THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No 415/09
No precedential significance

In the matter between:

SHAUN HENDRICKS

Appellant

and

THE STATE

Respondent

Neutral citation:   Hendricks v The State (415/09) [2010] ZASCA 55 (31 March
2010)

Coram:
Lewis and Mlambo JJA and Saldulker AJA

Heard:
17 February 2010

Delivered:
31 March 2010

Summary:
Lengthy delay in prosecution of appellant held not to have prejudiced
him: convictions for dealing in drugs and conspiring to deal in drugs confirmed.
Sentences reduced in part because of detrimental effect of proceedings extending
over a period of 17 years from date when offences committed until hearing of
appeal.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Western Cape High Court (Cape Town) (Motala J and Fortuin AJ
sitting as court of appeal):
1  The appeal against the convictions on counts 3 and 4 is dismissed.
2  The appeal against the confiscation order is upheld and the confiscation order is
set aside.
3  The appeal against the sentences imposed on counts 3 and 4 is upheld.
4  The sentences of the regional court are substituted as follows:
‘(a)
The accused is sentenced to four years’ imprisonment on count 3.
(b)
The accused is sentenced to eight years’ imprisonment on count 4.
(c)
The sentence on count 4 is to run concurrently with the sentence on count 3.’

JUDGMENT

SALDULKER AJA ( LEWIS  and MLAMBO JJA concurring)

[1] Approximately 17 years ago, during September 1993, the appellant, Mr
Shaun Hendricks, was arrested on drug related charges.1 Almost six years passed
before his trial on these charges commenced in the Wynberg Regional Court, on 31
August 1999.  The appellant and his co-accused, Mr Mogamat Amien Abrahams
(accused 1 at the trial), pleaded not guilty to four counts of dealing in mandrax, as
well as to the alternatives to these counts.

[2] On 19 January 2001, the appellant was acquitted on two of the four counts,
being counts 1 and 2  and  was convicted on count 3 of dealing in 100 000 mandrax
tablets between 9 August  and 9 September 1993 and on count 4 of dealing in  79
000 tablets between 9 September and 11 September 1993.

1In contravention of s 5(b) read with ss 1, 13(f), 17(e), 18, 25 and 64 and Parts I to III of  Schedule 2
of  the Drugs and Drug Trafficking  Act 140 of 1992.

[3] A year later, on 2 January 2002, he was sentenced to 12 years’ imprisonment
on each count and the sentences were ordered to run concurrently. Additionally, in
terms of s 18 of the Prevention of Organised Crime Act 121 of 1998 (POCA), the
regional court made a confiscation order against him in an amount of R150 000.  It
took almost 18 months before the trial was finalised.

[4] The appellant appealed against his convictions and the related sentences to
the Cape High Court. On 12 April 2007 his appeal against his conviction and
sentence on count 3 was upheld. The order of the regional court on the conviction
and sentence on count 3 was set aside and substituted, with the appellant being
found guilty of contravening s 18(2)(a) of the Riotous Assemblies Act 17 of 1956 in
conspiring to deal in 100 000 mandrax tablets on count 3, and was sentenced to
eight years’ imprisonment.   His appeal against the conviction and sentence on
count 4 and the confiscation order was dismissed.

[5] Aggrieved, the appellant applied for leave to appeal against those convictions
and sentences to this court. The court below granted the appellant leave to appeal
against the sentences imposed, but refused leave to appeal in relation to the
convictions. This court granted the appellant leave to appeal against his convictions.

[6]    This appeal is thus directed against the appellant’s convictions on counts 3 and
4, the sentences imposed and the confiscation order granted in terms of s 18 of
POCA. The appellant contends that a number of irregularities in the trial, and the
delay both in the conclusion of the trial and in the appeal process, rendered the
proceedings against him unfair to such an extent that the convictions and sentences
must be set aside. The irregularities raised are:
(a)
the unreasonable delay in the finalisation of his trial;
(b)
the regional magistrate who conducted the trial was biased;
(c)
the regional magistrate, in convicting him, had regard to inadmissible
evidence, which was irregular, and without which a conviction would not have
ensued; and
(d)
the regional magistrate drew an inference of guilt from the appellant’s failure
to testify.

