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[2012] ZAKZPHC 13
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Vetter v S (AR 264/11) [2012] ZAKZPHC 13 (13 March 2012)
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case
no: AR: 264/11
In
the matter between:
DONALD
DAVID VETTER
versus
THE
STATE
APPEAL JUDGMENT
Delivered: 13 March 2012
MBATHA J
[1] The appeal before us emanates from the Magistrate
Court, Pietermaritzburg.
[2] The Appeal is against both conviction and sentence.
The Appellant was convicted of contravening section 5(b) read with
sections
1, 13(f), 17(e), 18, 19, 25 and 6 of the Drug Trafficking
Act no. 140 of 1992 (Dealing in cocaine) and also of contravening
section
5(b) read with sections 1, 13 (d), 17(d), 18, 19, 25 and 64
of 1992 (dealing in ecstacy tablets).
[3] The accused was sentenced to four (4) years
imprisonment in respect of each count. The sentences running
consecutively.
[4] The Appellant who was legally represented had
tendered a Plea of not guilty to all the charges. The Accused
tendered an explanation
in terms of
section 115
of the
Criminal
Procedure Act 51 of 1977
, as amended, indicating the basis of his
defence.
[5] The basis of his defence being that:
(a) He lives in an outside room or wendy house at the
back of his brother’s house in number 33 Greyling Street,
Pietermaritzburg.
(b) On the day of his arrest he had received a
telephone instruction from his brother, Hilton Vetter, to remove
drugs under Hilton’s
bed in the main house and bury them in the
back yard.
(c) He complied with his brother’s
instructions.
(d) Having done that he left for the Polo Traven,
where he was confronted by police officers who took him back where he
had
just buried the drugs.
[5] The grounds of his defence are as follows:
(a) That he was neither dealt in drugs nor was he in
possession thereof as he lacked the necessary intention in this
regard;
(b) That the Accused should have faced a single count of
dealing in both cocaine and ecstasy as the drugs were packaged and
buried,
and found together by the police. It was submitted that this
led to the unnecessary splitting of the charges to the prejudice of
the Appellant;
That there should have been an alternative charge to
the single main count of dealing in drugs, being the contravening of
section
4(b) of the Drug Trafficking Act 140 of 1992 (possession)
and;
That the learned Magistrate misdirected himself by
drawing an inference that the Appellant was dealing in drugs,
irrespective
of all the evidence placed before him in the trial,
which indicated that this is not the only inference that can be
drawn from
the facts of the case.
[6] The following issues are common cause:-
(a) The policemen acted on the information given to
them. The information being that the Appellant’s brother,
Hilton Vetter,
had drug money in his (Hilton Vetter’s) bedroom.
(b) The Appellant was observed by the police officer’s
burying something in the backyard, which was eventually found to be
drugs.
(c) The money referred to was found in a pillowcase in
Hilton’s bedroom. The person who removed the stash of cash
from the
pillow case and handed it to the policeman was Hilton’s
wife and not the Appellant; and
(d) That the Appellant acted on his brother’s
instructions to bury the drugs in the garden.
[8] Application of the law:-
8.1 A dealing charge can be proved in a number of ways.
In this case the Court relied on the basis that the Appellant was
found
in possession of a huge amount of drugs and it drew an
inference that the Appellant was dealing in drugs.
8.1 Constitutionally it is no longer acceptable to rely
on presumptions, like quantity, alone to prove intent to deal.
Certain
other factors indicating the intent to deal must be present
to draw an inference that there is an intention to deal in drugs, for
instance, presence in an area known for drug dealing, possession of
weighing gadgets, approaching persons to sell drugs or the
actual
sale of drugs.
[9] The Court accepts that the Appellant knew that it
was unlawful to possess drugs. He buried the drugs in the garden at
the instruction
of his brother with the intention of protecting his
brother. Section 1 of the Act, extends the definition of possession
to include
keeping drugs on behalf of someone else. He knew where
they were buried and possessed the necessary intention. There is no
evidence
on the trial record to indicate that such intention extended
beyond that of possession. The Court has to consider all the
evidence
as a whole to determine whether the State has excluded a
reasonable possibility that the Accused is not guilty, even if there
is
a possibility that the Accused’s version regarded in
isolation is true. Evidence may overwhelmingly establish his guilt,
as was held in
S v Bruiners en v Ander
1998
(2) SACR 432
(SE).
The same should apply in the opposite, the possession of drugs by
the Accused in isolation from other factors that indicate
his guilt,
should not have been taken in isolation as an indication that he is
guilty of dealing in drugs.
[10] The learned Magistrate, with respect, should have
been mindful of the application of the basic legal principles and
that no
inference could have been drawn from the possession by the
Accused that he is dealing in drugs. Culpability in the form of
intention
is required for this offence as stated in
S v
Collett
[1991] ZASCA 33
;
1991 (2) SA 854
(A).
[11] The Appellant’s role and possession came only
in the hiding of the drugs, for a very short of time period, on
behalf
of his brother.
[12] There is sufficient evidence on the trial record
that the
Appellant was in possession and in full control of the
drugs at the time of his arrest; that he had knowledge that it is
unlawful
to possess drugs and that he knew that what he was burying
were drugs, irrespective of that he had no knowledge that it was
ecstasy
and cocaine. The Court is satisfied that the State fully
established all the elements for possession of drugs in this matter.
