Judges throw out shocking spliff sentence

The High Court has overturned a two-year prison sentence for possession of a single dagga cigarette.

28 January 2020 | Justice

A N$4 000 fine or two-year prison sentence for possession of a single two-gram dagga joint worth N$20 was tossed out by two High Court judges who said the punishment was too severe.

“There can be no doubt that the N$4 000 fine imposed by the court fell well outside the financial means of the accused, thereby effectively imposing a sentence of two years imprisonment for two grams of cannabis valued at N$20.”

This was the conclusion reached in a review judgement by High Court Judge Christie Liebenberg and acting High Court Judge Orben Sibeya in mid-January.

Benoit Swart (45) was found guilty of possession by a Keetmanshoop magistrate last October after the police discovered him with a cannabis cigarette on his home's stoep following a tip-off.

Liebenberg and Sibeya agreed that the magistrate, not named in the review papers, handed down a sentence that is “so shockingly inappropriate that it borders on a failure of justice”.

They said Swart was “clearly sacrificed on the proverbial altar of deterrence” with no regard given to a number of critical mitigating factors.

In their scathing judgement, Liebenberg and Sibeya wrote: “How the magistrate could possibly think that this is an instance where the accused should be visited with the full extent of the law is beyond comprehension.”

Swart had told the magistrate he earned N$1 300 as a plumber and that he was the sole breadwinner for his family.

His plea for a fine of N$400 or one month behind bars fell on deaf ears.

Liebenberg and Sibeya pointed out that the fine imposed was clearly out of reach of the accused, “resulting in him having to serve the alternative two years' imprisonment”.

Ultimately, Swart spent two days in prison and was released after he managed to scrape together N$4 000.



Faulty

Among the multiple criticisms levelled against the sentence was the magistrate's decision to ignore the small amount of cannabis found on Swart.

This “bold conclusion” was not in line with case law, however, Liebenberg and Sibeya noted.

“Logic dictates that a person found with two grams of cannabis should receive a lesser sentence than a person found with two kilograms of cannabis.”

Furthermore, the magistrate had applied “erroneous reasoning” when she linked Swart's crime with children being exposed to drugs, and offences like rape, murder, culpable homicide and robbery.

“There is simply no basis for connecting the crime committed by the accused with any of these circumstances,” they said.

She also failed to acknowledge that he was a first offender, employed and his family's sole breadwinner.

“It is evident that mere lip service was paid to the accused's personal circumstances. This unfortunately resulted in the court over-emphasising the seriousness of the offence and the interests of society,” the review read.

While upholding the conviction, Liebenberg and Sibeya ordered that his sentence be set aside and instead imposed a fine of N$500 or, in default, 60 days behind bars.

The judges ordered that Swart be refunded N$3 500 and that the judgement be brought to his attention, as well as that of the chief magistrate and magistrates in the Keetmanshoop jurisdiction.

JANA-MARI SMITH

Similar News

 

Lawyer's fraud trial to start in October

1 day - 07 July 2020 | Justice

NAMPAWINDHOEKThe trial of an estate administrator, who stands accused of fraud and embezzling funds belonging to orphaned children between 2015 and 2017, is now ready...

• Rundu murder case transferred to High Court

2 days ago - 06 July 2020 | Justice

KENYA KAMBOWERUNDUThe murder case of Castro Domingo (34) has been transferred to the Oshakati High Court for plea and trial.Domingo pleaded not guilty to all...

'Councillor punched me till I coughed blood'

1 week ago - 01 July 2020 | Justice

KENYA KAMBOWERUNDUKristine Tjarura Likakatere (63), who was allegedly assaulted by her cousin, Rundu Rural constituency councillor Michael Shikongo, says she was slapped and punched in...

Fishcor's Nghipunya denied bail

1 week ago - 01 July 2020 | Justice

OGONE TLHAGEWINDHOEKMike Nghipunya, the suspended CEO of the National Fishing Corporation of Namibia (Fishcor), was denied bail by the Windhoek Magistrate's Court yesterday.He is implicated...

Babi and follower charged with bribery

1 week ago - 30 June 2020 | Justice

FRANCOISE STEYNBERG WINDHOEKAccused rhino poacher Jackson Babi (30) and one of his followers, Ananias Ananias, appeared on two corruption charges before the Windhoek Magistrate's Court...

Chinese murder suspects to plead in August

1 week ago - 30 June 2020 | Justice

KENYA KAMBOWERUNDUTwo Chinese shop owners, Xuefeng Chen (30) and Zhenhai Zhou (32), who allegedly killed an employee at Andara village in the Kavango East by...

Rape accused denied bail at Mariental

1 week ago - 25 June 2020 | Justice

NAMPAMARIENTALA 39-year-old man who was arrested this past Saturday for allegedly raping of a 21-year-old woman in Mariental's Ombili informal settlement made his first court...

Lack of magistrates frustrates lawyers

2 weeks ago - 24 June 2020 | Justice

ILENI NANDJATO OSHAKATI A lack of magistrates in northern courts is frustrating lawyers operating in this area. They say there is...

Kora dirty laundry to be aired in September

2 weeks ago - 23 June 2020 | Justice

ELLANIE SMITWINDHOEKThe Kora All-Africa Music Awards scandal, in which N$23 million was paid from government coffers for an event that never took place, will play...

Covid-19 fugitive can't appear in court

2 weeks ago - 22 June 2020 | Justice

OGONE TLHAGEWINDHOEKImmanuel David, a Namibian-born South African passport holder who entered the country illegally by crossing the Orange River in a canoe, is yet to...

Latest News

Khorixas town council to prioritise

22 hours ago | Economics

The Khorixas town council plans to spend its development budget of N$13 860 000 for the 2020/21 financial year on priority areas such as servicing...

Food security crucial in a...

22 hours ago | Economics

The world has entered an era of “every country for itself”, leaving Namibia with no choice but to pursue policies that are aimed towards food...

'Fitty' offers N$16m bail guarantee

22 hours ago | Crime

JEMIMA BEUKESWINDHOEKFishrot accused Tamson 'Fitty' Hatuikulipi – whom the State argues was an integral part of the fishing quota bribery scandal – has offered N$16...

Massive cold front on the...

22 hours ago | Weather

ELLANIE SMIT WINDHOEK A massive cold front is developing in the South Atlantic and is expected to reach Namibia early on Friday. It brings with...

The reality of downsizing survivor...

22 hours ago | Business

Lisa MatomolaThe increasing news and media reports on companies who are downsizing and/or cutting jobs across Namibia are a startling reflection on the faltering Namibian...

Prinsloo leads as new MD...

22 hours ago | Business

Phillepus UusikuThe role of managing director (MD) of Namibia Dairies, a subsidiary of the Ohlthaver & List (O&L) Group, was officially taken over by Leonie...

Namibian police never learn

22 hours ago | Opinion

Newspaper column inches have been exhausted with stories of victims of violence who were turned away by police and later got murdered.In 2018, five members...

Still no yellow brick road...

22 hours ago | Business

Jo-Maré Duddy – Paladin Energy, the majority shareholder in Langer Heinrich, at the end of June said it needed US$81 million or around N$1.4 billion...

FNB temporarily closes Klein Windhoek...

22 hours ago | Business

FNB Namibia took a necessary health and safety measure action in temporarily shutting down its Klein Windhoek branch for a week beginning Monday, 6 July...

Load More