THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no:  33/2002
REPORTABLE

In the matter between:

LEGOA, Michael

Appellant

and

THE STATE

Respondent

Before:
Vivier JA, Streicher JA, Cameron JA, Brand JA and
Lewis AJA
Heard:

Friday 13 September 2002
Judgment:
Thursday 26 September 2002

Criminal law – Dealing in dagga – Minimum sentencing legislation,
Act 105 of 1997 – (i) Meaning of ‘value’ – (ii) State must prove
elements of the form of offence contemplated in Schedule before
conviction

JUDGMENT
_______________________________________________________

CAMERON JA:

[1] This is an appeal, with leave granted by this Court, against the
Eastern Cape High Court’s dismissal of an appeal against a

fifteen-year minimum sentence imposed in a regional court for
dealing in dagga valued at more than R50 000.  Two questions
are in issue: the meaning of ‘value’ in the minimum sentencing
legislation; and whether at the trial of an accused charged with
dealing the state is entitled prove the value in question after
conviction but before sentencing, so as to invoke the minimum
sentences.

[2] On 6 June 1999 the appellant, then twenty-five years old, was
arrested near Aliwal North on the Lady Grey/Sterkspruit road.  He
was found driving a motor vehicle belonging to his mother,
stashed with 261,3 kilograms of dagga (cannabis).  Soon after, in
the Regional Court at Aliwal North, he was charged with dealing in
a prohibited substance in contravention of s 5(b) of the Drugs and
Drug Trafficking Act 140 of 1992 (‘the 1992 Act).1  On the main

1 Section 5 of the 1992 Act prohibits dealing in dependence-producing, dangerous dependence-
producing or undesirable dependence-producing substances.  Sub-sections 13(e) and (f) make
contravention of the prohibition on dealing a criminal offence.  Section 5 provides (subject to
exceptions not relevant) that ‘No person shall deal in –
(a) any dependence-producing substance; or
(b) any dangerous dependence-producing substance or any undesirable dependence-producing
substance’.
Section 1 provides that ‘”deal in”, in relation to a drug, includes performing any act in connection
with the transhipment, importation, cultivation, collection, manufacture, supply, prescription,
administration, sale, transmission or exportation of the drug’.
Part III of Schedule 2 to the Act classifies ‘Cannabis (dagga), the whole plant or any portion or
product thereof, except dronabinol [(-)-transdelta-9-tetrahydrocannabinol]’ as an ‘undesirable

count  (there was an alternative count of unlawful possession) the
charge sheet read (my translation from the Afrikaans):
‘That the accused is guilty of the offence of contravening section 5(b) read
with sections 13(f), 17(e), 18, 19, 20, 21, 25 and 64 of Act 140 of 1992
in that on or about the 6 day of June 1999 at or near Lady Grey
Sterkspruit main road in the district of Aliwal North the accused wrongfully
and unlawfully dealt in an undesirable dependence-producing substance
as contemplated in Schedule 2 of Part III [of] Act 140 of 1992 namely
216,3 kg (cannabis – dagga).’

[3] In a written plea of guilty in terms of s 112(2) of the Criminal
Procedure Act 51 of 19772 the appellant, who was legally
represented, pleaded guilty to the main count.  His statement
recited all the statutory and factual particulars in the charge sheet.
It added that, in return for an expected payment of R1 000, the
appellant had been ‘hired by a certain lady’, whose names were to
him unknown, to convey the dagga from the Lesotho border to
Aliwal North.  There ‘he would have handed the dagga to the lady
for further distribution and sale by her’.  The correct weight of the
dagga was admitted as 216,3 kg.  There was no admission
regarding value.

dependence-producing substance’.
2 Section 112(2) provides that ‘If an accused or his legal adviser hands a written statement by the
accused into court, in which the accused sets out the facts which he admits and on which he has
pleaded guilty, the court may, in lieu of questioning the accused under subsection (1) (b), convict
the accused on the strength of such statement and sentence him as provided in the said
subsection if the court is satisfied that the accused is guilty of the offence to which he has
pleaded guilty: Provided that the court may in its discretion put any question to the accused in

[4] The State accepted the averments and facts set out in the
appellant’s plea.  The statement was handed up to the presiding
magistrate and the appellant was convicted as charged.
Thereafter the prosecution indicated that it would prove no
previous convictions, but requested a postponement ‘to lead
further evidence in aggravation of sentence’.

