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1996
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[1996] ZASCA 7
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S v Abrahams (407/95) [1996] ZASCA 7 (7 March 1996)
Case No 407/95
/MC
IN THE SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between
YUSUF ABRAHAMS
APPELLANT
and
THE STATE
RESPONDENT
CORAM: VIVIER, HARMS JJA et ZULMAN AJA. HEARD: 7 MARCH 1996.
DELIVERED: 7 MARCH 1996
TRANSCRIPT OF REASONS ORALLY DELIVERED IN OPEN COURT ON THURSDAY 7 MARCH 1996, BY VIVIER JA AND CONCURRED IN BY HARMS JA AND ZULMAN
AJA.
2
VIVIER JA:
The appellant was convicted in the Magistrate's Court in
Johannesburg
on a charge of contravening sec 5 (b) of Act 140 of
1992 in that he dealt in 27,417 kilograms of Mandrax containing
methaqualone. He was sentenced to twelve years' imprisonment
plus a further three years' imprisonment which was conditionally suspended for three years. His appeal against the conviction and
sentence to the Witwatersrand Local Division was dismissed and
with the necessary leave he now appeals to this Court against the
sentence only.
The facts which are no longer in dispute are the following.
On 5 August 1993 one Mwandu and one Mulanga, upon entering this country in a truck from
Zimbabwe
through the
Messina
border post, were found by the police in possession of a sealed
packet containing the Mandrax tablets in question. Mwandu
3
carried a piece of paper containing the appellant's name and
telephone number. The tablets were destined to be delivered to the
appellant at an address in
Johannesburg
. The police decided to
proceed with the delivery and for this purpose the tablets were
placed in a large bag which was then locked and placed in the cab
of the truck. Mwandu, who was the driver of the truck, proceeded on his journey accompanied by detective constable
Nkuna. The truck arrived at the given address in
Johannesburg
the next day, after stopping at the Hillbrow Police Station where
constable Ndlovu got into the truck and from where other policemen
followed the truck in a police vehicle. At the given address Mwandu gave a pre-arranged signal by revving the engine of the
truck twice. The appellant came out of the house and Ndlovu handed the bag containing the Mandrax tablets to him. The
appellant turned to go back into the house and was arrested. After
4
being arrested he told the police that the tablets were not for him
but were to be delivered to one Nazir who is the husband of his
step-daughter. His defence that he was merely doing Nazir a
favour and that he was not aware of the contents of the consignment
was rejected by the trial Court and the Court a guo.
The Court a quo described the crime as an inordinately
serious one. I agree. The consignment consisted of about 50 000
Mandrax tablets which would have caused misery and ruin to many.
On the other hand the appellant is a first offender, he is almost
fifty-five years old and the evidence was that he was no more than
a courier. Upon searching the premises where the appellant was
staying the police found the amount of R14 265-73 which the appellant claimed was his own money.
That the appellant must be heavily punished is clear. In my
view a sentence of correctional supervision contended for on his
5
behalf in this Court would not be an appropriate sentence.
At the same time it seems to me that the sentence imposed by
the magistrate is so severe that this Court is entitled to interfere.
In my view justice would be done if a sentence of nine years'
imprisonment is imposed. I should point out, in any event, that the suspended portion of the sentence, coming after such a long term
of imprisonment, seems to me to be inappropriate.
In the result the appeal succeeds. The sentence imposed by
the magistrate is set aside and there is substituted for it a sentence
of nine year's imprisonment.
W. VIVIER JA.