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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) REVIEW REF NO.:214452

In the matter between

THE STATE

And

KHALIPHILE TYABULE

REVIEW JUDGEMENT

NHLANGULELA, J.:

[1] The accused, an adult male, appeared before the Magistrate of Mt Ayliff on a charge of contravening s 4 (a) or 4 (b) of the Drugs and Trafficking Act 140 of 1992; it being alleged that he was found in possession of 0,032 grams of dagga. Having pleaded guilty to the charge he was questioned in terms of s 112 (1)(b) of the Criminal Procedure Act No. 51 of 1977 (the Act). At the end of questioning he was found guilty of contravening s 4 (b). Pursuant thereto he was sentenced to pay a fine of R20 000,00 or in default of payment to undergo twelve (12) months imprisonment; half of which sentence was suspended for 5 years on certain conditions.

[2] When the matter was brought to this Court for review Petse ADJP raised a query in the following terms :

“ Given the small quantity of dagga found in the accused’s possession is the sentence imposed on him not overly harsh more particularly that the accused pleaded guilty. Reasons for sentence are requested.

It might be profitable for the trial magistrate to read the following cases :

(a) S v Langa 1990 (2) SACR 190 (NPD) at 194 g;

(b) S v Moorosi 1999 (1) SACR 336 (OPD);

(c) S v Masia 1997 (2) SACR 687 (OPD);

(d) S v Mbatha 2000 (2) SACR 409 (WLD)”.

[3] In his reply to the concerns of the reviewing Judge the Magistrate conceded that the imposed sentence was inappropriate stating that :

“The accused pleaded guilty to and was convicted of possession or use of dagga with a mass of 0.032 grams.

The accused was found in possession of dagga whilst visiting an awaiting trial prisoner at the Mt Ayliff Police Station. There was an assumption that the accused had intended the dagga to reach the awaiting trial prisoner.

It is no exaggeration to state that possession of and use of, and dealing in dagga is prevalent in this district. This morning in court an elderly lady whose age was recorded as 87 years appeared before me charged with dealing in drugs.

The accused in this case was daring to carry in his possession some dagga knowing that he was going to a Police Station…”.

The Magistrate then suggested that the sentence may be set aside and replaced with a sentence of a fine of R5 000,00 or, in default of payment, the accused to undergo imprisonment for 4 months of which half be suspended on certain conditions.

[4] The reply together with the record of the proceedings before the Magistrate were returned at a time when Petse ADJP was away on leave. I have to take over the matter so that the review of this case may be finalized.

[5] The cases that were referred to the Magistrate under the query involved sentences for possession of dagga. They show a range of sentences imposed starting with payment of a fine of R900,00 or six months imprisonment to R3 000,00 or 9 months imprisonment for possession of 5,466 kg to 100,14 kg of dagga respectively. In other words, when sentencing for dagga the courts have taken into account the quantity of dagga resulting in sentences being increased accordingly; but not to such a high level that the magistrate has done in this case. It is also interesting to observe that in each of those case the accused was a first offender who had not possessed dagga for the purpose of commercial trading but for the purposes of medication; treatment of cattle, smoking and even to share it with others.

[6] In this case it appears from the questions and answers as exchanged during questioning in terms of s 112 (1)(b) of the Act that the accused was found in possession of dagga whilst he was at the police station. However, the Magistrate’s expressed concern in his reply that the sentence he imposed was warranted due to that the accused was delivering dagga to an awaiting trial prisoner was not based on the facts of the case but on speculation. The Magistrate misdirected himself in this regard.

[7] In mitigation of sentence the accused stated that he was 25 years of age, worked as a painter, used dagga as a cure to “sleeplessness problem” he had and that he was a first offender. He showed remorse by pleading guilty to the charge. I am not persuaded that the alternative sentence as suggested by the Magistrate is an appropriate sentence in the circumstances of this case.

[8] It appears from the reply to the query that the Magistrate over-emphasized the seriousness of the crime at the expense of the personal circumstances of the accused. He adopted an approach that was criticized by Howie AJA, as he was then, in S v Sobandla 1992 (2) SA SACR 613 (A) at 617 F – G as “sacrificing the accused on the alter of deterrence resulting in his receiving an unduly severe sentence”. That much appears from the imposed fine of R20 000,00 which, in my view, is totally out of proportion to the magnitude of the offence. In the cases of S v Jansen 1990 (1) SACR 694 (C) and S v Du Plessis 1991 (1) SACR 194 (C) the accused persons were convicted of possession of one gram of dagga and were each convicted to undergo imprisonment for 8 months and 6 months respectively. On review both sentences were suspended for a period of three years without conditions because the quantities of dagga were found to be too low; boardering on the trivial. Consequently, I find that the Magistrate in this case exercised his discretion improperly and unreasonably. The sentence which he imposed cannot stand.

[9] In light of the aforegoing, I am not persuaded that the suggested sentence of payment of R5 000,00 or, in default, imprisonment for a period of 12 months half of which to be suspended for 5 years, will be appropriate for this case. I am prepared to impose a new sentence.

[10] In the result, the following order is made :

(a) The conviction is confirmed.

(b) The sentence is set aside and substituted with the following sentence; ante-dated to 03 December 2008.

“The accused is sentenced to pay a fine of R1 000,00 or in default of payment to undergo three (3) months imprisonment; which is wholly suspended for a period of three months”.

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Z M NHLANGULELA

JUDGE OF THE HIGH COURT

I agree : PETSE ADJP

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X. M. PETSE

JUDGE OF THE HIGH COURT

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