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[2018] ZACC 6
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Klaas v S (CCT52/17) [2018] ZACC 6; 2018 (5) BCLR 593 (CC); 2018 (1) SACR 643 (CC) (15 March 2018)
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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 52/17
In the matter between:
MICHAEL
KLAAS
Applicant
and
THE
STATE
Respondent
Neutral citation:
Klaas
v S
[2018] ZACC 6
Coram:
Mogoeng
CJ, Zondo DCJ, Cameron J, Froneman J, Jafta J,
Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J
and Zondi AJ
Judgment:
Mhlantla J
Decided on:
15 March 2018
Summary:
Criminal Appeal — Drugs and Drug Trafficking Act —
sentence — drug dealing and drug manufacturing —
market value of drugs not proven — minimum sentencing
provisions not applicable — appeal on sentence upheld
ORDER
On appeal from the Supreme Court of
Appeal:
1.
The applications for condonation are granted.
2.
Leave to appeal against conviction is refused.
3.
Leave to appeal against sentence is granted.
4.
The appeal against sentence succeeds.
5.
The orders of the Supreme Court of Appeal and the High Court of South
Africa,
Gauteng Local Division, Johannesburg dismissing the appeal
against sentence are set aside.
6.
The sentence of 15 years’ imprisonment imposed in respect of
count 2 by
the Regional Court, Alexandra, Gauteng is set aside.
7.
The applicant is sentenced to a period of 12 years’
imprisonment in respect
of count 2.
8.
The sentence imposed in respect of count 1 shall run concurrently
with the sentence
in respect of count 2.
9.
The sentence in count 2 is antedated to 10 December 2013.
JUDGMENT
MHLANTLA J (Mogoeng CJ, Zondo DCJ,
Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ, Kollapen
AJ, Madlanga J, Theron J
and Zondi AJ concurring)
Introduction
[1] This is an application for leave to
appeal against the conviction of contravening section 5, read with
sections 18 and 21, of
the Drugs and Drug Trafficking Act
[1]
(Drugs Act) and the sentence of 15 years’ imprisonment
that the Regional Court, Alexandra, Gauteng (trial court) imposed
on
the applicant, Mr Michael Klaas.
Background
[2] On 11 June 2009, two members of the
South African Police Service went to a house situated at 9 Lantana
Street, Morningside,
Johannesburg after receiving certain information
relating to activities on the property. The house is owned by
the applicant.
Upon arrival, they found the applicant’s
adult son, three year old son and a domestic worker.
[3] In the presence of his son, the
police officers conducted search and seizure operations on the
premises. The applicant’s
nephew arrived whilst the
police were conducting the search. The police found the
following items: eight bags filled with
2 920 tablets, mops,
pans and many bottles. The police discovered white powder
underneath these bags. At the swimming
pool area, a container
filled with a wet muddy substance was found. In the main
bedroom they found a bag of white powder
and a scale inside the
cupboard. In the dining room, a big book with documents and a
chemistry book with hand-written formulas
of how to make a drug known
as methaqualone (also known as mandrax), were found. Other
items which included two piles of
brown powders and bottles with
liquids were found inside the freezer and various containers filled
with chemicals that smelled
like acetone. A pair of gloves was
found hanging over a bucket that contained methaqualone.
[4] As a result, the applicant’s
son and nephew were immediately arrested. The applicant was
arrested months later in
East London.
Litigation history
Regional Court
[5] The applicant, who is a retired
pharmacologist, was charged with his son and nephew for contravening
the provisions of the Drugs
Act, in particular, section 5(b)
thereof.
[2]
The charge sheet read as follows:
“That the
accused is guilty of the offence of contravening the provisions of
section (5)(b) read with sections 2, 13,
17 to 25 and 64 of the
Drugs and Drug Trafficking Act 140 of 1992. (Read with the provisions
of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
).
Further read with
section 90
of Act 51 of 1977.”
[3]
[6] When the trial commenced, the
applicant pleaded not guilty. The State adduced evidence
relating to the discovery of the
drugs, chemicals and equipment.
The police officers who conducted the search and seizure operations
testified. Warrant
Officer Gerber testified that he and
Sergeant Borman acted after receiving information that the house was
used as a drug lab.
