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[2015] ZAWCHC 81
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Umeh v S (A106/14) [2015] ZAWCHC 81; 2015 (2) SACR 395 (WCC) (4 June 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE No: A106/14
DATE: 04 JUNE 2015
[Reportable]
In the matter between:
JOHN
UMEH
............................................................................................................................
Appellant
Vs
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DELIVERED ON 4 JUNE 2015
HENNEY, J:
INTRODUCTION
[1] The appellant was convicted on two
(2) counts, namely, the contravention of section 5(b) of the Drugs
and Drug Trafficking Act
140 of 1992 (dealing in drugs) and the
contravention of section 22(A) (5) (f) of the Medicines and Related
Substances Act of 101
of 1965 (unlawful possession of Phenacytin) in
the Regional Court at Khayelitsha.
[2] The particulars of the charges were
the following, although not exactly so stated in the charge sheet.
The allegations against
the appellant in respect of the first charge
are that on 23 March 2010 at around 14h00, the appellant contravened
the provisions
of the Act by dealing in drugs when he was found in
possession of 49,23 grams of methamphetamine, that was folded in
packets, during
a police operation conducted at the N1 City Shopping
Mall’s parking area (“the N1 City incident”).
[3] In respect of the second charge,
the appellant alleged to have been dealing in crack cocaine, as well
as 1485,90 grams methamphetamine,
also either made up in individual
packets or units, that were subsequently found at the appellant’s
house in Summergreens,
after he had been transported there on 23
March 2010 (“the Milnerton incident”). In addition to
these drugs, 25,19
grams of a substance known as Phenacytin was also
found at his house. The appellant pleaded not guilty to both these
charges.
[4] After conviction of the appellant
in the Regional Court, the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
with regard to the imposition
of minimum sentences were invoked. The appellant was sentenced to 15
years on each count. The Trial
Court ordered that 5 years of the
sentence on count 1 was to run concurrently with the sentence on
count 2, an effective 25 years’
imprisonment.
[5] The appellant was legally
represented throughout the proceedings.
[6] This appeal is against the
conviction on both counts and sentence.
GROUNDS OF APPEAL
[7] The appellant’s appeal
against conviction is broadly based on the following grounds: that
the search and seizure carried
out (at the N1 City Parking area and
premises of the appellant) was unlawful and the evidence relating to
the drugs found on his
person at N1 City as well as those found at
this home inadmissible; that alternatively, the Regional Magistrate
erred in concluding
that his version that he had no knowledge of
these drugs that were found is not reasonably possibly true; and that
the conviction
on both counts amounts to a duplication of charges.
[8] Regarding sentence, the appellant
argued that the Regional Magistrate misdirected himself in imposing
the prescribed sentence
of 15 years’ imprisonment in respect of
each count in terms of
sections 51(2)
of Act 105 of 1997, due to the
fact that the State has failed to prove that such sentences would be
applicable, and that the sentences
imposed was in any event
shockingly inappropriate.
[9] The trial proceeded with the
evidence regarding the search of the appellant being placed in
dispute. As a result of this a
Trial-within-a-Trial was held. The
issue that was disputed was whether the search was conducted lawfully
and in compliance with
the provisions of
section 22
of the
Criminal
Procedure Act 51 of 1977
. After the Trial-within-a-Trial was held
the court ruled the evidence found as a result of the search to be
admissible.
THE EVIDENCE
[10] Detective Warrant Officer
Alexander (“Alexander”) from the Directorate of Priority
Crime Investigation Unit (DPCI),
South African Police Services, was
the Investigating Officer with regard to dockets Goodwood CAS
515/03/2010 (the N1 City incident)
and Milnerton CAS 743/03/10 (the
search conducted at appellant’s home). Lt. Colonel Cockrill
and Warrant Officer Swart also
from the DPCI also testified.
TESTIMONY OF ALEXANDER
[11] On 23 March 2010 Alexander
received information that a Nigerian male would be delivering drugs
at N1 City parking area and
that he would be driving a Blue Nissan
Micra with registration number C…….. He arranged with
his senior, Lt. Colonel
Cockrill, to assemble a team with several
members of the South African Police Services to conduct an operation
at the place mentioned.
[12] Alexander, along with the
assembled team, later proceeded to N1 City where he noticed the
vehicle. He kept it under observation
until it came to a stop next
to another parked vehicle, a White Nissan Sentra. Alexander
immediately approached the vehicle.
Only the appellant and his baby
were in the car. He knocked on the window, identified himself and
produced his appointment certificate.
