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S v Tshabalala (160/07 , 5/4912/2006)  ZAGPHC 21 (23 April 2007)
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IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
High Court Ref No: 160/07
Magistrate’s Serial No: 34/07
Review Case No: 5/4912/2006
23 April 2006
THE STATE v TSHABALALA, SIBUSISO
The accused in this matter pleaded guilty to a contravention of section 5(b) of Act 140 of 1992. He admitted that he was found in possession of 118 grams of dagga which was packaged into 40 separate zols and that he sold some of it (he did not specify how much) to some person.
He was correctly convicted and was then sentenced to imprisonment for four years. He was also declared unfit to possess a firearm.
When the matter came before me on automatic review, I formed the impression that this sentence was extremely harsh, if not draconian in nature. I have researched the subject and have found many reported decisions in which very, very much lighter sentences have been imposed. I have not found a single reported decision in which a sentence of anything approaching this severity was imposed.
The accused’s personal circumstances are that he is 22 years of age, single and with no dependants. He is a Zimbabwean citizen who came to South Africa illegally in September 2006. He is unemployed and explained that he sold dagga to pay for rent and food.
The sentence of four years’ imprisonment is in my view so excessive that it cannot be permitted to stand. No case has exactly the same facts as any other, but I come to this conclusion from the following reported decisions to which I have looked for guidance.
S v Ngobeni 1993 (1) SACR 633 (T) in which a first offending woman sold one matchbox full of dagga and had a further 17 boxes in her possession; on appeal, a sentence of eight months of which four months were suspended was regarded as excessive and altered to one of eight months wholly suspended. Several further reported decisions in which similar sentences were upset on appeal are mentioned in the judgment.
S v Groenewald 1990 (1) SACR 463 (C). Here, a disabled first offender, who was capable of earning a very small living by legal means dealt, in a small amount of dagga. The appeal court held that a sentence of R300 or five months’ imprisonment with a further five months suspended was too harsh.
S v Mathenjana 1993 (1) SACR 52 (W). In this matter, a first offender sold 18 grams of dagga and was sentenced to 36 months’ imprisonment of which half was suspended. This was considered excessive by the appeal court and altered to nine months which were wholly suspended.
S v Mthembu and Another 1992 (1) SACR 683 (W). Here, a first offender sold 297 grams of dagga and was sentenced to five years of which three years were suspended. The appeal court changed the sentence to 18 months’ imprisonment, wholly suspended.
There are many more, similar cases in the law reports.
Apart from the fact that the sentence imposed is wholly inappropriate for harshness, the magistrate has also committed several misdirections in the judgment on sentence.
First, the accused in this matter is clearly a small scale dealer. Mthembu’s case stresses the need to distinguish between the large scale, sophisticated dealer and the poverty stricken, unsophisticated person who deals in matchboxes of dagga to eke out a living. The latter type of dealer is sentenced with much less severity.
Second, the cases which the magistrate cited, e.g. S v Gibson 1974 (4) SA 478 (AD) are old cases and relevant to a period in which dealing in dagga was, by statute, very much more heavily sentenced than is the case today. It was held in S v Mkize 2000 (1) SACR 410 (W) at 413 that it is dangerous for courts to rely on these old cases in order to justify the imposition of high sentences, for the legislation has been altered.
The magistrate also erred in failing to appreciate that dealing in dagga is considered to be less of an evil than dealing in “hard” drugs such as cocaine and mandrax (see S v Nkabinde 1993 (1) SACR 6 (AD) at 9e-f). I have come to this conclusion by reason of the fact that he relied upon S v Hightower 1992 (1) SACR 420 (W) and S v Sebata 1994 (2) SACR 319 (C) in order to stress the seriousness of the offence of dealing in drugs. Both these cases were concerned with dealing in large quantities of cocaine, and such factual circumstances are wholly different from dealing in small quantities of dagga.
The accused was sentenced on 26 February 2007 but he had been in custody awaiting trial from 15 December 2006. In my view, it was necessary in the interests of justice to release him from prison at once. I consulted with a member of the DPP’s staff who shared my view. As a result, I acted in terms of the proviso to section 304(2)(a) of Act 51 of 1977. I confirmed the conviction, set aside the sentence and imposed a fresh sentence of six months’ imprisonment of which all but eight weeks was wholly suspended for three years on condition that the accused was not convicted of a contravention of section 5(b) of Act 140 of 1992 committed within the period of suspension. I antedated this sentence to 26 February 2007.
The judgment above constitutes my reasons for the order I made.
There remains one final issue to be dealt with. Section 103(1) (k) of Act 60 of 2000 (“the Act”) deems the accused to be unfit to possess a firearm. The magistrate declared the accused to be unfit to possess a firearm after a brief enquiry into the matter. The magistrate asked the accused if he had a firearm to which the accused replied that he did not and also that he did not intend to acquire one. Thereafter the magistrate declared the accused to be declared unfit to possess a firearm, despite the deeming provision.
There is nothing in the evidence to suggest that the accused is unfit to possess a firearm. I therefore set aside the order made by the magistrate and, in terms of section 103(2) of the Act, determined that the accused is fit to possess a firearm.
G A BORCHERS
JUDGE OF THE HIGH COURT
F R MALAN
JUDGE OF THE HIGH COURT