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Reeding and Another v S (A648/04) [2005] ZAWCHC 13; 2005 (2) SACR 631 (C) (4 February 2005)

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Acting on reports received from an informer that first appellant was selling drugs to prisoners in the holding cells, Inspector J May of SANAD sought and obtained authority to launch a trap operation in the cells. One Dean Jacobs was used as a trap. In cooperation with a local police officer Jacobs was placed in the cells on the morning of 22 September 1999. He approached first appellant asking him to buy him mandrax and dagga. He tendered R200 for this purpose. First appellant eventually procured 10 small packets of dagga and one Mandrax tablet which were later handed to Jacobs by second appellant. Jacobs then gave a pre-arranged signal to Inspector May who entered the cells, seized the drugs in question and arrested second appellant and thereafter, outside the cells, first appellant.

Both appellants pleaded not guilty. In a lengthy plea explanation the appellants in essence admitted the factual matrix set out above. On behalf of first appellant, the defence was raised that the State had not complied with the provisions of section 252A of the Criminal Procedure Act 51 of 1977. It was averred that first appellant had been enticed into committing the offence through repeated importuning on the part of the trap and an attempt to play on his sympathy. It was said that the State had come to court with "dirty hands". The State's action in trapping both appellants was said to have infringed on his right to a fair trial and was challenged as unconstitutional.

On second appellant's behalf a different defence was raised, namely, that he had merely been an instrument of the first appellant and had at no time been aware that he was handling or delivering drugs to the trap. More particularly, it was averred that he at all times believed that the Mandrax tablet was a pain tablet and that he had been unaware that the package which he was required to hand over to the trap contained dagga.

On appeal on behalf of the appellants, counsel argued in his heads that the State's evidence should be rejected in favour of that tendered by them; alternatively, even if the State's version was accepted, the version given by the appellants could not be rejected as false beyond any reasonable doubt. This argument is, notionally at least, tenable insofar as it applies to the second appellant, who denied any knowledge of the unlawfulness of his conduct. At first glance, however, the argument appears not to assist the first appellant since not only did he admit to the conduct in question, namely procuring the drugs for the trap, but also testified that he knew what he was doing was unlawful. By implication, the argument on behalf of first appellant was at best that his version of the circumstances which gave rise to him procuring the drugs should be accepted and, on that version, the Court should find that the conduct of the trap went "beyond providing an opportunity to commit an offence" as defined in section 252A(1) read with 252A(2). Consequently, it was argued, the evidence relating to the trap was inadmissible since neither did it qualify for admission in terms of section 252A(3) of the Act. There is a further leg to this argument which I will revert to in due course.

In order to consider the merits of first appellant's defence it is, in my view, necessary by reason of the structure of section 252A and the challenge mounted by the appellants, to first determine the lawfulness of the trap arrangements, then to decide whether the evidence was automatically admissible in terms of section 252A(1) and, if not, whether such evidence was admissible in terms of the criteria set out in 252A(3). If the trap was unlawful or evidence of the trap was admissible upon neither basis, it seems to me that first appellant's conviction cannot be sustained.

The further question then is whether appellants' version of the circumstances surrounding the trap was reasonably possibly true and, if so, what implications this has for their convictions.

Insofar as it is relevant, section 252A reads as follows:

"1. Any law enforcement officer, official of the state or any other person authorised thereto for such purpose (hereinafter referred to in this section as an official or his or her agent) may make use of a trap or engage in an undercover operation in order to detect, investigate or uncover the commission of an offence, or to prevent the commission of any 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)."

