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Last Updated: 8 June 2005
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
Trafficking 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.
______________________________________________________________________________
J U D G M E N T
______________________________________________________________________________
CONRADIE
JA
[1] Mavis Xaba, the first appellant, and Joseph Zondo, the second
appellant, are brother and sister. They were wholesale cannabis
merchants. Both
were caught in an entrapment operation so well conducted 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 magistrate at
Middelburg
sentenced the first to twenty and the second to eighteen years’
imprisonment. Two other accused who had also pleaded guilty
were sentenced to
fifteen and ten years’ imprisonment after the regional magistrate had
taken all counts 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 two appellants
applied for leave to appeal.
Condonation for the late applications was granted but leave was refused on
8 October 1998. A long
delay then followed that appears to have been
largely caused by the disappearance of the original record. Eventually it was
reconstructed
to everybody’s satisfaction and on petition leave was
granted to the appellants to appeal to this court.
[3] The size of the
family business can be judged by the quantities of cannabis that the trap,
inspector Wilhelm 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 followed 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 Arendt 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’ homes and businesses in
Standerton served as depots for dagga sourced in the Bergville
area. The size
and audacity of their operation attracted the attention of the organised crime
and narcotics division of the area
police. Inspector Arendt was introduced 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 relationship 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 black people coming from the Bergville area but not whites and
especially
not a policeman. On a later occasion, when he was also observed by
the second appellant, Arendt delivered a cannabis consignment
at the first
appellant’s home dressed in full police uniform.
[7] These snippets
of evidence must be understood in the context of the evidence given by Captain
Botha, then the 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 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 gave 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 magistrate did not
in this regard have evidence before him that he could properly 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 that this is
correct. The regional 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 assessment. 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 argument that
the police operation went on for too long and served only to increase the
quantity of dagga that
the first appellant could be proved to have dealt in and
so unfairly 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 syndicate 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 exculpatory 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 dagga dealing
syndicate. The ‘syndicate’ was more like a
partnership. There were the sibling-partners (with the first appellant as
managing partner) and then, as one would expect, the helpers, two of whom were
also trapped. They performed odd jobs like 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 magistrate 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, 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 appropriate or desirable. How many years’
incarceration a particular drug offence will bring an accused
is something that
has to be determined by a general and necessarily 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 the penalties prescribed by the
lawgiver.
He or she then makes the adjustments required by the special
circumstances of the case, most prominent of which are the personal
circumstances of the accused: his record, his contrition and that kind of
thing.[1]
[12] The Drugs and
Drug Trafficking Act 140 of 1992 (‘the Act’) prescribes the same
maximum penalties for dealing in dangerous
dependence-producing substances as it
does for dealing in undesirable dependence-producing substances. Paragraph (f)
of section 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.’
[13] Cannabis merchants and heroin merchants thus face the same maximum
penalty. No one will dispute that the contraband 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 consignments worth millions, would attract a penalty
of twenty five years
imprisonment 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’ imprisonment imposed on the first appellant is
too close to the maximum prescribed punishment,
one manifestly intended for a
worst-case scenario. The sentence of eighteen years’ imprisonment imposed
on the second appellant
is, having regard 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.
[15] It is next necessary
and instructive to make that rough comparison between these sentences and those
that other courts 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 for 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 nearly 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 court 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 towards the end of
1997; the court a quo whose proceedings were concluded in October 1998
would not have known about it either. They would, however, 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.
[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 found 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 appellants’ offences, in particular the
evidently widespread corruption of the local police,
warrant a sentence up to
that level but not beyond. The first appellant’s sentence should be
altered to one of 14 years’
imprisonment and the second appellant’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
eighteen 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;
2. The sentence
of the second appellant is set aside and replaced by one of twelve
years’ imprisonment.
J H CONRADIE
JUDGE OFAPPEAL
CONCURRING:
NAVSA JA
BRAND JA
[1] S v Jimenez 2003 (1)
SACR 507 (SCA) paras [6] and
[16].
[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 outcome on use, whether controlled
or
not, for sacral purposes of, say, morphine or cocaine.
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