THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   161/2010

No Precedential Significance

In the matter between:

NOMVULA GAMEDE                                                         First Appellant

TANJANE JUSTICE MAKUNGA                                 Second Appellant

and

THE STATE                                                                                Respondent

Neutral citation: Gamede v The State (161/10) [2010] ZASCA 122 (30
September 2010)

Coram:
NUGENT, MHLANTLA JJA and EBRAHIM AJA

Heard:
10 September 2010
Delivered:
30 September 2010

Summary:
Criminal Law – Drugs and Drug Trafficking Act 140 of
1992 ─ whether conviction justified by evidence ─
appropriate sentence.

_____________________________________________________________________

ORDER

On appeal from: KwaZulu-Natal High Court (Pietermaritzburg)(Swain
and Hollis JJ sitting as court of appeal.):

In each case the appeal against the conviction is dismissed.
In each case the appeal against the sentence is upheld.
2.1
The sentence of the first appellant is set aside and substituted
with a sentence of 5 years imprisonment.
2.2
The sentence of the second appellant is set aside and
substituted with a sentence of 15 years imprisonment.
___________________________________________________________

JUDGMENT

EBRAHIM AJA (Nugent and Mhlantla JJA concurring)

[1] The appellants were convicted in the regional court at Durban of
contravening the provisions of s 5(b) of the Drugs and Drug Trafficking
Act 1992 (Act 140 of 1992) in that during June 2004, they dealt in 556
kilograms of methaquolone (commonly known as mandrax), an
undesirable dependence producing substance, listed in part 3 of schedule
2 of the Act, the value thereof being approximately R50 million. They
were each sentenced to a term of 20 years imprisonment.

[2] An appeal to the KwaZulu-Natal High Court, was dismissed but
leave granted to appeal to this court against the convictions and sentences
in each case.

[3] The issue in the appeals is whether the respondent proved beyond
reasonable doubt, that mandrax was being manufactured at the premises
concerned and, if so, was it proved that the appellants were dealing in the
substance as envisaged by the Act.

[4] The factual background for the conviction is the following. On
Thursday 22 June 2004, members of the South African Police Service
from the Organized Crime Unit as well as the Crime Intelligence Unit
found a powdered substance of the colour of sea sand in large quantities
in various rooms in a house on Spitskop Farm near Newcastle in the
province of KwaZulu-Natal. Some of the powder was already dry and
some wet. Fans and heaters were also discovered in these rooms. In
various outbuildings on the farm, buckets, pots, mixing bowls, measuring
equipment such as a scale, bags of Anthranilic Acid and other chemicals,
gas burners, gas masks, gloves and gum boots were found. In a nearby
pigsty markings found on the ground were consistent with markings on
the pots found and contamination on the soil indicated a cooking process
had been conducted there.

[5] On Saturday 24 June 2004, the police arrived at Mange Farm a few
kilometres away from Spitskop Farm, in the same district, where they
found a Red Venture vehicle parked in the grounds. Inside the vehicle
various equipment such as copper pipes sealing machine and boxes of
pinchers as well as mandrax tablets were found. In a shed nearby,
chemicals in 2 ½ litre drums were found, as also an industrial mixer, an
industrial dryer, a gas bottle and a 3 phase power box. The following day
at Osizweni, a place 22 kms away from the two farms, at the house of
Alfred Mazibuko, the owner of Mange Farm, a mandrax press machine
was found. Mazibuko told the police that he had been called out to the

farm on Friday and persons who owned the Red Venture vehicle had
asked him to fix wheels to the mandrax press in the shed, so that it would
be easier to move the machine. This was the reason he took the machine
to his home at Osizweni.

[6] From this evidence the police concluded that a mandrax
manufacturing operation was in progress on both farms. Samples of the
powdered substance were removed for analysis by the police.

[7] The second appellant was arrested on Thursday 22 June 2004 at
approximately 23.00 when he arrived at Spitskop Farm driving a Silver
Colt bakkie. At the back of the bakkie, police found a load of groceries
and a black plastic bag in which was placed a white bag containing a
white powder substance. The identity of the white powder inside the bag
was clear from an indication in writing on the bag that the contents were
Anthranilic Acid. It is not disputed that Anthranilic Acid is used in the
manufacture of mandrax. The second appellant explained his presence on
the farm as a conveyer of food for the workers. He denied any knowledge
of the acid. The first appellant was arrested two days later on 24 June. I
shall deal with the circumstances leading to her arrest in due course.