There follows fourteen factors which the Court must take into account in determining whether the conduct in question "goes beyond providing an opportunity to commit an offence". "1.They read as follows: Section 252A(2)(a) 'Whether, prior to the setting of a trap or the use of an undercover operation, approval, if it was required, was obtained from the attorney general to engage such investigation methods and the extent to which the instructions or guidelines issued by the attorney-general were adhered to"; (b) 'the nature of the offence under investigation, including -(i) whether the security of the State, the safety of the public, the maintenance of public order or the national economy is seriously threatened thereby; (ii) the prevalence of the offence in the area concerned; and (iii) the seriousness of such offence'; (c) 'the availability of other techniques for the detection, investigation or uncovering of the commission of the offence or the prevention thereof in the particular circumstances of the case and in the area concerned'; (d) 'whether an average person who was in the position of the accused, would have been induced into the commission of an offence by the kind of conduct employed by the official or by his or her agent concerned'; (e) 'the degree of persistence and number of attempts made by the official or his or her agent before the accused succumbed and committed the offence; (f) 'the type of inducement used, including the degree of deceit, trickery, misrepresentation or reward'; (g) the timing of the conduct, in particular whether the official or his or her agent instigated the commission of the offence or became involved in an existing unlawful activity'; (h) 'whether the conduct involved an exploitation of human characteristics such as emotions, sympathy or friendship or an exploitation of the accused's personal, professional or economic circumstances in order to increase the probability of the commission of the offence'; (i) 'whether the official or his or her agent has exploited a particular vulnerability of the accused such as a mental handicap or a substance addiction; (j) 'the proportionality between the involvement of the official or his or her agent as compared to that of the accused, including an assessment of the extent of the harm caused or risked by the official or his or her agent as compared to that of the accused, and the commission of any illegal acts by the official or his or her agent'; (k) 'any threats, implied or expressed, by the official or his or her agent against the accused'; (l) 'whether, before the trap was set or the undercover operation was used, there existed any suspicion, entertained upon reasonable grounds, that the accused had committed an offence similar to that to which the charge relates'; (m) 'whether the official or his or her agent acted in good or bad faith'; (n) 'any other factors which in the opinion of the court has a bearing on the question."

Section 252A(3)(a) reads as follows:

"If a court in any criminal proceedings finds that in setting the trap or the engaging in an undercover operation 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."

There follows five categories of factors which the Court must have regard to in determining this enquiry. It is to be noted that the magistrate found that the traps' evidence was admissible, both when an objection was raised at an early stage of the matter and in his judgment on conviction. In this finding I consider that the magistrate was correct. I deal firstly with the lawfulness of the trap. Section 252A(1) requires any law enforcement officer to be authorised to conduct the trap. Section 252A(2)(a) states one of the factors which the courts must have regard to is:

"Whether, prior to the setting of the trap or the use of an undercover operation, approval, if it was required, was obtained from the Attorney-General to engage such investigation and the extent to which the instructions or guidelines issued by the Attorney-General were adhered to;"

Sub-section (4) provides:

"An attorney-general may issue general or specific guidelines regarding the supervision and control of traps and undercover operations and may require any official or his or her agent to obtain his or her written approval in order to set a trap or to engage in an undercover operation in any place within his or her area of jurisdiction and in connection therewith to comply with his or her instructions, written or otherwise."

The lawfulness of the trap

On 20 September 1999, Inspector May made written application to the provincial co-ordinator of traps and undercover operations, South African Police Service, for authority to conduct a trap operation against first appellant at the Somerset West Magistrate's Court cells using Jacobs as the trap. Although first appellant's name was not mentioned in the written application by reason of the sensitivity of the matter, it was conveyed telephonically by May to the responsible official, one Captain Bekker. On the following day May received written authority from Bekker to conduct the operation, subject to the provisions of section 252A being complied with at all times and subject to the further qualification that if any details of the operation changed, these would have to be communicated in writing to the responsible officer or official for reconsideration and approval thereof.

Bekker confirmed May's evidence regarding the application. He testified further that in response to the application he discussed it with the Deputy Director in the Director of Public Prosecutions' office who furnished the necessary permission for the trap operation to proceed without laying down any specific guidelines. According to Bekker, it was not strictly necessary for him to obtain the permission of the Director's representative since the trap in question was a straightforward one, but he decided to seek permission because the intended target was a member of the South African Police Service. Having regard to the relevant provisions of section 252A it seems clear that the permission of the Director of Public Prosecutions was obtained for the trap, notwithstanding that this was not strictly necessary.

