THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: A2024/137608 DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED
..... ~~.(~,.c~ .~ ......
DATE SIGNATURE
In the matter between:
NDUKULA RAISIBE MELDA
MTAMBO FAITH MAKHOSAZANA
and
THE STATE
NEMAVHIDI AJ:
JUDGMEN T
l
First Appellant
Second Appellant
Respondent
Introduction
1. This is an appeal against both conviction and sentence by the First and Second
Appellants , who were convicted in the Regional Court, Kempton Park, on charges of
possession of cocaine, defeating the administration of justice , and theft. They were
sentenced to an effective term of thirteen (13) years' imprisonment. The appeal is with
leave of the trial court.
2. The Appellants , both members of the South African Police Service (SAPS)
stationed at the Organised Crime Unit at OR Tambo International Airport, were charged
together with one Lebogang Paulinah Tshabalala ('Tshabalala') , a former South African
Airways flight attendant. Tshabalala entered into a plea and sentence agreement in
terms of section 105A of the Criminal Procedure Act 51 of 1977 ('the CPA'), was
convicted , and testified as a State witness against the Appellants .
Background Facts
3. The material facts are largely common cause. On 8 March 2013, Tshabalala
arrived from Sao Paulo, Brazil, on flight SA 225. She was found in possession of
cocaine concealed on her person-a body belt containing five (5) compartments of
compressed cocaine , and two (2) cocaine 'bullets' hidden between her breasts. The
discovery was made by SARS Customs officials, Pretty Dlamini (nee Mashile) ('Pretty')
and Dieketseng Beauty Motepe ('Beauty'}, during a body search conducted in Customs
Search Room 2.
4. The customs officials photographed Tshabalala and the contraband using their
personal cellphones (a Samsung and an iPhone). These photographs (Exhibits 'C1' and
'C2') depict Tshabalala with the body belt containing what appears to be five (5) filled
compartments, and two (2) bullets on her chest. Thereafter, Tshabalala was handed
over to the First Appellant, who was on duty with the Second Appellant at the airport.
5. Tshabalala was transported to the SAPS Organised Crime offices at the airport.
There , according to Tshabalala , the Appellants removed some of the cocaine packets
There , according to Tshabalala , the Appellants removed some of the cocaine packets
from the body belt, placed them in a black laptop bag, and instructed the Second
Appellant to remove the bag from the office. Tshabalala testified that the First Appellant
2
promised to assist her with bail and not to oppose her release, in exchange for the
drugs taken. The First Appellant allegedly exchanged cellphone numbers with
Tshabalala for this purpose.
6. The official SAPS photographer, Constable Baloyi, later photographed
Tshabalala and the remaining drugs. Those photographs (Exhibit 'A') depict only one (1)
bullet and two (2) packets of cocaine-a marked discrepancy from the photographs
taken by the customs officials at the scene of the initial discovery.
7. The drugs seized were weighed by the First Appellant, recorded as 1060 grams,
and booked into the SAP13 register. Upon analysis at the Forensic Science Laboratory,
the mass was recorded as 1022.9 grams. The body belt itself, examined by Warrant
Officer Banyini, was confirmed to have five (5) pockets of varying sizes, marked with the
numbers 600, 500, 300, and 250-consistent with the compartments having been filled.
8. Tshabalala was released on bail of R120 000-00, which she sourced from her
family. She later testified that the First Appellant failed to honour the alleged agreement.
Charges against Tshabalala were initially withdrawn, but she was subsequently re
charged and, in terms of her section 105A agreement, received a wholly suspended
sentence on condition that she testify against the Appellants.
9. The Appellants denied any wrongdoing. Their version was that the First Appellant
first observed the drugs on Tshabalala only in her office at the SAPS premises. They
denied that the First Appellant had entered Customs Search Room 2, denied any theft
of drugs, denied the existence of a black laptop bag, and denied any exchange of
cellphone numbers or agreement to assist Tshabalala.
10. The trial court rejected the Appellants' version as false and improbable, accepted
the evidence of Tshabalala , Pretty, and Beauty as credible in material respects, and
convicted the Appellants as charged. They now appeal.
