---

IN THE KWAZULU-NATAL HIGH COURT

PIETERMARITZBURG

REPUBLIC OF SOUTH AFRICA

CASE NOS. AR. 437 and 438/09

In the matter between

PETER ONYBO NNASOLU 1^st Appellant

GABRIEL ONWUKAIKE UCHE 2^nd Appellant

and

THE STATE Respondent

J U D G M E N T

Del.1 December 2009

STEWART A. J.

[1] Both appellants were convicted on 16 January 2009 in the District Court, Richards Bay, of the offence of contravening section 5(b) read with sections 1, 13(f), 17(e), 19, 25 and 64 of the Drugs and Drug Trafficking Act 140 of 1992 in that they unlawfully dealt with a dangerous dependence-producing substance, namely cocaine. They appeal against both conviction and sentence. The second appellant (Uche), who was accused 2 in the trial court, was given leave to appeal by the trial magistrate. The first appellant (Nnasolu), who was accused 1 in the trial court, was subsequently granted leave to appeal following a petition. It was arranged that the appeals be heard together, and it is convenient to deal with them both in one judgment. The appellant in appeal AR437/09 shall be referred to as the first appellant and the appellant in appeal AR 438/09 shall be referred to as the second appellant.

[2] The material evidence for the prosecution was as follows. Inspector Mostert of the Organised Crime Unit at Richards Bay received information that one ‘Peter’ with a particular cellphone number dealt in drugs and he resolved to set a trap for that person. He instructed Detective-Inspector Steenberg to telephone Peter on the cellphone number in question and arrange to purchase ten loops of cocaine. It was explained that a ‘loop’ of cocaine is one gram of cocaine in a plastic wrapper tied in a loop.

[3] Steenberg duly made the call, spoke to someone who introduced himself as ‘Peter’ and agreed to purchase ten loops of cocaine for R3,000.00. The person to whom he spoke agreed to throw in an extra loop because of the size of the order. It was agreed that they would rendezvous at Naval Island a few hours later to make the exchange. The cal was made at about 10pm.

[4] The police officers then photocopied the bank notes that they intended to hand over so that they could identify them again later. Thereafter they proceeded to Naval Island. Steenberg was accompanied by Inspector Louw in an unmarked police vehicle and Mostert travelled on his own in another vehicle. At Naval Island Mostert parked outside a restaurant where there were other vehicles and Steenberg and Louw parked a few hundred metres up the road where they could still be seen by Mostert.

[5] Steenberg called the same number that he had called previously on two further occasions. The first was to enquire from Peter where he was. The person who answered said that he was on his way. A while later Steenberg phoned him again and the person replied that he was ‘there’ and then terminated the call. Immediately thereafter the same person phoned Steenberg from a different number and asked where Steenberg was parked. Steenberg replied that he and a friend were standing next to their vehicle and he identified the vehicle and where it was parked. Immediately thereafter a Toyota Tazz approached with two occupants seated in the front seats. They were subsequently identified as the two appellants.

[6] The Tazz announced its arrival with a short blast on the horn and parked near Steenberg’s vehicle. Steenberg approached the driver’s side window of the Tazz. The passenger – who was subsequently identified as the first appellant – lent over towards the driver’s side window to speak to Steenberg. Steenberg greeted him and asked if they had the ‘stuff’. The first appellant replied that he did and asked for the money, whereupon the exchange took place. Steenberg was handed a small wrapped parcel by the first appellant in which it was subsequently established were 11 loops of cocaine amounting to 4.83 grams. Steenberg handed over the R3,000.00 in bank notes that had previously been photocopied.

[7] Thereafter the Tazz turned to drive out of Naval Island. Louw alerted Mostert that the deal had been done, whereupon Mostert placed a blue flashing light on the roof of his vehicle and reversed into the road to block it. It was the only exit road from Naval Island. The Tazz was accordingly stopped by Mostert with the other two officers close on its heels. The three officers then searched the vehicle. The bank notes were found under the passenger’s seat. They were identified as the same notes as had been given to the first appellant. The vehicle was being driven by the second appellant.