There were two procedural challenges to the lawfulness of the trap. The first involved the suggestion that when permission had been sought for the use of Jacobs as the trap, he himself had not been approached for his consent to so act. The suggestion relied on evidence from Jacobs that he had initially been contacted by Inspector May a day or so later than the written application. On the evidence I have no doubt that Jacobs was mistaken by a day or so in this regard. May's evidence in this regard was convincing, namely that he would never have cited Jacobs' name or number in his application to use as a trap unless he had first approached him. Secondly, it was suggested, albeit faintly, that there had been a variation in the details of the trap operation in that the original application envisaged an attempt being made to purchase five mandrax tablets from first appellant and that the variation had not been approved in writing, nor had approval been sought.

The evidence regarding exactly how many tablets Jacobs asked first appellant to purchase is unclear but, in my view, this does not in any way invalidate the trap procedure. It was conducted along the same general lines envisaged in the application, namely, an attempt to purchase drugs which the suspect was suspected of selling. Inspector May testified that in the nature of things what precisely the trap would ask for would depend on the prevailing circumstances and the reference to five Mandrax tablets was no more than a guideline. In my view, it would be quite artificial and unrealistic to interpret the permission granted for the trap so strictly as to preclude Jacobs from seeking to purchase in anything more than that laid down in the original application.

In all the circumstances I am satisfied that the correct and necessary procedures were followed in obtaining permission to execute the trap operation.

The admissibility of the trap's evidence

Whether the evidence obtained from the trap is automatically admissible depends on whether his/her conduct went "beyond providing an opportunity to commit an offence". Section 252A has not defined in terms what such conduct constitutes, but sets out numerous factors which a court must have regard to in determining whether such conduct took place. Both this concept and these factors have been criticised for a lack of clarity (see S v Odugo 2001(1) SACR 560 at 565h-567a; and Du Toit et al: Commentary on the Criminal Procedure Act at 24-131 to

24-134). Section 252A remains unamended on our Statute book, notwithstanding a judicial recommendation that it be clarified.

Whilst it is correct that some of the factors outlined in the section do not relate to the question of the degree of inducement or encouragement by the trap of the accused to commit the offence in question, all factors listed must be considered in determining whether the conduct of the trap "does not go beyond providing an opportunity to commit an offence". The factors listed in sub-section 2(d)-(i) as well as (k) have a direct bearing and, less directly, factor (j), on the question of the degree of inducement or encouragement by the trap of the accused. Considering the factors set out in sub-sections 2(d)-(f) in relation to the present matter, the evidence suggest that the scales are tilted heavily against first appellant. An average person serving as a member of the South African Police Service would, in my view, hardly have been induced to purchase mandrax and dagga for a prisoner simply because his sympathy was aroused by the prisoner's claim that if he arrived at Pollsmoor with empty hands he might suffer some harm from fellow prisoners. As was put to first appellant in cross-examination, had his sympathy truly been aroused there were many other courses of conduct open to him other than the act of unlawfully procuring drugs for the prisoner. As to the degree of persistence by the trap, when the evidence is analysed, even on first appellant's own version he was only asked twice by the trap to purchase drugs before he appeared to agree in principle to do so. It was entirely open to first appellant to ignore any supplications from the trap who at all material times was confined to a prison cell. In the nature of things there was a degree of deceit involved in the trap, in that Jacobs held out that he was to be removed to Pollsmoor and wanted to arrive there with drugs, whereas in truth this was a charade. There was, however, no direct inducement or reward inasmuch as, on Jacobs' unchallenged version, the first appellant was promised nothing for his services - a fact incidentally which renders his version that he was acting merely out of compassion all the more improbable.

In regard to the factor in sub-section (2)(g), it was Inspector May's evidence that reports had been received that first appellant was engaged in drug-dealing in the course of his duties. Thus,accepting such evidence for this limited purpose, the trap was sent in not to instigate the commission of the offence but to become involved in existing unlawful activities.

