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South Africa Judgment

Free State High Court, Bloemfontein

S v Sethoka (414/2010) [2010] ZAFSHC 128 (26 August 2010)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The sentence imposed by the magistrate was incompetent as it failed to comply with the statutory requirement that imprisonment must be imposed for dealing in dagga. The magistrate's request for the sentence to be set aside and the matter remitted for imposition of a competent sentence is appropriate. The court accordingly set aside the sentence and remitted the matter to the magistrate for sentencing afresh.

Court disposition

Sentence set aside and matter remitted to magistrate for imposition of competent sentence.

Orders

  • The sentence is set aside.
  • The matter is remitted to the magistrate to impose sentence afresh.

02

Material facts

Parties

The State

Applicant

Dimakatso Aletta Sethoka

Respondent

Amounts and remedies

  • Fine Imposed: ZAR 7,000
  • Dagga Quantity: 78

03

Procedural history

  1. Posture

    Review Application / Review of Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The magistrate acknowledged that the sentence imposed was incompetent as it did not comply with the statutory requirement that imprisonment must be imposed for dealing in dagga. He requested that the sentence be set aside and the matter remitted for a competent sentence to be imposed.
Respondent
No formal argument was presented by the respondent, as the review was initiated by the magistrate to correct his own sentencing oversight.

05

Court’s reasoning

  1. 01

    Section 17(e) read with 13(f) of Act 140 of 1992

    For dealing in dagga, the law requires that imprisonment must be imposed, even for first offenders. A fine with alternative imprisonment may be imposed, but the peremptory period of imprisonment must also be suspended.

  2. 02

    S v MQIKELA 2005 (2) SACR 397 (E)

    A sentence that does not comply with statutory requirements is incompetent and must be set aside.

  3. 03

    S v MOSOLOTSANE 1993 (1) SACR 502 (O); S v MOHOME 1993 (1) SACR 504 (T)

    The correct procedure is to remit the matter to the magistrate to impose a competent sentence.

06

Ratio, limits and disposition

Ratio decidendi

The sentence imposed by the magistrate was incompetent as it failed to comply with the statutory requirement that imprisonment must be imposed for dealing in dagga. The magistrate's request for the sentence to be set aside and the matter remitted for imposition of a competent sentence is appropriate. The court accordingly set aside the sentence and remitted the matter to the magistrate for sentencing afresh.

Obiter and limits

  • Magistrates must ensure that sentences imposed for statutory offences comply strictly with the requirements of the relevant legislation.
  • The review procedure serves as an important safeguard to correct sentencing errors and uphold the integrity of the criminal justice system.

Court disposition

Sentence set aside and matter remitted to magistrate for imposition of competent sentence.

  • The sentence is set aside.
  • The matter is remitted to the magistrate to impose sentence afresh.

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

[2010] ZAFSHC 128

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH

AFRICA

Review No. : 414/2010

In the review between:-

THE

STATE

versus

DIMAKATSO

ALETTA SETHOKA

CORAM: CILLIé, J et JORDAAN, J

_____________

JUDGMENT BY: CILLIé, J

DELIVERED ON: 26 AUGUST 2010

JUDGMENT

[1] The accused in this matter was convicted of contravening section 5(b) of Act 140 of 1992 to wit dealing in 78 kg of dagga. The conviction is in order. The magistrate imposed the following sentence:

“Fined Seven Thousand Rand (R7000,00) or Six (6) years imprisonment. Half of the sentence wholly suspended for four (4) years on condition that the accused is not convicted of contravention of Section 5(b) Act 140/1992 committed during the period of suspension.”

[2] This, however, is an incompetent sentence for dealing in dagga. Section 17(e) read with 13(f) of Act 140 of 1992 prescribes that imprisonment must be imposed. This is usually done in cases of a first offender when a fine is imposed with alternative imprisonment plus the said

peremptory period of imprisonment, which is suspended. See S v MQIKELA 2005 (2) SACR 397 (E); S v MOSOLOTSANE 1993 (1) SACR 502 (O); S v MOHOME 1993 (1) SACR 504 (T).

[3] The day after imposition of sentence the magistrate realised his oversight. He submitted the matter for review requesting the sentence to be set aside and the matter remitted to him to impose a competent sentence. This is in fact what should be done in this case.

For that reason the following order is made:

The sentence is set aside and the matter is remitted to the magistrate to impose sentence afresh.

____

C.B. CILLIé, J

I agree.

___

A.F. JORDAAN, 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 MQIKELA 2005 (2) SACR 397 (E)

Case cited

S v MOSOLOTSANE 1993 (1) SACR 502 (O)

Case cited

S v MOHOME 1993 (1) SACR 504 (T)

Case cited

Section 5(b) of Act 140 of 1992

Legislation

Legislation referenced in the available case record.

Section 17(e) read with 13(f) of Act 140 of 1992

Legislation

Legislation referenced in the available case record.

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