S v Legoa

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Vivier JA, Streicher JA, Cameron JA, Brand JA and Lewis AJA
• Judgment Date: 26 September 2000
• Citation: 2003 (1) SACR 13 (SCA)
• Hearing Date: 13 September 2000
• Docket Number: 33/2002
• Counsel: G J M Wright for the appellant. H Obermeyer for the State.

Cameron JA:

[1] This is an appeal, with leave granted by this Court, against the Eastern Cape High Court's dismissal of an appeal against a 15-year minimum sentence imposed in a regional court for dealing in I dagga valued at more than R50 000. Two questions are in issue: the meaning of 'value' in the minimum sentencing legislation; and whether at the trial of an accused charged with dealing the State is entitled prove the value in question after conviction but before sentencing, so as to invoke the minimum sentences. J

Cameron JA

[2] On 6 June 1999 the appellant, then 25 years old, was A arrested near Aliwal North on the Lady Grey/Sterkspruit road. He was found driving a motor vehicle belonging to his mother, stashed with 216,3 kilograms of dagga (cannabis). Soon after, in the regional court at Aliwal North, he was charged with dealing in a prohibited substance in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the 1992 Act). [1] On the main count (there was an alternative count of unlawful possession) B the charge-sheet read (my translation from the Afrikaans):

'That the accused is guilty of the offence of contravening s 5(b) read with ss 13(f), 17(e), 18, 19, 20, 21, 25 and 64 of Act 140 of 1992 in that on or about the 6th day of June 1999 at or near Lady Grey Sterkspruit main road in the district of Aliwal North the accused wrongfully and unlawfully dealt in C an undesirable dependence-producing substance as contemplated in Schedule 2 of Part III [of] Act 140 of 1992 namely 216,3 kg (cannabis - dagga).'

[3] In a written plea of guilty in terms of s 112(2) of the D Criminal Procedure Act 51 of 1977 [2] the appellant, who was legally represented, pleaded guilty to the main count. His statement recited all the statutory and factual particulars in the charge-sheet. It added that, in return for an expected payment of R1 000, the appellant had been 'hired by a certain lady', whose names were to him unknown, to convey the dagga from the Lesotho border E to Aliwal North. There 'he would have handed the dagga to the lady for further distribution and sale by her'. The correct weight of the dagga was admitted as 216,3 kg. There was no admission regarding value.

Cameron JA

[4] The State accepted the averments and facts set out in the A appellant's plea. The statement was handed up to the presiding magistrate and the appellant was convicted as charged. Thereafter the prosecution indicated that it would prove no previous convictions, but requested a postponement 'to lead further evidence in aggravation of sentence'.

[5] Both the charge-sheet and the admission of guilt made B express mention of the applicable penalty provision in the 1992 statute, namely s 17(e). This specifies for dealing in dangerous or undesirable dependence-producing substances a maximum sentence of 25 years' imprisonment, or 'both such imprisonment and such fine as the court may deem fit to impose'. But at the time the appellant was charged that provision had been superseded. In 1997 C Parliament adopted minimum sentences legislation in respect of such dealing. The Criminal Law Amendment Act 105 of 1997 (the 1997 Act), s 51(2)(a)(i) now specifies that in the absence of 'substantial and compelling circumstances' justifying a lesser sentence, a first offender convicted of 'an offence referred to in Part II of Schedule 2' is liable to a minimum sentence of 15 years. D The portion of the Schedule in question specifies '(a)ny offence referred to in s 13(f)' of the 1992 statute

'if it is proved that -

(a)

the value of the dependence-producing substance in question is more than R50 000;

(b)

the value of the dependence-producing substance in E question is more than R10 000 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or

(c)

the offence was committed by any law enforcement officer'. [3]

[6] Despite defence opposition, the postponement sought was F granted. When the trial resumed, the State called the police officer commanding the South African National Narcotics Bureau (SANAB) at Queenstown, Capt van Niekerk, to testify about the value of the dagga in question. He produced a nationwide survey of the approximately two-score SANAB units, of which nine were in the Eastern Cape. Five of G the Eastern Cape units had indicated (consonantly with the findings of the survey as a whole) that dagga had a street value of about R1 per gram. One had shown a value of R5 per gram, while another had shown R0,50 per gram. Returns from two of the Eastern Cape SANAB units, including the Aliwal North unit, were not shown. Van Niekerk added that in his 16 years in SANAB, it had always been accepted, and his personal H experience confirmed, that the street value of dagga had remained relatively static at R1 per gram, or R1 000 per kilogram. He emphasised that this was the value of the dagga when sold at its 'final destination'.

[7] Under cross-examination, Van Niekerk confirmed that in I estimating the value of the dagga in issue he had in mind its value as sold by the

Cameron JA

street dealer to the street consumer. He expressly agreed A that its value to the producer would be 'much, much lower' than R1 per gram. The weight seized in the appellant's possession constituted, he agreed, about 20 raw bags. This would be worth to the producer no more than R300 to R1 000 per bag (though on occasion perhaps more). The total value of the dagga seized would be at most between R15 000 and R20 000. B

[8] In the regional court the only disputed issue was the value of the dagga. The magistrate found that the State had established the 'potential value' of the dagga as R1 per gram. Despite Van Niekerk's concessions, he held that the only feasible approach was potential value. While it was true that the price obtained for a consignment could vary, it was up to an accused to convince a court that any other value applied. In the absence of substantial and compelling C circumstances, the appellant therefore had to be sentenced to 15 years' imprisonment.

[9] On appeal to the Eastern Cape High Court, a second ground was argued - that the appellant had not been 'convicted' of a scheduled offence as contemplated in the 1997 Act. On the first D issue, the Court (Chetty J, Pillay J concurring) held that 'value' must be given 'a meaning that could be applied to the ordinary everyday facts associated with the illegal drug trade'. Since the intended target was the end user, it was the street value that must apply. On the second point, the Court held that 'the value of the dependence-producing substance is entirely irrelevant prior to E conviction', and that the State did not have to prove value before conviction. For the reasons that follow, both conclusions are in my view wrong.

'Value' in the minimum sentencing legislation F

[10] Nearly a century ago Innes JA observed that the principle 'that the value of an article is, as a general rule, what it will fetch' was well recognised. Accordingly, 'the aim should be to estimate what could be obtained for it; not what it cost or what its utility to the owner would be worth'. [4] 'What it will fetch' relates, of course, to market value, which Innes JA went G on to describe as 'the most uniform test, and the one easiest of practical application'.

[11] 'Market value', notoriously, means the price a willing buyer pays a willing seller in an open market. In the present case, the magistrate and the Eastern Cape Division implicitly accepted this. But the error they made was to assume that dagga sold in bulk and dagga H sold in small quantities of 1 gram would sell at the same price per gram. The conclusion is at odds with common sense. In any event, there is no evidence to support the assumption. In fact the evidence is to the contrary. The dagga was in 20 bags, each therefore weighing I somewhat more than 10 kg. Capt van Niekerk testified that the value of such a bag was between R300 and R1 000. At most, therefore, the dagga was worth

Cameron JA

R20 000. It may have been worth considerably A less - in any event, nothing even close to the R50 000 the minimum sentencing legislation prescribes.

[12] On this ground alone the sentence imposed on the appellant was incompetent. Although this conclusion is sufficient to dispose of the appeal, the course the proceedings took in the courts below and the B conclusions those courts reached on the second issue necessitate further examination.

Can the State prove the value of the dagga after conviction?

[13] The 1997 minimum sentencing legislation requires for its C application that an accused must have been 'convicted of an offence referred to'...