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IN THE HIGH COURT OF SOUTH AFRICA
( WITWATERSRAND LOCAL DIVISION )

Johannesburg

DATE: 5 / 03 / 2001

CASE NO: 267/2001

In the matter between:

THE STATE

And

JUSTICE MPHINI

REVIEW JUDGMENT

WILLIS J:

This case has come to me by way of review in terms of section 304 of the Criminal

Procedure Act No. 51 of 1977, as amended.

The accused was found guilty in the Soweto Magistrate’s Court of contravening Section 4 (b) read with Section 1,13,17,19,20 21 and 25 of Act 140 0f 1992 in that he unlawfully had in his possession 211,2g of dagga.

The accused is a 36 year old first offender earning a living as a hawker. He supports a wife and three children. He was retrenched in September, 2000. He pleaded guilty and said that he kept the dagga for his personal use.

I am satisfied that his conviction was in accordance with justice.

He was sentenced to R2500 or six months’ imprisonment plus a further four months’ imprisonment suspended for three years on condition that he is not convicted of contravening Section 4(b) or 5(b) of Act 140/1992 during the period of suspension. In addition, his dagga was declared forfeited to the State. The accused is seemingly unable to pay the fine as he claimed would be the case. He remains in custody. He did, however, manage to pay bail of R500.

This sentence differs so strikingly from that which I would have considered appropriate in these particular circumstances that I am of the view that justice requires that I interfere. I have asked the Director of Public Prosecutions for comment and his office agrees that a lesser sentence is appropriate.

Taking the unreported judgment of Streicher and Joffe JJ in the case of The State v Buthelezi ( Case No. 65/1484/91) as a most helpful guide in such a matter, I make the following order:

1. The sentence is set aside;

2. The following is substituted for the sentence of the Court a quo:

(a) The accused is sentenced to a fine of R500 ( five hundred rand) or four months’ imprisonment plus a further four months’ imprisonment suspended for three years on condition that he is not convicted of contravening Section 4(b) or 5(b) of Act 140/1992 during the period of suspension

(b) In terms of Section 25 of Act 140 of 1992, the dagga in respect of which the accused was found to be in possession is declared forfeited to the State.

DATED AT JOHANNESBURG THIS 5th DAY OF MARCH, 2001.

N.P.WILLIS

JUDGE OF THE HIGH COURT

I agree.

F.H.D. VAN OOSTEN

JUDGE OF THE HIGH COURT

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