S v Gotyana (ECJ 2004/006) [2004] ZAECHC 7 (11 March 2004)

5

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ NO : 006/2004

PARTIES: THE

STATE

AND

MKHUWULI

GOTYANA

REFERENCE NUMBERS -

Registrar: 20040275

Magistrate:

Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 11 MARCH 2004

JUDGE(S):

PICKERING AND PLASKET JJ

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s):

for the accused/respondent(s):

Instructing attorneys:

Applicant(s)/Appellant(s):

Respondent(s):

CASE INFORMATION -

Nature of proceedings : CRIMINAL REVIEW

Topic: SENTENCE – POSSESSION OF DAGGA

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Review no: 20040275

Date Delivered: 11/3/04

In the matter between:

THE STATE

and

MKHUWULI GOTYANA

______________REVIEW

JUDGMENT

PLASKET J:

[1] The accused pleaded guilty, in the Magistrate’s Court, Grahamstown, to a charge of contravening s4(b) of the Drugs and Drug Trafficking Act 140 of 1992 -- the offence of unlawfully using or possessing a dependence producing substance. In this instance the accused admitted to the unlawful possession of 24.9 grams of dagga.

[2] There are no difficulties with the conviction, which is confirmed. When it came to sentence, however, the magistrate imposed a sentence of a fine of R1 000.00 or, in default of payment, two years’ imprisonment. It would appear that the accused, who was sentenced on 18 February 2004, has not been able to pay the fine because he has been in custody since sentence was passed and is still in custody.

[3] Jennett J queried the severity of the sentence. His query reads as follows:

‘The magistrate is requested to furnish his reasons for sentence. Is the fine imposed not on the high side having regard to the relatively small amount of dagga involved and more particularly the accused’s means? Is the alternative imprisonment not excessive and does it not cause the sentence as a whole to be far too severe?’

[4] The magistrate has responded. As I understand his response, it is that he was obliged to impose the sentence that he did because, in S v Nkombini,1 White J had held that a first offender ‘who gives a dagga cigarette to his friend, or who sells one or two dagga cigarettes must be sentenced to at least the minimum sentence prescribed for dealing in dagga, namely R1 000.00 or two years’ imprisonment’.

[5] The magistrate’s reason for imposing the sentence rests on a shaky foundation. In Nkombini the sentencing discretion of the court was constrained by statute, the Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971 (as amended subsequent to 1976 by the Transkei legislature). The passage cited by the magistrate refers to the offence of dealing in dagga, for which offence the Act prescribed a minimum sentence in the case of a first offender of a fine of R1 000.00 (but of not more than R10 000.00) and, in default of payment of a fine, of imprisonment for a period of two years (but not exceeding 15 years).

[6] The passage from the judgment that the magistrate relied on is of no relevance whatsoever because it relates unequivocally and in express terms to the offence of dealing in dagga.2 In this case, the record is clear: the accused admitted to possessing the dagga for his own use and that is precisely what he was charged with and convicted of. The legislation that is of application in this case is different to that which applied in Nkombini and does not prescribe a minimum sentence for possession of dagga.

[7] When, on the page after the page referred to by the magistrate, White J discussed sentencing in cases in which accused persons had been convicted of possession of dagga, he stated that when the Act drew a distinction between the dealer in dagga, on the one hand, and the user of dagga, on the other, it intended that the former be sentenced more severely than the latter.3 He held that in respect of mere possession of dagga, as a general rule, a first offender ‘should be kept out of prison. A small fine and the alternative of a short term of imprisonment will normally suffice’.4

[8] The magistrate has misdirected himself in imposing sentence. In applying the terms of a judgment that dealt with the more serious offence of dealing in dagga, he imposed a sentence that was shockingly inappropriate and far too severe in the circumstances. The sentence must be set aside.

[9] Either a suspended sentence or a relatively small fine with the alternative of a short term of imprisonment would have been appropriate sentences, given the personal circumstances of the accused and the fact that, whatever else may be said about the offence of possession of dagga for one’s own personal use, it is an offence that is not, in the greater scheme of things, particularly serious (and is regarded in this way by a significant sector of the population).5

[10] It is not possible to achieve the result that I would have preferred because the accused has now spent three weeks in prison. He should never have been required to spend a day in prison, and would not have done so had a suspended sentence been imposed or if the fine had been set at a level that he could have afforded. In the light of these circumstances, I am of the view that justice would best be served by the time that the accused has spent in prison being regarded as the entire sentence for the offence. (Under normal circumstances, I would have endeavoured to avoid imposing a prison sentence, even one of short duration, on a first offender for an offence such as this.)

[11] The sentence is set aside and replaced with a sentence of three weeks imprisonment, backdated to 18 February 2004.

_____

C. PLASKET

JUDGE OF THE HIGH COURT

I agree

J.D. PICKERING

1 1990 (2) SACR 465 (Tk), 469e.

2 The accused in Nkombini pleaded guilty to dealing in 169.2 kilograms of dagga.

3 At 470b.

4 At 470h.

5 See S v Motsiawedi 1993 (1) SACR 306 (W), 308c-f. In this matter, Streicher J made the point that, whatever the social evils of use of dagga might be, a sense of proportion is required in sentencing offenders. He held in this regard (at 308g): ‘Wat die erns van die misdryf betref moet in gedagte gehou word dat die beskuldigde nie daarvan skuldig bevind is dat hy handel gedryf het in dagga en sodoende andere benadeel het nie. Die misbruik van alkohol is moontlik ‘n groter maatskaplike euwel as die gebruik van dagga en dit is ook die eerste drankie wat aanleiding tot die probleem gee. Tog word die alkohol probleem met groot verdraagsaamheid aangespreek. Dit is vir my geheel inkonsekwent om ‘n soortgelyke probleem soos die gebruik van dagga te probeer aanspreek met ‘n voorhamer.’