Hendricks v S (415/09) [2010] ZASCA 55; [2010] 4 All SA 184 (SCA) (31 March 2010)

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[2010] ZASCA 55
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Hendricks v S (415/09) [2010] ZASCA 55; [2010] 4 All SA 184 (SCA) (31 March 2010)

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THE SUPREME COURT
OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case No 415/09
No precedential
significance
In the
matter between:
SHAUN
HENDRICKS
Appellant
and
THE
STATE Respondent
Neutral
citation:
Hendricks v The
State
(415/09)
[2010] ZASCA 55
(31 March 2010)
Coram:
Lewis
and Mlambo JJA and Saldulker AJA
Heard:
17
February 2010
Delivered:
31
March 2010
Summary:
Lengthy
delay in prosecution of appellant held not to have prejudiced him:
convictions for dealing in drugs and conspiring to deal
in drugs
confirmed. Sentences reduced in part because of detrimental effect of
proceedings extending over a period of 17 years from
date when
offences committed until hearing of appeal.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Western Cape High Court (Cape Town) (Motala J and Fortuin AJ sitting
as court of appeal):
1 The appeal against the convictions on counts 3 and 4
is dismissed.
2 The appeal against the confiscation order is upheld
and the confiscation order is set aside.
3 The appeal against the sentences imposed on counts 3
and 4 is upheld.
4 The sentences of the regional court are substituted
as follows:
‘
(a) The accused is sentenced to four years’
imprisonment on count 3.
(b) The accused is sentenced to eight years’
imprisonment on count 4.
(c) The sentence on count 4 is to run concurrently with
the sentence on count 3.’
JUDGMENT
SALDULKER AJA ( LEWIS and MLAMBO JJA concurring)
[1] Approximately 17 years ago, during September 1993,
the appellant, Mr Shaun Hendricks, was arrested on drug related
charges.
1
Almost six years passed before his trial on these charges commenced
in the Wynberg Regional Court, on 31 August 1999. The appellant
and
his co-accused, Mr Mogamat Amien Abrahams (accused 1 at the trial),
pleaded not guilty to four counts of dealing in mandrax,
as well as
to the alternatives to these counts.
[2] On 19 January 2001, the appellant was acquitted on
two of the four counts, being counts 1 and 2 and was convicted on
count
3 of dealing in 100 000 mandrax tablets between 9 August and 9
September 1993 and on count 4 of dealing in 79 000 tablets between
9
September and 11 September 1993.
[3] A year later, on 2 January 2002, he was sentenced
to 12 years’ imprisonment on each count and the sentences were
ordered to
run concurrently. Additionally, in terms of s 18 of the
Prevention of Organised Crime Act 121 of 1998 (POCA), the regional
court
made a confiscation order against him in an amount of R150 000.
It took almost 18 months before the trial was finalised.
[4] The appellant appealed against his convictions and
the related sentences to the Cape High Court. On 12 April 2007 his
appeal
against his conviction and sentence on count 3 was upheld. The
order of the regional court on the conviction and sentence on count
3
was set aside and substituted, with the appellant being found guilty
of contravening s 18(2)(a) of the Riotous Assemblies Act 17
of 1956
in conspiring to deal in 100 000 mandrax tablets on count 3, and was
sentenced to eight years’ imprisonment. His appeal
against the
conviction and sentence on count 4 and the confiscation order was
dismissed.
[5] Aggrieved, the appellant applied for leave to appeal
against those convictions and sentences to this court. The court
below granted
the appellant leave to appeal against the sentences
imposed, but refused leave to appeal in relation to the convictions.
This court
granted the appellant leave to appeal against his
convictions.
