SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 20091/2014

In the matter between:

JOHANNES WINDVOGEL

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:   Johannes Windvogel v The State (20091/2014) [2015]
ZASCA 63 (8 May 2015).

Coram:
Mhlantla and Leach JJA and Mayat AJA
Heard:
30 March 2015
Delivered: 8 May 2015
Summary: Criminal law and procedure – application in terms of s
16(1)(b) of the Superior Courts Act 10 of 2013 for special leave to appeal
against a decision of a division of the high court sitting as a court of
appeal – high court has no jurisdiction to hear application – special leave
of the Supreme Court of Appeal is required – special leave to appeal
against sentence granted.

Drug Offences – cocaine – dealing in contravention of s 5(b) of the Drugs
and Drug Trafficking Act 140 of 1992 – sentence – appellant sold cocaine
during a police trap – high court misdirected itself when ante-dating the
sentence to a date when appellant was on bail – cumulative effect of
sentence disturbingly inappropriate – sentence set aside and replaced by
sentence of eight years on each count – a portion of the sentences in the
three counts to run concurrently with sentence on first count – effective
sentence of 20 years’ imprisonment.

___
ORDER

___

On appeal from: Gauteng Division, Johannesburg (Wepener J with
Vally J concurring sitting as court of appeal):

1 The appellant is granted special leave to appeal in terms of s 16 (1)(b)
of the Superior Courts Act 10 of 2013 against the sentence of
imprisonment imposed by the Gauteng Division, Johannesburg.
2 The appeal is upheld.
3 The sentence imposed by the court a quo is set aside and replaced with:
‘(a) The accused is sentenced to a period of eight years’ imprisonment on
each of the four counts, that is, counts 6,7,8 and 10 respectively.
(b) A period of four years of each sentence imposed on counts 7, 8 and 10
is ordered to run concurrently with the sentence imposed on count 6
(effectively a sentence of 20 years’ imprisonment).
(c) In terms of s 282 of the Criminal Procedure Act 51 of 1977 the
sentence is antedated to 31 January 2003.’

___
JUDGMENT

___

Mhlantla JA (Leach JJA and Mayat AJA concurring)

[1] The appellant was arrested on 28 June 2000 in consequence of a
trapping operation by members of the South African Police Service. He
was charged together with his former co-accused in the regional court,
Johannesburg on 12 counts of dealing in prohibited substances in
contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of
1992 (the Drugs Act).1 At the commencement of the trial, the appellant
pleaded not guilty. The State adduced evidence whilst the appellant
elected not to testify. The uncontested evidence tendered on behalf of the
State was that the appellant had been identified as a dealer. The police
officers who set up a trap for the appellant testified that the appellant had
participated during the sale of cocaine over a period of two weeks on four
different occasions and that he appeared to be in control of the operations.

[2] At the end of the trial, the appellant was convicted on four counts
as follows:
(a)
Count 6: 3.1 grams of cocaine and one tablet containing
methaqualone (a mandrax tablet) sold for R1 300;
(b)
Count 7:  3.8 grams of cocaine sold for R1 450;
(c)
Count 8:  9.5 grams of cocaine sold for R2 800; and

1 Section 5 (b) of the Drugs Act reads:
‘Dealing in drugs
No person shall deal in -
(a)….
(b) Any dangerous dependence-producing substance or any undesirable dependence-producing
substance.’

(d)
Count 10: 4.8 grams of cocaine sold for R 1 300.

[3] On 31 January 2003 the trial court imposed a sentence of eight
years’ imprisonment on each count. An effective term of 32 years’
imprisonment was thus imposed. The trial court ordered this sentence to
run concurrently with a sentence of 20 years’ imprisonment that the
appellant was already serving for a previous conviction for a similar
offence. Two months later, the trial court granted a confiscation order
against the appellant’s estate in terms of s 18 of the Prevention of
Organised Crime Act 121 of 1998.