[7] I intend to deal with these issues in the order in which they appear. In doing
so I shall have regard to an agreed chronology of events (which I shall call the
dossier) in so far as the delay is concerned and with the material parts of the record
in relation to the remaining issues.

The delay
[8] The nub of the appellant’s case is that the delay in the legal proceedings
against him was unreasonable and resulted in an infringement of his right to a fair
trial. That there has been a considerable delay in this matter is common cause.   The
investigation into the drug trafficking syndicate by the state spanned a number of
years. It was lengthy and complex consisting, inter alia, of the interception and
transcription of telephone calls, the procurement of witness statements, as well as
conducting forensic tests.

[9] As pointed out above, it took almost six years after his arrest before the
appellant’s trial commenced. Subsequent to his arrest the appellant, through his
legal representatives, made numerous requests for further particulars to the charge
sheet which were set out in comprehensive detail by the court below.  This resulted
in further delays.

[10] During 1994 the charges against the appellant were withdrawn. Two years
passed before charges were reinstated in September 1996. In April 1997 the
appellant launched an application in the Cape High Court for a permanent stay of
prosecution on account of the delay. This application was removed from the roll on
27 February 1998 with Hlophe JP indicating that the State ‘should get its house in
order’ within 90 days. A year later the State still did not have its house in order.
Having withdrawn his application, the appellant requested further particulars in
March 1998.  After the State replied it amended the charge sheet.  As pointed out,
the trial commenced in August 1999, and was finalised in February 2002 when the
appellant was sentenced.

[11] In Sanderson v Attorney-General, Eastern Cape2 the Constitutional Court
spelt out the approach to be taken in weighing up the effect of trial delay. The
conduct of both the appellant and the State must be weighed up in determining
whether the delay is reasonable. In determining this question, the court3 considered
the ‘balancing test’ formulated in Barker v Wingo4 where the following considerations
were examined: the length of the delay; the reasons the State relies on to justify the
delay; the accused’s assertion of his right to a speedy trial and the prejudice to the
accused.

[12]  Applying the test to the facts of this case, the following conclusions can be
drawn. First, the lengthy delay in this matter is unacceptable. However, both the
State and the appellant have in my view contributed to it. That said, an accused is
entitled to request particulars from the State in preparation for his trial but as a
beneficiary of the right contained in s 35(3)(a) of the Constitution it does not behove
him to cause wilful delays.5

[13] The speedy conclusion of a criminal trial should not just be an ideal for the
accused and the justice system but a reality that both protagonists should strive for.
The dossier is a testimony to the battles fought by both the State and the appellant
over a number of years. I agree with the court below that the delay is regrettable and
unfortunate: indeed this appeal is before this court in respect of charges that were
laid as far back as 1993. However, the delay did not affect the outcome of the trial.

[14] As to trial prejudice, just before the state closed its case, accused 1 was
killed.  In this regard the appellant contends that the death of his co-accused was
prejudicial in the presentation of his case, as the role played by him was insignificant
in comparison to that of accused 1 and that the latter’s death deprived him of his
favourable testimony. On this issue the court below quite correctly found that his
death had not caused prejudice as there was no indication that he would have
testified, or that his testimony would have been favourable to  the appellant.

2 1998 (1) SACR 227 (CC) para 30.
3 Sanderson para 25.
4 407 US 514 (1972).
5 Sanderson para 32.

