THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

CASE  NO:  73/2002

In the matter between :

ARIAS JIMENEZ
Appellant

and

THE STATE
Respondent

____________________________________________________________________

Coram:
OLIVIER, CAMERON JJA et LEWIS AJA
Heard:
5 NOVEMBER 2002
Delivered:
21 FEBRUARY 2003
Summary:
Dealing in drugs – Sentence – Relevant factors

____________________________________________________________________

J U D G M E N T
____________________________________________________________________

LEWIS AJA:

[1] This appeal is against a sentence of twelve years’ imprisonment imposed on
the appellant by the Johannesburg High Court (per Andre Gautschi and Kuny AJJ).
That court itself dismissed an appeal against a twelve-year sentence handed down by
a district court, but considered that the lower court had misdirected itself in a material
respect, and that as an appeal court it was at large to impose a new sentence. The
judgment of the court a quo is reported (twice, for no apparent reason) sub nom S v
Arias 2002 (1) SACR 518 (W); and sub nom S v Jimenez 2002 (2) SACR 190 (W).
This further appeal is brought with the leave of the court below. References to the
reported judgment are to 2002 (1) SACR 518.

[2] The court below was concerned principally with the application of provisions of
the Criminal Law Amendment Act 105 of 1997, requiring the imposition of minimum
sentences in respect of the commission of certain offences. The appellant had been
charged and tried in a district court for contravening s 5(b) of the Drugs and Drug-
Trafficking Act 140 of 1992, in that he had brought into the Republic 60 ‘bullets’ of
cocaine – that is, condoms filled with cocaine -- that he had swallowed before
boarding an aeroplane to come to South Africa. It was alleged that the weight of the
cocaine was 653,4 grams and its value R210 000. The appellant had pleaded guilty to
the charge, and in so doing it was assumed, apparently, both by the trial court and the
court below, that he had admitted not only the weight but also the value of the
cocaine.

[3] The magistrate, after convicting the appellant, sentenced him on the basis that
he was bound to impose a minimum sentence prescribed under the Criminal Law
Amendment Act. The pertinent section (s 51(2)(a) read with Part II of Schedule II)
requires the imposition of a sentence of at least 15 years’ imprisonment in the case of

a first offender found guilty of dealing in a dependence producing drug the value of
which exceeds R50 000 unless there are substantial and compelling circumstances
that warrant the imposition of a lesser sentence (s 51(3)(a)). However, s 51(2)
expressly states that ‘a regional court or a High Court’ shall be bound to impose the
prescribed sentences. There is in the section no reference at all to the district
magistrates’ courts. The magistrate in this matter considered, however, that there was
an obvious lacuna in the Act; that it must have been the intention of the legislature that
all courts trying offences of the same nature should have the same sentencing powers
and obligations; that under the Drugs and Drug Trafficking Act the jurisdiction of
district magistrates’ courts had already been substantially increased, and that it
therefore made no sense that a district court could impose a sentence of up to 25
years’ imprisonment for an offence, whereas a regional or a high court would be
bound to impose a minimum sentence of 15 years.

[4] On appeal the high court considered that the magistrate had misdirected
himself in concluding that he was bound to impose a minimum sentence. The court
considered that the legislation very clearly excluded district courts from the ambit of s
51 of the Criminal Law Amendment Act. I shall not repeat the reasoning of the court,
nor the authorities adduced by Gautschi AJ in his judgment, since it is reported.
Suffice it to say that I consider the judgment to be correct in finding that district
magistrates’ courts are not bound to impose the minimum sentences prescribed. That
the legislation results in anomalies, and probably even injustice in that sentences
imposed for the same offences may be different, depending on the court in which the
accused is charged and tried, is most unfortunate. But that does not permit a court to
interpret the section in such a way as to change the express sphere of its application.

The anomalies should, however, be brought to the attention of the appropriate
authorities.

[5] Because the court below found that the trial court had misdirected itself in
imposing a sentence in terms of the Criminal Law Amendment Act it considered that it
was at large to impose a sentence itself. After a careful examination of a number of
factors that court also imposed a sentence of twelve years’ imprisonment. It is in fact
against this sentence that the appeal before us lies (S v Makhudu, a decision of this
court, as yet unreported, 16 May 2002, Case No 208/01.)

