IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)

								Review Nr.:  1379/04

In the review of:

THE STATE

versus

PHILLIMON NKABINDE

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CORAM:			MUSI J et EBRAHIM J 
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JUDGMENT:		MUSI J
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DELIVERED ON:	23 SEPTEMBER 2003
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This is a review matter.  The accused was charged with and convicted of dealing in dagga in contravention of section 5(b) of Act 140 of 1992 and he was sentenced to a fine of R4000,00 or 8 months imprisonment.  I asked the magistrate by way of a query dated 26 August 2004 whether the sentence of the option of a fine only was competent.  Her response is that it is competent and was an appropriate sentence in the circumstances of the case. 

The learned magistrate is apparently not aware of existing authority in this regard.  In a conviction for dealing in dagga it is not competent to impose only an option of a fine.  Such option, if it is chosen, must be coupled with an additional term of imprisonment which may be suspended.  That is settled law, at any rate, in this Province.  See S v MOSOLOTSANE 1993 (SACR) 502 O.  The sentence imposed is therefore incompetent and stands to be set aside.

I note that the fine has not been paid, at any rate, as at 11 August 2004.  It will not be in the interests of justice to further delay finalization of this matter by remitting it to the Magistrate Court for imposition of a competent sentence.  Moreover,  it is my view that the fine of R4000,00 is indeed appropriate given the large quantity of dagga involved.  So that the only thing that needs to be done is to add a term of imprisonment which will be suspended.

The following sentence is substituted:

The accused is sentenced to a fine of R4000,00 or 8 months imprisonment, plus an additional 12 months imprisonment which is wholly suspended for 4 years on condition that the accused is not convicted of a contravention of section 5(b) read with the other relevant sections of Act 140 of 1992, committed during the period of suspension.

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							H.M. MUSI,  J

		I CONCUR:

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							S. EBRAHIM,  J 

/ec