[8] During the trial the respondent, in addition to the forensic evidence
led the evidence of two former employees. One of them, Ivan Thusi, was
a shepherd on Spitskop Farm. He identified the second appellant as one
of a number of persons who stayed on the farm from time to time.
Although he did not know why the second appellant was there, he said he
was in the company of the others who were engaged in activities on the
farm involving the spilling of water and the spreading of a brownish
coloured substance, of the consistency of mud, on the floor. Duduzile

Petros Mchunu the other employee, regarded himself as the Induna of
Spitskop Farm. He also identified the second appellant as one of the
people who had come to work and stay on the farm. He said that these
persons wore gum boots, gloves and a covering over their mouths whilst
working. Although he had never seen the second appellant wearing such
apparel, he had seen him on the farm grounds with the people wearing the
boots, gloves and masks.

[9] The first appellant was arrested during the evening of Saturday 24
June 2004. The police were keeping Mange Farm under surveillance
when they saw lights of a motor vehicle leaving the farm. They followed
the vehicle, a maroon Isuzu bakkie, and attempted to get it to stop but the
driver, the first appellant, increased speed. The police vehicle gave chase
putting on its siren and blue light. Despite that the first appellant
continued driving at high speed. Eventually approximately 2 ½
kilometres from the farm, the police managed to stop the vehicle. The
vehicle was searched and at the back of the bakkie, buckets and plastic
bags were found containing a powdered substance. The first appellant
explained that she was asked to discard the buckets and plastic bags, with
contents, by people on the farm. She told the police that the powder was
cattle feed and that people from the farm were going to follow her to
indicate a place at Arbor Park where the goods were to be discarded.

[10] On the evidence set out, both appellants were convicted of dealing
in mandrax, despite the denial by the second appellant that the bag of
anthranilic acid was on his vehicle and despite the exculpatory statement
made by the first appellant to the arresting police officers.

[11] The veracity of the forensic analysis of the substance found on the
farms was challenged on behalf of the appellant but it is not necessary to
deal with that. According to the undisputed evidence the equipment and
materials that I have referred to are of the kind that is used in the
manufacture of mandrax. It is clear from the nature of the material and
equipment alone that both farms were being used for the manufacture of
mandrax on a substantial scale.

[12] The question arising from this, is whether the conviction of the
appellants is sound in law. The definition of the statutory offence of
dealing in drugs is very wide and encompasses almost any activity
performed in connection with the drug. In s 1 of the Drugs and Drug
Trafficking Act 1992, dealing is defined, in relation to a drug, to include
‘performing any act in connection with the transhipment, importation,
cultivation, collection, manufacture, supply, prescription, administration,
sale, transmission or exportation of the drug.’

[13] There can be no doubt at all, against the background of the factual
finding of the court a quo, that a mandrax manufacturing operation was
taking place at the farms. It is also clear from the evidence that the first
appellant was in the process of assisting to remove incriminating
evidence of the operation at the time that she was arrested. It was
submitted on her behalf that it had not been established that she had
knowledge that the material and equipment that she was removing was
connected to the manufacture of mandrax but that submission must be
rejected. The manufacturing operation was of such a scale that she could
not but have known that mandrax was being manufactured. She was
clearly participating with the persons connected with the Red Venture in
removing incriminating evidence and must at least have been told why

that was required. Moreover, her explanation for not stopping when she
encountered the police is far-fetched, and is consistent with knowledge on
her part that she was involved in an illegal operation. Taken together the
inference is inescapable that she was aware of the nature of the materials
that she was conveying. Her conduct falls within the wide definition of
the statutory offence of dealing and she was properly convicted.

[14] The second appellant was caught ‘red-handed’ with material that
announced itself to be Anthranilic acid. There was no suggestion in the
evidence that the contents of the bag might have been some thing other
than Anthranilic acid, nor was it suggested that the second appellant
might not have known what it was. The evidenced also establishes that
Anthranilic acid is a substance used in the manufature of mandrax. That
he led the police on a ‘wild goose’ chase thereafter to seek the main
perpetrator does not detract from his culpability. He was also seen on the
farm on at least four occasions in the company of persons working there,
some of whom wore masks, boots and gloves. He, despite the
overwhelming evidence against him, elected not to testify. The inference
is inescapable that the second appellant was knowingly bringing the acid
to the farm so that the drugs could be manufactured. His actions too fall
squarely within the definition of statutory dealing, having performed an
act in connection with the manufacture of mandrax. I would accordingly
confirm his conviction.