[6] Counsel for the appellant argued before us that, on a comparative assessment
of other sentences imposed for the commission of similar offences, the sentence was
disturbingly inappropriate. Indeed, it is somewhat higher than sentences imposed
recently in similar circumstances: see, for example, S v Hightower 1992 (1) SACR 420
(W); S v Randall 1995 (1) SACR 559 (C); S v Opperman 1997 (1) SACR 285 (W); S v
Homareda 1999 (2) SACR 319 (W); and S v Mkhize 2000 (1) SACR 410 (W) where
the sentences for trafficking in drugs have ranged from an effective period of five to
ten years’ imprisonment. Counsel was hard pressed to argue that there was a
shocking disparity between these sentences and the sentence of 12 years imposed on
the appellant. Furthermore, while it may be useful to have regard to sentences
imposed in other similar cases, each offender is different, and the circumstances of
each crime vary. Other sentences imposed can never be regarded as anything more
than guides taken into account together with other factors in the exercise of the
judicial discretion in sentencing.

[7] However, even where a sentence does not seem shockingly inappropriate, a
court on appeal is entitled to interfere, or at least to consider the sentence afresh, if
there has been a material misdirection in the exercise of the sentencing discretion.
(See for example S v Petkar 1988 (3) SA 571 (A); S v Siebert 1998 (1) SACR 554
(SCA).)

[8] This court raised with counsel the question whether the court below did
misdirect itself in an important respect – by having regard to the minimum sentences
prescribed by the legislature in the Criminal Law Amendment Act. It is clear that the
court below considered that the appellant was ‘in the position’ of one who has been
convicted under that legislation. Gautschi AJ stated (at 523h—524a):
‘In the light of those cases [Homareda in particular], a fitting sentence may have
been 10 years’ imprisonment. However, we must approach the imposition of
sentence conscious that the Legislature has, by ordaining minimum sentences,
indicated that offenders in the position of the appellant are to be dealt with
severely. The sentences imposed in the cases referred to in Homareda’s case
are useful as guidelines, but must be seen to be on the light side in view of the
message sent out by the Legislature in prescribing minimum sentences. The
sentence in Homareda’s case was based on a value of cocaine which was less
than half of that in the case of the appellant.

‘Although there are compelling mitigating circumstances, . . . the seriousness of
the crime, the fact that it is premeditated, its prevalence and the need for
deterrence to combat the evils of drug dealing (as ordained by the Legislature),
must of necessity outweigh the personal circumstances of the appellant.’

[9] There is no doubt that in the exercise of the sentencing discretion a court
should have regard to public policy and the public interest. The expression of policy in
a statute – as in the Criminal Law Amendment Act – is most certainly a factor that
should be taken into account. Indeed, that statute shows the disquiet experienced by
the public, represented through the legislature, at the prevalence of certain offences
and their effect. The imposition of minimum sentences is a clear indication of what is
perceived to be in the public interest. It is trite that the public interest, or the interest of

the community as it is often put, is a factor that should be considered when the
sentencing discretion is exercised. In an oft-cited dictum Rumpff JA said in S v Zinn
1969 (2) SA 537 (A) at 540G—H that what must be considered ‘is the triad consisting
of the crime, the offender and the interests of society’. The provisions of the Act inform
courts of the attitude of society to crimes of a particular nature, specified in a schedule
to the Act, which includes drug trafficking where the value of the drug exceeds a
certain amount. Part II to Schedule II specifies a contravention of certain provisions of
the Drugs and Drug Trafficking Act where the value of the ‘dependence-producing
substance’ exceeds R50 000 (the offence in respect of which the appellant was
convicted), or where it exceeds R10 000 and the offence was committed by a group of
persons ‘acting in the execution or furtherance of a common purpose or conspiracy’.

[10] While, however, it may be appropriate for a judicial officer to attach significant
weight to the existence of prescribed minimum sentences even where he or she is not
bound by the provisions of the Act, as is the case here, it is proper to do so only where
the offence at issue is one that would be governed by the provisions of the statute if
the court had jurisdiction. In this case there was no evidence adduced before
conviction as to the value of the cocaine that had been smuggled into the country by
the appellant. The absence of such evidence was a function no doubt of the
appellant’s plea of guilty to the charge. After the appellant was convicted the
magistrate merely confirmed with his legal representative that the appellant did not
dispute the value of the cocaine as being R210 000.

[11] This court has recently held (S v Legoa 2003 (1) SACR 13 (SCA)) that the
Criminal Law Amendment Act ‘requires that an accused must have been “convicted of
an offence referred to” in the Schedule [II]’, namely dealing in a dangerous

dependence-producing substance ‘if it is proved that . . . the value of the dependence-
producing substance is more than R50 000’ (para 13). Further, held the court, a court
acquires an ‘enhanced penal jurisdiction’ ‘only if the evidence regarding all the
elements of the form of the scheduled offence is led before verdict on guilt or
innocence . . . ‘ (para 18).  See also S v Nziyane 2000 (1) SACR 605 (T), where the
court came to the same conclusion in so far as the offence of being in possession of a
semi-automatic weapon was concerned: the state must prove the nature of the
weapon before conviction in order for the minimum sentence to be imposed under the
Act.

