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[2022] ZAWCHC 145
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S v Paulse (208/22;29/22;15/932/2021) [2022] ZAWCHC 145; 2022 (2) SACR 451 (WCC) (29 July 2022)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
(Coram: Le Grange, J
et Henney, J)
High Court Ref No:
208/22
Case No: 29/22
Magistrate's
Serial No:
15/932/2021
In the matter between:
THE STATE
V
KIM PAULSE
REVIEW JUDGMENT: 29
JULY 2022
HENNEY,
J
[1]
This matter comes before me as an automatic review in terms of the
provisions
of section 302 of the Criminal Procedure Act 51 of 1977
("the CPA"). The accused appeared in the Magistrate's court
of
Cape Town on several occasions, after being arrested on 9
September 2021, during which time she was represented by an attorney
appointed by Legal Aid South Africa.
[2]
After being released on bail, she absconded and her legal
representative
as a result withdrew from record. Upon her arrest, on
27 May 2022, her rights to legal representation and legal aid were
again
explained by the Magistrate. She elected to conduct her own
defence. On 6 September 2022, her rights were again explained and she

elected to conduct her own defence. The accused pleaded guilty to the
offences as charged.
[3]
The Magistrate proceeded to question the accused in terms of the
provisions
of section112 (1)(b) of the CPA and she was accordingly
convicted on two counts of contravention of section 4 (b) of the
Drugs
and Drugs Trafficking Act 140 of 1992 ("the DDTA"),
which she committed on 6 September 2021 and 19April 2021.
[4]
On 7 June 2022, the court took both counts together for the purpose
of
sentence, and the accused was sentenced to a fine of R3000 or 90
days imprisonment which was suspended for a period of five years,
on
condition that she is not convicted and sentenced for possession of
drugs in contravention of section 4 (a) or (b) of act 140
of 1990
committed during the period of suspension.
[5]
The proceedings by the Magistrate in terms of S112 (1)(b) of the CPA
were
recorded as follows:
In respect of count 1:
"Accused:
I will speak for myself
The
State request the court to make the provisions of section 112(1)(b).
These are explained to the accused and she understands
and elects to
answer the Courts questions.
COUNT
NO 1:
Court:
Your plea of guilty to these two courts, is it done freely and
voluntarily so or were you influenced or intimidated to plead
guilty?
A
No, its freely and voluntarily done.
Court:
The incident you are about to relate to curt, did it occur on the
06/09/2021?
A
Yes.
Court:
In your own words explain to court what happened that led to your
arrest?
A
That day I was in my room, with the lolly in my hand and the pipe was
on the table, I heard someone tapping
on my shoulder, (accused
demonstrates) and when I looked back it was the police, they told me
to stand up, there was about 6 police
officers, when I stood up I was
searched by a female police officer with drads. They found the lolly
in my hand and put it into
a bag, the found the pipe with mandrax on
the cupboard and they put it in the packet they arrested me and I was
hand cupped. Tik
is methamphetamine.
Court:
Do you know how much tik was there?
A
No, the ½ mandrax pill, it was mandrax.
Court:
Did you know that Mandrax and Methamphetamine (tik) are undesirable
dependence producing substance?
A
Yes, Sir
Court:
Did you know that drugs are punishable by Law?
A
Yes, Sir
Court:
What was your intention with these substances?
A
I was going to smoke it."
And in respect of count
2:
Q:
Do you plead guilty freely and voluntarily so or were you influenced
or intimidated
to plead guilty?
A:
No Sir, I plead guilty freely.
Court:
Did it occur on 19/04/2021 at Main Road, Green Point?
A:
Yes Sir.
Court:
Tell me what happened which led to your arrest?
A:
We were walking towards the Spar the van stopped a lady police
officer came out and came straight towards me,
she asked to see what
is in my hand. I had a pipe glass pipe, she took it and searched my
body, she found nothing on me and put
me in the van and took me to
the police station. We were standing in the parking, a van came and
stopped next to me, the boyfriend,
I had a small bag under my jersey.
He told me to take it out as he wants to see what was inside, he
found 3 units of Tik and the
½ (half) mandrax.
Court:
Did you know that Mandrax and Tik are undesirable dependence
producing substances?
A:
Yes Sir
Court:
Did you know that possession of Tik and Mandrax is punishable by law?
A:
Yes Sir
Court:
What were you going to do with there?
A:
I was about to smoke it Sir
The
State:      I accept the plea on both
charges as being accordance with the State case.
The
Court:     I am satisfied that accused intended
to plead guilty on both counts had no valid defence and
therefore
pleaded guilty correctly.
The
accused is found guilty on both count 1
&
2."
[6]
Having considered the section 112(1)(b) proceedings, I had serious
concerns
whether the said proceedings were in accordance with justice
and raised the following queries with the Magistrate.
""
The
Magistrate is required to answer the following queries:
1.
On
what
basis
in
respect
of
both
charges
did
the
court
conclude
that
the accused
possessed
an
undesirable
dependence
producing
substance
as
listed
in Part 3 of Schedule 2 of the Drugs and Drug Trafficking Act 140 of
1992 ("DDTA”) being methaqualone and methamphetamine,