3
Grounds of Appeal
11. The Appellants' heads of argument raise numerous grounds of appeal, which
may be summarised as follows:
a. That the trial court erred in finding that the State had proved its case beyond
reasonable doubt;
b. That the trial court misdirected itself in its assessment of the credibility of the State
witnesses, particularly Tshabalala (a single witness and accomplice), and in its
treatment of contradictions in the evidence of Pretty and Beauty;
c. That the trial court adopted a compartmentalised approach to the evidence and failed
to consider the mosaic of proof in its totality;
d. That the trial court erred in finding that the Appellants' version was not reasonably
possibly true;
e. That the trial court gave insufficient weight to the absence of corroborative
evidence, such as CCTV footage and cellphone records;
f. That the trial court erred in its application of the principles relating to circumstantial
evidence as set out in R v Blom 1939 AD 188;
g. That the trial court misdirected itself in its criticism of the First Appellant's evidence
regarding her training, the handling of exhibits, and the discrepancy in weight;
h. That the trial court erred in its application of the doctrine of common purpose; and
i. That the sentence of thirteen (13) years' imprisonment is shockingly inappropriate and
induces a sense of shock.
Evaluation of the Appeal Against Conviction
Principles on Appeal
4
12. This court's power to interfere with the findings of fact of a trial court are
circumscribed. An appeal court will not readily disturb findings of fact and credibility
made by the trial court, which had the advantage of observing the witnesses testify.
Intervention is justified only where the trial court misdirected itself on the facts, or where
its findings are so unreasonable that no court could have come to that conclusion. (S v
Francis 11991 (1) SACR 198 (A); S v Hadebe and Others 21998 (1) SACR 422 (SCA)).
13. In S v Hadebe at 426E-H, Marais JA quoted with approval the following dictum
from Moshephi and Others v R (1980-1984) LAC 57:
"The question for determination is whether, in the light of all the evidence
adduced at the trial, the guilt of the Appellants was established beyond
reasonable doubt. The breaking down of a body of evidence into its component
parts is obviously a useful aid to a proper understanding and evaluation of it. But,
in doing so, one must guard against a tendency to focus too intently upon the
separate and individual parts of what is, after all, a mosaic of proof. Doubts about
one aspect of the evidence Jed in a trial may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again together
with all the other available evidence. That is not to say that a broad and indulgent
approach is appropriate when evaluating evidence. Far from it. There is no
substitute for a detailed and critical examination of each and every component in
a body of evidence. But, once that has been done, it is necessary to step back a
pace and consider the mosaic as a whole. If that is not done, one may fail to see
the wood for the trees. ''
14. The crisp issues for determination were whether the Appellants had stolen a
portion of the cocaine seized from Tshabalala, and whether they were in unlawful
possession thereof and had thereby defeated the administration of justice .
The Evidence of Tshabalala: Single Witness and Accomplice
The Evidence of Tshabalala: Single Witness and Accomplice
1 1991 (1) SACR 198 (A)
2 1998 (1) SACR 422 (SCA)
5
15. The State's case rested, in part, on the single evidence of Tshabalala, who was
both a single witness and an accomplice. It is trite that a court may convict on the
evidence of a single competent witn~s§ (section 208 of the CPA). In S v Sauls and
Others3 at 180E-G, Diemont JA stated:
"There is no rule of thumb test or formula to apply when it comes to a consideration of
the credibility of the single witness. The trial judge will weigh his evidence, will consider
its merits and demerits and, having done so, will decide whether it is trustworthy and
whether, despite the fact that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the truth has been told."
16. The evidence of an accomplice must be approached with caution. In S v
Hlapezu/a and Others4 1965 (4) SA 439 (A) at 440D-E, Holmes JA identified the
dangers inherent in accomplice evidence:
"First, he is a self-confessed criminal. Second, various considerations may lead
him to falsely implicate the accused, for example, a desire to shield a culprit or,
particularly where he has not been sentenced, the hope of clemency. Third, by
reason of his inside knowledge, he has a deceptive facility for convincing
description-his only fiction being the substitution of the accused for the culprit."