[12] Although the appellant pleaded guilty to the charge of dealing in cocaine
described as weighing 653.4 grams, there was in fact no proof of the weight of the
drug, and no admission or proof as to its quality or its value before conviction or even
before sentence. Nor was the appellant ‘convicted’ of an offence covered by the
minimum sentence legislation. The procedure the trial court adopted, in eliciting an
admission as to value after conviction, meant that the value in issue did not form part
of the offence in respect of which the appellant was convicted. It follows that, even if
the appellant had been tried in a regional or high court, the value of the cocaine had
not been proved by the state before conviction. Hence, all the elements of the
scheduled offence would not have been proved and those courts would accordingly
themselves not have had jurisdiction to impose the minimum sentence. In the
circumstances, the minimum sentencing legislation should not have been accorded
undue weight in determining the appropriateness of the sentence in this case. Indeed,
the court below was wrong in concluding that the appellant was ‘in the position’ of one
who had been convicted under that legislation.

[13] Was this misdirection material, such as to justify interference by this Court?
The prescribed minimum sentences were clearly regarded by the court below as only
one of several factors to be taken into account in imposing sentence. A number of
other issues were carefully considered. These included the mitigating factors that the
appellant is a first offender; was only 24 years of age at the time when the offence
was committed; and has a wife and young daughter living in Colombia, of which he is
a citizen. He has no family in South Africa, and therefore no familial support while he
serves a sentence of imprisonment. He submitted in a statement to the trial court that
the reason for bringing drugs into the country was to earn money to pay for a
prosthesis for his brother who had been severely injured through being electrocuted in
an accident. The truth of this statement was not challenged since no oral evidence
was led. Nor, however, was it placed in dispute. It was also argued that the appellant
had shown remorse by pleading guilty. The court below correctly accorded little if any
weight to this factor given that in effect the appellant had been caught in such a way
that he had had no choice but to plead guilty. Similarly, the argument that he had
cooperated with the police was not accepted since the extent of the cooperation was
not demonstrated in any way.

[14] Thus, although the court below was incorrect in assuming that the appellant
was convicted of an offence described in the minimum sentencing legislation, that
assumption was not accorded undue significance. The court was fully aware that it
was not bound by that legislation; indeed that was the major thrust of its finding. And it
was entitled to take general account of the policy embodied in that legislation, and did
so properly. I find, accordingly, that there was no material misdirection on the part of
the court a quo in having regard to the existence of the minimum sentence legislation.

[15] The crime committed by the appellant is very serious indeed. Drug trafficking
inevitably results in grave harm to others and courts should ensure that the sentences
they pass have the requisite deterrent effect. The appellant’s conduct thus warrants a
lengthy sentence of imprisonment even though he is a first offender in a foreign
country without any familial support.

[16] A consideration of sentences recently passed for drug trafficking in similar
instances is, as I have said, of assistance only in so far as the sentences indicate a
general trend and hence a measure of consistency. Because the imposition of
sentence (except in so far as the legislature prescribes sentences) is a matter of
judicial discretion, requiring a consideration of factors that are peculiar to each case,
the appropriate sentence for the appellant is one that takes into account his personal
position as well as the interests of society.

[17] In my view, a sentence of imprisonment somewhat shorter than that imposed
might have been more appropriate. The crime is grave and its consequences serious,
but the mitigating factors presented are significant. It cannot be said, however, that the
sentence of 12 years’ imprisonment imposed by the court below was disturbingly
inappropriate, or that the court did not exercise its discretion properly. There is
accordingly no basis on which to interfere with the sentence passed.

[18] The appeal is accordingly dismissed.

[19] The registrar is requested to bring this judgment to the attention of the Minister
of Justice so that the anomalies that arise where an accused may be charged and

tried in a district, regional or high court, only the latter two courts being bound to
impose minimum sentences, can be considered.

C H Lewis
Judge of Appeal

Cameron JA concurs

OLIVIER  JA

[1] I have read the judgment prepared by my colleague Lewis AJA. Although
we agree on the outcome of the appeal, I wish to set out my approach to the
matter.
[2] The appellant was charged in the district court of Kempton Park with
contravening s 5 (b) read with ss 1, 13, 17, 18, 20, 21 and 25 of the Drugs and
Drug Trafficking Act 140 of 1992, as amended, and with s 51 the Criminal Law
Amendment of Act 105 of 1997, in that upon or about 1 August 1999 and at or
near Johannesburg International Airport in the district of Kempton Park the
accused did unlawfully deal in a dangerous dependence-producing substance, to
wit 653,4 grams cocaine, being a substance derived from coca leaves and thus

listed in part II of schedule 2 of Act 140 of 1992, by swallowing 60 bullets, ie,
condoms containing cocaine, and bringing it into the RSA by aircraft.
[3] At the trial, the appellant pleaded guilty and his attorney, Mr Mphahlele,
submitted a written statement in which the appellant admitted to the material
details as charged.