They discovered a huge quantity of drugs.
They established that the applicant, together with his son and
nephew, stayed at
the house. No explanation was provided for
the stash of drugs found. The applicant’s son and nephew
stated that
they were visiting the applicant and knew nothing about
the drugs. The police ruled out the applicant’s domestic
worker
as a suspect. They reported their discovery to
Superintendent Ludich, who arrived at the scene. The
applicant’s
son and nephew were thereafter arrested. The
seized items were sent for analysis.
[7] Warrant Officer Feldman, the
investigating officer, testified about the circumstances that led to
the arrest of the applicant
and how he was linked to the commission
of the offences. The police had found some clothing as well as
the applicant’s
identity document at the premises. The
gloves found on the bucket with methaqualone and subsequently
confiscated on the scene
were positively matched with the DNA of the
applicant. Furthermore, the documents with inscriptions and
chemistry formulas
that had been seized on the scene were also
analysed. A handwriting expert concluded that he could not
exclude the applicant
as the author of these documents. Warrant
Officer Feldman had also received information that the applicant had
purchased
chemicals from a place known as Glass World. He had
received an invoice with the applicant’s name. Warrant
Officer
Feldman could not find the applicant. He later
established that the applicant had fled to East London where he was
eventually
arrested and brought back to Johannesburg.
[8] Superintendent Ludich testified that
he had gone to the scene after receiving a report from the other
police officers.
He confirmed that, upon his arrival, the
officers showed him the drugs and other equipment. It became
clear to him that the
premises were used to manufacture drugs.
He provided an estimate of the value of the drugs, chemicals and
equipment used
in the manufacture of the drugs to be about
R18 000 000. He estimated the street value of a
single tablet as being
R65. However, he did not know the weight
of the methaqualone drug and chemicals. He conceded that he
could not provide
the correct value and stated that the experts would
have to provide the actual value of the drugs found.
[9] The State handed in an affidavit in
terms of section 212(4)(a) of the Criminal Procedure Act,
[4]
deposed to by Sergeant Matshivha, a forensic analyst. In his
affidavit, he stated that he had analysed the items found in the
house. These included 2 920 tablets. He concluded that
most of the items contained methaqualone whilst the others contained
methamphetamine. The other items were used during the
manufacturing of the drugs. However, the forensic report did
not provide the value of the drugs found.
[10] The applicant testified and denied
any knowledge and involvement in the manufacturing of the drugs.
He admitted ownership
of the premises but denied staying there.
He stated that the house was occupied by his nephew and the domestic
worker who
took care of his minor son. He and his wife stayed
at another property. He occasionally visited the premises to
satisfy
himself that all was well. His last visit to the house
was a week before the police raid. He did not know where his major
son, who was arrested at the scene, lived. The applicant
further testified that he knew nothing about the chemicals, the
drugs
and the manufacturing of the drugs on his premises. He had
heard about the raid a day after the event. However,
he did
nothing nor did he bother to contact the police as no-one told him
that the police were looking for him.
[11] On 22 November 2013, the applicant
and his co-accused were convicted of the unlawful manufacturing of
drugs and of dealing
in drugs. On 10 December 2013, the
applicant was sentenced to five years’ imprisonment in respect
of count 1 and 15
years’ imprisonment in respect of count 2.
The sentence imposed in count 1 was ordered to run concurrently with
the
sentence imposed in respect of count 2. The Regional Court
dismissed his application for leave to appeal against conviction
and
sentence.
High Court
[12] The applicant’s petition in
the High Court of South Africa, Gauteng Local Division, Johannesburg
for leave to appeal
against the convictions and sentence was
dismissed.
Supreme Court of Appeal
[13] On 13 February 2015, an application
for special leave to appeal against conviction and sentence was
dismissed by the Supreme
Court of Appeal. The applicant
thereafter applied to the President of the Supreme Court of Appeal in
terms of Section 17(2)(f)
of the Superior Courts Act,
[5]
for the reconsideration of his application. This was refused on
25 April 2016.
In this Court
[14] The applicant now applies to this
Court for leave to appeal. He also seeks an order condoning the
late filing of the
application. The application is opposed by
the National Director of Public Prosecutions (NDPP).