The appellant hesitated and
Alexander shouted at him. Other members (11 officers) were around
the vehicle by this time. Alexander
spoke in English.
[13] Eventually the appellant opened
the door, and Alexander informed him that he had reason to believe
that he (Appellant) had
drugs in his possession. Alexander then
asked him if he had drugs in his possession. The appellant did not
respond. Alexander
observed that he was shivering and appeared
nervous. Alexander then asked him if he could search him. The
appellant did not speak,
but nodded his head affirmatively, which
Alexander understood to be permission to search him. Alexander
testified that if appellant
had shaken his head left to right, he
(Alexander) would have understood that to mean “no”, in
other words, a refusal
of permission to be searched.
[14] The Trial Court ruled that the
search was lawful and the evidence derived therefrom admissible and
Alexander was recalled to
testify regarding the search of the
Appellant as well as his vehicle. He told the court where he
discovered the packet of drugs
placed and that he had informed the
appellant of his constitutional rights. I will deal with the
decision of the Regional Magistrate
and the evidence of the State as
well as the appellant regarding the admission of this evidence at a
later stage.
[15] Alexander further testified as
follows:
The police were aware of another person
in a vehicle parked next to the appellant’s car. Lt. Col
Cockrill interviewed this
person. He testified that this person had
cash in his possession. The police verified his details. His name
was Gershwin Maloy
and stayed in Kraaifontein. The appellant did not
inform the police at the time that he knew this person, nor that this
person
had made an appointment to meet him regarding the sale of his
(appellant’s) vehicle. Alexander further testified that the
appellant failed to mention to the police at the time that this
person had entered his vehicle and had spent time in it, before
exiting it. The appellant also did not suggest at the time, that
this person must have put/left drugs in the appellant’s
vehicle.
[16] Upon the request of the appellant,
after having being apprehended by the police at N1 City, the police
proceeded with him to
his house in Milnerton as he had asked to leave
his child there.
[17] In the garage the police found
instruments and other items used in the processing and packaging of
drugs, such as, inter alia,
a jewellery scale and vacuum sealer.
Alexander told the Court that in his experience these items were
often found on premises
where drugs were manufactured or found. The
police found more drugs in the garage. In a bag they found 950
pieces crack cocaine
as well as an amount of 15 units of
methamphetamine (Tik) weighing 1485,90 grams. The appellant was
arrested.
[18] The appellant’s wife
(accused no 2), the domestic worker (accused no 3) and a friend
(Linda) was on the premises (The
other two accused were acquitted by
the court a quo). The friend was released after her details had been
verified. The Trial
Court also questioned Alexander about the person
in the other vehicle and Alexander furnished the court with all his
details.
Despite the fact that this person was continuously referred
to by the defence as “Jason”, he later identified himself
as Gershwin Maloy.
[19] Alexander also furnished the
details of the female known as Linda in the appellant’s home
and explained why he did not
arrest her. The appellant during the
Trial-within-a-Trial also testified and denied that he had given
Alexander permission to
conduct the search which I will also deal
with at a later stage.
LT
.
COLONEL COCKRILL
[20] Lt. Colonel Cockrill (“Cockrill”)
from DPCI, SAPS, was the second State witness. He had 26 years’
service
in the police force at the time he testified in court. Since
1990, he had been involved in the investigation of drug related
crimes
and worked for the now defunct Narcotics Bureau of the Police
Service. He is trained in the identification of drugs and he also
underwent training at the Drug Enforcement Agency in the United
States. He corroborated Alexander’s evidence in all material
respects, except that he was unaware of whether Alexander asked
permission from the appellant to search him. He said that this
was
due to the fact that he was at that time busy with the other person
in the Nissan Sentra.
[21] This person in the Nissan Sentra
had an amount of R8 000,00 cash with him, but there was no evidence
to link him to the drugs.
This was despite the fact that when the
last number dialled on the phone of this person was called, the cell
phone of the appellant
rang. Cockrill conceded that the police had
perhaps been too hasty and that they should have waited for the
transaction to be
finalised before they acted. Cockrill discovered
the drugs in the garage of appellant’s home, after they had
searched the
house of the appellant, where they found a vacuum
sealer, which is normally used to seal drugs in small packets. They
also found
a jewellery scale that according to this witness is
commonly used to weigh drugs. In a holder on the floor, they also
found a
substance known as Phenacytin, which according to the witness
is commonly used in the illicit drug trade to produce cocaine. In
the garage they observed that one of the walls had two loose bricks.
