S v Luvhimbi

• Jurisdiction: South Africa
• Judge: Lukoto, J
• Judgment Date: 07 February 2003
• Docket Number: A60/2003
• Court: Venda High Court
• Hearing Date: 07 February 2003
• Citation: 2003 JDR 0714 (V)

Lukoto J:

This matter came before me by way of an automatic review.

The accused was charged with the offence of contravening section 13(d) of Act 140 of 1992 read with sections 1, 5(b) 18, 19, 21 and 25 of the said Act, i.e. Possession of an undesirable dependence-producing substance, to wit dagga or cannabis.

2003 JDR 0714 p2

Lukoto J

The charge sheet alleges that on or about 13th January 2003 and at or near Dzwerani settlement in the district of Vuwani the accused wrongfully and unlawfully was in possession of 512,6 grams dagga/cannabis, being an undesirable dependence-producing substance.

The accused chose to conduct his own defence and pleaded guilty to the charge. He was accordingly found guilty and sentenced to two years' imprisonment.

When the matter came before me, I directed an enquiry to the Acting Director of Public Prosecutions on the following aspects:

Was the sentence imposed appropriate, in view of the fact that:

1.

the accused is a 43-year-old first offender;

2.

who pleaded guilty and

3.

the quantity of the dagga was not substantial?

The Director has furnished me with a written opinion of which I thank him. He is of the view that the sentence of 2 years' imprisonment for possession of 512,6 grams dagga is harsh in these circumstances and that the amount of dagga found in possession of the accused is relevant in the determination of sentence. He has also referred me to the decision in S vs MOTSIAWEDI 1993 (1) SACR 306 (W)

2003 JDR 0714 p3

Lukoto J

where the magistrate sentenced a 39-year-old first offender to R2000-00 or 6 (six) months plus 12 months totally suspended for possession of 1kg of dagga for his own use and Streicher J, disagreed with the magistrate's assessment that dagga was a social evil and changed the sentence to R2000-00 or 6 months of which half was suspended.

I agree with the Director's view. In casu, the learned magistrate held that use of dagga has a serious impact on one's mental faculties to an extent of going around committing very serious offences. With due respect to the learned magistrate, I find nothing in the authorities to support this contention.

The learned magistrate failed to attach the necessary weight to the age of the accused and the fact that the accused is married and has two children who rely on him for maintenance. He also ignored the fact that the accused is a first offender and the probable effect upon the accused of along term imprisonment. He also failed...