This matter came on review in terms of Section 304 of the Criminal Procedure Act 51 of 1977 (“the CPA”) as the presiding officer on review was doubtful as to whether the sentence imposed was in accordance with justice.
The Accused in this matter became known to the court as an unmarried, 28-year old male and a father to a minor child whose highest academic qualification was standard 2. He plead guilty to the unlawful possession of a drug which was listed as an “undesirable dependence producing substance” as per part III of Schedule 2 of the Drugs and Drug Trafficking Act 140 of 1992.
Prior to the case at hand, the State was able to prove four previous convictions against the Accused, the consequences of which required the Accused to either pay a fine or serve a term of imprisonment.
In this specific case, the State argued for direct imprisonment as the only appropriate sentence. The Accused was however sentenced to pay a fine of R5,000.00 (five thousand Rand) or serve a term of five months imprisonment and a further ten months imprisonment, suspended for a period of five years, on condition that he is not convicted of possession of or dealing in drugs during his period of suspension.
In the review process, the Magistrate in question was asked to provide comments on the proportionality of the fines as opposed to the terms of imprisonment imposed in light of the case of S v Permall 2018 (2) SACR 206 (WCC) (“Permall”). The learned Magistrate opined that Permall appeared to deprive a Magistrate’s discretion in sentencing, as Magistrates were forced to then abide by, and rigidly apply, a mathematical formula when imposing a fine, which resulted in the Magistrates not addressing such matters on a case by case basis.
The Presiding Judge stated that the Permall interpretation was not correct, as it did not resonate with the cardinal principle established, in that a sentence must be individualised, must fit the particular accused, the nature of the crime, and the interests of society. He further stated that fines should be consistent enough to create certainty, in light of the circumstances of each offender.
Reference was also made to the principle established in the case of S v Swarts (181072) ZAWCHC (13) November 2018) wherein which the learned Judge was quoted as follows:
“… Especially in criminal matters where the liberty of a person is at stake, it must be exercised judiciously and in accordance with principles of fairness and justice.”
It was established that in order to meet justice, Magistrates must consider all relevant factors, and it is impossible to generalise when it boils down to the relationship between a fine and a period of imprisonment.
Emphasis was placed on the importance of proportionality being a key consideration in sentencing. The Accused’s previous convictions weighed heavily in the trial court and his previous sentences were found not to have deterred him.
The proceedings were therefore held to be in accordance with justice and the court did not find it appropriate to set aside the sentence, as same did not appear to be shockingly inappropriate.
This case illustrates that fines should be consistent so as to create certainty, depending on the circumstances of each offender, the seriousness of the crime and interests of society.
Written by Jayna Hira Checked by Charlotte Clarke
29 October 2019