About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 155
|
|
Cwele and Another v S (671/11) [2012] ZASCA 155; [2012] 4 All SA 497 (SCA); 2013 (1) SACR 478 (SCA) (1 October 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 671/11
In the matter between:
Reportable
SHERYL CWELE
.......................................................................................
First
Appellant
FRANK NABOLISA
.
.............................................................................
Second
Appellant
and
THE STATE
....................................................................................................
Respondent
Neutral citation:
Sheryl Cwele & another v The State
(671/11)
[2012] ZASCA
155
(01 October 2012)
Coram:
MPATI P,
HEHER and PONNAN JJA and SOUTHWOOD and ERASMUS AJJA
Heard:
16 August
2012
Delivered:
01
October 2012
Summary: Drug offences
– cocaine – dealing in in contravention of s 5
(b)
of Act 140 of 1992 – appeals against convictions dismissed –
sentence – appellants engaging services of courier
or ‘mule’
– sentence of 12 years’ imprisonment increased to 20
years’ imprisonment.
_______________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from:
KwaZulu-Natal High Court, Pietermaritzburg (Koen J sitting as court
of first instance):
1 The appellants’
appeals against their convictions are dismissed.
2 The sentences imposed
by the trial court are set aside and replaced with a sentence of 20
years’ imprisonment in respect
of each appellant.
3 In respect of the
second appellant the sentence is antedated to 6 May 2011.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
MPATI P (HEHER and
PONNAN JJA and SOUTHWOOD and ERASMUS AJJA CONCURRING):
[1] The two appellants
were charged in the Pietermaritzburg High Court, before Koen J,
sitting with an assessor, with contravening
section 5
(b)
, read
with sections 1, 13(
f
), 17
(e)
, 18, 19, 64 and Part II
of Schedule 2 of the Drugs and Drug Trafficking Act 140 of 1992 (the
Act), viz dealing in dangerous dependence-producing
drugs (count 1).
In the alternative, they were charged with contravening s 18(2)
(a)
of the Riotous Assemblies Act 17 of 1956, read with s 5
(b)
and
other relevant sections of the Act, viz conspiracy to deal in
dangerous dependence-producing drugs. Two further charges (counts
2
and 3) were preferred against the appellants, but these were not
persisted with by the State after it had closed its case, conceding
that no evidence existed for a return of a verdict of guilty on the
two counts. Accordingly, no further reference will be made
to them.
[2] The appellants were
convicted as charged on count 1 and were each sentenced to 12 years’
imprisonment. With leave of the
trial court the first appellant now
appeals against her conviction, while the second appellant appeals
against both his conviction
and the sentence imposed on him. In their
original heads of argument counsel for the State gave notice that
they would argue before
this court that the trial court should have
imposed terms of imprisonment of 15 years in respect of each
appellant. However, they
later filed supplementary heads, giving
notice that they would argue, at the hearing of the appeal, that the
sentences imposed
on the two appellants be increased to 20 years’
imprisonment.
[3] The evidence adduced
by the State was largely uncontested. For convenience I shall refer
to the first appellant, Ms Sheryl Cwele,
as ‘Sheryl’ and
to the second appellant, Mr Frank Nabolisa, a Nigerian national
resident in this country, as ‘Frank’.
The evidence of the
witness Ms Charmaine Moss (Charmaine) may be summarised as follows.
During 2008 Sheryl, with whom she had become
friends, approached her
and mentioned that she (Sheryl) had worked overseas a number of times
in 2005, but that she now held a
permanent position with the Hibiscus
Coast Municipality. Sheryl informed her that she had been contacted
again to work overseas
and that she had been directed by ‘the
Lord’ in her dream to offer ‘work’ to her. When
Charmaine showed
interest in the offer Sheryl advised her that a firm
in Sandton would secure the work for her and that she would be paid
R25 000
for the two weeks that she would be overseas. Her airfare
would also be covered.
[4] It appears that
arrangements were duly made but, on a certain Monday morning during
May 2008, when Charmaine was on her way
to the airport to travel to
Johannesburg, Sheryl telephoned her and told her not to depart that
Monday as they were still waiting
for her visa. Reference was made by
Sheryl during the telephone discussions to her brother, Frank. In
answer to an enquiry as to
why her brother was involved Sheryl
responded that he was one of the partners in the firm that organised
the overseas work. Eventually,
on Wednesday of that week Charmaine
travelled to Johannesburg, where she met Frank, who showed her a
computer printout of her air
ticket, but told her that she could not
depart on the Thursday because he did not want her to travel alone.
He informed her that
they were waiting for the arrival of another
lady who already worked overseas and that the agency had incorrectly
booked them on
different flights. He promised, however, that she
would definitely leave on the Saturday. On the Friday, at
approximately 19h00,
Frank collected her from friends with whom she
had been staying in Johannesburg and took her to an area which she
described as
‘very scary’, where he booked her into a
place that he referred to as his friend’s hotel. She became
nervous
and started to ask him questions such as where she was going
to work; what kind of work she was going to do and who was going to
meet her at the airport in Turkey? He told her he would ask his
sister to contact her. At some stage he slapped her face, accusing
her of asking too many questions. That evening he took her out to
dinner and later dropped her off at the hotel and undertook to
take
her to the airport the next day.
