S v Fuleni

• Jurisdiction: South Africa
• Judge: Hiemstra CJ and Steenkamp J
• Judgment Date: 10 November 1982
• Citation: 1982 (3) SA 294 (B)
• Hearing Date: 10 November 1982
• Court: Bophuthatswana Supreme Court

Hiemstra CJ:

The accused was sentenced to five years' imprisonment for possession of five grammes of pure dagga and a further 20 grammes of a mixture of tobacco and dagga. This is a shocking and exorbitant G sentence. The matter was referred back to the magistrate with a query, and he referred to s 1 of Act 9 of 1981, which provides that in the case of a first conviction for possession a sentence 'for a period not exceeding ten years' is competent.

The magistrate misunderstood this Act, but his misunderstanding is easy to understand. It looks as if the Legislature has newly enacted this H stiff sentence and consequently wants the courts to act accordingly. That is not the position. The purpose of Act 9 of 1981 was to introduce the following new provision in respect of a conviction of possessing dagga:

'the court shall, if it is proved that the accused, after his arrest on the charge upon which he is so convicted, furnished to a police officer or any other peace officer or a magistrate information revealing the source of his supply of the

Hiemstra CJ

drug or plant forming the basis of such charge, take the furnishing of such information into account as a mitigating factor when imposing sentence.'

The intention is to persuade a person found in possession of dagga to A reveal his source of supply. It is the supplier or dealer against whom the new Act is aimed. If the accused tells the police where he got the dagga, it could lead to arrest of the dealer, and so the real culprit in the dagga trade can be caught. It is generally expected that magistrates will, where it appears that the accused revealed his supplier, let him off with a suspended sentence if he is a first offender and the quantity B is small.

When reading the new Act, the reference to a ten years' sentence looks like a new provision. That is not so. It is there merely because it is customary for draftsmen of amending Acts to repeat the whole old section or subsection or paragraph which is being amended, including the new C portion. The ten years is only a remnant of the old Act of 1971. It has all its life been a dead letter. No court ever imposed such a sentence for possession. The ten years is the top limit, leaving the courts free to impose anything below that, including even a few months suspended.

D This Court, in expectation...