S v Mazibuko

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Cloete J
• Judgment Date: 08 May 1992
• Citation: 1992 (2) SACR 320 (W)
• Hearing Date: 08 May 1992
• Counsel: No appearance for the appellant G Watt for the State

S v Mazibuko
1992 (2) SACR 320 (W)

1992 (2) SACR p320

Citation	1992 (2) SACR 320 (W)
Court	Witwatersrand Local Division
Judge	Cloete J
Heard	May 8, 1992
Judgment	May 8, 1992
Counsel	No appearance for the appellant; G Watt for the State

Flynote : Sleutelwoorde B

Drug offences — Dagga — Dealing in contravention of s 2(a) of Act 41 of 1971 — Sentence — Amendments to Act since 1971 reflecting change in legislative policy in sentencing — Now, although imprisonment has to be imposed for a contravention of s 2(a), such imprisonment may be suspended in whole or in part — A fine may also be imposed in addition to C imprisonment — Act in present form not distinguishing between first and subsequent offences and no minimum punishment prescribed — Section 297(4) of Criminal Procedure Act 51 of 1977 not a bar to sentence being wholly suspended.

Drug offences — Dagga — Dealing in in contravention of s 2(a) of Act 41 of 1971 — Sentence — Appellant, a 38-year-old married woman, convicted D of selling 30 grams of dagga and of having further 5,15 kilograms in her possession for purpose of sale — Appellant committing offence in order to buy food for her two children — Magistrate imposing sentence of five years' imprisonment of which three years conditionally suspended for five years — Magistrate overlooking change in legislative policy in sentencing for such offences reflected in amendments to Act since 1971 — Such E amounting to misdirection justifying interference by Court — Sentence, having regard to sentences in other cases, inducing sense of shock — Court taking into account considerable amount of dagga in appellant's possession and reason why she sold dagga in altering sentence to one of three years' imprisonment conditionally suspended for five years.

Headnote : Kopnota

F Legislative amendments to the Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971 subsequent to its coming into force reflect a change in legislative policy in regard to sentencing for dealing in drugs in contravention of s 2(a) as well as possession of drugs in contravention of s 2(b) of the Act. Insofar as s 2(a) is concerned, when the Act first came into operation, the minimum period of imprisonment of G five years for a first offence and 10 years for a subsequent offence could have been partially suspended because of the provisions of the Criminal Procedure Act 56 of 1955. Complete suspension was not possible because minimum periods of imprisonment were specified (s 352(2)(a) of Act 56 of 1955, which corresponds with s 297(4) of the Criminal Procedure Act 51 of 1977). In terms of the amendments to Act 41 of 1971 effected by the Abuse H of Dependence-producing Substances and Rehabilitation Centres Amendment Act 80 of 1973 the minimum period of imprisonment prescribed for a contravention of s 2(a) could not be suspended even partially. In it present form, the Act requires imprisonment to be imposed for a contravention of s 2(a). A fine may be imposed in addition, but imprisonment has to be imposed, although the period of imprisonment can be I suspended in whole or in part. In addition, the Act in its present form does not distinguish between first and subsequent offences and no minimum punishment is prescribed for a (first or) subsequent offence. The importance of this change is that s 297(4) of Act 51 of 1977 is not a bar to the sentence being wholly suspended.

The appellant had been convicted in a magistrate's court of dealing in dagga in contravention of s 2(a) of Act 41 of 1971 in that she had sold 30 J grams of

1992 (2) SACR p321

A dagga to a policeman and had had a further 5,15 kilograms of dagga in her possession which she intended selling. The appellant, a 38-year-old married woman, had sold the dagga in order to be able to buy food for her two young children and intended selling the dagga in her possession for the same purpose. The magistrate, citing cases decided before the amendment of the Act by Act 78 of 1990, imposed a sentence of five years' B imprisonment of which three years were conditionally suspended for five years. In an appeal against both the conviction and sentence, the Court found that the notice of appeal, insofar as it related to the conviction, was incompetent. As to the sentence,

Held, that the magistrate had overlooked the change in legislative policy effected by the amendments to the Act and his approach had therefore C amounted to a misdirection which entitled the Court to interfere with the sentence on appeal.

Held, further, that the sentence induced a sense of shock.

Held, further, that, in assessing an appropriate sentence in the present case, there were two major factors which required emphasis: (1) that the D appellant had been in possession of a considerable amount of dagga - over five kilograms, and (2) the reason why she had sold the dagga, namely to buy food for her children.

Held, further, that whilst the appellant was a dealer in dagga, she could hardly be described as a drug baron, and she had been dealing in dagga, not in cocaine, Mandrax, heroin or LSD.

Held, further, that a sentence of direct imprisonment was not called for E and that the sentence imposed by the magistrate should be replaced with one of three years' imprisonment which was conditionally suspended for five years.

Case Information

Appeal from a conviction and sentence in a magistrate's court. The facts appear from the reasons for judgment.

F No appearance for the appellant.

G Watt for the State.

Judgment

Cloete J:

The appellant, a 38-year-old married woman, pleaded guilty to selling 30 grams of dagga to a policeman and having a further 5,15 kilograms in her possession, which she says she would have sold for the G same reason as she sold the 30 grams to the...