[5] Back at the hotel she
tried to contact Sheryl by telephone. She was unsuccessful because
Sheryl’s mobile phone was switched
off. She was able to contact
Sheryl on Saturday morning and told her that Frank had said she
should ask her (Sheryl) what she was
going to do in Turkey. Sheryl
advised her that there was nothing serious, that she should not speak
to anyone and that she would
be required to bring back a packet for
Frank. But by then Charmaine had already lost interest in the
overseas engagement –
she had decided the previous evening that
she would no longer go overseas. Since she knew of the availability
of courier services
to courier parcels from one country to another
she became suspicious and decided that she would go back home. Frank
picked her
up from the hotel at approximately 10h00 on the Saturday
morning and drove her to the airport, where he purchased a flight
ticket
for her to return to Durban, which she did. She had no further
contact with Sheryl. Frank telephoned her once and enquired how she
was. She told him that she was back at work.
[6] It is common cause
that the charges that the two appellants faced before the trial court
followed upon intensive investigations
by South African authorities
into the arrest and subsequent imprisonment, in Sao Paulo, Brazil, of
another lady by the name of
Ms Tessa Beetge (Tessa). Tessa was
arrested at the Sao Paulo Airport on 13 June 2008 for drug
trafficking, when two packets containing
9.25 kilograms and 1.025
kilograms of cocaine respectively were found in her luggage. A
special agent in the Brazilian police,
Jean Carlos de Bortole,
testified that Tessa’s air ticket reflected that she had come
to Sao Paulo from Lima, Peru, and was
in transit, on her way to
Johannesburg. She received a sentence of seven years and nine months’
imprisonment. It is not in
dispute that the substance found in
Tessa’s luggage was cocaine, a dependence-producing drug, the
unlawful sale or possession
of which is punishable by law in South
Africa.
[7] Tessa’s mother,
Ms Susanna Swanepoel (Ms Swanepoel), testified that at the time of
her arrest in Brazil, Tessa, a divorcee
with two minor daughters, had
been living with her and her husband at their home in Margate. During
May 2008 she received information
from Tessa that Sheryl had, via
short message service (sms), offered her (Tessa) work overseas.
Knowing that Tessa and Sheryl had
been neighbours while the former
was still married, Ms Swanepoel expressed a wish to speak to Sheryl
before Tessa could go overseas.
A meeting was then arranged at
Sheryl’s office in Uvongo, KwaZulu-Natal, which Ms Swanepoel
attended, with her husband and
Tessa, during the morning of 12 May
2008 and where Sheryl told them that Tessa would be going to London
to do administrative work
for two weeks; that all her flights and
accommodation would be paid for; and that she would be collected
daily from her hotel,
which was one of the best hotels in London, and
taken to work and back. Sheryl assured them (Tessa’s parents)
that they should
not be concerned. Ms Swanepoel testified further
that while they were still in Sheryl’s office Sheryl instructed
her personal
assistant to telephone a person by the name of Frank,
whom she presumed was from a travel agency, and to enquire whether
the travel
arrangements had been finalised. There was no reply and
Sheryl said she would contact this Frank later. Thereafter Sheryl
told
them about her travels overseas and that the reason for her
offering the opportunity to Tessa was because she was tired of
travelling
overseas. She told them that Tessa would be paid £1
000 for the work she was going to do. These assurances put Ms
Swanepoel
and her husband at ease and they were happy to allow Tessa
to go on her first ever trip overseas.
[8] On 14 May 2008 Tessa
telephoned Ms Swanepoel at about 11h00 from Sheryl’s office and
informed her that she had to leave
for Durban immediately – she
had been requested by Sheryl to meet her at her office. Tessa was to
fly to Johannesburg from
Durban that evening. Ms Swanepoel’s
husband fetched Tessa from Sheryl’s office and they (Ms
Swanepoel and her husband)
took her to the airport in Durban later
that afternoon. Ms Swanepoel saw, in Tessa’s possession, an
Hibiscus Coast Municipality
envelope with the words ‘For Tessie
for her air flight’ written on it and containing R500. Sheryl
had also given Tessa
a warm coat which she referred to as ‘a
good luck coat’. Because Tessa’s flight would arrive in
Johannesburg
at about 12 midnight Ms Swanepoel suggested that she
telephone Sheryl and find out who would pick her up in Johannesburg.
Tessa
informed her that she would be met at the airport by Frank.
Before she departed for Johannesburg Tessa handed to her mother
Sheryl’s
business card.
[9] Ms Swanepoel
testified that on 20 or 21 May 2008 Sheryl advised her over the
telephone that Tessa had arrived safely at J F
Kennedy Airport and
gave her a telephone number on which she could contact her (Tessa).
It appears that it did not strike her as
odd that Tessa, who was
supposed to work in London, had now arrived at J F Kennedy Airport.
After trying unsuccessfully to contact
Sheryl when Tessa was due to
return home, Ms Swanepoel eventually received a telephone call from
Sheryl who reported that Tessa
would arrive in Johannesburg on 4 June
2008. But Tessa did not arrive on that date and Ms Swanepoel was
thereafter again unsuccessful
in her attempts to call Sheryl. She
eventually received a telephone call from Tessa at around 12 midnight
on Friday, 13 June 2008.