based solely on the questioning of the accused in terms of the
provisions of
section 112
(1)(b) of the
Criminal Procedure Act 51 of
1977
.
a.
The
Magistrate's attention is drawn to the following cases,
S
v
Naidoo
[1]
and a full bench decision of this court to which he is bound of
S
v
Adams
[2]
.
2.
The
Magistrate should also give reasons as to why he did not request the
prosecutor to present the
section 212(4)
[3]
certificate
to him to ascertain the correctness of the admissions the accused
made with regard to the fact whether the accused indeed
were in
possession of the undesirable dependence producing substances as
listed in the act, before finding the accused guilty of
the
provisions of the DDTA."
[7]
In reply the Magistrate conceded that he based his finding that the
accused
possessed an undesirable dependence reducing substance as
listed in
Part 3
of Schedule 2 of the DDTA as being methaqualone or
methamphetamine solely on the admissions made by the accused.
[8]
The Magistrate also conceded that an expert statement in terms of
section 212
of the CPA was required to assist the court in coming to
such a conclusion and no such certificate was shown to him to have
concluded
that the accused were in possession of an undesirable
dependence producing substance as listed in the DDTA. He further
submitted
that he "erroneously failed to request this evidence
from the state".
[9]
This is not the first matter with similar charges that came before me
on automatic review where the Magistrate failed to adequately
appraise him/herself as to the correctness of an admission made by

the accused. In view of the latter, it is perhaps necessary to
restate the law on this issue. In S
v Adams
supra, this court
said the following in respect of a plea of guilty on the charge of
contravention of
section 2
(a) of act 41 of 1971 (the predecessor of
the current Act 140 of 1992):
"Where an accused is
charged with contravening s 2 (a) of Act 41 of 1971 in respect of
a
prohibited dependence-producing substance such
as
mandrax, and he pleads guilty and makes the admission that the
substance
is
indeed mandrax,
the court will normally be entitled to convict him where he
is
represented by
a
legal
representative. Where, however, the accused is an inexperienced
person who is unrepresented, the position is different. In
such an
event, the court may not simply accept his admission of an unknown
fact. There would have to be additional grounds on which
the court
could rely that the admitted fact is true before the court can be
satisfied that the accused is guilty. The assurance
concerning the
acceptance of
a
fact which is
admitted but which is beyond the personal knowledge of such an
accused can be obtained in different ways, for example,
by closer
questioning of the accused in order to determine the strength of the
knowledge on which he has made the admission, or
what his knowledge
of the matter and the surrounding circumstances are, or by examining
the relevant certificate of analysis of
the substance. Whether there
is then sufficient evidence for the Magistrate to convince him that
the accused is guilty will depend
on the facts of the particular
matter. What however must still be borne in mind,
is
that it is the court's duty to convince itself of the
accused's guilt and that the court is not relieved of this duty in
this regard
merely by such an unrepresented and inexperienced accused
admitting
a
fact which is
beyond his knowledge."
The
decision of
S v Adams
(supra)
was based on the decision of
S v Naidoo
1985 (2) SA 32
(N)
where
Thirion J
at
37 G -
H
said:
"But before it can
convict the accused, the court has to be satisfied, on the facts
stated by the accused, that the accused
is indeed guilty. The court
therefore not only has to ascertain whether the admitted facts, if
accepted as correct, would establish
all the elements of the offence
but it also has to pass judgment on the reliability of the
admissions. Only if the court is satisfied
as to the reliability of
the admissions of fact and that they are sufficient to establish all
the elements of the offence may the
court convict the accused. Where
an accused admits facts which are within his personal knowledge, no
difficulty ordinarily arises.
In such
a
case the presumption of fact that what an accused admits
against himself may be accepted as the truth would operate and,
provided
the accused makes the admission with full knowledge of its
implications, there would be no reason why the court should not be
satisfied
about its correctness and reliability."
And
in
S
v Chetty
[4]
this
court held:
"In the ordinary
course the State can and should hand in
a
certificate of an analyst which proves itself and causes no
problems that what has been found is what it is alleged to be. There