As far as an exploitation of first appellant's human characteristics is concerned, (section 252A(2)(h)) the only factor or emotion which the trap sought to play upon, arguably at least, was first appellant's sympathy for the trap's apparent predicament relating to his safety when he arrived at Pollsmoor Prison. Equally this story on the part of the trap can be seen as a plausible cover story to justify his seeking to have first appellant buy drugs for him. No question arose of the trap exploiting a particular vulnerability of first appellant and certainly no threats, express or implied, were alleged to have been made by the trap against the official (sub-section 2(i) and (k)).

The factor listed in sub-section (2)(m), whether the trap acted in good or bad faith, is somewhat problematic since it is difficult to attribute good faith to someone who is deliberately dissembling. Giving it a more restricted meaning in the context of a trap, however, there is no evidence to suggest that Jacobs bore any ill-will or malice towards the first appellant or that he was doing anything other than playing his part in a bona fide trap.

Finally there is the factor set out in sub-section (2)(j), the proportionality requirement. On the unchallenged evidence the trap's conduct consisted of tendering R200 to first appellant and asking him to purchase drugs. To accede to this request to commit the offence first appellant had first to accept the money, leave the cells, go home and, according to his version, approach a semi-stranger to ask him to procure the dagga and mandrax tablets. Thereafter, first appellant returned to the cells and arranged with second appellant for the drugs to be handed to the trap. This was not an instance of a trap pressing drugs or illicit diamonds on an initially unwilling customer and then immediately arresting the recipient. After the initial approach by the trap, first appellant had to make all the running, so to speak, in order to commit the offence. Thus, in the proportionality evaluation, although the action of the trap was the catalyst for the commission of the offence, the first appellant was a far more active partner in the conduct which made up the elements thereof.

As far as the remaining factors which must be taken into consideration, namely sub-sections (2)(a), (b), (c), (l) and (n), I have already found, in the first place, that the trap was authorised. Although it would be straining credulity to hold that the security of the state and safety of the public or the maintenance of the public order or a national economy was seriously threatened by the alleged offence and there was no evidence concerning the prevalence of the offence, there can be no doubt that the offence of supplying drugs, including a hard drug such as mandrax (methaqualone) to prisoners, must be considered a serious offence. Whilst it is quite possible that the State might have been able to secure evidence against the first appellant by means other than a trap, given the nature of the alleged offence, i.e. taking place in a court's holding cell under first appellant's sole control and assisted by the second appellant, it is plain that in the circumstances the use of a trap was an appropriate and reasonable technique of detection. As previously mentioned, before the trap was set there existed suspicion, based on reports received from an informer who had proved reliable in the past, that first appellant was indeed dealing in drugs in the cells.

Taking all factors into account I have come to the conclusion that the conduct of the trap did not go beyond providing an opportunity to commit an offence with the result that the ensuing evidence was automatically admissible. It must be borne in mind, however, in considering the admissibility of trap evidence, that section 252A is itself subject to section 35(5) of the Constitution which renders inadmissible evidence obtained in violation of any right in the Bill of Rights where its admission would result in an unfair trial or "otherwise be detrimental to the administration of justice." In casu the appellants alleged that their constitutional right to a fair trial had been infringed upon by the role of the trap and thus the enquiry envisaged in section 35(5) must be embarked upon. The approach to be adopted in considering the admissibility of trap evidence, and which marries the terms of section 252A(2) and section 35(5), advocated by Du Toit et al (at 24-134) is to consider, using the criteria listed in sub-section (2), whether admission of the evidence has without doubt not rendered the trial unfair or is otherwise not detrimental to the administration of justice. In my view, however, this standard of proof is inappropriate in the context of determining the admissibility as opposed to the weight of the evidence and, moreover, sets the bar too high. Section 252(6) provides instead that an onus rests on the State to prove the admissibility of evidence on a balance of probabilities. This, in my view, is the correct standard of proof if Du Toit's general approach is to be followed.