Tessa reported to her that she had been
arrested in Sao Paulo for drug trafficking. Ms Swanepoel had earlier,
after 4 June 2008,
called and spoken to Tessa while the latter was in
Peru, using a number from which Tessa had called her even before the
last-mentioned
date. Tessa had reported to her, as a reason why she
had not returned home, that there had been excuses that flights were
full.
After she had received the news of Tessa’s arrest Ms
Swanepoel called Sheryl, who promised to call her back the next
morning.
Sheryl indeed called her as promised and told her that the
Brazilian Embassy would contact her, which never materialised.
[10] During
September/October 2008 Ms Swanepoel visited Tessa at the prison where
she was held in Brazil. She was accompanied by
her nephew, Mr Richard
Olsen. She returned with some of Tessa’s clothes and other
belongings, which included her mobile phone,
two sim cards (one from
Peru and the other from Colombia), a suitcase (which was not the one
she left with) and a South African
sim card. These were handed to her
by the prison authorities in Brazil. Back in South Africa Ms
Swanepoel went through Tessa’s
diaries and, having obtained her
password, she downloaded all the data messages (e-mails) that were
exchanged between Tessa and
Sheryl. She also went through all the
messages exchanged between the two through sms and wrote them down –
Tessa had given
her PIN number for her mobile phone to Ms Swanepoel
when the latter was in Brazil. All this information was taken by Ms
Swanepoel
to the police in Cape Town and thereafter to the offices of
the Scorpions in Cape Town, together with another mobile phone that
Tessa had left behind at home when she went to Johannesburg.
[11] On 18 June 2008
Sheryl telephoned Ms Swanepoel during the afternoon and enquired as
to whether she knew a Richard Olsen, to
which Ms Swanepoel answered
in the affirmative, stating that Olsen was her nephew. Sheryl then
remarked that she did not like to
speak to strangers. Whilst she was
in Cape Town Ms Swanepoel enquired from Sheryl, over the telephone,
about certain names, including
the name ‘Frank’. Sheryl
replied that she did not know the names and stated further that she
had not known that Tessa
had been in Colombia or Peru.
[12] Tessa’s
boyfriend, Mr Hendrik Claassen, also testified and confirmed certain
of the evidence of Ms Swanepoel in relation
to a work opportunity in
London offered to Tessa by Sheryl. He had accompanied Tessa to
Sheryl’s office in Uvongo, where
the work opportunity was
discussed. Another witness was Lieutenant Colonel Izak Ludick who was
the investigation officer in the
case, appointed as such by the
Director of Public Prosecutions on 6 January 2010. He visited Tessa
in prison in Brazil and obtained
her password from her so as to gain
access to her e-mails. He subsequently compiled a record of e-mails
exchanged between Tessa
and Sheryl, which was handed in at the trial
as Exhibit “H”. Its admissibility in evidence, in terms
of section 15
of the Electronic Communications and Transactions Act,
1
as a true record of e-mails exchanged between the two was formally
admitted by both appellants.
[13] The appellants did
not testify. They made certain formal admissions, one being the
following:
‘
Accused
No. 1 [Sheryl] deposed to an affidavit in support of her application
to be released on bail. At these proceedings, the Court
complied with
the provisions of section 60(11B)
(c)
of
the
Criminal Procedure Act, 1977
.
Accused
No. 1’s affidavit (Exhibit “E”) is admissible in
evidence in these proceedings.’
In that affidavit Sheryl
alleged that she got to know Frank through an old acquaintance,
Nikkie, with whom she had worked for two
years at Medscheme in
Johannesburg until
1999. In the course of
one of their many discussions Nikkie told her that she was in a
relationship with a man called Frank, who
was a millionaire, and that
she and Frank would visit her in Port Shepstone to discuss business.
That visit eventually came true
and from it a good relationship
developed between her and Frank, to the extent that they called each
other ‘my brother’
and ‘my sister’
respectively. Early in 2008 she received a telephone call from either
Frank or Nikkie, who told her
that Frank ‘was experiencing
problems with his company’ as it had a predominantly African
staff; and that Frank wanted
to employ white persons, preferably
females, to head his company and who would help him communicate well
with white business. Frank
therefore sought her assistance to refer
to him people that she trusted.
[14] Sheryl alleged
further that subsequently she told Charmaine, whom she had befriended
previously, about the offer. Charmaine
had apparently expressed a
desire to move to a better job – she had complained about money
at the massage parlour where she
was employed. She expressed an
interest in meeting Frank in Johannesburg and, because the ‘job’
had a prospect of taking
her overseas, she quickly got her travel
documents in order. Subsequently and on a certain day she (Sheryl)
received a telephone
call from Charmaine who told her that she was
back from Johannesburg and that she did not like the business there.
A meeting was
then arranged and the two met at a coffee shop where
Charmaine only told her that she had been treated badly in
Johannesburg. It
appears that thereafter the friendship between the
two became frosty.
[15] As to Tessa, Sheryl
averred in her affidavit that the former is her friend who had been
her next door neighbour. She said when
they met in 2007 Tessa
informed her that she was living with her parents and that her mother
was very strict and did not want her
to leave home to live elsewhere,
especially in Johannesburg. I consider it necessary to quote the
following relevant paragraphs
from the affidavit:
‘
13.15
When Nikkie or Frank (I am not sure exactly who was it although I
think it was Nikkie), indicated that Frank needed Whites
to work in
his firm, I connected Tessa to Nikkie
.