may of course be other methods by which the questioner could satisfy
himself that the accused had good reason to accept that the
pills he
intended dealing in were what they purported to be or did contain the
drug in question
-
perhaps
because he had purchased them from
a
"reliable" source, or had tried one himself, or that
some of his own experienced customers were satisfied with their
purchases
from the batch in question."
[10]
The learned
authors
Du, Tait,
DeJager,
Paizes,
Skeen
and Van der
Merwe states the following in this regard at RS64 Ch 17 page 21-22
[5]
"The general rule in
our law of evidence is that
a
court
may accept and rely upon an admission of an accused despite the fact
that the fact admitted falls outside the personal knowledge
or
experience of the accused
...
It
would seem, however, that the High Court has adopted a more cautious
approach with regard to the plea procedures in terms of
ss 112 and
115 where admissions are made by undefended accused ...
It should further be
borne in mind thats 112(1)(b) does not provide for the conviction of
the accused merely because he himself
believes that he is guilty ...
In
S
v Nixon
2000 (2) SACR
79
(W)
86f-g Wunsh J accepted the need for
a
cautious approach to s 112 where admissions are made by an
undefended accused.
The weight of authority
favours the view that an admission that does not have its factual
foundation in the personal knowledge of
the accused can be accepted
if the court is satisfied that the admission is
a
reliable one...
In
S
v Naidoo
1985
(2)
SA
32
(N)
37G-H
a
full
bench held that with regard to s 112(1)(b) the court 'not only has to
ascertain whether the admitted facts, if accepted as
correct, would
establish all the elements of the offence but it also has to pass
judgment on the reliability of the admissions'.
The court treated
admissions in terms of s 112(1)(b) as admissible informal admissions
which, in terms of our common law, can be
given such weight as the
court may consider appropriate in the light of the circumstances of
the case. The 'enquiry' remains
a
factual one-the sufficiency and probative value of the
admission depending on the circumstances of the particular case' (at
37J-
38A). The source from which the accused derives his knowledge is
an important factor (at 36H). In this case-which was a prosecution

under s 140(2)(a) of Ordinance 21 of 1966---the prosecutor furnished
the accused with the certificate relating to scientific analysis
of
the blood sample taken from the accused. Thirion J concluded (at
40J):
'In my view this is
a
case where the accused was constrained to plead guilty by the
force of the evidence available to the State. The Magistrate
satisfied
himself of the accused's guilt on an examination of the
sources of the accused's knowledge on the strength of which the
accused
had made his admissions and the probative force of those
sources was sufficient to establish the reliability of the
admissions.
'
In S v Adams
1986 (3)
SA 733
(C)
a
full bench
adopted the approach in S v Naidoo (supra) ...
It is evident from the
above that the prosecution can facilitate matters by timeously
allowing the accused to have access to certificates
pertaining to
scientific analyses. In S v Goras
1985 (4) SA 411
(0)
412F
Brink J took the view that in prosecutions under s 140(2)(a) of
Ordinance 21 of 1966 an accused should be given the opportunity
of
studying the certificate concerning the concentration of alcohol in
his blood before he is asked whether he admits the alleged