Applicant’s submissions
[15] The applicant submits that his
right to privacy in terms of section 14 of the
Constitution was infringed when his
house was searched by the police in his absence and without a search
warrant. The applicant,
however, concedes that his major son
was present during the search. Regarding the warrantless
search, the applicant relies
on
Kunjana,
[6]
which was decided after the events that led to the applicant’s
arrest. There, this Court declared a warrantless search
under
subsections 11(1)(a) and (g) of the Drugs Act
[7]
to be unconstitutional. Whilst the applicant accepts that the
order in
Kunjana
was not retrospective, he submits that this Court held that police
officers should be wary of searching without a warrant.
[16]
The applicant
submits that the trial court relied on circumstantial evidence when
it convicted him. He argues that the proved
facts were not
sufficient to convict him, in that the State could not prove that the
tablets were manufactured at his house since
a machine press to
manufacture the tablets was not found there. The police
officers conceded that this process may have been
done elsewhere.
Another factor was that if the drugs were manufactured in his house,
these could have been manufactured in
his absence since he did not
stay there.
[17] The applicant submits that the
trial court’s judgment on conviction and sentence was
insufficient to enable the Supreme
Court of Appeal to properly
determine the issues raised by him in the petition. Without the
record, so the applicant submits,
the Supreme Court of Appeal could
not have conducted an adequate reappraisal of the case in accordance
with his constitutional
right “of appeal to, or review by, a
higher court” under section 35(3)(o) of the Constitution.
[8]
Respondent’s submissions
[18] The respondent
submits
that the only issue during the trial was whether the applicant had
knowledge of the items recovered and was involved in
the
manufacturing of the items recovered.
The applicant’s
version at the trial was a denial of any knowledge of any of the
drugs and equipment found at the property.
The respondent
further submits that the applicant’s right to privacy was not
infringed by the lack of a search warrant.
Referring to the
non-retrospective order in
Kunjana
,
[9]
the respondent submits that during the search in 2009, the police had
the authority to search without a warrant in terms of the
section 11
of the Drugs Act as well as in terms of section 22 of the Criminal
Procedure Act.
[10]
The respondent submits that the applicant was not residing on the
property and was not present during the course of the search.
His son and the domestic worker were present. The respondent
further states that the applicant was called by the police but
never
came to the property.
[19]
The respondent
submits that the applicant’s right to be presumed innocent was
not violated. Furthermore, the State correctly
relied upon
circumstantial evidence to prove the guilt of the applicant beyond a
reasonable doubt.
The respondent avers that the trial
court correctly found that manufacturing of drugs had been taking
place at the applicant’s
home. The respondent further
submits that the applicant, his son and their domestic worker were
the only persons with access
to the property. The applicant and
his co-accused must have been aware of the drugs and equipment on the
property.
Therefore, from the high volumes of equipment and
substance found on the property, the respondent contends that it
could not have
had recently been brought to the property without the
knowledge of the applicant.
[20] This matter has been determined on
the basis of written submissions and without oral argument. On
23 August 2017, the
Chief Justice issued directions calling upon the
parties to file short written submissions on sentence, and
specifically whether
the provisions of the
Criminal Law Amendment
Act
[11
]
are applicable.
Leave to appeal
[21] For leave to appeal to be granted,
a matter must raise a constitutional issue or an arguable point of
law of general public
importance which ought to be determined by this
Court. In addition, it should be in the interests of justice
for the Court
to grant leave. This matter raises the
constitutional issue of the right to a fair trial. The
applicant also has reasonable
prospects of success in relation to
sentence. As a result, leave to appeal is granted.
Condonation
[22] The Supreme Court of Appeal order
was issued on 25 April 2016 and the application was lodged in this
Court on 6 March 2017.
It was filed ten months late. The
applicant’s explanation is that upon receipt of the order from
the President of the
Supreme Court of Appeal, he was under the
impression that no further steps could be taken as he had exhausted
all his legal remedies.
He did not approach the Legal Aid Board
to seek legal advice on this aspect as he preferred instructing his
own legal representative.
However, because of financial
constraints, he was unable to do so. The fact that he is
incarcerated also proved to be a huge
obstacle as he was unable to
make the necessary arrangements and act timeously. He submits
that there are reasonable prospects
of success and therefore applies
for condonation for the late filing of his application. The
application is not opposed by
the respondent.
