S v Kekana

• Jurisdiction: South Africa

S v Kekana
1989 (3) SA 513 (T)

1989 (3) SA p513

Citation	1989 (3) SA 513 (T)
Court	Transvaal Provincial Division
Judge	Moll JP and KRIEGLER J
Heard	January 19, 1989
Judgment	January 19, 1989

Flynote : Sleutelwoorde D

Food and Drugs — Drugs — Act 41 of 1971 — Dagga — Dealing in in contravention of s 2(a) — Sentence — Accused convicted of dealing in 200 g of dagga — Accused a first offender earning R120 per month — Court proposing guidelines to be followed in dealing with sentence considering the amendments brought about to the Act by Act 101 E of 1986 — Magistrate sentencing accused to fine of R2 000 or two years' imprisonment — Court criticising sentence as fundamentally inappropriate — As case one of automatic review, Court finding it not proper to substitute direct sentence of imprisonment — Court substituting for such sentence one of a fine of R1 800 or 18 F months' imprisonment of which R1 200 or 12 months' imprisonment suspended.

Headnote : Kopnota

When considering the amendments to the Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971 brought about by Act 101 of 1986, three propositions should be stated: (1) The Legislature has remained as implacably opposed to and determined 'to stamp out the growing social mischief of the abuse of habit-forming drugs' as ever it was. (2) In doing away with mandatory minimum sentences, in providing for fines and in permitting the total or G partial suspension of sentence the Legislature enabled judicial officers to exercise their punitive discretion subject to fewer statutory restraints. (3) It remains the duty of the sentencing officer to determine which sanction - or combination of sanctions - should be imposed on the particular individual offender for the particular manner in which the statute has been breached. The wider array of sanctions rendered possible by Act 101 of 1986, while enhancing the prospects of a more individualised and appropriate sentence, at the same time H increases the burden of the sentencing officer. He, having been given a wider array of tools, is obliged to use them selectively and judicially.

The accused had been convicted of dealing in dagga in contravention of s 2(a) of Act 41 of 1971. He had been apprehended with 200 g of dagga divided into 23 matchboxes secreted around his house. He did not give evidence and he volunteered nothing in mitigation. The accused, a I first offender, partially supported his parents and younger siblings. He earned R120 per month at a brickworks. The prosecutor submitted that a sentence of R200 or six months would be appropriate. The magistrate imposed a sentence of R2 000 or two years' imprisonment. The Court in an automatic review examined the question of sentence and studied a wide number of disparate sentences imposed for dealing in dagga in a number of reported and unreported cases. The fine imposed represented some 18 J months' gross earnings and a fine like this was patently beyond the means of the accused and was open to

1989 (3) SA p514

A criticism as an exercise in futility. Even if it was partly suspended a fine in these circumstances was fundamentally inappropriate, but as the case was on automatic review it would not be proper to substitute a sentence of direct imprisonment where the magistrate had granted the option of a fine. The Court substituted for the sentence imposed by the magistrate a sentence of a fine of R1 800 or 18 months' imprisonment, of which R1 200 or 12 months' imprisonment were suspended. B

Case Information

Review.

Judgment

Kriegler J:

This automatic review case raises once again the vexed question of sentence for a contravention of s 2(a) of the Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 C of 1971. The accused, a 25-year-old Black man, appeared in the magistrate's court at Magatle on a charge of having dealt in 200 grams of dagga. He pleaded not guilty, intimating in terms of the provisions of s 115 of the Criminal Procedure Act 51 of 1977 that he knew nothing about the allegations against him. The State adduced the evidence of two D police constables who testified that they raided the accused's home late one night. They searched his bedroom and found 13 matchboxes full of dagga secreted in a speaker-box. A further ten matchboxes full of dagga were found in a bag dangling against a wall. The following day the dagga was weighed at the post office in the accused's presence. It weighed 200 grams. Although the accused cross-examined both State witnesses E at length, inter alia, putting to them that they had found no dagga in his possession, he declined to confirm his version under oath and was accordingly rightly convicted. He volunteered nothing in mitigation of sentence but, upon questioning by the magistrate, furnished some relevant personal particulars. These included that he was F unmarried, earned R52 per fortnight at a brickworks and was partially responsible for the maintenance of his parents and younger siblings. The prosecutor mentioned that, although the accused was a first offender, 'a large quantity' of dagga had been found in his possession and submitted that a sentence of R200 or six months' imprisonment would be appropriate. Notwithstanding the suggestion on the part of the G prosecutor the magistrate imposed a fine of R2 000 and in default two years' imprisonment.

When the matter was first submitted for automatic review I requested the magistrate to furnish his reasons for sentence and also to

'indicate whether he considered the provisions of s 297 of Act 51 of 1977 in relation to a partial suspension, a deferment to enable the H accused to pay in instalments or both such suspension and deferment'.

The magistrate responded to the inquiry in the following terms:

'1.

The magistrate felt that a severe type of sentence would serve as a deterrent, not only to accused but to others who might commit similar offences.

2.

The magistrate viewed this type of an offence in a serious I light because of its escalation in this district.

3.

Taking into consideration the aforementioned reasons, the magistrate did not consider deferring the fine or suspending part of it.

4.

The magistrate respectfully submits that the sentence is appropriate and the honourable the...