THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1301/2021
In the matter between:
RENEAL ALLAN FRANCIS
APPELLANT
and
THE STATE
RESPONDENT

Neutral citation: Francis v The State (1301/2021) [2023] ZASCA 30 (28 March
2023)
Coram:
VAN
DER
MERWE,
MABINDLA-BOQWANA,
MEYER,
WEINER and MOLEFE JJA
Heard:
3 March 2023
Delivered:
28 March 2023
Summary:
Criminal procedure – appeal against refusal of petition by high
court – appellant convicted of two counts of dealing in drugs – sentenced to effective
imprisonment of 15 years – whether appeal against sentence would have reasonable
prospects of success.

ORDER

On appeal from: Eastern Cape Division of the High Court, Makhanda (Jolwana J
and Rusi AJ, sitting as court of appeal):
The appeal is dismissed.

JUDGMENT

Molefe JA (Van der Merwe, Mabindla-Boqwana, Meyer and Weiner JJA
concurring):
[1] This is an appeal against the decision of the Eastern Cape Division of the High
Court, Makhanda (the high court), refusing Mr Reneal Allan Francis (the appellant)
leave to appeal the sentence ordered by the Magistrate’s Court for the Regional
Division of the Eastern Cape held at East London (the trial court), which imposed
an effective sentence of 15 years’ imprisonment on the appellant in respect of
convictions for dealing in drugs.

[2] The appellant was a police officer working in the crime prevention unit of the
South Africa Police Service (SAPS) stationed at Mdantsane. He was convicted by
the trial court on two counts of dealing in drugs in contravention of s 5(b) of the
Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act). Pursuant to his
conviction, the appellant was sentenced to 15 years’ imprisonment on each count.
The trial court found no substantial and compelling circumstances that justified a

deviation from the prescribed minimum sentence. It ordered that the sentences
imposed on both counts run concurrently. The effective sentence, therefore, is
imprisonment for 15 years.

[3] The appellant applied for leave to appeal against both his conviction and
sentence, which the trial court refused. The high court also refused to grant leave to
appeal on petition. The appellant appeals to this Court against his sentence with the
leave of this Court. Thus, the question on appeal is whether the high court should
have granted leave to the appellant to appeal to it. The answer to that question
depends on whether there are reasonable prospects of success on appeal.

[4] As the appeal is only against the refusal of leave to appeal against sentence,
those facts which are germane to the determination of reasonable prospects of
success on appeal need only to be briefly recounted. The appellant was part of a
group of police officers stationed at Mdantsane that conducted crime prevention
duties specifically in respect of dealing in drugs. Information was obtained that these
police officers would seize drugs during raids, but would not hand in the drugs as
exhibits or would only hand over portions of the drugs. Instead, they would look for
potential buyers to purchase the seized drugs from them, thereby enriching
themselves.

[5] The organised crime unit in conjunction with crime intelligence of the SAPS
in East London initiated operation ‘Cooler-Bag,’ an undercover operation in terms
of s 252A of the Criminal Procedure Act 51 of 1977. An undercover agent was used
to infiltrate and befriend the appellant and to arrange for the purchase of drugs. The
agent was provided with audio and video equipment to record the transactions. The
agent testified that on two separate occasions the appellant first sold 46 and then 50

tablets containing methaqualone (Mandrax) to him on 14 November and 30
November 2012, respectively. Money was exchanged between them and both
transactions were captured by the audio and video equipment. The purchase price
for the drugs was R1 700 and R1 600 respectively. Mandrax is an undesirable
dependence-producing substance in terms of the Drugs Act, and thus the dealing
therein is illegal.

[6] Section 51(2)(a) of the Criminal Law Amendment Act 105 of 1997 (the CLA)
provides for prescribed minimum sentences for certain serious offences. It reads as
follows:
‘(a) Part II of Schedule 2, in the case of –
(i) a first offender, to imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 20 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than
25 years.’

[7] Section 51(2) read with Part II of Schedule 2 of the CLA relates to
contravention of s 13(f) of the Drugs Act, where the value of the drugs is more than
R50 000; or the value of the drugs is more than R10 000 and the offence is committed
‘by a person, group of persons, syndicate or any enterprise acting in the execution
or furtherance of a common purpose or conspiracy’; or if the offender is a ‘law
enforcement officer’. The appellant correctly conceded that, as a member of the
SAPS, he was a law enforcement officer.

[8] The argument presented on behalf of the appellant was that there are
reasonable prospects of success on appeal that the trial court misdirected itself in its
finding that there were no substantial and compelling circumstances justifying a

lesser sentence than that which it imposed. The appellant’s contention further was
that the trial court erred, in fact and in law, by failing to apply the legal principles
enunciated in S v Malgas, the seminal judgment on ‘substantial and compelling
circumstances’.1 More particularly, that the trial court erred, when it found no
substantial and compelling circumstances to deviate from the prescribed minimum
sentence of 15 years’ imprisonment per count.

[9] The gist of Malgas is that the specified sentences should not be departed from
lightly and that the prescribed sentences should ordinarily be imposed. If, however,
the prescribed sentence would be unjust in all the circumstances, the court should
not hesitate to depart from it.

[10] A pre-sentence report by a probation officer and a suitability report by the
Department of Correctional Services were presented to the trial court. The reports
pertaining to the appellant’s personal circumstances provided the following
information: he was 28 years old at the time of his arrest and served six years as a
police officer in the SAPS; he is married with one minor child and was the sole
breadwinner for his family prior to his arrest; he is a first offender and spent 19
months in custody awaiting trial; he obtained a diploma in information technology
and was self-employed at the time of the sentence; and he made positive
contributions to the community. There is clearly very little which is unusual in the
appellant’s personal circumstances.

[11] On the other hand, it is a serious aggravating factor for a law enforcement
officer to be involved in criminal activities, because that is an abuse of the position

1 S v Malgas 2001 (1) SACR 469 (SCA); [2001] 3 All SA 220 (A).

of trust society has placed on them.2 Abuse of drugs is prevalent in the society that
the appellant was supposed to serve and protect. The appellant, a police officer
whose primary duty was to uphold the law and curb the commission of offences,
abused his position of power and authority and fuelled the drug abuse problem he
had been employed to eradicate. The appellant was more so employed in a
department responsible to combat drug dealing. The appellant is not remorseful. The
trial court correctly found that lack of remorse is not in itself an aggravating factor.
It is, however, indicative that the appellant does not take responsibility for his actions
and lacks insight into the gravity of the crimes he committed. This points to an
absence of the prospect of rehabilitation on his part.3

[12] Based on all the circumstances in this matter, aggravating and mitigating, I
can find no misdirection in the trial court’s reasons for the sentences imposed. There
are clearly no substantial and compelling circumstances present. The appellant’s
personal circumstances pale in comparison to the aggravating factors. The
application for leave to appeal was therefore correctly refused.

[13] In the result, the following order is made:
The appeal is dismissed.

__________________
D S MOLEFE
JUDGE OF APPEAL

2 S v Maritz 1996 (1) SACR 405 (A) at 417.
3 S v Dyantji 2011 (1) SACR 540 (ECG) para 26.

Appearances

For the appellant:

R M Liddell
Instructed by:

Changfoot Van Breda Inc, East London
Symington De Kok Attorneys, Bloemfontein

For the respondent:

S S Mtsila
Instructed by:
Director of Public Prosecutions, Makhanda
Director of Public Prosecutions, Bloemfontein