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[2009] ZAKZPHC 82
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Naidoo v S (AR355/09) [2009] ZAKZPHC 82 (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&rsquo
;,
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
Date of Hearing: 27
October 2009
Date
of Judgment: 27 October 2009
Counsel for the
appellant: Adv R G Ungerer
Instructed by: Tees
Attorneys, Durban
Counsel for the
respondent: Adv T Ramkilawon
Instructed by: The
Director of Public Prosecutions, Durban
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.