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[2021] ZAGPJHC 115
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Nabolisa v Learned Magistrate Ms Syta Prinsloo and Another (12249/2018) [2021] ZAGPJHC 115 (8 April 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
(1)
REPORTABLE: NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE
NUMBER: 12249/2018
In
the matter between:
NABOLISA
FRANK
APPLICANT
and
THE
LEARNED MAGISTRATE MS SYTA
PRINSLOO
1
st
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTION
GAUTENG
LOCAL
DIVISION
2
nd
RESPONDENT
J
U D G M E N T
BOKAKO
AJ
INTRODUCTION
1.
The
applicant is Frank Nabolisa, an accused in criminal proceedings in
the Regional Court for the Regional Division of Johannesburg,
Alexandra (the Criminal Court), presided over by the first respondent
(the Magistrate). T
he
first respondent is the Regional Court Magistrate, Ms
Prinsloo,
duly appointed as such at Alexandra Magistrates' Court. The second
respondent is the Director of Public Prosecutions,
Gauteng Local
Division, Johannesburg
.
2.
The
applicant was convicted of
"possession
with the intention to deal in cocaine in contravention of Section of
the Drugs and Drug Trafficking Act, Act No.
140 of 1992 (“the
Drugs Act"), as well as possession of paracetamol and
methenamine in contravention of Section 22A
of the Medicines and
Related Substances Act, Act No, 101 of 1965 (“the Medicines
Act") on 31 October 2013. On 19 May
2014, the applicant was
sentenced to 20 years' direct imprisonment.
3.
The
applicant then applied for leave to appeal against his conviction and
sentence, the court
a
quo
refused leave to appeal and the applicant then unsuccessfully
petitioned the Gauteng Local Division, Johannesburg. The applicant
then applied to the Supreme Court of Appeal for special leave to
appeal and was again unsuccessful. The applicant now approaches
this
court in terms of Rule 53 to review and set aside the proceedings of
the court
a
quo
.
4.
The
applicants’ complaint in the review is that the first
respondent committed gross irregularities in the procedures
she
followed to arrive at her conclusions. He contends that the process
was procedurally unfair and infringed the applicant’s
rights to
a fair trial, and that this resulted in a conclusion to which no
reasonable trier of fact could have come.
The
applicant contends that the judgment should be reviewed and set
aside
.
The
application is opposed by the second respondent and the first
respondent abides the decision of this Court. Since only
the
second respondent opposes the application, where we refer simply to
“the respondent” this refers to the second
respondent.
PRELIMINARY
ISSUES
5.
The
respondent raised a number of points
in
limine
.
These were that
5.1.
the
applicant’s affidavits are not properly commissioned;
5.2.
the
record of proceedings was incomplete, and
5.3.
the
issue was
res
judicata
because of the unsuccessful attempts to appeal conviction and
sentence.
6.
As
far as the commissioning of affidavits was concerned, the applicant
asked the court to condone and accept the late filing of
commissioned
affidavits. The court did so, as it is in the interests of justice
that all issues be properly ventilated and considered.
7.
The
respondent complained that the record of proceedings was incomplete
and the review could not therefore be considered, because
the
applicant did not request the record from the first respondent in
terms of Rule 53 of the Uniform Rules of Court.
8.
The
purpose of rule 53 is to “facilitate and regulate applications
for review”.
[1]
The
requirement in rule 53(1)(b) that the decision-maker file the record
of decision is primarily intended to operate in favour
of an
applicant in review proceedings. If the applicant chooses to proceed
in the absence of requesting the record, that is at
the applicant’s
peril. A respondent who has access to the relevant parts of the
record (as in this case, the state had access
to the allegedly
missing part of the record, which was eventually produced) cannot
rely on an applicant’s failure to request
the record to object
to the proceedings continuing, as it is not prejudiced. In any event,
the full record was ultimately before
this court, including the
application for special leave to appeal to the Supreme Court of
Appeal (also referred to in this judgment
as the petition).
9.
There
is, therefore, no merit in this preliminary point.
10.
