S v Hattingh

• Jurisdiction: South Africa

S v Hattingh
1978 (2) SA 826 (A)

1978 (2) SA p826

Citation	1978 (2) SA 826 (A)
Court	Appellate Division
Judge	Rabie JA, Corbett JA and Trengove AJA
Heard	March 6, 1978
Judgment	March 30, 1978

Flynote : Sleutelwoorde F

Food and drugs — Drugs — Act 41 of 1971 — Contravention of s 2 (a) — Sentence — Offender under 21 years of age — Can be dealt with under such Act or under s 342 or 345 of Act 56 of 1955 — Offender an addict convicted G of peddling LSD for money with which to satisfy his own craving — Choice between five years' imprisonment or placing him under the supervision of a probation officer under s 342 (3) (a) — Magistrate having misdirected himself in circumstances in imposing the former — Latter order substituted on appeal.

H Juvenile offenders — Contravention of s 2 (a) of Act 41 of 1971 — Sentence — Options open to court — How discretion to be exercised.

Headnote : Kopnota

Act 41 of 1971 does not preclude a court from applying ss 342 and 345 of Act 56 of 1955 in appropriate circumstances. Accordingly where an accused under the age of 21 years is convicted of a contravention of s 2 (a) of Act 41 of 1971 a magistrate has a discretion to deal with him in one of the following ways, namely (a) to sentence him to imprisonment for a period of not less than five years as prescribed by Act 1 of 1971; (b) to sentence him to a whipping in terms of s 345 of Act 56 of 1955; (e) to order that he be placed under

1978 (2) SA p827

the supervision of a probation officer in terms of s 342 (3) (a) of Act 56 of 1955 or (d) to order that he be admitted to a reform school in terms of s 342 (3) (b) of Act 56 of 1955.

Appellant, aged 20, had been convicted of peddling three Lysergide (LSD) tablets to a police trap at R7 a tablet and of having a further 16 tablets A in his possession in contravention of s 2 (a) of Act 1 of 1971. It appeared that he himself was an addict and that he had been peddling some of the tablets in order to obtain money to enable him to satisfy his own craving. The appellant had not himself given evidence but other witnesses had given evidence on his behalf as to his general background and personal circumstances. A doctor had stated that he had been receiving treatment for his drug addiction at a hospital under his personal care and B supervision since the beginning of September 1976, that he was cooperating fully, responding to treatment and well on the road to rehabilitation. The magistrate, after considering the above-stated four options open to him, had decided that in the circumstances the choice lay between imposing a sentence of five years' imprisonment (none of which could be suspended) and placing him under the supervision of a probation officer in terms of s 342 (3) (a) of Act 56 of 1955. Although he was reluctant to impose a C sentence of five years' imprisonment, as he regarded it as excessive, he had reservations about the efficiency of placing him in the care of a probation officer and imposed the former because of the serious nature of the offence and in the interests of society. An appeal to a Provincial Division was dismissed and leave to appeal to the Appellate Division was refused. In a further appeal to that Division, with its leave, however,

D Held, that the magistrate had rightly decided as to the choice open to him but that, in the particular circumstances of the case, he had misdirected himself in the exercise of his discretion: although an order under s 342 (1) (a) was not an entirely satisfactory way of dealing with the problem, it was the most appropriate way of dealing with the available alternatives. Appeal accordingly allowed and such an order substituted. E

Case Information

Appeal with leave of the Appellate Division from a decision in the Transvaal Provincial Division (DE VILLIERS J and PHILLIPS AJ) dismissing an appeal from a sentence imposed in a magistrate's court. The facts appear from the judgment of TRENGOVE AJA.

C P van Vuuren for the appellant: The appellant being under the age of 21 F years but over the age of 18 years, it was not mandatory for the magistrate to impose a term of five years' imprisonment as envisaged in Act 41 of 1971. The magistrate was entitled to impose another sentence or to deal with the appellant in various other ways. See S v Roy 1974 (1) SA 386; S v Khulu 1975 (2) SA 518; S v Coyne 1974 (4) SA 957; S v Pledger G 1975 (2) SA 244; S v Maharajah 1974 (2) SA 559; S v Harvey 1977 (2) SA 185; S v Tellis 1977 (4) SA 95; S v Meyer (unreported). The various ways in which the appellant could have been dealt with are as follows: (a) the imposition of five years' imprisonment; (b) a whipping in terms of s 345 of Act 56 of 1955; (c) an order 'to the effect that the appellant be H placed under the supervision of a probation officer in terms of s 342 (3) (a) of the Act; (d) an order that the appellant be admitted to a reform school in terms of s 342 (3) (b) of Act 56 of 1955; (e) an order to the effect that the proceedings be converted into an enquiry in terms of s 341 of Act 56 of 1955. The appellant is a member of that category or group of persons in respect of which the court has a discretion in sentencing, See S v Harvey, (supra). The principles relating to the sentencing of an accused person are set out in S v Zinn 1962 (2) SA 537. In addition to the principles set out in the case of Zinn, there are certain other factors and circumstances which should be taken into account and

1978 (2) SA p828

these involve, inter alia, the application of a degree of mercy, See S v Roux 1975 (3) SA at 197E - 198C, S v Rabie 1975 (4) SA 855; and S v Harvey (supra). See also S v Scheepers 1977 (2) SA 154.

J J Pelser for the State: Die verhoorlanddros het dit nie as verpligtend beskou om slegs gevangenisstraf op te lê nie. Sien S v Roy 1974 (1) SA 386; S v Khulu 1975 (2) SA 518. Die verhoorlanddros het die beginsels neergelê in S v Zinn 1962 (2) SA 537 wel toegepas. Die verhoorlanddros en die geleerde Regters wat, in dié appèl, uitspraak gegee het, het dit B gemotiveer; waarom hulle nie bereid was om ingevolge die bepalings van art 345 van Wet 56 van 1955 lyfstraf op te lê nie. Die beslissings aangehaal deur die appellant is in die lig van die bepalings van Wet 41 van 1971 korrek beslis, maar die oplegging van gevanggisstraf is diskresionêr. Die bepalings van art 341 van Wet 56 van 1955, sender die instemming van die aanklaer, selfs op appèl, kan nie aangewend word nie omdat dear vir sodanige aanwending geen magtigende bepaling bestaan nie. A

Van Vuuren in reply. C

Cur adv vult.

Postea (March 30). D

Judgment

Trengove AJA:

This is an appeal against sentence. Appellant, a young man 20 years of age, was convicted in the magistrate's court. Johannesburg, on a charge of dealing in a prohibited dependence-producing drug, namely E Lysergide, commonly known as LSD, in contravention of s 2 (a) of Act 41 of 1971, and he was sentenced to five years' imprisonment. There is no problem concerning the conviction. Appellant pleaded guilty to the charge, and the undisputed evidence was to the effect that he was caught red-handed selling three Lysergide tablets to a police trap. Appellant appealed to the Transvaal Provincial Division against his sentence, but F his appeal failed and he was refused leave to appeal to this Court. Such leave was subsequently granted by a Judge of this Division.

The main issue in this appeal is whether the magistrate erred in holding that, in the circumstances of the case, it was not appropriate for appellant to be placed under supervision of a probation officer in terms G of s 342 (3) (a) of Act 56 of 1955 (the Code), and that the only appropriate way of dealing with him was to impose a sentence of imprisonment. Before turning to this issue, I must refer to a matter that was raised by the teamed Judge who granted leave to appeal. The magistrate was of the opinion that, as appellant was still under the age of 21...