17. The trial court was acutely aware of the cautionary rule. It expressly warned itself
of the dangers of relying on a single witness and an accomplice. It did not accept
Tshabalala's evidence uncritically; it identified flaws in her testimony, including her initial
inability to recall certain details, her concession regarding the search in the First
Appellant's office, and her belated evidence concerning the 'small phone'. Yet, despite
these shortcomings, the trial court found that her core account-that drugs were
removed from her possession at the instance of the Appellants-was reliable and
corroborated by objective evidence.
3 1981 SA (3) of SA 172(A) at 180 E-G
4 1965(4) SA 439 (A) at 440D -E
6
Corroboration of Tshabalala's Evidence
18. In S v Gentle 52005 (1) SACR 420 (SCA) at para [18], Cloete JA stated:
"By corroboration is meant other evidence which supports the evidence of
the complainant and which renders the evidence of the accused less
probable, on the issues in dispute."
19. In S v B 61976(2) SA 54 (C) at 598, It was said that: "Corroboration is
independent evidence which confirms the testimony of a witness. Such confirmation
may be either "in a material respect" or else on a point tending to prove the guilt of the
accused---".
20. The corroborative evidence in this matter was substantial and compelling. It
included:
a. The photographic evidence: Exhibits 'C1' and 'C2' (taken by Pretty and
Beauty at the search room) depict Tshabalala with a body belt containing five (5)
filled compartments and two (2) bullets on her chest. Exhibit 'A' (taken by
Constable Baloyi at the SAPS office) depicts only two (2) packets and one (1)
bullet. This objective, contemporaneous visual record irrefutably establishes that
the quantity of drugs present at the search room was greater than the quantity
later photographed and booked into evidence.
b. The body belt: Exhibit '01 ' and 'D2' confirmed that the belt had five (5)
pockets of varying sizes, marked with weights. This was consistent with
Tshabalala's testimony that she had five (5) packets in the belt and two (2)
bullets, and inconsistent with the Appellants' version that only three (3) items
were present.
c. The conduct of the First Appellant: She removed the drugs from their
individual wrappings and crushed them before sealing them in a single forensic
bag. This was an irregularity. Her explanation that this was 'according to
5 2005 (1) SACR 420 (SCA) at para[18]
6 1976(2) SA 54 (C) at 59B
7
procedure' was unsupported and. in the absence of any confirmatory evidence
from her superiors (Captain Ngwenyarna or Constable Baloyi), was correctly
rejected by the trial court as an attempt to obscure the original quantity.
d. The weight discrepancy: The First Appellant recorded the mass as 1060
grams; the forensic laboratory recorded 1022.9 grams. The First Appellant could
offer no explanation. The suggestion, raised belatedly in re-examination, that the
scale may not have been calibrated, was an unconvincing afterthought,
particularly given that the forensic report (Exhibit 'P') was admitted as a formal
admission in terms of section 220 of the CPA. In S v Van der Westhuizen 72011
(2) SACR 26 (SCA), it was held that a formal admission cannot be contradicted
by an accused without a proper explanation for resiling therefrom. No such
explanation was proffered.
e. The exclusion of Pretty from the photographing process : The First
Appellant denied Pretty access to her office when Constable Baloyi was taking
photographs. Her explanation-that this was 'procedure'-was , again,
unsupported. This conduct, viewed in context, points to a consciousness of guilt
and a desire to ensure that no independent witness observed the true state of the
exhibits.
The Presence of the First Appellant in the Search Room
21 . The trial court's finding that the First Appellant had entered Customs Search
Room 2 was reasonably made. While there were contradictions between Pretty and
Beauty regarding the exact sequence of events and the use of the iPhone, these were
not, in the overall context, material. What was material and consistent was that both
Pretty and Tshabalala placed the First Appellant inside the search room. The
photographs depict hands-clearly not those of Pretty or Beauty-hold ing down the
body shaper.
7 2011(2) SACR 26 (SCA)
8
22. In S v Mkohle 81990 (1) SACR 95 (A.) "Contradictions per se do not lead to the
rejection of a witness's evidence, they may simply be indicative of an error. Not every
error made by a witness affects his credibility: in each case the trier of fact has to make
an evaluation, taking into account such matters as the nature of the contradiction, their
number of importance, and their bearing on other parts of the witnesses' evidence. "In S
v Mafaladio 92003 (1) SACR 583 (SCA), it was emphasized that discrepancies between
different versions of the same witness must be handled with circumspection, taking into
account factors such as the circumstances in which the statements were given and the
witness's opportunity to explain the discrepancies. The trial court considered these
factors and found that the contradictions were not fatal to the State's case.