Finally,
the respondent submitted that the application for special leave to
appeal was based on similar grounds upon which the Rule
53
application is based and that therefore the matter was
res
judicata
.
The respondent contended that the application for special leave was
not before this court and therefore the court was not able
to decide
whether in fact the matter was
res
judicata
.
However the court later received the application for special leave to
appeal and determined that the grounds of the review are
not all the
same as the grounds for special leave to appeal, although there is
some overlap. To the extent that there is overlap
and the question
has in essence been already considered by the High Court and the
Supreme Court of Appeal, we deal with the specific
issues below
11.
The
applicant raised one preliminary issue, that it was improper for the
respondent’s counsel to represent the respondent
because she
had deposed to a confirmatory affidavit. The contention was that it
is a fundamental principle of professional
ethics that no
representative may also be a witness in a matter in which he or she
represents that party. It is so that it is unusual
for counsel to
give evidence. However Ms Williams only confirmed Mr Nenghovela’s
evidence and it did not seem to us that
her ability to represent the
respondent was impaired in this particular case. For that reason the
court dismissed the applicant’s
point.
RELEVANT BACKGROUND FACTS AND
EVIDENCE LEADING TO THE CONVICTION AND SENTENCE
12.
The
applicant was charged, convicted and sentenced at the Regional Court,
Alexandra on the following counts: (1) Dealing in drugs,
in
contravention of Section 5(b), read with Section 1,13,17,25 and 64 of
the Drugs Act, read with the provisions of Section 51(2)
of Act 105
of 1997, alternatively, in contravention of Section 4(b) possession
of drugs and (2) The Appellant further contravened
Section 22A, read
with Section 29(k), 30 and 31 of the Medicines and Related Substances
Act, Act 101 of 1965, in that the applicant
had in his possession a
scheduled substance. The applicant pleaded not guilty and elected not
to make a plea explanation in terms
of Section 115 of the Criminal
Procedure Act 51 of 1977 (“the CPA”).
13.
In
respect of count one (1) the respondent contends that on the 28
th
of June 2008 at house 2053, Mapatha Street, Ebony Park the applicant
did unlawfully have in his possession with an intention to
deal a
dangerous dependence producing substance as listed in part 2 of
Schedule 2 of the said Act, to wit cocaine in that it was
found in
his possession.
14.
The
applicant did not testify during his trial and only relied on
presentation the evidence of accused No.2`s expert witness. It
was common cause that on the 28
th
of June 2008, drugs were seized by members of South African Police
Services at the house mentioned in the charge indictment. At
the time
of seizure, the applicant was not present at the premises. A maroon
suitcase and a black suitcase were seized by the police,
on the
strength of information obtained from intercepted communications.
15.
Lt-Col
Coertze testified that the police had authority to intercept the
applicant’s conversations, having obtained authorisation
to
intercept the applicant`s cell phone communications. In the
intercepted communication, the applicant was heard explaining to
one
Natasha (Accused No.2 in court a quo) where the maroon bag was and
further gave her the instructions on how to open the bag
which had a
combination lock by giving her the code. The applicant was also heard
telling Natasha that there are four (4) packets
inside the bag and
such should be made up into five (5) packets.
16.
Warrant
Officer De Jager who was part of the team and who worked with Col
Coertze testified in that upon arrival at the premises
he found the
owner of the house namely Audrey who gave him a permission to search
the premises. It was at this time that he discovered
the above
mentioned maroon and black suitcases. He managed to open the maroon
suitcase using code 138 that was provided to him
by Col Coertze and
obtained from the intercepted communications. This bag contained a
substance which he described as cocaine.
The
first respondent found that the two bags belonged to the applicant
and that the applicant had control over the contents thereof
by
virtue of the intercepted cell phone conversation between the
applicant and Natasha. Further the first respondent found that
the
applicant was in control of the seized items.
17.
Major
Noluvuyo Gifta Makwatane and Sergeant Machimane testified about
equipment used in the Forensic Science Laboratory, emphasising
that
such equipment had the ability to calibrate itself. These witnesses
both have knowledge in specialised fields of forensic
science.