[5] Both the charge sheet and the admission of guilt made express
mention of the applicable penalty provision in the 1992 statute,
namely s 17(e).  This specifies for dealing in dangerous or
undesirable dependence-producing substances a maximum
sentence of 25 years’ imprisonment, or ‘both such imprisonment
and such fine as the court may deem fit to impose’.  But at the
time the appellant was charged that provision had been
superseded.  In 1997 Parliament adopted minimum sentences
legislation in respect of such dealing.  The Criminal Law
Amendment Act 105 of 1997 (‘the 1997 Act’) s 51(2)(a)(i) now
specifies that in the absence of ‘substantial and compelling
circumstances’ justifying a lesser sentence, a first offender

order to clarify any matter raised in the statement.’

convicted of ‘an offence referred to in Part II of Schedule 2’ is
liable to a minimum sentence of 15 years.  The portion of the
Schedule in question specifies ‘Any offence referred to in s 13(f)’
of the 1992 statute –
‘if it is proved that –
(a) the value of the dependence-producing substance in question is more
than R50 000,00;
(b) the value of the dependence-producing substance in question is more
than R10 000,00 and that the offence was committed by a person,
group of persons, syndicate or any enterprise acting in the execution or
furtherance of a common purpose or conspiracy; or
(c) the offence was committed by any law enforcement officer.’ 3

[6] Despite defence opposition, the postponement sought was
granted.  When the trial resumed, the State called the police
officer commanding the South African National Narcotics Bureau
(SANAB) at Queenstown, Capt van Niekerk, to testify about the
value of the dagga in question.  He produced a nationwide survey
of the approximately two-score SANAB units, of which nine were
in the Eastern Cape.  Five of the Eastern Cape units had
indicated (consonantly with the findings of the survey as a whole)
that dagga had a street value of about R1,00 per gram.  One had
shown a value of R5,00 per gram, while another had shown R0,50

3 The 1997 Act’s minimum sentencing provisions were brought into effect on 1 May 1998.  Their
operation has from time to time been extended, most recently from 1 May 2001 for a further two
years (Proc R29 in GG 22261 of 30 April 2001).

per gram.  Returns from two of the Eastern Cape SANAB units,
including the Aliwal North unit, were not shown.  Van Niekerk
added that in his sixteen years in SANAB, it had always been
accepted, and his personal experience confirmed, that the street
value of dagga had remained relatively static at R1,00 per gram,
or R1 000,00 per kilogram.  He emphasised that this was the
value of the dagga when sold at its ‘final destination’.

[7] Under cross-examination, Van Niekerk confirmed that in
estimating the value of the dagga in issue he had in mind its value
as sold by the street dealer to the street consumer.  He expressly
agreed that its value to the producer would be ‘much, much lower’
than R1,00 per gram.  The weight seized in the appellant’s
possession constituted, he agreed, about 20 raw bags.  This
would be worth to the producer no more than R300,00 to R1
000,00 per bag (though on occasion perhaps more).  The total
value of the dagga seized would be at most between R15 000 and
R20 000.

[8] In the regional court the only disputed issue was the value of the
dagga.  The magistrate found that the state had established the
‘potential value’ of the dagga as R1,00 per gram.  Despite Van
Niekerk’s concessions, he held that the only feasible approach
was potential value.  While it was true that the price obtained for a
consignment could vary, it was up to an accused to convince a
court that any other value applied.  In the absence of substantial
and compelling circumstances, the appellant therefore had to be
sentenced to fifteen years’ imprisonment.

[9] On appeal to the Eastern Cape High Court, a second ground was
argued – that the appellant had not been ‘convicted’ of a
scheduled offence as contemplated in the 1997 Act.  On the first
issue, the Court (Chetty J, Pillay J concurring) held that ‘value’
must be given ‘a meaning that could be applied to the ordinary
everyday facts associated with the illegal drug trade’.  Since the
intended target was the end user, it was the street value that must
apply.  On the second point, the Court held that ‘the value of the
dependence-producing substance is entirely irrelevant prior to
conviction’, and that the state did not have to prove value before

conviction.  For the reasons that follow, both conclusions are in
my view wrong.

‘Value’ in the minimum sentencing legislation
[10] Nearly a century ago Innes JA observed that the principle ‘that
the value of an article is, as a general rule, what it will fetch’ was
well recognised.  Accordingly, ‘the aim should be to estimate what
could be obtained for it; not what it cost or what its utility to the
owner would be worth’.4  ‘What it will fetch’ relates of course to
market value, which Innes JA went on to describe as ‘the most
uniform test, and the one easiest of practical application.’