[6] This appeal is thus directed against the
appellant’s convictions on counts 3 and 4,
the sentences imposed and the confiscation
order granted in terms of s 18 of POCA. The appellant contends that
a number of irregularities
in the trial, and the delay both in the
conclusion of the trial and in the appeal process, rendered the
proceedings against him unfair
to such an extent that the convictions
and sentences must be set aside. The irregularities raised are:
(a) the unreasonable delay in the finalisation of his
trial;
(b) the regional magistrate who conducted the trial was
biased;
(c) the regional magistrate, in convicting him, had
regard to inadmissible evidence, which was irregular, and without
which a conviction
would not have ensued; and
(d) the regional magistrate drew an inference of guilt
from the appellant’s failure to testify.
[7] I intend to deal with these issues in the order in
which they appear. In doing so I shall have regard to an agreed
chronology
of events (which I shall call the dossier) in so far as
the delay is concerned and with the material parts of the record in
relation
to the remaining issues.
The delay
[8] The nub of the appellant’s case is that the delay
in the legal proceedings against him was unreasonable and resulted in
an infringement
of his right to a fair trial. That there has been a
considerable delay in this matter is common cause. The
investigation into the
drug trafficking syndicate by the state
spanned a number of years. It was lengthy and complex consisting,
inter alia, of the interception
and transcription of telephone calls,
the procurement of witness statements, as well as conducting forensic
tests.
[9] As pointed out above, it took almost six years
after his arrest before the appellant’s trial commenced. Subsequent
to his arrest
the appellant, through his legal representatives, made
numerous requests for further particulars to the charge sheet which
were set
out in comprehensive detail by the court below. This
resulted in further delays.
[10] During 1994 the charges against the appellant were
withdrawn. Two years passed before charges were reinstated in
September 1996.
In April 1997 the appellant launched an application
in the Cape High Court for a permanent stay of prosecution on account
of the
delay. This application was removed from the roll on 27
February 1998 with Hlophe JP indicating that the State ‘should get
its
house in order’ within 90 days. A year later the State still
did not have its house in order. Having withdrawn his application,
the appellant requested further particulars in March 1998. After the
State replied it amended the charge sheet. As pointed out,
the trial
commenced in August 1999, and was finalised in February 2002 when the
appellant was sentenced.
[11] In
Sanderson v
Attorney-General, Eastern Cape
2
the Constitutional Court spelt out the approach to be taken in
weighing up the effect of trial delay. The conduct of both the
appellant
and the State must be weighed up in determining whether the
delay is reasonable. In determining this question, the court
3
considered the ‘balancing test’ formulated in
Barker
v Wingo
4
where the following considerations were examined: the length of the
delay; the reasons the State relies on to justify the delay;
the
accused’s assertion of his right to a speedy trial and the
prejudice to the accused.
[12] Applying the test to the facts of this case, the
following conclusions can be drawn. First, the lengthy delay in this
matter
is unacceptable. However, both the State and the appellant
have in my view contributed to it. That said, an accused is entitled
to
request particulars from the State in preparation for his trial
but as a beneficiary of the right contained in s 35(3)(a) of the
Constitution it does not behove him to cause wilful delays.
5
[13] The speedy conclusion of a criminal trial should
not just be an ideal for the accused and the justice system but a
reality that
both protagonists should strive for. The dossier is a
testimony to the battles fought by both the State and the appellant
over a
number of years. I agree with the court below that the delay
is regrettable and unfortunate: indeed this appeal is before this
court
in respect of charges that were laid as far back as 1993.
However, the delay did not affect the outcome of the trial.
[14] As to trial prejudice, just before the state closed
its case, accused 1 was killed. In this regard the appellant
contends that
the death of his co-accused was prejudicial in the
presentation of his case, as the role played by him was insignificant
in comparison
to that of accused 1 and that the latter’s death
deprived him of his favourable testimony. On this issue the court
below quite
correctly found that his death had not caused prejudice
as there was no indication that he would have testified, or that his
testimony
would have been favourable to the appellant.