[8] The first appellant declined to make a warning statement on being arrested and he declined to explain his plea of ‘not guilty’ under s 115(1) of the Criminal Procedure Act 51 of 1977. The second appellant, however, made a warning statement in which he explained that he had received a telephone call from the first appellant earlier that night in which the first appellant had asked him to take the first appellant to Naval Island to fetch his (i.e. the first appellant’s) girlfriend. On being told by the first appellant that the first appellant would purchase petrol for the vehicle for the trip the second appellant agreed to take the first appellant to Naval Island for the stated purpose. He said that he knew nothing about the parcel that was exchanged and was merely doing the first appellant a favour by taking him to fetch his girlfriend. The second appellant subsequently gave evidence to essentially the same effect.

[9] The elements of the statutory offence in question include intention, or mens rea. That is to say, the onus was on the State to prove beyond a reasonable doubt that each of the appellants knew that they were dealing in a dependence-producing substance and that that was unlawful. Clearly such intention was not established with regard to the second appellant. The State quite rightly conceded that in the heads of argument and in argument in the appeal and the appeal of the second appellant must consequently succeed and his conviction and sentence must be set aside.

[10] In order to deal with the appeal of the first appellant it is necessary to first set out his defence at the trial. The first appellant gave evidence. He said that he had a friend by the name of Tony who is a dealer in jewellery. From time to time the first appellant had delivered parcels of jewellery for Tony to the buyers thereof. In return for that service Tony remunerated him.

[11] The first appellant explained that on the evening in question Tony telephoned him and asked him to deliver a parcel of jewellery at Naval Island. Since the first appellant did not have a motor vehicle he telephoned the second appellant and asked the second appellant to take him to Naval Island. He explained that he told the second appellant that the purpose of the trip was to fetch his girlfriend in order to induce the second appellant to agree to take him there because he would not have agreed to do so had he known that the reason was to deliver jewellery. En route they stopped at a garage to put petrol in the vehicle which was also where the first appellant met Tony and collected the parcel.

[12] The first appellant explained that Tony also gave him a cellphone which was Tony’s cellphone because the first appellant was to expect a call on that phone from the person to whom the jewellery had to be delivered in order to make the rendezvous. He said that we was not told how much money to collect in exchange for the jewellery. The first appellant sated that he thereafter received a call on that telephone. He introduced himself as Peter. The person calling asked ‘Where’s Tony’ and then terminated the call. The first appellant then called him back on his own phone because there was no credit on Tony’s phone.

[13] The first appellant’s version was thus that he knew nothing about the contents of the parcel save that he assumed that it contained jewellery because that is what Tony had told him. He said that he put the money under the seat of the motor vehicle after having made the exchange with Steenberg because he was scared that it might otherwise be stolen. This was because, so he said, that when the vehicle was stopped by Mostert and three others who were with Mostert they did not use the blue flashing light that Mostert said that they used and they did not initially identify themselves as policemen. The first appellant was accordingly concerned that the officers may have been robbers.

[14] The magistrate convicted the first appellant partly on the basis that Steenberg had given evidence that the person that he spoke to on each occasion on the telephone was the same person and that he judged that because he recognised the voice on each occasion to have been the same. That evidence was elicited by questions from the magistrate at the end of Steenberg’s evidence in chief and before cross-examination had begun. When the first appellant’s counsel endeavoured to cross-examine Steenberg on that evidence the magistrate disallowed the questioning.

[15] The first point for consideration in the appeal is accordingly whether the magistrate’s refusal to allow the first appellant’s counsel to cross-examine Steenberg on the voice identification was an irregularity such as to constitute a failure of justice as referred to in the proviso to s 309(3) of the Criminal Procedure Act or such s to render the trial unfair. That proviso states that in an appeal no conviction shall be reversed by reason of any irregularity in the trial unless it appears to the appeal court that a ‘failure of justice’ has in fact resulted from that irregularity.

[16] There can be no doubt that the restriction placed by the magistrate on counsel’s cross-examination constituted an irregularity. In that regard in S v Xaba 1983 (3) 717 (A) at 728D Botha JA stated as follows:

‘Generally speaking, an irregularity or illegality in the proceedings at a criminal trial occurs whenever there is a departure from those formalities, rules and principles of procedure with which the law requires such a trial to be initiated or conducted (see R v Thielke 1918 AD 373 at 376; S v Mofokeng 1962 (3) SA 551 (A) at 557G). The basic concept underlying s 317(1) is that an accused must be fairly tried (see S v Alexander and Others (1) 1965 (2) SA 796 (A) at 809C-D; and cf S v Mushimba en Andere 1977 (2) SA 829 (A) at 844H).’