On the strength of the appellant's plea of guilty and confession, he was
found guilty as charged.
[4] Prior to sentencing, the accused's representative and the prosecutor
addressed the court.   The following dialogue between the court and Mr
Mphahlele occurred:
'Court:
Mr Mphahlele, the state informs me that you do not
dispute the value involved being R210 000,00?
Mr Mphahlele:
That is correct.
Court

So that is common cause.'

[5] In sentencing the appellant, the magistrate accepted that he was a first
offender, youthful, a 23 year old Colombian citizen who is married with a four

year old daughter and currently a student at a university in Bogota.   The
magistrate also took into account that the appellant's remuneration for being a
courier or 'mule' would be 5 000 US dollars (ie then approximately R50 000,00).
The magistrate also noted the appellant's assertion  -  made through his attorney  -
that he had intended using a portion of his remuneration to buy a prosthesis for
his brother who had lost a leg through an electrical accident.
[6] The magistrate was not convinced that the appellant had shown remorse,
and found that he had been uncooperative both towards the court and the police.
Acting in accordance with s 51 (2) of the Criminal Law Amendment Act 105 of
1997 and following the judgment in S v Homareda 1999 (2) SACR 319 (W) the
learned magistrate imposed a sentence of 12 years' imprisonment.
[7] The appellant appealed to the Johannesburg High Court against this
sentence.   Andre Gautschi AJ summarised the magistrate's judgment on sentence
as follows:

'The learned magistrate gave a lengthy judgment on sentence in which he found
that, despite sitting as a district magistrate and not as a regional or High Court,
he was obliged to impose a minimum sentence of 15 years' imprisonment unless
he could find compelling and substantial circumstances which would justify a
lesser sentence.   He then found that the ordinary sentence for this type of crime
would be approximately 10 years' imprisonment.   This he found, following S v
Homareda 1999 2 SACR 319 W, to be vastly different from the 15 years'
minimum sentence imposed by the legislature, and therefore found that
substantial and compelling circumstances existed to justify the imposition of a
lesser sentence.   He added "a bit more" than the sentence imposed on
Homareda (which was 10 years' imprisonment) to personalise the sentence to
the circumstances of the appellant and sentenced him in the result to 12 years'
imprisonment.   The appellant appeals only against the sentence.'

[8] The learned judge (with whom Kuny AJ concurred) held that the
magistrate had misdirected himself in two respects, to wit

(a)
that he was bound to impose a minimum sentence of 15 years'
imprisonment unless there were compelling and substantial
circumstances which would justify a lesser sentence.   The court a
quo found that the provisions of   s 51 (2) of the Criminal Law
Amendment Act 105 of 1997 are not applicable to a district court
and that the magistrate was, therefore, not entitled to consider the

imposition of the minimum sentence of 15 years laid down in that
statute;

(b)
that, in any event, even if Act 105 of 1997 had been applicable, the
magistrate erred in his application of the concept of 'compelling and
substantial circumstances.'
[9] The court a quo, having found that the magistrate had erred, held that it
was at large to impose a fitting sentence.   The court then summarised the
mitigating circumstances.   The court also rejected counsel's argument that the
appellant had shown remorse, or that he had co-operated with the police to a
relevant degree.   The court also had regard to previous comparable cases and
continued:
'I have had regard to the sentences imposed in the cases to which we have been
referred by Mr Karam, which are the cases referred to in Homareda's case at
327, and Homareda's case itself.   In the light of those cases, a fitting sentence
may have been 10 years' imprisonment.   However, we must approach the
imposition of sentence conscious that the legislature has, by ordaining minimum
sentences, indicated that offenders in the position of the appellant are to be dealt
with severely.   The sentences imposed in the cases referred to in Homareda's
case are useful as guidelines, but must be seen to be on the light side in view of

the message sent out by the legislature in prescribing minimum sentences.   The
sentence in Homareda's case was based on a value of cocaine that was less than
half of that in the case of the appellant.

Although there are compelling mitigating circumstances, which I have
listed above, the seriousness of the crime, the fact that it was premeditated, its
prevalence and the need for deterrence to combat the evils of drug dealing (as
ordained by the legislature), must of necessity outweigh the personal
circumstances of the appellant.   In all the circumstances a sentence of 12 years'
imprisonment imposed by the learned magistrate, is in my view a fitting one and
should be confirmed.'

