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[2014] ZAWCHC 200
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S v Pietersen (B741/2014) [2014] ZAWCHC 200 (19 December 2014)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
High
Court Ref No: 14452
Magistrate’s
serial No: 34/2014
CASE
NO: B741/2014
From
the Court of the Magistrate for the District of
KUILS RIVER
held at
KUILS RIVER
In
the matter between:
THE
STATE
and
WILHELM
PIETERSEN
REVIEW
JUDGMENT
BINNS-WARD
J:
[1]
This matter came on automatic review in terms of the
Criminal
Procedure Act 51 of 1977
. The accused had been convicted by the
additional magistrate at Kuils River of having been in possession of
approximately
470 grams of dagga (cannabis) in contravention of
s
4(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
. He had
pleaded guilty to the charge. No previous convictions were
proved. The accused, whose income was given
as R800 per week,
was sentenced to a fine of R4 000, alternatively twenty months’
imprisonment. The matter was
submitted together with another
case, S v Kayalethu Mdingi (Kuils River magistrates’ court case
no. B751/2014), in which
the accused had been convicted in the same
court, also on a plea of guilty, of the unlawful possession of 900
grams of dagga and
sentenced to a fine of R5000 or two years’
imprisonment. Mdingi’s case also involved a first
offender.
In the second matter the accused was unemployed.
The accepted facts would suggest that both offenders were
rastafarians.
[2]
The
sentences appeared to me to be unduly severe for first offenders
convicted of this offence. In this regard it bears mention
that
dagga is an ‘
undesirable
dependence-producing substance’ within the meaning of the Act,
as distinct from a ‘dangerous dependence-producing
substance’.
The proscribed narcotic substances falling within the first category
are often referred to by the term
‘soft drugs’, while the
second category, which includes drugs like heroin and cocaine,
comprises what are colloquially
called ‘hard drugs’.
Possession of or dealing in substances falling within either category
is treated in terms
of s 4(b)
[1]
and 5(b)
[2]
of the statute,
respectively, without any express discrimination.
Notwithstanding the absence of any express distinction
in the Act
between the categories of substance for the purposes of the offences
of possession or dealing, the relevant jurisprudence
in this country
going back for nearly half a century illustrates that the courts,
understandably, have treated them quite differently
for sentencing
purposes. Offences involving the possession of or dealing in
dagga have historically been treated much more
leniently than those
involving ‘hard drugs’; cf. Du Toit et al
Commentary
on the
Criminal Procedure Act
(Juta
) loose-leaf service RS 17, 2007 chF3-pp.9-10, s.v.
Dagga
.
[3]
Consistently with this approach, Borchers J, with
whom Malan J (as he then was) concurred, observed in
S
v Tshabalala
2007 (2) SACR 263
(W) at
265h, ‘
dealing in dagga is
considered to be less of an evil than dealing in “hard”
drugs such as cocaine and mandrax
’.
The learned judge’s observation was supported by reference to
remarks to similar effect by Van Heerden JA,
writing for the
Appellate Division, in
S v Nkabinda
1993
(1) SACR 6
(A) at 9e-f. (In the latter case the appellant had
her originally imposed sentence of 48 months’ imprisonment, of
which
20 months had been conditionally suspended, for dealing in 750
grams of dagga reduced to one of 18 months’ imprisonment, which
was wholly suspended for five years.)
[4]
The
offence of
dealing
in substances proscribed in terms of the Act, whatever their
category, is, moreover, treated markedly more severely than that of
unlawfully
possessing
them. Indeed, in this regard the statutory regime in terms of
the Act – I leave aside for present purposes the minimum
sentence provisions separately instituted in respect of certain
instances of drug offence in terms of the
Criminal Law Amendment Act
105 of 1997
– does expressly draw a distinction. It
provides for a maximum sentence of 25 years’ imprisonment for
dealing
offences generally, and one of 15 years’ imprisonment
for offences involving mere possession.
[3]
The sentences imposed by the magistrate appeared to me to be more in
accordance with what might be expected in respect of
a first
conviction for dealing in the amounts of dagga involved.
[5]
With these considerations in mind I addressed the
following query to the trial magistrate:
The
sentences in both these matters appear to be unduly severe.
In
the matter in which the accused was convicted of being in possession
of 0,9kg of dagga, the accused is unemployed and there is
no
indication of any ability on his part to pay a fine of R5000. The
impression in the circumstances is that the accused would
in all
likelihood have to serve the alternative of two years’
imprisonment, which seems wholly inappropriate for a first
offender.
Similar
considerations apply in respect of the second case, in which the fine
imposed amounted to more than one month’s entire
income for the
accused, who was also a first offender.
(These
remarks are made notwithstanding that it has been established on
enquiry by the registrar that both accused did pay the fines.)