18.
Sergeant
Machimane was based at the drug section of the chemistry unit of the
Forensic Science Laboratory as a forensic analyst.
He received two
sealed bags, each with a unique number, FSG249067 and FSG249068
respectively. The black bag FSG249067 contained
five (5) units of
powder each wrapped in plastic and with a total weight of 3257.6
grams. The maroon bag FSG249068 contained four
(4) units of powder
each wrapped in plastic and total weight of the powder was 313.9
grams. This witness analysed the said exhibits
by using gas
chromatography coupled with mass spectrometry, a GCMS. This is an
internationally accepted comparative analytical
technique. He further
made use of the Fourier Transformed Infrared Spectroscopy (FTIR)
during his analysis. This is also an internationally
accepted
molecule spectroscopy comparative technique whereby the
characteristics patterns of the compounds are obtained.
19.
Major
Makwatane testified that she had carried out suitability tests
on the machines used by Sgt Machimane, HP4 and HP9. She
testified that the reports generated by the machines when the tests
were conducted showed that the machines would not be able to
give a
conclusive negative result for cocaine but a positive result would be
conclusive.
20.
Accused
number 2 called expert witnesses. According to Dr CC Viljoen, Sgt
Machimane’s evidence cannot safely say beyond a
reasonable
doubt that the substances were cocaine. Dr Dinsmare testified
that there were various samples that had to be analysed
and that
Machimane only made use of one method to analyse the substances.
THE
APPLICANT’S GROUNDS OF REVIEW
APPLICANT`S
CASE
21.
The
applicant relied on the following grounds of review:
21.1.
The
second respondent’s failure to make proper disclosure and the
first respondent’s failure to order proper disclosure
of the
working papers of the forensic analyst.
21.2.
The
first respondent placed an onus on an accused in a criminal matter.
21.3.
The
applicant was convicted of a non-existing offence, possession with
intention to deal, relying on a presumption in terms of section
21 of
the Drugs Act which has been declared unconstitutional.
21.4.
The
first respondent permitted rude and inappropriate cross-examination
by the second respondent’s counsel.
21.5.
Evidence
of a state witness in favour of the defence was rejected when the
witness was not discredited.
21.6.
Sentencing
proceedings were unfair.
22.
The
applicant contends that his fair trial rights were infringed,
particularly his right to challenge and adduce evidence with regard
to Sgt Machimane’s working papers. The applicant contends that
Sgt Machimane`s evidence was not consistent with his working
papers
and could not be challenged because the state did not disclose Sgt
Machimane’s working papers to the applicant prior
Sgt
Machimane’s testimony and also the state failed to raise
discrepancies with Sgt Machimane whilst the state was leading
him.
The working papers were also not canvassed during Dr Viljoen`s
testimony. The only time when the working papers were raised
was
during Dr Dinsmare’s testimony.
23.
The
applicant submits that discovery relates to the disclosure of
evidence on which a party intends relying to prove its case.
The furnishing of further particulars to a criminal charge proceeding
is regulated by
Section 87(1)
of the
Criminal Procedure Act. It
was important that the state before the beginning of the trial
discover such documents to enable the accused to exercise his
constitutional
right to a fair trial. Therefore, the state had an
obligation and or legal duty to discover the working papers of Sgt
Machimane
whether asked or not. The applicant was entitled to have
his own expert witness to rebut evidence of the state expert
witnesses.
24.
The
first respondent allowed the second respondent to put questions to
the defence witness, Dr Viljoen, who only had transcripts
of oral
evidence to rely on, so that he was not in a position to comment on
and criticize Sgt Machimane`s evidence. The applicant
submits that it
was therefore irregular for the state not to put the full set of Sgt
Machimane`s working papers to defence witnesses,
since the state knew
or should have known that Sgt Machimane`s oral evidence was not
supported by his working papers.
25.