[23] The applicant’s explanation
for the delay is unsatisfactory. He could have approached the
Legal Aid Board but appears
not to trust them. However, it has
to be accepted that sentenced prisoners experience difficulties when
attempting to lodge
their applications timeously. Another
factor to consider is whether it would be in the interests of justice
for condonation
to be granted. In
Brummer
, this Court
explained:
“It is
appropriate that an application for condonation be considered on the
same basis and that such an application should
be granted if that is
in the interests of justice and refused if it is not. The interests
of justice must be determined by reference
to all relevant factors
including the nature of the relief sought, the extent and cause of
the delay, the nature and cause of any
other defect in respect of
which condonation is sought, the effect on the administration of
justice, prejudice and the reasonableness
of the applicant’s
explanation for the delay or defect.”
[12]
[24] In addition, there are reasonable
prospects of success on sentence. Accordingly, it is in the
interests of justice that
condonation be granted.
[25] The respondent’s opposing
affidavit was filed on 24 March 2017 when it was due on 17 March
2017. Therefore the
opposing affidavit was five days late. The
deponent on behalf of the respondent states that he laboured under a
mistaken
belief that the respondent had to file its affidavit within
30 days of receipt of the application. Once they became aware
of the true position, they acted with haste and prepared the
documents. This explanation is unsatisfactory, more so since
it
is from a person with a legal background. However, the delay is
not unduly long and is reasonable. Furthermore,
no prejudice
will be suffered by the applicant if condonation is granted.
Therefore, the late filing of the answering affidavit
should be
condoned.
Merits of conviction
[26] We are satisfied that the applicant
was correctly convicted. The applicant, who is a pharmacologist
retired because of
ill-health, wants this Court to believe that the
information and instructions found in a chemistry book on how to
manufacture chemicals
were used by him in his profession as a
pharmacologist when it is common cause that he was no longer working.
His defence
during the trial was a bare denial. He tried
to distance himself from the house and denied staying there, stating
that he
and his wife had marital problems, and that during 2009 he
had stayed with her in Fourways while attempting to fix their
marriage.
He occasionally visited to ensure that all was well.
His last visit to the house was a week before the drugs were found,
allegedly to fetch some clothes, but he claimed not to notice
anything untoward at the premises. The police seized huge
quantities
of drugs, chemicals and equipment. It is highly
improbable that the applicant would not have known about the
activities at
his premises when regard is had to the type of
operation conducted there and his close relation to those he said
were the sole
occupants. He appeared to implicate his son and
nephew because they were the occupants of the house whilst he alleged
that
he only visited the house occasionally. In our view, the
evidence against the applicant is overwhelming. The factual findings
of the trial court cannot be faulted. His application for leave
to appeal against the conviction must fail.
[27] However, that cannot be said about
sentence. The applicant does not appear to have had a fair
trial during the sentencing
stage. In terms of the
Criminal Law
Amendment Act, a
minimum sentence of 15 years’ imprisonment is
applicable for any offence referred to in
Part II
of Schedule 2.
[13]
This schedule relates to any offence referred to in section 13(f) of
the Drugs Act if it is proved that—
“(a)
[t]he value of the dependence producing substance is more than
R50 000; [or]
(b)
[t]he value of the dependence producing substance is more than
R10 000; and that the offence
was committed by a person, group
of persons, syndicate or any enterprise acting in the execution or
furtherance of a common purpose
or conspiracy.”
[28] The provisions of the minimum
sentence legislation had been brought to the attention of the
applicant when he tendered his
plea. However, the State did not
present evidence to prove the market value of the drugs seized at the
applicant’s
property before conviction in order for the minimum
sentencing legislation to be applicable. At the commencement of
the judgment
on the merits, the Magistrate stated that the accused
was charged with a contravention of the Drugs Act, but did not
mention that
the provisions of the
Criminal Law Amendment Act were
applicable.
[29] Before sentence, none of the
counsel addressed the trial court on the applicability of the minimum
sentence legislation and
if so, whether substantial and compelling
circumstances existed for the imposition of a lesser sentence.
