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[2010] ZASCA 122
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Gamede and Another v S (161/2010) [2010] ZASCA 122 (30 September 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 161/2010
No Precedential Significance
In the matter between:
NOMVULA GAMEDE
.......................................................
First
Appellant
TANJANE JUSTICE MAKUNGA
....................................
Second Appellant
and
THE STATE
........................................................................
Respondent
Neutral citation:
Gamede
v The State
(161/10)
[2010] ZASCA 122
(30 September 2010)
Coram:
NUGENT, MHLANTLA
JJA and EBRAHIM AJA
Heard: 10 September 2010
Delivered: 30 September 2010
Summary:
Criminal Law –
Drugs and Drug Trafficking Act 140 of 1992
─ whether conviction
justified by evidence ─ appropriate sentence.
_____________________________________________________________________
ORDER
On appeal from:
KwaZulu-Natal
High Court (Pietermaritzburg)(Swain and Hollis JJ sitting as court of
appeal.):
1 In each case the appeal against
the conviction is dismissed.
2 In each case the appeal against
the sentence is upheld.
2.1 The sentence of the first
appellant is set aside and substituted with a sentence of 5 years
imprisonment.
2.2 The sentence of the second
appellant is set aside and substituted with a sentence of 15 years
imprisonment.
___________________________________________________________
JUDGMENT
EBRAHIM AJA (Nugent and Mhlantla
JJA concurring)
[1] The appellants were convicted
in the regional court at Durban of contravening the provisions of s
5(b) of the Drugs and Drug
Trafficking Act 1992 (Act 140 of 1992) in
that during June 2004, they dealt in 556 kilograms of methaquolone
(commonly known as
mandrax), an undesirable dependence producing
substance, listed in part 3 of schedule 2 of the Act, the value
thereof being approximately
R50 million. They were each sentenced to
a term of 20 years imprisonment.
[2] An appeal to the
KwaZulu-Natal High Court, was dismissed but leave granted to appeal
to this court against the convictions and
sentences in each case.
[3] The issue in the appeals is
whether the respondent proved beyond reasonable doubt, that mandrax
was being manufactured at the
premises concerned and, if so, was it
proved that the appellants were dealing in the substance as envisaged
by the Act.
[4] The factual background for
the conviction is the following. On Thursday 22 June 2004, members of
the South African Police Service
from the Organized Crime Unit as
well as the Crime Intelligence Unit found a powdered substance of the
colour of sea sand in large
quantities in various rooms in a house on
Spitskop Farm near Newcastle in the province of KwaZulu-Natal. Some
of the powder was
already dry and some wet. Fans and heaters were
also discovered in these rooms. In various outbuildings on the farm,
buckets, pots,
mixing bowls, measuring equipment such as a scale,
bags of Anthranilic Acid and other chemicals, gas burners, gas masks,
gloves
and gum boots were found. In a nearby pigsty markings found on
the ground were consistent with markings on the pots found and
contamination
on the soil indicated a cooking process had been
conducted there.
[5] On Saturday 24 June 2004, the
police arrived at Mange Farm a few kilometres away from Spitskop
Farm, in the same district, where
they found a Red Venture vehicle
parked in the grounds. Inside the vehicle various equipment such as
copper pipes sealing machine
and boxes of pinchers as well as mandrax
tablets were found. In a shed nearby, chemicals in 2 ½ litre
drums were found,
as also an industrial mixer, an industrial dryer, a
gas bottle and a 3 phase power box. The following day at Osizweni, a
place
22 kms away from the two farms, at the house of Alfred
Mazibuko, the owner of Mange Farm, a mandrax press machine was found.
Mazibuko
told the police that he had been called out to the farm on
Friday and persons who owned the Red Venture vehicle had asked him to
fix wheels to the mandrax press in the shed, so that it would be
easier to move the machine. This was the reason he took the machine
to his home at Osizweni.
[6] From this evidence the police
concluded that a mandrax manufacturing operation was in progress on
both farms. Samples of the
powdered substance were removed for
analysis by the police.
[7] The second appellant was
arrested on Thursday 22 June 2004 at approximately 23.00 when he
arrived at Spitskop Farm driving a
Silver Colt bakkie. At the back of
the bakkie, police found a load of groceries and a black plastic bag
in which was placed a white
bag containing a white powder substance.
The identity of the white powder inside the bag was clear from an
indication in writing
on the bag that the contents were Anthranilic
Acid. It is not disputed that Anthranilic Acid is used in the
manufacture of mandrax.
The second appellant explained his presence
on the farm as a conveyer of food for the workers. He denied any
knowledge of the acid.
The first appellant was arrested two days
later on 24 June. I shall deal with the circumstances leading to her
arrest in due course.
[8] During the trial the
respondent, in addition to the forensic evidence led the evidence of
two former employees. One of them,
Ivan Thusi, was a shepherd on
Spitskop Farm. He identified the second appellant as one of a number
of persons who stayed on the
farm from time to time. Although he did
not know why the second appellant was there, he said he was in the
company of the others
who were engaged in activities on the farm
involving the spilling of water and the spreading of a brownish
coloured substance,
of the consistency of mud, on the floor. Duduzile
Petros Mchunu the other employee, regarded himself as the Induna of
Spitskop
Farm. He also identified the second appellant as one of the
people who had come to work and stay on the farm. He said that these
persons wore gum boots, gloves and a covering over their mouths
whilst working. Although he had never seen the second appellant
wearing such apparel, he had seen him on the farm grounds with the
people wearing the boots, gloves and masks.
[9] The first appellant was
arrested during the evening of Saturday 24 June 2004. The police were
keeping Mange Farm under surveillance
when they saw lights of a motor
vehicle leaving the farm. They followed the vehicle, a maroon Isuzu
bakkie, and attempted to get
it to stop but the driver, the first
appellant, increased speed. The police vehicle gave chase putting on
its siren and blue light.