[15] The appellant has not been incarcerated during the
past 17 years and the liberty and security of the appellant cannot be
said
to have been affected by the delay. As was stated in
Sanderson
:
‘
The Courts will apply their
experience of how the lapse of time generally affects the liberty,
security and trial-related interests
that concern us. Of the three
forms of prejudice, the trial–related variety is possibly hardest
to establish, and here as in the
case of other forms of prejudice,
trial courts will have to draw sensible inferences from the evidence.
By and large, it seems a
fair although tentative generalisation that
the lapse of time heightens the various kinds of prejudice that s
25(3)(a) seeks to diminish
’.
6
Accordingly I conclude that the delay in itself did not
lead to unfairness or trial prejudice. It does, however, have an
impact on
sentence as I shall discuss later.
The conduct of the magistrate, bias and the admission
and use of inadmissible evidence
[16] The evidence of a State witness, Mr Govender (who
was himself indemnified against prosecution), as to what accused 1
had told
him about the appellant was declared inadmissible. However,
the trial court held that
‘Govender,
met sy diepgaande kennis van die sindikaat se bedrywighede, getuig
dat beskuldigde 1 die man is wat vir 2 van Mandrax
voorsien het. Dit
verduidelik beskuldigde 2 se aktiewe betrokkenheid met die versending
van Mandrax van Johannesburg na Kaapstad.
’
[17] In my view it is unfortunate that the trial court
referred to this ‘inadmissible’ evidence in its judgment. But
there is
nothing to indicate that this statement was evidence of
bias, or that any finding was based upon it. The contention that the
inadmissible
evidence was the foundation of the finding is wholly
unwarranted because it is not the only evidence on which the
magistrate relied.
It is clear from the evidence of Mr Haffejee,
another State witness who was also granted indemnity, and to which I
shall revert,
that the appellant played a prominent role in the
transporting of mandrax tablets from Johannesburg to Cape Town.
[18] Mr Govender testified also about the modus operandi
used in the supply of the mandrax, the devious methods adopted by
the drug
cartel to hide the mandrax in vehicles, and the steps taken
to avoid detection. Clearly it was only a very narrow aspect of Mr
Govender’s
evidence that was declared inadmissible. The appellant
had the right to challenge all the remaining evidence and adduce
evidence
in rebuttal but elected not to do so.
Right to remain silent
[19] The appellant did not testify. In
S
v Boesak
,
7
the Constitutional Court said the following:
‘
The fact that an accused
person is under no obligation to testify does not mean that there are
no consequences attaching to a decision
to remain silent during the
trial. If there is evidence calling for an answer, and an accused
person chooses to remain silent in
the face of such evidence, a court
may well be entitled to conclude that the evidence is sufficient in
the absence of an explanation
to prove the guilt of the accused
.’
[20] In
Osman & another v
Attorney-General, Transvaal
,
8
it was succinctly stated that in an adversarial legal system, once
the prosecution has produced evidence sufficient to establish
a prima
facie case, an accused who fails to produce evidence to rebut the
case was at risk. The failure to testify does not relieve
the
prosecution of its duty to prove guilt beyond reasonable doubt. An
accused thus always runs the risk that, absent any rebuttal,
the
prosecution’s case might be sufficient to prove the elements of the
offence. The fact that an accused is put to such an election
is not a
breach of the right to silence. In
S v Thebus
& another
,
9
Moseneke J summed up the position in regard to the right to silence:
‘
It is well established that
it is impermissible for a court to draw any inference of guilt from
the pre-trial silence of an accused
person. Such an inference would
undermine the rights to remain silent and to be presumed innocent.
Thus, an obligation on an accused
to break his or her silence or to
disclose a defence before trial would be invasive of the
constitutional right to silence. An inference
of guilt from silence
is no more plausible than innocence. The majority of the US Supreme
Court in
Doyle v Ohio
reminds us that
“every post arrest silence is insolubly ambiguous”. To hold
otherwise, the mandatory warning under s 35(1)(b)
will become a trap
instead of a means for finding out the truth in the interests of
justice.