[11] ‘Market value’, notoriously, means the price a willing buyer pays
a willing seller in an open market.  In the present case, the
magistrate and the Eastern Cape Division implicitly accepted this.
But the error they made was to assume that dagga sold in bulk
and dagga sold in small quantities of 1 gram would sell at the
same price per gram.  The conclusion is at odds with common
sense.  In any event there is no evidence to support the

4 Pietermaritzburg Corporation v South African Breweries Ltd 1911 AD 501 515.  See too de

assumption.  In fact the evidence is to the contrary.  The dagga
was in twenty bags, each therefore weighing somewhat more than
10kg.  Capt van Niekerk testified that the value of such a bag was
between R300 and R1000.  At most, therefore, the dagga was
worth R20 000.  It may have been worth considerably less – in
any event, nothing even close to the R50 000 the minimum
sentencing legislation prescribes.

[12] On this ground alone the sentence imposed on the appellant
was incompetent.  Although this conclusion is sufficient to dispose
of the appeal, the course the proceedings took in the courts below
and the conclusions those courts reached on the second issue
necessitate further examination.

Can the State prove the value of the dagga after conviction?
[13] The 1997 minimum sentencing legislation requires for its
application that an accused must have been ‘convicted of an
offence referred to’ in the Schedule.5  In this case the offence
‘referred to’ in the Schedule is that of dealing in a dangerous

Villiers JA at 522.

dependence-producing substance ‘if it is proved that – (a) the
value of the dependence-producing substance in question is more
than R50 000,00’. The question is whether the High Court’s
conclusion that the value of the substance in question relates
solely to the question of sentence and is irrelevant before
conviction, is correct.

[14] In my view for three principal reasons it is not.  First, the High
Court’s conclusion flies in the face of the wording of the 1997
statute.  That wording in my view clearly indicates that for the
minimum sentencing jurisdiction to exist in respect of an offence,
the accused’s conviction must encompass all the elements of the
offence set out in the Schedule.  (This does not apply when the
Schedule specifies an attribute not of the offence, but of the
accused, such as rape when committed ‘by a person who has
been convicted of two or more offences of rape, but has not yet
been sentenced in respect of such convictions’.)6  Second, even if
the wording of the statute were open to more than one
interpretation (which in my view it is not) the grave injustice that

5 The wording of the 1997 statute was amended, in respects immaterial to this appeal, by Act 62

the contrary interpretation can cause compels the conclusion that
the elements of the offence must be established before
conviction.  Third, the High Court’s conclusion is contrary to
established principle and practice in our criminal trial courts.

[15] It is an established principle of our law that a criminal trial has
two stages – verdict and sentence.  The first stage concerns the
guilt or innocence of the accused on the offence charged.  The
second concerns the question of sentence.  Findings of fact may
be relevant to both stages.  However, those in the first stage
relate to the elements of the offence (or the specific form of the
offence) with which the accused is charged.  Those in the second
mitigate or aggravate the sentence appropriate to the form of the
offence of which the accused has been convicted.

[16] The application of this principle was complicated, but its
essence not affected, when the death sentence was compulsory
for murder without extenuating circumstances.7  In such trials, the

of 2000.
6 Act 105 of 1997, Schedule 2, Part I
7 Section 277 of the Criminal Procedure Act 51 of 1977 was amended to abolish the compulsory
death sentence for murder without extenuating circumstances by s 4 of the Criminal Law

finding as to extenuation related to the first stage (the verdict),
though two phases were required within the first stage, since the
onus to prove murder beyond reasonable doubt rested on the
State, while the onus of establishing extenuating circumstances
on balance of probabilities rested on the accused.8  This meant
that, once verdict had been pronounced on the accused’s guilt or
innocence (including in an appropriate case murder with or
without extenuating circumstances), the question of sentence was
one for the judge alone, and not for the assessors.9

[17] Where the accused was charged with robbery, the question
whether
the
robbery
was
committed
with
aggravating
circumstances had to be determined as part of the verdict – that
is, as part of the court’s finding on guilt or innocence in the first
stage.  The aggravating circumstances were elements of the form
of the offence of robbery with which the accused was charged.
Hence they had to be proved in the first stage of the trial, and the
finding regarding their presence or absence was part of the main
verdict.  Their presence or absence accordingly had to be decided

