About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 391
|
|
Makambilwa and Others v S (A1046/06, 142/06) [2009] ZAGPPHC 391 (9 October 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL
PROVINCIAL DIVISION]
CASE
NUMBER: A1046/06
APPEAL
NO: 142/06
DATE:
09 OCTOBER 2009
In
the matter between:
T
MAKAMBILWA FIRST
APPELLANT
M
HADIZ L
CHINAKWE SECOND
APPELLANT
L
CHINAKWE THIRD
APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
KEMP.
AJ 5
DECEMBER 2007
ELS,
AJ
INTRODUCTION
[1]
On 22 June 2006 and in the Piet Retie:
Regional Court the Appellants pleaded guilty to a number of charges
of dealing in drugs and
in possession of drugs.
[2]
T
Makambilwa, accused number 2
[Appellant number 1) pLeaded guilty to:
2.1
Dealing in 9 ecstasy tablets, and
2.2
dealing in 0.19 grams of cocaine (half
moon crack cocaine) on 3 November 2004. Both are drugs as described
in schedule 2
part
3 and 2 respectively of Act 140 of 1992 (charge number 5).
[3]
On the same day M Hadiz accused number 3
- Appellant number 2, pleaded guilty to:
3.1 Dealing
in 50 ecstasy tablets; and
3.2
Dealing in 2.18 grams of cocaine (also
known as half moon rock cocaine). Both are drugs as described above
(charge number 1). The
same Appellant pleaded guilty on the same day
to:
3.2.1
Dealing in 210 ecstasy tablets; and
3
.
2.2
d
ealing in 249369 grams cocaine (half
moon rock cocaine) (charge number 8) on 3 November 2004.
[4]
Mr Jungbluth acting on behalf of Appellants 1 and 2 terminated Adv
Smit's mandate to argue the appeals and we were requested
to postpone
their appeals. After consideration we grant the application with the
result that the 1
st
and 2
nd
Appellants' appeals are postponed
sine
die
.
[5]
Appellant Three L Chinakwe did not file heads of argument in time and
we only received the heads on the day when the appeal
was heard. We
decided to condone it since we have read the record and decided that
we should deal with his appeal
[6]
He pleaded guilty to:
6.1
Dealing with 22 ecstasy tablets (charge
number 3); and
6.2
selling 0.34 gram cocaine (half moon rock cocaine) (charge number 4).
[7]
All three the Appellants were sentenced to 8 years imprisonment.
[8]
This appeal is against sentence only.
[9]
It is my opinion that seen the provisions of Section 17(E) of the Act
the Magistrate quite correctly accepted the evidence of
Inspector DB
Lombaard. However the evidence of Riana Phelodia, which obviously
cannot be called an expert, did not take the matter
any further than
factually confirming the widespread use of illegal drugs.
[10]
The statement by the Magistrate:
“
Miskien
moes die Staat die persoon geroep het wat primer met hierdie mense
gewerk het om vir die hof te kom se hoekom is daar hierdie
afleiding
gemaak en hoekom word dit gese."
Record
: Page 120 lines 7 - 9
does
indicate that there is a measure of uncertainty about the prevalence
of the crime and that the evidence of Phelodia should
be carefully
considered.
[11]
For purposes of this crime Appellant No 3 should be considered as
first offenders.
[12]
In my opinion dealing in drugs is a most reprehensible crime.
Sympathy must be had for people who flee their own countries
to avoid
repression and violence but for them to come and sow misery in our
own beloved country should be visited with the penalties
of the land.
[13]
We have carefully considered the sentence of 8 years direct
imprisonment and considered it in comparison to the 25 years that
could have been imposed. We do feel however that in the circumstances
a part of the sentence should have been suspended.
[14]
It follows that we uphold the appeal against the sentence to the
extent that 3 years of the 8 years imprisonment imposed by
the
Magistrate is suspended. The sentence is as follows: 3
rd
Appellant is sentenced to 8 years imprisonment of which 3 years is
suspended for a period of 5 years on condition that 3
rd
Appellant is not found guilty during tne period of suspension of
dealing with drugs as described in Schedule 2 par 2 or 3 in terms
of
Act 140 of 1992.
KEMP,
AJ
I
AGREE,
ELS,
AJ