13.16
Tessa then said I should speak to her parents and never mention that
she was going to work in JOHANNESBURG but in LONDON.
She feared that
if she were to approach the parents herself
they
would refuse. If I did not intervene her parents would not agree.
13.17
I did intervene as planned and the parents agreed because they
trusted me.
13.18
. . .
13.19
After Tessa had left for JOHANNESBURG Frank phoned. He was furious
and he stated that Tessa could not head his company as
she had only
standard seven and not matric. He was then going to find her another
position. I was surprised that Tessa had lied
to me about her
academic qualifications.
13.20
Later on Frank and Tessa phoned and said Tessa was going overseas to
do the work. This was a bit of a surprise for me because
Frank had
dubbed Tessa useless.
13.21
Thereafter Frank kept me updated about the various places Tessa would
go to and I, at one stage, jokingly said I was jealous.
13.22
There was a lull of some sort when I heard nothing about Tessa. I
then asked Frank where Tessa was and he said she was overseas.
13.23
Thereafter Tessa started communicating and said she was in South
America and had found a French boyfriend and was going to
Peru. She
was looking for other work and if people phoned for references I
should say she was my PA and earned R10 000. She
said I should
not disclose to Frank that she was looking for other work because she
was still employed by him.
13.24
Subsequently she communicated with me and I could detect that she was
really confused either because of depression or of something
I did
not know.
13.25
She repeated her story about being my PA and so on and suddenly when
I asked her what she was actually doing, she said she
was waiting and
fed up; she wanted to come back home.
13.26
I then told her that she should not talk to people as she would end
up getting into trouble. I said this because I detected
confusion in
her conversation and because of the fact that she wanted me to give a
false reference.
13.27
I then communicated with Frank and expressed my deep concern that a
person who had left her parents through me appeared to
be stranded in
a foreign land.
13.28
Frank told me that he was trying to make contact with her but was
failing to do so. His telephone could not connect and the
e-mails he
was sending were bouncing back.
13.29
. . .
13.30
Because I wanted Tessa to get out of a desperate situation I told
Frank to send whatever he wanted communicated to Tessa to
me so that
I could forward it to Tessa.
13.31
He obliged and I then served as a conduit pipe between the two of
them.
13.32
. . .
13.33
I later on learnt that Tessa had been arrested for drugs.
13.34
I was devastated because I never imagined that Tessa could be
associated with drugs. I did not know how I could face her parents
thereafter
.’
[16] This statement by
Sheryl is of course evidential material but is untested. Much of it,
particularly the part relating to the
communication between her and
Tessa while the latter was abroad, is confirmed by the contents of
data messages (e-mails and sms
texts), records of which were handed
in to court as Exhibits ‘H’ (e-mails) and ‘J’
(sms texts) respectively.
The appellants formally admitted the
contents of each of these exhibits as a true record of data messages
exchanged between Sheryl
and Tessa ‘at the times and on the
dates specified’ and that they were admissible in evidence in
terms of the provisions
of s 15 of the Electronic Communications and
Transactions Act. They also admitted, formally, Exhibit ‘F’
as a true
record of landline calls made by Sheryl from her office
telephone to Frank’s two mobile phones and to Tessa. The dates,
times
and duration of the calls were admitted as having being
correctly reflected in the record.
[17] In the trial court
the State initially succeeded in its application to introduce into
evidence the contents of Exhibit ‘R’,
viz transcripts of
a number of communications made through Frank’s two mobile
phones and which were intercepted or monitored
over the period 29
April to 16 June 2008. The appellants’ objection to the
admissibility of the evidence was later upheld
and the evidence
excluded on the ground that it had not been established that the
source from which the transcripts were made was
the original
recording. Proof of the authenticity and reliability of the
transcripts was therefore found to be lacking. In this
court counsel
for the State urged us to reverse the decision of the trial court
relating to the admissibility of this evidence.
It was also argued,
on behalf of Sheryl, that there is no reason why the contents of
Exhibit ‘R’ should not be considered
by this court. Her
counsel contended that without Exhibit ‘R’ there is even
less evidence against Sheryl. In the view
I take of this matter, and
as will appear later in this judgment, it is not necessary to revisit
the point.
[18] In the summary of
substantial facts attached to the indictment it is alleged that prior
to the events in question the two appellants
‘entered into a
conspiracy in terms of which they would import cocaine from beyond
the borders of South Africa’ and
that at all material times
they ‘acted in execution of a criminal conspiracy and/or common
purpose to commit the offences
mentioned in the indictment’. I
agree with counsel for the appellants that there was no direct
evidence of the conspiracy
or of an agreed arrangement between the
appellants, nor was there any admissible evidence of interaction
between them which directly
evidences such conspiracy and thus the
agreement. In the absence of direct evidence implicating the
appellants the State’s
case rested on circumstantial evidence.
Recognising this fact the trial court posed the question whether the
appellants’
guilt was the only reasonable inference to be drawn
from the proved facts. It answered that question in the affirmative.