Amendment Act 107 of 1990, which came into operation on 27 July 1990.

by the judge with the assessors (or, before the abolition of juries,10
by the jury).11

[18] It is correct that, in specifying an enhanced penal jurisdiction for
particular forms of an existing offence, the legislature does not
create a new type of offence.  Thus, ‘robbery with aggravating
circumstances’ is not a new offence.12  The offences scheduled in
the minimum sentencing legislation are likewise not new offences.
They are but specific forms of existing offences, and when their
commission is proved in the form specified in the Schedule, the
sentencing court acquires an enhanced penalty jurisdiction.  It
acquires that jurisdiction, however, only if the evidence regarding
all the elements of the form of the scheduled offence is led before
verdict on guilt or innocence, and the trial court finds that all the
elements specified in the Schedule are present.  (As pointed out
earlier, it is different when the element specified in the Schedule

8 S v Sparks 1972 (3) SA 396 (A) 404.
9 S v Lekaota 1978 (4) SA 684 (A).
10 By the Abolition of Juries Act 34 of 1969.
11 S v Jacobs 1961 (1) SA 474 (A), S v Sparks 1972 (3) SA 396 (A) 404.
12 S v Moloto 1982 (1) SA 844 (A) 850C-D, per Rumpff CJ: ‘Roof, of poging tot roof, met
verswarende omstandighede is nie ‘n nuwe sort misdaad wat deur die Wetgewer geskep is nie.
Dit bly steeds roof, of poging tot roof, maar volgens art 277(1)(c) [of Act 51 of 1977] van verleen
die aanwesigheid van verswarende omstandighede aan die Verhoorregter ‘n diskresionere
bevoegdheid om by skuldigbevinding die doodvonnis op te le.’

relates not to the offence, but to the person of the accused, such
as rape when committed ‘(iii) by a person who has been convicted
of two or more offences of rape, but has not yet been sentenced
in respect of such convictions’.)13

[19] A related though distinct question, which has long caused
complexity,14 has been whether the charge sheet should include
reference to the elements of the specific form of the offence with
which the accused is charged.  This Court has in the past held
that it is desirable but not essential that the charge sheet should
set out those elements.  R v Zonele and others15 was decided
shortly after the Criminal Procedure Act 56 of 1955 was amended
to make competent the sentence of death if ‘aggravating
circumstances’ were found in cases of robbery or housebreaking
with intent to commit an offence.  In remarks that have a signal
bearing on the proceedings in the present case, Ramsbottom JA
(with whom Rumpff AJA concurred) said:
‘Although the presence of aggravating circumstances affects sentence
only, it is of great importance that a person charged with robbery or with
housebreaking with intent to commit an offence should be informed, in

13 Act 105 of 1997, Schedule 2, Part I
14 See ex parte the Minister of Justice: in re R v Masow and Another 1940 AD  75.
15 1959 (3) SA 319 (A).

clear terms, that the Crown alleges and intends to prove that aggravating
circumstances were present.
It is desirable that the facts which the Crown intends to prove as
constituting aggravating circumstances should be set out in the indictment,
as was done in the present case.  Without laying down any rule, I venture
to suggest, for the consideration of Attorneys-General, that it might be
good practice to go further and, in addition, to allege specifically that the
accused is charged with robbery (or with housebreaking with intent to
commit an offence) in which aggravating circumstances were present. …
When an accused pleads guilty to either of these charges, and it appears
from the indictment that the Crown intends to prove that aggravating
circumstances were present, the presiding Judge will, of course, satisfy
himself that the accused intends to admit not only that he is guilty of the
offence charged, but also that the aggravating circumstances were
present.  Unless the facts alleged to constitute aggravating circumstances
are formally admitted they must be proved, and it is, naturally, essential
that the exact extent of the admissions should be ascertained. …
It is hardly necessary to remark that even though the accused has
pleaded guilty the presiding Judge has the inherent power to enter a plea
of not guilty if for any reason he deems it advisable in the interests of
justice to do so.’ (323B-F)

[20] Under the common law it was therefore ‘desirable’ that the
charge sheet should set out the facts the State intended to prove
in order to bring the accused within an enhanced sentencing
jurisdiction.  It was not however essential.16  The Constitutional
Court has emphasised that under the new constitutional
dispensation, the criterion for a just criminal trial is ‘a concept of
substantive fairness which is not to be equated with what might
have passed muster in our criminal courts before the Constitution