He removed these two bricks. Behind them he found a piece
of white
rope that was attached to a bag that hung on the outside of the
garage wall. When he opened the sealed plastic bag he
found more
drugs therein. The drugs that were found on the appellant at the N1
parking area weighed 49,23 grams and were found
to be
methamphetamine, also commonly known as “Tik”, which
according to him has a street value of R300,00 per gram.
WARRANT OFFICER SWART
[22] Warrant Officer Swart (“Swart”)
from the DPCI, South African Police Services, was the third witness
for the State.
He had 25 years’ service. He corroborated the
evidence of Alexander and Cockrill with respect to the drugs they
found on
the appellant as well as the drugs and equipment found at
his house.
[23] According to him, the garage was
not used by the appellant to park his car in and he observed a short
ladder in the garage.
He conducted a search in the same place where
Lt. Colonel Cockrill eventually discovered the drugs, but did not
discover the drugs
himself. He was cross-examined at length and was
adamant as to the sequence of events and did not deviate from his
version.
THE APPELLANT’S EVIDENCE
[24] The appellant testified. His
version was that he had been falsely implicated in respect of both
instances in which drugs were
found. The police, with the assistance
of the person who was in the white Nissan Sentra, had planted the
drugs in his vehicle
at N1 City parking and at his house. He
testified that he believed that the drugs that were found on this
person at N1 City, were
placed in his car by the person he knew as
“Jason” who got into his vehicle before the police
arrived. He had to meet
this person to discuss the sale of his
(appellant’s) vehicle at N1 City Mall.
[25] Jason left, whereafter the police
arrived. The appellant testified that while he was searched by the
police outside of his
vehicle, he observed that another policeman was
busy in the car. He could not however see what the policeman was
doing in the
car. He says Alexander went to the side of his vehicle,
at the place where “Jason” was sitting before he got out
of
the vehicle, and he saw Alexander with a packet in his left hand.
While the other policemen were still holding him, Alexander
came,
with this packet in his possession, and then he started forcing it
inside his trousers.
[26] In respect of the first incident,
before the police arrived, this person, who is also known as “Jason”,
in the
course of their discussion of the sale of the vehicle, got
into the back of his vehicle, while they were discussing the sale of
his vehicle.
He also denied any knowledge of the
drugs that were found at his house and suspected that this person by
the name of “Jason”
was involved in placing the drugs at
his house and informed the police where to find them.
EVALUATION
[27] Coming back to the
Trial-within-a-Trial, Alexander testified on behalf of the State to
have the evidence of the search and
seizure admitted. He testified
that after having received information from some source, he, after
this information proved to be
accurate as to the identity of the
person who was alleged to have possessed the drugs and the car with a
particular registration
number which such person was to be driving,
approached the appellant. On approaching the appellant and after
having satisfied
himself that it was indeed the correct suspect on
the basis of the information he received, he requested the permission
of the
appellant to search him.
[28] According to him, he received such
consent from the appellant and proceeded to search him. His evidence
was that he told the
appellant that he had reason to believe that he
was in possession of drugs to which the appellant did not respond.
He was only
shivering and appeared nervous.
[29] Mr King, on behalf of the
appellant, argued in the appeal that the court a quo erred in
accepting the evidence of Alexander,
that the appellant had given
consent that he be searched. He argued that Alexander never
testified that the appellant gave his
permission; rather, the
prosecutor virtually placed the words in his mouth by leading the
witness in this regard. Alexander had
testified as follows in this
regard: “I then told him I’m going to ask him if I can
body search him, seeing that he
didn’t answer anything”.
He went on further and said, “At that stage he didn’t say
yes or no. He just
nodded his head”. The prosecutor then put
it to Alexander … “Now, I noticed when you said he
nodded, your head
motion indicated up and down as in acknowledging
permission or giving your permission. Is that what you understood”.
Alexander
then said, “Yes, Ja, what I understood seems just if
it was no, then he would have shaken his head left or right”.
Then the prosecutor put it to Alexander’ “His head would
have gone left to right”, to which Alexander answered’
“Ja”. The appellant denied that he gave consent to be
searched. During evidence, the appellant confirmed that when
he has
to answer a question in the affirmative, he would nod his head.
[30] Mr King construed the words of
Alexander, “I told him I am going to ask him if I can body
search him” to mean that
Alexander merely told him that he
would search him, but this is not what Alexander said. He said that
he told him, “I am
going to ask him”, whereafter the
appellant did not say anything. He just nodded his head in
affirmation to the question.
In cross-examination, Alexander was
adamant that he had asked permission from the appellant who nodded in
affirmation and granted
him permission.
[31] He further testified that in the
light of information he had, even if the appellant did not give
permission to be searched,
he would have searched him anyway.
