S v Sambe

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Myburgh J and Van Dijkhorst J
• Judgment Date: 02 March 1981
• Citation: 1981 (3) SA 757 (T)
• Hearing Date: 02 March 1981

Myburgh, J.:

This is a review judgment. The accused, an 18-year-old youth, was found guilty of contravening s 2 (b) of Act 41 of 1971 in that he E was found in possession of two zolls of dagga by the magistrate at Ritavi, Gazankulu. He was sentenced to five years' imprisonment under the said count. A suspended sentence of 4½ years' imprisonment dated 30 July 1980 was then summarily put into operation. It was however ordered that the two F sentences were to run concurrently.

The reviewing Judge made the following remarks for the magistrate to answer:

"1.

Under which provision of Act 41 of 1971 is the court bound to impose a sentence of five years' imprisonment for a second conviction under s 2 (b) of the Act?

2.

The magistrate's reasons for sentence are required, especially why no portion of the sentence imposed was suspended?

3.

G What procedure was followed in order to bring the suspended sentence into operation and what considerations weighed with the magistrate? Was the accused given an opportunity on this aspect of the case? If so, what transpired in this regard?"

Having considered the problem involved in this case it seems to me that H the magistrate misdirected himself and should have applied s 2 (iv) read with s 7 of Act 441 of 1971. The sentence of five years' imprisonment in my view should therefore be set aside and he should reassess the position in the light of what I will say later in this judgment.

As to the putting into operation of the suspended sentence it seems that the accused was not given the opportunity to put any relevant matters before the court. That being the position, the 4½ years' sentence should also be set aside and the magistrate should reconsider the position and pass sentence afresh after he has given the accused an opportunity to put his case before him. It should also be noted that it is

Myburgh J

not proper in the present case to order these two...