REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number : 211 / 04
In the matter between
MAVIS XABA FIRST APPELLANT
JOSEPH ZONDO SECOND APPELLANT
and
THE STATE RESPONDENT
Coram
: NAVSA, BRAND and CONRADIE JJA
Date of hearing
: 3 MARCH 2005
Date of delivery
: 18 March 2005
SUMMARY
Contravention of s 5(b) of the Drugs and Drug Traffi cking Act – sentence for dealing in large amount of
dagga – police corrupted in process – sentences of 20 and 18 years nevertheless too severe – 14 years
imprisonment recent high water mark for dagga dealing.
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J U D G M E N T
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CONRADIE JA
[1] Mavis Xaba, the first appellant, and Joseph Zondo, the second appellant, are
brother and sister. They were wholesale cannabis merchants. Bo th were caught in
an entrapment operation so well conducte d that there was no way out for them.
Mavis Xaba pleaded guilty to five charges of dealing, Joseph Zondo pleaded guilty
to three. They were duly convicted. The regional magistra te at Middelburg
sentenced the first to twenty and the s econd to eighteen years’ imprisonment. Two
other accused who had also pleaded guilty we re sentenced to fifteen and ten years’
imprisonment after the regional magistrate had taken all count s together for the
purpose of sentence.
[2] All four the accused appealed their sentences to the Pretoria High Court. The
appeals were dismissed. Much later the tw o appellants applied for leave to appeal.
Condonation for the late applications was granted but leave was refused on
8 October 1998. A long dela y then followed that app ears to have been largely
caused by the disappearance of the original record. Eventually it was reconstructed
to everybody’s satisfaction a nd on petition leave was granted to the appellants to
appeal to this court.
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[3] The size of the family business can be judged by the quantities of cannabis
that the trap, inspector W ilhelm Arendt, at the request of the first appellant,
transported to the homes of the siblings. Eighteen bags of dagga were delivered to
the home of the first appellant. The mass of the first consignment of seven bags is
unknown, but the second weighed 149.92 kg. This was fo llowed by 11 bags with a
mass of 206.58 kg and 10 bags weighing 139.64 kg. The smallest bags weighed 14
kg each. If one assumes that this was the approximate mass of each bag in the first
consignment, the total so transported was about 595 kg.
[4] The second appellant received from Aren dt a consignment of ten bags with a
mass of 149.92 kilograms and then another ten bags with a mass of 139.64 kg. The
first appellant pleaded guilty to dealing in these consignments as well because she
was the one who had arranged for the trap to transport them.
[5] In addition, 500kg of dagga was found in the possession of the appellants.
Of this, the first appellant accepted responsibility for 265.52 kg. The second
appellant acknowledged that the other half of the stock weighing 259.152 kg
belonged to him.
[6] It is clear that the appellants’ home s and businesses in Standerton served as
depots for dagga sourced in the Bergville area. The size and audacity of their
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operation attracted the attention of the or ganised crime and na rcotics division of
the area police. Inspector Arendt was intr oduced to the first appellant by a prisoner
called Bosch, a former policeman, who had once acted as a courier for the
appellants. Arendt had him released from gaol for a day to accompany him to the
first appellant’s home and introduce him as someone wanting to make a bit of extra
money. Bosch assured the first appellant that Arendt was a safe contact. Since
Arendt arrived at her house in a marked police van one might have thought that she
would take some persuading. She did not. She, and no doubt brother Joseph also,
had an amicable relationshi p with policemen in the area. As she explained to
Arendt later when he professed misgivings about transporting cannabis for her, she
had contacts everywhere, also in the narcotics branch, and anyway he need have no
fear since the police tended to stop bl ack people coming from the Bergville area
but not whites and especially not a policem an. On a later occa sion, when he was
also observed by the second appellant, Are ndt delivered a cannabis consignment at
the first appellant’s home dressed in full police uniform.
