S v Gcoba

• Jurisdiction: South Africa
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Judge: Madondo J
• Judgment Date: 18 November 2010
• Citation: 2011 (2) SACR 231 (KZP)
• Hearing Date: 18 November 2010
• Docket Number: R 952/10
• Counsel: No information supplied

Madondo J:

[1] Upon a plea of guilty, the magistrate of Dundee convicted the accused of dealing in 13,35 kg of dagga, in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the Act) and, in terms of J s 17(e) of the Act, she was sentenced to five (5) years' imprisonment. In

Madondo J

addition to the sentence of imprisonment, she was ordered to pay a fine A of R4000 or to undergo twelve (12) months' imprisonment in default of payment of the fine.

[2] When the senior magistrate was doing his routine checking, he came across this sentence, and he took the view that it was incompetent. He then raised the matter with the magistrate who had passed the sentence. B The latter, in the covering letter to the review record, dated 23 August 2010 and addressed to the reviewing judge, states that he construed the provisions of s 17(e) as allowing him, in addition to the sentence of imprisonment, to impose a fine with an alternative further term of imprisonment in default of payment, if he considered such sentence appropriate. C

[3] This matter served before me on automatic review in terms of s 304 of the Criminal Procedure Act 51 of 1977 (the Criminal Procedure Act), on the question of interpretation of s 17 (e) of the Act. The section reads:

'17 Penalties D

Any person who is convicted of an offence under this Act shall be liable —

. . .

(e)

in the case of the offence referred to in section 13(f) to imprisonment for a period not exceeding 25 years, or to both such E imprisonment and such fine as the Court may deem fit to impose'.

[4] The wording of this section is somewhat perplexing and ambiguous, and as a result is often misconstrued. The direct consequence thereof is the conflicting viewpoints expressed in various decided cases on its interpretation and application. F

[5] In S v Mohome 1993 (1) SACR 504 (T) the accused had been convicted of dealing in dagga in contravention of s 2(a) of the Abuse of Dependence Producing Substances and Rehabilitation Centres Act 41 of 1971, and ordered to pay a fine of R500, or six months' imprisonment. On review, Smit J, at 506d – e, said the following: G

'Die gevolgtrekking waartoe ek gekom het beteken nie dat die nie-oplê van 'n boete beklemtoon moet word nie maar hou slegs in dat benewens enige boete met alternatiewe gevangenisstraf wat opgelê mag word daar altyd 'n verdere termyn gevangenisstraf met of sonder opskorting en sonder die keuse van 'n boete opgelê moet word. In die onderhawige H geval het die landdros slegs die ses maande gevangenisstraf as 'n alternatief tot die boete van R500 opgelê en tot daardie mate is die opgelegde vonnis myns insiens nie ooreenkomstig die reg nie. Benewens die opgelegde vonnis was die landdros ook verplig om gevangenisstraf (met of sonder opskorting) op te lê.'

The sentence imposed by the magistrate was set aside and replaced by I the sentence of six months' imprisonment, which was wholly suspended on usual conditions. In addition, he was sentenced to pay a fine of R500, or six months' imprisonment in default of payment of the fine.

In S v Zwane 2004 (2) SACR 291 (N) the accused was convicted of dealing in dagga in contravention of s 5(b). A fine of R3000 was imposed J

Madondo J

A and, in default of payment thereof, the accused was ordered to undergo fifteen (15) months' imprisonment. On review, the sentence imposed was held to be incompetent for failure to comply with a penalty clause.

[6] In S...