16 See too S v Moloi 1969 (4) SA 421 (A) 424A-C, per van Winsen AJA.

came into force’.17  The Bill of Rights specifies that every accused
has a right to a fair trial.  This right, the Constitutional Court has
said,18 is broader than the specific rights set out in the sub-
sections of the Bill of Rights’ criminal trial provision.19  One of
those specific rights is ‘to be informed of the charge with sufficient
detail to answer it’.20  What the ability to ‘answer’ a charge
encompasses this case does not require us to determine.  But
under the constitutional dispensation it can certainly be no less
desirable than under the common law that the facts the State
intends to prove to increase sentencing jurisdiction under the
1997 statute should be clearly set out in the charge sheet.

[21] The matter is however one of substance and not form, and I
would be reluctant to lay down a general rule that the charge must
in every case recite either the specific form of the scheduled
offence with which the accused is charged, or the facts the State
intends to prove to establish it.  A general requirement to this

17 S v Zuma and others 1995 2 SA 642 (CC) para 16, drawing a contrast with S v Rudman and
Another; S v Mthwana 1992 (1) SA 343 (A) 377; and see Sanderson v Attorney-General, Eastern
Cape 1998 (2) SA 38 (CC) para 22, per Kriegler J.
18 S v Zuma and others 1995 2 SA 642 (CC) para 16.
19 Constitution s 35(3)(a) to (o).
20 Constitution s 35(3)(a).

effect, if applied with undue formalism, may create intolerable
complexities in the administration of justice and may be
insufficiently heedful of the practical realities under which charge
sheets are frequently drawn up.21  The accused might in any
event acquire the requisite knowledge from particulars furnished
to the charge22 or, in a superior court, from the summary of
substantial facts the State is obliged to furnish.23  Whether the
accused’s substantive fair trial right, including his ability to answer
the charge, has been impaired, will therefore depend on a vigilant
examination of the relevant circumstances.

[22] The question thus remains whether the accused had a fair trial
under the substantive fairness protections afforded by the
Constitution.  In this regard, the judgment of the Full Court of the

21 See the remarks of Borchers J in S v Blaauw 1999 (2) SA 295 (W) at 301h-302b.
22 Section 87 of the Criminal Procedure Act, 51 of 1977, read with s 85(1)(d).
23 Section 144(3) provides: ‘(a) Where an attorney-general under section 75, 121 (3) (b) or 122
(2) (i) arraigns an accused for a summary trial in a superior court, the indictment shall be
accompanied by a summary of the substantial facts of the case that, in the opinion of the
attorney-general, are necessary to inform the accused of the allegations against him and that will
not be prejudicial to the administration of justice or the security of the State, as well as a list of the
names and addresses of the witnesses the attorney-general intends calling at the summary trial
on behalf of the State: Provided that-
(i) this provision shall not be so construed that the State shall be bound by the contents of the
summary;
(ii) the attorney-general may withhold the name and address of a witness if he is of the opinion
that such witness may be tampered with or be intimidated or that it would be in the interest of the
security of the State that the name and address of such witness be withheld;
(iii) the omission of the name or address of a witness from such list shall in no way affect the

Transvaal Provincial Division in S v Seleke,24 though delivered
before the Constitution, remains instructive.  The Full Court held
under the provisions of the Dangerous Weapons Act 71 of 1968
that although it was desirable for the charge to contain reference
to the penalty, this was not essential, and its omission not
irregular:  the test was whether the accused had had a fair trial
(681-2).  The Full Court observed (my translation from the
Afrikaans):
‘To ensure a fair trial it is advisable and desirable, highly desirable in the
case of an undefended accused, that the charge sheet should refer to the
penalty provision.  In this way it is ensured that the accused is informed at
the outset of the trial, not only of the charge against him, but also of the
State’s intention at conviction and after compliance with specified
requirements to ask that the minimum sentence in question at least be
imposed.’ (682H)

[23] Dealing with the question of verdict, the Full Court held that for
the enhanced penalty provisions to be applicable the use of a
‘dangerous weapon’ as defined had to be proved in the course of
the State case against the accused (again my translation):
‘The use of a “dangerous weapon” as intended in s 4 (1) of the Act must
be proved by the State in the course of the State’s case.  The finding of
the trial court that the weapon in fact complies with the description in s 1,
can only be made if (a) the accused is timeously, and, in all cases where
the accused is unrepresented, with full information about the implications,
warned that the State before sentencing will make such a claim; (b) the

validity of the trial.’
24 1976 (1) SA 675 (T) (Cillie JP, Marais and Le Grange JJ).