[15] In so far as the sentence is concerned, I would uphold the appeal on
the basis that the sentence in the case of the first appellant is unjustifiably
excessive, given the fact that the evidence establishes no greater role in
the operation than to have assisted in attempting to dispose of the
evidence. Accordingly in line with this court’s approach in S v Scott-

Crossley 2008 (1) SACR 223 SCA at 239 para 29, I am of the view that
an appropriate sentence in respect of the first appellant would be one of
five years imprisonment. The second appellant was directly involved with
the manufacturing process and as a first offender, the Criminal Law
Amendment Act 105 of 1997, as amended, makes provision for a
minimum sentence of 15 years imprisonment to be imposed on him.
Whilst the sentencing court had regard to the mitigating character of the
second appellant’s clean record, having reached the age of 40 years
without blemish, it nonetheless considered that there were aggravating
circumstances that justified a sentence in excess of the minimum. The
evidence did not establish that the second appellant played more than a
subsidiary role in the operation. I do not think there was any justification
for imposing more than the minimum sentence. Accordingly, I would
uphold second appellant’s appeal against sentence, by setting aside the
sentence of 20 years imprisonment and in its place substituting a sentence
of 15 years imprisonment.

[16] 1
In each case the appeal against the conviction is dismissed.

In each case the appeal against the sentence is upheld.
2.1
The sentence of the first appellant is set aside and
substituted with a sentence of 5 years imprisonment.
2.2
The sentence of the second appellant is set aside and
substituted with a sentence of 15 years imprisonment.

___________________

S Ebrahim

Acting Judge of Appeal

APPEARANCES

FIRST APPELLANT:
B Bam SC
Instructed by Ehlers Attorneys, Irene

c/o
Adrie
Hechter
Attorneys,
Bloemfontein

SECOND APPELLANT:
J Engelbrecht SC

Instructed by Ehlers Attorneys, Irene

c/o
Adrie
Hechter
Attorneys,
Bloemfontein

RESPONDENT:
(Ms) TS Jacobs
Instructed by The Director of Public
Prosecutions, Pietermaritzburg
The Director of Public Prosecutions,
Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

30 September 2010

STATUS:
Immediate

Gamede v The State (161/10) [2010] ZASCA 122 (30 September 2010)

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal

The SCA today dismissed an appeal against a conviction of dealing in 556 kgs of
mandrax in the case of each of the appellants the value of the mandrax was
approximately R50 million.

The appeal against their respective sentences of 20 years’ imprisonment was upheld
on the basis that the role played by each of them was not substantial and neither of
them had been proved to have been the mastermind behind the operation of a mandrax
manufacturing plant conducted on Spitskop and Mange Farms in KwaZulu-Natal.

The first appellant was apprehended by police as she was in the process of removing
incrimination evidence.

The SCA found that the large scale of the manufacturing operation complied with her
conduct in attempting to evade arrest, was consistent with knowledge on her part that
she was involved in an illegal operation and that she was aware of the nature of the
material she was conveying. The court however found that such knowledge and
conduct did not warrant a sentence of 20 years’ imprisonment but one more in line
with sentences imposed on persons convicted after the fact. Her sentence was
accordingly altered to one of five years’ imprisonment.

The first appellant was apprehended on Spitskop Farm in possession of a bag of
Anthranilic Acid, established on the evidence as being a substance used in the
manufacture of mandrax. He was seen prior to his arrest on at least four different
occasions on the farm, in the company of workers wearing gas masks, gum boots and
gloves. From this evidence the court concluded that he was knowingly bringing the
acid to the farm so that the drugs could be manufactured. Because he was directly
involved in the manufacturing process the SCA considered, despite his clean record,
that his role justified the imposition of no more than a sentence of 15 years’
imprisonment for a conviction of drug dealing, as provided for in the Criminal Law
Amendment Act 105 of 1997, as amended. The first appellant’s sentence was
accordingly altered to one of 15 years’ imprisonment.