On either standard, but certainly on a balance of probabilities, I see no risk that the admission of the trap's evidence would have the abovementioned consequences. Even if I am wrong in finding that the conduct involved in the setting and execution of the trap goes beyond providing an opportunity to commit the offence, I would have no hesitation in admitting the trap evidence in terms of sub-section (3)(a) after a consideration of the factors listed in 3(b). In my view, the admission of the trap's evidence would in no way render the trial unfair or be detrimental to the administration of justice for the reasons set out above, and at the same time bearing in mind that our courts have accepted that trap evidence is admissible in appropriate circumstances and is a tool in the administration of the criminal justice system.

In weighing the public interest against the first appellant's personal interests, I would give particular weight to the seriousness of the offence, the difficult of detecting or preventing its commission without the use of a trap, the fact that there was limited, if any, disregard of the accused's rights, the lack of any prejudice to the accused resulting from any improper and unfair conduct, and the proportionality of the means used in setting the trap in relation to the seriousness of the offence. I would also take into account that the offence in question was allegedly committed by a member of the South African Police Service in an apparent gross abuse of his position with all the deleterious consequences that flowed therefrom.

Having found the evidence of the trap to be admissible and bearing in mind the first appellant's admissions made through his plea explanation and during the course of the trial, it remains to evaluate all the evidence placed before the Court. In view of the limited factual disputes, this comes down to determining whether it is reasonably possibly true that first appellant's version of the degree of inducement and supplication on the part of the trap, coupled with first appellant's alleged desire to assist the trap, was such as to render the trap's evidence inadmissible in terms of section 252A(2) and (3). Acceptance of such a possibility would appear to create a paradox whereby the appellant's acquittal would require a finding that it is reasonably possibly true that the conduct of the trap was such as to render the evidence inadmissible, despite an earlier finding that the evidence of the trap is admissible. Obviously, however, the trap's evidence is either admissible or inadmissible. For the reasons which follow, however, it is not necessary, in my view, for this Court to wrestle with this paradox. As I have mentioned, much of the evidence given by the trap and the first appellant concerning the drug transaction is common cause. The only material difference was that highlighted in the plea explanation advanced on behalf of the first appellant where it was stated that:

"Jacobs het basies die beskuldigde getreiter deur hom verskeie kere te versoek om die betrokke items te gaan kry. Hy sou ook aan die beskuldigde genoem het dat hy sou doodgemaak word indien hy met leë hande tronk moes aankom en hy sou dit verskeie kere dit aan beskuldigde 1 noem. Beskuldigde 1 het dan einde ten laaste geswig oor hierdie aanhoudende versoeke van Dean Jacobs en die betrokke items... verkry."

This version was not borne out by the evidence. Jacobs testified that he spoke to the first appellant approximately three to four times that morning, but that the latter acceded, at the latest stage on his second approach, to "see what he could do" to procure the drugs and to that end took the proffered R200. Thereafter, on the further occasions on which Jacobs spoke to first appellant, he was merely asking whether he had in fact obtained the drugs and when the trap was going to receive the drugs. Jacobs admitted telling the first appellant that he was a "frans", a person who is not affiliated to any prison gang but must instead look after himself in prison. Further evidence regarding such persons was that they are more vulnerable in prison in that they are preyed upon by gang members and cannot claim the protection of any gang. Jacobs repeatedly denied pleading with first appellant to procure him drugs, testifying that the appellant readily agreed and that his further approaches to him during the morning were to ascertain whether he had already obtained the drugs.

First appellant testified that he had been repeatedly begged by Jacobs to purchase drugs for him and he eventually took his money but said that he was promising nothing. Under cross-examination he claimed that Jacobs said that his life was in danger. It later emerged, however, that when first asked by Jacobs he had refused, but on being asked a second time he had said that he would do what he could do without making any promises. By implication it would appear that he took the trap's money no later than this stage. First appellant stated that he acceded to the trap's request because he reasoned that he would not continue asking him for drugs if his life was not actually in danger. It then transpired that what Jacobs had actually said was that he feared being hurt in prison - "seergemaak word" - and that first appellant could not remember whether he used the word "doodmaak". It was noteworthy that it was never put to Jacobs that he has said that his life was in danger.