After
Dr Viljoen’s evidence, the state applied for the re-opening of
the state case to call Major Makwatane to testify on
issues raised by
Dr Viljoen. The first respondent granted the second respondent’s
request. The applicant also applied
for an order that the state
discloses the relevant working papers. The first respondent did not
grant the order on the basis of
Section 87
of the
Criminal Procedure
Act. The
applicant submits that such refusal constitutes an
irregularity, even though Major Makwatane fully disclosed Sgt
Machimane`s working
papers during cross-examination by the defence.
26.
Dr
Dinsmare testified that, according to the disclosed working papers,
not all the units or items referred to in the charge sheet
had been
analysed. The applicant contends that it was unfair for the
first respondent to allow the second respondent to put
to Dr Dinsmare
that he did not have all working papers and that he therefore could
not conclude that not all units were analysed.
27.
The
applicant further submitted that Sgt Machimane was not cross-examined
on his working papers as the working papers were suppressed
by the
state, with the knowledge that Sgt Machimane`s oral testimony was
inconsistent with his working papers. Therefore, the defence’s
right to challenge this discrepancy was infringed.
28.
The
applicant submits that, because the first respondent permitted it to
be put to Dr Dinsmare that he could not comment on the
working
documents he had not asked Sgt Machimane about them, this amounts to
placing an onus on an accused person to discuss an
issue with a state
witness before testifying.
29.
The
working papers which were eventually disclosed showed that reference
numbers were inserted by hand
ex
post facto
.
This indicates that the working papers had been tampered with and Sgt
Machimane’s evidence could not have been relied upon.
The
applicant contends that the first respondent should have accepted Dr
Dinsmare`s evidence that not all units had been sampled
and analysed.
According to international standards all five samples (units) should
have been analysed. Sgt Machimane did not tell
the court that all
units were analysed. Further the applicant averred that
the respondent failed to attach standing
operating procedures
(SOP). In the same breath the applicant contends that the disclosure
of SOP was irrelevant, as Dr
Viljoen said SOP
were only effective as from March 2017.
30.
According
to the applicant the instrumental technique employed by the
respondent`s witnesses to analyse organic compounds, using
an
instrument comprising a gas chromatograph coupled to a mass
spectrometer (GS-MS) is an internationally accepted comparative
analytical technique, however the same international scientific
community that accepts this technique , which includes the
world
Anti-Doping Association (WADA) prescribes certain standards,
protocols or criteria with which the process must comply to
produce
reliable results. Therefore, if the criteria set by the international
scientific community are not complied with, the methodology
used is
not a method accepted by the international scientific community as
producing reliable results. Therefore Section 18 of
the Drugs Act
does not assist because the state has not, according to the
applicant, proved that the contents of the suitcases
were in fact
cocaine. In addition, the applicant contends that the laboratory was
not accredited by the South African National
Accreditation Systems
(SANAS) established in terms of Section 3 of the Accreditation for
Conformity, Assessment Calibration and
Good Laboratory Practice Act,
Act No.19 of 2006(ACACGLP), this is an entity that would only, if
satisfies that the process and
procedures of a laboratory meet
international standards then they would be issued with an
accreditation certificate.
31.
The
applicant further averred that the ruling of the first respondent was
irregular in that her findings were made without affording
Dr Viljoen
an opportunity to be heard on the above mentioned issues. This
resulted in total failure of justice. In addition it
was contended
that the first respondent’s failure to recall Sgt Machimane in
terms of
Section 186
of the
Criminal Procedure Act constituted
a
gross irregularity.
32.
The
applicant submitted that since his co-accused’s mother had
testified about who the two suitcases belonged to, it was not
open to
the first respondent to find that he had been in possession of the
contents as her evidence had not been discredited.
33.
In
conclusion it was submitted by Ms Kolbe that the applicant did not
receive a fair trial, and the only appropriate remedy in terms
of
Section 38
would be to set aside the proceedings as constituting a
nullity.
34.
