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[2014] ZAFSHC 106
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Mandlozi v S (A56/2014) [2014] ZAFSHC 106; 2015 (2) SACR 258 (FB) (3 July 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No. : A56/2014
In
the matter between:-
LINDIWE
MANDLOZI
...........................................................................................................
Appellant
(LEOPOLDINA
MACONZE)
and
THE
STATE
...........................................................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
MBHELE, AJ
HEARD
ON:
9 JUNE 2014
JUDGMENT
BY:
RAMPAI, AJP
DELIVERED
ON:
3 JULY 2014
[1]
These proceedings concern an appeal. The appellant, Lindiwe
Mandlozi also known as Leopoldina Maconze, was sentenced to
18 years
imprisonment. She now comes before us on appeal with the leave
of this court granted on petition. The respondent
opposes the
appeal.
[2]
The appellant was arrested on 1 August 2012 at Kroonstad. The
charge against her was contravention of section 5(b)
Drugs and Drug
Trafficking Act 140 of 1992
read with certain specified provisions
thereof. The respondent alleged that the appellant was
unlawfully dealing with 25,8885
kg of methamphetamine at Kroonstad on
1 August 2012. Methamphetamine is a drug. It is listed in
Part III
of Schedule 2 to the statute. It is a dependence
producing substance. Its street name is “crystal meth”
or “tik”. The respondent alleged in the charge
sheet that the sale price of the drug found in the appellant’s
possession, was approximately between R7,76 million and R10,3
million, in other words about R300,00 to R400,00 per gram.
[3]
The appellant was tried in the Kroonstad Regional Court. On 9
April 2013 she pleaded not guilty before Mr I.R. Smith,
the regional
magistrate. She was legally represented by Mr Van Rensburg.
Ms Claassens appeared for the respondent.
[4]
Notwithstanding her plea, the appellant was convicted on the strength
of the testimonies of three prosecution witnesses, namely
S.R.
Harrison, J.J. Julius and M. Fourie coupled with her subsequent
admissions. On the same day, 3 July 2013, she was sentenced
to
18 years imprisonment.
[5]
Aggrieved by the sentence imposed on her, the appellant applied for
leave to appeal. On 27 August 2013 the regional magistrate
refused her application. She then approached the judge
president by way of a petition. On 26 February 2014 Kruger J
et
C. Reinders AJ on petition granted her leave to appeal.
[6]
The grounds of the appellant’s appeal were:
“
AD
VONNIS
Die
geleerde Streeklanddros het op die volgende aspekte fouteer:
1.
Deurdat die vonnis in al die omstandighede
van die saak skokkend onvanpas is;
2.
Deurdat die erns van die misdaad en die
gemeenskapsbelang oorbeklemtoon is;
3.
Deurdat die persoonlike faktore rakende die
applicant onderbeklemtoon is;
4.
Deurdat applikant deur Jackson mislei en
gebruik is onderbeklemtoon is;
5.
Dat applikant bykans 1 jaar in aanhouding
verhoorafwagtend was onderbeklemtoon is;
6.
Deurdat die relevante faktore globaal
geneem onderbeklemtoon is.”
A
notice of appeal was filed with the clerk of the court on 8 July
2013.
[7]
The question in the appeal was whether the trial court imposed on the
appellant a sentence which in all the circumstances was
shockingly
severe and therefore inappropriate. We are therefore called
upon to determine whether the trial court improperly
or unreasonably
exercised its judicial discretion in sentencing the appellant.
[8]
On behalf of the appellant Mr Van Rensburg submitted that the answer
to that crucial question had to be in the affirmative.
Therefore counsel urged us to uphold the appeal and to interfere with
the sentence.
[9]
However Mr Lencoe differed. On behalf of the respondent counsel
submitted that the answer to that question had to be in
the
negative. Accordingly, counsel urged us to dismiss the appeal
and to confirm the sentence.
[10]
In considering the appeal we have to take into account the
appellant’s personal circumstances. The first component
of the triad concerns favourable factors to the appellant as an
individual offender.
·
The appellant was 46 years of age at the
time she committed the offence.
·
She was 47 years at the time she was
sentenced.
·
The level of formal school education she
received, appears nowhere on the record.
