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[2009] ZAKZPHC 57
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Naidoo v S (AR355/09) [2009] ZAKZPHC 57; 2010 (1) SACR 369 (KZP) (27 October 2009)

IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH
AFRICA
REPORTABLE
AR355/09
SAGREN
NAIDOO Appellant
versus
THE
STATE
Respondent
Judgment
Delivered on 27
October 2009
Steyn J
[1] The appellant, Sagren
Naidoo, was convicted in the Magistrates’ Court Chatsworth on three
(3) counts of dealing in dangerous
dependence-producing substances to
wit heroin also known as diacetylmorphine, contravening section 5(b)
read with sections 1, 13(f),
17(e), 18, 19, 25 and 64 read with
Schedule 2,
Part 111
of the
Drugs and Drug Trafficking Act, 140 of
1992
. All three counts were taken as one for the purposes of
sentence and he was sentenced to imprisonment for a period of 12
years.
[2] The appellant who was
legally represented during the trial pleaded not guilty to all the
charges and offered a bare denial,
when asked for a plea explanation.
The appellant’s conviction was based on the evidence of a
controlled entrapment operation.
[3] With leave of the
Court
a
quo
,
the appellant appeals against his conviction and the sentence
imposed. The foundational ground of the appeal with regard to the

merits, is based on the fact that the learned Magistrate committed a
misdirection when he found that the trap executed in terms
of
section
252A
of the
Criminal Procedure Act, 51 of 1977
1
was lawful and in accordance with the law and that he erred in the
credibility findings made by him. With regard to the sentence
it is
submitted on behalf of the appellant that the Magistrate misdirected
himself when he over-emphasised the interests of society
and failed
to sufficiently take into account the personal circumstances of the
appellant. In addition it is submitted that the
sentence imposed is
startlingly disproportionate, and induces a sense of shock.
The
Law
[4] In
S
v Van Pittius and Another
2
Corbett
J (as he then was) criticised entrapment in the following way:
“The
artificial propagation of crime by means of police traps has “many
distasteful features” (see R v Clever
1967 (4) SA 256
(RA) and the
authorities cited therein) and its justification is based partly upon
the belief on the part of the authorities that
the accused has been
engaged in criminal conduct of a similar nature in the past and is
likely to continue to do so unless checked.
The fact that an accused
has to be importuned several times before agreeing to the criminal
conduct proposed by the trap hardly
indicates a general
predisposition upon his part to commit this type of crime and this
is, generally speaking, not an appropriate
case for an artificially
generated offence. Moreover, this kind of approach offends against
the belief that the trap should be
a fair one and that in general
verbal persuasions should be avoided (see R v Clever (supra at
258)).”
[5] Initially after the
enactment of
s 252A
, in my view, diverse opinions existed with regard
to the admissibility of evidence obtained by a trap. In
S
v Reeding
3
where Bozalek J aligned himself on the onus that rests on the state
with the view expressed by the authors of ‘Commentary on
the
Criminal Procedure Act’, in the following terms:
“The
approach to be adopted in considering the admissibility of trap
evidence and which marries the terms of
s 252A(2)
and
s 35(5)
advocated by Du Toit et al (at 24-134), is to consider, using the
criteria listed in ss (2), whether admission of the evidence
has
without doubt not rendered the trial unfair or is otherwise not
detrimental to the administration of justice. In my view this

standard of proof is appropriate in the context of determining the
admissibility as opposed to the weight of the evidence and moreover

sets the bar too high.
Section 252A(6)
provides instead that an onus
rests on the State to prove the admissibility of evidence on a
balance of probabilities. This, in
my view, is the correct standard
of proof, if Du Toit’s general approach is to be followed.”
4
Our SCA has recently
dealt definitively with the admissibility of evidence obtained
through an entrapment operation in
Kotze
v The State
.