[17] In terms of s 166(1) of the Criminal Procedure Act an accused has a right to cross-examine any witness called on behalf of the prosecution at criminal proceedings. Moreover, s 35(3) of the Constitution of the Republic of South Africa 1996 provides that every accused person has a right to a fair trial and in paragraph (i) of that sub-section it is provided that such a right includes the right ‘to adduce and challenge evidence’. The position was put as follows by Madondo J in S v Mgudu 2008 (1) SACR 71 (N) para 24 at 76g-h:

‘Cross-examination is … one of the essential components of the adversarial system of procedure. The purpose of cross-examination is to elicit evidence favourable to the party cross-examining and to challenge the truth or accuracy of the evidence given for the opposing party.’

[18] The voice identification evidence was integral to the magistrate’s reasoning on conviction. The importance of allowing voice identification evidence to be properly challenged is explained in S v Chitate 1966 (2) SA 690 (RA) and cannot be doubted. In the result the magistrate’s refusal to allow that cross-examination was an irregularity and the evidence elicited by the magistrate with regard to the voice identification must consequently by excluded. However, whether the irregularity was such as to render the proceedings a failure of justice and therefore to vitiate the conviction must still be examined.

[19] Historically the courts drew a distinction between a general category of irregularities and an exceptional category. In respect of the first, the question is ‘whether, on the evidence and the findings of credibility unaffected by the irregularity or defect, there is proof of guilt beyond a reasonable doubt’ (S v Tuge 1966 (4) SA 565 (A) at 568B). An irregularity in the exceptional category is one of such a nature as to amount to a failure of justice per se. Where the irregularity is so fundamental that it falls into the realm of the exceptional test the court might set aside the conviction without reference to the merits and the accused can be re-tried. On the other hand, where an irregularity falls into the general category if, but for the irregularity, there is not proof of guilt beyond a reasonable, then the accused is acquitted on the merits and cannot subsequently be re-tried. Similarly, if, but for the irregularity, there is proof of guilt beyond a reasonable doubt then the conviction stands. See S v Moodie 1961 (4) SA 752 (A) at 756C-758G and S v Shikunga and Another 2000 (1) SA 616 (NamSC) at 624C-625B.

[20] It was held by this court in S v Msithing 2006(1) SACR 266 (N) after a review of the pre-Constitutional era authorities that the constitutional entrenchment of the right to a fair trial has brought about a fundamental change in the criminal justice system with the result that the former categories of general and exceptional irregularities are no longer applicable. The question to be asked and answered in each case such as this is whether the accused had a fair trial. If answered in the negative, then a failure of justice would have occurred. The position was explained as follows by Theron J (at 273a-b):

‘[10] To my mind, the constitutional test as developed by our courts over the past ten years or so may be summarised as follows: a fundamental irregularity which violates an accused’s right to a fair trial must result in a failure of justice. If the irregularity is not of a fundamental nature the focus shifts to what would have happened but for the irregularity. The setting aside of a conviction based on the violation of the right to a fair trial in circumstances of a minor “tainting” of the proceedings will undermine the “pressing social need” to prosecute crime.’

[21] It is accordingly necessary to consider what would have happened but for the irregularity. In the present case if one excludes the voice identification evidence altogether one is left with the following. Mostert said that the information that he had was that it was a person by the name of Peter who was dealing in drugs.¹² Steenberg said that on the first telephone call that he made, which was to do the deal, the person who answered introduced himself as Peter. He then described his second call as being a call to Peter.³ In cross-examination Steenberg said that Mostert had informed him that the person that he was to call was Peter and that the person identified himself as Peter.⁴ Louw also explained that Mostert had said that Steenberg was to phone the suspect by the name of Peter.⁵ The relevant cellphone records were admitted into evidence and they reveal that each of the calls in question was made from Steenberg’s cellphone to the same cellphone number.

[22] As against the State’s evidence there is the evidence of the first appellant that the cellphone belonged to Tony and that Tony had given it to him when he (the first appellant) had collected the parcel of jewellery. That was after the first call must have been made when the deal was done. It is implicit in the first appellant’s version that the deal must have been made with Tony and that Tony then pretended to the first appellant that it was jewellery that had to be delivered and not cocaine.