[15] The appellant has not been incarcerated during the past 17 years and the
liberty and security of the appellant cannot be said to have been affected by the
delay. As was stated in Sanderson:
‘The Courts will apply their experience of how the lapse of time generally affects the liberty,
security and trial-related interests that concern us. Of the three forms of prejudice, the trial–
related variety is possibly hardest to establish, and here as in the case of other forms of
prejudice, trial courts will have to draw sensible inferences from the evidence. By and large,
it seems a fair although tentative generalisation that the lapse of time heightens the various
kinds of prejudice that s 25(3)(a) seeks to diminish’.6
Accordingly I conclude that the delay in itself did not lead to unfairness or trial
prejudice. It does, however, have an impact on sentence as I shall discuss later.

The conduct of the magistrate, bias and the admission and use of inadmissible
evidence
[16]  The evidence of a State witness, Mr Govender (who was himself indemnified
against prosecution), as to what accused 1 had told him about the appellant was
declared inadmissible. However, the trial court held that ‘Govender, met sy diepgaande
kennis van die sindikaat se bedrywighede, getuig dat beskuldigde 1 die man is wat vir 2 van
Mandrax voorsien het. Dit verduidelik beskuldigde 2 se aktiewe betrokkenheid met die
versending van Mandrax van Johannesburg na Kaapstad.’

[17] In my view it is unfortunate that the trial court referred to this ‘inadmissible’
evidence in its judgment. But there is nothing to indicate that this statement was
evidence of bias, or that any finding was based upon it. The contention that the
inadmissible evidence was the foundation of the finding is wholly unwarranted
because it is not the only evidence on which the magistrate relied. It is clear from the
evidence of Mr Haffejee, another State witness who was also granted indemnity, and
to which I shall revert, that the appellant played a prominent role in the transporting
of  mandrax  tablets from Johannesburg to Cape Town.

[18] Mr Govender testified also about the modus operandi used in the supply of
the mandrax,  the devious methods adopted by the drug cartel to hide the mandrax
in vehicles,  and the steps taken to avoid detection. Clearly it was only a very narrow

6 Sanderson para 30.

aspect of Mr Govender’s evidence that was declared inadmissible. The appellant
had the right to challenge all the remaining evidence and adduce evidence in
rebuttal but elected not to do so.

Right to remain silent
[19] The appellant did not testify. In S v Boesak,7  the Constitutional Court said the
following:
‘The fact that an accused person is under no obligation to testify does not mean that there
are no consequences attaching to a decision to remain silent during the trial. If there is
evidence calling for an answer, and an accused person chooses to remain silent in the face
of such evidence, a court may well be entitled to conclude that the evidence is sufficient in
the absence of an explanation to prove the guilt of the accused.’

[20] In Osman & another v Attorney-General, Transvaal,8  it was succinctly stated
that in an adversarial legal system, once the prosecution has produced evidence
sufficient to establish a prima facie case, an accused who fails to produce evidence
to rebut the case was at risk. The failure to testify does not relieve the prosecution of
its duty to prove guilt beyond reasonable doubt. An accused thus always runs the
risk that, absent any rebuttal, the prosecution’s case might be sufficient to prove the
elements of the offence. The fact that an accused is put to such an election is not a
breach of the right to silence. In S v Thebus & another,9 Moseneke J summed up the
position in regard to the right to silence:
‘It is well established that it is impermissible for a court to draw any inference of guilt
from the pre-trial silence of an accused person. Such an inference would undermine the
rights to remain silent and to be presumed innocent. Thus, an obligation on an accused to
break his or her silence or to disclose a defence before trial would be invasive of the
constitutional right to silence. An inference of guilt from silence is no more plausible than
innocence. The majority of the US Supreme Court in Doyle v Ohio reminds us that “every
post arrest silence is insolubly ambiguous”. To hold otherwise, the mandatory warning under
s 35(1)(b) will become a trap instead of a means for finding out the truth in the interests of
justice.
. . .

7 2001 (1) SA 912 (CC) para 24.
8 1998 (4) SA 1224 (CC) para 22; see also Boesak para 24.
9 2003 (2) SACR 319 (CC) paras 58 and 59.