[19] In
S
v Reddy & others
1996 (2) SACR 1(A)
this
court said the following regarding the assessment of circumstantial
evidence:
‘
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation given
by an
accused is true. The evidence needs to be considered in its totality.
It is only then that one can apply the oft-quoted
dictum
in
R
v Blom
1939
AD 188
at 202–3, where reference is made to two cardinal rules
of logic which cannot be ignored. These are, firstly, that the
inference
sought to be drawn must be consistent with all the proved
facts and, secondly, the proved facts should be such “that they
exclude every reasonable inference from them save the one sought to
be drawn
”.’
2
The State must therefore
satisfy the court, ‘not that each separate fact is inconsistent
with the innocence of the [appellants],
but that the evidence as a
whole is beyond reasonable doubt inconsistent with such innocence’.
3
[20] In her affidavit
Sheryl stated categorically that she ‘never knowingly
participated in any drug trafficking, conspiracy
or incitement to
deal in drugs as set out in the indictment or at all’. Her
counsel argued accordingly that although Charmaine’s
evidence
that Sheryl informed her that she was to bring back a packet for
Frank from Turkey was not challenged, there was no suggestion
as to
what the contents of the packet would be. The sum total of counsel’s
submission, therefore, was that there was no evidence
before the
trial court that Sheryl knew what the substance was that Tessa was to
bring back into the country. As to Frank, his
counsel submitted in
the heads of argument that the inferences which the trial court drew
were either a non sequitur to the proved
facts or the trial court
overlooked the
possibility of other inferences which were equally probable or at
least reasonably possible. Counsel argued further
that in an attempt
to explain the facts the trial court overlooked inconsistent
circumstances, assumed the existence of facts which
had not been
proved and could not legitimately have been inferred.
[21] That there was an
agreement between the appellants that Sheryl would provide Frank with
white female persons whom the latter
could send on missions overseas
cannot legitimately be contested. Clearly, the approaches by Sheryl
to both Charmaine and Tessa
with job offers came, according to
Sheryl’s affidavit, after Frank had asked her to do so. On
Charmaine’s evidence,
which must be preferred over Sheryl’s
untested statement, Sheryl offered her a work opportunity overseas.
She said that Sheryl
informed her that a firm or company in which her
brother, Frank, was a partner, sourced the work overseas. Indeed,
Sheryl alludes
to this in her affidavit where she states that
Charmaine ‘was particularly livid (excited?) about the fact
that her job had
the prospect of taking her overseas and she hastened
to have her travel documents in order’. With regard to Tessa,
Sheryl
sent her a text message on 3 May 2008 instructing her to bring
her passport during the afternoon of the next day.
4
Another text message sent on 4 May 2008 says:
‘
Plz
bring ur passport back at shelly beach
.’
At 11h32 on 14 May 2008
Sheryl sent the following text message to Tessa:
‘
Please
stay ready flights are full, busy trying Holland in Europe. Will get
back 2 u
!’
On 14 May 2008 she again
sent a text message to Tessa that reads:
‘
The
money is already here in my office u need to go 2 Joburg 2day 4 ur
visa.’
And the following message
was sent on 15 May 2008 at 8:48pm when Tessa was already in
Johannesburg:
‘
Frank
is the one handling ur trip and is usually very busy but very
reliable just relax and enjoy tell him 2 bring u books and magazine
.’
These messages and
Charmaine’s evidence clearly show that Sheryl knew all along
that Tessa and Charmaine would be required
to embark on trips
overseas and were not going to work for Frank in a company in
Johannesburg. I agree, therefore, with the trial
court’s
rejection of Sheryl’s version that Tessa was to work in
Johannesburg on the basis that the ‘contents
of the sms’s
simply do not accord with, in fact contradict her version, that Tessa
was destined to work in Johannesburg’.
[22] The next question to
be considered is whether Sheryl knew what the purpose of the overseas
trips was. It is surely significant
that the nature of the ‘work’
was never disclosed to the state witnesses and Sheryl did not use the
opportunity to
put an innocent colour on the offer. On Charmaine’s
version Sheryl told her upon enquiry that she merely had to collect a
packet for Frank in Turkey. She had also told Charmaine that she
would be paid R25 000 for the work that she was required to do,
that
is to collect the packet for Frank. It may of course be argued,
correctly so, that there was no evidence as to what the contents
of
the packet would be. But one wonders why, as Charmaine also observed,
a packet could not be sent by courier service which is
available
internationally, unless, of course, the contents were so valuable to
the person concerned that he/she would not take
the risk of the
packet getting lost or damaged. As to Tessa, it is important to note
that on 2 May 2008 Sheryl informed her by
way of a text message
through her mobile phone that she (Sheryl) wanted to discuss a
business venture with her.
5
She was also informed by Sheryl that she would receive R25 000.
6
Sheryl’s counsel conceded before us that Sheryl knew that the
business venture that was to involve Tessa was unlawful. That
concession was wisely made, in my view. But counsel persisted with
his argument that even though that may be so, there was no evidence
that Sheryl knew what the substance was that Tessa was to bring into
the country.
[23] While she was
waiting in Peru for instructions pertaining to her return home Tessa
showed some frustration. On 6 June 2008
she sent an e-mail to Sheryl
saying, among other things, the following:
‘
I
am ok, chatting to my friends on messenger, waiting for a reply from
you and Frank and wanting to go home
!
