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2014
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[2014] ZAGPPHC 266
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Shezi v S (A947/2013) [2014] ZAGPPHC 266 (15 May 2014)
IN
THE GAUTENG DIVISION OF THE HIGH COURT PRETORIA,
REPUBLIC
OF SOUTH AFRICA
CASE
NO: A947/2013
In
the matter between:
MBUSISENI
ZWELITHINI SHEZI
…...........................................................................................
Appellant
and
THE
STATE
….......................................................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1
The appellant was convicted, on a plea of guilty, in a magistrate’s
court of dealing in 150 kg of dagga, contrary to s 5(b)
of the Drugs
and Drug Trafficking Act, 140 of 1992 (“the Act”). He was
sentenced to 6 years imprisonment of which 3
years were suspended
and, in addition, a fine of R50 000 or three years imprisonment. The
Opel Corsa vehicle used in the commission
of the offence was declared
forfeit to the State and ordered to be destroyed.
2
The appellant appeals against his sentence, leave in this regard
having been granted by the court
a
quo.
3
The appellant did not testify. The State proved that the appellant
had two previous convictions for the illegal possession of
substances
in contravention of the Act: in 2005 he was convicted of possession
of a dependence-producing substance in contravention
of the Act and,
at the same hearing, of driving a motor vehicle without a license so
it is reasonable to assume that the appellant
was transporting the
substance at the time.
4
The appellant’s legal representative made submissions in
mitigation on behalf of the appellant. The correctness of the facts
relative to the appellant’s personal circumstances was not
disputed by the State and the magistrate took what was told to
him
into account.
5
The appellant was 42 at the time of his trial, was said to be
unemployed, was the owner of a vehicle, was married with nine
children
and was said to have “limited money” for a fine
and be unable to obtain “any more immediately”. The area
of jurisdiction of the court in which the appellant was charged
borders on Swaziland. That court regularly hears cases relating
to
dagga smuggled into the Republic from that kingdom. On the day of the
appellant’s trial, he was but one of several accused
persons
appearing before the court for alleged drug-related offences. The
offence of dealing in dagga was described by the magistrate
as
alarmingly prevalent in the district of the court
a
quo.
6
The appellant, however, disclosed through his legal representative
that he was employed to transport the dagga from an address
in the
Republic to an undisclosed location because he was the owner of a
vehicle. He was to receive a fee of R3 500 of which R2
500 was paid
upfront. He knew, his lawyer said, that transporting dagga
constituted the offence of dealing in it. But he did so
because he
was desperately poor. The appellant was however at the time of his
trial the owner of a house in Pumula, Germiston as
well as the owner
of the vehicle in which he was transporting the dagga. How this
desperately poor man managed to accumulate these
assets was not
disclosed to the court
a
quo.
The
appellant told the court
a
quo
through
his lawyer that he had managed to scrape together R5 000 for a fine.
7
In his reasons the magistrate rightly pointed to the harmful effects
of dagga on the lives of members of our society. I would
add that
many young people are among its victims. He considered a wholly
suspended sentence but decided that it would not be appropriate.
The
magistrate was, further, careful to impose a sentence that did not
sacrifice the appellant to warn other like-minded persons
of the
harsh punishments that would await them if they were convicted.
8
It is argued on behalf of the appellant that the magistrate erred in
using the knowledge of the value he had gained through his
judicial
duties. The magistrate said that on a conservative estimate, 150 kg
of dagga had a street value of R150 000.
9
In
R
Pretoria Timber Co (Pty) Ltd. and Another
1949
4 SA 368
T 371, the court held
As
a general rule judicial notice may be taken of facts which are so
notorious that there is no necessity to prove them; the basis
of the
rule being that the Court assumes that the matter is so notorious
that it will not be disputed.
10
I think that the street value of dagga in a jurisdiction in which the
crime of dealing in this substance is part of the dailyjudicial
fare
is decidedly a matter upon which a judicial officer presiding in that
court can take judicial knowledge. It is instructive
that when the
appellant sought leave to appeal from the magistrate, his legal
representative did not suggest that the magistrate
impermissibly
assessed the value of the dagga which the appellant was transporting.
11
And then it is submitted that the cumulative effect of the
imprisonment and the fine was grossly disproportionate. Here it is
instructive to contrast the disparate positions adopted by the
appellant as to his financial means. While for the purposes of
sentence, the appellant claimed to be poor and unemployed, for the
purposes of leave to appeal the appellant focussed his attack
on the
custodial portion of the sentence and said that he not only “would
be in a position to pay a fine but [was] actually
begging for the
opportunity to pay the fine”.
12
I think that far from being the humble impoverished victim of
economic circumstance, the appellant is, or was at the time of
his
trial, probably an affluent drug dealer. The earlier non-custodial
sentences imposed upon the appellant for possession of drugs
did not
deter him.
13
It was submitted by the appellant’s counsel that by pleading
guilty the appellant had shown remorse.
In
S v Matyityi
2011
1 SACR 40
SCA para 13, the Supreme Court of Appeal trenchantly
pointed to the difference between regret and remorse:
There
is, moreover, a chasm between regret and remorse.
Many
accused persons might well regret their conduct, but that does not
without more translate to genuine remorse. Remorse is a
gnawing pain
of conscience for the plight of another. Thus genuine contrition can
only come from an appreciation and acknowledgement
of the extent of
one's error. Whether the offender is sincerely remorseful, and not
simply feeling sorry for himself or herself
at having been caught, is
a factual question. It is to the surrounding actions of the accused,
rather than what he says in court,
that one should rather look. In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused
must take the court fully into his or her
confidence.
Until
and unless that happens, the genuineness of the contrition alleged to
exist cannot be determined. After all, before a court
can find that
an accused person is genuinely remorseful, it needs to have a proper
appreciation of, inter alia: what motivated
the accused to commit the
deed; what has since provoked his or her change of heart; and whether
he or she does indeed have a true
appreciation of the consequences of
those actions, [footnotes omitted]
14
As the appellant failed signally to take the court
a
quo
into
his confidence and there is nothing to indicate that he had anything
approaching a change of heart about his crime, it cannot
be said that
he showed remorse. He was probably sorry that he had been caught with
150 kg of dagga in his motor car. But that is
not remorse. The
likelihood is that he pleaded guilty because he had been caught red
handed.
15
In the circumstances I do not think that the sentence is harsh at
all. The magistrate has not been shown to have misdirected
himself.
There are thus no grounds upon which this court could interfere on
appeal with the sentence imposed. I would dismiss the
appeal and
confirm the conviction and sentence.
NB
Tuchten
Judge
of the High Court
13
May 2014
I
agree. It is so ordered.
C
Pretorius
Judge
of the High Court
13
May 2014