Vyfer v S (CA & R 59/09) [2009] ZANCHC 56 (13 November 2009)

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[2009] ZANCHC 56
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Vyfer v S (CA & R 59/09) [2009] ZANCHC 56 (13 November 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape, Kimberley)
Case
Nr: CA & R 59/09
Case
Heard: 09/11/2009
Date
Delivered: 13/11/2009
In
the matter:
SIVUYILE VYFER
Appellant
versus
THE
STATE Respondent
Coram:
Kgomo JP
et
Mjali AJ
JUDGMENT ON
APPEAL
KGOMO
JP:
The
appellant is a 27 year old unmarried mal
e
prison warder who was deployed to the Juvenile Section of the
Kimberley Correctional Services facility. He was arraigned on
a
charge of the unlawful possession of dagga (cannabis) in
contravention of
s4(b)
of the
Drugs and Drug Trafficking Act, 140 of
1992
. He was legally represented by a privately funded attorney, Mr
Ntuli. He pleaded not guilty and proffered in plea-explanation

(s115 of the Criminal Procedure Act, 51 of 1977 (“the CPA”) that
the Cannabis (0,58kg) was located in his togbag, slung over
his
back, but that he was unaware of its existence.
Notwithstanding
his protestation of innocence the appellant was convicted of the
illegal possession of the
prohibited
substance and sentenced to serve one year imprisonment; with no
portion suspended and without the option of a fine.
The appeal to
this Court is with the leave of the Court a quo (the trial court)
against the sentence only. It need be mentioned
that at the
inception of the trial the State specifically abandoned the main
charge relating to dealing in drugs which charge
was consequently
not put to the appellant.
The
evidence, adduced through several prison warders, established beyond
a shadow of doubt that the togbag was used as a decoy,
whereas
the cannabis was stashed in appellant’s trouser pockets. With
this stuff was discovered several little plastic bags with which

pharmacies and medical practitioners dispense tablets. The
implication is evidently that the tablet-pockets were meant for
packaging and distribution to the inmates, predominantly, if not
exclusively juveniles. This is seriously aggravating.
Also
aggravating is that the appellant was in a position of trust and in
a privileged position
,
having been in secure and gainful employment whereas upwards of 30%
of the employable South African populace are unemployed
and
job-hunting. This position of trust he has now betrayed,
with
some dire consequences for his future employability
.
The underlined phrase counts as a mitigating feature.
At
27 years of age, with a long future ahead, the appellant is a first
offender.
He has a common law wife with whom he has two minor children. He
also has a third child with another woman. He maintains all
these
dependants.
The
M
agistrate
cannot be faulted, as Adv I J Nel for the appellant submitted that
we ought to, for holding it against the appellant
that he showed no
remorse. He did not. On the contrary he was caught red-handed and
in a foolhardy manner implicated an innocent
third party falsely.
The Magistrate was fully entitled to draw an adverse inference
against appellant in light of these factors.
A constitutional right
to remain silent must not be placed on par with an accused person
giving false testimony.
On
a conspectus of all the information
at our disposal it is my view that the mitigating factors and the
appellant’s personal circumstances are weighty enough to
have
persuaded the Magistrate to incline towards keeping the appellant
out of jail. I can’t see how he will succeed in retaining
his
job. This in itself will affect him and his dependants adversely
and imprisonment will not benefit him, his dependants,
the State or
the community at large. On this basis we will interfere and assess
sentence afresh mindful of what was said in
S
v De Jager and Another
1965(2) SA 616 (A) at 628H – 629B.
The
appellant is out on R3000-00 bail. This could be paid towards a
fine, but R3000-00 will not reflect the moral
turpitude
of this serious crime sufficiently. R6000-00 or six month’s
imprisonment and a further six months imprisonment would
be more
appropriate.
I
draw attention to the cavalier attention, if a
ttention
that be, that was paid by the Clerk of the Kimberley District Court
to the “Cover Sheet for Appeals Cases (J111)”,
a legal document.
The various columns are incorrectly completed and are misleading.
In the column “Appears in Person” the
block “yes” was
ticked. The appellant enjoyed legal representation throughout and
even his papers were so prepared. The
bail receipt shows that he
was admitted to bail on 26 March 2009. The Cover Sheet bears the
Clerk of the Court’s date stamp
of 13 July 2009. This shows utter
nonchalance on the part of this official because he thumb-sucked.
However, in terms of the
Rules of Court it is the appellant’s
attorney who bears ultimate responsibility to see to it that the
record is in order.
This should not be repeated. The Chief
Magistrate must be made aware.
In
the result I make the following order
:
1. The appeal succeeds
to the following extent. The sentence of 12 (twelve) months
imprisonment is set aside and substituted with
the following:
“
The
accused is sentenced to pay a fine of R6000-00 (six thousand
rand) or in default of payment to undergo 6 (six) months

imprisonment. He is in addition sentenced to 6 (six) months
imprisonment which is suspended for four years on condition that he

is not convicted of the contravention of s4(b) (possession of drugs)
or s5(b) (dealing in drugs) of the
Drugs and Drug Trafficking Act,
Act
140 of 1992, committed during the period of suspension.”
2. Three
thousand rand (R3000-00) of the fine must be paid within seven (7)
days of the date hereof and the balance in the sum of
three thousand
(R3000-00) is deferred to 15 December 2009.
________________________
F
DIALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I concur.
________________________
G
N Z MJALI
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
Appellant : Adv I J Nel
On
Behalf of:
ANDRÉ
POTGIETER AND ASSOCIATES
For
the Respondent: Adv K M Kgatwe
On
behalf of:
DIRECTOR
OF PUBLIC
PROSECUTIONS, KIMBERLEY