S v UMEH 2015 (2) SACR 395 (WCC)
Indictment and charge — Duplication of convictions — Appellant convicted on two counts of dealing in drugs — Whether duplication of convictions, where drugs came from same source — Accused arrested in parking lot of mall where found in possession of drugs — Subsequent search of his home revealed more — Although drugs in both cases having same source, activities in first count separate and distinct from those relating to drugs found at his home and were also not single, continuous event that constituted one offence — Evidence on one count not same as on other — No duplication.
Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Drug offences — Value of drugs — Mere opinion of police official as to value insufficient — In order for minimum sentencing provisions to be applied proper evidence had to be meticulously placed before court. The police, acting on information, accosted the appellant in the parking lot of a shopping mall and found him in possession of 49,23 g of methamphetamine. The appellant was then requested to accompany the police to his home where they found almost 2 kg of crack cocaine; 1485,90 g of methamphetamine made up in individual packets; a jewellery scale and vacuum sealer (drug paraphernalia used to weigh and package drugs); and a substance known as phenacytin, used in the production of crack cocaine. He was charged and convicted of contraventions of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (dealing in cocaine and methamphetamine). He was convicted on both counts. The provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997, with regard to the imposition of minimum sentences, were invoked and he was sentenced to 15 years’ imprisonment on each count. The court ordered that five years of the sentence on the first count were to run concurrently with the sentence on the second count, entailing an effective 25 years’ imprisonment. It was contended on behalf of the appellant on appeal against the convictions and sentences imposed that there had been a duplication of charges, as the drugs in both instances had come from the same source and the appellant had a single intention to deal in drugs, irrespective of where and how the drugs had been found.
Held, that the evidence established clearly that the appellant was a person who dealt in drugs. The drugs found in the appellant’s possession in the parking lot had been transported from his home with the intention to deliver them to someone else for the purpose of dealing. Those activities were separate and distinct from those relating to the drugs found at his premises. In respect of the latter, the appellant not only possessed drugs for distributing but he was also involved in their manufacture, preparation, weighing, packaging and sale to users and other dealers. The activities in respect of the two offences were also not a single, continuous event constituting one offence. It could, moreover, hardly be said that the evidence to prove the offence of dealing on the first count also proved the offence of dealing on the other count.
Held, further, that the only evidence to prove that the value of the drugs involved was over the threshold, for the purposes of applying the minimum sentences prescribed in the Criminal Law Amendment Act 105 of 1997, was that of a lieutenant colonel in the narcotics bureau who merely gave his opinion on the value of the drugs. This evidence fell far short of what was expected by a court in determining the value of drugs, with a view to deciding whether the minimum sentence would be applicable. Such evidence had to be meticulously placed before court during the presentation of the state’s case.
Held, further, that in the absence of sufficient evidence to prove the value of the drugs, the magistrate had misdirected himself when he imposed the prescribed sentence of 15 years’ imprisonment on that count. The court accordingly altered the sentence on the first count to one of 7 years’ imprisonment and ordered that the sentence on that count run concurrently with the sentence of 15 years’ imprisonment imposed on the second count.