[23] There are a number of difficulties with the first appellant’s version on this aspect. Before identifying the difficulties, it is important to acknowledge that the first appellant’s name is Peter. The significance of this is obvious: if Steenberg spoke to Peter rather than to Tony in the first conversation in which the deal was struck, then as between Tony and the first appellant it was the latter to whom he must have spoken.

[24] The first difficulty, then, is that it was never put to any one of the State’s three police-officer witnesses that the first call could not have been to Peter but must have been to Tony. Indeed, each instance of their testimony which I have already identified in which it was stated that the call was made to Peter was left unchallenged on behalf of the appellant, and some instances were elicited in cross-examination by the first appellant’s counsel. Also, Steenberg’s evidence that after the initial call there were two further calls by him to the cellphone in question was not challenged. The first appellant said that there was only one such call, but Steenberg’s evidence on this is corroborated by the cellphone call records. Moreover, it was never put to Steenberg that the first appellant’s version was that Steenberg had asked for Tony and had hung-up when the first appellant had said that he was Peter.

[25] The importance of cross-examining on points in dispute was put as follows by Claassen J in Small v Smith 1954 (3) SA 434 (SWA) at 438E-F, albeit in relation to a civil case:

‘It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him a fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.

Once a witness’s evidence on a point in dispute has deliberately been left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume in the absence of notice to the contrary that the witness’s testimony is accepted as correct. More particularly is this the case if the witness is corroborated by several others, unless the testimony is so manifestly absurd, fantastic or of so romancing a character that no reasonable person can attach any credence to it whatsoever.’

[26] The position is exactly the same in the modern era. See The President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2001 (1) SA 1 (CC) at 36J-37E, S v Boesak 2000 (3) 381 (SCA) at 397F-398I and S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC). The duties of a cross-examiner are equally applicable with regard to putting the accused’s version to the prosecution witnesses. See S v P 1974 (1) SA 581 (RA) at 582E-G and S v Mafu and Others [2008] ZAGPHC 38; 2008 (2) SACR 653 (W) at 659a-f.

[27] It was a serious failure on the part of the first appellant’s counsel not to challenge the prosecution witnesses that they could not have been dealing with Peter but must have been dealing with Tony. That is not to say that that failure is necessarily through any fault of counsel. The court does not know what his instructions were, but given that the first appellant was in court and heard the evidence one would have expected him to have given instructions to challenge it. Moreover, it would be unfair to the prosecution to now disregard that evidence which the prosecutor was entitled to take as having been accepted.

[28] The failure to put material aspects of the first appellant’s version to the prosecution witnesses and to cross-examine those witnesses on those aspects raises some doubt about that version. If the version was true, and not made up as the trial progressed, one would have expected that that version would have been properly explained to counsel and that counsel would then have conducted the case consistent with that version. One would also have expected the first appellant to immediately draw to his counsel’s attention the material differences that he had with the prosecution version. That said, the court must avoid placing too much significance on the failure to cross-examine and to put the first appellant’s version because it is not possible to know how much of that to ascribe to the first appellant and how much to ascribe to counsel.

[29] The next difficulty with the first appellant’s version is that it is highly improbable that a drug dealer (Tony) would give his cellphone to the courier (Peter) to enable the latter to make the practical arrangements for the rendezvous and exchange. The phone number in question is the one in respect of which Mostert had the information that it was used by a dealer. That information was confirmed when Steenberg phoned that number and made the deal. It would make no sense at all for the dealer to then give that phone to someone else for potentially a significant period of time – the parcel was collected from Tony in Empangeni and it had to be delivered in Richards Bay – during which other calls might be made to that phone for the purpose of deals. This is particularly so if the courier in whose possession the phone was placed was ignorant of the fact that he was a drug courier and not merely a jewellery courier. This improbability is all the more so in circumstances where Steenberg’s number was known to the first appellant, and consequently then also Tony, because the number had shown up on Tony’s phone – that is what enabled the first appellant to call Steenberg from his own phone.

[30] There is also the improbability in the first appellant’s version that Tony had told him and that he had believed that he was to deliver jewellery. Just what kind of jewellery business requires a last minute delivery late at night alongside a road in circumstances where a number of calls have to be made to finalise the rendezvous, the purchaser does not check to see the jewellery before handing over the cash and the courier does not know how much cash to expect? That was the first appellant’s version and it is clearly highly improbable. Indeed, the first appellant’s version that he did not know, or did not foresee the possibility, that he was delivering drugs is so incredible that in my judgement it cannot reasonably possibly be true.

