S v Mqikela

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: Jones J and Leach J
• Judgment Date: 21 June 2005
• Citation: 2005 (2) SACR 397 (E)
• Hearing Date: 21 June 2005
• Docket Number: CA&R201/05

Jones J:

[1] The magistrate of Komga convicted the accused of dealing in 13 kg of dagga in contravention of s 5(b) of the Drugs and D Drug Trafficking Act 140 of 1999. He imposed a sentence of five years' imprisonment of which three years' were suspended for five years on appropriate conditions. The magistrate of this district has for many years been faced with the duty of imposing sentence on a large number of dagga dealers who convey their contraband through his district to E the cities and towns of the Eastern, Southern and Western Cape. His standard sentence on certain of these offenders has been imprisonment which is fully suspended, together with a fine with the alternative of a further period of imprisonment in default of payment. The sentence in F this case differed from the usual sentence by omitting a fine with the alternative of imprisonment. In view of this apparent inconsistency the magistrate was asked on automatic review for his reasons for sentence. I am indebted to him for his comprehensive reply and his thorough review of the authorities.

[2] In his reasons the magistrate says that he, and other judicial officers, have become confused about the proper interpretation G of the penalty section of the Act (s 17(e)), and what sentences it requires and authorises. The confusion arises because he has recently been referred on review to a triad of decisions in the High Court where the Court confirmed or imposed sentences for dealing in dagga. These cases were cited to him with apparent approval. But, on his understanding of the section, the sentences which they confirmed or H imposed were incompetent. The cases are S v Fedani 2000 (1) SACR 345 (E), S v Mahlangu 2004 (1) SACR 280 (T) and S v Sokweliti 2002 (1) SACR 632 (Tk). As he understands the section, it precludes the imposition of a sentence of imprisonment with the option of a fine. In each of the cases the Court confirmed or imposed such a sentence. I

[3] Section 17(e) of the Act provides that any person who is convicted of an offence referred to in s 13(f) (unlawfully dealing in drugs in contravention of s 5(b)) is liable to imprisonment for a period not exceeding 25 years, or to both such imprisonment and such fine as the court may deem J

Jones J

fit to impose. The magistrate has interpreted and applied this section over the years A to oblige him to impose a sentence of imprisonment without the option of a fine (which may be fully or partially suspended). He has considered that in addition to this sentence of direct imprisonment, the section allows him to impose a fine, to which he may add an alternative of imprisonment in default of payment in terms of s 287(1) B of the Criminal Procedure Act 51 of 1977. This interpretation is correct. The section provides that the court must impose a term of imprisonment, but it does not preclude the total or partial suspension thereof. See S v Van Zyl and Others 1992 (2) SACR 101 (C); S v Mazibuko 1992 (2) SACR 320 (W) at 322j - 323b; S v Mohome 1993 (1) SACR 504 (T); S v Mosolotsane 1993 (1) SACR 502 (O); S v Baliso 1991 (2) SACR 366 (T) at C 369h - 370b; S v Zwane 2004 (2) SACR 291 (N); and S v Sivuyile (unreported ECD case No CA&R 141/05, 19/05/05). The plain wording of the section makes provision for a fine in addition to, but not in substitution of, the sentence of imprisonment. Section 17 reads as follows: D

'17 Penalties

Any person who is convicted of an offence under this Act...