A distinction may properly be made between an inference of guilt from silence and a
credibility finding connected with the election of an accused person to remain silent. In the
dissenting judgment in Doyle v Ohio a comparable distinction is drawn between the
“permissibility of drawing an inference on the credibility of the accused from silence and the
impermissibility of drawing a direct inference of guilt”. In the latter, the presumption of
innocence is implicated. In the former, a court would have regard to the factual matrix within
which the right to silence was exercised.’

[21] The trial court found that:
‘Behalwe beskuldigde twee se betrokkenheid by handel soos reeds uiteengesit, dui ook die
hoeveelheid tablette duidelik daarop dat beskuldige twee nie net deel van die sindikaat
netwerk was nie, maar self ook ‘n handelaar in eie reg. Indien dit enigsiens anders was soos
byvoorbeeld dat hy ‘n onskuldigde bystander of handlanger was, is daar geen rede waarom
hy nie so kon getuig het nie. Sy besluit om te swyg, is ‘n verdere bevestiging van die Hof se
bevinding met betrekking tot sy betrokkenheid’.

[22]  Both the trial court and the court below were entitled to take into account the
appellant’s failure to testify. The State established a prima facie case calling for an
answer from him. His failure to testify justifiably had consequences, entitling the trial
court to conclude that the evidence before it was sufficient, in the absence of an
explanation to prove the appellant’s guilt. The court below quite correctly held that
the appellant’s right to remain silent was not violated.

[23] None of the so-called ‘irregularities’ contended for by the appellant are of
such a nature that they caused a failure of justice. They did not result in a violation of
the appellant’s right to a fair trial in terms of s 35(3) of the Constitution.

Count 3
[24]  The court below set aside the conviction on count 3 and found the appellant
guilty of conspiracy instead. It is common cause that the tablets on this count were
not analysed. (On the charge of conspiracy the number of tablets involved is
immaterial.) The State contended that  proof of the presence of methaqualone in the
tablets in respect of count 4, together with the same pattern of conduct followed in
respect of counts 3 and 4, lent itself to the reasonable inference that the appellant
was dealing in mandrax. The contention was correctly rejected by the court below. In

the absence of proof of what the substance actually was, dealing in ‘mandrax
tablets’ (count 3) was not proved.

[25] However, both the circumstantial evidence and the appellant’s conduct lead
to the conclusion that he agreed with accused 1, Mr Haffejee and others, to the
transporting and supplying of mandrax tablets from Johannesburg to Cape Town in
a blue Cressida vehicle.  Evidence as to his participation in the arrangements for the
transportation of the drugs was unchallenged. His conduct and actions were ‘in
pursuance of a design common to him’10 and the others: the transportation and
supply of drugs.

[26] Moreover, Mr Haffejee’s evidence with regard to the appellant’s involvement
with accused 1 in the counting and packing of 50 packets of mandrax tablets into
two carton boxes in the garage of the appellant’s house, and placing them in a blue
Cressida destined for Cape Town, and his association thereafter, is  uncontested.
The court below thus quite correctly set aside the conviction of ‘dealing’ in mandrax
tablets, and convicted the appellant of conspiracy.

Count 4
[27] Mr Haffejee testified that 80 bags of mandrax tablets were packed in the
Cressida. The vehicle was driven to Cape Town where its registration plates were
replaced before the vehicle was driven to the appellant’s home. There in the garage
of the appellant’s home and in his presence the police confiscated 79 bags of
mandrax tablets.

[28] None of this evidence was disputed. Superintendent Swart placed the seized
tablets in two plastic bags which he kept in his custody and control, until he delivered
the tablets personally to the laboratory in Pretoria. Ms de Vos examined the contents
of these bags and the tablets tested positive for methaqualone. The findings of Ms
de Vos were confirmed by Mr Volsteedt, both experts in analysing  mandrax tablets.