[10] The present appeal lies against the sentence imposed by the court a quo,
and not against the magistrate's judgment (see Makhudu v The State, case no 208
/ 01 of this Court, as yet unreported, judgment delivered on 16 May 2002, para
[3]).
[11] The judgment of the court a quo is reported as S v Arias 2002 (1) SACR
518 (W) as well as S v Jimenez 2002 (2) SACR 190 (W).   In the first-mentioned
report, the court a quo correctly in my view, held (at 519 j - 522 g) that the
district court erred in finding that it was bound to impose a minimum sentence of
15 years' imprisonment unless there were compelling and substantial
circumstances which would justify a lesser sentence.   A district court is not

entitled to apply the minimum sentence provisions now under consideration;  the
Criminal Law Amendment Act 105 of 1997 is clear and unambiguous in this
respect.
[12] The problem with the judgment of the court a quo lies in that part quoted
in [9] hereof, and in particular in the reference to S v Homareda 1999 (2) SACR
319 (W).   The point is that the sentence in Homareda was based upon the
application of the relevant minimum sentence provisions.   In general, it is not
permissible to have regard, without the necessary caveats, qualifications and
distinctions, to sentences imposed on the strength of minimum sentence
provisions in a case where the minimum provisions are not applicable.   The
point of departure in prescribing maximum and minimum sentences differs
substantially from that applicable to cases where no such provisions are
prescribed;  and equating without the necessary caveats, qualifications and
distinctions the reasoning of the one with the other will often not be valid.   (See

also the arguments in S v Malgas 2001 (2) SA 1222 (SCA).)   In this sense, the
court a quo can be said to have erred and misdirected itself.
[13] But it is trite law that a mere misdirection is not by itself sufficient to
entitle a court of appeal to interfere with a sentence imposed by a lower court:
' ... it must be of such a nature, degree, or seriousness that it shows, directly or
inferentially, that the Court did not exercise its discretion at all or exercised it
improperly or unreasonably.   Such a misdirection is usually and conveniently
termed one that vitiates the Court's decision on sentence.   That is obviously the
kind of misdirection predicated in the last quoted dictum above: [see S v
Fazzie and Others 1964 (4) SA 673 (AD) at 684 B - C] one that the
"dictates of justice" clearly entitle the Appeal Court "to consider the sentence
afresh" '.

(Per Trollip JA in S v Pillay 1997 (4) SA 531 (A) at 535 E - G.)
[14] There are strong indications that the misdirection in the present case by the
court a quo was not material.   The first is that the court a quo did not
exclusively, or even substantially, rely on a comparison of the judgments
premised on the minimum sentence provisions.  The court properly took into
account all the aggravating and mitigating circumstances that courts usually
consider.   It properly took into account the weight of the cocaine illegally

smuggled into our country by the appellant.   On that basis alone the court a quo
was entitled to impose a sentence of 12 years' imprisonment.   As a very last
remark the court a quo referred to Homareda.   That remark was not the basis of
the sentence imposed.
[15] From a careful reading and study of the judgment of the court a quo, I am
also convinced that even if no reference had been made to Homareda or any
other previous cases, the court would have imposed, or would have been correct
to impose, a sentence of imprisonment for 12 years.   In other words, the
reference to the sentence imposed in Homareda was not only merely one of the
factors taken into account;  it was not even the first or conclusive one.   I am
unable to see how it can be said that the reference to Homareda is    ' ... of such a
nature, degree, or seriousness that it shows, directly or inferentially, that the
Court did not exercise its discretion at all or exercised it improperly or
unreasonably' or that it ' ... vitiates the Court's decision sentence.'   (See S v Pillay
quoted above;  see also S v Kibido 1998 (2) SA 213 (SCA) at 216 g to j.)

[16] The second indication that the misdirection was not material is that the
court a quo was well aware that the minimum sentence provisions were not
applicable in the present case.   In referring to Homareda, and to the fact that in
the present case the minimum sentence provisions were not applicable, the court
a quo illustrated that it was aware of the different considerations applicable to
Homareda and the present case.
[17] It is a salutary rule that this  Court will not readily differ from a court a quo
in its assessment either of the factors to be regarded to or of the value to be
attached to them.

I also associate myself with what Kriegler J said in Key v Attorney-
General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC) at 195 in
para [13]:
'In any democratic criminal justice system there is a tension between, on the one
hand, the public interest in bringing criminals to book and, on the other, the
equally great public interest in ensuring that justice is manifestly done to all,
even those suspected of conduct which would put them beyond the pale.   To be
sure, a prominent feature of that tension is the universal and unceasing
endeavour by international human rights bodies, enlightened legislatures and

courts to prevent or curtail excessive zeal by State agencies in the prevention,
investigation or prosecution of crime.   But none of that means sympathy for
crime and its perpetrators.   Nor does it mean a predilection for technical
niceties and ingenious legal stratagems.   What the Constitution demands is that
the accused be given a fair trial.   Ultimately, as was held in Ferreira v Levin,
fairness is an issue which has to be decided upon the facts of each case, and the
trial Judge is the person best placed to take that decision.   At times fairness
might require that evidence unconstitutionally obtained be excluded.   But there
will also be times when fairness will require that evidence, albeit obtained
unconstitutionally, nevertheless be admitted.'

