S v Zhang and Another (A732/06) [2007] ZAGPHC 355 (18 May 2007)

S v Zhang and Another (A732/06) [2007] ZAGPHC 355 (18 May 2007)

The trial court was not entitled to correct its judgment from a conviction under section 5(b) to section 3 of the Drugs and Trafficking Act, as the correction was not made immediately after the judgment was recorded, contrary to section 176 of the Criminal Procedure Act. Contravention of section 3 is not an offence under Part II Schedule 2 of Act 105 of 1997 and does not attract the prescribed minimum sentence. The evidence established beyond reasonable doubt that the appellants dealt in mandrax, as they were found in possession of chemicals and equipment used for manufacturing the drug, and statutory presumptions applied. The search and seizure at Cloverdene, although conducted without a...

Citation
[2007] ZAGPHC 355
Parties
Appellant: Kotchi Zhang; Appellant: Aiqun Li; Respondent: The State
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
18 May 2007
Case Number
A732/06
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal dismissed. Conviction under section 3 set aside. Conviction under section 5(b) reinstated and confirmed. Sentence of 15 years direct imprisonment confirmed.
Judges
M F Legodi, F J Jooste
Legal Topics
Drugs and Trafficking Act, Search and Seizure, Minimum Sentencing, Presumption of Possession, Judicial Impartiality
Criminal Law Drugs and Trafficking Act Search and Seizure Minimum Sentencing Presumption of Possession Judicial Impartiality

Case Brief

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Parties

Kotchi Zhang

Appellant

Aiqun Li

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial court was entitled to correct its judgment from a conviction under section 5(b) to section 3 of the Drugs and Trafficking Act.
  2. 2 Whether contravention of section 3 of the Act is an offence under Part II Schedule 2 of Act 105 of 1997 read with section 51(2)(a)(i).
  3. 3 Whether the search and seizure at Cloverdene premises without a warrant was lawful.

Ratio Decidendi

The trial court was not entitled to correct its judgment from a conviction under section 5(b) to section 3 of the Drugs and Trafficking Act, as the correction was not made immediately after the judgment was recorded, contrary to section 176 of the Criminal Procedure Act. Contravention of section 3 is not an offence under Part II Schedule 2 of Act 105 of 1997 and does not attract the prescribed minimum sentence. The evidence established beyond reasonable doubt that the appellants dealt in mandrax, as they were found in possession of chemicals and equipment used for manufacturing the drug, and statutory presumptions applied. The search and seizure at Cloverdene, although conducted without a...

Court Disposition

Appeal dismissed. Conviction under section 3 set aside. Conviction under section 5(b) reinstated and confirmed. Sentence of 15 years direct imprisonment confirmed.

Orders

  • Conviction of the appellants on contravention of section 3 is set aside.
  • Conviction of the appellants on contravention of section 5(b) of the Drugs and Trafficking Act is reinstated and confirmed on appeal.