The
magistrate’s comments are requested. The magistrate is
requested, in particular, to indicate what precedential guidelines,
if any, informed the determination of the sentences, as the review
judge’s consideration of applicable precedent would suggest
that the sentences imposed are more consistent with what might have
been expected had the accused been convicted of dealing, rather
than
possession.
[6]
The magistrate responded very fully and informatively, for which I
record my appreciation. I set out below extracts from
the
response which express the substantive content of the magistrate’s
reply:
Mnr
Pietersen het tydens sy eerste verskyning gepleit en was na
ondervraging in terme van artikel 112(1)(b) Wet 51/1977 skuldig
bevind. Die beskuldigde het die hof meegedeel dat hy ’n
“Rasta-Fees” in die Paarl sou bywoon en die dagga
as
offerande sou aanwend.
Die
beskuldigde is in diens, verdien ’n redelike inkomste en het
geen afhanklikes nie.
Die
hoeveelheid dagga (cannibis) in die beskuldigde se besit gevind, was
baie meer as wat die gewone gebruiker vir eie gebruik sou
hou.
Alhoewel die beskuldigde nie gemeld het dat hy dit met ander by die
byeenkoms sou deel nie, sou dit waarskynlik die
geval wees.
In
terme van artikel 1 van die wet op Dwelmmiddels en Dwelmsmakkelary,
no. 140/1992 beteken “handeldryf” met betrekking
tot ’n
dwelmmiddel, ook ’n handeling verrig in verband met die
oorlaai, invoer, verbouing, insameling, vervaardiging,
lewering
,
voorskryf, toediening,
verkoop
, versending of uitvoer van die
dwelmmiddel
“
verkoop”,
met betrekking tot ’n dwelmmiddel, ook om die dwelmmiddel vir
verkoop aan te bied, te adverteer, te besit
of uit te stal, om dit,
hetsy teen ’n teenprestasie of andersins, van die hand te sit,
of om dit te verruil,
Die
Staat sou die beskuldigde dus kon aankla in terme van artikel 5(b)
van Wet 140/1992. Dit is egter die Voorsittende Beampte
se
ervaring dat staatsaanklaers alte dikwels die “makliker”
uitweg kies en eerder ’n aanklag in terme van artikel
4(b) van
Wet 140/1992 stel. Aangesien die bewyslas op die staat rus ten
einde handel te bewys, ooggetuies ten opsigte van
handel baie keer
ontbreek en die vonnisse baie swaarder daar uitsien, verkies
aangeklaagdes ook om eerder skuld op “besit”
te erken.
Die persepsie is dat die saak vinniger afgehandel sal word.
....
Artikel
17(e) gelees met artikel 5(b) Wet 140/1992 bepaal dat iemand wat aan
‘n misdryf ingevolge hierdie wet skuldig bevind
word is
strafbaar “in die geval van ‘n misdrys in artikel 13(f)
bedoel met gevangenisstraf vir ‘n tydperk van
hoogstens 25
jaar, of met sowel daardie gevangenisstraf as die boete was die hof
goedvind om op te lê.
Dit
beteken dat iemand wie aan handeldryf skuldig bevind was,
gevangenisstraf opgelê
moet
word of gevangenisstraf
en
‘n boete (nie ‘n boete alternatiewelik gevangenisstraf
nie)
Die
opgeledge vonnis in hierdie saak is dus nie moontlik indien die
beskuldigde aan oortreding van artikel 5(b) skuldig bevind sou
wees
nie.
Die
Voorsittende Beampte het met verloop van tyd agtergekom dat die
besitters van groot hoeveelhede dagga selde getuienis onder
eed voor
vonnis aflê (hul ex parte medelelings kon dus nie getoes word
nie), dat die dagga meestal bedoel is om met ander
te deel en dat
daar gewoonlik ‘n vangnet in plek is wanneer stywe boets opgelê
word. Mnr Willem Pietersen se
boete was op 25 April 2014
betaal.
Die
Senior Landdros van die distrik het in oorleg met ander rolspelers
besluit dat die SAPD ’n erkenning van skuld ten bedrae
van
R100.00 vir besit van 1 stop dagga mag vasstel. Die
Voorsittende Beampte gebruik hierdie as riglyn ten einde boetebedrae
by skuldigbevinding te bepaal. Die gewig van ’n pak
(parcel) dagga kan wissel van geval to geval, maar ‘n bedrag
van R1000.00 0 R1500.00 per pak is billik. Die persoonlike
omstandigehede van ‘n beskuldigde sal noodwendig ook ‘n
rol speel ten eiende ‘n billike vonnis te bepaal. ...
Die
Voorsittende Beampte het kennis geneem van die beslissing in
S
v Motsiawedi
1993(1) SACR 306 (W).