[7] These snippets of ev idence must be understood in the context of the
evidence given by Captain Botha, then th e unit commander of the narcotics bureau
in Ermelo. He explained that Standerton was a focal point for dagga smuggling and
that the Xaba-Zondo family enterprise was identified as one requiring infiltration
(at considerable government expense) not least because of allegations of police
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involvement in their trade. This seemed to be borne out by the discovery (during
the police’s raid on the businesses of the two appellants) of a number of bags of
dagga that had been stolen from the police exhibit store at Standerton. The thieves
were not identified and the appellants ga ve no explanation of how these stolen
exhibits had come into their possession . Moreover, there was not the faintest
challenge in cross-examination by the appellants’ attorney of any of this evidence.
[8] The argument that the regional magist rate did not in this regard have
evidence before him that he could pr operly have taken into account in the
assessment of sentence is therefore misconceived. The court a quo rather
sidestepped the issue by finding that the magistrate did not take police involvement
– and the corruption that this necessarily entailed – into account in aggravation of
sentence. I do not believe th at this is correct. The re gional magistrate did not
explicitly say that he took account of it but he devoted considerable attention to it
in his judgment and I do not understand why he would have bothered to do so if he
did not mean it to enter into his assessmen t. It was, of course, an aggravating
feature, as it must be of any crime where the criminal not only breaks the law but
subverts a law enforcement agency in order to do so.
[9] Also wrong is the argum ent that the police operation went on for too long
and served only to increase the quantity of dagga that the first appellant could be
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proved to have dealt in and so unfai rly increase her sentence. The argument
neglects to take account of the fact that the police were concerned to crush what
they believed to be a drug dealing syndi cate and that an arrest after the first
conveyance would simply have served to alert other miscreants (and particularly
errant policemen) who it was believed might be caught in the net. What is more,
when an arrest is made at an early stage of an operation the risk is always there that
an accused might fabricate some exculpator y excuse that the prosecution, for want
of more extensive evidence, cannot counter.
[10] Before us the regional magistrate was criticized for having found that the
first appellant was the leader of a da gga dealing syndicate. The ‘syndicate’ was
more like a partnership. There were the sib ling-partners (with the first appellant as
managing partner) and then, as one would e xpect, the helpers, two of whom were
also trapped. They performed odd jobs lik e showing Arendt the way to the pick-up
points near Bergville and loading the dagga onto his all-wheel drive pick up. Many
more supposed accomplices were arrested but these are the only four participants
who were eventually charged.
[11] No misdirection by the regional ma gistrate having been shown, the only
question that remains is whether, as was argued, the sentences of the two
appellants are strikingly inappropriate. Whilst not misdirecting himself in any way,
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a presiding officer may nevertheless err in translating the guilt of an accused into
years in prison. In order to do so properly he must be alive to the levels of
punishment considered to be socially a ppropriate or desirable. How many years’
incarceration a particular dr ug offence will bring an accused is something that has
to be determined by a general and ne cessarily rough comparison of what the
presiding officer has in mind with the sort of sentence that courts are at the time
imposing for that kind of offence and th e penalties prescribed by the lawgiver. He
or she then makes the adjustments requi red by the special circumstances of the
case, most prominent of which are the pe rsonal circumstances of the accused: his
record, his contrition and that kind of thing.1
[12] The Drugs and Drug Trafficking Ac t 140 of 1992 (‘the Act’) prescribes the
same maximum penalties for dealing in dangerous dependence-producing
substances as it does for dealing in un desirable dependence-producing substances.
Paragraph (f) of s ection 13 makes a contravention of a provision of section 5( b)
(which prohibits dealing in these substances ) an offence. Section 17 prescribes the
penalty: ‘…imprisonment for a period not exceeding 25 years, or to both such
imprisonment and such fine as the court may deem fit to impose.’
