S v Thene (23/2011) [2011] ZAFSHC 92 (31 March 2011)
- Citation
- [2011] ZAFSHC 92
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- C. H. G. Van der Merwe, A. Kruger
- Case number
- 23/2011
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- C. H. G. Van der Merwe, A. Kruger
- Case number
- 23/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the sentence imposed by the magistrate was unduly harsh given the relatively small quantity of dagga and the accused's personal circumstances. The accused is a first offender, a widow supporting five children on a minimal income, and pleaded guilty with a frank explanation of her motivation. The magistrate overemphasised the prevalence of dagga dealing in the area and failed to adequately consider the need for mercy. The appropriate sentence is a fine of R4,500 or nine months imprisonment, with a further nine months imprisonment wholly suspended for five years on condition of no further contravention of section 5(b) of Act 140 of 1992 during the suspension period.
Court disposition
The original sentence is set aside and replaced with a reduced sentence reflecting the accused's mitigating circumstances.
Orders
- The sentence imposed by the magistrate is set aside.
- The accused is sentenced to R4,500 or nine months imprisonment.
- A further nine months imprisonment is wholly suspended for five years on condition that the accused is not convicted of contravening section 5(b) of Act 140 of 1992 during the period of suspension.
- The sentence is deemed to have been imposed on 16 November 2010.
02
Material facts
Parties
The State
ApplicantMamotsepa Calextine Thene
RespondentAmounts and remedies
- Original Fine Imposed: ZAR 10,000
- Original Imprisonment (months): ZAR 20
- Suspended Imprisonment (months): ZAR 12
- Revised Fine Imposed: ZAR 4,500
- Revised Imprisonment (months): ZAR 9
- Revised Suspended Imprisonment (months): ZAR 9
- Accused Monthly Earnings: ZAR 600
- Driving School Fee Demanded: ZAR 2,000
- Quantity of Dagga: ZAR 15.7
03
Procedural history
Posture
Review Application / Sentence Review
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed for dealing in 15.7kg of dagga was appropriate under the circumstances.
- 02
Whether sufficient weight was given to the accused's personal circumstances and mitigating factors.
Party arguments
- Applicant
- The State prosecuted the accused for contravening section 5(b) of Act 140 of 1992 by dealing in 15.7kg of dagga. The prosecution relied on the accused's admission that she travelled from Lesotho to sell dagga in Pietermaritzburg and was apprehended after crossing the border. The State emphasised the prevalence of dagga dealing in the magistrate's jurisdiction as aggravating.
- Respondent
- The accused, a 42-year-old widow from Lesotho supporting five children, pleaded guilty and explained her motivation as financial hardship. She earns approximately R600 per month and committed the offence to pay for her child's driving school and to provide for her family. She is a first offender and expressed remorse, requesting mercy due to her circumstances.
05
Court’s reasoning
Legal principles
- 01
S v Zinn 1969 (2) SA 537 (A)
Sentences must be proportionate to the offence and take into account both aggravating and mitigating circumstances, including the accused's personal situation.
- 02
S v Malgas 2001 (1) SACR 469 (SCA)
The prevalence of an offence in a particular area should not be overemphasised to the detriment of individualised sentencing.
- 03
S v Rabie 1975 (4) SA 855 (A)
First offenders who plead guilty and show remorse are generally entitled to a measure of mercy in sentencing.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the sentence imposed by the magistrate was unduly harsh given the relatively small quantity of dagga and the accused's personal circumstances. The accused is a first offender, a widow supporting five children on a minimal income, and pleaded guilty with a frank explanation of her motivation. The magistrate overemphasised the prevalence of dagga dealing in the area and failed to adequately consider the need for mercy. The appropriate sentence is a fine of R4,500 or nine months imprisonment, with a further nine months imprisonment wholly suspended for five years on condition of no further contravention of section 5(b) of Act 140 of 1992 during the suspension period.
Obiter and limits
- The court noted that sentences for dealing in dagga should be consistent and not disproportionately severe for relatively small quantities.
- The accused's personal circumstances, including her role as sole provider for her children, warrant significant mitigation.
Court disposition
The original sentence is set aside and replaced with a reduced sentence reflecting the accused's mitigating circumstances.
- The sentence imposed by the magistrate is set aside.
- The accused is sentenced to R4,500 or nine months imprisonment.
- A further nine months imprisonment is wholly suspended for five years on condition that the accused is not convicted of contravening section 5(b) of Act 140 of 1992 during the period of suspension.
- The sentence is deemed to have been imposed on 16 November 2010.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 23/2011
In the case between:
THE STATE
and
MAMOTSEPA CALEXTINE
THENE
_____________
CORAM: KRUGER, J et VAN DER MERWE, J
JUDGMENT: VAN DER MERWE, J
DELIVERED ON: 31 MARCH 2011
[1] The accused was correctly convicted of giving him 15,7kg dagga in contravention of section 5(b) of Act no. 140 of 1992. The accused admitted that she travelled from Lesotho in order to sell the dagga at Pietermaritzburg and that she was apprehended after crossing the border from Lesotho into South Africa. The accused was sentenced to R10 000,00 or 20 months imprisonment and in addition thereto a further 12 months imprisonment wholly suspended for 5 years on condition that the accused is not convicted of contravening section 5(b) of Act no 140 of 1992 committed during the period of suspension.
[2] Not only is the sentence heavier than usually imposed for dealing in a relatively small quantity of dagga, but the circumstances of this case called for a measure of mercy. The magistrate’s reasons for sentence indicate that this was not realise and that the prevalence of dealing in dagga in the area of jurisdiction of the magistrate was over emphasised.
[3] The accused is a citizen of Lesotho. She is 42 years of age. She has been a widow for about 10 years. She __ for her five children, aged between 12 and 21 years. She earns approximately around R600,00 per month by cleaning other peoples gardens. She is a first offender. She pleaded guilty and frankly explained how she became involved in this crime as follows:
“The reason why I got involved in committing this crime, Your Worship, was to try and supplement my (indistinct) earnings and due to the fact that I am having a lot of children whom it is difficult to maintain. One of the children is doing form C. One of the children is currently at the driving school. The owner of the business demanded to be paid an amount of R2 000,00 and I realised that my wages were sufficient for all those expenses. I saw other successfully selling dagga, so I decided to take a chance too. The owner of the driving school business allowed my child to attend on credit. The agreement between us is that I am supposed to pay the amount of R2 000,00 by December and that is why I decided to commit this offence and earn extra money to meet my expenses, Your Worship. My children were suffering from hunger. I didn’t have money to buy them cloths. That is all, Your Worship.”
[4] In my view a sentence of R4 500,00 or 9 months imprisonment as well as a further 9 months imprisonment conditionally suspended is appropriate in the circumstances in this case.
[5] The sentence is set aside and replaced with a sentence of R4 500,00 or 9 months imprisonment as well as a further 9 months imprisonment wholly suspended for a period of 5 years on condition that the accused is not convicted of a contravention of section 5(b) of Act no. 140 of 1992 committed during the period of suspension. The sentence must be deemed to have been imposed on 16 November 2010.
_____
C. H. G. VAN DER MERWE, J
I concur.
______
A. KRUGER, J
/eb
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