·
She was a mother of three children of whom
one was still a dependent minor.
·
She was a married woman although she and
her husband were estranged.
·
She lived in Johannesburg, boarded a bus at
Vanderbijlpark and headed to Cape Town.
·
She was arrested at Kroonstad on 1 August
2012.
·
She was incarcerated for almost 12 months.
·
She had no previous convictions relating to
drugs, but had unrelated convictions.
·
She was engaged by a certain Mr Jackson as
her courier.
·
Her
drug cargo consisted of “crystal meth”, commonly called
“tik” and categorised as an undesirable dependence
producing substance.
·
During the course of the presentation of
the prosecution case she made admissions in terms of
section 220.
·
Her reward for rendering courier services
to the aforesaid Jackson was R1000,00.
Those
then were the personal circumstances of the appellant.
[11]
In considering the appeal we also have to take into account the
nature and seriousness of the crime the appellant has committed.
The second component of the triad concerns the gravity of the crime
which gave rise to the appellant’s conviction.
The most
prevalent and serious crimes in the country were legislatively
identified, scheduled and singled out for severe punishment
16 years
ago. Included in such variety of social menaces, is the crime
called drug trafficking. About this crime the
regional
magistrate had this to say:
“
Die
misdaad waarvan u skuldigbevind is, is van ‘n baie ernstige
aard.”
[12]
The quantity of the drug found in the appellant’s possession,
was almost 26,0 kg. A quantity of drugs found in
an accused
person’s possession, must invariably be considered as a
barometer for the moral blameworthiness of an individual
concerned.
It follows that therefore, the larger the quantity of drugs an
offender deals with or possesses the heavier the
sentence would be.
This is of cardinal importance. Unless such a logical norm is
consistently observed and applied,
there can be no satisfactory
uniformity in the sentences passed by the courts. It would be
absurd to have a person convicted
of a huge quantity of drugs
sentenced the same way as someone who has been convicted of a far
less quantity –
S v Nkombeni
1990 (2) SACR 465
(TK).
[13]
In
S v Keyser
2012 (2) SACR 437
(SCA) at 444e [30] the court commented as follows:
“
To
my mind the most significant distinguishing feature is the quantity
of the drugs carried in (sic) by the appellant.”
[14]
Our courts have previously imposed heavy sentences for possession of
prohibited drugs of far less weight compared to the weight
of the
drug the appellant was trafficking in, for instance in
S
v Keyser
,
supra
,
the sentence of 20 years imprisonment imposed on a courier who was
found in possession of 6,5 kg of cocaine with a street value
of
approximately R2 million, was confirmed on appeal. In
S
v Jimenez
,
2003 (1) SACR 507
(SCA),
a sentence of 12 years imprisonment imposed on an offender who was
found in possession of 653,4 g of cocaine, was confirmed
on appeal.
Although the courts were dealing with a dangerous substance, cocaine,
in both cases, the weight involved in the
present appeal was almost
four times the weight involved in the
Keysers’s
appeal. The quantity of drug involved in the
Jimenez
appeal was like the proverbial drop in the ocean as compared to the
quantity we are grappling with
in casu
.
[15]
The appellant resided in Johannesburg, but travelled a considerable
distance to Vanderbijlpark to catch a bus. She was
driven to
that town by a certain Jackson, her principal. Before boarding
the bus destined to Cape Town, she and Jackson deceptively
behaved as
if they were innocent lovers saying their sweet goodbyes to each
other. In truth and in reality they were a supplier
and a
courier of a harmful drug. They engaged in a dubious and
amorous embrace in a fruitless attempt to draw the attention
of the
onlookers away from the heavy and incriminating bags.
“
Wanneer
die Hof kyk na die totaliteit van die aanvaarde getuienis, is dit
voorts duidelik aan hierdie Hof dat die optrede deeglik
beplande
optrede aan u kant en die persoon wat saam met u was.”
[16]
In my view the court
a quo
correctly found that this offence was planned. That much is
very clear from the conduct of the appellant at the time she
boarded
the bus and also at the time of her arrest. The contention that
the conduct of the appellant was an indication that
she was an
amateur in the drug trafficking business cannot be supported by the
evidence. The appellant was arrested at Kroonstad
later on the
same day, 1 August 2012. Shortly before her arrest she
frantically destroyed the written luggage label on her
drug bags.