[4] On 18 February 2004 the appellant’s previous conviction and
sentence of 20 years’ imprisonment were set aside on appeal.
Subsequently, the trial court granted the appellant leave to appeal against
the sentence imposed in this matter. On 6 July 2005 the appellant was
released on bail pending appeal. At that stage, he had already served a
period of almost two and a half years of his sentence.

[5] On 7 November 2013, almost nine years after leave to appeal had
been granted by the trial court, the appeal came before the Gauteng
Division, Johannesburg (Wepener and Vally JJ). Throughout this period
the appellant had been on bail pending appeal. The court a quo had regard
to the appellant’s previous convictions most of which related to dealing in
drugs and held that the appellant was an unrepentant drug dealer. It
concluded that the total sentence of 32 years’ imprisonment had been
appropriate.

[6] In an attempt to afford the appellant the benefit of the period
already served, the court a quo said:2
‘The appellant was incarcerated from 2002 to July 2005, i.e. a period of 3 years on the
conviction and sentence of 20 years’ imprisonment, which have been set aside. This,
the magistrate could not take into account as the conviction had not been set aside
when the appellant was convicted and sentenced by the magistrate in the current
matter. This would, in my view, be an appropriate case to take the period of
imprisonment so served into account by antedating the sentence by 3 years. The
appellant should have the benefit of 3 years’ incarceration as if it was served for the
conviction in this matter.’

[7] The court a quo therefore set aside the sentence imposed by the
trial court and replaced it with an identical sentence but antedated it to 7
November 2010. On 12 November 2013 the appellant applied for leave to
appeal to this court. Two weeks later, on 29 November 2013 the court a
quo granted leave to appeal to this court.

[8] The appeal in this court was heard on 1 March 2015. Subsequent to
the hearing of the appeal, it became apparent that the court a quo did not
have jurisdiction to hear an application for leave to appeal to this court as
s 16(1)(b) of the Superior Courts Act 10 of 2013 (the Act), which came
into operation on 23 August 2013, provided that an appeal against any
decision of a division on appeal to it lies to the Supreme Court of Appeal
upon special leave having been granted by this court. Consequently, the
jurisdictional basis for an appeal to this court was absent. In the result, the
court a quo did not have the power to grant the appellant leave to appeal
to this court and the proceedings on 1 March were a nullity.

2 Paragraph 21.

[9] This court had to consider an application for special leave to appeal
before entertaining the appeal. The parties were apprised of the applicable
provisions and the appellant was requested to lodge a formal application
for special leave to appeal to this court.3 On 27 March 2015 the appellant
then filed an application for special leave to appeal to this court in respect
of sentence in terms of s 16(1) of the Act. The application was heard on
30 March, being the reconvened date of the matter.

[10] In Van Wyk v S, Galela v S,4 this court when considering an
application for special leave said:
‘An applicant for special leave to appeal must show, in addition to the ordinary
requirement of reasonable prospects of success, that there are special circumstances
which merit a further appeal to this court. This may arise when in the opinion of this
court the appeal raises a substantial point of law, or where the matter is of very great
importance to the parties or of great public importance, or where the prospects of
success are so strong that the refusal of leave to appeal would probably result in a
manifest denial of justice.’

[11] This court has held that the imposition of a sentence is pre-
eminently within the discretion of a trial court. A court of appeal will be
entitled to interfere with the sentence imposed by the trial court if the
sentence is: disturbingly inappropriate or so totally out of proportion to
the magnitude of the offence; sufficiently disparate; vitiated by
misdirections showing that the trial court exercised its discretion
unreasonably or is otherwise such that no reasonable court would have