concentration of alcohol in his blood."
[11]
It
is
clear
from
the
authorities
cited
that
where
an
accused
pleads
guilty
to
a charge
where one of the elements of the crime can only be proven by
scientific means, the court must request the prosecutor to
hand up
the analysis certificate
[6]
in
terms of the provisions of section 212 of the CPA to satisfy itself
that during the s 112 (1)(b) admission was correctly made.
In this
case, the accused admitted to being in possession of an undesirable
dependence producing substance, in contravention of
section 4 (b) of
the DDTA, and the court convicted the accused without satisfying
itself by means of the scientific evidence in
the form of the section
212 certificate that such an admission was correctly made.
[12]
There may well be cases where a court may convict a person without
the production of such
a certificate, if from the questioning of an
accused, and the subsequent admissions made, the court can come to
such a conclusion.
See S
v Adams
in this regard. Where for
example, an accused person during the section 112 (1)(b) questioning
states:
1)
that such an accused is a regular user and is addicted to the

undesirable dependence producing substance;
2)
that the accused on a previous occasion acquired the alleged

undesirable dependent producing substance from a particular source
which had the desired effect on such an accused.
3)
that such an accused had already used some of the substance
that was
found the possession of such an accused at the time of the arrest.
In this particular case,
the court had no such information from which he could safely conclude
that the accused were in possession
of a dependence producing
substance as prohibited by the act.
[13]
This in my view, is not an exhaustive list of circumstances and
factors that can be used
to test or confirm the reliability of an
admission that an accused had knowledge that the substance in his or
her possession was
an undesirable dependence producing substance. The
most reliable source of information would always be the section
212(4) certificate
and Magistrates are under a duty to request that
it be produced before them, before convicting an accused during the
section 112
(1)(b) questioning as pointed out in Adams and the other
cases.
[14]
In view of the number of cases that had been sent on automatic review
where Magistrates
had great difficulty in applying the guidelines as
laid down in S v Adams, it is herewith directed that the Chief
Registrar forward
a copy of this Judgment to the Chief Magistrate of
Cape Town as well as Wynberg to bring this Judgment to the attention
of the
Magistrates in their respective administrative regions of the
Western Cape.
[14] In the absence of
any further information or evidence to satisfy itself that the
accused were indeed in possession of an undesirable
dependence
producing substance as listed in Part 2 of schedule 3 of the DDTA,
the conviction in the respect of both charges were
improper and falls
to be set aside.
[15]
In the result therefore, I would
make the following order:
"That the conviction
and subsequent sentence in respect of both charges are set aside".
R.
C. A. HENNEY
Judge
of the High Court
I
agree.
A.
LE GRANGE
Judge
of the High Court
[1]
1986(3) SA 733 (C).985(2) SA 32 (N)
[2]
1986(3) SA 733 (C).
[3]
Section 212 (4)
{a)
Whenever
any fact established by any examination or process requiring any
skill­
(i)
in biology, chemistry, physics, astronomy, geography or geology;
(ii)
... ;
(iii)
.. ;
(iv)
... ;
(v)
... ; or
(VI)
... ,
is
or may become relevant to the issue at criminal proceedings, a
document purporting to be an affidavit made by a person who
in that
affidavit alleges that he or she is in the service of the State or
of a provincial administration or any university in
the Republic or
any other body designated by the Minister for the purposes of this
subsection by notice in the
Gazette,
and that he or she has
established such fact by means of such an examination or process,
shall, upon its mere production at such
proceedings be
prima
facie
proof of such fact: Provided that the person who may make
such affidavit may, in any case in which skill is required in
chemistry,
anatomy or pathology, issue a certificate in lieu of such
affidavit, in which event the provisions of this paragraph shall
mutatis mutandis
apply with reference to such certificate.
[4]
1984 (1) SA 411 (C)
[5]
Commentary
on the
Criminal Procedure Act
[6
]
This
would also be applicable in cases where there is a guilty plea by an
undefended accused charged with contravening of section
65(2) of the
Road Traffic Act 93 of 1996; driving with an excessive amount of
alcohol in one's blood.