10 S v Cooper & others 1976 (2) SA 875 (T) at 880C-D and S v Moumbaris & others 1974 (1) SA 681
(T) at 685H.

[29] The appellant challenged the finding of methaqualone in this court,
contending that the standard against which the mandrax tablets were tested was not
a generally accepted one, and the tablets tested were not a proper sample of what
was in the other bags. This argument is to my mind disingenuous. There is no
reason to doubt the accuracy of the findings of Ms de Vos and Mr Volsteedt.
Furthermore, in the trial court counsel for the appellant did not place the standard
against which the analytical tests were done on the seized tablets in dispute or
suggest an alternative standard.

[30] The modus operandi adopted by De Vos in analysing 29 of the tablets taken
from those seized, (which, as I have said, were not tampered with from the moment
of their seizure to their confinement in the State’s laboratory) was satisfactory in all
respects. Her testing method left very little margin for error.  Ultimately the State
proved that the tablets confiscated by the police were the same tablets that tested
positive for methaqualone. There is no cogent reason advanced to reject this
evidence.

[31] I am satisfied that the appellant was correctly convicted of dealing in 79 000
tablets on count 4.

Confiscation order
[32] The trial court made a confiscation order in the amount of R150 000 against
the appellant. Chapter 5 of POCA vests the criminal courts with a discretionary
power to make a confiscation order against anybody convicted of any crime who
benefitted from it or from ‘sufficiently related criminal activity’.

[33]  Section 18(1) provides as follows:
‘Whenever a defendant is convicted of an offence the court convicting the defendant may,
on the application of the public prosecutor, enquire into any benefit which the defendant may
have derived from-
(a) that offence;
(b) any other offence of which the defendant has been convicted at the same trial; and
(c) any criminal activity which the court finds to be sufficiently related to those offences,
and, if the court finds that the defendant has so benefitted , the court may, in addition
to any punishment which it may impose in respect of the offence, make an order

against the defendant for the payment to the State of any amount it considers
appropriate . . .’. (my emphasis)

Section 18(2) provides:
‘The amount which a court may order the defendant to pay to the State under subsection
(1)-
(a) shall not exceed the value of the defendant’s proceeds of the offences or related
criminal activities referred to in that subsection, as determined by the court in
accordance with the provisions of this Chapter; or
(b) if the court is satisfied that the amount which might be realised as contemplated in
section 20(1) is less than the value referred to in paragraph(a), shall, not exceed an
amount which in the opinion of the court might be so realised.’ (My emphasis.)

[34] The requirements of a confiscation order under ss 18(1) and (2) are thus
twofold. The first is the ‘benefit’ the defendant (accused) derived from his crimes and
the second is the ‘proceeds’ of his crimes. If the court finds that the defendant has
benefitted, then it may make a confiscation order against him for any amount up to
the value of the ‘proceeds’ he derived from his crimes.

[35] Both the trial court and the court below found that confiscation was in order. I
turn to consider the affidavits filed by Mr G D Dawes, a Senior Special Investigator at
the Directorate of Special Operations in support of an application for a confiscation
order pursuant to s 18 of POCA, and the appellant’s reply thereto.

[36] Mr Dawes stated that there ‘can be no doubt that the defendant derived a
benefit from his involvement in the commission of’ the offences contemplated in
counts 3 and 4 and relied heavily on the trial court’s findings that the appellant was
not only an integral member of the narcotics trafficking syndicate but also a drug
dealer in his own right and must have benefitted therefrom. Furthermore, although
the appellant was convicted of only two counts of dealing in mandrax, there was
sufficient evidence to indicate that the syndicate was not restricted to these two
transactions and that therefore the appellant’s benefit should not be limited to these
transactions.

[37] To disprove that he had derived a benefit from the commission of these
offences, the appellant set out in his answering affidavit his financial and
employment history, together with supporting bank statements, tax returns and an
affidavit from his companion and the mother of his children.

[38] The appellant denied that he had benefitted from the offences. He asserted
that any asset or income accrued to him arose from lawful undertakings derived from
proceeds of sales of vehicles, businesses and family homes. He set out in detail the
business ventures he was involved in, the various properties that he purchased and
sold over a number of years, his earnings and that of his companion and the living
expenses of his family with supporting documentation.

