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1987
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[1987] ZASCA 75
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S v Smith (321/1987) [1987] ZASCA 75; [1987] 2 All SA 440 (A) (26 August 1987)
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the
matter between:
DARRYL WAYNE SMITH
Appellant
and
THE
STATE
Respondent
CORAM
: VILJOEN, NESTADT JJA et STEYN AJA
HEARD
: 25TH MAY 1987
DELIVERED
: 26 August 1987
JUDGMENT
/
STEYN AJA
...
2.
STEYN, AJA
:
On September 6 1985 appellant was found guilty in a Johannesburg Magistrate's
Court of two offences, one of dealing in 3,369 kg of
dagga in contravention of s
2 (a) of Act 41 of 1971 and the other of dealing in 30 /2 Obex tablets in
contravention of s 2(c) of
that Act. It was alleged in the charge sheet that the
tablets contained Phendimetrazine, a dangerous dependence-producing substance.
On the same day he was sentenced to two years' imprisonment on the dagga count
and on the Obex count to the then minimum sentence
of five years' imprisonment.
It was ordered that the sentences run concurrently.
Both offences were committed at appellant's dwelling on the grounds of a
School for Girls, Johannesburg. He was then groundsman at
that school.
He appealed against both convictions and
/sentences
3. sentences to the Witwatersrand Local Division. The ap-peal
was heard on May 26 1986 but dismissed on the same day in a judgment
by
KRIEGLER, J, LUDORF, AJ concurring. Still on the same day appellant was granted
general leave by the learned Judges to appeal
to this Court against the
dismissal of the appeal.
The judgment of KRIEGLER, J on the appeal is learned and thorough. I agree
with his conclusions of fact and of law relating to the
convictions as well as
to the sentences.
But I now have to deal shortly with two matters which were argued in this
appeal by Dr Yutar on appellant's
behalf but which had not been raised in the Local Division.
It was in the first place contended by learned counsel that the affidavit
handed in by the State under sec 212 of Act 51 of 1977 relating
to the presence
of Phendimetrazine in the tablets was fatally defective in that it did not
comply with the provisions of secs
212(4) and 212(8) (a) of the said Act, that it was
/consequently
4. consequently inadmissible and, there being no
other evi-dence as to the nature and contents of the tablets, that the State had
failed to prove that the tablets contained Phendimetrazine or any other
dangerous dependence= producing substance. Counsel relied
for this conten-tion
on the recent and as yet unreported decision on ap-peal of the Eastern Cape
Division in
S v Wolmarans
(a judgment by ERASMUS, AJ in which EKSTEEN, J
concurred). Dr Yutar's concluding submission was that the conviction on the Obex
count
should consequently be set aside. Counsel's submission in this regard
cannot be sustained.
The nature and contents of the tablets were
formally admitted during the course of the trial by the
attorney then
appearing for appellant. The admission
was in the following terms:
"....the tablets in question in regard to
Count 2, the Obex tablets, are
in fact Obex
and they do contain the substance which is
prohibited in the
Schedule "
That substance is obviously the Phendimetrazine mentioned
in
5. in the charge.
The State was thereby relieved of the burden of
proving what the tablets were. The necessity for proof by means of the affidavit
therefore
fell away and it became irrelevant whether it was defective or
not.
Dr Yutar sought to evade this consequence by
contending that appellant's attorney had been misled by
the affidavit into
making the admission, not having
realised that it was defective. There is no
sugges-
tion on the record that such was indeed the case. To
find that it was would be speculation. But even
if the attorney had been so misled it would avail ap-
pellant nought.
There is no suggestion that any mis-
take was made in the analysis of the tablets or in de-
scribing the results thereof in the affidavit. There
is consequently no merit in this additional onslaught
on the Obex conviction.
In the second place Dr Yutar contended that
the
6.
the sentence on the Obex count can and should be ameliora-ted. He argued that
by virtue of the amendment of s 2 of Act 41 of 1971
effected by s 1 of Act 101
of
1986 which did away with the minimum sentence of five years' imprisonment
for.that offence, a discretion was
conferred upon this Court to impose a
lesser sentence and that the circumstances of the case justified that being
done.
The amendment came into force on September 24 1986, more than a year after
appellant's conviction and sentence. But Dr Yutar submitted
that the amendment
had retrospective effect and consequently applied to thi case. He sought to rely
for that contention upon
Stey: Die Uitleg van Wette
, 4th ed, at 100-101;
R v Loots and Another
1951 (2) SA 132
(T) ;
R v Mazibuko
1958 (4)
SA 353
(A);
R v Sillas
1959 (4) SA 305
(A);
S v Ndlovu
1978 (3) SA
829
(T ) ;
S v Thekiso
1978 (4) SA 646
(O) S
v Innes
1979 (1) SA
783
(C); and
S v Mpetha
1985 (3) .
/SA 702 ...
7.
SA 702 (A). None of these authorities avail him. They are all distinguishable
from the present case. The distinguishing feature is
that here the ameliorating
amen ment only came into force after conviction
and
sentence. This Court
dealt with such a situation in
S v Crawford and Another
1979 (2) SA 48
(A) where RABIE JA (as he then was) said the following at 56 B-C:
"Counsel drew our attention to the fact that in terms of an amendment introduced
by s 1 of Act 76 of 1978 a court is no longer
obliged to impose a sentence of five years' im-prisonment for a contravention of
s 2 (a) of the Act if such contravention relates
to
dagga
only. Counsel for both parties suggested that
a lesser sentence than the one imposed by the magistrate would meet the justice
of the
present case and that consideration should be given to the question
whether the amending provision is applicable to the present case.
It seems to be
clear, however, that the provi-sion is not of application to the present case,
and this Court cannot on appeal impose
a sentence which would at the time of the
respondents' conviction not have been a com-petent sentence for the magistrate
to impose."
Et
vid
e
S v Loate
1983 (3) SA 400
(T) at 402 B - 403 C.
/This ...
8. This Court is consequently not
competent to interfere with the sentence on the Obex count.
The appeal is dismissed.
M T STEYN AJA
VILJOEN, JA ) concur
NESTADT, JA )