S v Van Zyl and Others

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Selikowitz J
• Judgment Date: 07 April 1992
• Citation: 1992 (2) SACR 101 (C)
• Hearing Date: 07 April 1992

Selikowitz J:

The accused were convicted of dealing in dagga in contravention of s 2(a) of the Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971. The convictions and sentences J were confirmed on review.

Selikowitz J

A The magistrate had referred the matter back to the reviewing Court with a request that the Court rule as to whether the sentences imposed are competent in terms of the relevant penal provisions.

I referred the matter to the Attorney-General for comment. He has sent me a memorandum prepared by Advocate H C Booysen of his staff. He supports her view and recommendation.

B I have considered Advocate Booysen's memorandum. I too, support her conclusion. I have decided to annexe a copy of the memorandum as it admirably sets out the relevant argument and authorities.

The Court would like to thank the magistrate, Mr Vorster, for referring the matter back for further review. Also, I would like to congratulate and thank Advocate Booysen for her efforts. They are appreciated.

C Dawid van Zyl has served part or all of his gaol sentence. That question must be investigated and ought to be taken into account by the court a quo when it imposes the new sentence.

In the result the order which I make is as follows:

1.

I repeat the confirmation of the three convictions as well as the sentences imposed on Ruben Botha and Wesley Alexander. D

2.

The sentence imposed on Dawid van Zyl is set aside. The matter is remitted to the court a quo for the imposition of an appropriate sentence.

'Memorandum

The accused, Dawid van Zyl, Ruben Botha and Wesley Alexander (formerly accused Nos 1, 2 and 5), were tried in the magistrate's court, Mossel Bay, E and convicted of contravening s 2(a) of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971 (dealing in dagga).

They were sentenced as follows:

Dawid van Zyl: R1 000 or 12 months' imprisonment;

Ruben Botha: in terms of s 294 of the Criminal Procedure Act 51 of F 1977 five cuts with a light cane; and

Wesley Alexander: R4 000 or two years' imprisonment. A further 12 months' imprisonment was conditionally suspended for three years.

The matter was submitted for review in due course and the respective sentences confirmed on 14 October 1991.

The trial magistrate, Mr T Vorster, however, upon receipt of the G proceedings clearly had second thoughts about the correctness of the sentence he had imposed and...