On first appellant's version what the evidence comes down to is that he, a policeman in charge of the cells, was asked once by a prisoner to get him drugs with the explanation that he was a "frans" and could come to harm if he arrived at Pollsmoor Prison empty-handed. Initially he refused but on being asked a second time he acceded to the request saying that he was making no promises. First appellant then proceeded to leave the cells, go home, delay his plans to attend a funeral in order to procure drugs from a semi-stranger who had passed by his house and then bring them back to the cell and handed them to the second appellant for delivery to the trap. This took place without any promise or expectation of reward, and despite the fact that first appellant deals with scores of prisoners daily, many of whom must have been "franse", i.e. unaffiliated to gangs.

In my view, the magistrate was correct in finding that this version was so improbable as to be rejected. Viewed against a conspectus of all the evidence it is simply not reasonably possibly true. The notion of first appellant risking not only his career, but imprisonment, to procure drugs for a prisoner to whom he owes nothing, with whom he has no family or personal connection, but simply because he is sympathetic to that person's plight is utterly improbable and falls, in my view, to be rejected out of hand.

It remains only to be said that the first appellant was not an impressive witness. On the other hand, Jacobs' evidence, although by no means without blemish, was coherent, logical and withstood lengthy cross-examination. Whilst it is correct that he was a single witness, sight must not be lost of the fact that his evidence was confirmed in all material respects by that of the first appellant. Once first appellant's version that he was an unsullied person who procured drugs out of sympathy for the trap and as a result of pressure brought to bear on him is rejected as not being reasonably possibly true, any shadow of a defence that remained, is gone. It follows, in my view, that first appellant's appeal against conviction must fail.

Turning to the second appellant, different considerations arise. His offence is that he never had the necessary mens rea and that he was unaware that he was dealing with dagga or mandrax tablets. On second appellant's version he was handed a dagga tablet in a transparent bank bag with instructions to hand it to Jacobs. Furthermore, he was similarly instructed by first appellant to hand to Jacobs a yellow plastic packet in a pigeon-hole in first appellant's office nearby the cells. According to second appellant he believed that the tablet was a painkiller although first appellant had said nothing to him in this regard. He was unable to satisfactorily answer questions regarding why a pain tablet would be unwrapped and placed in a plastic bank bag, nor could he explain why he specifically released Jacobs from the cell in which he was being held, took him to the office and there had him remove the yellow plastic bag without second appellant either touching or searching it. Nor could he explain why, when Inspector May entered the cells shortly after the drugs were handed over to the trap and seized and confronted second appellant, he offered no explanation in response to Jacobs' allegation that he had received the drugs from second appellant.

Another unsatisfactory aspect of the second appellant's evidence was his inability to explain why he worked for three to four months as a volunteer in the cells without any remuneration, whilst at the same time he appeared not to be in a healthy financial position. Second appellant was similarly unable to explain why, although he claimed to know Jacobs quite well, he expressed no interest in his condition when he handed him what he thought was a pain tablet, nor for that matter why he waited half an hour before handing him the tablet. Second appellant's evidence reads poorly. He was unable to furnish any answer to a number of questions. As the magistrate pointed out, second appellant's conduct only makes sense if he knew that he was handing drugs to the trap. In that instance he would not have enquired after Jacobs' health and would have unquestioningly accepted an instruction to hand a tablet to him.

Jacobs' evidence was that the tablet bore a marking, identifying it as a particular type of mandrax table. This would similarly explain why second appellant did not explain what was in the plastic yellow packet and why he released the trap from the cell and had him take the plastic packet containing the dagga in the privacy of the office, without him (second appellant) checking it rather than handing it over to second appellant in his cell. In the result, although I disagree with the magistrate's reasoning that the second appellant's version stood or fell by first appellant's version, I am of the view that he correctly rejected the second appellant's version of events as not reasonably possibly true.

The result is that the second appellant's appeal against conviction must, in my view, also fail.

