S v Mapukata

• Jurisdiction: South Africa
• Judge: Miller J and Nhlangulela J
• Judgment Date: 06 February 2009
• Docket Number: 214460
• Court: Transkei High Court
• Hearing Date: 06 February 2009
• Citation: 2009 (2) SACR 225 (Tk)

Nhlangulela J:

[1] The accused, a 69-year-old woman, appeared before the magistrate of Ngqamakwe charged with dealing in dagga. [*]

I Having pleaded guilty to the charge and having been questioned in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, she was

Nhlangulela J

A convicted and sentenced to pay a fine of R3000, or in default of payment thereof, to undergo eight months' imprisonment. She was further sentenced to undergo two years' imprisonment which was wholly suspended for a period of five years under certain conditions.

B [2] When the matter was brought to this court on automatic review, Petse ADJP queried the sentence on the basis that the alternative sentence of eight months was not proportionate to the gravity of the crime and the sentence of payment of a R3000 fine. What Petse ADJP was concerned with is that an excessive alternative sentence invariably indicates that the sentencing court has abdicated its duty to punish the C accused for the crime which he/she has committed. In this regard see the cases of S v Juta 1988 (4) SA 926 (Tk); S v Mantantana 1991 (1) SACR 528 (Tk); and S v Mbuzwana 1990 (1) SACR 663 (E). When that does happen, the sentencing court would have strayed from applying the guiding principle that a court should always take into account the D personal circumstances of the accused, the nature of the crime and interest of society, without overemphasising each of such factors above the other. I fully concur with the concerns of the Acting Deputy Judge President.

[3] The response of the magistrate to the query is the following:

1.

E This court is thankful for the guidance by the Honourable the Reviewing Acting Deputy Judge [President] in this matter.

2.

May the alternative term of imprisonment be altered to three (3) months imprisonment on review.

3.

The record of court proceedings is returned herewith for attention.

F [4] The mitigating and aggravating circumstances upon which the magistrate imposed the sentence were that: she was a woman 69 years of age and a pensioner; she was never married but has two children who live independently of her; she is responsible for the support and maintenance of one minor grandchild using a child-support grant; and she is a first G offender. It was submitted on behalf of the State that the crime of dealing in dagga was very serious and prevalent in the district of Ngqamakwe. The magistrate considered the...