S v Xaba and Another

• Jurisdiction: South Africa
• Citation: 2005 (1) SACR 435 (SCA)

S v Xaba and Another
2005 (1) SACR 435 (SCA)

2005 (1) SACR p435

Citation	2005 (1) SACR 435 (SCA)
Case No	211/04
Court	Supreme Court of Appeal
Judge	Navsa JA, Brand JA and Conradie JA
Heard	March 3, 2005
Judgment	March 18, 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).

Flynote : Sleutelwoorde

Drug offences — Dagga — Dealing in in contravention of s 5(b) B of Drugs and Drug Trafficking Act 140 of 1992 — Sentence — Large quantity of dagga — Recent high-water mark appears to be 14 years' imprisonment — Sentences of 20 and 18 years' imprisonment too severe despite conviction for dealing large quantities of dagga and C evidently widespread corruption of local police, who were used by appellants in their drug dealing — Sentences set aside and replaced by 14 and 12 years' imprisonment respectively.

Headnote : Kopnota

The recent high-water mark for a sentence for dealing in dagga appears to be 14 years' imprisonment. Sentences of 20 and 18 years' D imprisonment upon a contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, despite a conviction for dealing in large quantities of dagga and the evidently widespread corruption of the local police, some of who were used by the appellants in their drug dealing, were therefore too severe and were set aside and replaced by 14 and 12 years' imprisonment respectively. (Paragraphs [16] and [19] at 439g - 440a and 440d - f. E

Annotations:

Cases cited

Reported cases

Prince v President, Cape Law Society, and Others 2001 (1) SACR 217 (CC) (2001 (2) SA 388; 2001 (2) BCLR 133): considered

Prince v President, Cape Law Society, F and Others 2002 (1) SACR 431 (CC) (2002 (2) SA 794; 2002 (3) BCLR 231): considered

S v Jimenez 2003 (1) SACR 507 (SCA): referred to

S v Morebudi 1999 (2) SACR 664 (SCA): compared

S v Smith 1978 (3) SA 749 (A): compared.

Legislation cited

Statutes

Drugs and Drug Trafficking Act 140 of G 1992, s 5(b): see Juta's Statutes of South Africa 2003 vol 1 at 1-460.

Case Information

Appeal against a decision by the Transvaal Provincial Division of the High Court (De Villiers J and Van der Merwe J). The facts appear from the reasons for judgment. H

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).

In addition to the authorities cited in the judgment of I the Court, counsel referred to the following:

S v Anderson 1964 (3) SA 494 (A)

S v Caleni 1990 (1) SACR 178 (C)

S v De Jager 1965 (2) SA 616 (A)

S v Dyomfana 1996 (1) SACR 564 (E) J

2005 (1) SACR p436

S v Heugh and Others 1997 (2) SACR 291 (E) A

S v Hightower 1992 (1) SACR 420 (W) at 422g

S v Howe 1989 (2) SA 473 (W) at 478E - G

S v Makwanyane 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665) in para [122]

S v Mokoena 1997 (2) SACR 502 (O) B

S v Newyear 1995 (1) SACR 626 (A) at 628g - i

S v Nkambule 1993 (1) SACR 136 (A) at 146h

S v Pale 1995 (1) SACR 595 (A)

S v Pillay 1977 (4) SA 531 (A)

S v Rabie 1975 (4) SA 855 (A)

S v Randall 1995 (1) SACR 559 (C) at 566i - j C

S v Rubenstein 1964 (3) SA 480 (A) at 488B - C

S v Shapiro 1994 (1) SACR 112 (A)

S v Skenjana 1985 (3) SA 51 (A) at 54I - 55A

Du Toit et al Commentary on the Criminal Procedure Act (2002) at 30-32A D

Kriegler Suid-Afrikaanse Strafproses 6th ed at 820.

Cur adv vult.

Postea (March 18). E

Judgment

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

2005 (1) SACR p437

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...