. . .
A distinction may properly be
made between an inference of guilt from silence and a credibility
finding connected with the election
of an accused person to remain
silent. In the dissenting judgment in
Doyle
v Ohio
a comparable
distinction is drawn between the “permissibility of drawing an
inference on the credibility of the accused from silence
and the
impermissibility of drawing a direct inference of guilt”. In the
latter, the presumption of innocence is implicated. In
the former, a
court would have regard to the factual matrix within which the right
to silence was exercised.’
[21] The trial court found that:
‘
Behalwe beskuldigde twee se
betrokkenheid by handel soos reeds uiteengesit, dui ook die
hoeveelheid tablette duidelik daarop dat beskuldige
twee nie net deel
van die sindikaat netwerk was nie, maar self ook ‘n handelaar in
eie reg. Indien dit enigsiens anders was soos
byvoorbeeld dat hy ‘n
onskuldigde bystander of handlanger was, is daar geen rede waarom hy
nie so kon getuig het nie. Sy besluit
om te swyg, is ‘n verdere
bevestiging van die Hof se bevinding met betrekking tot sy
betrokkenheid
’.
[22] Both the trial court and the court below were
entitled to take into account the appellant’s failure to testify.
The State
established a prima facie case calling for an answer from
him. His failure to testify justifiably had consequences, entitling
the
trial court to conclude that the evidence before it was
sufficient, in the absence of an explanation to prove the appellant’s
guilt.
The court below quite correctly held that the appellant’s
right to remain silent was not violated.
[23] None of the so-called ‘irregularities’
contended for by the appellant are of such a nature that they caused
a failure of
justice. They did not result in a violation of the
appellant’s right to a fair trial in terms of s 35(3) of the
Constitution.
Count 3
[24] The court below set aside the conviction on count
3 and found the appellant guilty of conspiracy instead. It is common
cause
that the tablets on this count were not analysed. (On the
charge of conspiracy the number of tablets involved is immaterial.)
The
State contended that proof of the presence of methaqualone in
the tablets in respect of count 4, together with the same pattern
of
conduct followed in respect of counts 3 and 4, lent itself to the
reasonable inference that the appellant was dealing in mandrax.
The
contention was correctly rejected by the court below. In the absence
of proof of what the substance actually was, dealing in
‘mandrax
tablets’ (count 3) was not proved.
[25] However, both the circumstantial evidence and the
appellant’s conduct lead to the conclusion that he agreed with
accused 1,
Mr Haffejee and others, to the transporting and supplying
of mandrax tablets from Johannesburg to Cape Town in a blue Cressida
vehicle.
Evidence as to his participation in the arrangements for
the transportation of the drugs was unchallenged. His conduct and
actions
were ‘in pursuance of a design common to him’
10
and the others: the transportation and supply of drugs.
[26] Moreover, Mr Haffejee’s evidence with regard to
the appellant’s involvement with accused 1 in the counting and
packing of
50 packets of mandrax tablets into two carton boxes in the
garage of the appellant’s house, and placing them in a blue
Cressida
destined for Cape Town, and his association thereafter, is
uncontested. The court below thus quite correctly set aside the
conviction
of ‘dealing’ in mandrax tablets, and convicted the
appellant of conspiracy.
Count 4
[27] Mr Haffejee testified that 80 bags of mandrax
tablets were packed in the Cressida. The vehicle was driven to Cape
Town where
its registration plates were replaced before the vehicle
was driven to the appellant’s home. There in the garage of the
appellant’s
home and in his presence the police confiscated 79 bags
of mandrax tablets.
[28] None of this evidence was disputed. Superintendent
Swart placed the seized tablets in two plastic bags which he kept in
his custody
and control, until he delivered the tablets personally to
the laboratory in Pretoria. Ms de Vos examined the contents of these
bags
and the tablets tested positive for methaqualone. The findings
of Ms de Vos were confirmed by Mr Volsteedt, both experts in
analysing
mandrax tablets.