[31] The version of the first appellant also conflicted with the version of the police-officer witnesses in certain material respects where the officers would have had no reason to lie whereas the first appellant did have such a reason. For example, Steenberg and Louw said that when the Tazz parked at the rendezvous point it was Steenberg who went up to the Tazz. The first appellant, however, said that it was he who alighted from the Tazz and went up to the police-officer’s vehicle. The significance of this is that the first appellant was apparently trying to protect the second appellant by removing him from having had anything to do with the transaction and allowing him to say in evidence, which he did, that he did not see any exchange. It is not insignificant that this difference in versions was also not put to the prosecution witnesses.

[32] Also, the first appellant said that there were three officers in addition to Steenberg and Louw who accompanied Mostert when Mostert blocked the road and stopped the Tazz, whereas the officers each said that there were only the three of them in total. The first appellant also said that there was no blue light, whereas Mostert said that he used a blue flashing light. There is no reason for the officers to lie on these issues, whereas the first appellant used his version to justify his stated belief that he was about to be robbed which is why he hid the bank notes under the seat.

[33] There is another aspect on which the evidence of the police-officer witnesses differed from the evidence of the appellants. That is that the officers said that the parcel which contained the cocaine was opened in front of the appellants whereas the appellants denied this. Again, the only apparent significance in this difference is a possible attempt by the appellants to distance the second appellant from any knowledge of drugs and to challenge the chain of evidence. The chain was, however, not challenged, it having been accepted on behalf of the appellants that the substance that was in the parcel was cocaine.

[34] On his own version the first appellant lied to his friend, the second appellant, about the purpose of the trip to Naval Island.

[35] Whilst appreciating that it is insufficient cause to reject the whole version of a witness, or an accused, that he was found to have been dishonest about some aspect of it, in this case the first appellant demonstrated that his evidence was generally unreliable. He was prone to dishonesty and his version that the telephone which was called to make the deal was Tony’s phone and that he did not know, or foresee the possibility, that the parcel contained drugs was rightly rejected by the magistrate. In those circumstances the State’s evidence that it was the first appellant with whom the deal was struck was rightly accepted.

[36] It does not seem to me that there was any realistic prospect that the cross-examination on the voice identification could have had the result that Steenberg would have conceded not only that the person to whom he spoke during the first call may not have been the same person as the person to whom he spoke in the subsequent calls, but that it positively was a different person. Indeed, Mr Fraser who argued the appeal on behalf of the appellants, did not go so far in his submissions. He said only that the cross-examination may have had the result that the witness conceded that the possibility that it was not the first appellant who answered the first call. That result can in any event now be achieved on appeal by disregarding the voice identification evidence altogether. In the circumstances I am satisfied that the magistrate’s refusal to allow cross-examination on the voice identification evidence did not result in a failure of justice. Although unfair, it did not result in an unfair trial such as to vitiate the trial. I am also satisfied that there was sufficient evidence to establish the guilt of the first appellant beyond a reasonable doubt.

[37] The next ground on which the appeal was argued was that the magistrate’s questioning of the first appellant amounted to cross-examination of the first appellant. It is true, as it was submitted to us, that the prosecutor’s cross-examination of the first appellant is recorded in one and a half pages whereas the magistrate’s ‘one or two questions for re-examination purposes’ is recorded in more than five pages. However, it is the nature of the questions that is important and not how many there were or for how long the questioning lasted. Most of the questions are open questions in which the magistrate merely sought clarity on certain important issues particularly with regard to the first appellant’s version about his relationship with Tony and Tony’s jewellery business. However, there are a few instances in which the magistrate might be said to have overstepped the mark – they are the instances relied on by the first appellant’s counsel. They are recorded in the following exchanges:

‘Sir, do you want me to believe that Tony will give you just a parcel and not show you what is in there and to whom are you going to deliver it and how much is he going to give it to you? --- He told me the contents of the parcel. He told me they were jewelleries.