Consequently, I am satisfied that although there was, technically speaking,
a misdirection on the part of the court a quo, it did not constitute a material
misdirection.
[18] The ultimate question is whether the sentence of 12 years' imprisonment
imposed by the court a quo was a fair and reasonable one.   (See S v Peters 1987
(3) SA 717 (A) at 727 F - H;  S v L 1998 (1) SACR 463 (SCA) at 468 f to j.)   I
think it was.
[19] For a considerable time our courts have viewed dealing in 'hard' drugs,
such as heroin and cocaine, in a very serious light.   In S v Gibson 1974 (4) SA

478 (A) at 481 H this court, per Holmes JA, welcomed the effort of the
Legislature
' ... to stamp out the growing social evils of the abuse of drugs as a wise and
laudable one.   No doubt, too, that, for example, a supplier for gain may in
general be regarded as a vicious person who needs to be put down, for in the
drug traffic he is an indispensable evil link in the chain leading to the
consumer.'

[20] In S v Hightower 1992 (1) SACR 420 (W), a case concerned with dealing
in cocaine, the Witwatersrand Local Division of the Supreme Court quoted with
approval (per MacArthur J;  Mahomed J concurring) what Schreiner JA had said
in R v Karg 1961 (1) SA 231 (A) at 236 B - C, viz:
' It is not wrong that the natural indignation of interested persons and of the
community at large should receive some recognition in the sentences that Courts
impose, and it is not irrelevant to bear in mind that if sentences for serious
crimes are too lenient, the administration of justice may fall into disrepute and
injured persons may incline to take the law into their own hands.'

MacArthur J, at 422 j, continued:
'The deterrent aspect, however, remains as important as ever.   I have already
mentioned this aspect briefly and I would add that anyone who wishes to deal in
a dangerous dependence-producing drug like cocaine must be made to realise

that the courts will not be sympathetic, but will exact a heavy price upon anyone
who is found guilty of that offence.'

[21] There is ever-increasing smuggling of hard drugs into our country,
described fully by Steyn AJ in S v Randall 1995 (1) SACR 559 (C) at 566 g - i.
The learned judge continued (at 566 i - 567 a) with the following remarks, with
which I fully associate myself:
'Drug dealers are unscrupulous criminals.   They will use the weak, the gullible,
and, may I add, the greedy.   They are without conscience.   They do not care
for those who facilitate their evil objectives, nor do they have a concern about
the lives they ruin by trafficking in drugs.   Society is at risk should it hesitate to
use every legitimate mechanism at its disposal to protect itself against their
destructive designs.   One of these weapons  -  and I emphasise that it is only
one of them  -  is to make it clear to courier and principal alike, that the game is
not worth the candle and that the price society exacts for transgressions will not
be tempered by concern for the plight of the weak and the greedy.'

[22] The learned judge also emphasised (at 567 c - d) that in a multi-pronged
strategy combating the importation and distribution of dangerous drugs,
' ... the courts have their role to play in imposing sentences which speak clearly
of society's determination to fight this danger with all the weapons at its
disposal.'

[23] It was also laid down by Steyn AJ (at 567 f- h) that the personal
circumstances of couriers of hard drugs, mitigating though they may be, are
outweighed by the public need for protection through the imposition of deterrent
sentences.   (See also S v Sebata 1994 (2) SACR 319 (C) at 322 j et seq.)
[24] In Sebata, supra, Steyn AJ referred with approval (at 323 g et seq) to the
judgment of Lord Lane CJ and Talbot J in R v Aramah 1983 Crim LR (CCA) 271
where the learned judges remarked on the vice of dealing in hard drugs:
' ... first of all, they are easy to handle.   Small parcels can be made up into huge
numbers of doses.   Secondly, the profits are so enormous that they attract the
worst type of criminal.   Many of such criminals may think, and indeed do
think, that it is less dangerous and more profitable to traffic in heroin or
morphine than it is to rob a bank.   It does not require much imagination to
realise the consequential evils of corruption and bribery which the huge profits
are likely to produce.   ...... this may be a fruitful source of violence and
internecine strife.   Fourthly, the heroin taker, once addicted (and it takes very
little experimentation with the drug to produce addiction), has to obtain supplies
of the drug to satisfy the terrible craving.   It may take anything up to hundreds
of pounds a week to buy enough heroin to satisfy the craving, depending upon
the degree of addiction of the person involved.   The only way, it is obvious, in
which sums of this order can be obtained is by resorting to crime.   This in its
turn may be trafficking in the drug itself and disseminating accordingly its use
still further.