[39] He confirmed that his only realisable property was the Plattekloof property,
Erf No 22315, Parow, purchased by the appellant in January 1998 for R532 500 with
a mortgage bond registered against the property in favour of Nedcor Bank. This  was
the family home. He had no savings, no medical aid, no policies and no investments
other than in the Plattekloof property. His companion confirmed that she contributed
financially to the upkeep of the joint household and the bond repayments of the
family home.

[40] The State filed no replying affidavit in rebuttal of these statements.  The trial
court ignored the appellant’s affidavit, and only considered the unsubstantiated
affidavit of Mr Dawes. It concluded that the appellant had derived a benefit from the
commission of the offences and held that:
’Common sense dictates that no drug dealer would engage in drug trafficking merely for the
fun of it the main objective is profit.’
. . . .

‘That only in highly exceptional cases is proof of benefit possible.’
. . . .
‘Drug dealers generally reap rich rewards from their activities and go to great lengths to
conceal their assets.’

[41] These findings were unjustified. From the appellant’s affidavit it is clear that
he did not reap any ‘rich rewards’ nor was there any evidence that he had concealed
any assets. The State, with the resources available to it, conducted extensive and
covert investigation into the drug syndicate over a number of years.  Yet despite this,
the State was unable to challenge the appellant’s denial that he had not directly or
indirectly benefitted from any drug deal.

[42] The trial court did not exercise its discretion judicially in granting a
confiscation order. There was no basis for such an order as there was no proof that
the appellant derived a benefit from the offences in question or from related criminal
activity.

[43] It is noteworthy that the delay in concluding the trial made the confiscation
order possible. POCA had not been passed in 1993 at the time of the appellant’s
arrest. However, POCA was made expressly retrospective, so that confiscation after
1998 in respect of crimes committed before then is possible. However, as no
sufficient proof was tendered by the State to show that the appellant had derived any
benefit from his criminal activity nothing turns on this aspect.

Sentences
[44] On count 3, the court below altered the appellant’s conviction to one of
conspiracy and reduced his sentence of 12 years’ imprisonment to 8 years’
imprisonment. The sentence on count 4 of 12 years’ imprisonment was confirmed.

[45] It is trite law that an appeal court will interfere with the sentence imposed only
when a court exercises its discretion improperly or unreasonably.
‘[A] mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the
sentence; 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.’11

11 S v Pillay 1977 (4) SA 531(A) at 535E-G.

[46] The individualisation of sentencing is an important factor.   The appellant was
not the ‘kingpin’ in the drug syndicate. One of the syndicate leaders, accused 1, was
killed during the trial and other syndicate leaders were indemnified against
prosecution. The appellant is a first offender and he suffers from ill health. It is clear
that the effect of having legal proceedings hanging over his head for 17 years like
the sword of Damocles must have caused him immense mental strain.

[47] It is now nine years since his conviction and 17 years since his arrest. But this
does not mean he must be set free. Drug trafficking and the use of drugs is a
scourge in our society, calling for severe sentences.

[48] Although both the court below and the trial court took into account the
appellant’s personal circumstances, insufficient consideration has been given to the
inordinate delay experienced by the appellant in the finalisation of his matter. It is
necessary to say something about what happened after the trial. The appellant was
convicted in 2001, sentenced in 2002, lodged his appeal in 2003, and had his appeal
heard by the high court in April 2006. The judgment on appeal was delivered in April
2007 without notice to him by the court. In an affidavit filed by the appellant he stated
that he only became aware that judgment had been delivered when his attorney was
contacted ‘recently’ (the affidavit was deposed to in July 2008) by the state attorney
enquiring as to when payment in terms of the confiscation order could be expected.
It is regrettable that these circumstances led to further delays in this matter. The
application for leave to appeal was heard in November 2008.

[49] Counsel for  the State during 17 October 2005 filed heads of argument which,
although disputing that the delays were unreasonable, made several concessions
with regard to the particular counts and apparently conceded that the State had not
proved its case beyond a reasonable doubt. However, six months later the State
appointed different counsel and withdrew all the concessions made.