[29] The appellant challenged the finding of
methaqualone in this court, contending that the standard against
which the mandrax tablets
were tested was not a generally accepted
one, and the tablets tested were not a proper sample of what was in
the other bags. This
argument is to my mind disingenuous. There is no
reason to doubt the accuracy of the findings of Ms de Vos and Mr
Volsteedt. Furthermore,
in the trial court counsel for the appellant
did not place the standard against which the analytical tests were
done on the seized
tablets in dispute or suggest an alternative
standard.
[30] The modus operandi adopted by De Vos in analysing
29 of the tablets taken from those seized, (which, as I have said,
were not
tampered with from the moment of their seizure to their
confinement in the State’s laboratory) was satisfactory in all
respects.
Her testing method left very little margin for error.
Ultimately the State proved that the tablets confiscated by the
police were
the same tablets that tested positive for methaqualone.
There is no cogent reason advanced to reject this evidence.
[31] I am satisfied that the appellant was correctly
convicted of dealing in 79 000 tablets on count 4.
Confiscation order
[32] The trial court made a confiscation order in the
amount of R150 000 against the appellant. Chapter 5 of POCA vests the
criminal
courts with a discretionary power to make a confiscation
order against anybody convicted of any crime who benefitted from it
or from
‘sufficiently related criminal activity’.
[33] Section 18(1) provides as follows:
‘
Whenever a defendant is
convicted of an offence the court convicting the defendant may, on
the application of the public prosecutor,
enquire into any
benefit
which the defendant may have derived from-
that offence;
any other offence of which the
defendant has been convicted at the same trial; and
any criminal activity which the
court finds to be sufficiently related to those offences, and, if
the court finds that the defendant
has so benefitted , the court
may, in addition to any punishment which it may impose in respect of
the offence, make an order against
the defendant for the payment to
the State of any amount it considers appropriate . . .’. (my
emphasis)
Section 18(2) provides:
‘
The amount which a court may
order the defendant to pay to the State under subsection (1)-
shall not exceed the
value
of the defendant’s proceeds
of
the offences or related criminal activities referred to in that
subsection, as determined by the court in accordance with the
provisions of this Chapter; or
if the court is satisfied that
the amount which might be realised as contemplated in section 20(1)
is less than the value referred
to in paragraph(a), shall, not
exceed an amount which in the opinion of the court might be so
realised.’ (My emphasis.)
[34] The requirements of a confiscation order under ss
18(1) and (2) are thus twofold. The first is the ‘benefit’ the
defendant
(accused) derived from his crimes and the second is the
‘proceeds’ of his crimes. If the court finds that the defendant
has benefitted,
then it may make a confiscation order against him for
any amount up to the value of the ‘proceeds’ he derived from his
crimes.
[35] Both the trial court and the court below found that
confiscation was in order. I turn to consider the affidavits filed by
Mr
G D Dawes, a Senior Special Investigator at the Directorate of
Special Operations in support of an application for a confiscation
order pursuant to s 18 of POCA, and the appellant’s reply thereto.
[36] Mr Dawes stated that there ‘can be no doubt that
the defendant derived a benefit from his involvement in the
commission of’
the offences contemplated in counts 3 and 4 and
relied heavily on the trial court’s findings that the appellant was
not only an
integral member of the narcotics trafficking syndicate
but also a drug dealer in his own right and must have benefitted
therefrom.
Furthermore, although the appellant was convicted of only
two counts of dealing in mandrax, there was sufficient evidence to
indicate
that the syndicate was not restricted to these two
transactions and that therefore the appellant’s benefit should not
be limited
to these transactions.
[37] To disprove that he had derived a benefit from the
commission of these offences, the appellant set out in his answering
affidavit
his financial and employment history, together with
supporting bank statements, tax returns and an affidavit from his
companion and
the mother of his children.
