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South Africa Judgment

Free State High Court, Bloemfontein

S v Mokheea (1075/2004) [2004] ZAFSHC 92 (7 October 2004)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The magistrate erred by sentencing the accused on the basis that the cannabis was possessed for purposes other than personal use, despite no evidence to that effect. The accused is a first offender, young, and has prospects for rehabilitation. The sentence imposed was startlingly inappropriate and disproportionate to the circumstances. The reviewing court set aside the original sentence and substituted it with a lesser sentence more aligned with the facts and the accused's personal circumstances.

Court disposition

Conviction confirmed; sentence set aside and substituted.

Orders

  • The conviction is confirmed.
  • The sentence imposed by the magistrate is set aside.
  • The sentence is substituted with a fine of R750,00 or three months imprisonment, deemed imposed on 25 May 2004.

02

Material facts

Parties

The State

Applicant

Tebogo Mokheea

Respondent

Amounts and remedies

  • Original Fine Imposed: ZAR 3,000
  • Substituted Fine: ZAR 750
  • Cannabis Quantity (kg): ZAR 7.6

03

Procedural history

  1. Posture

    Review Application / Review of Sentence After Conviction on Guilty Plea

04

Questions and positions

Legal issues

Party arguments

Applicant
The State did not advance further argument; the review was initiated due to concerns about the appropriateness of the sentence and possible misdirection by the magistrate.
Respondent
The accused pleaded guilty to possession of cannabis, was a first offender, and possessed the cannabis for personal use. He is 22 years old, unmarried, a father, and has struggled to find permanent employment. No aggravating circumstances were established.

05

Court’s reasoning

  1. 01

    S v Zinn 1969 (2) SA 537 (A)

    A sentence must be appropriate to the circumstances of the accused and the offence, and should not be based on unproven aggravating factors.

  2. 02

    Section 304 of the Criminal Procedure Act 51 of 1977

    Where the magistrate misdirects himself on material facts, the reviewing court is entitled to set aside the sentence and substitute its own.

06

Ratio, limits and disposition

Ratio decidendi

The magistrate erred by sentencing the accused on the basis that the cannabis was possessed for purposes other than personal use, despite no evidence to that effect. The accused is a first offender, young, and has prospects for rehabilitation. The sentence imposed was startlingly inappropriate and disproportionate to the circumstances. The reviewing court set aside the original sentence and substituted it with a lesser sentence more aligned with the facts and the accused's personal circumstances.

Obiter and limits

  • Delays in the transmission of records and reasons for sentence are unacceptable, as the liberty of citizens is at stake.
  • Magistrates should ensure that the purpose of possession is properly established before sentencing.

Court disposition

Conviction confirmed; sentence set aside and substituted.

  • The conviction is confirmed.
  • The sentence imposed by the magistrate is set aside.
  • The sentence is substituted with a fine of R750,00 or three months imprisonment, deemed imposed on 25 May 2004.

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

[2004] ZAFSHC 92

IN THE HIGH COURT

OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Review No.: 1075/2004

In the review of:

THE STATE

versus

TEBOGO MOKHEEA

_____________

CORAM: VAN

DER MERWE J

JUDGMENT: VAN

DER MERWE J

DELIVERED ON: 7 OCTOBER 2004

[1] In consequence of his plea of guilty, the accused in this matter was convicted of a contravention of section 4(b) of Act No 140 of 1992, in that he was in the possession of 7,6 kilogram cannabis. On 25 May 2004 he was sentenced to a fine of R3 000,00 or six months imprisonment and a further 12 months imprisonment wholly suspended for a period of five years on condition that the accused is not convicted of contravening sections 4(b) or 5(b) of Act No 140 of 1992 committed during the period of suspension.

[2] The record of proceedings in the magistrate court, consisting of six typed pages, reached the office of the Registrar of this Court on 8 July 2004. Per letter dated 9 July 2004 the magistrate was requested to furnish reasons for the sentence. Such reasons, although dated 29 July 2004, reached the office of the Registrar only on 29 September 2004, without any explanation. I sincerely hope that the person or persons responsible will keep in mind in future that the liberty of citizens are at stake in these matters and that such delays will not be repeated.

[3] The accused is 22 years of age. He is unmarried but the father of a child of three years old. He passed grade 12 in the year 2002 but was unable to obtain a permanent job. He did odd jobs for approximately R25,00 per day. He was supposed to attend an interview for a job at Ellerines Furniture on 8 June 2004. From the above it appears that the accused has the potential to make a useful contribution to society. The magistrate did not inquire from the accused as to the purpose of his possession of the cannabis. Accordingly it must be accepted for the purpose of sentence that he possessed it for personal use. The accused is a first offender.

[4] In these circumstances the sentence imposed is in my view startingly inappropriate. Also, the magistrate seriously misdirected himself by sentencing the accused on the basis that the accused was in possession of the dagga for purposes of transporting it to be used for a purpose other than personal use. The sentence must therefore in my judgment be set aside. In all the circumstances a sentence of a fine of R750,00 or three months imprisonment is in my view appropriate.

[5] The conviction is confirmed but the sentence is accordingly set aside and substituted with a sentence of a fine of R750,00 or three months imprisonment, which must be deemed to have been imposed on 25 May 2004.

________

C.H.G. VAN DER MERWE. J

/sp

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Authorities

Authorities used by the court

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

S v Zinn 1969 (2) SA 537 (A)

Case cited

Act No 140 of 1992

Legislation

Legislation referenced in the available case record.

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

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