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[2016] ZAGPJHC 54
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Chinatu v S (A269B/2015) [2016] ZAGPJHC 54 (14 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: A269B/2015
DATE:
14 MARCH 2016
In the
matter between:
CHINATU,
DOMINIC
PETER
...................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
Appellant was convicted
and sentenced in the district Magistrate’s Court at Kempton
Park of contraventions of Act 140 of 1992
in that it was alleged that
he dealt in 938.86 grams of cocaine which he was importing into South
Africa having entered on a flight
from Sao Paolo Brazil. He appears
to appeal both conviction and sentence.
2.
The only issue which
has caused me some concern is why this trial took so long and to what
purpose lengthy cross-examination was
led of some many witnesses. At
the end of the day there was no real dispute on the facts and all
prejudice was to the appellant
who remained in custody for a period
of one year (6
th
April 2012 date of arrest to 18
th
April 2013 date of conviction and sentence.)
3.
If there is any dispute
between the prosecution and the defence it is that the police
authorities set up an entire fake apprehension
and prosecution for
some unknown reason and that the appellant is a victim of such a
scam.
4.
The appellant was a
passenger on a flight from Sao Paolo. On arrival at OR Tambo he was
marked out for investigation. Inspector
Thipe searched him and found
a black plastic bag inside his boxer underpants short within his
genitalia. This plastic bag contained
items in a bullet form.
Constable Ramakwela was called and he searched the appellant and
found a black plastic bag inside the genitalia
of the appellant
containing about 50 bullets. The constable called a photographer,
Warrant Officer Magome, whose affidavit of the
appellant and the bag
was admitted into evidence thereafter, Constable Ramakwela arranged
for the appellant to be taken to hospital
for an x ray where a
foreign object was identified in his stomach. The appellant was under
guard at all times. Warrant Officer
Galane had the unpleasant task of
observing the appellant excrete the bullets into a special Organised
Crimes Unit toilet which
enabled the foreign objects to be ejected
into a sink.
5.
The plastic bag and the
bullets contained therein and the bullets excreted by the appellant
were all placed into two sealed forensic
bags. Constable Hlavete and
Captain Pule (by way of affidavit) and Constable Sithosa all gave
evidence on the chain of evidence.
These various bags were delivered
to the Forensic Science laboratory for analysis and the affidavit of
Warrant Officer Masiso was
that he analysed that material which was
found to be cocaine being a prohibited substance in terms of the
relevant legislation.
6.
To this open and shut
case, the appellant told the court that he had been on a month’s
holiday to Brazil and was in transit
through South Africa. His
employment and means of taking himself off on such a holiday were not
dealt with.
7.
He denied that the
black plastic packet containing bullets were ever found on his body.
He denied that he ever excreted further
bullets using the Organised
Crimes Toilet.
8.
In the course of an
unnecessarily lengthy trial, there was much cross-examination of
witnesses on taking of statements, details
of forensic bags and the
chain of evidence. As one read through the record, one began to think
that there was actually some kind
of defence being offered against
the prosecution case. There was none.
9.
I can find no
misdirection in the judgment of the learned magistrate in the court
a
quo
. The learned
magistrate was extremely generous in taking into account the time
spent in custody by the appellant when it was he
who initially
refused legal aid board representation which occasioned delays in
commencement of the trail and it was his legal
representative who
explored every red herring for days on end.
10.
I have no hesitation in
confirming the conviction of the appellant and the sentence of twelve
years imprisonment imposed on him.
11.
An order is as follows:
The appeal against conviction and sentence is dismissed.
DATED
AT JOHANNESBURG 14 MARCH 2016
SATCHWELL J
I
agree.
MOKOENA AJ
Counsel
for Appellant: Adv JL Kgokane
Attorneys
for Appellant: Legal Aid of SA
Counsel
for Respondent: Adv N Kowlas
Attorneys
for Respondent: Office of DPP
Dates
of hearing: 14
th
March 2016.
Date
of judgment: 14
th
March 2016.