23. The trial court was entitled to conclude, on a balance of probabilities, that the
hands depicted belonged to the First Appellant. The absence of her name in Exhibit 'G'
(the Body Search Book) and the absence of CCTV footage do not, in themselves,
render that inference unreasonable. In S v Khumalo 102019 JDR 1385 (GP) at para 63,
it was held that while it may be desirable to have certain evidence, its absence does not
automatically lead to a negative inference where other evidence is sufficient.
Circumstantial Evidence
24. In R v Blom 11 1939 AD 188 at 202-203, the court enunciated the two card in al
rules of logic governing circumstantial evidence:
"The inference sought to be drawn must be consistent with all the proved facts. If
it is not, the inference cannot be drawn. The proved facts should be such that
they exclude every reasonable inference from them save the one sought to be
drawn."
25. The trial court correctly applied these principles. The proved facts-the
photographic discrepancy, the structure of the body belt, the irregular handling of the
8 1990 (1) SACR 95 (A)
9 2003 (1) SACR 583 (SCA)
10 2019 JDR 1385 (GP) at para 63
8 1990 (1) SACR 95 (A)
9 2003 (1) SACR 583 (SCA)
10 2019 JDR 1385 (GP) at para 63
11 1939 AD 188 at 202-203
9
exhibits, the weight discrepancy, and the exclusion of Pretty from the photographing
process-were all consistent with the inference that the Appellants had stolen a portion
of the drugs. These facts excluded any reasonable inference other than guilt.
Mutually Destructive Versions
26. The trial court correctly applied the principles in Stellenbosch Farmers' Winery
Group Ltd & Another v Martell ET Cie and Others 122003 (1) SA 11 (SCA) in evaluating
mutually destructive versions. At 141-150, Nienaber JA stated:
"To come to a conclusion on the disputed issues a court must make findings on
(a) the credibility of the various factual witnesses; (b) their reliability; and
(c) the probabilities."
27. The trial court weighed the credibility of the witnesses , the reliability of their
evidence, and the inherent probabilities. It found the Appellants' version to be
improbable in several material respects:
a. That Pretty and Beauty, having discovered the drugs and photographed
them, would have had the opportunity or motive to steal any portion
themselves , is highly improbable. They immediately reported the find,
handed Tshabalala and the drugs (intact) to the police, and had no
further access to the exhibits.
b. That the First Appellant, an experienced police officer trained in exhibit
handling, would, in the ordinary course, remove drugs from their original
packaging and crush them, is improbable and, on her own admission,
contrary to proper procedure.
c. That the First Appellant, having allegedly committed no wrongdoing,
would deny Pretty access to her office during the photographing process,
is inexplicable on her version but entirely consistent with the State's case.
u 2003 (1) SA 11 (SCA)
10
d. That Tshabalala, facing a charge of dealing in cocaine (for which she
received a wholly suspended sentence), would falsely implicate two police
officers with whom she had no prior animosity, is improbable in the
extreme. Her plea agreement required her to testify 'frankly and
honestly'. A deliberate fabrication would have exposed her to the risk of
prosecution for perjury and the revocation of her suspended sentence.
The Appellants' Evidence
28. The trial court's criticism of the First Appellant's evidence was justified. Her
testimony regarding her training was equivocal and evasive. In S v Singh 131975 (1) SA
227 (N), "[l}t would perhaps be wise to repeat once again how a court ought to approach
a criminal case on fact where there is a conflict of fact between the evidence of the
State witnesses and that of an accused. It is quite impermissible to approach such a
case thus: because the court is satisfied as to the reliability and the credibility of the
State witnesses that, therefore, the defence witnesses, including the accused, must be
rejected. The proper approach in a case such as this is for the court to apply its mind
not only to merits and the demerits of the State and the defence witnesses bur also to
the probabilities of the case. It is only after so applying its mind that a court would be
justified in reaching a conclusion as to whether the guilt of an accused has been
established beyond all reasonable doubt."