Die realiteit is egter dat die bre
ë
gemeenskap se wense nie altyd wettig,
moreel aanvaarbaar, of in die beste belang van ander se fisiese –
of geestesgesondheid
is nie. Daar is medies vewys dat die
gebruik van substanse (cannibis daarby inbegrepe) ‘n
fisiologie effek op
die gebruiker het en kan lei tot psigiatriese
siektes (ingesluit skisofrenie, bipolêre gedragverskeuring en
psigose). (Sien
ook ‘n berig in Die Burger, Saterdag 21 Junie
2014 op p6:
Navorsing bewys:
Dagga as tiener maak jou dom as grootmens
)
Dit
is dus wenslik om die breër gemeenskap op te voed, in te lig,
die gevare uit te spel en oortreders behoorlik te straf.
Dit
is ook die Voorsittende Bemapte se ervaring dat die meeste oortreders
nie ’n opgeskorte vonnis as ‘n straf beskou
nie (Dit word
daagliks bevestig wanneer opgeskorte vonnisse nie tydens artikel
60(11B) ondervragings gemeld word nie)
Daar
word respekvol gesubmiteer dat ’n stewige boete (spesifiek by
‘n eerste oortreder) aan die beskuldigde, sy familie,
vriendekring en “verspreiders” se sak sal raak en dat dit
baie effektief is ter voorkoming van verdere misdaadpleging.
The
response was illustrated by reference to five previous matters sent
on automatic review to this court by the trial magistrate.
They
all concerned convictions in respect of offences in terms of
s 4(b)
of the Act. In each case the convictions and sentences had been
confirmed by different judges of this court. In four
of the
five cases, the factual summary given by the magistrate in her reply
suggests clearly that the accused had in fact been
guilty of dealing
and should have been charged accordingly. There is no
indication on the J4 forms sent to me in respect
of the matters cited
by the magistrate that the reviewing judges were astute to the fact
that the sentences imposed were apparently
affected by the
dealing-related character of the matters involved, or that they were
conscious of the disparity between some of
those sentences and those
which would be in line with the reported cases in respect of
sentences for mere possession of dagga of
which the accused persons
concerned had been convicted. The magistrate did not direct my
attention to any reasoned judgments
of the superior courts that would
support her approach.
[7]
If regard is had to the sentences imposed in dagga
dealing
cases in the reported jurisprudence – a selection is
conveniently collected in the judgment in
Tshabala
supra, and
others may be found in the judgment of Mohamed J (later Chief
Justice) in
S v Mthembu and Another
1992 (1) SACR 683
(W) –
the sentences imposed in the current matters for mere possession are
strikingly disproportionately severe. In
respect of the amounts
imposed by way of fines one may accept that the diminishing effect of
the passage of time on the value of
money would afford justification
for an increasing trend in the nominal amount of the fines imposed,
but not on the length of the
terms of imprisonment fixed as the
alternative if the fines are not paid. Thus, in the current
case the alternative of 20
months’ imprisonment was manifestly
inappropriate. It is greater than that typically imposed in
respect of
dealing
in comparable amounts of dagga in the
reported cases to which one is able to have regard. When fixing
the period of imprisonment
which an accused must serve if the fine
imposed is not paid, a court must have in mind that the accused might
actually have to
serve it. Three months’ imprisonment
would meet the justice of the case in respect of the conviction of a
first offender
for possession of 470 grams of dagga.
[8]
It is
evident from the magistrate’s remarks that her approach has
been to treat the accused, at least to some material degree,
as if
they had been convicted of dealing, rather than mere possession.
Possession for the purpose of dealing falls within
the wide
definition of dealing in the Act,
[4]
to which the magistrate has directed attention in her reply. It
is thus fundamentally misdirected for a court in sentencing
an
offender convicted of possessing a prohibited substance within the
meaning of
s 4(b)
of the Act to take into account in determining
an appropriate sanction any opinion that it may have that the
substance was held
in possession for the purpose of dealing.
Any such approach would be tantamount to punishing the offender for
the more serious
offence of which he has not been convicted, and, as
in the matters currently under consideration, may not even have been
charged.
There is also no warrant for any policy by a court to
compensate for the dereliction of the prosecutor in charging an
accused under
s 4(b)
or accepting a tendered plea under that
provision, rather than
s 5(b)
, in circumstances in which the
latter would be more appropriate, simply because it is thought to be
easier thereby to secure a
conviction.
[9]
There is no merit in the point the magistrate sought to make in
regard to the fact that the penalty for an offence involving
a
contravention of
s 5(b)
does not offer the option of a fine
without such being coupled with a sentence of imprisonment as
justification for sentences imposed
in the matters currently under
consideration, namely fines with a period of imprisonment being fixed
in the alternative.