[50] From the aforegoing, it is clear that the appellant (through no fault of his own),
has experienced substantial delay in having his appeal against his convictions and
sentences finalised and the State has pursued the matter against him in an inept
and tardy fashion. The mental strain that the appellant has endured over the years

awaiting the outcome of his appeal cannot be ignored. Ordinarily only facts that are
placed before a trial court are taken into account for the purpose of sentencing.12
However this rule is not invariable.13 The circumstances that the appellant found
himself in after sentence was imposed were extraordinary. It is possible therefore for
this court to alter the sentences.14  In my view, the exceptional circumstances
following the appellant’s convictions and sentences warrant a substantial reduction
in the sentences on both counts. The appeal against the sentences imposed on both
counts succeeds.

[51] The following order is made:
1  The appeal against the convictions on counts 3 and 4 is dismissed.
2  The appeal against the confiscation order is upheld and the confiscation order is
set aside.
3  The appeal against the sentences imposed on count 3 and 4 is upheld.
4  The sentences imposed by the regional court are replaced with the following:
‘(a)
The accused is sentenced to four years’ imprisonment on count 3.
(b)
The accused is sentenced to eight years’ imprisonment on count 4.
(c)
The sentence on count 4 is to run concurrently with the sentence on count 3.’

______________________
H K Saldulker
Acting Judge of Appeal

12 R v Verster 1952 (2) SA 231 (A).
13 S v Jaftha 2010 (1) SACR 136 (SCA) para 15.
14 See in particular S v Roberts 2000 (2) SACR 522 (SCA) para 22 and S v Balfour 2009 (1) SACR
399 (SCA) para 17.

APPEARANCES:
APPELLANTS:
W King

Instructed by William Booth Attorneys, Cape Town;

Lovius Block Attorneys, Bloemfontein.

RESPONDENTS:
C van der Viyver

Instructed by the Director of Public Prosecutions, Cape Town;

The Director of Public Prosecutions, Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

From:  The Registrar, Supreme Court of Appeal
Date:  31 MARCH 2010
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

S Hendricks v The State

The Supreme Court of Appeal today dismissed an appeal by Mr Shaun Hendricks
(the appellant) against his convictions on two drug related charges, and upheld his
appeal against the sentences imposed by the Cape High Court of 8 years and 12
years respectively. It  also set aside a confiscation order made against him in terms
of s 18 of the Prevention of Organised Crime Act 121 of 1998 (POCA), in the amount
of R150 000.00. The High Court sentenced the appellant to an effective 12 years’
imprisonment.

The trial against the appellant began in 1999, some six years after his arrest during
September 1993. The appellant was convicted on 19 January 2001 and sentenced
on 2 January 2002. He was not incarcerated for any period. The appellant lodged his
appeal in 2003. It was heard in the Cape High Court in 2006. The judgment on
appeal was delivered without notice to him in 2007. The application for leave to
appeal was heard in November 2008.

On appeal, the SCA held that insufficient consideration had been given, in passing
sentence, to the long delay experienced by the appellant in the finalization of his
appeal. The mental strain that the appellant endured over the years awaiting the
outcome of his appeal could not be ignored. While ordinarily only facts that are
placed before a trial court are taken into account for the purposes of sentencing, this
rule is not invariable. As the circumstances the appellant found himself in were

extraordinary and exceptional following his convictions and sentences, it was
possible to alter the sentences.

The appeal against the sentences on both counts was upheld. The sentences were
replaced with four years’ and eight years’ imprisonment respectively, ordered to run
concurrently.

As regards the confiscation order, the SCA examined the provisions of  POCA and
stated that the requirements for a confiscation order under ss 18(1) and (2) under
the act were twofold, namely the benefit and the proceeds derived from the crimes.
As there was no proof that the appellant had benefitted from any drug deal, the
confiscation order had to be set aside.

---ends---