5
In
Kotze,
supra
,
it was decided that the decision as to the admissibility of evidence
should be taken in accordance with the provisions of 252A
in the
light of all the proved facts. In my view, the dictum is sound and in
accordance with our common law and constitutional
jurisprudence. The
court held:
“Whilst
the section refers to the burden being discharged on a balance of
probabilities, it is in my prima facie view incompatible
with the
constitutional presumption of innocence and the constitutional
protection of the right to silence. Those rights must
be seen in the
light of the jurisprudence of the Constitutional Court, in which it
has been held that their effect is that the
guilt of an accused
person must be established beyond reasonable doubt. That a confession
was made freely and voluntarily and without
having been unduly
induced thereto must be proved beyond reasonable doubt and I can see
no practical difference between that case
and the case where a
conviction is based on the evidence of a trap. Each deals with the
proof of facts necessary to secure the
admission of the evidence
necessary to prove the guilt of the accused. In my prima facie view
therefore, and in the absence of
argument, in order for the evidence
of a trap to be admitted, it is necessary that the trial court be
satisfied that the basis
for its admissibility has been established
beyond a reasonable doubt. That was the case here, for the reasons
set out below, so
this issue does not affect the outcome of this
appeal.”
6
(Original footnotes omitted).
[6] The approach of a
court dealing with the admissibility of evidence involving the use of
a trap is succinctly stated by Wallis
AJA in the following words:
“The
section lays down two approaches to the admissibility of evidence
obtained as a result of the use of a trap. Evidence is
automatically
admissible if the conduct of the person concerned goes no further
than providing an opportunity to commit the offence.
If the conduct
goes beyond that the court must enquire into the methods by which the
evidence was obtained and the impact that
admission would have on the
fairness of the trial and the administration of justice in order to
determine whether it should be
admitted.”
7
[7] The discretion to
exclude evidence unconstitutionally obtained has always been part of
our law.
8
Such discretion has been eloquently stated by Lord Steyn in
Respondent
v Latif
[1996] 2 CR App R92 “HL” when he stated:
“The
weaknesses of both extreme positions leaves only one principles
solution. The court has a discretion: it has to perform a
balancing
exercise. If the court concludes that a fair trial is not possible,
it will stay the proceedings. That is not what the
present case is
concerned with. It is plain that a fair trial was possible and that
such a trial took place. In this case the issue
is whether, despite
the fact that a fair trial was possible, the judge ought to have
stayed the criminal proceedings on broader
considerations of the
integrity of the criminal justice system. The law is settled.
Weighing countervailing considerations of policy
and justice, it is
for the judge in the exercise of his discretion to decide whether
there has been an abuse of process, which
amounts to an affront to
the public conscience and requires the criminal proceedings to be
stayed.” (AT 100-101)
9
Our Constitutional Court
pronounced on the admissibility of evidence unconstitutionally
obtained in
S
v Dlamini
;
S v
Dladla
and
Others
;
S v
Joubert
;
S v
Schietekat
.
10
Kriegler J stated it as follows:
“Under
the Constitution the more pervasive and important question is whether
the admission of the resultant evidentiary material
would impair the
fairness of the trial. If it would, the evidence ought generally to
be excluded. If not, there is no basis for
excluding it. There is no
warrant for creating a general rule which would exclude cogent
evidence against which no objection can
be leveled. The trial court
must decide whether it is a valid objection, based on all the
peculiar circumstances of the particular
case, not according to a
blanket rule that would throw out good and fair evidence together
with the bad.”
11
[8] The background to the
case is that Inspector Pillay, a member of the Durban Organised Crime
Unit, received information about
heroin dealing. As a result of the
information obtained he established that the appellant was involved
in illegal trading. He
initiated a project to target the illegal
trading and made application to the Director of Public Prosecutions
in terms of s 252
of the Act. Subsequent to the authority that was
granted he approached inspector Reddy to operate as the undercover
agent in this
covert police operation named Delta Seven. Two
controlled purchases were made on 10 March and 17 March 2006. At the
first purchase
50 loops of heroin was bought at the price of R40 per
loop, in total R2000 was spent. At the second purchase 64 loops of
heroin
was bought.