These
irregularities in the proceedings extended to and also affected the
sentencing proceedings, in that the applicant was convicted
of a
non-existing offence. The Drug Act provides for two offences relevant
to this matter: dealing in cocaine and possession of
cocaine. The
prescribed maximum sentence for possession is in terms of Section
13(d) its fifteen years (15) and the maximum for
dealing is in terms
of Section 139f) its twenty-five years (25) imprisonment. The
applicant should have been sentenced for ten
(10) years not twenty
(20) years. The applicant alleges that his sentence was clouded with
additional charges on which the applicant
was initially arraigned
before they were separated and transferred to Kwazulu-Natal. This
constituted a gross irregularity in the
proceedings.
35.
The
applicant submits that the proceedings ought to be set aside as a
nullity.
RESPONDENT`S CONTENTIONS
36.
In
response to the applicant’s first ground of review, the
respondent contends that copies of the docket were duly supplied
to
the applicant and his legal representative, and the applicant at no
stage requested further particulars. Nor did the applicant
dispute
the findings set out in the statement made in terms of Section 212 of
the CPA by the forensic analyst. As far as working
documents were
concerned, they were only requested after the respondent had closed
its case, and only by the applicant’s
co-accused’s
counsel. The respondent submitted that working documents such as
those at issue do not ordinarily form
part of a case docket.
37.
The
respondent submitted that a request for further particulars must be
made in writing and before any evidence has been led with
respect to
the charge for which the particulars are required. In addition, if
the accused person and the prosecution do not agree
on the requested
particulars, the accused may apply to court for an order compelling
the prosecution to furnish particulars and
such order must be granted
prior the resumption of any evidence. The respondent pointed out that
during the trial the applicant
never disputed the forensic findings
by the analyst, did not seek to cross-examine the analyst or brief an
expert witness, and
cannot at this late stage suggest that he
was disadvantaged by the working documents not being timeously
produced.
38.
Further,
the credibility and reliability of the findings of the State`s expert
witnesses were already dealt with by the Johannesburg
High Court and
the Supreme Court of Appeal since their findings were challenged in
the applicant’s petitions.
39.
The
applicant did not seek to have Sgt Machimane recalled, nor did his
co-accused. It was not open to him now to complain that Sgt
Machimane
was not recalled. There was no reverse onus, the question was only
whether the second accused’s expert’s
version had been
put to Sgt Machimane, which it had not.
40.
As
far as the evidence of accused number two’s mother was
concerned, she did not have to be discredited. The question was
whether on the totality of the evidence the state had proved that the
suitcases were under the control of the applicant.
41.
Regarding
the purported conviction of the applicant on a non-existing offence
and/ or reliance on the presumption in terms of Section
21 of the
Drugs Act, the respondent denies that the state relied on a
presumption that had been declared unconstitutional.
It was pointed
out that the state applied for the charge sheet to be amended to
remove the reference to the relevant provisions
before the closing of
the state’s case. The only presumption relied upon was section
18 of that act, which had not been declared
unconstitutional. The
respondent submitted that the applicant was correctly convicted of
dealing in drugs. The respondent
suggested that this aspect was dealt
with by the applicant in the petitions to the Johannesburg High Court
and the Supreme Court
of Appeal and therefore determined by those
courts.
42.
As
far as the conduct of the state’s counsel was concerned, the
respondent submitted that the record did
not bear out the
allegations that she was rude and inappropriate, and certainly not to
the extent that would vitiate the proceedings.
43.
As
far as sentencing is concerned, the respondent pointed out that the
same issues had been dealt with in the applicant’s
petition and
therefore determined by the High Court and the SCA.
WHETHER CERTAIN GROUNDS OF
REVIEW HAVE ALREADY BEEN DETERMINED BY THIS COURT AND WHETHER ANY
ISSUES ARE
RES JUDICATA
.
44.
The
applicant relied on the same grounds of appeal to the High Court and
to the Supreme Court of Appeal:
44.1.
The
search of the premises and the seizure of the two bags was unlawful
because the person who carried out the search and seizure
did not
explain to the person in charge of the property the purpose of the
search and seizure, and no warrant was obtained.
44.2.
The
applicant ought not to have been found to be in control and therefore
in possession of the two bags, as he was not at the premises
and the
state’s witness testified about whose bags they were.