She swiftly walked away from the bags. She quickly disembarked
and quickly re-boarded the bus. She
expressly denied that she
was the carrier of the drug bags.
[17]
Although Jackson and not the appellant had actually loaded the drug
bags into the bus at Vanderbijlpark, the appellant’s
conduct
immediately prior to her arrest, showed that she was a willing
co-perpetrator. She was not just a naïve woman
who was
taken advantage of by a drug lord. She was not an amateur in
drug trafficking. She was a cunning mule.
The contention
that she was totally under the influence of Jackson was not borne out
by the facts. It cannot be argued that
she was out of her depth
and clearly under the influence of her principal. The court
a
quo
correctly found that the offence
was deceptively planned. She was deeply involved in that
planning. It was improbable
that Jackson would have entrusted
such a huge quantity of drugs to someone who was not a tried and
tested courier.
[18]
In the circumstances I am persuaded by Mr Lencoe’s contention
that it was more probable than not that the appellant and
Jackson had
previously conducted some trial runs with success, involving small
quantities of drugs. Perhaps such previous
dealings probably
precipitated the current one and established some trust which gave
rise to the large consignment involved in
this case. The
substantial value of approximately R7 600 045,00 in a way
supported the contention that the two probably
had previous dealings
in connection with drug trafficking. Their relationship seemed
to have been based on that mutual, criminal
enterprise, rather than
mutual dependence on honourable business dealings between a vendor
and a customer. Moreover no soft
goods were found in her
possession. Unlawful dealing and not lawful vendering was
apparently the sole purpose of her mission
to Cape Town. I am
not persuaded that the large quantity and the substantially value
thereof were unduly emphasised by the
court
a
quo
.
[19]
There are two types of dependence producing substances. Some
are undesirable substances, such as “crystal meth”.
Others are dangerous substances such as cocaine. Mr van
Rensburg, counsel for the appellant, argued that the court
a
quo
failed to appreciate the
significance of the distinction between the two types of dependence
producing substances. The contention
was untenable in my view.
The court
a quo
was
mindful of such distinction. The regional magistrate correctly
pointed out that the prescribed maximum sentence, according
to the
Statute, was 25 years imprisonment irrespective of whether the
conviction concerned an undesirable or dangerous substance.
[20]
I can, however, be seen that the lawmaker views both types in a
serious light. It is quite understandable that where
two
couriers are found in possession of the same quantity of drugs, the
courts will not have the same punishment imposed on them
if the one
was dealing in a dangerous substance and the other in an undesirable
substance. Where, however, a substantial
quantity of an
undesirable substance is found in a courier’s possession and a
trivial quantity of the dangerous substance
is found in another
courier’s possession, the courts are inclined to punish the
possessor of an undesirable substance more
severely than the
possessor of a dangerous substance. That is precisely the
situation we are here dealing with on this appeal.
[21]
Mr Lencoe submitted that in itself the sentence of 18 years
imprisonment imposed on the appellant was indicative of the regional
magistrate’s appreciation that the appellant had been convicted
of dealing in the prohibited undesirable substance and not
the
prohibited dangerous substance. Counsel argued further that the
regional magistrate would probably have imposed a heavier
sentence on
the appellant had the appellant been convicted of dealing in a
prohibited dangerous substance given the large quantity
of the drug
she was trafficking. There is much to be said for Mr Lencoe’s
submission but less for Mr Van Rensburg’s.
[22]
Sight must not be lost of the reality that it is well documented that
there is a proven connective tissue between the sustained
illicit use
of prohibited drugs and the increase in crime rates. The
illicit use of the drug “crystal meth” has
been heavily
implicated in the research on crime in the mother city. See an
article
The Rise of ‘Tik’
and Other Crime
,
2005 SACJ 306
especially 320 per Julie Berg.
[23]
In sentencing the appellant therefore, the following set of
aggravating factors were taken into account by the court
a quo
:
·
That the crime of drug trafficking was rife
in the region of its jurisdiction and the province as a whole.
·
That the appellant was involved in its
planning.