The evidence of
inspector Pillay was that the third purchased was planned to be the
‘busting operation’. The officers decided
on some signals and a
strategy that should be followed. The agent was given notes to the
value of R3000 that was photocopied prior
to the deal.
Once Pillay received the
pre-arranged signal, he called upon all the officers. The undercover
agent, Reddy, confirmed that the
deal went through but that it had
only been for 25 loops of heroin at R1250. The balance of the money
was handed over to Pillay.
The record reveals that
they then searched the premises of the appellant and when the
appellant was personally searched he had
R1250 in his possession.
When Pillay, however, compared copies of the trap money with the
money in the appellant’s possession
it did not correspond. Through
further investigation R1250 was found in the kitchen cupboard and
when the officer asked who it
belonged to the appellant responded by
saying that it belonged to his wife.
The cash seized from the
cupboard was compared with the copies of the trap money and it
matched. This verification of the notes
was done in the presence of
the appellant and he confirmed that it matched.
[9] Inspector Reddy, the
undercover agent, also testified for the State and confirmed that he
acted as a purchaser of the aforesaid
drugs. He also implicates the
appellant as the dealer and the person who negotiated the price and
who handed him the heroin on
the first and second purchase.
He confirmed that on 31
March he was asked to buy 60 loops of heroin. He was given R3000 and
followed the procedure and strategy
as discussed. When he requested
60 loops, he was informed by the appellant that he could only get 25
loops, since the appellant
was waiting for more stock. He gave the
appellant the money and was asked to return in five minutes, the
appellant even admonished
him that he should be careful because the
police were in the area.
The rest of his evidence
confirms Pillay’s earlier testimony.
[10] The third witness
who testified was Captain Nundlall, who confirmed what was required
of inspector Reddy. He took part in the
exercise on 31 March 2006,
and confirms that Reddy was searched and that the operation
proceeded. He explained that other members
were also involved and how
he contained the crowd gathering at the gate of the appellant’s
property.
The forensic analysis of
the drugs seized was proved in terms of s 212 statements, which were
admitted as correct by the defence.
This concluded all the
witnesses that testified on behalf of the State.
[11] For the defence the
appellant and his wife who was the second accused in the court
a
quo
testified.
In brief, the version
tendered by the Appellant was that he was framed because he had laid
a charge against a certain police officer,
Ajith Ganesh.
According to him, he
never sold any drugs to inspector Reddy and saw the officer for the
first time on the day of his arrest.
It is his version that his
wife, him and his daughter, went to the Sparksport Pharmacy to go and
purchase a ticket and that on
his return, the police arrived at his
premises. They could not enter the premises because of the presence
of his two dogs, and
threats were then made that the dogs would be
shot and he then tied the dogs up to allow the police access onto the
premises. He
was immediately arrested and handcuffed. He denied that
he had any knowledge of any drugs.
The version of the
appellant changed as the trial went by. At the initial stages it was
alleged that there were no drugs and no
trap money found at his
house. The appellant however when he was cross-examined acknowledged
that money was
found
and after further probing questions were put, that the money match
the copies in possession of the police. In essence this evidence
in
cross-examination strengthens the evidence of inspector Pillay who
explained that the money in the cupboard was shown to the
appellant
and that he admitted that it corresponded with the copies in the
police’s possession.
I do not consider it
necessary to evaluate the evidence of the appellant’s wife. She was
acquitted on all counts after the learned
Magistrate considered the
evidence against her, which was distinguishable from the evidence
against the appellant, to be insufficient
to prove beyond a
reasonable doubt that she possessed the drugs found in a wardrobe in
one of the bedrooms.
[12] The judgment shows
that the Magistrate was very much alive to the application of the
cautionary rule and that the single witness,
inspector Reddy’s
evidence should be satisfactory in all material aspects. The record
reflects that he considered all the merits
as well as the demerits of
the case. He carefully dealt with the defence raised by the accused,
namely that he was framed and that
the police conspired against him.