Sir, you – I’m talking to you now, do you want me to believe that I will give you and just tell you what is in the parcel just to say what is in the parcel, not to show you what is in the parcel and to whom to deliver and how much that person is going to get? --- The reason I did not question him, why I assumed it was jewellery was because I had been assisting him in the past and I’ve seen him – I stopped to see where he packaged these things, this jewellery in the past so on the day in question, I had no reason to doubt that it was jewellery inside the packet.

...

Sir, what you are telling me now, it’s nonsense. He was not interested in Tony, he was interested in the cocaine. Don’t tell me nonsense here, please. --- I do not know what the contents of the parcel was.

Don’t – please, don’t play games with me. You said you knew it was jewellery and now you are saying that you didn’t know the contents of the parcel. --- Tony told me it was jewellery. I did not open to know if it was another thing.’⁶

[38] The role of the judicial officer in the trial and the duty on that officer to ensure that justice is done and to avoid entering the arena is dealt with exhaustively in S v Rall 1982 (1) SA 8282 (A). This subject was revisited more recently in this court in S v Mseleku and Others 2006 (2) SACR 237 (N). For present purposes the following principles can be identified. The presiding officer should not enter the area. He or she is entitled and often obliged in the interests of justice to put such additional questions to witnesses, including the accused, as seem to him or her desirable in order to elicit or elucidate the truth more fully in respect of relevant aspects of the case. The presiding officer should not only ensure that justice is done, he or she should also ensure that justice is seen to be done. The trial should therefore be conducted in such a way that the open-mindedness, impartiality and fairness of the judicial officer are manifest to all those who are concerned in the trial and its outcome, especially the accused. The presiding officer should refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him or her from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him or her. The presiding officer should refrain from questioning a witness or the accused in a way that may intimidate or disconcert him or her or unduly influence the quality or nature of the replies and thus affect his or her demeanour or impair his or her credibility.

[39] In my view the present case falls far short of those cases where the role of the judicial officer has led to an unfairness in the trial. The magistrate might have overstepped the line in putting to the first appellant that he was ‘talking nonsense’ and ‘playing games’. But the questions in which those statements were made, and the responses that they elicited, had no particular influence on the trial and its outcome. This case is one which falls far short of those cases where the court has interfered on appeal because in the trial court the judicial officer ‘entered the arena’.

[40] Finally, it was argued on behalf of the appellants that there was an irregularity in the trial in that the magistrate failed to make a ruling on whether the evidence obtained in the police trap was admissible or not. It was argued that the magistrate’s ruling on the point would have impacted on the decision whether or not the appellants gave evidence.

[41] Section 252(A)(1) of the Criminal Procedure Act provides that any law enforcement officer may use a trap or engage in an undercover operation in order to detect, investigate or uncover the commission of an offence and the evidence so obtained shall be admissible if that conduct does not go beyond providing an opportunity to commit an offence, provided that where the conduct goes beyond providing an opportunity to commit an offence a court may admit evidence so obtained subject to sub-section (3). Sub-section (2) provides that in considering the question whether the conduct goes beyond providing an opportunity to commit an offence the court shall have regard to a list of factors stated in 14 paragraphs which include in paragraph (a) whether, prior to the setting of the trap, ‘approval, if it was required, was obtained from the attorney-general to engage such investigation methods’. The possible relevance of this will become apparent. Sub-section (3) provides that if a court finds that in the setting of a trap the conduct goes beyond providing an opportunity to commit an offence, the court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already tendered, to stand, ‘if the evidence was obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice’.

[42] The first complaint is that the trap in question did not have the ‘approval’ of the Director of Public Prosecutions as referred to in s 252A(2)(a). But this complaint seems to go nowhere since it is not established that a trap of the nature of the one in question required such approval. Indeed, Mr Mcanyana on behalf of the State told us in argument that there was no such requirement in this case, and Mr Fraser on behalf of the first appellant accepted that as being correct.

[43] If the evidence obtained during the trap was to be disallowed, then unquestionably the conviction would have to be set aside – there would simply be no evidence on which to convict. Equally, if that evidence is admitted then whether or not the accused testified is neither here nor there since no part of their evidence is necessary to sustain the convictions. It follows that the real question, if there is one, is whether the trap went beyond providing an opportunity to commit an offence and, if it did, whether the evidence was obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice (as referred to in s 252A(3).

