Court, so that the magistrate was not given an opportunity to state whether he had considered a sentence of correctional
supervision. Under the circumstances I am not
prepared to hold that the magistrate has failed to consider a sentence
7
of correctional supervision. In my view such a sentence would not be appropriate in the present case.
In the result it cannot be said that the magistrate misdirected
himself or that the sentence imposed is so severe that interference
with it would be justified.
The appeal is dismissed.
W. VIVIER JA.