[32] Mr King further argued that
because the colleague of Alexander, Cockrill, did not ask the
permission of the person in the White
Sentra to search him, in all
probability Alexander also would not have asked the appellant for
such permission.
[33] Mr King argued that Alexander
failed to state in his police statement that he asked the appellant
permission to search him.
He also argued that the evidence of
Alexander that was accepted by the Regional Magistrate was unreliable
and untruthful. This,
especially where it emerged that while
Alexander was accompanied by 11 other policemen, no one heard that
the appellant gave him
consent to search him. He further argued that
Alexander relied on hearsay evidence of an unknown person who gave
the information
about the appellant.
[34] If regard is to be had to the
totality of the evidence and on the basis of the probabilities, I am
of the view that the Regional
Magistrate was correct in ruling as
admissible the evidence of Alexander to the effect that he
(Alexander), was given permission
by the appellant to search him.
[35] Furthermore, if regard is to be
had to the probabilities, should Alexander have wished to falsely
implicate the appellant,
it would have been much easier to have
simply planted the drugs at one place and at one occasion, rather
than having to explain
in elaborate detail about how drugs were found
at two different placed far apart from each other, which in any event
was not placed
in dispute by the appellant.
[36] It needs to be mentioned that
other witnesses, Cockrill and Swarts, never testified during the
Trial-within-a-Trial, but more
importantly, it seems neither of them
were present at the vehicle of the appellant when Alexander spoke to
the appellant initially.
Cockrill testified that he approached the
occupant of the Nissan Sentra that was parked next to the Nissan
Micra. While he was
busy with this occupant, he heard that they had
found drugs on the appellant.
[37] Swarts testified that when he
arrived at the scene, Alexander and the other members were already
there. The other more important
point is that no-one could have
heard the appellant give consent because the evidence of Alexander
was that when he requested permission
or consent to search the
appellant, he responded by shaking his head up and down in
affirmation. I cannot agree that the Regional
Magistrate was wrong
in finding that Alexander’s evidence that the appellant gave
him permission to search him was truthful
and justified. The
Magistrate’s conclusion is consistent with the probabilities
and other objective evidence. It is also
clear that the operation
concluded was justified, based on, as it turned out, the accuracy of
the information which Alexander had
received, in that:
a) he found a Nigerian male;
b) in a Blue Nissan Micra with
registration number C………. and;
c) that such person was in possession
of drugs.
Therefore even if Alexander did not
have permission from the appellant to conduct the search, there was
enough information objectively
to justify a search upon the appellant
without such permission.
[38] On 29 May 2015, Mr King filed with
the consent of the State a copy of an unreported judgment which
emanated from an appeal
in the matter of Amobi Enujukwu v The State;
Case No: A775/03 delivered in this division on 9 December 2004 by
Franks AJ wherein
the legality of a search and seizure in terms of
the provisions of
sec 22
of the
Criminal Procedure Act No.51 of 1977
was also considered. The facts in that particular case are the
following. The appellant, whilst standing on a pavement, near
the
corner of Main and Hall Roads in Sea Point, in the company of two
other gentlemen, was approached by the police. One of the
policeman
testified that when the three gentlemen saw the police vehicle, one
of them, dived into a vehicle that was standing nearby.
The
policeman, upon observing this, regarded this conduct as suspicious
and proceeded to search the persons concerned.
[39] The appellant in that matter was
searched and drugs were found in two small containers that were
hidden in his socks. The
court a quo found that the appellant had
given consent to be searched. A policeman in cross-examination
presented further evidence
that he had told the appellant, “I
am going to search you”, whereupon the appellant responded, “Go
ahead and
search me”. The appellant’s evidence in this
regard is that the police did not ask any permission. The court in
this
matter on appeal found that there was uncertainty whether the
appellant had actually consented to being searched. It found further
that there was no indication that the appellant was advised of his
rights to refuse being searched. And even if such consent was
given,
such consent was not informed consent.
[40] The court also then concluded that
there were no reasonable grounds on the part of the police to believe
that a search warrant
would be issued if applied for and that the
delay in obtaining such warrant would defeat the object of the
search.
[41] In my view, the Enujukwu case, as
referred to by Mr King, cannot be regarded as authority for a finding
that the search and
seizure in this matter was not in accordance with
the provisions of
sec 22
for the following reasons:
41.1 As already indicated, I found the
evidence of Alexander that he had been given the necessary consent
for the search truthful
and persuasive.