[38] The appellant denied that he had benefitted from
the offences. He asserted that any asset or income accrued to him
arose from
lawful undertakings derived from proceeds of sales of
vehicles, businesses and family homes. He set out in detail the
business ventures
he was involved in, the various properties that he
purchased and sold over a number of years, his earnings and that of
his companion
and the living expenses of his family with supporting
documentation.
[39] He confirmed that his only realisable property was
the Plattekloof property, Erf No 22315, Parow, purchased by the
appellant
in January 1998 for R532 500 with a mortgage bond
registered against the property in favour of Nedcor Bank. This was
the family
home. He had no savings, no medical aid, no policies and
no investments other than in the Plattekloof property. His companion
confirmed
that she contributed financially to the upkeep of the joint
household and the bond repayments of the family home.
[40] The State filed no replying affidavit in rebuttal
of these statements. The trial court ignored the appellant’s
affidavit,
and only considered the unsubstantiated affidavit of Mr
Dawes. It concluded that the appellant had derived a benefit from the
commission
of the offences and held that:
’
Common sense dictates that no
drug dealer would engage in drug trafficking merely for the fun of it
the main objective is profit.’
. . . .
‘
That only in highly
exceptional cases is proof of benefit possible
.’
. . . .
‘
Drug dealers generally reap
rich rewards from their activities and go to great lengths to conceal
their assets.
’
[41] These findings were unjustified. From the
appellant’s affidavit it is clear that he did not reap any ‘rich
rewards’ nor
was there any evidence that he had concealed any
assets. The State, with the resources available to it, conducted
extensive and covert
investigation into the drug syndicate over a
number of years. Yet despite this, the State was unable to challenge
the appellant’s
denial that he had not directly or indirectly
benefitted from any drug deal.
[42] The trial court did not exercise its discretion
judicially in granting a confiscation order. There was no basis for
such an order
as there was no proof that the appellant derived a
benefit from the offences in question or from related criminal
activity.
[43] It is noteworthy that the delay in concluding the
trial made the confiscation order possible. POCA had not been passed
in 1993
at the time of the appellant’s arrest. However, POCA was
made expressly retrospective, so that confiscation after 1998 in
respect
of crimes committed before then is possible. However, as no
sufficient proof was tendered by the State to show that the appellant
had derived any benefit from his criminal activity nothing turns on
this aspect.
Sentences
[44] On count 3, the court below altered the appellant’s
conviction to one of conspiracy and reduced his sentence of 12 years’
imprisonment to 8 years’ imprisonment. The sentence on count 4 of
12 years’ imprisonment was confirmed.
[45] It is trite law that an appeal court will interfere
with the sentence imposed only when a court exercises its discretion
improperly
or unreasonably.
‘
[A] mere misdirection is not
by itself sufficient to entitle the Appeal Court to interfere with
the sentence; it must be of such a
nature, degree, or seriousness
that it shows, directly or inferentially, that the Court did not
exercise its discretion at all or
exercised it improperly or
unreasonably. Such a misdirection is usually and conveniently termed
one that vitiates the Court’s decision
on sentence.’
11
[46] The individualisation of sentencing is an important
factor. The appellant was not the ‘kingpin’ in the drug
syndicate.
One of the syndicate leaders, accused 1, was killed during
the trial and other syndicate leaders were indemnified against
prosecution.
The appellant is a first offender and he suffers from
ill health. It is clear that the effect of having legal proceedings
hanging
over his head for 17 years like the sword of Damocles must
have caused him immense mental strain.
[47] It is now nine years since his conviction and 17
years since his arrest. But this does not mean he must be set free.
Drug trafficking
and the use of drugs is a scourge in our society,
calling for severe sentences.