·
That she was not a naïve and
vulnerable courier who financially and totally dependent on a drug
supplier for her leaving.
·
That she was not a small fry totally
influenced by a big shark to commit the crime.
·
That the drug “crystal meth”
was easy to make and readily available and easy to distribute with
the aid of greedy couriers
like the appellant.
·
That a substantially huge quantity of the
prohibited drug was found in the appellant’s possession.
·
That the street value thereof, estimated to
be approximately R7,6 million at least, was exceptionally huge.
·
That the intended destination of the drug
was Cape Town, a city already riddled by the illicit use of the same
drug found in the
appellant’s possession.
·
That the importation of “tik”
into the city would, therefore, have worsened a situation which was
already adversely
affected by prohibited drugs.
So
much about the magnitude of the crime committed by the appellant.
[24]
In considering the appeal we also have to take into account the
interests of society offended by the appellant. The third
component of the triad, like the second component, concerns the
aggravating factors.
[25]
It has been established through research that methamphetamine or
“tik” as it is commonly known, is highly addictive
with
dire consequences on the addict. Some of its adverse effects
are that it produces violent and psychotic behaviour, epileptic
seizures, uncontrollable rage and ailments such as Parkinson disease
as well as memory loss. These are some of the findings
of Julie
Berg in the article
The Rise of ‘Tik’
and Other Crime
,
2005 SACJ 306.
In brief, these then are some of the health hazards of the prohibited
substance.
[26]
The lives of drug addicts are often destroyed by their addiction.
The effects thereof not only are restricted to the
addict, but are
also felt by the family and the society at large. In
S
v Homareda
1999 (2) SACR 319
(W) at
p 326 the court remarked:
“
The
type of offence of which the appellant stands convicted has the
potential to ruin the lives of families in South Africa.”
[27]
In
S v Jimenez
2003 (1) SACR 507
(SCA) at p 520 par [25] Olivier JA remarked:
“
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.”
[28]
The negative and devastating repercussions of drugs on the society in
general and the addicts in particular, are so notorious
that no
reasonable person can claim to be ignorant of them. The
appellant cannot be heard to claim that she was ignorant
of such
devastating effects of the drugs she was carrying. In my view
she must be held to have taken such inherent danger
into the bargain
when she agreed to traffic a consignment of a large quantity of drugs
from Gauteng to the Western Cape.
In
S
v Keyser
2012 (2) SACR 437
(SCA) at
444f par [30] the court remarked:
“…
more important was
the number of lives potentially affected by the abuse of the drug.
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.
That consideration alone far
outweighed his personal circumstances and justified a very long
incarceration.”
[29]
What is very troubling about “tik” is the ease with which
it can be manufactured. The harmful recipe is readily
available
on the internet. Anyone with access to the internet can easily
manufacture this drug. Consequently this drug
has become so
easily available that it has been referred to as the drug of choice.
Since it is easy to make, easy to distribute
and cheap to sell,
children, that vulnerable and fragile class of our society, form a
significant if not a major portion of its
addicted abusers.
[30]
The prohibited undesirable drug “tik” adversely affects a
very wide range of society because the formula is simple,
because it
is readily available in the dark street corners and because it is
cheap compared to prohibited dangerous substances
such as cocaine.
These in brief are some of the properties that make “tik”
so harmful to society.
[31]
The second category of aggravating factors may now be summed up and
tabulated:
·
The undesirable drug of which the appellant
has been convicted is very harmful in that it has an adverse impact
on a large section
of society, particularly children.
·
The young lives of drug addicts are often
irredeemably destroyed by drug addiction.
·
The addiction to an undesirable substance
almost invariably progresses, with the passage of time, to addiction
to dangerous substances.
·
The devastating impact of drugs, be they
hard or soft, on addicts, extends beyond the families to society at
large.
·
The appellant was aware or ought to have
been reasonably aware of the devastating repercussions of drugs on
society, particularly
its children whose lives she potentially
exposed to the addictive use of the undesirable drug.
·
She, for selfish commercial purposes, was
prepared to harm the community.
·
The moral blameworthiness of appellant’s
actions lies in her willingness to destroy others in order to profit
from their harmful
addiction and eventual demise.