29. The First Appellant's denial of having been trained in exhibit handling was
immediately contradicted by her subsequent admission. Her inability to explain the
weight discrepancy, and her reliance on an unsubstantiated claim of 'procedure' to
justify the crushing of the drugs, undermined her credibility. The trial court, having
observed her demeanour, was best placed to assess her veracity.
30. The trial court correctly concluded that there was no reasonable possibility that
the Appellants' version might be true. The incriminating evidence was overwhelming,
the Appellants' version might be true. The incriminating evidence was overwhelming,
and the Appellants' version was so improbable that it could not reasonably possibly be
true.
13 1975 (1) SA 227 (N)
11
Common Purpose
31. The Second Appellant's evidence was largely corroborative of the First
Appellant's. Her conviction was not based solely on the evidence of Tshabalala, as
contended, but on her active participation in the common purpose. She was present in
the office. She was sent to fetch the laptop bag. She left the office with it. She made no
effort to report any irregularity. Her conduct manifested an active association with the
theft.
32. In S v Safatsa and Others 141988 (1) SA 868 (A) at 896a-b, it was held:
"In the present case, on the facts outlined earlier, there can be no doubt, in my
judgment , that the individual acts of each of the six accused convicted of murder ·,
manifested an active association with:fh.e acts of the mob which caused the
death of the deceased. These accuse_d shared a common purpose with the
crowd to kill the deceased and each Qf them had the requisite do/us in respect of
his death. Consequently , the acts of the .mob which caused the deceased's death
must be imputed to each of these accused. "
33. In S v Mgedezi 151989 (1) SA 687 (A), the court set out the prerequisites for
liability on the basis of common purpose in the absence of a prior agreement: presence
at the scene, awareness of the assault, intention to make common cause, manifestation
of such intention by some act of association, and the requisite mens rea. These
prerequisites were satisfied in respect of the Second Appellant.
The Absence of CCTV Footage and Cellphone Records
34. The Appellants placed much emphasis on the absence of CCTV footage and
cellphone records.
35. The State is not obliged to lead evidence that is not essential to prove its case.
The evidence that was led was sufficient. The failure to secure the 'small phone' alleged
by Tshabalala, and the absence of corroborating cellphone records, were matters going
14 1988 (1) SA 868 (A) AT 896a-b
15 1989 (1) SA 687 (A)
12
to the weight of her evidence, which the trial court properly assessed. The court was
entitled to find that these omissions did not fatally undermine the State's case,
particularly in light of the overwhelming objective corroboration.
The Appellants' Reliance on S v Doorewaard
36. The Appellants' reliance on S v Doorewaard & Another 162021 (SA) 235 (SCA) is
misplaced. In that matter, the single witness was found to have deliberately fabricated
evidence, and his testimony was contradicted by objective forensic evidence. In the
present matter, Tshabalala's core account is powerfully corroborated by .objective,
contemporaneous documentary and photographic evidence. The trial court did not, as
in Doorewaard, 'far too readily' accept the evidence of a single witness. It subjected it to
rigorous scrutiny and found it to be reliable.
Conclusion on Conviction
37. Having considered the record and the submissions of counsel, I am satisfied that
the trial court committed no misdirection of fact or law. Its findings of fact were
reasonable and supported by the evidence. Its credibility findings are unassailable. Its
application of the cautionary rules relating to single witnesses and accomplices was
proper. Its evaluation of the circumstantial evidence was consistent with the rules in R v
Blom. The conclusion that the State had proved the guilt of the Appellants beyond
reasonable doubt is inescapable.
38. The appeal against conviction cannot succeed.
Evaluation of the Appeal Against Sentence
Principles on Sentencing Appeals
16 2021 (SA)235 (SCA)
13
39. It is trite that sentence is a matter for the discretion of the trial court. An appellate
court will not interfere unless the sentence ;s vitiated by a material misdirection or is so
disproportionate or shocking that no reasonable court would have imposed it. ( S v
Pieters 171987 (3) SA 717 (A); S v Ma/gas 182001 (2) SA 1222 (SCA)).
40. In S v Ma/gas at para 12, Marais JA stated:
"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."
41. In Director of Public Prosecutions v Mgoma 192010 (1) SACR 427 (SCA) at432b
c, Bosielo JA held:
"For a sentence to be appropriate it must be fair to both the accused and society.