The trial Court should, therefore, have found him guilty of
possession rather than dealing in drugs.
[13] We also conclude that there was an unnecessary
splitting of the charges in this matter. There should have been only
one count
of dealing in drugs and one alternative count to the main
charge. This view was held in
S v Deidricks
1984 (3) 814 (P)
when the Court ruled that when an Accused is charged for dealing in
both substances at the same time, same place,
and the same occasion
with the same intention, it would amount to a duplication of
convictions, which is commonly referred to as
splitting of charges.
We are satisfied that the Appellant has succeeded in
proving that he did not deal in drugs and a more appropriate verdict
would
be that of being found in possession of drugs.
SENTENCE
[14] Having changed the verdict in this matter, we have
taken into account the following factors in assessing sentence.
(a) The conviction on possession of drugs is a very
serious offence on its own. The Appellant’s brother is not the
only person
who gets affected by the use of drugs, but drugs have an
adverse on the entire community.
(b) We have taken into account the personal
circumstances of the Appellant, which are as follows: he is 45 years
old, he is employed
as a boilermaker’s assistant, a widower, he
only has a standard six (6) education, and has two children, both who
are 21
years old
(c) A pre-sentencing report has recommended correctional
supervision due to his clean record, age and ill health due to the
HIV
infection.
(d) It is submitted on his behalf that there is no need
to remove him from society and that correctional supervision can be
an appropriate
sentence in the circumstances.
The pre-sentencing report has revealed that the
Appellant has a history of smoking dagga and has reframed from
smoking same for
the past two years.
[15] The HIV status of the Accused which leads to the
development of the Acquired Immunodeficiency Syndrome (AIDS) reduces
a person’s
life expectancy. This needs to be taken into
account in the consideration of his sentence, as the Appellant has a
low CD4 count.
[16] In
S v Cloete
1995 (1) SACR 367
(W) and S v
C
1992 (2) SACR 503
(T) it was held that a Court must take into
account a convicted person’s ill-health in considering an
appropriate sentence
and how it may relate to the effect of the
completed sentence. We accept that a custodial sentence may be
harsher for the Appellant
in view of his illness.
[17] There is evidence which has been placed before this
Court which strongly supports the application for correctional
supervision
despite the availability of such treatment in prison.
However, the Court emphasises that HIV is not a slate to write crime
off
and that it does not enjoy a higher status than other illness.
[18] The pre-sentencing report recommends that he need
not be removed from society permanently, he can serve the community
which
he owes a duty to, and it can assist in his rehabilitation.
[19] The Court accepts that the Appellant is a candidate
for correctional supervision and makes the following order:-
1. The appeal is upheld and the conviction on dealing in
drugs is set aside. It is substituted by the following order:
(a) The Appellant is found guilty of possession of
cocaine and ecstacy drugs:
2. The sentence of the lower Court is set aside and
substituted by the following order:
2.1 The Appellant is sentenced to correctional
supervision for a period of eighteen (18) months in terms of section
276 A (3) (e)
(ii) Act 51 of 1977 on the following conditions:
2.1.1 The Appellant is sentenced to house arrest at
his place of residence at no 33 Greyling Street, Pietermaritzburg
between
the hours 21h00 to 6h00.
2.1.2 The Appellant is confined to the Magistrate
district of Pietermaritzburg.
2.1.3 The Appellant is ordered to perform community
service for a period of sixteen (16) hours per month. The nature of
service
to be determined by the National Institution for Crime
Prevention and Rehabilitation of Offenders (NICRO) in consultation
with
the Department of Correctional Services.
2.1.4 The house arrest referred to in paragraph 2.1.1
shall be subject to the Appellant’s medical practitioner’s
assessment,
should it be necessary that the Appellant is in need of
hospitalisation.
2.1.5 The Appellant shall report to the supervising
officer of the Department of Correctional Service in Pietermaritzburg
once
a month.
2.1.6 Any officer of the Department of Correctional
Service shall have access to the Appellant’s place of residence
at any
time during the period of house arrest for purpose of ensuring
that the Appellant compiles with the terms of this order. His
movements
will be monitored and supervised. Regular evaluation will
ensure that he is upgraded for intensive to a less intensive degree
of supervision or vice versa.
2.1.7 The Appellant shall conduct himself properly at
all times and shall not be convicted of any offence involving
narcotics,
alcohol or drugs.
2.2 The Appellant shall be involved in the following
programmes as recorded in the pre-sentencing report:-
2.2.1 Orientation Programme – this will inform the
Accused of his responsibilities pertaining to the conditions set out
by
the Court;
2.2.2 Life Skills Programme – to assist the
Appellant improve his social functioning; and
2.2.3 Drugs and Alcohol Abuse Programme – to
inform the Appellant of the detrimental effects of alcohol with the
possibilities
of him abstaining from the use of alcohol or drug. He
such have two (2) hurly sessions over or four (4) weeks period.
________________
MBATHA
J
__________________
JAPPIE
J
I
agree, it is so ordered.
Date
of hearing: 06 March 2012
Date
of Judgment: 13 March 2012
For
the Appellant: Ms L. Barnard
Instructed by: Silvis Da Silva & Associates
411 Jabu Ndlovu Street
PIETERMARITZBURG
3201
For
the Respondent: Adv N.B. De Klerk
Instructed by: The Director of Public Prosecution
3
rd
floor – High Court Building
PIETERMARITZBURG