---

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) REVIEW CASE NO : 214460

In the matter between

THE STATE

And

NOVOTILE MAPUKATA

REVIEW JUDGMENT

NHLANGULELA, J. :

[1] The accused, a 69 years old woman, appeared before the magistrate of Ngqamakwe charged with dealing in dagga. Having pleaded guilty to the charge and questioned in terms of s 112 (1)(b) of the Criminal Procedure Act No. 51 of 1977 she was convicted and sentenced to pay a fine of R3 000,00 or in default of payment thereof to undergo eight months imprisonment. She was further sentenced to undergo two years imprisonment which was wholly suspended for a period of five years under certain conditions.

[2] When the matter was brought to this Court on automatic review Petse ADJP queried the sentence on the basis that the alternative sentence of eight months was not proportionate to the gravity of the crime and sentence of payment of R3 000,00 fine for such crime. What Petse ADJP was concerned with is that an excessive alternative sentence invariably indicates that the sentencing court has abdicated its duty to punish the accused for the crime which he/she has committed. In this regard see the cases of :

S v Juta 1988 (4) SA 926 (Tk);

S v Mantantana 1991 (1) SACR 528 (Tk);

S v Mbuzwana 1990 (1) SACR 663 (ECD).

When that does happen, the sentencing court would have strayed away from applying the guiding principle that a court should always take into account the personal circumstances of the accused, the nature of the crime and interest of society without over-emphasizing each of such factors above the other. I fully concur with the concerns of the Acting Deputy Judge President.

[3] The response of the magistrate to the query is the following :

“ 1. This court is thankful for the guidance by the Honourable

the Reviewing Acting Deputy Judge in this matter.

2. May the alternative term of imprisonment be altered to

three (3) months imprisonment on review.

2. The record of court proceedings is returned herewith for

attention”.

[4] The mitigating and aggravating circumstances upon which the magistrate imposed the sentence were that: she is a woman of 69 years of age and a pensioner; she was never married but have two children who live independently from her; she is responsible for the support and maintenance of one minor grand-child using the child support grant; and she is a first offender. It was submitted on behalf of the State that the crime of dealing in dagga was very serious and prevalent in the district of Nqamakwe. The magistrate considered the involvement of the accused in dagga dealing as a sign of greed and ungratefulness to the government because she was a recipient of old age pension. Nevertheless, the magistrate found it appropriate that the accused be spared from custodial punishment as a last chance.

[5] I must make a comment about the quality of dagga involved in this case. The charge sheet indicates that the accused had been found dealing in 28 zolls of dagga weighing 200 kg. During the trial and sentencing the State did not prove that 28 zolls weighed 200 kg. That the accused was the supplier of 28 zolls (not bags) was proved. In my view I would expect 28 bags to weigh as much as 200 kg. If the dagga in question weighed that much the magistrate would surely have imposed a more severe sentence than he did. Therefore, it may be concluded, with the benefit of hindsight, that the weight of dagga was 200 g.

[6] Barring the concerns which were raised by the Acting Deputy Judge President, the sentence does not seem to be completely out of proportion with the nature of the crime. I find further that the accused’s personal circumstances, and especially that she was the first offender and a woman of advanced age, constitute a compelling case for the imposition of non-custodial punishment; for now at least. Consequently, the imposed sentence falls to be set aside and substituted with a fresh sentence. I will take into account the suggestion made by the magistrate that a term of three months imprisonment would be a suitable alternative sentence.

[7] In the result I make the order that :

1. The conviction is confirmed.

2. The imposed sentence is set aside and replaced with the following new sentence; antedated to 24 November 2008 :

“ (a) The accused to pay a fine of R3 000,00 (three

thousand rand) or, in default of payment thereof, to undergo imprisonment for 3 (three) months.

2. Further, the accused to undergo 2 (two) years imprisonment which is wholly suspended for a period of five years on condition that the accused is not again convicted of an offence involving drugs in contravention of sections 4 and 5 of Act 140 of 1992 which is committed during the period of suspension.

(c) The 28 zolls of dagga are forfeited to the State.”

____________________________

Z. M. NHLANGULELA

JUDGE OF THE HIGH COURT

I agree : MILLER, J

_____________________________________

S.M. MILLER

JUDGE OF THE HIGH COURT

DELIVERED ON : 06 FEBRUARY 2009

---