41.2 With regards to whether the
requirements of
sec 22
(1)(b) of the
Criminal Procedure Act had
been
complied with, the facts in this case are clearly distinguishable
from the facts in the Enujukwu case. In that particular
case, the
reasons given by the policeman as to why he believed that reasonable
grounds existed that a warrant would be issued if
applied for, are
the following:
a) the area where the search took place
was notorious, many drug related offences had occurred there and his
unit had made numerous
arrests in or near that vicinity;
b) upon noticing the police vehicle,
one of the group of men made a sudden movement and ducked down into
the car, and it was the
policeman’s view that the person who
ducked down into the car possibly wanted to hide something in the
motor vehicle or remove
something from it;
c) that on approaching the group, the
policeman kept his eye on the appellant and he noticed that he
appeared to be nervous.
41.3 In this particular case, Alexander
received information from a source that on 23 March 2010 a Nigerian
male would be sitting
in a Blue Nissan Micra with registration number
CA…….. at the parking area near the KFC at N1 City Mall
and that
this person would have drugs in his possession. Upon
arrival at the place indicated to him, he found this Blue Nissan
Micra which
matched the description as given to him by his source
with regards to the make of the car, the colour and registration
number.
In it he found a male, ie. the appellant, who was later
shown to be of Nigerian descent. Upon searching this person, he
found
that this person had drugs in his possession.
41.4 The fact that the information had
proven to be accurate before he found any drugs in possession of the
appellant, in my view
would have constituted reasonable grounds for
Alexander to believe that a search warrant would be issued if applied
for. Furthermore,
should he at that stage have first gone to a
Magistrate or Justice of the Peace to obtain a warrant, the object of
the search would
in all probability have been defeated.
41.5 Furthermore, on the basis of the
authority in State v Lachman
2010 (2) SACR 52
SCA, the position of
the court in S v Enujukwu that the appellant had to be advised of his
right to be refused to be searched,
was clearly wrong. Griesel AJA
in the Lachman matter held that it was not correct to argue that
consent obtained was not reliable
because, firstly, the appellant in
that matter had not been advised that he could object to the search
and, secondly, that any
articles seized could be used in evidence
against him. In the Lachman case, Griesel AJA also confirmed the
court a quo’s
view that there was not any provision requiring
the police to advise a subject that it was open to him to refuse to
allow a search
to be undertaken.
[42] After having found that the
version of Alexander regarding the drugs that were found on the
person of the appellant at N1 City
to be true. I will now deal with
the decision of the Magistrate to convict the appellant despite the
fact that according to Mr
King his version was reasonably possibly
true.
[43] It is clear that drugs were found
in possession of the appellant at N1 City as well as his home in
Milnerton. I am in agreement
with the finding of the Regional
Magistrate that the version of Alexander regarding the finding of the
drugs at N1 City is to be
accepted. As to the drugs found at the
house of the appellant, he gave a version that it was someone else’s
drugs that were
planted. I will now deal with the evidence of the
appellant as regards to the drugs that were found on his person as
well as that
which were at his house.
[44] The appellant’s counsel
argued that his version should have been found by the Regional
Magistrate as reasonably possibly
true. I have already expressed a
view regarding the probabilities of such a version, when I dealt with
the evidence of Alexander
in relation to the version of the appellant
that the drugs were planted on him by Alexander at the N1 City
Parking Mall. Regarding
the drugs that were found hidden at his
house, he testified that he had no knowledge thereof. According to
him these drugs must
have been planted by the person known to him as
“Jason” or “Jackson”. The person in the
White Sentra,
the police referred to this person as “Gershwin”.
This person, he said, used to, around November 2009 stay opposite
to
where he stayed in Summergreens, Milnerton. He once again said that
this person colluded with the police to plant the drugs
at his house.
He testified that he had no knowledge
of the drugs that were found in the bag hanging on the outside of the
garage. He suspects
that “Jason” was responsible for
placing the drugs there. The person with the name of Linda was at
the house when
the police arrived. She was the girlfriend of
“Jason”. He only realized at a later stage, long after
his arrest, that
“Jason” who used to come to his home to
borrow a ladder, may have been responsible for the placing of the
drugs in
the bag that was found by the police. All of this evidence
is without substance and based on conjecture and in my view is
unconvincing
and the Regional Magistrate rightly rejected his
version.
[45] If regard is to be had to the
undisputed evidence about the further items found at the appellant’s
house, which includes
the finding of a sealer, a jewellery scale and
glass jars with traces of cocaine and the substance known as
Phenacytin which is
used to manufacture crack cocaine, the court can
only conclude that the appellant was busy with several acts in
connection with
dealing in drugs.
[46] I am satisfied that the Regional
Magistrate was correct in finding that the State had proved its case
beyond reasonable doubt.
