S v Mukuyu

• Jurisdiction: South Africa
• Citation: 2017 (2) SACR 27 (GJ)

S v Mukuyu
2017 (2) SACR 27 (GJ)

2017 (2) SACR p27

Citation	2017 (2) SACR 27 (GJ)
Case No	A 242/2015
Court	Gauteng Local Division, Johannesburg
Judge	Mashile J and Kuny AJ
Heard	October 18, 2016
Judgment	January 26, 2017
Counsel	K Cosyn for the appellant, instructed by the Justice Centre, Johannesburg.; N Naidoo for the state.

Flynote : Sleutelwoorde

Sentence — Prescribed minimum sentences — Criminal Law Amendment Act 140 of 1992 — Application of by state — Semble: where facts relied upon place offence within ambit of Act, state duty-bound to invoke provisions E to prevent aims and objects of Act being undermined.

Drugs — Cocaine — Dealing in in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992 — Sentence — Young mother of 8-year-old child bringing 3,076 kg into country — Sentence of 12 years' imprisonment imposed. F

Headnote : Kopnota

The appellant, a 36-year-old single mother of an 8-year-old child, was convicted in a regional magistrates' court of dealing in 3,076 kg of cocaine in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, having brought the cocaine with her on a flight from Brazil. She was sentenced to 15 years' imprisonment. The state conducted the case against her without invoking the minimum-sentencing legislation or making any G attempt to prove the value of the cocaine.

Held, that the appellant was prejudiced in her defence by the state's omissions in this regard and furthermore that there had been no investigation of the interests of her young child. These circumstances constituted an irregularity sufficiently serious to warrant the court interfering with the sentence imposed by the court a quo (see [21]–[22]). H

Held, further, that in the circumstances, a sentence of 12 years' imprisonment would be appropriate (see [28]).

Semble: In each case where the facts relied upon place the offence within the ambit of the Criminal Law Amendment Act 105 of 1997, the state was duty-bound to invoke the provisions of that Act. If it were left up to the state to decide on a discretionary basis whether to rely upon I minimum-sentencing legislation, accused persons charged with such offences may escape their sentences because of the state's omission. This would undermine the aims and objects of the Act. Public policy considerations and the public interest required that the Act be applied and enforced where the facts and circumstances brought the offences within the ambit of the Act (see [15]). J

2017 (2) SACR p28

Cases cited

S v Banda and Others1991 (2) SA 352 (BG): A referred to

S v Cwele and Another2013 (1) SACR 478 (SCA) ([2012] 4 All SA 497; [2012] ZASCA 155): compared

S v Dodo2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423; [2001] ZACC 16): referred to

S B v Hightower1992 (1) SACR 420 (W): referred to

S v Jimenez2003 (1) SACR 507 (SCA) ([2003] 1 All SA 535): compared

S v Keyser2012 (2) SACR 437 (SCA) ([2012] ZASCA 70): compared

S v Legoa2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA 122): applied

S v Linus2015 (1) SACR 381 (GP): compared

S C v Maake2011 (1) SACR 263 (SCA): referred to

S v Malgas2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): applied

S v Ndlovu2003 (1) SACR 331 (SCA) ([2003] 1 All SA 66; [2002] ZASCA 144): dictum in para [12] applied

S v R1993 (1) SACR 209 (A) (1993 (1) SA 476): referred to

S D v Raath2009 (2) SACR 46 (C): referred to

S v Rabie1975 (4) SA 855 (A): applied

S v Salzwedel and Others1999 (2) SACR 586 (SCA) (2000 (1) SA 786; [2000] 1 All SA 229): dictum in para [10] applied

S v Sebata1994 (2) SACR 319 (C): compared

S v Tshoga2017 (1) SACR 420 (SCA): applied

S E v Zinn1969 (2) SA 537 (A): applied.

Legislation cited

The Criminal Law Amendment Act 105 of 1997: see Juta's Statutes of South Africa 2015/16 vol 1 at 2-514

The Drugs and Drug Trafficking Act 140 of 1992, s 5(b): see Juta's Statutes F of South Africa 2015/16 vol 1 at 2-460.

Case Information

K Cosyn for the appellant, instructed by the Justice Centre, Johannesburg.

N Naidoo for the state.

An G appeal against a sentence of 15 years' imprisonment imposed for dealing in cocaine in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992.

Order

The sentence imposed upon the appellant is set aside and a sentence of H 12 years' imprisonment is imposed. The aforesaid sentence is antedated to the date of sentencing, ie 11 October 2011.

Judgment

Kuny AJ (Mashile J concurring):

[1] The appellant was charged in the magistrates' court sitting at I Kempton Park with contravening s 5(b) (dealing in drugs) alternatively s 4(b) (possession of drugs) read with ss 1, 13, 17, 18 and 25 of the Drugs and Drug Trafficking Act 140 of 1992 as amended (the Act). It was alleged that she unlawfully and intentionally dealt in a dangerous dependence-producing substance to wit 3,0756 kg of cocaine, a derivative J of coca leaves.

2017 (2) SACR p29

Kuny AJ

[2] It is not entirely clear whether the appellant was charged in the A regional or district magistrates' court. The presiding officer was Mr H Maharaj who is referred to on the record as 'Additional Magistrate'. However, when the conviction and sentence were endorsed on the charge sheet Mr Maharaj is referred to as 'Reg. Magistrate'. This, and the inscription in the record on the covering sheet for appeal — 'Seat of B Regional Magistrate: MAHARAJ' — is the only indication that the matter was tried in the regional court. It appears from the heads of argument of counsel for the appellant and for the state that they were under the impression that the matter was heard in the regional court. I therefore proceed on the basis that she was tried, convicted and sentenced in the regional magistrates' court. C

[3] The appellant pleaded not guilty. She was legally represented at the trial. She chose not to make a statement at the commencement of the proceedings in terms of s 115 of the Criminal Procedure Act 51 of 1977.

[4] On 25 October 2011 she was convicted of contravening s 5(b) of the D Act. On 31 October 2011 she was sentenced to 15 years' imprisonment. This appeal is against sentence only.

[5] The facts of the case were that on 28 April 2011 the appellant was stopped at OR Tambo International Airport after she had disembarked from a flight from Sao Paulo. Her luggage was searched by a police E officer who found in it 60 'roll-on' plastic containers. One of the containers was searched and a condom was found inside containing white powder. The appellant was immediately placed under arrest.

[6] After having examined all the containers 36 were found to contain a white substance suspected to be drugs and 24 had nothing in them. F The arresting officer removed the white powder from the containers and placed same in a forensic bag which was sealed in front of the appellant and sent for forensic examination. The appellant admitted the chain of evidence as well as the affidavit of Nokuthula Elsie Mabotja who undertook the forensic analysis of the white powder that was found in the appellant's luggage. The forensic...