The prosecutor in
her brief address sought a sentence of direct
imprisonment. Counsel for the applicant, whilst conceding the
seriousness of
the offences, urged the trial court to impose a heavy
fine coupled with a long term of imprisonment which would be wholly
suspended.
This is another indication that the parties believed
that the minimum sentence legislation was not applicable. At no
stage
did the trial court ask counsel to address it on the
applicability of the minimum sentence.
[30] Yet the Magistrate in the judgment
on sentence for the first time stated that the minimum sentence was
applicable in respect
of count 2. After considering the
relevant factors, the Magistrate concluded that there were no
substantial and compelling
circumstances and accordingly imposed the
sentence of 15 years’ imprisonment in terms of
section 51(2)
of
the
Criminal Law Amendment Act.
[31
] There are specific principles in
relation to minimum sentencing for drug related offences. These
principles were set out
by the Supreme Court of Appeal in
Legoa,
where the Court examined the meaning of the word “value”
in the context of minimum sentencing provisions for drug-related
offences and assessed whether the State can prove the value of the
relevant drugs after conviction
.
[14]
The Supreme Court of Appeal held that “value”
in the minimum sentencing legislation should refer to market
value,
“the price a willing buyer pays a willing seller in an open
market”.
[15]
In relation to the second issue, the Court held that it was necessary
for the State to ascertain the value of drugs in question
at the
conviction phase in order for minimum sentencing legislation to be
invoked.
[16]
[32] In
Sithole
, the Supreme
Court of Appeal applied the principle set out in
Legoa,
where
it said:
“For a
minimum sentence to apply to an individual drug dealer acting alone
who is not a law enforcement officer, the contraband
must exceed R50
000 in ‘value’. The legislature specified a monetary
figure, and not a weight, presumably because illegal
drugs vary so
greatly in value. A car-load of dagga may be worth less than a small
packet of heroin or cocaine. But this entails
that the State must
prove the value of the contraband seized – a more exacting task
than proving its weight. And it must
prove value not by showing a
notional or abstract or potential value, but the value of the drugs
to the dealer
, whether at the place of seizure, or at the
dealer’s intended point of sale. This has particular practical
relevance when
drugs in large volume are seized.”
[17]
[33] In
Umeh
, the High Court
applied the principle in
Legoa
, stating that “‘value’
in the minimum sentencing legislation means ‘market value’.
To determine such
value, a court being asked to apply the minimum
sentence should establish what could be obtained for the thing in
question”.
[18]
[34] In this Court, the respondent
conceded that there was no reference in the trial court’s
judgment to the market value
of the drugs. This aspect could
not be ascertained from the evidence of the investigating officer.
As already indicated,
Superintendent Ludich did not know and merely
provided an estimate of the value of the drugs and all the items
seized to be in
the region of R18 000 000. As far as he
was concerned, the actual value had to be provided by the experts.
However,
this evidence was not adduced.
[35] Much as the provisions of the
minimum sentence legislation were brought to the attention of the
applicant when he pleaded,
the respondent had a duty to prove the
value of the drugs before conviction stage. It omitted to do so
or adduce evidence
in that regard. The main reason that the
trial court could not apply the minimum sentence was not because the
applicant had
not been informed of the minimum sentence but because
the market value of the drugs had not been proven before conviction
as required
by the
Criminal Law Amendment Act. In
order for the
minimum sentence set out in
Part II
of Schedule 2 of the
Criminal Law
Amendment Act to
apply, the State would have had to have proven that
the value of the drugs was greater than R50 000. An
estimate of
the value is not sufficient. Therefore, the
jurisdictional fact entitling the trial court to impose the minimum
sentence
was absent. This results in an irregularity in so far
as sentence is concerned. The trial court misdirected itself in
imposing that sentence. This Court is thus entitled to
interfere with sentence and reconsider sentence afresh.
Sentence
[36] In considering an appropriate
sentence, we have to take into account the applicant’s personal
circumstances, the mitigating
and aggravating circumstances, as well
as the interests of society.
[37] Mitigating circumstances include
that the applicant is a first offender and is 58 years old.
He has to date served
four years of his sentence.
[38] Aggravating circumstances include
that the applicant has been convicted of serious offences. He
used his skill of being
a pharmacologist to manufacture drugs.