3 Section 17(3) of the Act provides:
‘(3) An application for special leave to appeal under section 16(1)(b) may be granted by the Supreme
Court of Appeal on application filed with the registrar of that court within one month after the decision
sought to be appealed against, or such longer period as may on good cause be allowed, and the
provisions of subsection (2)(c) to (f) shall apply with the changes required by the context.’
4 Van Wyk v S, Galela v S (20273/2014, 20448/2014) [2014] ZASCA 152 (29 September 2014) para
21; [2014] 4 All SA 708 (SCA). See also Westinghouse Brake & Equipment (Pty) Ltd v Bilger
Engineering (Pty) Ltd 1986 (2) SA 555 (A) at 564H – 565E.

imposed it.5

[12] The merits of an appeal are relevant when determining whether
special circumstances exist in order to grant special leave to appeal.
Before us, counsel for the appellant urged us to grant special leave to
appeal on the basis of the following grounds: first, that the sentence
imposed by the court a quo did not achieve its stated purpose of granting
the appellant the benefit of the period incarcerated and that it resulted in
him having to serve more than 32 years’ imprisonment; secondly, the
cumulative effect of the sentence imposed is so severe as to be shockingly
inappropriate. On the other hand, counsel for the State opposed the
application on the basis that there were no reasonable prospects of
success.

[13] I agree with the submission on behalf of the appellant. A sentence
can only be antedated in terms of s 282 of the Criminal Procedure Act 51
of 19776 (the CPA) when, on appeal or review a sentence for a conviction
is either imposed or altered, and the court is satisfied that part of the
sentence has already been served and that the offender should be given
the benefit thereof. It is common cause that the appellant was not
incarcerated during November 2010 nor was he serving a sentence when
the appeal was heard. He was on bail from July 2005 until November
2013.

5 S v Romer 2011 (2) SACR 153 (SCA) para 22.
6 Section 282 reads:
‘Whenever any sentence of imprisonment, imposed on any person on conviction for an offence, is set
aside on appeal or review and any sentence of imprisonment or other sentence of imprisonment is
thereafter imposed on such person in respect of such offence in place of the sentence of imprisonment
imposed on conviction, or any other offence which is substituted for that offence on appeal or review,
the sentence which was later imposed may, if the court imposing it is satisfied that the person
concerned has served any part of the sentence of imprisonment imposed on conviction, be antedated by
the court to a specified date, which shall not be earlier than the date on which the sentence of
imprisonment imposed on conviction was imposed, and thereupon the sentence which was later
imposed shall be deemed to have been imposed on the date so specified.’

[14] Consequently, although the court a quo expressed its stated intent
to afford the appellant the benefit of time he had already served after
being convicted, the effect of it antedating the appellant’s effective
sentence of 32 years to 7 November 2010 had the opposite effect. It
obliged the appellant to serve 32 years from that date, so the period of
more than two and a half years from January 2003 to July 2005 which he
served before he was released on bail did not accrue to his benefit.
Effectively then, the appellant’s sentence as imposed by the court a quo
will be the two and a half years imprisonment that he served from January
2003 plus the 32 years he is obliged to serve with effect from 7
November 2010 ie a period of 34 and a half years. Such a sentence, of
course, was not what the court a quo intended.

[15] In the result the court a quo misdirected itself and this resulted in a
failure of justice which rendered the appeal unfair. This misdirection
entitles us to intervene and consider sentence afresh. It follows that the
appellant must be granted leave to appeal in terms of s 16(1)(b) of the Act
to this court against his sentence.

[16] As to sentence: the appellant was 38 years old at the time of the
commission of the offences and is the father of eight children. He was the
sole breadwinner for his family. He has an unimpressive list of previous
convictions. Three of these are relevant to the offences in this case. These
are: on 19 November 1983 the appellant was convicted of dealing in
drugs (6 mandrax tablets) and was sentenced to five years’ imprisonment.
On 11 March 1991 he was again convicted of dealing in drugs, being 61
mandrax tablets whereupon a sentence of 12 months’ imprisonment was
imposed. A further period of three years’ imprisonment was suspended

for five years on certain conditions. On the same day the appellant was
also convicted on two counts of dealing in drugs. A sentence of 12 years’
imprisonment was imposed. The offences in this appeal were committed
shortly after his release from prison. It is clear that the appellant
continued with his drug dealing conduct over a period of many years. The
sentences imposed as reflected in his SAP 69 form did not deter him from
continuing with his drug dealing activities once he completed serving
each sentence. In my view, the court a quo was justified in describing him
as an unrepentant dealer.