DUPLICATION OF CHARGES
[47] Mr King argued that if the court
should find that drugs were in both instances seized, due to the fact
that such drugs came
from the same source, the appellant had a single
intention to deal in drugs irrespective where and how the drugs were
found. On
the basis of this, he argued, that there was only a single
intention to commit one offence and not two separate offences. There
was therefore a duplication of charges. Ms Heeramun for the State
disagreed and argued that the Appellant committed two separate
and
distinct offences.
[48] In considering whether there is
duplication or splitting of charges, regard is to be had to the
definition of “deal in”
in terms of the Act. The
Drugs
and Drug Trafficking Act 140 of 1992
defines “deal in” as
the following:-
“ in relation to a drug, includes
performing any act in connection with the transshipment, importation,
cultivation, collection,
manufacture, supply, prescription,
administration, sale, transmission or exportation of the drug.”
J.R.L. Milton, Hoctor and Cowling;
South African Criminal Law and Procedure Vol III
Part 1
(2ed)
describes “deal in” in drugs as follows in terms of the
Drugs and Drug Trafficking Act:
“Dealing
in drugs consists in and
embraces all of the following activities:
• dealing (in the ordinary sense)
in drugs
• transshipping drugs
• importing drugs
• cultivating drugs
• collecting drugs
• manufacturing drugs, which
activity includes
preparation of drugs
extraction of drugs
production of drugs
• supplying drugs
• prescribing drugs
• administering drugs
• selling drugs, which activity
includes
offering for sale
advertising for sale
possessing for sale
exposing for sale
disposing, whether for
consideration or otherwise exchanging
• transmitting drugs
• exporting drugs
• any act performed in
connection with these activities.” (emphasis added)
It is clear that a wide definition is
given by the Legislature to the concept of “deal in” in
terms of the Act.
[49] In S v Mabuya
1979 (3) SA 1070
A
at pages 1076H – 1077E it was held that even though a person in
a broad sense throughout had the intention of dealing,
where such
person however commits more than one prohibited of act of dealing, it
could in no way be considered as a single continuous
event (’n
enkele voortgesette gebeurtenis), merely because he had the broad
intention to deal throughout. The court argued
that by applying the
so-called “evidence test” for duplication of convictions
as set out in S v Grobler en ‘n
ander
1966 (1) SA 507
A, the
evidence in respect of one count cannot be used to prove the other
count at the same time.
[50] In analysing whether there may be
a duplication of charges with reference to the definition of “deal
in” in the
previous act (Section 2(a) of Act 41 of 1971)
Trengrove JA held in Mabuya (supra) at 1076 H – 1077E that:
“Die appellant het wel in 'n breë
sin deurgaans die opset gehad om in dagga handel te dryf, maar die
verbode handelinge
waaraan hy skuldig bevind is kan hoegenaamd nie as
'n enkele voortgesette gebeurtenis beskou word nie. Dit kan ook nie
in hierdie
geval gesê word dat die getuienis met betrekking tot
een aanklag ook meteen die ander aanklagte bewys nie. (S v Grobler en
'n Ander1966 (1) SA 507 (A) op 511G - H en S v Prins en 'n Ander1977
(3) SA 807 (A) op 814C - D.) Mnr Beckley het egter sterk gesteun
op
die uitspraak van STRYDOM R in S v Claassens; S v Philander1976 (3)
SA 304 (SWA). In hierdie saak het die geleerde Regter met
verwysing
na die bepalings van art 2 van die Wet op 306E - 307A gesê:
"The punishable fact in the
offences of dealing in and possession of dagga has a common factor,
ie a presently existing state
of affairs. The Act does not aim at
penalizing a person who had dispossessed himself of the harmful dagga
nor one who has ceased
to deal therein. It is directed at the
possessor and the person who deals therein. Past conduct or acts can
only serve as evidential
material towards establishing the existing
conduct and the extent thereof which may be relevant on the question
of sentence. Both
conceptions necessarily involve preceding
activities leading up to a moment in time, being, as I see it, the
time of arrest, which
then encompasses past conduct and may culminate
in the first conviction... In my opinion the Legislature created two
offences and
an accused cannot be convicted of so many counts of each
as the individual acts built up to be punishable facts. These
offences
are possession and use in contrast to 'deal in'."
Na my mening is dit nie die regte
benadering tot die uitleg van art 2 nie. Art 2 (a) bepaal weliswaar
dat iemand wat in dagga "handel
dryf" aan 'n misdryf
skuldig is, maar volgens art 1 beteken "handeldryf" in dié
verband "ook 'n handeling
verrig in verband met die insameling,
invoer, lewering, oorlaai, toediening, uitvoer, verbouing, verkoop,
vervaardiging, versending
of voorskryf" van oa dagga.
