S v Webber and Another

• Jurisdiction: South Africa
• Judge: Galgut AJA
• Judgment Date: 07 August 1992
• Citation: 1993 (1) SACR 188 (BA)
• Hearing Date: 15 May 1992
• Counsel: SD Slabbert for the appellants JJ Smit SC (Attorney-General, Bophuthatswana) for the State
• Court: Bophuthatswana Appellate Division

S v Webber and Another
1993 (1) SACR 188 (BA)

1993 (1) SACR p188

Citation	1993 (1) SACR 188 (BA)
Court	Bophuthatswana Appellate Division
Judge	Galgut AJA
Heard	May 15, 1992
Judgment	August 7, 1992
Counsel	SD Slabbert for the appellants; JJ Smit SC (Attorney-General, Bophuthatswana) for the State

Flynote : Sleutelwoorde B

Diamond offences — Dealing in rough and uncut diamonds in contravention of s 84(1) of Precious Stones Act 73 of 1964 (RSA) — Sentence — Penalty provided for in s 84(3) is in Bophuthatswana a fine of R10 000 or 15 years' imprisonment — Fine has not been increased as has been done in South Africa and not as high as fine in Namibia — Such not meaning that C Bophuthatswana Government does not regard offence as a serious one.

Diamond offences — Dealing in rough and uncut diamonds in contravention of s 84(1) of Precious Stones Act 73 of 1964 (RSA) — Sentence — Imprisonment — Fact that diamond industry not as essential to economy of Bophuthatswana as elsewhere not in itself meaning that it is not important D or that prison sentence not appropriate.

Diamond offences — Dealing in rough and uncut diamonds in contravention of s 84(1) of Precious Stones Act 73 of 1964 (RSA) — Sentence — Imprisonment — Suspension of — Police trap used — Fact that friend or business acquaintance used as trap not unfair or irregular justifying suspension of prison sentence. E

Headnote : Kopnota

The penalty provided for in s 84(3) of the Precious Stones Act 73 of 1964 (RSA) [which is still applicable in Bophuthatswana] for dealing in rough and uncut diamonds in contravention of s 84(1) of the Act is a fine of R10000 or 15 years' imprisonment. This is a very severe sentence for what is a statutory offence. The fact that Bophuthatswana has not increased the F fine as was done in South Africa or the fact that in Namibia the fine is R200 000 does not mean that the Bophuthatswana Government does not regard the crime as a serious one.

The decided cases show that the Courts in South Africa and South West Africa (and later Namibia), when imposing prison sentences for the offence of dealing in rough or uncut diamonds, have had regard to the importance G of the diamond industry to their economies. Diamond mining does take place in Bophuthatswana. The fact that it is not as essential to the economy of Bophuthatswana as elsewhere does not, in itself, mean that it is not important, or that a prison sentence may not be appropriate. Each case will depend on its own facts.

In an appeal against the sentences of a fine of R10 000 or one year's H imprisonment and a further period of five years' imprisonment of which two years was conditionally suspended for five years imposed on the appellants for dealing in 26 rough and uncut diamonds valued at R525 000 in contravention of s 84(1) of the Precious Stones Act 73 of 1964 (RSA), it was contended that, whatever the appropriate prison sentence for the offence was, it should have been totally suspended because, inter alia, I the police had used a business associate of the second appellant as the trap, thereby more readily inducing the latter into agreeing to buy the diamonds and that this was calculated to induce the second appellant to be less likely to resist the temptation to commit the offence. The Court held that the fact that a friend or business acquaintance was used as the trap was not unfair or irregular. The Court held, however, that in the circumstances of the case a sentence of three years' effective J imprisonment was far too severe and

1993 (1) SACR p189

A that the sentence had to be altered to one of a fine of R10 000 or one year's imprisonment plus a further three years' imprisonment of which 18 months were conditionally suspended for three years.

Case Information

Appeal from a decision in the General Division, dismissing an appeal against sentences imposed on the appellants in a regional magistrate's B court. The facts appear from the judgment of Galgut AJA.

S D Slabbert for the appellants.

J J Smit SC (Attorney-General, Bophuthatswana) for the State.

Cur adv vult. C

Postea (7 August 1992).

Judgment

Galgut AJA:

This is an appeal against sentence. The appellants were found guilty of dealing in rough and uncut diamonds in contravention of s 84(1) of the Precious Stones Act 73 of 1964. They were each sentenced, by a regional magistrate sitting in Ga'Rankuwa, to a fine of R10 000 or one D year's imprisonment and to a further period of five years' imprisonment of which two were suspended for five years on condition that they were not again convicted of contravening the said s 84(1) during the period of suspension. The appellants appealed, to the General Division of the Supreme Court, against the sentence imposed on each of them. Their appeals were dismissed. That Court granted them leave to appeal to this Court.

E Both appellants pleaded guilty before the magistrate. No evidence was led. In statements made in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 both appellants admitted purchasing 26 rough and uncut diamonds from a police trap, and that they knew, at the time of the purchase, that it was wrongful and unlawful to do so. The magistrate then found them guilty as charged. I will from now on refer to the appellants as No 1 and No 2. The facts relevant to sentence were then placed before the trial F court. This was, by agreement, done by way of statements from the appellants' respective counsel. These facts were not challenged by the State.

It was urged in the magistrate's court and in the General Division that any period of imprisonment imposed should be totally suspended on appropriate conditions. As appears from what has been set out above, the submissions failed in both Courts. Hence the appeal to this Court. Because G of the submissions made, it is necessary to set out, in some...