S v Mqikela

• Jurisdiction: South Africa
• Judgment Date: 21 June 2005
• Citation: 2005 (2) SACR 397 (E)

S v Mqikela
2005 (2) SACR 397 (E)

2005 (2) SACR p397

Citation	2005 (2) SACR 397 (E)
Case No	CA&R201/05
Court	Eastern Cape Division
Judge	Jones J and Leach J
Heard	June 21, 2005
Judgment	June 21, 2005

Flynote : Sleutelwoorde B

Drug offences — Dagga — Dealing in dagga in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992 — Sentence — Competent sentences in terms of s 17(e) of Act — Fine not permissible alternative to imprisonment — Section 17(e) obliges court to impose sentence of imprisonment, part or all of which may be suspended — In addition to imprisonment, it may C impose fine, with alternative of imprisonment in default of payment of fine — Fine may not be imposed as alternative to imprisonment — In casu, magistrate imposing sentence of imprisonment but not considering imposition of additional fine as sentencing option — Accordingly, sentence set aside and case remitted for sentencing de novo. D

Headnote : Kopnota

The accused was convicted in the magistrate's court of dealing in dagga, in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, and was sentenced, in terms of s 17(e) of the Act, to a partly suspended term of imprisonment. The question on automatic review was the correctness of the sentence, in the light of the provision of s 17(e) of the Act. E

Held, that, in terms of s 17(e) of the Act, a court which convicted an accused of unlawfully dealing in dagga, in contravention of s 5(b) of the Act, was obliged to impose a sentence of imprisonment, part or all of which might be suspended, and, in addition, could impose a fine with or without the alternative of further imprisonment in default of payment of the fine. It could not, however, impose a fine as an alternative to imprisonment. (Paragraph [3] at 398j - 399b.) F

Held, further, that, because of his misunderstanding of the law, the magistrate misdirected himself in failing to consider as a sentencing option the imposition of a fine, with the alternative of further imprisonment, in addition to the term of imprisonment he imposed. (Paragraph [9] at 401e - f.)

Held, accordingly, that the sentence be set aside and the matter remitted to the magistrate for the imposition of sentence afresh. (Paragraph [10] at 401g.) G

Semble: In the case of dagga runners who were prosecuted in the magistrate's court, they were frequently junior rather than senior members of the fraternity of drug dealers and it was a salutary practice to give the first offenders amongst them the opportunity to stay out of prison by the imposition of an appropriate fine. Thus, if the magistrate considered it appropriate, he was H entitled to impose a sentence of direct imprisonment which was fully suspended and to which was then added a fine with an alternative term of imprisonment. (Paragraph [8] at 401c - e.)

Annotations:

Cases cited

Reported Cases

S v Baliso 1991 (2) SACR 366 (T): followed I

S v Bokbaard 1991 (2) SACR 622 (C): followed J

2005 (2) SACR p398

S v Fedani 2000 (1) SACR 345 (E): overruled

S v Mahlangu 2004 (1) SACR 280 (T): criticised and not followed A

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

S v Mohome 1993 (1) SACR 504 (T): followed

S v Mosolotsane 1993 (1) SACR 502 (O): followed

S v Snyders 1991 (1) SACR 453 (C): followed

S v Sokweliti 2002 (1) SACR 632 (Tk): criticised and not followed

S v Van Zyl and Others 1992 (2) SACR 101 (C): followed

S v Zwane 2004 (2) SACR 291 (N): followed.

Unreported cases

S v Sivuyile (ECD case No CA&R 141/05, 19 May 2005): followed. B

Legislation cited

Statutes

The Drugs and Drug Trafficking Act 140 of 1992, ss 5(b) and 17(e): see Juta's Statutes of South Africa 2004/5 vol 1 at 1-459 and 1-461.

Case Information

Automatic review of a conviction and sentence in the magistrate's court in terms of the Drugs and Drug Trafficking Act 140 C of 1992. The facts appear from the judgment of Jones J.

Judgment

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...