S v Pain (CA&R 67/06) [2006] ZANCHC 33 (19 June 2006)

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[2006] ZANCHC 33
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S v Pain (CA&R 67/06) [2006] ZANCHC 33 (19 June 2006)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA&R 67/06
Heard: 05/06/2006
Delivered:
19/06/2006
PAMELA
ALONA PAIN
APPELLANT
versus
STATE RESPONDENT
Coram
:
KGOMO JP
et
MOKGOHLOA
AJ
JUDGMENT
ON APPEAL
MOKGOHLOA
AJ:
The appellant
appeared in the Magistrate Court Kimberley on the 23
rd
August 2005 on a charge of contravention of section 5(b) of Act 140
of 1992 i.e dealing in dangerous dependence producing substance
namely, cocaine. She pleaded guilty to the main charge and was
convicted and sentenced on the same day to 4 years imprisonment,
2
years of which was suspended for 5 years on certain conditions. The
appellant was legally represented. She now appeals against
both her
conviction and sentence with leave of the High Court.
The appellant’s
statement in terms of Section 112(2) Act 51 1977 reads as follows:
“
I PAMELA
PAIN am an adult female aged 24 years residing at 4 Bowen Street,
Klisserville, Kimberley. I’m the accused in this matter
and
understand the contents of this statement. I made this statement
freely and voluntarily. I plead guilty to the charge put before
me.
The facts are as follows
:
1. On the 30
th
November 2004 I dealt in 0,98 grams of cocaine.
During
this period in my life I showed weak character traits as a result of
the death of my fiancé.
It
was up to me to preserve the lives of our two children.
This
was a very trying period in my life.
I
was very naive and started dabbling in unsavory deals to be able to
secure as an income for my children and I. The Social Workers
were
at that time investigating me and there was a possibility that my
kids were to be taken away from me. As a result of my work’s
circumstances I started using drugs to keep me away from reality.
2. The
Nigerians were the easiest way out as they supplied me frequently
with my drug supplies. On the 30
th
November 2004 Jaco approached me to get 0.98 grams of cocaine for
him. I now know that Jaco was an intelligence agent in this
operation.
In this messed up circle I was merely a runner and not
dealing myself. At this stage the most important thing for is to
keep my
children and put food in their mouths. That night Jackson
the Nigerian sold the cocaine to me and I then handed in over to
Jaco.
At no stage had I gained any profit from these transactions.
At this stage my life is all cleaned up, I seeked help for my drug
abuse and supply the National Intelligence Agency with important
information regarding drug trafficking.
”
The state accepted the factual basis of the appellant’s plea and
she was convicted as charged.
Section 5(b) of
Drugs and Drug Trafficking Act 140 of 1992
states:
“
No person
shall deal in-
any
dependence producing substance; or
any dangerous
dependence- producing substance or any undesirable dependence
producing substance,
unless-
he has
acquired or bought any such substance for medical purposes…
”.
The term ‘
deal
in
’
is further defined in Chapter 1 of the said Act as: “
in
relation to a drug, includes performing any act in connection with
the transshipment, importation, cultivation, collection, manufacture,
supply, prescription, administration, sale, transmission or
exportation of the drug’s
”
In
S
v Solomon
1986
(3) S A
705
(A) Smalberger JA dealt with the question whether an
intermediary or agent who procures a prohibited substance for the
buyer for
the latter’s own use constitutes dealing in those
substances as defined in the previous act. He found that such
person is only
committing an act of acquisition of the substance,
not the supply thereof. He held that it was not the intention of
the Legislature
that a person who buys prohibited or dangerous
dependence producing medicine for his own use thereby performs an
act in respect
of the “
sale
”
or “
supply
”
of such substances within the extended meaning of the definition of
dealing in Section 1 of Act 41 of 1971.
In
S
v Jacksons v Phillips
1990 (2) SACR 505
(E)
Jones
J
stated that:
“
On
a proper understanding of Solomon’s case an intermediary who
acquired and possesses dagga with the object of passing some or
all
of it on to another is not necessarily performing and act in
connection with the sale or supply of dagga. He does not necessarily
change his character from buyer to supplier or dealer once he hands
the dagga over or intends to hand it over to another. Each case
will
depend upon its own facts. Solomon’s case and William’s case
demonstrate that the role of the intermediary must be probed
with
care to see whether he really is a supplier as defined in the Act and
as explained in Solomon’s case, or whether he had merely
acquired
the dagga for another and was merely holding it for the purpose of
giving it to its owner, in which event he is a mere conduit
who
cannot be convicted of more than possession
.”
CONVICTION
In the present
case it is clear that the appellant’s plea amounted to the
admission of possession of this drug and not dealing therein.
Both
counsel for the appellant and the respondent share the same view. It
is also unlikely that the State would succeed in proving
dealing as
the prosecutor has accepted the factual basis of the appellant’s
plea. For this reason the conviction on dealing cannot
stand and
must be replaced with one of guilty on possession.
SENTENCE
The setting aside
of the conviction requires that the sentence be interfered with for
obvious reasons. Both counsel for the State
and the appellant agree
that a sentence of 4 years imprisonment half thereof suspended is too
harsh for a conviction of possession.
The appellant is 26 years old.
She has two minor children who were aged 4 years and 2 years at the
time of the trial. She is a
single parent. She is a first offender
and pleaded guilty and therefore showed remorse. She is also
prepared to give information
to the police regarding drug
trafficking. She is working and earns R2 000.00 per month. She is
currently on bail of R3 000.00.
Taking all these factors into
consideration, I am of the view that the sentence has to be reduced
to fit the offence, the personal
circumstances of the appellant and
take sufficient account of the interest of the society.
Mr Nel for the
appellant has stated that the appellant would be in a position to
pay a fine of R3 000.00. This amount would not
reflect the
seriousness of the crime correctly. The amount has to be doubled.
In addition a further term of imprisonment which
is suspended will
act as a deterrent. Mr Nel has also pointed out that appellant’s
boyfriend will assist her to pay a fine,
and asked for the fine to
be deferred. R3 000.00 must be paid within 10 days of this judgment
and the balance of R3 000.00 not
later than the 31
st
July 2006.
The following
order is made:
The conviction
in dealing in a dangerous dependence producing substance in terms of
section 5(b) of Act 140 of 1992 is set aside
and replaced with:
“Guilty of possession of a dangerous dependence producing
substance in terms of section 4(b) of Act 140 of
1992”.
The existing
sentence of 4 (four) years imprisonment, half of which is suspended,
is set aside and replaced with: “The accused
is sentenced to pay a
fine of R6 000.00 (six thousand rand) or in default of payment to
serve one year imprisonment. She is further
sentenced to an
additional one year imprisonment, which is suspended for five years
on condition that the accused is not convicted
of dealing or
possession of dangerous dependence producing substances
(contraventions of sections 4(b) and 5(b) of Act 140 of 1992),
committed during the period of suspension”.
The R6 000.00
is deferred as follows:
R3 000.00 is
to be paid within 10 (ten) days of this order.
The balance
of R3 000.00 is to be paid on or before the 31
st
July 2006.
___________________
FE
MOKGOHLOA
ACTING
JUDGE
I
concur and it is so ordered:
____________________
FD KGOMO
JUDGE PRESIDENT
For
the Appellant: Adv IJ Nel, instructed by Hugo, Mathewson and
Oosthuizen Inc. Kimberley
For
the Respondent: Adv CG Jansen, Office of the Director of Public
Prosecutions