Hiervolgens is dit duidelik dat die bewys van 'n voortgesette of
deurlopende gedragslyn, oor 'n
bepaalde tydperk, nie 'n voorvereiste
vir 'n skuldigbevinding aan oortreding van art 2 (a) is nie; die
bewys van 'n enkele handeling
wat binne die statutêre
omskrywing van "handeldryf" val (bv die verkoop van 'n
enkele dagga sigaret) sal op sigself
as voldoende bewys van 'n
oortreding van art 2 (a) aanvaar word.” (Emphasis added)
See also S v Ebrahim & Others
1974(2) SA 78 (N) 80-1; S v Madlalose 1974(2) SA 74 (N).
[51] The inference is clear that in
respect of the drugs found in the possession of the appellant at the
N1 City parking area, the
appellant had taken such drugs from his
home and he had transported them to N1 City for a specified purpose.
[52] It is clear if regard is to be had
to the drugs and the circumstances under which it were found at the
house of the appellant
and the drugs that were earlier found in his
possession at N1 City, the inference is escapable that those drugs
were also in his
possession for the purposes of dealing with. It was
a considerable amount that was made up in small little packets.
[53] The evidence establishes clearly
that the appellant is a person that deals in drugs. Besides the
drugs that were found in
his possession, the police also found at his
premises a jewellery scale, which was used to weigh the drugs, a
vacuum sealer, which
was used to seal the drugs in plastic wrapping
for the appellant to sell it in loose units, and a substance known as
Phenacytin,
which is used in the production of crack cocaine. The
activities such evidence proves fall within the statutory definition
of
dealing (for example, manufacturing, which includes preparation of
drugs).
[54] With respect to the drugs found in
the appellant’s possession at N1 City parking area, it is my
view that such had been
transported from the appellant’s house
with the intention to deliver them to someone else for the purpose of
dealing. Such
activities, in my view, are separate and distinct from
those relating to the drugs found at the appellant’s premises.
In
respect of the latter, the appellant not only possessed drugs for
distributing; he was also involved in manufacturing such drugs,
preparing them (in units), then weighing and packing them for
distributing and sale to drug users and other dealers.
[55] Although he in a broad sense
throughout had the intention of dealing in these drugs which were
both found in his possession
at N1 City and at his house, the
activities described above cannot be considered as a single
continuous event that constitutes
one offence. It can hardly be said
that the evidence to prove the offence of dealing on the one count
(N1 City) also proves the
offence of dealing as contemplated in the
Act on the other count (with respect to his house in Milnerton). The
Regional Court was
therefore correct in convicting the appellant on
two separate offences.
THE MINIMUM SENTENCE
[56] The court a quo found that the
appellant was guilty in respect of both charges of an offence listed
in Schedule 2 Part 2 read
with Section 51 of the Criminal Law
(Sentencing) Amendment Act 105 of 1997, it being an offence referred
to in Section 13(f) of
the Drugs and Drug Trafficking Act, 1992 (Act
140 of 1992) where the value of the dependence producing substance in
question is
more than R50 000,00.
[57] The appellant was consequently
sentenced to the prescribed minimum sentence of 15 years’
imprisonment on each of the
charges in terms of Act 105 of 1997. The
court ordered that 5 years of the sentence on count one were to run
concurrently with
the sentence on count 2, which meant that the
appellant would serve an effective sentence of 25 years imprisonment.
[58] I am not, however, satisfied that
the State had led sufficient evidence to prove that the value of the
dependence producing
substances in respect of both counts, is more
than R50 000,00, in which case the prescribed minimum sentence of 15
years’
imprisonment would not apply. The only evidence that
was placed on record was that of Cockrill, which evidence in my view
was
not sufficient for a court to conclude that the value of the
drugs was more than R50 000,00. The State has conceded that much in
respect of count 1.
[59] Cockrill testified about the
so-called street value of these drugs. His evidence was that
methamphetamine (Tik), cocaine and
heroin is usually sold at R300,00
per gram. Then he further testified that the drugs as mentioned in
the Charge Sheet, weighing
almost 2 kilograms, would have a value of
about R600 000,00. His further evidence was that the value of crack
cocaine is sometimes
much higher. This evidence in my view falls far
short of what is expected by a court in determining the value of
drugs with a
view to deciding whether the minimum sentence would be
applicable. In my view, such evidence should be meticulously placed
before
court during the presentation of the State’s case.