[17] The appellant has been convicted of serious offences which were
committed for personal gain. Counsel for the appellant categorised the
offences as activities flowing from a single trapping operation which
involved minimal values and quantities of drugs. He submitted that the
police could have arrested the appellant during the first encounter but
encouraged him to commit the other three offences. He submitted that
under the circumstances, the sentence imposed was inappropriate. In
support of this contention, he relied on the decisions of S v Hightower,7 S
v Randall8 and S v Mkhize9 to illustrate the severity of the sentence.

[18] This argument is without merit. The appellant conducted his drug
dealing business on a continuous basis. The facts of the cases relied upon
can be distinguished from the facts of this case. For example, in
Hightower, the appellant, who was a 55 year old first offender, was
convicted of dealing in 220 grams of cocaine. He had co-operated with
the police. He had pleaded guilty and had shown remorse. His sentence of
20 years’ imprisonment was set aside on appeal and replaced with one of

7 S v Hightower 1992 (1) SACR 420 (W).
8 S v Randall 1995 (1) SACR 559 (C).
9 S v Mkhize 2000 (1) SACR 410 (W).

10 years, three years of which were suspended.

[19] In Randall, the accused was 23 years old and a first offender. She
was convicted of dealing in 717 grams of cocaine. The court accepted that
she had been involved in one incident and concluded that she had been
induced to commit the offence by others who exploited her youth and
innocence. The sentence of 15 years’ imprisonment of which seven years
were suspended was confirmed on appeal.

[20] In Mkhize, the appellant was 42 years old and a mother of two
children. She was arrested in consequence of a police trap and co-
operated with the police. She was convicted of dealing in drugs for
selling 25 rocks of cocaine with a street value of R1 375. She had a
previous conviction of dealing in drugs. The sentence of 12 years’
imprisonment by the trial court was reduced to eight years’ imprisonment
of which three years were suspended on certain conditions.

[21] On the other hand, the appellant in this matter has three previous
convictions and has been convicted on four counts of dealing in cocaine.
It is clear from the evidence that he had conducted a drug dealing
business over many years. The attempt to trivialise the serious nature of
the offences is accordingly rejected.

[22] Having regard to all the relevant factors, I am of the view that the
sentence of eight years’ imprisonment on each count was appropriate.
However, the cumulative effect thereof is shockingly excessive. Counsel
for the State, in my view, quite correctly found himself unable to argue
the contrary. It seems to me that a portion of some of the sentences
should be served concurrently, so that an effective period of 20 years’

imprisonment be imposed. Furthermore, the period of approximately two
and a half years already served by the appellant must be taken into
account by the Department of Correctional Services. This can be achieved
by an order antedating the sentence to 31 January 2003, being the date
when the trial court imposed the sentence. The appeal therefore succeeds
on these respects only.

[23] In the result the following order is made:
1 The appellant is granted special leave to appeal in terms of s 16 (1)(b)
of the Superior Courts Act 10 of 2013 against the sentence of
imprisonment imposed by the Gauteng Division, Johannesburg.
2 The appeal is upheld.
3 The sentence imposed by the court a quo is set aside and replaced with:
‘(a) The accused is sentenced to a period of eight years’ imprisonment on
each of the four counts, that is, counts 6,7,8 and 10 respectively.
(b) A period of four years of each sentence imposed on counts 7, 8 and 10
is ordered to run concurrently with the sentence imposed on count 6
(effectively a sentence of 20 years’ imprisonment).
(c) In terms of s 282 of the Criminal Procedure Act 51 of 1977 the
sentence is antedated to 31 January 2003.’