[48] Although both the court below and the trial court
took into account the appellant’s personal circumstances,
insufficient consideration
has been given to the inordinate delay
experienced by the appellant in the finalisation of his matter. It is
necessary to say something
about what happened after the trial. The
appellant was convicted in 2001, sentenced in 2002, lodged his appeal
in 2003, and had his
appeal heard by the high court in April 2006.
The judgment on appeal was delivered in April 2007 without notice to
him by the court.
In an affidavit filed by the appellant he stated
that he only became aware that judgment had been delivered when his
attorney was
contacted ‘recently’ (the affidavit was deposed to
in July 2008) by the state attorney enquiring as to when payment in
terms
of the confiscation order could be expected. It is regrettable
that these circumstances led to further delays in this matter. The
application for leave to appeal was heard in November 2008.
[49] Counsel for the State during 17 October 2005 filed
heads of argument which, although disputing that the delays were
unreasonable,
made several concessions with regard to the particular
counts and apparently conceded that the State had not proved its case
beyond
a reasonable doubt. However, six months later the State
appointed different counsel and withdrew all the concessions made.
[50] From the aforegoing, it is clear that the appellant
(through no fault of his own), has experienced substantial delay in
having
his appeal against his convictions and sentences finalised and
the State has pursued the matter against him in an inept and tardy
fashion. The mental strain that the appellant has endured over the
years awaiting the outcome of his appeal cannot be ignored.
Ordinarily
only facts that are placed before a trial court are taken
into account for the purpose of sentencing.
12
However this rule is not invariable.
13
The circumstances that the appellant found himself in after sentence
was imposed were extraordinary. It is possible therefore for
this
court to alter the sentences.
14
In my view, the exceptional circumstances following the appellant’s
convictions and sentences warrant a substantial reduction
in the
sentences on both counts. The appeal against the sentences imposed on
both counts succeeds.
[51] The following order is made:
1 The appeal against the convictions on counts 3 and 4
is dismissed.
2 The appeal against the confiscation order is upheld
and the confiscation order is set aside.
3 The appeal against the sentences imposed on count 3
and 4 is upheld.
4 The sentences imposed by the regional court are
replaced with the following:
‘
(a) The accused is sentenced to four years’
imprisonment on count 3.
(b) The accused is sentenced to eight years’
imprisonment on count 4.
(c) The sentence on count 4 is to run concurrently with
the sentence on count 3.’
______________________
H K Saldulker
Acting Judge of Appeal
APPEARANCES:
APPELLANTS: W
King
Instructed
by William Booth Attorneys, Cape Town;
Lovius Block Attorneys,
Bloemfontein.
RESPONDENTS: C
van der Viyver
Instructed by t
he
Director of Public Prosecutions, Cape Town;
The Director of Public
Prosecutions, Bloemfontein.
1
In
contravention of s 5(b) read with ss 1, 13(f), 17(e), 18, 25 and 64
and Parts I to III of Schedule 2 of the
Drugs and Drug Trafficking
Act 140 of 1992
.
2
[1997] ZACC 18
;
1998 (1)
SACR 227
(CC) para 30.
3
Sanderson
para 25.
4
[1972] USSC 144
;
407 US 514
(1972).
5
Sanderson
para 32.
6
Sanderson p
ara
30.
7
[2000] ZACC 25
;
2001 (1) SA 912
(CC) para 24.
8
1998 (4) SA
1224
(CC) para 22; see also
Boesak
para 24.
9
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) paras 58 and
59.
10
S v Cooper & others
1976 (2) SA 875
(T) at 880C-D and
S
v Moumbaris & others
1974 (1) SA 681
(T) at 685H.
11
S v Pillay
1977 (4) SA 531(A)
at 535E-G.
12
R v
Verster
1952 (2) SA 231
(A).
13
S v
Jaftha
2010 (1) SACR 136
(SCA) para 15.
14
See in particular
S v
Roberts
2000 (2) SACR 522
(SCA) para 22 and
S v
Balfour
2009 (1) SACR 399
(SCA) para 17.