S v Gcoba
Jurisdiction | South Africa |
Citation | 2011 (2) SACR 231 (KZP) |
S v Gcoba
2011 (2) SACR 231 (KZP)
2011 (2) SACR p231
Citation |
2011 (2) SACR 231 (KZP) |
Case No |
R 952/10 |
Court |
KwaZulu-Natal High Court, Pietermaritzburg |
Judge |
Madondo J |
Heard |
November 18, 2010 |
Judgment |
November 18, 2010 |
Counsel |
No information supplied |
Flynote : Sleutelwoorde
Drug offences — Dagga — Dealing in, contravening s 5(b) of Drugs and Drug Trafficking Act 140 of 1992 — Sentence — Accused dealing in large quantity and having previous similar conviction — However, accused not 'drug F baroness' requiring severe punishment but dealing in order to support children — On review, sentence of five years' imprisonment plus R4000 fine, alternatively further 12 months' imprisonment, set aside — Wholly suspended five-year sentence imposed, plus fine of R4000, alternatively 12 months' imprisonment.
Drug offences — Dagga — Dealing in, contravening s 5(b) of Drugs and Drug G Trafficking Act 140 of 1992 — Competent sentence in terms of s 17(e) of Act — Imposition of term of imprisonment mandatory — Provision for imposition of fine, but only in addition to term of imprisonment, not in substitution thereof as an alternative.
Headnote : Kopnota
The accused pleaded guilty to a charge of dealing in 13,35 kg of dagga and, in H terms of s 17(e) of the Drugs and Drug Trafficking Act 140 of 1992, was sentenced to five years' imprisonment, with an additional fine of R4000 or 12 months' imprisonment. The senior magistrate of the district took the view that the sentence was not a competent one, and referred it to the High Court on review.
Held, that the wording of s 17(e) was somewhat ambiguous, and had led to I conflicting interpretations in various decided cases. [The court proceeded to review a number of these decisions.] The penalty clause for dealing in dagga made the imposition of a term of imprisonment mandatory. There was also provision for a fine, but it could be imposed only in addition to the sentence of imprisonment, not in substitution thereof. Cases in which a fine had been imposed as an alternative to imprisonment were clearly wrong. In J
2011 (2) SACR p232
A casu, the magistrate had acted within the ambit of s 17(e), and no criticism could be levelled against the propriety of the sentence. (Paragraphs [4] – [15] at 233e – 235d.)
Held, further, however, that the coupling of the two punishments had led to a disturbingly severe sentence. Although the accused had been dealing in B large quantities of the drug, and had one previous conviction for a similar offence, there were a number of mitigating factors. She had pleaded guilty — a sign of remorse. She had been selling dagga in order to support her children, exchanging it for food and could hardly be described as a 'drug baroness' requiring severe punishment. There had also been no inquiry into her ability to pay a fine after the expiration of the five-year prison sentence. It was clear that she would not be able to pay it, as she had already been C living from hand to mouth. She would thus have had to serve the further 12 months' imprisonment upon the expiry of the five-year term. In order to mitigate the cumulative effect of the sentence, the imprisonment ought to have been fully suspended, and a fine added to it, with the alternative of further imprisonment only in default of the payment of the fine. (Paragraphs [16] – [20] at 235e – 236d and [23] at 236i – j.)
D Sentence reviewed and set aside. Accused sentenced to five years' imprisonment, wholly and conditionally suspended, and ordered to pay a fine of R4000 or to undergo 12 months' imprisonment.
Annotations:
Cases cited
Reported cases
S v Fedani 2000 (1) SACR 345 (E): compared E
S v Mahlangu 2004 (1) SACR 280 (T): compared
S v Mazibuko 1992 (2) SACR 320 (W): referred to
S v Mohome 1993 (1) SACR 504 (T): compared
S v Mosolotsane 1993 (1) SACR 502 (O): referred to
F S v Mqikela 2005 (2) SACR 397 (E): compared
S v Randwa 1961 (3) SA 545 (O): referred to
S v Rulashe 1970 (2) SA 724 (O): referred to
S v Sokweliti 2002 (1) SACR 632 (Tk): compared
S v Van Zyl and Others 1992 (2) SACR 101 (C): referred to
S v Zulu 1967 (4) SA 499 (T): referred to
S v Zwane 2004 (2) SACR 291 (N): compared. G
Unreported cases
S v Msusa [2009] JOL 23093 (Tk): referred to.
Legislation cited
Statutes H
The Drugs and Drug Trafficking Act 140 of 1992, ss 5(b) and 17(e): see Juta's Statutes of South Africa 2010/11 vol 1 at 2-470 and 2-473.
Case Information
Special review. The facts and issues appear from the judgment of I Madondo J.
Judgment
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
2011 (2) SACR p233
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...
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