Such a sentence must show a judicious balance between the interests of the
accused and those of society. "
The Zinn Triad
42. In S v Zinn 201969 (2) SA 537 (A), the court established the triad of factors to be
considered in sentencing: the crime, the offender, and the interests of society.
43. The crime: The Appellants were convicted of serious offences. Possession of a
significant quantity of cocaine (approximately 1400 grams) is, in itself, a grave offence,
as recognised by the Legislature in prescribing a maximum sentence of fifteen (15)
years' imprisonment in terms of section 17 of the Drugs and Drug Trafficking Act 140 of
1992.
17 S v Pieters 1987 (3) SA 717 (A)
18 2001 (2) SA 1222 (SCA)
19 2010 (1) SACR 427 SACR 427 (SCA) AT 432b-c
20 1969 (2) SA 537 (A)
14
44. In S v Jiminez 21 2003 (1) SACR 507 (SCA), the court upheld a sentence of 12
years' imprisonment for dealing in 653.4 grams of cocaine, stating that drug trafficking
inevitably results in grave harm to others and that courts should ensure that sentences
have the requisite deterrent effect.
45. We must not allow ourselves to be dictated to by what Holmes JA termed
'maudlin sympathy' for the appellant. The type of offence of which the appellant stands
convicted has the potential to ruin the lives of families in South Africa.
46. offences of theft and defeating the administration of justice, committed by police
officers against exhibits in a criminal case, strike at the very heart of the criminal justice
system. The Appellants did not merely steal property; they stole evidence destined for
court, thereby undermining the prosecution of a serious drug offence and compromising
the integrity of the investigative process.
47. In S v Jwara and Others 222015 (2) SACR 525 (SCA) at para 1, Gorven AJA
stated:
"Quis custodiet ipsos custodes? "(Who will guard the guards themselves? Or
who watches the watchmen?) Thus enquired the satirist Juvenal in his poem,
attempting to enforce moral behaviour. Since Plato this phrase has been used to
lament the corrosive effect of corrupt police and judicial officials. When Captain
Sizane, the investigating officer in this ,:natter, stumbled on a reference to the first
appellant being involved with a suspected manufacturer of substances
proscribed under the Drugs an:d Drug Trafficking Act, he was confronted with just
such corrupt behaviour.
48. In S v Selebi (SS25/2009) [201 O] ZAGPJHC 52, Joffe J referred to the statement
in S v Shaik & Others 232007 (1) SACR 247 (SCA) at para 223:
21 2003 (1) SACR 507 (SCA)
22 2015 (2) SACR 525 (SCA) at para 1
2~ 2007 (1) SACR 2477 (SCA) at para 223
15
"The seriousness of the off enc~ of corrupt'on cannot be over emphasized . It
offends against the rule of law and the principles of good governance. It lowers
the moral tone of a nation and negatively affects development and the promotion
of human rights. As a country we have travelled a long and tortuous road to
achieve democracy. Corruption threatens our constitutional order. We must make
every effort to ensure that corruption with its putrefying effects is halted. Courts
must send out an unequivocal message that corruption will not be tolerated and
that punishment will be appropriately severe."
49. When those entrusted with the enforcement of the law become its violators,
public confidence in the justice system is eroded. This court must send a clear message
that such conduct will not be tolerated.
50. The offender: The trial court properly had regard to the personal circumstances
of the Appellants. The First Appellant is 45 years old, married with three minor children,
a first offender, employed by SAPS ~ince 2Q04, and studying towards an LLB degree .
• • ,.1
The Second Appellant is also 45 years old, a first offender, employed by SAPS since
I
2004, and responsible for the upkeep of her adult son and five-year-old grandson.
'
51. These are factors that traditionally weigh in mitigation. However, they must be
balanced against the gravity of the offences and the interests of society.
52. In S v Chetty 242013 (2) SACR 142 (SCA), Plasket AJA held that the fact that
incarceration would cause collateral harm for the offender's children was not sufficient to
render that sentence inappropriate when incarceration would otherwise be appropriate.