accused has been granted a proper opportunity to put his side of the case
by way of cross-examination, evidence, representations, etc; and (c) the
court in considering this aspect through its own examination of the object
in question, or, if it is not before court, by descriptive evidence, is sure
beyond reasonable doubt that it, objectively speaking, does in fact fulfil the
statute’s description.
The emphasis we place on this portion of the proceedings is justified by
the drastic difference that it may make to sentence.’ (685A-D)

[24] These principles were illuminatingly applied in regard to the
1997 statute’s minimum sentencing provisions in S v Nziyane.25
There the scheduled offence was possession of a semi-automatic
weapon, which for a first offender similarly carries a minimum 15-
year sentence.  The charge sheet averred possession of a
Norinco pistol, and specified that this was a semi-automatic
weapon.  However, in its verdict the trial court, though observing
that it was common cause that a Norinco pistol was in general a
semi-automatic weapon, failed to make a specific finding to this
effect.  Only after the conviction was entered did the State lead
expert evidence establishing that the pistol the accused
possessed was in fact semi-automatic.  The Court correctly laid
emphasis on the 1997 Act’s requirement that the accused must
be convicted of the scheduled offence.  The minimum sentencing
provisions therefore did not apply.  Although the legislature had

not created new offences, it had to appear at conviction that
elements in question were present.  Botha J observed (I
translate):
‘The words in my opinion convey the meaning that the facts that must be
present to make the minimum sentence compulsory must be established
at conviction in the sense that they must be included in the facts on which
the conviction is based.’ (609d)

[25] Botha J concluded that the nature of the weapon was res
judicata after conviction.  Where the accused pleads not guilty,
the State’s allegation in the charge sheet puts the matter in issue
at the trial, so that after verdict the State can no longer lead
evidence on this issue (610b-d).  These conclusions seem to me
clearly right.

[26] In the present matter, the accused pleaded guilty. The State
accepted not only his plea, but the facts set out in his s 112
statement.  That statement included express allusion to the
penalty provision under the 1992 Act.  After the accused was
convicted there could thus be no question of applying the
minimum sentencing provisions of the 1997 statute.  As Holmes
JA pointed out in S v Sparks –

25 2000 (1) SACR 605 (T) (Botha J, du Plessis J concurring).

‘Indeed, on a plea of guilty being entered, the “trial” ends, since there are
then no further issues to be tried in regard to verdict …’26

[27] The issues affecting verdict in the present trial were thus
concluded when, after the State had accepted the appellant’s
plea, the Court found him guilty on the basis of it.  The appellant
was not warned that the minimum sentencing legislation might be
invoked.  In fact, the charge sheet misled him as to the applicable
penalty by referring only to the 1992 Act.  The trial court, in
convicting him, did not question him or satisfy itself (as enjoined
by Ramsbottom JA) as to the elements of the form of the offence
to which he was pleading guilty.  It was therefore highly unfair to
confront the appellant thereafter with the minimum sentences.
More signally, the trial Court in any event lacked jurisdiction
entirely to impose the minimum sentence.

Sentence
[28] The sentence imposed on the accused must therefore be set
aside.  The accused has been in custody since his arrest on 6
June 1999.  He was sentenced on 27 August 1999.  In view of the

26 1972 (3) SA 396 (A) 404C-D.

sentence I consider appropriate under the penalty provisions of
the 1992 statute, the further delay caused by remitting the matter
to the trial court to impose sentence itself would be unfair to the
accused.

[29] Given the amount of dagga, the appellant’s avowedly
intermediary role in its transportation, his clean record, and the
remorse indicated by his plea of guilty, I am of the view that a
sentence of five years’ imprisonment would be adequate.

Order

[30] The following order is made:
1. The appeal succeeds.
2. The sentence imposed on the appellant is set aside.
3. In its place there is substituted:
‘The accused is sentenced to five years’ imprisonment,
antedated in terms of s 282 of the Criminal Procedure Act 51 of

1977 to the date on which he was originally sentenced, 27
August 1999.’

E CAMERON
JUDGE OF APPEAL

VIVIER JA
)
STREICHER JA )
CONCUR
BRAND JA
)
LEWIS AJA
)