S v Xaba and Another

• Jurisdiction: South Africa
• Judge: Navsa JA, Brand JA and Conradie JA
• Judgment Date: 18 March 2005
• Citation: 2005 (1) SACR 435 (SCA)
• Docket Number: 211/04
• Hearing Date: 03 March 2005
• Counsel: J A L Pretorius for the first appellant. M Barnard for the second appellant. L Pienaar for the State (heads of argument having been drawn by S U Roeloffs).
• Court: Supreme Court of Appeal

Conradie JA:

[1] Mavis Xaba, the first appellant, and Joseph Zondo, the second appellant, are brother and sister. They were wholesale cannabis merchants. Both were caught in an entrapment operation so well conducted that there was no way out for them. Mavis Xaba pleaded guilty F to five charges of dealing, Joseph Zondo pleaded guilty to three. They were duly convicted. The regional magistrate at Middelburg sentenced the first to 20 and the second to 18 years' imprisonment. Two other accused who had also pleaded guilty were sentenced to 15 and ten years' imprisonment after the regional magistrate had taken all counts G together for the purpose of sentence.

[2] All four the accused appealed their sentences to the Pretoria High Court. The appeals were dismissed. Much later the two appellants applied for leave to appeal. Condonation for the late applications was granted but leave was refused on 8 October 1998. H A long delay then followed that appears to have been largely caused by the disappearance of the original record. Eventually it was reconstructed to everybody's satisfaction and on petition leave was granted to the appellants to appeal to this Court.

[3] The size of the family business can be judged by the I quantities of cannabis that the trap, inspector Wilhelm Arendt, at the request of the first appellant, transported to the homes of the siblings. Eighteen bags of dagga were delivered to the home of the first appellant. The mass of the first consignment of seven bags is unknown, but the second weighed 149,92 kg. This was followed by 11 bags with a mass of 206,58 kg and J

Conradie JA

ten bags weighing 139,64 kg. The smallest bags weighed 14 kg each. If one assumes that this was the A approximate mass of each bag in the first consignment, the total so transported was about 595 kg.

[4] The second appellant received from Arendt a consignment of ten bags with a mass of 149,92 kg and then another ten bags with a mass of 139,64 kg. The first appellant pleaded guilty to dealing in B these consignments as well because she was the one who had arranged for the trap to transport them.

[5] In addition, 500 kg of dagga was found in the possession of the appellants. Of this, the first appellant accepted responsibility for 265,52 kg. The second appellant acknowledged that the other half of C the stock weighing 259,152 kg belonged to him.

[6] It is clear that the appellants' homes and businesses in Standerton served as depots for dagga sourced in the Bergville area. The size and audacity of their operation attracted the attention of the organised crime and narcotics division of the area police. Inspector D Arendt was introduced to the first appellant by a prisoner called Bosch, a former policeman, who had once acted as a courier for the appellants. Arendt had him released from gaol for a day to accompany him to the first appellant's home and introduce him as someone wanting to make a bit of extra money. Bosch assured the first appellant that Arendt was a safe contact. Since Arendt arrived at her house in a E marked police van one might have thought that she would take some persuading. She did not. She, and no doubt brother Joseph also, had an amicable relationship with policemen in the area. As she explained to Arendt later when he professed misgivings about transporting cannabis for her, she had contacts everywhere, also in the narcotics branch, and F anyway he need have no fear since the police...