S v Makgobo
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Cloete J and Ralarala AJ |
| Judgment Date | 08 September 2023 |
| Citation | 2023 JDR 3250 (WCC) |
| Hearing Date | 08 September 2023 |
| Docket Number | A121/2023 |
Cloete J:
This is an appeal against sentence granted on petition to this court. The appellant is the sole caregiver and biological mother of three minor children. On 24 September 2020 she was found in possession of mandrax tablets stored in a sealed box in her luggage after the bus in which she was travelling from Potchefstroom to Mossel Bay was intercepted by the South African Police just outside Beaufort West. The appellant, who after her first appearance was released
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on bail, was charged in the Beaufort West Regional Court on one count of dealing in drugs and, accordingly, with the statutory offence of contravening s 5 read with sections 1, 13, 17, 25 and 64 of the Drugs and Drug Trafficking Act [1] (“DDTA”). The charge sheet reflects that the appellant was found in possession of 7 215 mandrax tablets with a street value of R360 750.
On 19 July 2022, after numerous postponements, the trial commenced. The appellant pleaded guilty as charged. Her written plea explanation in terms of s 112 of the Criminal Procedure Act, [2] read out by her legal representative, was that she had been looking for work and a friend whom she had approached offered her the opportunity to transport, purportedly for a company called Herbal Life, one of its packages from Potchefstroom to Mossel Bay for which she would be paid R3 000. However just before she boarded the bus she was made aware by the person who handed the box to her that it contained mandrax tablets.
She admitted the goods found in the Herbal Life box were drugs; they were correctly weighed, packed and sealed and sent for analysis, and she had no objection to the handing in of the s 212 affidavit [3] (of Warrant Officer Mpandeni, a forensic analyst) who confirmed the number of tablets found in the appellant’s possession. However no evidence was led by the State to prove the street value of the drugs seized and accordingly, and although this was also set out in the charge sheet, the provisions of s 51(2)(a) read with Part II of Schedule 2 of the Criminal Law Amendment Act [4] did not apply. There was also no evidence before
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the trial court that the appellant was aware of the quantity of mandrax tablets in the box in her possession prior to her arrest. In her plea explanation the appellant further stated:
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I know what I did was wrong and punishable by a court of law and the consequences of pleading guilty. I am extremely sorry for my actions and have deep regret and remorse that is why I am pleading guilty and accept the fact that I must take responsibility for my actions. I have no intention to waste the court’s time and I plead guilty herein in the hope that the Court will consider this a mitigating factor when handing down sentence against me. I herewith place full confidence in our Criminal Justice system by playing open cards with the Honourable court and trust that the Honourable court will deal with me accordingly.
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In mitigation I place before the court, my personal circumstances namely that I did not waste the court’s time herein and chose to plea on the offence. I am 31 years old and have no pending cases. I am unemployed and have 3 children age 12 years, 8 years, 4 years old and as well as an elderly mother whom I maintain.
I pray the Court will have mercy on me when handing down sentence.’
The State accepted the plea and the magistrate duly convicted the appellant as charged. No previous convictions were proven and the appellant’s legal representative thereafter addressed the magistrate in mitigation. He informed her that the appellant was the sole breadwinner of her children and elderly ill mother who, it appears from the record, all resided with the appellant in Shoshanguve, which is situated about 30km north of Pretoria. She explained the reason why she committed the offence was that ‘(t)he wolf was at the door, I did not have much of
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a choice, there was no food on the table and we were struggling, really struggling to survive’.
It was also placed on record (and similarly not disputed by the State) that the children’s father had abandoned them 3 years earlier; the appellant had only been able to secure intermittent employment as a domestic worker; and that, of the appellant’s two siblings, her elder brother disappeared in 2012 and her 18 year old sister lived elsewhere with her boyfriend.
It was therefore appropriate for the appellant’s legal representative to request a pre-sentence report but alarmingly this request was simply ignored by the magistrate who, without any forewarning, took it upon herself to declare that the children would have to be removed...
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