He used his home as a laboratory and in the process exposed his minor
son to the hazardous
chemicals. A large quantity of drugs –
2 920 tablets – was seized. These drugs would have been
sold to
the community if the police had not been alerted to this
enterprise. This would have had devastating effects on the
community.
The applicant showed no remorse for his actions.
He distanced himself from the commission of the offences.
[39] We also have to bear in mind the
penal provision set out in section 17(e) of the Drugs Act.
[19]
This relates to the penalty for a contravention of section 5(b) of
the Act, and provides that a magistrate can impose a fine
or
imprisonment not exceeding a sentence of 25 years, or both. The
respondent submitted that, from the facts of this case,
a sentence of
5 years’ imprisonment in respect of the manufacturing
conviction and a sentence of 15 years’ imprisonment
in respect
of the conviction for dealing in drugs, running concurrently, is
reasonable and is not shockingly inappropriate.
[40] It is apposite at this stage to
consider the sentences imposed by the courts in cases of this
nature. In
Keyser,
[20]
the Supreme Court of Appeal imposed a sentence of 20 years’
imprisonment for the dealing of drugs. The Court acknowledged
that the sentence was “undoubtedly a heavy one”, but
stated that the sentence was warranted in the light of the quantity
of drugs carried by the applicant, which had a street value of well
over R2 000 000. The Court held that the quantity
of drugs
directly corresponded to the number of lives potentially affected by
the drug, and that that consideration alone far outweighed
any of his
personal circumstances and justified a long incarceration.
[21]
[41] In
Umeh
, a case in which the
market value of drugs had also not been proven, the court nonetheless
imposed an effective term of 15 years’
imprisonment for the
dealing of crack cocaine and methamphetamine. In that case, the
accused was a first time offender and
a father of two children.
[42] In
Oha
,
[22]
the accused, a married couple, were initially each sentenced to 25
years imprisonment for contravening section 5(b) of the Drugs
Act.
However on appeal their sentences were reduced from 25 years to 12
years and 10 years respectively, on the basis that
the couple had two
minor children who would be prejudiced by the extended incarceration
of both of their parents.
[43] In
Mandlozi,
[23]
the High Court also highlighted the relevance of the quantity of the
drugs possessed by the accused to sentencing. In addition,
the
Court pointed to the fact that drug manufacturing should carry a
serious sentence stating that “very serious sentences
such as
the one imposed on the appellant should . . . generally and sparingly
be reserved for drug manufacturers, suppliers and
repeat
offenders.”
[24]
The appellant was sentenced to 18 years’ imprisonment of which
four years were suspended for five years on condition that
the
appellant was not again found guilty of contravening section 5(b) of
the Drugs Act during the period of suspension.
[44] In
Windvogel
,
[25]
the Supreme Court of Appeal sentenced the appellant to an effective
period of 20 years’ imprisonment for dealing in cocaine.
[45] In
Gamede,
[26]
the accused were charged with contravening section 5(b) of the Drugs
Act by dealing in 556 kilograms of methaqualone during June
2004.
They were also convicted of manufacturing the drug. The accused
were sentenced to 20 years’ imprisonment
in the court
a
quo.
The Supreme Court of Appeal saw fit to reduce the
sentence of the first appellant to five years on the basis that the
evidence
showed that she did not have a major role in the
manufacturing operation, however the court only reduced the sentence
of the second
appellant to 15 years’ imprisonment, since it was
clear that he was directly involved in the manufacturing process.
The second appellant was a 40 year old first offender.
[46] These cases make it clear that our
courts have deemed sentences of imprisonment of ten years or longer
to be appropriate for
convictions relating to the manufacturing of
and dealing in dangerous drugs. In my view, the applicant’s
personal circumstances
pale into relative insignificance when regard
is had to the seriousness of the offences and the need to protect the
public.
It is common cause that the value and weight of the
drugs were not proved, but 2 920 tablets were seized. It has to
be accepted
that the applicant did not only deal in drugs but also
manufactured them. Even without evidence of the precise value
of the
drugs seized, this quantity of tablets had the potential to
affect the lives of many people. In
Umeh,
the Court
stated that “[i]t is in cases like these that the interest of
society demands a harsh sentence in order to be protected”
from
the impact of drug dealing.