Fifthly, and last, and we have purposely left it for the last, because it is the
most horrifying aspect, comes the degradation and suffering and frequently the

death which the drug brings to the addict.   It is not difficult to understand why
in some parts of the world traffickers in heroin in any substantial quantity are
sentenced to death and executed.

Consequently anything which the courts of this country can do by way of
deterrent sentences on those found guilty of crimes involving these class "A"
drugs should be done.'

What the learned judges said of heroin and morphine, applies equally to
cocaine (see S v Sebata, supra, at 325 1-b).
[25] To the list of evils enumerated above must be added the devastating effect
the addiction to hard drugs has on the family, relations, employees and friends of
the user.   Families fall apart, are bankrupted and drained emotionally by the
experience of seeing a family member, usually a youth, becoming addicted and
changing from a healthy, lovely child to a human wreck.   No wonder that in
several countries and cultures, the smuggling of hard drugs is punishable by
death.   (For details, see D P van der Merwe, Sentencing, paragraph 12 - 5.)
[26] The aversion with which trafficking in hard drugs, especially the
smuggling thereof into our country, is viewed by the courts, is illustrated by

repeated statements to this effect, and by the imposition of long terms of
imprisonment, eg S v Opperman 1997 (1) SACR 285 (W) at 288 i et seq;  S v
Homareda, supra, at 326 and S v Tshabalala, 1999 (1) SACR 412 (C) at  427 a;
S v Howe 1989 (2) SA 473 (W) at 478 E - G).
[27] In spite of all these statements and despite heavy sentences imposed by the
courts the trafficking in drugs and the employment of couriers to smuggle hard
drugs into our country has not abated or diminished.   On the contrary, only the
most naive would not be aware of the ever-increasing stream of drugs illegally
coming into our country via international ports and airports.   We are becoming
known as a haven for dealers in drugs and our youth, students and schoolchildren
are singled out as soft targets.   Against this background, the legislature has over
the years steadily increased the punishment to be meted out to dealers in drugs,
including couriers from foreign countries.   In 1971 the Abuse of Dependence-
Producing Substances and Rehabilitation Centres Act, 41 of 1971, was enacted.
For illegal dealing in prohibited drugs, the discretion of the courts was taken

away:  first offenders had to be given a minimum sentence of five years
imprisonment;  second and subsequent offenders had to be given a minimum of
ten years.
[28] In 1986 the courts were given back their discretion in sentencing.   (See the
Abuse of Dependence-Producing Substances and Rehabilitation Centres
Amendment Act, 101 of 1986.)   In 1990, however, by the Abuse of Dependence-
Producing Substances and Rehabilitation Centres Amendment Act 78 of 1990,
the maximum sentences previously prescribed were raised substantially.
[29] All previous statutory provisions dealing with drug offences were repealed
in 1992 by the Drugs and Drug Trafficking Act 140 of 1992.   Section 17
prescribes maximum sentences.   In the case of dealing in any dangerous
dependence-producing substance or any undesirable dependence-producing
substance, any court, including a magistrates' court, may impose a sentence of
imprisonment for a period not exceeding 25 years, or both such imprisonment
and such fine as the court may deem fit to impose (ss 5 (b), 17 (e) and 64).

[30] Finally, s 51 of the Criminal Law Amendment Act 105 of 1997 imposed
minimum sentences for certain serious offences including inter alia, dealing in
cocaine.   The section provides that a regional court or High Court that has
convicted a person of such offence may sentence the person, in the case of
(i)
a first offender, to imprisonment for a period not less than 15 years;
(ii)
a second offender, to imprisonment for a period not less than 20
years;  and
(iii)
a third or subsequent offender, to imprisonment for a period not less
than 25 years.

The maximum sentences imposed by the 1992 Act remain intact.
[31] In my view it is proper for a court considering sentence to have regard to
the legislative policy as expressed in legislation dealing with sentencing.   If this
were not so, legal and social confusion would ensue, leading to a conflict
between the legislator and the courts.   In imposing sentences for drug-related
crimes, courts must take cognisance of the persistent policy of the legislature that
these    crimes must be viewed in a most serious light and heavy sentences

imposed.   (See also S v Howe, supra, at 478 E - G;  S v Gibson 1974 (4) SA 478
(A) at 481 H per Holmes JA.)
[32] In short, this is not an area where 'maudlin sympathy' (the expression used
by Holmes JA in S v Rabie 1975 (4) SA 855 (A) at 861 C - D) should be allowed
to override common-sense and social and legislative policy.   Nor should judges
be swayed by misplaced pity (intempestiva misericordia - an expression used by
Van der Linden Supplement, quoted by Joubert AJ in S v Opperman 1997 (1)
SACR 285 (W) at 292;  see also S v Zinn 1969 (2) SA 537 (A) at 541).
[33] The court a quo correctly found that the appellant had shown no remorse.
He also did not testify under oath as to the alleged remorse.   In S v Seegers 1970
(2) SA 506 (A) at 511 G - H, Rumpff JA made a remark which has been followed
in numerous cases and is part of daily practice in the criminal courts:
'Remorse, as an indication that the offence will not be committed again, is
obviously an important consideration, in suitable cases, when the deterrent
effect of a sentence on the accused is adjudged.   But, in order to be a valid
consideration, the penitence must be sincere and the accused must take the
Court fully into his confidence.   Unless that happens the genuineness of
contrition alleged to exist cannot be determined.'

