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[2016] ZAGPJHC 93
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Abdullah v S (A323 / 2015) [2016] ZAGPJHC 93 (29 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A323 / 2015
DATE:
29 APRIL 2016
In the matter
between:-
Abdullah,
Adam
.........................................................................................................................
Appellant
And
The
State
.................................................................................................................................
Respondent
JUDGMENT
SIBUYI,
AJ:
[1]
The appellant appeared in the Kempton Park Regional Court charged
with one count of unlawfully dealing in a dangerous
dependence-producing
substance, that being 51 grams of cocaine in
contravention of
section 5(b)
of the
Drugs and Drug Trafficking Act
140 of 1992
, as amended.
[2]
On 29 November 2012 the trial court sentenced the appellant to 14
years imprisonment. In terms of
section 25
of the
Drugs and Drug
Trafficking Act, the
drugs were declared as forfeited to the State
and due to the automatic operation of
section 103(1)
of the
Firearms
Control Act, 60 of 2000
, the appellant was declared unfit to possess
a firearm.
The appellant
was legally
represented throughout the trial.
[3]
The appellant was subsequently granted leave to appeal against both
his conviction and sentence.
[4]
The Respondent filed a notice of intention to have the matter struck
of the roll together with its heads of argument on the
basis that the
appellant filed no heads of argument on or before 19 February 2016 as
required in the Notice of Set-Down issued
on 24 November 2015, but
instead filed the heads of argument on 14 March 2016; and that no
application for condonation for the
late filling of such heads has
been brought by or on behalf of the appellant.
[5]
In terms of Chapter 8 of the Practice Manual of this Court,
specifically, paragraph 3 thereof: “Failure to file heads
of
arguments timeously will, as a general rule, only be condoned in
exceptional circumstances. Error or oversight by counsel and
legal
representatives or latter’s employees will rarely be regarded
as exceptional circumstances.”
[6]
Counsel for the appellant explained the cause for the failure to file
heads of argument in accordance with the Practice Manual.
We are of
the view that it is in the interest of justice that matters of this
nature be brought to finality without delays. Hence,
we condone the
late filing of appellant’s heads of argument.
[7]
The State case against the appellant is that one customs officer,
Inspector
Kagiso Mogale
(“Mogale”),
was posted at carousel nine to monitor baggage. Carousel nine was
only meant for baggage to South Africa.
To his surprise he found
appellant’s
bag
on carousel nine.
Appellant's bag was not supposed to be on carousel nine as the
appellant was en route to Ghana.
[8]
Mogale then requested one of his co-workers, Inspector Khoza, to go
and look for the owner of the
bag.
Inspector Khoza went to look for the owner of the bag. He then came
back with the appellant and the appellant confirmed that the
bag
belonged to him. Mogale asked the appellant to open the bag.
The appellant took out his key and opened the bag.
[9]
Mogale, in the presence of the appellant, searched the bag and
discovered the drugs in question. When asked to explain the presence
of the drugs in his bag, the appellant denied any knowledge of the
drugs. Mogale called Sergeant Thiri, to the scene. Sergeant
Thiri
took over from Mogale, secured the evidence and arrested the
appellant.
[10]
The appellant denies that the drugs were found in his bag. He
testified that he packed his bag and locked it with his key,
which
key he describes as a very special key. He was travelling from
Sao-Paolo, Brazil, to Accra, in Ghana via Oliver Tambo International
Airport.
[11]
Inspector Khoza fetched him from the transit area and took him to an
office where he found Mogale with his bag. When he arrived
at the
office, his bag, contrary to Mogale’s version, was already
opened. He specifically denied that the bag was opened
with his key
in his presence.
[12]
The issue for decision in this matter is whether the State
established the guilt of the appellant beyond reasonable doubt.
[13]
It is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a
mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in
a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true.
[14]
If the accused’s version is reasonably possibly true in
substance, the court must decide the matter on the acceptance
of that
version. Of course it is permissible to test the accused’s
version against the inherent probabilities. But it cannot
be rejected
merely because it is improbable; it can only be rejected on the basis
of inherent probabilities if it can be said to
be so improbable that
it cannot reasonably possibly be true (see Olawale v S
[2010]
1 All SA 451
(SCA)
, para 13).
[15]
In evaluating the evidence against the appellant, one must look at
the reliability and credibility of the State witnesses,
consider if
any of them had a motive to falsely implicate the appellant and
further look at the probabilities of the State’
s
version.
[16]
The State’s case rested on the evidence of a single witness as
to the actual discovery of the drugs. The evidence of
a single
witness has to be clear and satisfactory in every material respect.
The evidence has to be treated with caution. A court
can accept the
evidence of a single witness if it is satisfied that it is clear in
every material respect.