. . .
Otherwise
I am still freezing my butt off in Peru, with Frank that is telling
me to wait and wait and wait, and then when it’s
time to go I
am ready and they cancel everything again.
. . .
So
has Frank told you when I am leaving??? or don’t you know? . .
.’
Sheryl responded on 8
June 2008 as follows:
‘
Hi
Tess
. . .
Frank
told me about the delay which is for your own good really.
.
. .
I
understand you are coming back on Monday/Tuesday?
Keep
well and avoid people who may end up asking a lot of questions.
See
you soon, hang in there.
Sheryl
Cwele
.
’
She had, on 4 June 2008,
sent to Tessa by e-mail, her flight details for her return from Lima,
via Sao Paulo, to Johannesburg. It
would be difficult to understand,
if Sheryl was unaware of the fact that Tessa was overseas for an
unlawful purpose, why she would
convey to Tessa that the delay was
for her own good and that she should avoid people who might ask
questions. But the question
still is whether she knew that what Tessa
was to bring back into the country was cocaine.
[24] It is common cause
that cocaine was found in Tessa’s luggage at the airport in Sao
Paulo where she was arrested while
on her way back to South Africa.
There was no evidence of anything else illegal found on her. She had
clearly gone overseas to
collect and bring back something illegal for
Frank; he is the one who paid for her flights and arranged her
accommodation while
overseas. That much was conceded before us in
argument. It is inconceivable that she would thereafter return to
South Africa with
something other than that which she was tasked to
collect. For, plainly she did not have the financial resources or
wherewithal
to have concluded a transaction involving cocaine on her
own in South America. And the complete absence of interest by the
appellants
at the time in the fate of the commodity she was supposed
to bring back to South Africa is inexplicable. It follows that Tessa
was sent to South America by Frank to collect cocaine and to bring it
back to South Africa. That is the only reasonable inference
to be
drawn from the totality of the proved facts. Frank’s appeal
against his conviction must accordingly fail.
[25] The same applies to
the case of Sheryl, in my view. She recruited Tessa and worked
closely with Frank in arranging her return
trip to South Africa. She
even assured Tessa that the delay in her travel arrangements was for
her own good, an indication, in
my view, that she had knowledge of
the dangers associated with the trip. As has been mentioned above,
she knew that Tessa was required
to bring back something which it is
unlawful to possess. Tessa was thereafter arrested with cocaine in
her possession. The inference
is irresistible, therefore, that Sheryl
knew that the unlawful substance that Tessa was required to bring
back was in fact cocaine.
Neither of the appellants testified. Whilst
that is their right, it is not without its consequence, particularly
in a situation
such as this, where the evidence adduced by the State
calls for a response. Before us it was submitted that the unlawful
criminal
enterprise (which was readily admitted) may in fact have had
as its goal the smuggling into this country of some other unlawful
substance and not cocaine. But absent evidence, that, as counsel was
constrained to concede, amounted to no more than a speculative
hypothesis. Sheryl’s false statement in her affidavit that she
recruited Tessa (and Charmaine) to head Frank’s company
in
Johannesburg strengthens that view. It follows that an agreement
existed between her and Frank that she would recruit white
women to
be used by Frank to travel overseas and to bring cocaine back into
the country.
[26] I turn to the
question of sentence. As I have indicated above, the State gave
notice in its original heads of argument that
it would seek an
increase of the sentence of 12 years’ imprisonment imposed by
the trial court to 15 years’ imprisonment.
After this court’s
judgment in
Keyser v S
[2012] ZASCA 70
7
that stance changed and an increase of the sentence to 20 years’
imprisonment was sought. In
Keyser
the appellant, a 35 year
old married man, had been convicted by a regional magistrate of
dealing in 6545 grams of cocaine in contravention
of s 5
(b)
of
the Act and sentenced to imprisonment for 20 years. He had been
arrested after boarding a flight to Cape Town at the Johannesburg
International Airport (now OR Tambo International Airport) having
earlier arrived on a flight from Sao Paulo, Brazil. The sentence
of
20 years’ imprisonment was confirmed on appeal to the South
Gauteng High Court. On further appeal this court, having found
the
appellant not to have been a mere courier, but a willing and informed
participant, also confirmed that sentence, although it
observed that
it was ‘undoubtedly a heavy one’.
8
[27] In the present
matter the indictment made reference to the provisions of
s 51(2)
of
the
Criminal Law Amendment Act 105 of 1997
and
Part II
of Schedule 2
to that Act (the minimum sentence legislation). Those provisions,
read together, provide that for a contravention
of s 5
(b)
of
the Act a minimum sentence of 15 years’ imprisonment must be
imposed on a first offender if it is proved that the value
of the
dependence-producing substance in question is more than R50 000,
or more than R10 000 if it is proved that the
offence was
committed by a person, group of persons, syndicate or any enterprise
acting in the execution or furtherance of a common
purpose or
conspiracy. That sentence may of course be departed from where the
sentencing court is satisfied that substantial and
compelling
circumstances exist justifying the imposition of a lesser sentence
than the one prescribed by the minimum sentence legislation.
On the
other hand s 17
(e)
of the Act provides for imprisonment ‘for
a period not exceeding 25 years . . .’ for a contravention of s
5
(b)
.