1 S v Jimenez 2003 (1) SACR 507 (SCA) paras [6] and [16].
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[13] Cannabis merchants a nd heroin merchants thus face the same maximum
penalty. No one will dispute that the c ontraband 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. 2 The worst imaginable
case of heroin dealing, involving consi gnments worth millions, would attract a
penalty of twenty five years imprisonmen t 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.
[14] The sentence of twenty years’ impr isonment imposed on the first appellant is
too close to the maximum prescribed punis hment, one manifestly intended for a
worst-case scenario. The sentence of eighteen years’ imprisonment imposed on the
second appellant is, having rega rd to his lesser role, also too harsh. In the scale of
doing societal harm the appellants did not rank as close to the top as their sentences
might lead one to suppose.
2 In Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) a unanimous Constitutional Court
gave the applicant leave to adduce evidence on how cannabis is used by the Rastafarian religion and whether its use
and possession was regulated by that religion. In the sequel, Prince v President, Cape Law Society, and Others 2002
(2) SA 794 (CC), the major difference between the majority view (five of the nine judges) and the other four was
whether the use of cannabis for liturgical purposes could be properly controlled. The minority who held control to be
feasible found that although ‘uncontrolled consumption of cannabis, especially when it is consumed in large doses,
poses a risk of harm to the user’ [61] it was not so harmful that its limited sacral use ought to be prohibited. One
cannot imagine such a close ou tcome on use, whether controlled or not, for sacral purposes of, say, morphine or
cocaine.
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[15] It is next necessary and instruc tive to make that rough comparison between
these sentences and those that other cour ts have found appropriate. It has often
been pointed out that no two cases are alike and this is self-evidently true, but the
fact remains that courts must strive fo r some consistency in punishment and where
a sentence is extravagantly high an appeal court becomes entitled to interfere with
it.
[16] In S v Morebudi 1999 (2) SACR 664 (SCA) an enterprising smuggler who
transported his dagga in a trailer (specially modified for that purpose at a cost of
R28 000) was caught with near ly one and a half tons of dagga hidden in secret
compartments. His sentence of 14 years’ imprisonment was confirmed on appeal in
a judgment delivered during November 1999. It appears to be the high water mark
for a dagga sentence confirmed by this c ourt in recent years and by that I mean
since the Act came into operation in April 1993.
[17] The regional magistrate could not have known about S v Morebudi because
the appellants were sentenced towa rds the end of 1997; the court a quo whose
proceedings were concluded in Oct ober 1998 would not have known about it
either. They would, ho wever, have known about S v Smith en Andere 1978 (3) SA
749 (A) where the maximum imprisonment, at the time fifteen years, was
confirmed for dealing in about a ton of dagga.
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[18] Counsel for the second appellant told us from the Bar that she had enquired
from the director of public prosecutions in Pretoria and had not been advised of
any sentence for a dagga offence as high as twenty years. Her researches into
reported cases did not reveal any either. I have foun d none. The most severe
reported sentence, as I remarked earlier, is S v Morebudi which was described by
Mpati AJA as a robust one.
[19] The aggravating features of the a ppellants’ offences, in particular the
evidently widespread corruption of the local police, warrant a sentence up to that
level but not beyond. The firs t appellant’s sentence should be altered to one of 14
years’ imprisonment and the second appe llant’s to 12 years’ imprisonment.
Accused number 4 in the regional court, Hendrik David, who was sentenced to ten
years’ imprisonment should, if he has behaved himself reasonably well, have been
released from prison by now. Accused number three, Fortune Hlongwane, was,
like the second appellant, sentenced to eight een years’ imprisonment. The director
of public prosecutions is requested to see to it that his attention is directed to this
judgment so that he might apply for leave to appeal if he is still incarcerated.
[20] The appeal is upheld.
1. The sentence of the first appellant is set aside and replaced
by one of fourteen years’ imprisonment;
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2. The sentence of the second appe llant is set aside and replaced
by one of twelve years’ imprisonment.
J H CONRADIE
JUDGE OFAPPEAL
CONCURRING:
NAVSA JA
BRAND JA