[60] In S v Sithole 2005(2) SACR 504
(SCA) at page 509 paragraph (12) Cameron JA held:
“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.”
[61] In S v Legoa
2003 (1) SACR 13
(SCA) at para’s [10] – [12], it was held 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.
[62] It is my view that the evidence
presented to the court a quo was not strong enough for a court to
find beyond reasonable doubt
that the value of the drugs exceeded R50
000,00 in respect of the second charge. I am therefore of the view
that in the absence
of sufficient evidence to prove this fact, the
Regional Magistrate misdirected himself when he imposed the
prescribed sentence
of 15 years’ imprisonment on each count. I
do not think it is therefore necessary for this court to deal with
the other
issues raised by Mr King as to why this court should
interfere with the sentence. This court is therefore at large to
impose a
sentence afresh. In my view, this sentence should be as
prescribed in terms of Section 17(e) read with Section 13 (f) and
Section
5(b) of Act 140 of 1992. The penalty for dealing is
imprisonment for a period not exceeding 25 years or to both such
imprisonment
and such fine as the court may deem fit to impose.
AN APPROPRIATE SENTENCE
[63] In considering an appropriate
sentence the court has to have regard to the personal circumstances
of the appellant, the offence
he had committed and the interests of
society.
THE PERSONAL CIRCUMSTANCES OF THE
APPELLANT
[64] The appellant was a first
offender. He is married and it seems he is a father of 2 children.
He was 42 years old at the time
of his sentence. He came to South
Africa from Nigeria in 1999. He married a South African woman with
whom he has been living
at the time of sentence for 12 – 13
years. They have 4 children. They were 11 years, 7 years, 2 years
and 18 months at
the time of his sentencing. He lived with his wife
up to the time of his arrest in a house in Milnerton. He had two
businesses
he was involved with up to the point of his arrest. One
was a cell phone shop and the other was a clothing business. During
the
commission of this offence, the accused was a first offender
although he was subsequently arrested and convicted on a similar
matter.
It is clear that a sentence of direct imprisonment will have
a negative effect not only on him but also his family life,
especially
a sentence of long term imprisonment. He is currently
serving a term of imprisonment of 10 years for a similar offence
committed
after his arrest on this case.
THE OFFENCE
[65] This offence which the appellant
had been convicted of can no doubt be regarded as serious. Although,
the evidence does not
clearly indicate what the market value of the
drugs was, a considerable amount of drugs were found in possession of
the appellant
for the purposes of dealing. This evidence clearly
shows that the appellant was unashamedly involved in drug dealing.
[66] Unscrupulous drug dealers like the
appellant prey on unsuspecting and innocent drug users who later
become addicts. These
addicts terrorise our society by committing
crime to satisfy their drug needs. This is a reality of the
drug-ridden society we
live in. The appellant was brazen in his
conduct and showed no remorse for his actions. It was only right
that the legislature
has ordained that certain prescribed sentences
apply if it can be proved that a case falls within certain
categories.
[67] The police and authorities have
extreme difficulty in curbing this type of offence. It seldom if
ever happens that the real
dealers like the appellant are brought to
justice. They usually make use of intermediaries or couriers to do
their dirty work
for them and usually reap the benefits and profits
at the expense of people who work for them.
INTERESTS OF SOCIETY
[68] No judicial officer, especially in
this Province, is oblivious to the scourge of drugs in our society.
This is the type of
offence that strikes at the heart of our society.
The scourge of drug abuse and addiction which people like the
appellant fuels
destroys the very fabric of our society. It leads to
all sorts of evils with unimaginable consequences. While all this
happens,
drug-dealers like the appellant continue to ply their trade,
with an arrogant and callous disregard to the costs to society, only
to satisfy their insatiable lust for money and power. It is in cases
like these that the interest of society demands a harsh sentence
in
order to be protected from people like the appellant. In the result
therefore the only appropriate sentence this court can impose
is one
of direct imprisonment.
[69] In the result therefore, I make
the following order:
1. The appeal against conviction on
both charges are dismissed;
2. The sentence imposed by the Regional
Court in respect of both counts is set aside;
3. The sentence is replaced with the
following:
a) In respect of count 1 the appellant
is sentenced to seven (7) years imprisonment;
b) In respect of count 2, the appellant
is sentenced to fifteen (15) years’ imprisonment.
The court orders that the sentence
imposed on count 1 runs concurrently with the sentence imposed on
count 2.
HENNEY, J
Judge of the High Court
I agree, it is so ordered.
BAARTMAN, J
Judge of the High Court