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South Africa Judgment

Free State High Court, Bloemfontein

S v Hoffmeester (R347/2018) [2018] ZAFSHC 216 (24 December 2018)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court held that the original condition of suspension was impermissibly vague and could unfairly prejudice the accused by allowing the suspended sentence to be triggered by offences committed before the suspension period. The sentence was therefore amended to ensure that only offences committed during the period of suspension would trigger the suspended sentence. The court further held that the Constitutional Court's declaration of invalidity of section 4(b) of Act 140 of 1992 only took effect from the date of the judgment and did not apply retrospectively. Since the accused was convicted before the Constitutional Court's judgment, the conviction stands and is confirmed.

Court disposition

Conviction confirmed; sentence amended.

Orders

  • The conviction of the accused for contravening section 4(b) of Act 140 of 1992 is confirmed.
  • The sentence is amended to R300.00 or 15 days imprisonment, suspended for 3 years on condition that the accused is not convicted of contravening section 4(b) of Act 140 of 1992 committed during the period of suspension.

02

Material facts

Parties

The State

Applicant

Rhenyyn Makam Hoffmeester

Respondent

Amounts and remedies

  • Fine Imposed: ZAR 300

03

Procedural history

  1. Posture

    Review Application / Special Review

04

Questions and positions

Legal issues

Party arguments

Applicant
The acting senior magistrate argued that the suspension condition was too broad and could unfairly prejudice the accused if he were convicted for an offence committed before the current conviction. The magistrate also requested that the conviction be set aside due to the Constitutional Court's decision in Prince, which declared section 4(b) invalid.
Respondent
The accused admitted to possession of dagga. No substantive argument was advanced against the conviction or sentence amendment.

05

Court’s reasoning

  1. 01

    General principles of criminal sentencing

    A suspended sentence must be clear and not operate retrospectively to offences committed before the suspension period.

  2. 02

    Minister of Justice and Constitutional Development v Prince (CCT108/18) [2018] ZACC 30

    The Constitutional Court's declaration of invalidity of section 4(b) of Act 140 of 1992 applies only from the date of judgment and does not affect convictions prior to that date.

06

Ratio, limits and disposition

Ratio decidendi

The court held that the original condition of suspension was impermissibly vague and could unfairly prejudice the accused by allowing the suspended sentence to be triggered by offences committed before the suspension period. The sentence was therefore amended to ensure that only offences committed during the period of suspension would trigger the suspended sentence. The court further held that the Constitutional Court's declaration of invalidity of section 4(b) of Act 140 of 1992 only took effect from the date of the judgment and did not apply retrospectively. Since the accused was convicted before the Constitutional Court's judgment, the conviction stands and is confirmed.

Obiter and limits

  • The weight of the dagga possessed by the accused is irrelevant to the conviction under section 4(b) of Act 140 of 1992.
  • The order of the Constitutional Court is clear and unambiguous regarding the prospective effect of its declaration of invalidity.

Court disposition

Conviction confirmed; sentence amended.

  • The conviction of the accused for contravening section 4(b) of Act 140 of 1992 is confirmed.
  • The sentence is amended to R300.00 or 15 days imprisonment, suspended for 3 years on condition that the accused is not convicted of contravening section 4(b) of Act 140 of 1992 committed during the period of suspension.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2018] ZAFSHC 216

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION,

BLOEMFONTEIN

Review No.: R347/2018

In the review of:-

THE

STATE

And

RHENNYN

MAKAM HOFFMEESTER

CORAM: MUSI, AJP

JUDGMENT BY: MUSI,

AJP

DELIVERED ON: 24 December 2018

[1] This matter was referred on special review by the acting senior magistrate, Bloemfontein.

[2] The accused was convicted of contravening section 4(b) of Act 140 of 1992 – possession of dagga. He was sentenced as follows:

“Today I consider R300 or 15 days, suspended for 3 years to be an appropriate sentence, which I will then suspend… is suspended

for 3 years on condition that you are not found guilty of contravention of section 4(b) Act 140 of 1992 during the period of suspension.”

[3] The acting senior magistrate correctly points out that the condition of suspension is too wide and vague. If the accused is in future convicted for contravening section 4(b) of Act 140 of 1992 which was committed before he was convicted for this offence this suspended sentence could be put into operation.

[4] The accused would obviously be prejudiced. The sentence ought to be amended.

[5] The acting senior magistrate further requests that the conviction be set aside due to the decision of the Constitutional court in Minister of Justice and Constitutional Development v Prince (CCT108/18 [2018] ZACC 30.

[6] This accused was sentenced on 12 September 2018. The Constitutional court judgment was delivered on 18 September 2018.

The order is clear and unambiguous that the qualified invalidity of section 4(b) is only with effect from the date of the handing down of the judgment of the Constitutional court.

[7] The accused admitted that he possessed dagga. The weight thereof is of no moment.

[8] The conviction if therefore in order and is confirmed.

[9] The sentence is amended to read as follows:

R300.00 or 15 days imprisonment which is suspended for 3 years on condition that the accused is not convicted of contravening section 4(b) of Act 140 of 1992 committed during the period of suspension.

____

C. J. MUSI, J

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Minister of Justice and Constitutional Development v Prince (CCT108/18) [2018] ZACC 30

Case cited

Drugs and Drug Trafficking Act 140 of 1992

Legislation

Legislation referenced in the available case record.

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