CHEDA J: The above matter was referred to me for review.
The brief facts
which are common cause are that an accused who is 58 years of age was charged
with the cultivation of 4 plants of dagga.
He pleaded guilty, was convicted and sentenced as follows:-
“6 months imprisonment of which 4
months imprisonment is suspended for
3 years on condition the accused does
not within that period commit any offence involving unlawful use, possession or
dealing in dangerous drugs and for which upon conviction he is sentenced to
imprisonment without the option of a fine”.
The learned review
Regional Magistrate expressed concern over the trial court's failure to
consider community service and its failure to forfeit the offensive dagga.
In S v Khumalo HB 39/03, I held, that,
where a court is of the view that it should impose a sentence of 24 months or
below it must first consider community service and failure to do so is a
misdirection. This, approach was again
adopted by NDOU J in
S
v C. M and S v Z.D HB 67/03, this, therefore, is the law.
The magistrate had
no alternative and should have adhered to these binding decisions. For the avoidance of doubt, failure to do so
is a misdirection.
The second issue is
that of failure to forfeit the dagga.
Forfeiture of the offensive dagga is no doubt, a must in these
circumstances for both legal and social reasons.
For social reasons, the dagga may end-up in the unlawful
hands hence the need for it to be forfeited.
In light of the
above the matter is referred back to the trial magistrate in order for him to
carry out the relevant enquiry regarding community service and the question of
forfeiture.
Cheda
J……………………………………………….
Ndou J agrees……………………………………..