[27]
Only a sentence of long term imprisonment is called for.
Therefore the appropriate sentence to be imposed in the circumstances
of this case is 12 years’ imprisonment. Having regard to
the advanced age of the applicant, it will be in the interests
of
justice that the sentence imposed by the trial court on count 1 run
concurrently with the sentence on count 2. Therefore
the
effective sentence will be 12 years’ imprisonment, which
has to be antedated to 10 December 2013.
[47] In the result, the following order
is made:
1.
The applications for condonation are granted.
2.
Leave to appeal against conviction is refused.
3.
Leave to appeal against sentence is granted.
4.
The appeal against sentence succeeds.
5.
The orders of the Supreme Court of Appeal and High Court of South
Africa, Gauteng
Local Division, Johannesburg dismissing the appeal
against sentence are set aside.
6.
The sentence of 15 years’ imprisonment imposed in respect of
count 2 by
the Regional Court, Alexandra, Gauteng is set aside.
7.
The applicant is sentenced to a period of 12 years’
imprisonment in respect
of count 2.
8.
The sentence imposed in respect of count 1 shall run concurrently
with the sentence
in respect of count 2.
9.
The sentence in count 2 is antedated to 10 December 2013.
For the
Applicant:
A C Klopper instructed by Moldenhauer Attorneys.
For the
Respondent:
N Kowlas instructed by the Office of the Director of Public
Prosecutions, Gauteng Local Division, Johannesburg.
[1]
140 of 1992.
Section 5 reads as follows:
“No person
shall deal in—
(a)
any dependence-producing substance; or
(b)
any dangerous dependence-producing substance or any undesirable
dependence-producing substance, unless—
(i)
he has acquired or bought any such substance for medicinal
purposes—
(aa)
from a medical practitioner, veterinarian, dentist or practitioner
acting
in his professional capacity and in accordance with the
requirements of the Medicines Act or any regulation made thereunder;
(bb)
from a pharmacist in terms of an oral instruction or a prescription
in writing
of such medical practitioner, veterinarian, dentist or
practitioner; or
(cc)
from a veterinary assistant or veterinary nurse in terms of a
prescription
in writing of such veterinarian, and administers that
substance to a patient or animal under the care or treatment of the
said
medical practitioner, veterinarian, dentist or practitioner;
(ii)
he is the Director-General: Welfare who acquires, buys or sells
any
such substance in accordance with the requirements of the Medicines
Act or any regulation made thereunder;
(iii)
he, she or it is a medical practitioner, veterinarian, dentist,
practitioner,
nurse, midwife, nursing assistant, pharmacist,
veterinary assistant, veterinary nurse, manufacturer of, or
wholesale dealer in,
pharmaceutical products, importer or exporter,
or any other person contemplated in the Medicines Act or any
regulation made thereunder,
who or which prescribes, administers,
acquires, buys, transports, ships, imports, cultivates, collects,
manufactures, supplies,
sells, transmits or exports any such
substance in accordance with the requirements or conditions of the
said Act or regulation,
or any permit issued to him, her or it under
the said Act or regulation; or
(iv)
he is an employee of a pharmacist, manufacturer of, or wholesale
dealer
in, pharmaceutical products, importer or exporter who
acquires, buys, ships, imports, cultivates, collects, manufactures,
supplies,
sells, transmits or exports any such substance in the
course of his employment and in accordance with the requirements or
conditions
of the Medicines Act or any regulation made thereunder,
or any permit issued to such pharmacist, manufacturer of, or
wholesale
dealer in, pharmaceutical products, importer or exporter
under the said Act or regulation.”
[2]
Section 5(b) of the Drugs Act above n 1.
[3]
The accused was charged with contravening this range of provisions,
however he was only ultimately convicted of contravening
sections
5(b) read with 18 and 21 of the Drugs Act.