53. In Hewitt v S (637/2015) 25[2016] ZASCA 100 (unreported) at para 15, Maya DP
stated:
" The appellant 's poor health is certainly a matter which must be considered . And
so is his advanced age. However, as the court a quo observed, he does not
suffer from a terminal or incapacitating illness as he leads an active life, which
suffer from a terminal or incapacitating illness as he leads an active life, which
24 2013 (2) SACR 142 (SCA)
zs [2016) ZASCA 100 (unreporte d) at par a 15
16
includes personally and successf u/Jy tunning a commercial citrus farm, and is
even able to drive his employees home daily. It was also not disputed that the
medical treatment and care that he requires would be available in
prison.lm Regarding his age, whilst courts have considered oldness as a
mitigating factor,lHl it is certainly not a bar to a sentence of imprisonment."
54. The interests of society: In S v Karg 261961 (1) SA 231 (A) at 236, Schreiner JA
held:
"It is not wrong that the natural indignation of interested persons and of the
community at large should receive some recognition in the sentences that courts
impose, and it is not irrelevant to bear in mind that if sentences for serious crimes
are too lenient, the administration of justice may fall into disrepute and injured
persons may incline to take the law into their own hands."
55. Society expects serious sentences for serious offences, particularly where those
offences are committed by poliG~ officefis who have betrayed the trust reposed in them.
Aggravating Factors
I ' 1 , '
56. The trial court correctly identified the following aggravating factors:
a. The prevalence of drug-related offences in the vicinity of OR Tambe
International Airport;
b. The significant quantity of cocaine involved (approximately 1400 grams);
c. The Appellants' status as polite officers, which carried with it a duty to uphold
the law;
d. The abuse of authority by the Appellants;
e. The dishonesty inherent in the_. offences;
f. The fact that the stolen drugs_ were returned to the streets rather than being
destroyed or used as evidence; .
26 1961 (1) SA 231 (A) at 236
17
g. The fact that Tshabalala was pmsecuted for a lesser quantity of drugs than
she had actually imported;
h. The theft of exhibits from the SAPS, the Appellants' own employer.
The Sentence Imposed
57. The sentence of ten (10) years on each count, with orders for concurrent serving
of portions, resulting in an effective thirteen (13) years• imprisonment, cannot be said to
be shockingly inappropriate.
58. In S v Hightower 271992 (1) SACR 420 (W), the appellant was convicted of
dealing in 220 grams of cocaine, and a sentence of 10 years' imprisonment was
imposed of which 3 years was suspended. In S v Homareda 281999 (2) SACR 319 (W),
the appellant was convicted of dealing in 300 grams of cocaine, and a sentence of 1 0
years' imprisonment was upheld on appeal.
59. The quantity of cocaine involved ir1 the present matter (approximately 1400
grams) far exceeds that in the aforementioned cases. An effective sentence of 13 years'
imprisonment is well within the range of sentences imposed for such offences.
60. The Appellants' comparison with the sentence imposed on Tshabalala is
inapposite. Tshabalala was a first offender who had entered into a plea agreement and
demonstrated genuine remorse by pleading guilty and testifying against her co
perpetrators. Her sentence of a wholly suspended term of imprisonment reflects her
cooperation and her status as a witness, not as a principal offender in the theft of the
drugs. The Appellants were the architects of that theft. Their moral culpability is of an
entirely different order.
Conclusion on Sentence
61 . There is no misdirection in the trial court's approach to sentencing. The sentence
imposed is fair, balanced, and proportionate to the gravity of the offences. It properly
Z1 1992 (1) SACR 420 (W)
28 1999 (2) SACR 319 (W)
18
t I
balances the personal circumstances of the Appellants with the seriousness of the
crimes and the interests of society.
62. The appeal against sentence ca not succeed.
Order
63. In the result, the following order is rnade:
a. The appeal against conviction is dismissed.
b. The appeal against sentence is dismissed.
c. The convictions and sentences imposed by the trial court are confirmed .
I concur
. '
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
MOTHA J
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES:
For the Appellants: Adv MB Baloyi init 'ructed by. Pule Attorneys
For the Respondent: Adv J M Serepo instructed by Office of the Director of Public
Prosecutions, Johannesburg
Date of Appeal: 09 February 2026
Date of Judgment : 24 March 2026
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