S v Mokoena (723/2005) [2005] ZAFSHC 95 (18 August 2005)

S v Mokoena (723/2005) [2005] ZAFSHC 95 (18 August 2005)

The magistrate imposed a sentence of a fine or alternative imprisonment, which is not a competent sentence under section 13(f) read with section 17(e) of Act 140 of 1992. The correct approach is to impose imprisonment, which may be suspended, and a fine may be added as an alternative. The accused was unlikely to pay the fine due to lack of financial means, rendering the sentence equivalent to direct imprisonment. The interests of justice require that the sentence be replaced with a wholly suspended sentence to allow for rehabilitation outside prison. Additionally, the dagga seized should have been declared forfeited to the State, as required by statute.

Citation
[2005] ZAFSHC 95
Parties
Applicant: The State; Respondent: Sameul Mafethe Mokoena
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 August 2005
Case Number
723/2005
Procedural Posture
Criminal Review / Automatic Review Under Section 302(1)(a)(i) Read With Section 304 of the Criminal Procedure Act 51 of 1977
Outcome
Conviction confirmed; sentence set aside and replaced with wholly suspended imprisonment; dagga declared forfeited to the State.
Judges
C.J. Musi, C.H.G. Van der Merwe
Legal Topics
Sentencing Procedure, Competent Sentence, Drug Offences, Forfeiture of Illicit Goods
Criminal Law Sentencing Procedure Competent Sentence Drug Offences Forfeiture of Illicit Goods

Case Brief

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Parties

The State

Applicant

Sameul Mafethe Mokoena

Respondent

Procedural Posture

Criminal Review / Automatic Review Under Section 302(1)(a)(i) Read With Section 304 of the Criminal Procedure Act 51 of 1977

Legal Issues

  1. 1 Whether the sentence imposed by the magistrate was a competent sentence under the relevant statute.
  2. 2 Whether the dagga seized should have been declared forfeited to the State.

Ratio Decidendi

The magistrate imposed a sentence of a fine or alternative imprisonment, which is not a competent sentence under section 13(f) read with section 17(e) of Act 140 of 1992. The correct approach is to impose imprisonment, which may be suspended, and a fine may be added as an alternative. The accused was unlikely to pay the fine due to lack of financial means, rendering the sentence equivalent to direct imprisonment. The interests of justice require that the sentence be replaced with a wholly suspended sentence to allow for rehabilitation outside prison. Additionally, the dagga seized should have been declared forfeited to the State, as required by statute.

Court Disposition

Conviction confirmed; sentence set aside and replaced with wholly suspended imprisonment; dagga declared forfeited to the State.

Orders

  • The conviction is confirmed.
  • The sentence is set aside and replaced with: '6 months imprisonment wholly suspended for 5 years on condition that the accused is not convicted of contravening section 4(b) or 5(b) of Act 140/1992 committed during the period of suspension.'