44.3.
The
state failed to prove that the two machines used to analyse the
contents of the bags were capable of analysing cocaine.
44.4.
Since
it was not proved that the machines could analyse for cocaine, the
presumption in section 18 of the Drugs Act did not apply.
44.5.
The
“previous conviction” was for a charge which was
originally part of the same proceedings but was separated and
determined first in Pietermaritzburg, and was not really a previous
conviction.
44.6.
The
court ought to have taken account of the cumulative effect of the
sentences including the Pietermaritzburg conviction.
45.
Of
these it can be seen that the only ground on the merits which the
review and the petition have in common is the issue of the
evidence
of the applicant’s control and therefore possession of the two
bags.
46.
In
our view the attempt to rely on the first respondent’s
rejection of accused number two’s mother’s evidence
where
she had not been discredited is simply a recasting of the challenge
of the first respondent’s finding that the applicant
had
effective control and therefore was in possession of the contents of
the two bags.
47.
The
finding was based not only on a rejection of evidence but on a
consideration of the totality of evidence. There was therefore
no
need to discredit the witness in order to come to a finding that was
not based on her evidence, despite the fact that she was
a state
witness and her evidence favoured the applicant.
48.
Nevertheless,
the first respondent did, explicitly, also find that the witness was
unreliable.
49.
The
question of the evidence and the finding of possession has therefore
been determined already and is
res
judicata
.
To the extent that it may not have been, the ground of review in any
event has no merit.
50.
As
far as sentencing is concerned, to the extent that the review ground
that the sentencing procedure was flawed relies on the first
respondent having taken into account the “previous conviction”,
that is exactly the same as the appeal ground relied
upon, and has
therefore already been determined.
51.
This
court does not have the power to determine again issues that have
already been determined by a court of similar or higher status.
The
applicant has already had his opportunity to have the issues
considered and is not entitled to a second bite of the cherry
in the
guise of review.
52.
Naturally
if this court finds that the proceedings before the first respondent
have been vitiated on any other grounds that may
have an impact on
the sentencing as well.
DID THE NON-DISCLOSURE OF SGT
MACHIMANE’S WORKING DOCUMENTS INFRINGE THE APPLICANT’S
FAIR TRIAL RIGHTS, INCLUDING PLACING
AN ONUS ON AN ACCUSED PERSON?
53.
As
set out above, Sgt Machimane testified about his analysis of the
substance found in the two bags, and his working papers were
not
disclosed until much later in proceedings, after the first of the
defence expert witnesses had already testified, when the
state
applied to re-open its case to rebut that evidence. Accused number
two applied for them to be produced but the application
was refused,
however Major Makwatane stated that if accused number two’s
legal representative went to the laboratory and
asked for the
documents, they would be given to him. This is in fact what happened.
The documents were then only put to Major Makwatane
and Mr Dinsmare,
the second expert witness for accused number two.
54.
The
state provided copies of the docket to the applicant and his legal
representative. There was no request for further particulars,
either
before the trial in terms of section 87(1) of the CPA or at any time.
Nor was there any request to recall Sgt Machimane.
In addition there
was no attempt to challenge or dispute Sgt Machimane’s findings
as set out in his statement.
55.
This
court finds that unpreparedness and laxity of the applicant in not
disputing, or even attempting to test, the forensic findings
was of
his and his legal team’s own accord, the applicant cannot by
default use this court to rectifying his failure to pay
attention to
the details.
56.
While
it is true that the applicant as an accused person is entitled to a
fair trial, and does not have any onus to discharge, this
does not
mean that a represented accused can take a completely supine approach
to a trial, including not attempting to cross-examine
witnesses or
analyse and evaluate the docket and related documents provided, and
then seek to review proceedings after the fact.
Had the applicant
been unrepresented, or had there been a reason to doubt the quality
of his representation, the issue may be differently
evaluated.
However in this case the trial strategy appears to have been one of
simply observing what occurred. That cannot be a
basis on which to
ground a review.
