S v Msomi (R169/2019) [2019] ZAFSHC 210 (7 November 2019)

S v Msomi (R169/2019) [2019] ZAFSHC 210 (7 November 2019)

The court found that the sentence imposed by the relief magistrate was incompetent because it provided an alternative of a fine to imprisonment, contrary to the statutory requirements for dealing in dagga. The correct approach is to impose imprisonment, which may be suspended, and a fine may only be imposed in addition to imprisonment. The court replaced the sentence to align with the statutory framework and the intention of the trial magistrate, confirming the conviction and imposing a fine together with a wholly suspended term of imprisonment, with conditions attached.

Citation
[2019] ZAFSHC 210
Parties
Applicant: The State; Respondent: Thamsanqa Abednego Msomi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 November 2019
Case Number
R169/2019
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction confirmed; sentence set aside and replaced with a competent sentence.
Judges
Loubser, Murray
Legal Topics
Sentencing Incompetence, Drugs and Drug Trafficking Act, Review Proceedings, Forfeiture of Property
Criminal Law Sentencing Incompetence Drugs and Drug Trafficking Act Review Proceedings Forfeiture of Property

Case Brief

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Parties

The State

Applicant

Thamsanqa Abednego Msomi

Respondent

Procedural Posture

Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the sentence imposed by the relief magistrate was competent under the Drugs and Drug Trafficking Act.
  2. 2 Whether imprisonment without the option of a fine is mandatory for dealing in dagga.
  3. 3 Whether the sentence should be replaced with a competent sentence.

Ratio Decidendi

The court found that the sentence imposed by the relief magistrate was incompetent because it provided an alternative of a fine to imprisonment, contrary to the statutory requirements for dealing in dagga. The correct approach is to impose imprisonment, which may be suspended, and a fine may only be imposed in addition to imprisonment. The court replaced the sentence to align with the statutory framework and the intention of the trial magistrate, confirming the conviction and imposing a fine together with a wholly suspended term of imprisonment, with conditions attached.

Court Disposition

Conviction confirmed; sentence set aside and replaced with a competent sentence.

Orders

  • The conviction is confirmed.
  • The sentence imposed by the magistrate is set aside and replaced with: a fine of R 10,000 or 18 months imprisonment; in addition, 18 months imprisonment wholly suspended for five years on condition that the accused is not convicted of contravening Section 5(b) or 4(b) of Act 140 of 1992 during the period of suspension.