__________________
NZ MHLANTLA

JUDGE OF APPEAL

APPEARANCES:

For Appellant:
E Giddion
E Giddion Attorneys
Johannesburg
c/o Frans Botha Attorneys
3 Barnes Street
Bloemfontein

For Respondent:
F Mohamed
The Director of Public Prosecutions
Johannesburg
c/o The Director of Public Prosecutions
Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

8 May 2015

STATUS

Immediate

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

Johannes Windvogel v The State
(20091/2014) [2015] ZASCA 63
________________________________________________________________________________

Today the Supreme Court of Appeal (SCA) handed down a judgment in which it granted the
appellant special leave to appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013 and
upheld the appeal.

The issue before the SCA was whether special leave to appeal should be granted to the appellant
and if so whether the custodial sentence imposed upon the appellant was shockingly inappropriate
in the circumstances.

The appellant was arrested on 28 June 2000 in consequence of a trapping operation by members of
the South African Police Service. He was charged with 12 counts of dealing in prohibited substances
in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992. At the end of the trial,
the appellant was convicted on four counts of dealing in prohibited substances.

On 31 January 2003 the trial court imposed a sentence of eight years’ imprisonment on each count.
An effective term of 32 years’ imprisonment was thus imposed. The trial court ordered this sentence
to run concurrently with a sentence of 20 years’ imprisonment that the appellant was already serving
for a previous conviction for a similar offence. On 18 February 2004 the appellant’s previous
conviction and sentence of 20 years’ imprisonment were set aside on appeal. Subsequently, the trial
court granted the appellant leave to appeal against the sentence imposed in this matter. On 6 July
2005 the appellant was released on bail pending appeal. At that stage, he had already served a
period of almost two and a half years of his sentence. On 7 November 2013, almost nine years after
leave to appeal had been granted by the trial court, the appeal came before the Gauteng Division,
Johannesburg. It concluded that the total sentence of 32 years’ imprisonment had been appropriate.
The court a quo expressed its intent to afford the appellant the benefit of the period served. It
therefore set aside the sentence imposed by the trial court and replaced it with an identical sentence
but antedated it to 7 November 2010. The court a quo thereafter granted the appellant leave to
appeal to this court.

On appeal to this court it became apparent that the court a quo did not have jurisdiction to hear an
application for leave to appeal to this court as s 16(1)(b) of the Superior Courts Act 10 of 2013
provided that an appeal against any decision of a division on appeal to it lies to the Supreme Court

of Appeal upon special leave having been granted by this court. The parties were apprised of the
applicable provisions and the appellant was requested to lodge a formal application for special leave
to appeal to this court which it did.

The SCA noted that the merits of an appeal were relevant when determining whether special
circumstances existed in order to grant special leave to appeal. The SCA held that it was common
cause that the appellant was not incarcerated during November 2010 nor was he serving a sentence
when the appeal was heard as he was on bail from July 2005 until November 2013. The SCA
concluded that the court a quo misdirected itself as the effect of antedating the sentence to 7
November 2010 had the opposite effect- that of increasing the sentence imposed by the trial court by
a period of more than two and a half years-a period that should have accrued to his benefit. The
misdirection resulted in a failure of justice which rendered the appeal unfair. This entitled this court to
intervene and consider sentence afresh.

After considering all the relevant factors, the SCA concluded that the appellant was an unrepentant
dealer and that the sentence of eight years’ imprisonment on each count was appropriate. It
however held that the cumulative effect of that sentence was shockingly excessive. The appeal was
thus upheld in this respect only. The court therefore ordered portions of the sentences imposed on
three counts should run concurrently with the sentence imposed on the first count. The effect thereof
was that the appellant will serve an effective term of 20 years’ imprisonment. The court further
antedated the sentence to 31 January 2003 being the date when the trial court imposed the
sentence. The period of two and a half years already served by the appellant will thus be taken into
account by the Department of Correctional Services.

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