57.
The
question of the effect of the handwritten markings on the computer
printouts is one that could easily have been put to Sgt Machimane,
but, as we have pointed out, the applicant and his team did not even
attempt to do so after the documents were provided. Any contentions
regarding the markings is speculative, in that context.
58.
As
far as the question of functioning of the machines used to analyse
the samples is concerned, that has already been dealt with
in the
petition, and therefore determined by the High Court and SCA to have
no merit.
To
the extent that the presumption in section 18 of the Drugs Act may
have been relied on, it was unnecessary, since the basis of
the
applicant’s conviction was not simply the amount of cocaine in
his possession but also the manner in which he was proposing
to
dispose of or move the cocaine on.
WAS
THE APPLICANT CONVICTED OF A NON-EXISTING OFFENCE?
59.
The
applicant was charged and found guilty of the following:
59.1.
Dealing
in drugs and contravention of section 5(b) read with sections 1, 3,
17, 25 and 64 of the Drugs Act read with the provisions
of section
51(2) of Act 105 of 1997.
59.2.
Contravention
of section 22A read with
section 29(k)
,
30
and
31
of the
Medicines
and Related Substances Act 101 of 1965
.
60.
In
his affidavit supporting his petition, the applicant sets out that he
was charged and found guilty of charges as detailed above.
These are,
in addition, the charges listed on the charge sheet and mentioned by
the first respondent in her judgment. However it
is true that the
elaboration of the charge of dealing includes possession with the
intention to deal. This is simply an element
of the basis of the
conclusion that the applicant was dealing in drugs, it is not the
offence of which the applicant has been charged
and convicted.
61.
The
applicant suggests that the finding that his guilt of the charge of
dealing is based solely on an unconstitutional presumption
that
because he was in possession of a certain amount of drugs, and that
he was convicted on possession with intent to deal on
the basis of
the possession of that amount.
62.
This
is incorrect. The first respondent clearly relies also upon the
manner in which the applicant instructed his co-accused to
repackage
the drugs from four packets into five, and his stated intention in
the intercepted telephone call to pass it on to someone
who was
taking it to Cape Town for someone who needed five packets. There was
a clear inference that the drugs were not for his
personal use but
that he intended supplying them elsewhere. The applicant himself
confirmed that the transcripts of the telephone
calls are correct.
63.
The
applicant was not convicted of a non existent charge, nor did the
conviction rely on an unconstitutional presumption.
64.
There
is no merit in this ground of review.
WAS
THE STATE’S COUNSEL RUDE AND INAPPROPRIATE IN
CROSS-EXAMINATION, TO THE EXTENT THAT IT RENDERED THE PROCEEDINGS
UNFAIR?
65.
There
is no
evidence
that the state’s counsel was rude and inappropriate during
cross-examination. It is clear that there was robust
engagement, but certainly nothing untoward and nothing that affects
the integrity of the proceedings.
66.
The
only defence witnesses were the two expert witnesses called by the
applicant’s co-accused. The only comment by the state’s
counsel that is complained of is that she commented “ag shame”
in response to Dr Dinsmare suggesting that Sgt Machimane
could not
have analysed the number of samples he said he did. While that was
both rude and inappropriate, there is no evidence
that Dr Dinsmare
was intimidated by it. In addition he was the last of the defence
witnesses and nobody else could have been intimidated
by the comment.
67.
There
is no merit on this ground of review.
CONCLUSION
68.
For
the reasons set out above, the following order is made:
The application review
application is dismissed.
TP BOKAKO
ACTING JUDGE OF THE HIGH COURT, GAUTENG LOCAL DIVISION,
JOHANNESBURG
I
agree, and it is so ordered.
S
YACOOB
JUDGE
OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
On behalf of the Appellant :
Ms S Kolbe SC instructed by Hamilton Attorneys
On behalf of the State
:
Ms A.M
Williams of the office of DPP
Date of Hearing
:
20 November
2020
Date of Judgment
:
08
April 2021
[1]
Jockey Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA
649
(A) (Jockey Club) at 661.