[13] In dealing with the
appellant’s claim of the case being fabricated, the Magistrate
considered it as follows in his judgment:
“Once
again, if this was to be a concocted story, it would have been a
simple exercise. There was money found. It could easily
have been
claimed to match. Pillay goes further. He says that the drugs that
were allegedly recovered in the house were handed
over to him by
another member. That member has not been called but if he wanted to
concoct the story to make sure that it was not
going to go awry he
could have said; “I found the drugs . . .”
[14] In my view the
reasoned judgment albeit an
ex
tempore
judgment shows a careful consideration of all the evidence, a
critical analysis of all the probabilities and a due consideration
of
the merits.
12
The judgment furthermore shows convincingly why the evidence of the
appellant was not credible nor in accord with the probabilities.
My
duty is not to consider whether the judgment is beyond any criticism,
what is required is to consider whether there was any
misdirection
related to the facts or the law. In my view the learned Magistrate
was justified in convicting the appellant.
[15] It is trite law that
if a dispute is left unchallenged in cross-examination the party
calling the witness is entitled to assume
that the unchallenged
evidence may be considered as correct as confirmed in
S
v P
13
and
S v
Boesak
.
14
A number of issues were raised in the appellant’s submissions to
this court that were left unchallenged in the court
a
quo
. I
am however of the view that none of the arguments and submissions
raised by the appellant indicated persuasively that the trial
court
acted irregularly and misdirected itself in a material respect to the
conviction, which would have entitled this Court to
interfere with
the conviction.
15
[16] In my view no
misdirection by the Magistrate have been shown, and none can be
found. The only question that remains is whether
as was argued the
sentence of the appellant is strikingly inappropriate.
Ad sentence
[17] That a distinction
should be made between trafficking in cannabis and more dangerous
drugs like heroin has been recognised
by the SCA in
S
v Xaba and Another
16
when the Court held:
“Cannabis
merchants and heroin merchants thus face the same maximum penalty. No
one will dispute that the contraband dealt in
by the one is more
destructive than that dealt in by the other. In fact, the Act says
so. The lesser evil of cannabis has been
judicially recognized at the
highest level. The worst imaginable case of heroin dealing, involving
consignments worth millions,
would attract a penalty of twenty five
years imprisonment and no more. It is possible that some dagga
dealing operation might evoke
the kind of moral indignation that
would justify an equivalent sentence, but it would have to be a most
unusual case, perhaps involving
a recidivist offender in an organized
crime context.”
17
[18] On behalf of the
appellant Mr Ungerer referred us to a number of cases
18
and argued that comparable sentences were imposed but for far larger
amounts of drugs than in the present matter. In my view each
case
should be decided upon its own facts and its own merits I align
myself with the view express by Van den Heever JA in
S
v Sinden
:
19
“
. . . . it is an idle exercise
to match the colours of the case at hand and the colours of other
cases with the object of arriving
at an appropriate sentence. Each
case should be dealt with on its own facts, connected with the crime
and the criminal.”
It is however
acknowledged that in
S
v Anthony
20
the Court considered the average sentence for dealing in cocaine and
heroin, if such a sentence exists, is a sentence between 5
and 10
years imprisonment. In the present matter the appellant had been
convicted on 3 charges of dealing in heroin. This aspect
shall be
returned to, when I deal with the appropriateness of the imposed
sentence.
[19] To submit that the
Appellant was not a large-scale dealer, under circumstances where the
appellant dealt in dangerous substances
on three different occasions,
is to ignore the culpability of the appellant. The same argument
loses sight of the fact that the
appellant was a persistent drug
dealer.
[20] The
Drugs and Drug
Trafficking Act 140 of 1992
prescribes the penalty for a
contravention of
section 5(b)
(which prohibits dealing in illegal
substances) as being “. . . imprisonment for a period not
exceeding 25 years to both such
imprisonment and such fine as the
court may deem fit to impose.”