Despite that the first appellant continued
driving at high speed. Eventually approximately 2 ½ kilometres
from the farm,
the police managed to stop the vehicle. The vehicle
was searched and at the back of the bakkie, buckets and plastic bags
were found
containing a powdered substance. The first appellant
explained that she was asked to discard the buckets and plastic bags,
with
contents, by people on the farm. She told the police that the
powder was cattle feed and that people from the farm were going to
follow her to indicate a place at Arbor Park where the goods were to
be discarded.
[10] On the evidence set out,
both appellants were convicted of dealing in mandrax, despite the
denial by the second appellant that
the bag of anthranilic acid was
on his vehicle and despite the exculpatory statement made by the
first appellant to the arresting
police officers.
[11] The veracity of the forensic
analysis of the substance found on the farms was challenged on behalf
of the appellant but it
is not necessary to deal with that. According
to the undisputed evidence the equipment and materials that I have
referred to are
of the kind that is used in the manufacture of
mandrax. It is clear from the nature of the material and equipment
alone that both
farms were being used for the manufacture of mandrax
on a substantial scale.
[12] The question arising from
this, is whether the conviction of the appellants is sound in law.
The definition of the statutory
offence of dealing in drugs is very
wide and encompasses almost any activity performed in connection with
the drug. In
s 1
of the
Drugs and Drug Trafficking Act 1992
, dealing
is defined, in relation to a drug, to include ‘performing any
act in connection with the transhipment, importation,
cultivation,
collection, manufacture, supply, prescription, administration, sale,
transmission or exportation of the drug.’
[13] There can be no doubt at
all, against the background of the factual finding of the court a
quo, that a mandrax manufacturing
operation was taking place at the
farms. It is also clear from the evidence that the first appellant
was in the process of assisting
to remove incriminating evidence of
the operation at the time that she was arrested. It was submitted on
her behalf that it had
not been established that she had knowledge
that the material and equipment that she was removing was connected
to the manufacture
of mandrax but that submission must be rejected.
The manufacturing operation was of such a scale that she could not
but have known
that mandrax was being manufactured. She was clearly
participating with the persons connected with the Red Venture in
removing
incriminating evidence and must at least have been told why
that was required. Moreover, her explanation for not stopping when
she encountered the police is far-fetched, and is consistent with
knowledge on her part that she was involved in an illegal operation.
Taken together the inference is inescapable that she was aware of the
nature of the materials that she was conveying. Her conduct
falls
within the wide definition of the statutory offence of dealing and
she was properly convicted.
[14] The second appellant was
caught ‘red-handed’ with material that announced itself
to be Anthranilic acid. There
was no suggestion in the evidence that
the contents of the bag might have been some thing other than
Anthranilic acid, nor was
it suggested that the second appellant
might not have known what it was. The evidenced also establishes that
Anthranilic acid is
a substance used in the manufature of mandrax.
That he led the police on a ‘wild goose’ chase thereafter
to seek the
main perpetrator does not detract from his culpability.
He was also seen on the farm on at least four occasions in the
company
of persons working there, some of whom wore masks, boots and
gloves. He, despite the overwhelming evidence against him, elected
not to testify. The inference is inescapable that the second
appellant was knowingly bringing the acid to the farm so that the
drugs could be manufactured. His actions too fall squarely within the
definition of statutory dealing, having performed an act
in
connection with the manufacture of mandrax. I would accordingly
confirm his conviction.
[15] In so far as the sentence is
concerned, I would uphold the appeal on the basis that the sentence
in the case of the first appellant
is unjustifiably excessive, given
the fact that the evidence establishes no greater role in the
operation than to have assisted
in attempting to dispose of the
evidence. Accordingly in line with this court’s approach in
S
v Scott-Crossley
2008 (1) SACR 223
SCA at 239 para 29, I am of
the view that an appropriate sentence in respect of the first
appellant would be one of five years
imprisonment. The second
appellant was directly involved with the manufacturing process and as
a first offender, the
Criminal Law Amendment Act 105 of 1997
, as
amended, makes provision for a minimum sentence of 15 years
imprisonment to be imposed on him. Whilst the sentencing court
had
regard to the mitigating character of the second appellant’s
clean record, having reached the age of 40 years without
blemish, it
nonetheless considered that there were aggravating circumstances that
justified a sentence in excess of the minimum.
The evidence did not
establish that the second appellant played more than a subsidiary
role in the operation. I do not think there
was any justification for
imposing more than the minimum sentence. Accordingly, I would uphold
second appellant’s appeal
against sentence, by setting aside
the sentence of 20 years imprisonment and in its place substituting a
sentence of 15 years imprisonment.
[16] 1 In each case the appeal
against the conviction is dismissed.
2 In each case the appeal against
the sentence is upheld.
2.1 The sentence of the first
appellant is set aside and substituted with a sentence of 5 years
imprisonment.
2.2 The sentence of the second
appellant is set aside and substituted with a sentence of 15 years
imprisonment.
___________________
S Ebrahim
Acting Judge of Appeal
APPEARANCES
FIRST APPELLANT: B Bam SC
Instructed by Ehlers Attorneys,
Irene
c/o Adrie Hechter Attorneys,
Bloemfontein
SECOND APPELLANT: J Engelbrecht
SC
Instructed by Ehlers Attorneys,
Irene
c/o Adrie Hechter Attorneys,
Bloemfontein
RESPONDENT: (Ms) TS Jacobs
Instructed by The Director of
Public Prosecutions, Pietermaritzburg
The Director of Public
Prosecutions, Bloemfontein