S v Gatshweu (40/01) [2001] ZANWHC 30 (14 June 2001)

CA NO : 40/01

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

MMATSHEPANG

GATSHWEU

R

E V I E W J U D G E M E N T

LEEUW J:

1. The accused was convicted of possession of 2, 858 kg of dagga. She was sentenced to three (3) years imprisonment.

The conviction is in order but I queried the severity of the sentence, and in particular, the failure of the Learned Magistrate to consider other alternatives to an imprisonment sentence.

In response to my query, the Learned Magistrate stated the following :

“In imposing a term of three years the court was aware that the court room is full of other drug smugglers who are dealing in dagga and the court wanted to pass a sentence which would send a clear message to the accused and the other drug dealers that the crime is intolerable especially in this mining district of Bafokeng where people are dying because of smoking dagga and the violence and accidents happening at the mines. The accused herself told the court that she cannot afford to pay a fine and if I could have imposed a fine some drug smugglers would pay it for the accused and the purpose of sentence would not be met. Very little money is earned by people who collect refuse and if the court was to impose a fine it would have been an exorbitant fine which would be tantamount to refusal to fix a fine.” What the Learned Magistrate had in mind was, in the interests of the community, a sentence which would deter others who might, given the prevalence referred to, contemplate similar criminal conduct. This is intended to be an exemplary sentence. This is an improper exercise of discretion by the Magistrate. See S v Collet 1990 (1) SACR 465 (A) and S v Sobandla 1992 (2) SACR 613 (A). Furthermore, the fact that the court room was full of drug dealers who would pay the accused’s fine is sheer speculation which has no basis in law. This is in actual fact a deliberate attempt to

punish the accused as a drug dealer even though convicted of possession of dagga. Compare S v Nomanesi Mnono unreported Review case CA No 29/2001. (BSC). The fact that the accused is poor does not mean that she cannot be afforded the option of fine. This is another misdirection by the Learned Magistrate. See S v Molefe 1989 (2) SA 881 (B). The abovementioned misdirection entitles me to interfere with the sentence imposed by the Learned Magistrate. The sentence imposed is too severe and induces a sense of shock:

“In imposing a term of three years the court was aware that the court room is full of other drug smugglers who are dealing in dagga and the court wanted to pass a sentence which would send a clear message to the accused and the other drug dealers that the crime is intolerable especially in this mining district of Bafokeng where people are dying because of smoking dagga and the violence and accidents happening at the mines.

The accused herself told the court that she cannot afford to pay a fine and if I could have imposed a fine some drug smugglers would pay it for the accused and the purpose of sentence would not be met. Very little money is earned by people who collect refuse and if the court was to impose a fine it would have been an exorbitant fine which would be tantamount to refusal to fix a fine.”

What the Learned Magistrate had in mind was, in the interests of the community, a sentence which would deter others who might, given the prevalence referred to, contemplate similar criminal conduct. This is intended to be an exemplary sentence. This is an improper exercise of discretion by the Magistrate. See S v Collet 1990 (1) SACR 465 (A) and S v Sobandla 1992 (2) SACR 613 (A).

Furthermore, the fact that the court room was full of drug dealers who would pay the accused’s fine is sheer speculation which has no basis in law. This is in actual fact a deliberate attempt to punish the accused as a drug dealer even though convicted of possession of dagga. Compare S v Nomanesi Mnono unreported Review case CA No 29/2001. (BSC). The fact that the accused is poor does not mean that she cannot be afforded the option of fine. This is another misdirection by the Learned Magistrate. See S v Molefe 1989 (2) SA 881 (B).

The abovementioned misdirection entitles me to interfere with the sentence imposed by the Learned Magistrate. The sentence imposed is too severe and induces a sense of shock:

(i) The accused is 50 years old, a first offender with six (6) children to maintain; (ii) Although she has been convicted of possession of dagga, the quantity found in her possession was large. I will therefore confirm the conviction and set aside the sentence and substitute the following therefor: “R3000 or 2 years imprisonment of which R1500 or 1 year imprisonment is suspended for 5 years on condition that the accused is not convicted of contravention of section 4 (a) or (b) or 5 (a) or (b) of Act 140 of 1992 committed during the period of suspension.”

M

M LEEUW

JUDGE

OF THE HIGH COURT I agree.

M

T R MOGOENG

JUDGE

OF THE HIGH COURT 14 JUNE 2001

(i) The accused is 50 years old, a first offender with six (6) children to maintain;

(ii) Although she has been convicted of possession of dagga, the quantity found in her possession was large.

I will therefore confirm the conviction and set aside the sentence and substitute the following therefor:

“R3000 or 2 years imprisonment of which R1500 or 1 year imprisonment is suspended for 5 years on condition that the accused is not convicted of contravention of section 4 (a) or (b) or 5 (a) or (b) of Act 140 of 1992 committed during the period of suspension.”

M

M LEEUW

JUDGE

OF THE HIGH COURT

I agree.

M

T R MOGOENG

14 JUNE 2001