[34] I am also not impressed by the argument that it will be hard for the
appellant to be incarcerated for a long period in a foreign country.   That will
happen because the appellant chose our country for the commission of a vile
crime.   In S v Lister 1993 (2) SACR 228 (A) this Court, per Nienaber JA said at
232 g - h:
'To focus on the well-being of the accused at the expense of the other aims of
sentencing, such as the interests of the community, is to distort the process and
to produce, in all likelihood, a warped sentence.'

[35] Even if one accepts the alleged personal circumstances of the appellant  -
he chose not to confirm them under oath  -  they are not out of the ordinary and
certainly do not deserve special, more lenient treatment.
[36] This Court must also be sensitive to the message it sends out to the
legislator, the public and drug dealers here and overseas.  Our country is fast
becoming known as a profitable and easily accessible market for drug dealers and
drug smugglers.   Because of the relatively light sentences our courts impose for

these offences, compared to many other countries and because of the particularly
lenient parole conditions prevailing here at present, illegal drug trafficking has
obviously become a profitable business.   The appellant was prepared to take the
risk of a confrontation with our criminal justice system in return for a
remuneration of U$ 5 000.   The sentences imposed by the courts must make it
clear to intended drug couriers that the game is not worth the candle.
[37] Because the appellant chose not to testify under oath, one does not know
whether he intended to sell the cocaine himself or to deliver it to a pre-arranged
dealer here.   He did not take the court into his confidence, so that the recipient, if
there were one, could be identified and brought to justice.   In my view this
constitutes an aggravating circumstance.   (See S v Sebata, supra, at 325 3e - g;  S
v Opperman, supra;  R v Aramah, supra;  S v Randall, supra, at 566 e - g;  S v
Smith en Andere 1978 (3) SA 749 (A) at 758 F - G.)
[38] Finally, in my view, if one has regard to appropriate sentences imposed by
our courts ( ie where the minimum sentence provisions are not applicable) a

sentence of 12 years' imprisonment is not improper or unreasonable, and by no
means disturbingly inappropriate.   One may compare the judgment of this Court
in S v Morebudi 1999 (2) SACR 664 (SCA).   In that case, the appellant and a co-
accused were convicted in the regional court, Pretoria, of dealing in 1 433 kg of
dagga in contravention s 5 (b) of the 1992 Act  -  the same provisions under
which the present appellant was prosecuted.   The appellant in that case was
sentenced to 14 years' imprisonment and the co-accused to 7 years.   The
appellant's vehicle, used in conveying the dagga, and valued at R 63 000,00, was
forfeited to the State.   The magistrate took into account a previous conviction of
the appellant, 20 years earlier.   It had lapsed, but this Court held that it could be
taken into account for the limited purpose of showing that the crime had been
committed in spite of a previous warning.   This does not distinguish Morebudi
from the appeal now under consideration, because it is clear that the present
appellant knew that he was acting illegally and was aware of the seriousness of
the offence in this country.

Also in Morebudi the magistrate had found that the appellant was a 'Mafia-
type organiser of a large network of dealers'.   In the present case the appellant
cannot be said to be the organiser of a large network of dealers, but clearly he
was a willing participant in smuggling cocaine.   In this regard this Court in
Morebudi held that whether the appellant was a one-man dealer or formed part of
an 'omvangryke smokkelaarsnetwerk' made little difference, regard being had to
the quantity of dagga involved.   In the present case the crime was undoubtedly at
least as serious and suggestive of previous planning and execution as that under
consideration in Morebudi.
[39] In Morebudi, the accused was 35 years old, and the father of two children.
The sentence of 14 years' imprisonment and the forfeiture of the vehicle was
confirmed by this Court.
[40] Counsel for the appellant in the present case contended for a sentence of
imprisonment for eight to ten years.   Such a sentence would, in my view, be

unrealistically lenient and contrary to present policy and public interest.   It
would be totally inadequate and disturbingly inappropriate.
[41] In the result, the sentence of 12 years' imprisonment imposed by the court
a quo is confirmed and the appeal is dismissed.

P J J  OLIVIER  JA