[44] For present purposes I am prepared to assume in the first appellant’s favour that the trap went beyond providing the opportunity to commit an offence. That brings s 252(A)(3)(b) into play. It sets out a list of factors to consider in weighing up the public interests as against the personal interests of the accused in reaching a decision on the admissibility of the evidence obtained from such a trap. In brief, those factors include the nature and seriousness of the offence, the extent of the effect of the trap upon the interests of the accused, the nature and seriousness of any infringement of any fundamental right contained in the Constitution, whether in the setting of a trap the means used was proportional to the seriousness of the offence and any other factor which ought to be taken into account.

[45] The relevant principles were recently explained by the Supreme Court of Appeal in Kotzẻ v the State [2009] ZASCA 93 (15 September 2009). In that case an extensive undercover police operation had lured the appellant into a number of illicit diamond deals in an operation quite incomparable to the present. That notwithstanding, the evidence of the undercover police-officers with regard to those deals was held on appeal to have been properly admitted. In the present case, as in Kotzẻ’s, the version of the appellant with regard to his knowledge and involvement was rightly rejected. The evidence obtained in the trap does not address the essential issue on which the appellant’s version depends, namely that the appellant had no mens rea because he thought that he was carrying jewellery and not cocaine. In that context, the admission of the evidence obtained in the trap renders no unfairness on the appellant and the evidence was rightly admitted.

[46] In the result, in my opinion the first appellant was rightly convicted and the appeal against conviction should be dismissed.

[47] That now takes one to the question of the appeal against sentence. The first appellant was sentenced to 25 years’ imprisonment.

[48] Although punishment is pre-eminently for the discretion of the trial court, the court on appeal can interfere with sentence if it is vitiated by irregularity, misdirection or is disturbingly inappropriate (S v Rabie 1975 (4) SA 855 (A) at 857D-F). Any sentence imposed must reflect a balance between the offender, the crime and the community interests (S v Zinn 1969 (2) SA 537 (A)).

[49] It was conceded before us on behalf of the State that the sentence imposed by the trial magistrate is totally out of proportion to the gravity or magnitude of the offence, that the sentence evokes a feeling of shock or outrage, that the sentence is grossly excessive and that it is in the interests of justice to alter it. That concession was quite rightly made.

[50] The relevant facts and considerations on sentence would appear to be the following. The first appellant admitted one previous conviction. In May 2001 he was convicted on two counts of abuse of dependence-producing substances in respect of an offence committed in July 2000. Both counts were treated as one for sentence. He was sentenced to five years’ imprisonment, half of which was suspended for five years on condition that he was not convicted of a contravention of section 5 of the Drugs and Drug Trafficking Act. The period of suspension consequently expired in May 2006 and the events that led to the conviction preceded the events in the present case by some seven and a half years – the events in respect of the present conviction occurred in January 2008.

[51] The first appellant is 31 years old, he is single, and he has a son who in January this year was two years old. Prior to his arrest he was earning R1,500 per month by working at Checkers as a packer. It appears that prior to that he used to fix cellphones. The mother of his child and her two sisters are both dependent on the appellant. When he was sentenced on 16 January 2009 the first appellant had been in custody for a year. That is also a relevant circumstance.

[52] The personal circumstances of the appellant are, as usual, heart-wrenching in as much as there are other people dependent on the appellant who will suffer as a consequence of his crime and his incarceration. Weighed against that, however, are the considerations that drug dealing is a prevalent crime which leads to not only the feeding of drug addiction but also the generation of further addiction which in turn leads to further offences. The community therefore has a keen interest in seeing that drug dealers are incarcerated, to keep them from perpetuating their harm on the community and as a disincentive to others. Weighing up all the factors, I consider that a sentence of ten years’ imprisonment of which half is suspended for five years on condition that the appellant does not in that time commit an offence under section 5 of the Drugs and Drug Trafficking Act in respect of which he is then convicted.

[53] To summarise, I would:

• In case AR 438, allow the appeal and set aside both the conviction and sentence;

• In case AR 437, dismiss the appeal against conviction but allow the appeal against sentence replacing the sentence by the magistrate with the following sentence:

‘The accused is sentenced to imprisonment for a period of 10 (TEN) years half of which is suspended for five years on condition that accused does not in that time commit an offence under section 5 of the Drugs and Drug Trafficking Act 140 of 1993 in respect of which he is then convicted.’

SISHI J. : I agree and it is so ordered.

---