[4]
51 of 1977. Section 212(4)(a) provides:
“Whenever
any fact established by any examination or process requiring any
skill
¾
(i)
in biology, chemistry, physics, astronomy, geography or geology;
(ii)
in mathematics, applied mathematics or mathematical statistics or in
the analysis of statistics;
(iii)
in computer science or in any discipline of engineering;
(iv)
in anatomy or in human behavioural sciences;
(v)
in biochemistry, in metallurgy, in microscopy, in any branch of
pathology
or in toxicology; or
(vi)
in ballistics, in the identification of fingerprints or body-prints
or in the examination of disputed documents,
is or may become
relevant to the issue at criminal proceedings, a document purporting
to be an affidavit made by a person who
in that affidavit alleges
that he or she is in the service of the State or of a provincial
administration or any university in
the Republic or any other body
designated by the Minister for the purposes of this subsection by
notice in the
Gazette
, and that he or she has established
such fact by means of such an examination or process, shall,
upon its mere production
at such proceedings be
prima facie
proof
of such fact: Provided that the person who may make such affidavit
may, in any case in which skill is required in chemistry,
anatomy or
pathology, issue a certificate in lieu of such affidavit, in which
event the provisions of this paragraph shall
mutatis mutandis
apply with reference to such certificate.”
[5]
10 of 2013.
[6]
Minister of Police v Kunjana
[2016] ZACC 21
;
2016 (2) SACR
473
(CC);
2016 (9) BCLR 1237
(CC) (
Kunjana
).
[7]
Subsections 11(1)(a) and (g) state as follows:
“A police official may—
(a)
if he has reasonable grounds to suspect that an offence under this
Act has been or is about to be committed by means or in respect of
any scheduled substance, drug or property, at any time—
(i)
enter or board and search any premises, vehicle, vessel or
aircraft
on or in which any such substance, drug or property is suspected to
be found;
(ii)
search any container or other thing in which any such substance,
drug or property is suspected to be found;
. . .
(g)
seize anything which in his opinion is connected with, or may
provide proof of, a contravention of a provision of this Act.”
[8]
Section 35(3)(o) of the Constitution provides that:
“Every accused person has a right to a fair trial, which
includes the right —
. . .
o) of
appeal to, or review by, a higher court.”
[9]
Kunjana
above n 6 at para 47.2.
[10]
Section 22 reads as follows:
“A police official may without a search warrant search any
person or container or premises for the purpose of seizing any
article referred to in section 20—
(a) if the
person concerned consents to the search for and the seizure
of the
article in question, or if the person who may consent to the search
of the
container or premises consents to such search and the seizure of the
article
in question; or
(b) if he on
reasonable grounds believes—
(i)
that a search warrant will be issued to him under paragraph
(a)
of section 21(1) if he applies for such
warrant; and
(ii) that the delay
in obtaining such warrant would defeat the object of the
search.”
[11]
105 of 1997.
[12]
Brummer v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC
3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
at para 3.
[13]
Section 51(2)
of the
Criminal Law Amendment Act reads
as follows:
“Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall
sentence a person who has been convicted
of an offence referred to in:
(a)
Part II
of Schedule 2, in the case of—
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not
less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period
not less than 25 years.”
[14]
S v Legoa
[2002] ZASCA 122
;
[2002] 4 All SA 373
(SCA) (
Legoa
)
at para 10.
[15]
Id at paras 10-11.
[16]
Id at paras 13-14.
[17]
S
v Sithole
[2004] ZASCA 77
;
2005 (2) SACR 504
(SCA) at para
12.
[18]
Umeh v S
[2015] ZAWCHC 81
;
2015 (2) SACR 395
(WCC) at para
61.
[19]
Section 17(e)
reads as follows:
“Any person
who is convicted of an offence under this Act shall be liable—
. . .
(e) in
the case of an offence referred to in section 13 ( f ), to
imprisonment for a period not exceeding 25 years, or to both such
imprisonment and such fine as the court may deem fit to impose.”
[20]
Keyser v S
[2012] ZASCA 70; 2012 (2) SACR 437 (SCA).
[21]
Id at para 30.
[22]
Oha v S
[2015] ZAGPPHC 276.
[23]
Mandlozi v S
[2014] ZAFSHC 106; 2015 (2) SACR 258 (FB).
[24]
Id at para 35.
[25]
Johannes Windvogel v The State
[2015] ZASCA 63
(
Windvogel
).
[26]
Gamede v S
[2010] ZASCA 122.
[27]
Umeh
above n 17 at para 68.