The seriousness of the
offence should be gleaned from the penalty clause. In my view,
possession of a drug and dealing
21
in the very same drug should be distinguish the one from the other.
And when a court imposes a sentence it should be considered
that
dealing is a far greater evil and deserving of a harsher sentence
than the mere possession of the drug.
[21] It is trite law that
a court will only interfere with a sentence if a court misdirected
itself in passing sentence. Moreover
a misdirection alone does not
suffice for a court of appeal to interfere, such misdirection should
be material. As expressed by
Trollip JA in
S
v Pillay
:
22
“.
. . it must be of such a nature, degree or seriousness that it shows
directly or inferentially, that the Court did not exercise
its
discretion at all or exercised it improperly or unreasonably. Such a
misdirection is usually and conveniently termed one that
vitiates the
Court’s decision on sentence. That is obviously the kind of
misdirection predicated in the last quoted dictum.”
23
[22] In
S
v Malgas
24
Marais JA elaborated on the test as follows:
“
A court exercising appellate
jurisdiction
cannot,
in the absence of material misdirection by the trial court, approach
the question of sentence as if it were the trial court
and then
substitute the sentence arrived at by it simply because it prefers
it.
To do so would
be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates
its exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing
so, it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance.
As it is said, an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet
be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence
of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that
it can properly be described as 'shocking', 'startling' or
'disturbingly inappropriate'. It must be emphasised that in the
latter
situation the appellate court is not at large in the sense in
which it is at large in the former.
In
the latter situation it may not substitute the sentence which it
thinks appropriate merely because it does not accord with the

sentence imposed by the trial court or because it prefers it to that
sentence. It may do so only where the difference is so substantial
that it attracts epithets of the kind I have mentioned. No such
limitation exists in the former situation.”
25
(my
emphasis).
[23] The relevant
personal circumstances of the appellant raised at sentencing were:
That he is 39 years old
and unemployed. He was previously employed as an administrative
clerk;
That he has been married
for 19 years and has two children 19 and 15 years of age;
That he takes care of an
elderly family member of 70 years who lives with him and his family;
That he has a bond of
R160 000 on the home in Chatsworth and an overdraft facility of R10
000. He experienced financial problems;
That he is a first
offender.
Two sentencing reports
were handed in, the one prepared by the Department of Correctional
Services and the other by a social worker
employed by the Department
of Social Welfare and Population Development, KwaZulu-Natal (Exhibits
E and F).
A reading of the record
and the aforementioned reports reveal that even though Ms Naidoo
recommended a sentence of correctional
supervision in terms of
s
276(h)
of the Act, that the bulk of her report is dedicated to the
appellant’s drug dependency and not the fact that he was convicted

on three counts of dealing in dangerous dependence – producing
substance.
Much of the report by Ms
Naidoo was based on the appellant’s remorse and that he is making
amends in terms of working with the
community to rectify the harm
done. Once more the trial record does not reveal such remorse being
expressed by the appellant.
[24] I have duly
considered the court
a
quo’s
sentencing judgment and am not convinced that the learned Magistrate
had under emphasised the personal circumstances of the appellant.
The
appellant showed no remorse and the personal circumstances listed at
the court
a
quo
cannot outweigh the public’s need for protection.
[25] I am in agreement
with the sentiments expressed by both Olivier JA in
Jimenez
26
and Steyn AJ in
S
v Randall
27
when she remarked in the latter case as follows:
“Drug
dealers are unscrupulous criminals. They will use the weak, the
gullible, and, may I add, the greedy. They are without conscience.

They do not care for those who facilitate their evil objectives, nor
do they have a concern about the lives they ruin by trafficking
in
drugs. Society is at risk should it hesitate to use every legitimate
mechanism at its disposal to protect itself against their
destructive
designs. One of these weapons – and I emphasise that it is only one
of them – is to make it clear to courier and
principal alike, that
the game is not worth the candle and that the price society exacts
for transgressions will not be tempered
by concern for the plight of
the weak and the greedy.”
