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2016
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[2016] ZAGPJHC 72
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Mhlanga v S (A268/2015) [2016] ZAGPJHC 72 (14 March 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case number: A268/2015
DATE: 14 MARCH 2016
In the matter between:
MHLANGA, GUGULETHU
MAINESS
................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
SATCHWELL J:
INTRODUCTION
1. Ms Gugulethu Mhlanga appeals her
conviction and sentence in the Magistrate’s Court at Kempton
Park on charges of contravening
Act 140 of 1992 by dealing in
1495.139 grams of cocaine. She was, surprisingly sentenced to a most
lenient sentence of 12 years
imprisonment of which 3 years was
suspended on condition that she does again commit the same offence.
2. On 26th July 2011 a plane arrived
from Sao Paolo in Brazil at OR Tambo International Airport. The
appellant had been a passenger
on this plane and was apprehended.
3. At issue is the ownership of a
suitcase in which was found a substantial amount of cocaine. The
prosecution led evidence to prove
that the suitcase belonged to the
appellant whilst she denied that it was.
4. Sergeant Tsiri observed the
appellant. When asked she told him she did not have a boarding pass
or a passport nor had she checked
any luggage. He did not believe
her, found a suitcase on the carousel, obtained keys from the
appellant and unlocked the bag. Within
the bag the Sergeant found a
false compartment and there in was a parcel covered in a layer of
brown sellotape. The contents of
the parcel were a white substance
and it is common cause that this is cocaine. Sergeant Tsiri arranged
for photographs to be taken
and booked the cocaine into the exhibits
room and it was later taken to Forensics for analysis.
5. The only additional evidence which
really concerns the appellant is that she informed Sergeant Tsiri
that one “CJ”
a “Nigerian national” was
involved.
6. The appellant gave evidence. Her
story verged on the ridiculous:
a. Firstly, she claims to work as a
hairdresser at an unknown salon where she does no more than rent a
chair. Her earnings and income
are derisory. Yet she also claims to
have sufficient funds to enable her to travel on a return ticket to
both Brazil for a full
week and previously India to purchase hair for
her business.
b. Secondly, her ability to negotiate
for the purchase of hair in a foreign language, her lack of knowledge
of the cost of such
hair suggests that this is not a business in
which she really engages or has any knowledge. IN fact, she conceded
she did not know
the prices charged for Brazilian hair nor the shop
from which she purchased this hair.
c. Thirdly, she was never able to
produce any of the hair which she had travelled so far to obtain.
d. Fourth, when the appellant was
confronted with her own bail application containing reference to ‘CJ’
and ‘Mary
Vilakazi’ and Nigerians and stating that
Portuguese men had taken away her own suitcase whilst in Brazil, she
simply disclaimed
any knowledge of the contents of her affidavit,
prepared by her own attorney and signed by herself.
e. Fifth, the appellant claimed that
she left the aeroplane carrying no more than a handbag and a small
carry on case which contained
the hairpieces. She made no mention of
any changes of clothing during her time in Brazil. She denied any
knowledge of the suitcase
found on the carousel. She denied that she
had produced the key to open it. Yet she conceded that the suitcase
contained clothes
and shoes for a woman and was unable to suggest
what underwear or toothbrush or clothes she would have been using in
Brazil. She
could make no comment on the name, ticket number or date
on the bag tag relevant to this suitcase.
f. Sixth, the appellant disputed that
she produced the key to open the suitcase containing the cocaine. She
said that she was not
present when the suitcase was opened, she saw
that it had been cut open and did not know where the SAPS obtained
the plastic parcel
of cocaine.
7. I can find no misdirection in the
judgment of the learned magistrate as to his assessment of all the
evidence. He was particularly
careful in evaluating the evidence of
Sergeant Tsiri and taking into account that he was a single witness.
8. This appellant was found guilty of
dealing in excess of 1485 grams of cocaine and the previous appeal I
have just read the appellant
was found guilty of dealing in 953 grams
of cocaine. Both were passengers on planes from Sao Paolo. Yet
Mhlanga was apparently
treated with far greater leniency because she
is the mother of two children (one aged 18 and the other 16) which
means that one
child is a major person. The learned magistrate in
this case expressed great concern about the potential breakdown of
family life
and it appears that this was the only reason for
suspending no less than one quarter of the sentence imposed upon her.
9. I would recommend that the Regional
Magistrate at Kempton Park perhaps have a look at sentencing patterns
in such matters. Of
course sentence is always a matter for the
discretion of the presiding judicial officer, but justice requires
persons and crimes
to be treated with some degree of consistency
otherwise sentences ceased to be just and become arbitrary and based
on personal
predilections and concerns.
10. In the circumstances I can see no
reason for interfering with the decisions on conviction or sentence
of the learned magistrate
and would confirm both.
11. An order is made as follows: The
appeal against conviction and sentence is dismissed.
DATED AT JOHANNESBURG 14 MARCH 2016
SATCHWELL J
I agree.
MOKOENA AJ
Counsel for
Appellant: Adv JL Kgokane
Attorneys for
Appellant: Legal Aid of SA
Counsel for
Respondent: Adv N Kowlas
Attorneys for
Respondent: Office of DPP
Dates of hearing:
14th March 2016.
Date of judgment:
14th March 2016.