Sentence

In sentencing both appellants to eight years' imprisonment and rejecting the suggestion that an appropriate sentence was one of community service or correctional supervision, the magistrate drew no distinction between the two appellants. First appellant had no previous convictions. Second appellant's only previous conviction was when he was 11 years old and is unrelated, and thus he falls to be treated as a first offender as well. The appeal against sentence is based upon the lack of any differentiation between the appellants and, it is averred, upon the magistrate's failure to take into account that the value of the drugs was minimal, no profit was made and the role of the trap. It is argued further that the Court thereby misdirected itself and that the sentences imposed invoke a sense of shock.

When regard is had to sentences in comparable cases, I am indeed of the view that the sentences are not only excessive, but invoke a sense of shock and as such justify this Court interfering. Furthermore, whilst the magistrate correctly laid emphasis on the aggravating nature of the fact that the first defendant had dealt in drugs in the course of his employment as a member of the South African Police Service, he gave, in my view, too much weight to this factor and also failed to differentiate between the appellants in sentencing them. In these respects he committed, in my view, misdirections which alone would allow this Court to interfere with the sentences imposed.

In terms of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with sections 13(f) and 17(e), the appellants were liable to imprisonment for a maximum period of 25 years. An examination of reported cases reveals that the sentences imposed by the magistrate are sharply at variance with the prevailing standards. See S v Sokweliti 2002(1) SACR 632 (Tk); S v Mahlangu 2004(1) SACR 281 and the cases there cited which deal with dealing in cannabis. On the other hand, trafficking in hard drugs is viewed by our courts as a serious offence justifying lengthy terms of imprisonment. See S v Jimenez 2003(1) SACR 507 and S v Arias 2002(1) SACR 518 (W).

However, I am of the view that a wholly suspended or a non-custodial sentence is inappropriate in the present matter. Whilst the bulk of the drugs dealt in by the appellants was dagga, a component thereof was also what can loosely be termed a "hard drug", mandrax. The most aggravating feature of the offence was the abuse by both appellants of the position of trust which they occupied. First appellant betrayed his office as a member of the South African Police Service. There was no expression of any contrition on his part and the same applies to the second appellant. Although the appellants must be sentenced for no more than the offence for which they were convicted, there was evidence strongly suggesting, particularly as far as the first appellant was concerned, that there was an ongoing system of dealing in drugs with prisoners held in the cells. There was certainly no evidence that the incident in question was an isolated one.

It is clear furthermore that the motive for the first appellant was profit. This is apparent from the fact that on his own version he retained R50 of the R200. His explanation that he would have deposited this sum to the credit of the trap's account at Pollsmoor is far-fetched and untenable.

In my view, therefore, the sentence to be imposed on first appellant, in particular, must act as a deterrent to other members of the police force, or for that matter, any other agencies involved in the handling of prisoners, not to abuse their position. It should reinforce the message that, should such persons engage in drug dealing with prisoners, they can expect a heavy sentence.

I am of the view that an appropriate sentence for the first appellant is one of three years' imprisonment.

As far as second appellant is concerned, similar considerations apply to him by virtue of the fact that he too abused the position of trust which he held. I should say in passing that the basis upon which a member of the public with a criminal record can work as a volunteer in prison cells in magistrate's court on a semi-permanent basis is entirely unclear to me and is certainly something which should be investigated by the responsible authorities. To this end counsel for the State is requested to ensure that a copy of this judgment be sent to the appropriate South African Police Service official to draw to his or her attention these remarks. Notwithstanding the position in which the second appellant found himself, he was not a member of the South African Police Service and for this reason, as well as by reason of the fact that he played a lesser role in the commission of the offence, I consider that a lesser sentence should be imposed upon him.

In second appellant's case I would impose a sentence of three years' imprisonment but suspend one year thereof for a period of four years on condition that he is not during that period found guilty of contravening section 5(b) of Act 42 of 1992.

BOZALEK, J

MOTALA, J: I agree and it is so ordered.

MOTALA, J