[28] The trial court
accepted the uncontested evidence of Lieutenant Colonel Ludick that
the cost of cocaine at the time was R20
000 per kilogram, with a
street value of R200 per gram. The total street value was thus
approximately R2 million. Furthermore,
I have found that an agreement
existed between the appellants to use other persons to travel
overseas and to bring back cocaine
into the country. The recruiting
of Tessa was in furtherance of a common purpose to import cocaine
into the country. The provisions
of the minimum sentence legislation
accordingly apply in considering an appropriate sentence.
[29] In
S
v Malgas
2001 (1) SACR 469
(SCA) this court,
dealing with the minimum sentence legislation, said that when
considering sentence the emphasis must shift to
the objective gravity
of the type of crime and the public’s need for effective
sanctions against it. And as to the determination
of substantial and
compelling circumstances Lewis JA explained what was said in
Malgas
as follows in
S v Sikhipha
2006
(2) SACR 439
(SCA) para 16:
‘
This
court, in
S
v Malgas
,
held that in determining whether there are substantial and compelling
circumstances, a court must be conscious that the Legislature
has
ordained a sentence that should ordinarily be imposed for the crime
specified , and that there should be truly convincing reasons
for a
different response. It is for the court imposing sentence to decide
whether the particular circumstances call for the imposition
of a
lesser sentence. Such circumstances include those factors
traditionally taken into account in sentencing – mitigating
factors. Of course these must be weighed together with aggravating
factors. But none of these need be “exceptional”
.’
(Footnote
omitted.)
And, as
Marais JA reminds us in
Malgas
,
a court exercising appellate jurisdiction ‘cannot, in the
absence of material misdirection by the trial court, approach
the
question of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because it prefers
it. To do so would be to usurp the sentencing discretion of the trial
court’.
9
But an appellate court may interfere with the exercise
by the sentencing court of its discretion even in the absence of a
material
misdirection when the disparity between the sentence imposed
by the trial court and the sentence which the appellate court would
have imposed had it been the trial court is ‘so marked that it
can properly be described as “shocking”, “startling”
or “disturbingly inappropriate”’.
10
[30] The trial court
recognised, when it considered sentence, that the starting point is
the 15 years prescribed by s 51(2) of the
minimum sentence
legislation. It then proceeded to set out the mitigating factors
relevant to each appellant. In respect of Sheryl
they include the
following: She was a 50 year old first offender at the time of the
trial and had had no previous brushes with
the law. She was married
with four children aged 25, 21, 19 and 17 years respectively. She had
a stable background and a stable
family, with the benefit of
ownership in a residential dwelling with a value in excess of R1,2
million. She was also in stable
employment with the Hibiscus Coast
Municipality where seven departments were under her control. By
profession she is a qualified
nurse with an honours degree in
nursing. As to Frank, the trial court considered that he was, at 42
years of age, a first offender.
He had been married since 1999 and
had two children aged nine and four years respectively. The trial
court also considered as relevant
in Frank’s favour the fact
that unlike Sheryl, he did not put up a false version in his defence,
but merely exercised his
constitutional right to require the State to
prove its case against him. Another factor was that by the time the
trial was finalised
he had been in custody for a period of 15 months.
[31] As to the offence,
the trial court observed that the appellants were convicted of a very
serious offence; that the lives of
drug addicts are often destroyed
by their addiction, the effects of which are not normally felt by the
addicts only, but also by
the members of their families and that
society therefore ‘needs to be protected [from] those who might
consider making it
their business to import these drugs . . .’.
The court, however, did not consider these factors to be of an
aggravating nature.
But as against Frank, the court reasoned that the
fact that he was responsible for payment of remuneration and
arranging flights
for Tessa and Charmaine and paying therefor,
outweighed the mitigating effects of him having been in custody for
15 months and
the fact that he did not put up a false version before
the court. With regard to Sheryl, the trial court found that she
played
a lesser role than that played by Frank, although her role was
nevertheless important and significant. Her prospects of
rehabilitation,
therefore, appeared to be good, it said. The court
accepted that ‘similar considerations should possibly also be
attributed
to [Frank]’. It ultimately considered ‘these
aforesaid considerations to be sufficiently compelling and
substantial
to permit [it] to deviate from the minimum sentence
prescribed by [the minimum sentence legislation]’.
[32] Counsel for the
State contended that there was nothing extraordinary about Sheryl
that called for a lesser sentence than that
ordained by the
Legislature and that there are in fact several aggravating
circumstances that the trial court overlooked. These
are that Sheryl
would no doubt have learned, during her studies towards a nursing
qualification, of the dangers associated with
hard drugs; that she
put up a false version and shied away from cross-examination and that
she showed no remorse. In addition,
counsel submitted that the trial
court should have considered as aggravating the fact that Sheryl
abused her office by using the
municipality’s telephone and
other resources, such as data message facilities, in the commission
of the offence. In respect
of Frank, counsel argued that the time
spent in custody while awaiting the finalisation of the trial was of
his own making and
thus should not redound to his benefit.