[17]
Before us, counsel for the appellant submitted that the trial court
erred in not finding that the appellant's version is reasonably
possibly true. The basis of the submission was that someone else
other than the appellant must have brought appellant's bag to
carousel nine. Counsel for the respondent supported the decision of
the magistrate. He submitted that the evidence of Mogale on
the
discovery of the drugs was satisfactory in all material respects.
[18]
I agree that the evidence of Mogale in regard to the actual discovery
of the drugs is not corroborated. As was said in S v
Gentle
2005 (1)
SACR 420
(SCA) at para [18]: “. . . by corroboration is meant
other evidence which supports the evidence of the complainant, and
which
renders the evidence of the accused less probable on the issues
in dispute.”
[19]
However, the evidence of the appellant may only be reasonably
possibly true if one was to find that the customs official, Mogale,
or and his colleagues, had a motive to implicate the appellant in the
crime and having so devised a plan, framed the appellant
accordingly.
[20]
The circumstances of this matter are such that such conclusion cannot
reasonably possibly be true. Firstly, there has to be
a motive on the
part of the custom officials to implicate the appellant. It is common
cause that the appellant and the custom officials
did not know each
other prior the day of the incident.
[21]
Further, no evidence of such motive was led during the trial nor can
we reasonably infer such motive from the facts of this
matter.
Secondly, the planning and execution of such a sophisticated plan, on
the face of the inherent probabilities in this matter,
is not only
highly improbable but so improbable that it cannot reasonably
possibly be true.
[22]
On the other hand, the evidence of Mogale was satisfactory in all
material respects.
Section 208
of Act 51 of 1977 provides that an
accused may be convicted of any offence on the single evidence of any
competent witness. In
S v Sauls and Others
1981 (3) SCR 172
(A) at
173, it was held that: “If a complainant was a single witness
the further enquiry is whether she was credible. The
evidence of a
single witness must be clear and satisfactory in every material
respect.”
[23]
Although
section 208
of the
Criminal Procedure Act 51 of 1977
provides that an
accused may be convicted of any offence on the single evidence of any
competent witness, it has always been accepted
that the evidence of a
single witness must be viewed with caution. A conviction should
follow only if the evidence is substantially
satisfactory in every
material respect or if there is corroboration. The fact that the
single witness occupies an official position,
such as that of a
police officer or traffic inspector, does not add weight to his
evidence (S v Abrahams 1979
(1) SA 203
(A) at 207B–
H).
It has also been said that the statutory authority to convict an
accused person on the evidence of a single witness ought not
to be
invoked where the witness has an interest or bias adverse to the
accused (S
v
Mokoena
1932 OPD 79
at 80). The need for caution may also be
increased by other factors such as the State's failure to adduce real
evidence which should
have been available (S v Msane 1977
(4) SA 758
(N)).
[
24
]
The trial court in this case did, in its
ex
tempore
judgment on conviction, mention the need for
caution. It accordingly considered and applied the cautionary rule.
The trial court
was satisfied with the honesty and reliability of
Mogale. I also find his evidence to be clear and satisfactory in
every material
respect. In my view, the appellant is guilty of
offence. I can see no reason why this Court should interfere
with the conviction.
AD
SENTENCE
[24]
Coming to the sentence, the evidence in this case is briefly outlined
above. The personal circumstances of the appellant were
that he was a
first offender, married with two young children, and self-employed.
Counsel for the state submitted that the finding
of the Court
a
quo
was justified on the basis of the credibility and
factual findings it had made and that this court should not likely
interfere
with such findings (see also
R v
Dlumayo and Another,
1948 (2) SA 677
(A)). In my
view, these submissions are tenable. A sentence should only be
interfered with on appeal where: “(i) an
irregularity has
occurred; or (ii) the trial court materially misdirected itself on
the question of sentence; or (iii) the sentence
could be described as
so disturbing that it included a sense of shock.”
[25]
When it comes to the question of sentence one is immediately filled
with apprehension and concern for the future of the appellant
and the
safety of others, the public.
[26]
I found
no irregularity
, misdirection or
that the sentence imposed can be described as being so disturbing
that it induces a sense of shock. In imposing
the sentence in the
present case the magistrate is not shown to have ignored a relevant
consideration or to have taken into account
an improper
consideration. He took into account the personal circumstances of the
appellant, comparable sentences and cases. Therefore,
the appeal
against sentence must fail.
[27]
In the result, the following order is made:
T
he
appellant’s appeal against his conviction and sentence is
dismissed.
HW
SIBUYI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree, and it is so ordered.
WHG
VAN DER LINDE
JUDGE,
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the appellant: Adv LS Tlake
Instructed
by: Legal Aid Board
For
the respondents: Adv R Ndou
Instructed
by: Office of the Director of public Prosecutions
Date
of hearing: 22 April 2016
Date
of Judgement: 29 April 2016