S v Gerber (CA&R NO.: /2012) [2012] ZAECPEHC 35 (23 May 2012)

S v Gerber (CA&R NO.: /2012) [2012] ZAECPEHC 35 (23 May 2012)

The sentence imposed by the magistrate complies with Section 17(e) of the Drugs and Drug Trafficking Act 140 of 1992, as it includes both a fine with alternative imprisonment and a further term of imprisonment, which is suspended. The precedent in S v Mohome requires that, in addition to any fine with alternative imprisonment, a further term of imprisonment without the option of a fine must be imposed. This requirement was met in the present case. However, the failure to conduct an inquiry in terms of Section 103 of Act 60 of 2000 constitutes a procedural irregularity, and the matter must be remitted for such an inquiry.

Citation
[2012] ZAECPEHC 35
Parties
Applicant: The State; Respondent: Daruis Gerber
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
23 May 2012
Case Number
/2012
Procedural Posture
Review Application / Special Review From Magistrate
Outcome
Conviction and sentence confirmed; matter remitted for Section 103 inquiry.
Judges
N. Dambuza, J.W Eksteen
Legal Topics
Sentencing Procedure, Dangerous Dependence Producing Substance, Section 103 Inquiry, Suspended Sentence
Criminal Law Sentencing Procedure Dangerous Dependence Producing Substance Section 103 Inquiry Suspended Sentence

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Parties

The State

Applicant

Daruis Gerber

Respondent

Procedural Posture

Review Application / Special Review From Magistrate

Legal Issues

  1. 1 Whether the sentence imposed by the magistrate was competent under the relevant statutory provisions.
  2. 2 Whether the failure to conduct an inquiry in terms of Section 103 of Act 60 of 2000 rendered the proceedings irregular.

Ratio Decidendi

The sentence imposed by the magistrate complies with Section 17(e) of the Drugs and Drug Trafficking Act 140 of 1992, as it includes both a fine with alternative imprisonment and a further term of imprisonment, which is suspended. The precedent in S v Mohome requires that, in addition to any fine with alternative imprisonment, a further term of imprisonment without the option of a fine must be imposed. This requirement was met in the present case. However, the failure to conduct an inquiry in terms of Section 103 of Act 60 of 2000 constitutes a procedural irregularity, and the matter must be remitted for such an inquiry.

Court Disposition

Conviction and sentence confirmed; matter remitted for Section 103 inquiry.

Orders

  • The conviction and sentence are confirmed.
  • The record is remitted to the magistrates court for the provisions of Section 103 of Act 60 of 2000 to be complied with.