On the contrary, The distinction between
the penalties provided in terms of
s 17(d)
(in respect of
possession in contravention of
s 4(b))
and
s 17(e)
(in
respect of dealing in prohibited substances in terms of
s 5(b))
goes to underscore that sentencing in respect of the discrete
categories of offence must be approached with a conscious
appreciation
of the distinction that the legislature has drawn
between them. Lower courts are also enjoined to be guided by
the reasoned
judgments of the higher courts in respect of sentencing
in like matters.
[10]
It is also misdirected of the magistrate to have a policy of
computing the fines that are imposed in any case of possession
of
dagga with reference to the R100 per gram admission of guilt fee that
the senior magistrate for the district concerned has determined
in
terms of
s 57(5)
of the
Criminal Procedure Act. Admission
of guilt procedures are designed for minor offences in respect of
which public policy would not require an accused person willing
to
admit his guilt to appear in court. A sense of proportionality
and consistency is desirable, but it is not appropriately
achieved in
sentencing matters by adopting a mechanically arithmetical approach
to the computation of fines in matters concerning
issues like
possession of drugs, driving under the influence and speeding that
lend themselves to mathematical calculation based
on quantitative
relationships. The approach which the magistrate has admitted
to having adopted in this regard inevitably
puts courts in danger of
giving insufficient attention to matters such as weighing the
relevant correspondence between an accused’s
resources and the
effect of a fine and the appropriateness in given cases of
conditionally suspending part of the sentence.
It is an
approach that is irreconcilable with the individualisation of
sentencing that is fundamentally informed by the considerations
inherent in the well-established
Zinn
triad principle.
In the current case a fine in an amount exceeding the accused’s
entire monthly income from employment
was strikingly excessive in the
circumstances.
[11]
The magistrate’s comments about the perceptions of offenders
and the community that suspended sentences are no punishment
at all
are not directly in point in the two matters before me. But if
they are truly reflective of the reality of the position,
it speaks
to the failure by prosecutors and judicial officers to fulfil their
responsibility to see to it that effective measures
are taken to put
suspended sentences into effect when the conditions of suspension
have been breached, rather than to the inherent
inefficacy of the
sentencing option itself.
[12]
The fact that the fine was paid in full and apparently in a single
instalment suggests that the magistrate’s suspicions
that the
accused was in fact a dealer or a cog in a dealership network might
be well-founded, and her cynicism thus to some extent
justified.
However, if that is the case, the unsatisfactory situation to which
the magistrate alludes falls to be addressed
by the prosecution
framing the charges in such cases appropriately, not by sentencing
the offender as if the charges had been so
framed. I shall
direct the Registrar to forward a copy of this judgment to the
Director of Public Prosecutions so that he
may take whatever measures
he may consider appropriate to address the issues concerning the
framing of charges and the implementation
of suspended sentences to
which the magistrate has drawn attention.
[13]
In the circumstances it would be inconsistent with the requirements
of justice to allow the sentence to stand. The following
orders are
therefore made:
1.
The conviction and the order declaring the seized cannabis forfeit to
the state are confirmed.
2.
The sentence of a fine of R4 000 or twenty months’
imprisonment imposed on the accused is set aside and replaced with
a
sentence of R2 000 or three months’ imprisonment.
3.
The clerk of the court is directed to reimburse the accused with the
amount paid in excess of that fixed in terms of the substituted
sentence, alternatively, in the event that he cannot be traced, to
pay the amount for his account into the Guardian’s Fund
at the
Office of the Master of the High Court, Cape Town.
4.
The Registrar is directed to send a copy of this judgment to the
Director of Public Prosecutions, Western Cape, for consideration
pursuant to the remarks made in paragraph 12.
A.G.
BINNS-WARD
Judge
of the High Court
BOZALEK
J:
I
agree.
L.J.
BOZALEK
Judge
of the High Court
[1]
Section
4(b)
provides in relevant part that ‘
No
person shall have in his possession - any dangerous
dependence-producing substance or any undesirable
dependence-producing
substance,
unless-
…
.
’
.
[2]
Section
5(b)
provides in relevant part that ‘No person shall deal in-
any
dangerous dependence-producing substance or any undesirable
dependence-producing substance,
unless-
…
.
’
.
[3]
See
s 17
read with
s 13.
[4]
Thus
‘
deal
in
’
is defined in
s 1
of the Act as ‘
in
relation to a drug, includes performing any act in connection with
the transhipment, importation, cultivation, collection,
manufacture,
supply, prescription, administration, sale, transmission or
exportation of the drug
’,
which falls to be understood in the context of the definition of
‘
sell
’,
which is ‘
in
relation to a drug, includes to offer, advertise, possess or expose
the drug for sale, to dispose of it, whether for consideration
or
otherwise, or to exchange it
’.