[33] It is
in my view unnecessary to consider the question whether the trial
court misdirected itself when it considered the existence
or
otherwise of substantial and compelling circumstances. This is
because I consider the disparity between the sentence imposed
by the
trial court and that which this court would have imposed had it been
the trial court to be so marked that it can properly
be described as
disturbingly inappropriate. Our courts have frequently expressed
themselves on the seriousness of the crime of
dealing in cocaine, or
importing it into this country. In
S v
Homareda
1999 (2) SACR 319
(W) Cloete J
(Robinson AJ concurring) said:
‘
The
type of offence of which the appellant stands convicted has the
potential to ruin the lives of families in South Africa.
The
aggravating factors are that it was cocaine, and a substantial
(although not an excessive) quantity thereof – 300 grams
–
which was brought into South Africa in condoms which he had
swallowed; and drug trafficking of this nature is on the increase,
to
such an extent that it has been considered necessary to establish a
branch of SANAB at Johannesburg International Airport, where
the
appellant entered this country
.’
11
In
S
v Jimenez
2003 (1) SACR 507
(SCA) Olivier JA,
in a separate concurring judgment, made the following comment after
having referred to the judgment of Steyn
AJ in
S
v Sebata
1994 (2) SACR 319
(C):
‘
To
the list of evils enumerated above must be added the devastating
effect the addiction to hard drugs has on the family, relations,
employees and friends of the user. Families fall apart, are
bankrupted and drained emotionally by the experience of seeing a
family
member, usually a youth, becoming addicted and changing from a
healthy, lovely child to a human wreck
.
. . .’
12
And in
Keyser
Heher JA
observed that while the street value of the cocaine in that case was
materially more than that in
Jimenez
,
‘more important is the number of lives potentially affected by
the use of the drug’ and that the appellant ‘must
have
reconciled himself to sowing the seeds of destruction, directly and
indirectly, in the lives of a substantial number of people,
including
children’.
13
[34] What may be added to
these pertinent comments is the fact that in most cases the courier
or ‘mule’ is caught, while
the handler (the real dealer
or importer) remains safe in the background, to carry on with his/her
evil deeds. In the present matter,
it was only through the courage
and determination of Tessa’s mother that the real culprits have
been brought to book. The
comments and observations made in the
judgments referred to above apply equally, if not more, to them and
the effects of their
deeds on the community at large far outweigh
their personal circumstances and justify a long term of imprisonment.
[35] In
Keyser
a
courier who illegally brought into the country 6545 grams of cocaine
with a street value of at least R2 million was sentenced
by a
regional magistrate to 20 years’ imprisonment, which sentence
was confirmed on appeal to the South Gauteng High Court
and
subsequently by this court. In
Homareda
, a courier, who had
pleaded guilty to dealing in cocaine worth R90 000, was
sentenced by a magistrate to 15 years’ imprisonment.
That
sentence was reduced on appeal to 10 years’ imprisonment. In
Jimenez
a sentence of 12 years’ imprisonment for 653,4
grams of cocaine was imposed by a magistrate and confirmed on appeal
by the
Johannesburg High Court and later this court. In the present
matter cocaine with a street value of more than R2 million was
involved.
It may well be, as the trial court found, that Sheryl
played a lesser role in the whole enterprise, but I agree with
counsel for
the State that as a qualified nurse she must have known
the dangers inherent in the use of drugs. Yet she was a willing
partner
in the commission of the crime, who befriended and preyed on
vulnerable women in furtherance of the criminal enterprise. I
consider
that the trial court was correct in treating the appellants
equally.
[36] For all these
reasons I am of the view that a term of imprisonment for 20 years is
an appropriate sentence in the circumstances.
The disparity between
that sentence and the one of 12 years’ imprisonment imposed on
each appellant by the trial court is
so marked that it can properly
be described as disturbingly inappropriate. This court is accordingly
at large to impose sentence
afresh.
[37] In the result, the
following order is made:
1 The appellants’
appeals against their convictions are dismissed.
2 The sentences imposed
by the trial court are set aside and replaced with a sentence of 20
years’ imprisonment in respect
of each appellant.
3 In respect of the
second appellant the sentence is antedated to 6 May 2011.
________________________
L Mpati
President
Appearances
First Appellant: K J Kemp
SC
Instructed by:
Ngubane & Partners
Inc, Durban
N W Phalatsi &
Partners, Bloemfontein
Second Appellant: J L C J
van Vuuren SC
Instructed by:
Shaun Hamilton Attorneys,
Johannesburg
Symington & De Kok
Attorneys, Bloemfontein
Respondent: I P Cooke,
(with him A A Watt)
Instructed by:
The Director of Public
Prosecutions, Pietermaritzburg
The Director of Public
Prosecutions, Bloemfontein
1
Electronic
Communications and Transactions Act 25 of 2002
.
2
At
p 8
c-e
.
3
R
v De Villiers
1944 AD 493
, particularly at 508 –509.
4
The
text reads : ‘We’re on our way 2 PMB back 2moro plz
bring ur Passport 2moro afternoon. Have a grate day.’
5
The
message reads: ‘Tessa Hi its Sheryl, haven’t spoken 2 u
in a long time. I would like 2 talk with [u] about a business
venture plz indicate how we can meet?’
6
By
text message on 19 May 2008 sent at 4:50pm.
7
Delivered
on 25 May 2012.
8
Para
30.
9
Para
12.
10
See
fn 9 above.
11
At
326
h–i.
12
Para
25.
13
Para
30.