28
[26] Having considered
all the circumstances of the appellant and the interests of the
community, coupled with the seriousness of
the offence, I am of the
view that the sentence imposed by the court
a
quo
is
not disturbingly inappropriate. The sentence may appear at first
glance to be harsh but once the repetitiveness of the offence
is
considered it is not. I am of the view that the court should be
mindful of the message that it sends out to the public and
other drug
dealers. The appellant was prepared to risk his liberty by profiting
from other people’s addiction to drugs and should
be appropriately
sentenced. Whatever sentence is imposed should be clear and
unequivocal, to sell hard drugs, like heroin, is not
worth any amount
of money.
In my view 12 years
imprisonment imposed by the court was not inappropriate nor
disproportional. There is accordingly no basis
on which to interfere
with the sentence passed.
[27] Accordingly the
appeal against conviction and sentence is thus dismissed.
_____________________________
Steyn J
Jappie J: I agree, it is
so ordered.
_____________________________
Jappie J
1
Hereinafter
referred to as ‘the Act.’
2
1973
(3) SA 814
(C).
3
[2005] ZAWCHC 13
;
2005
(2) SACR 631
(C).
4
Op
cit
at 639-640.
5
[2009]
ZASCA 93
delivered on 15 September 2009.
6
Kotze
supra
at para [20].
7
Kotze
supra
at para [23].
8
The
common law discretion has not been rendered redundant by the
provisions
of
s 35(5) of the Constitution
,
1998. For a discussion of evidence unconstitutionally obtained see
Schwikkard
and Van der Merwe ‘Principles of Evidence’
2
nd
ed, at 168-208.
9
For
a discussion of entrapment under English Law see
JMT
Labuschagne ‘Die
verweer
van lokvinkbetrapping in die Engelse reg: ʼn Nuwe Wending’
THRHR, 297-301.
10
[1999] ZACC 8
;
1999
(7) BCLR 771
(CC).
11
Op
cit at 820A-C.
12
See
S
v Chabalala
2003 (1) SACR 134
(SCA) at 139i-140b.
13
1974
(1) SA 581
(RA) at 582 E-G.
14
[2000] ZACC 25
;
2001
(1) SA 912
(CC) at 924 D-F.
15
See
S
v Hadebe and Others
1997 (1) SACR 64
(SCA) at 645e-f.
16
2005
(1) SACR 435
(SCA); also see
S
v Nkabinde
1993 (1) SACR 6
(A) wherein
the
Court recognised the differentiation in the approach to sentences in
respect of cannabis as opposed to dangerous substances.
17
Op
cit
at para 13.
18
S
v Sebata
1994 (2) SACR 319
(C);
S
v Homerade
1999 (2) SACR 319
(W);
S
v
Jimenez
2003
(1) SACR 507 (SCA).
19
1995
(2) SACR 704
(A).
20
For
reference of this unreported case see
Antwi
v S
[2006] JOL 17440
(W) at
http://www.mylexisnexis.co.za/nxt/gateway.dll
,
accessed 23/10/2009.
21
See
section 1
of the
Drugs and Drug Trafficking Act 140 of 1992
, which
defined
‘deal
in’ as follows:
“‘
deal in’, in relation to a
drug includes performing any act in connection with the transhipment
impartation, cultivation, collection,
manufacture, supply,
prescription, administration, sale, transmission or exportation of
the drug.”
22
1997
(4) SA 531
(A).
23
Pillay
supra
at 535E-F.
24
2001
(1) SACR 469
(SCA).
25
At
para12.
26
Jimenez
v S
[2003] 1 All SA 535
(SCA) at para [21].
27
1995
(1) SACR 559
(C).
28
Op
cit
at 566i-567a.