This
then completes the third component of the triad.
[32]
It appeared to me that the aggravating factors in this appeal
overshadowed the mitigating factors by a very huge margin.
The
appellant was not a first offender in the strict sense of the word.
Although not relevant to drug trafficking she has
some previous
convictions. Perhaps the strong aggravating factor was the
exceptionally huge quantity of the undesirable drug
the appellant was
transporting.
[33]
Since the respondent did not invoke the provisions of
section 51
of
the
Criminal Law Amendment Act 105 of 1997
as amended, the question
of the prescribed minimum sentence did not arise. I was not
persuaded by the contention that the
appellant was seriously and
unfairly prejudiced by such an omission. Nothing materially
significant turned on that point.
[34]
First and foremost it was significant to bear in mind that the
appellant was a woman. She was 46 years of age at the
time she
broke the law through drug trafficking. She was a mother of one
dependent minor child, a girl. She was a first
drug offender.
She deserved a credit of two years for her pre-sentence
incarceration. The critique levelled against
the court
a
quo
was that it attached inadequate
value to her personal profile as an individual woman offender living
in a state of matrimonial
separation.
[35]
The quantity of the drug involved in the case was indeed huge.
All the same the difficulty we had was that we were referred
to no
previously decided caselaw on sentence concerning the undesirable
substance methamphetamine. Huge as it was, exceedingly
larger
consignments of drugs such as cannabis transported by cargo carriers
are imaginable. Very severe sentences such as
the one imposed
on the appellant should, in my view, generally and sparingly be
reserved for drug manufacturers, suppliers and
repeat offenders.
In this instance we are not grappling with a worst case scenario of a
courier.
[36]
Although the appellant did not express remorse, her belated admission
of guilt was not devoid of any significance. By
doing so, she
effectively acknowledged that the case against her was formidable and
that it would serve no further practically
useful purpose to delay
the inevitable verdict. Sometimes accused person unnecessarily
and regrettably prolong criminal trials
notwithstanding the
formidable strength of the prosecution case and the hopelessness of
their defence.
[37]
The two scenarios are different. The former unlike the latter
saves public time and scarce public resources. The
practical
curtailment,
per se
,
of the costly proceedings is, in my view, a worthwhile gesture for
which an offender needs to be rewarded. I cannot see
anything
wrong in having such a gesture factorised in favour of an offender.
I hasten to add that we should guard against
the tendency of
conflating the issue with that of remorse. Even the most
remorseless of offenders can curtail proceedings
and thereby save
valuable public time and public resources.
[38]
Having considered all the relevant factors and notwithstanding a good
judgment by the court
a quo
,
I feel unease about the severity of the sentence imposed on the
appellant. In my view the sentence of 18 years imprisonment
was, in all the circumstances, disturbingly severe. The court
a
quo
somehow excessively stressed the
gravity of the crime together with the harm to society interest at
the expense of the profile
of the appellant. As a result of the
imbalance the court
a quo
inappropriately imposed a sentence which tended to be more
retributive than deterrent in effect.
[39]
I am persuaded by Mr Van Rensburg’s submission that a material
and appealable misdirection has been committed to the
appellant’s
detriment. That being the conclusion, appellate interference is
justified. I am, therefore, inclined
to uphold the appeal on
the grounds as set out in paragraph 6 with the exception of
sub-paragraph (4) thereof. The submission
that the court
a
quo
improperly exercised its sentencing
discretion was not without substance.
[40]
Accordingly I make the following order:
40.1
The appeal succeeds.
40.2
The conviction stands.
40.3 The sentence of
18 years imprisonment imposed on the appellant is set aside and it is
substituted with the one below.
40.4 The appellant
is sentenced to 18 (eighteen) years imprisonment of which 4 (four)
years are suspended for five years on condition
that the appellant is
not again found guilty of contravening
section 5(b)
of the
Drugs and
Drug Trafficking Act 140 of 1992
committed during the period of
suspension.
40.5 The sentence is
antedated to 3 July 2013.
________________
M.H.
RAMPAI, AJP
I
concur.
________________
N.
M. MBHELE, AJ
On
behalf of appellant: Adv T.B. van Rensburg
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv M. Lencoe
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN