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[2012] ZASCA 71
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Daniels and Other v S (125/11) [2012] ZASCA 71; 2012 (2) SACR 459 (SCA) (25 May 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 125/11
Reportable
In the matter between:
BRIAN DANIELS
…................................................................................
1
ST
APPELLANT
JOHAN CLASSEN
….............................................................................
2
ND
APPELLANT
FAREED MOHAMMED
….........................................................................
1
st
APPLICANT
WINSTON ANTONY BLAAUW
…...........................................................
2
ND
APPLICANT
and
THE STATE
…............................................................................................
RESPONDENT
Neutral citation
:
Daniels v State
(125/11)
[2012] ZASCA 71
(25 May 2012)
Coram:
HEHER,
SNYDERS, WALLIS JJA, McLAREN AND SOUTHWOOD AJJA
Heard:
9 May 2012
Delivered:
25 May
2012
Updated:
Summary: Criminal
Procedure – appeal charges referring to unconstitutional
presumptions – charges not per se a nullity
– necessary
to examine whole of trial record to determine whether a failure of
justice or unfairness in the conduct of the
trial has resulted.
____________________________________________________________________________________
ORDER
On appeal from:
Western Cape High Court (Cape Town)
(Veldhuizen J sitting as court of first instance):
The applications for
leave to appeal are refused.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (SNYDERS, WALLIS
JJA, McLAREN AND SOUTHWOOD AJJA):
[1] These applications
for leave to appeal come before us in consequence of an order made in
terms of s 21(3)(c)(i) of the Supreme
Court Act 59 of 1959.
[2] The two
applicants, Mr Fareed Mohammed, and Mr Winston Anthony Blaauw,
together with thirteen co-accused
1
were tried by Veldhuizen J and assessors in the Western
Cape High Court for a variety of serious offences. The first
applicant,
Mr Mohammed, was convicted only in respect of count 48, a
contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of
1992 (‘the Drugs Act’) for dealing in an undesirable
dependence-producing substance, to wit, 100 000 Mandrax tablets.
He
was sentenced to imprisonment for ten years. The second applicant, Mr
Blaauw, was convicted on two counts of contravening s
5(b), counts 47
(65 000 Mandrax tablets) and 48, and sentenced to ten years’
imprisonment on each, five years of the second
sentence to run
concurrently with the sentence on count 47.
[3] The trial judge
refused the applicants leave to appeal against their convictions.
When they applied for leave to this Court
their applications were
supported by affidavits by each of them in which the following
allegations were made:
1. In the indictment
against the accused they faced a charge framed as follows in respect
of both counts 47 and 48:
‘
Oortreding
van art 5(b) of 4(b) gelees met Artikels 1, 13, 17 tot 25 en 64 van
die Wet op Dwelmmiddels en Dwelmsmokkelary 140 van
1992 (Handel in of
besit van ‘n ongewenste afhanklikheidsvormende stof)’.
It was to the charges so
formulated that the applicants pleaded not guilty. During the course
of the trial the charges were not
amended.
2. On 1 February 2010 an
application for discharge was made by all the accused at the end of
the state case. The trial court refused
the applications of the
present applicants in relation to counts 48 and 47, and 48,
respectively.
3.
‘Just before the Court adjourned
[the first
applicant in these proceedings deposed]
.
. . the learned judge mentioned that the legal representative for
Accused 3 should look at the case of
S
v Tswai
1988 (1) SA
851
(C). I enquired of my advocate what that case entailed and was
told that it involved a presumption where drugs were found in a
vehicle. I was further informed by him that he had done some further
research and that there was also a case of
S
v Thali
2007 (2) SACR
23
(C) where an appeal bench of the then Cape of Good Hope Provincial
Division had set aside a conviction in terms of the Drug Trafficking
Act, because the charge was incompetent. I was advised that the
reason for this was because the charge sheet contained the
unconstitutional
sections 21(a)(b)(c) and (d) of the Drug Trafficking
Act and that the facts were almost identical in my case. I was
further advised
by counsel that in all likelihood, if the charge
sheet was not amended by the State, the judge would follow that
decision and would
find that the charge sheet was incompetent.
At
the time of the trial I was suffering from adverse cardiac related
symptoms due mainly to the stress of the trial and was not
keen on
further aggravating this condition by testifying. After taking my
health and the fact that the charge sheet was probably
incompetent
into consideration, I decided that if it was not amended I would
instruct my counsel to close my case.
No
application to amend the charge sheet was made by the State and I
accordingly closed my case without leading evidence.’
4. Save for omitting
reference to a cardiac problem the second applicant deposed in terms
identical to the passages quoted.
[4] The
reasons furnished by the applicants for not testifying in their own
defence are to be found in the
ipse dixit
of each, raised long after the event. Their counsel, who
might have been expected to corroborate their explanations, did not
provide
any supporting statement. Nevertheless the State has not
taken issue with the veracity or accuracy of such evidence. I shall,
for
present purposes, accept it at face value.
[5] The confidence
expressed by counsel at the end of the argument on absolution proved
unfounded. In his judgment at the end of
the trial Veldhuizen J said:
‘
[22]
Elk van die aanklagte onder die Wet meld dat die oortreding ten laste
gelê gelees moet word met artikels 17 tot 25 van
die Wet. In
die lig van die beslissings van die Konstitusionele Hof (wat almal
saamgevat is op bl 26
b
–
d
van
S v Tshali 2007 (2) SASV 23 (KPA)) is hierdie verwysings verkeerd.
Die staat het dan ook geredelik toegegee dat daar nie op
die
vermoedens in artikels 20 en 21 van die Wet gesteun word nie. Die
verdediging wil dit hê dat die verwysing na hierdie
artikels in
die Akte van Beskuldiging tot gevolg het dat die aanklagte ongeldig
is. Ek stem nie saam nie. Indien enige verwysing
na artikels 20 en 21
geskrap word dan is die feitelike bewerings wat in die aanklagte
uiteengesit word steeds voldoende om die
ten laste gelegde oortreding
daar te stel. Dit is nie onbelangrik om daarop te let dat artikels 20
en 21 van die Wet nie misdaadskeppende
artikels is nie maar slegs
dien as bewysregtelike hulpmiddels om ‘n oortreding van óf
artikel 4 (b) óf artikel
5 (b) van die Wet te bewys. Die
verdediging steun op die volgende passasie in
S
v Tshali, supra,
te
bl 27
f
–
g
.
Dit lees: ‘At the trial the appellant pleaded guilty to a
charge based in part upon statutory provisions which had been
declared to be unconstitutional and of no force and effect. Such a
charge is incompetent and a conviction based upon such a charge
cannot, even upon a plea of guilty, be sustained.’ Die feite in
Tshali
verskil
natuurlik van die feite wat voor ons dien maar indien Erasmus R
bedoel het dat enige aanklag wat ‘n verwysing na die
ongeldig
verklaarde artikels bevat die aanklag in sy geheel ongeldig maak (wat
ek betwyfel) dan stem ek nie saam nie. Indien die
aanklag gewysig
word om die verwysing na artikels 20 en 21 te skrap, wat te eniger
tyd voor uitspraak gedoen kan word, dan sal
daar geen benadeling vir
die beskuldigdes wees nie en, soos gemeld, wat oorbly is voldoende om
die ten laste gelegde oortredings
daar te stel.’
[6] Having referred to
the definitions of ‘deal’ and ‘sale’ in the
Drugs Act, the learned judge concluded:
‘
Indien
die hoeveelhede mandrax tablette wat in elk van die aanklagte onder
die Wet betrokke is, in ag geneem word noop gesonde verstand
en
dikteer logika dat dit, in die afwesigheid van enige getuienis van
die beskuldigdes, vir die handel en in besonder vir verkoop
besit is.
Sien die passasie in
S
v Mutize
1978
(2) SA 911
(RA) at 913H.’
[7] Counsel for the
applicants, sensibly, did not contest the learned judge’s
conclusion, which, as will appear, was plainly
justified.
[8] According to the
applicants, an application for a special entry was prepared by their
counsel in relation to the invalidity
of the charges in counts 47 and
48. They were however not present when and if it was submitted and
argued. They say merely that
the learned judge converted it into an
application for leave to appeal (which he refused). It is however
unnecessary to enter further
upon this question, as there is nothing
to suggest that the application for a special entry was refused or
that the refusal was
the subject of an application for leave to
appeal. Moreover it is common cause that the present application has
covered all aspects
of the application for a special entry.
[9] In argument before us
the submission of the applicants’ counsel was simple and
limited in its scope:
1. The
unamended charges in respect of counts 47 and 48 containing reference
to the State’s reliance on sections of the Drugs
Act (the
reverse onus provisions) that had been declared unconstitutional, per
se amounted to a nullity. (The sections are summarised
in
Moloi
and Others v Minister for Justice and Constitutional Development and
Others
[2010] ZACC 2
at paras 10 and 11.
There the Constitutional Court expressly left open the effect on the
validity of the proceedings of such an
unamended charge while at the
same time censuring the prosecution for continuing to rely upon
charges containing reference to unconstitutional
provisions.)
2. Inasmuch as the
applicants relied on the defects in the charges in deciding to
withhold their testimony from the trial court
a failure of justice
had resulted and their trial had been unfair.
[10] Counsel
submitted that his first proposition was borne out by the judgment of
Erasmus J in
Tshali
.
In that case the appellant had been charged with one count of dealing
in dagga in contravention of s 5(b) of the Act. The charge
was
defective in substantially the same respects as in the charges in the
present appeal. Before a magistrate the appellant in
Tshali
pleaded guilty to the charge as framed. The Cape court,
on appeal, said:
‘
[11]
There is, however, a more fundamental flaw in the proceedings to
which Mr
Pothier
also
adverted. At the trial the appellant pleaded guilty to a charge based
in part upon statutory provisions which had been declared
to be
unconstitutional and of no force and effect. Such a charge is
incompetent and a conviction based upon such a charge cannot,
even
upon a plea of guilty, be sustained.
[12]
For the foregoing reasons, the conviction of dealing in dagga cannot
stand.’
The learned judge
proceeded to consider whether a conviction of possession was
competent. He said:
‘
[14]
In the present case the appellant was charged
simpliciter
with
dealing; there is no reference to possession. The prosecution
deliberately chose not to charge the appellant in the alternative
with possession. That was an unfortunate choice because it is not now
open to this Court to substitute a conviction of possession
of dagga
in contravention of s 4
(b)
of
the Act.’
[11] That the court
considered the appropriateness of a conviction for possession in para
14 of its judgment and rejected it, not
because the charge as pleaded
to was defective, but because of the failure to charge the appellant
with the alternative of possession,
is prima facie inconsistent with
the statement in para 11 of the judgment that a conviction based upon
a charge containing reference
to unconstitutional provisions ‘cannot,
even upon a plea of guilty, be sustained’. It suggests that, in
para 11, the
court did not intend to convey that such a charge
resulted in nullification of the proceedings which related to it.
[12]
Whatever the court’s intention in
Tshali
,
the legal position is not in doubt.
Section 322
(1) of
the
Criminal Procedure Act 51 of 1977
sets the limits of the powers
of a court on appeal.
[13]
Section 322
of the
Criminal Procedure Act 51 of 1977
provides:
‘
(1)
In the case of an appeal against a conviction of any question of law
reserved, the court of appeal may-
(a)
allow the appeal if it thinks that the judgment of the trial court
should be set aside on the ground of a wrong decision of
any question
of law or that on any ground there was a failure of justice; . . .
Provided
that, notwithstanding that the court of appeal is of opinion that any
point raised might be decided in favour of the accused,
no conviction
or sentence shall be set aside or altered by reason of any
irregularity or defect in the record or proceedings, unless
it
appears to the court of appeal that a failure of justice has in fact
resulted from such irregularity or defect.’
[14] The
test for a failure of justice is clearly established: see
S
v Carter
2007 (2) SA 415
(SCA) and the
authorities there referred to. In short it requires the appellate
court to exclude from consideration all aspects
of the trial that
were affected or influenced by the irregularity and to evaluate only
the evidence that remains unsullied. If
on considering that rump a
conviction would inevitably have followed there has been no failure
of justice; if it would not have
the appellate court may set aside
the proceedings (and usually will).
[15]
Considering
s 322(1)
in the context of the Constitution Van der
Westhuizen J said in
S v Jaipal
2003
(4) SA 581
(CC) at 597B:
‘
The
meaning of the concept of a failure of justice in s 322(1) must
therefore now be understood to raise the question of whether
the
irregularity has led to an unfair trial.’
It is with this dictum in
mind that the established test must be applied.
[16] There is therefore,
within the scope of s 322(1), no room for approaching any
irregularity or defect in the record or proceedings
(including the
charge or indictment) as per se nullifying a conviction in a criminal
trial. The task of a court seized with an
appeal is to reassess the
evidence without the influence of the irregularity or defect in order
to determine whether a conviction
must inevitably have followed. In
applying that test it may be that the irregularity or defect is so
inseparable from the whole
that a fair trial is necessarily excluded.
Thus, if the court cannot conclude that, in the absence of the
irregularity, the accused
would have conducted his defence in the
same fashion, it would be unlikely to conclude that there has been a
fair trial. In that
sense the effect of the irregularity or defect
may be to nullify the conviction (ie the conviction would be ‘fatally
irregular’).
But that will usually only be determined on a
conspectus of the full trial record and not, as seems to be suggested
in
Tshali
, simply by identifying the irregularity and
tipifying it as ‘fundamental’.
[17] In the present
instance the inclusion in the charge sheet of reference to the
unconstitutional provisions did not exercise
an adverse influence on
the conduct of the trial. I say this for the following reasons:
1. The provisions relied
on were procedural and not substantive. They were originally designed
to assist the State to overcome the
difficulty of proving matters
thought to be more usually within the knowledge of an accused person,
such as proximity to unlawful
drugs, control of a vehicle in which
drugs were being transported etc. But even the inclusion of such
references in the charge
sheet did not necessarily mean that the
State became entitled to or would invoke them. In fact neither the
court a quo nor the
prosecution did so in this case. As the court
noted in its judgment at the end of the case the State readily
conceded that it placed
no reliance on the presumptions in ss 20 and
21 of the Act. Counsel, who appeared for the applicants at the trial,
accepted in
his heads of argument that the charge sheet could have
been amended without any prejudice to them, had such an amendment
been sought
at the close of the State case. He further informed us
that it was made clear by the prosecution, during the argument at the
stage
of the application for a discharge, that no reliance would be
placed on the presumptions.
2. Neither of the
applicants has deposed that he was either informed of or understood
the meaning or implications of the reference
to the impugned sections
in the indictment. Nor, save for what appears below, does either of
them explain whether and how he was
or might have been prejudiced by
such references. It is clear that the substantive scope and content
of the charges was not affected
by their inclusion.
3. On their own say-so
both applicants knew that the reference to sections 20 and 21 was
unconstitutional and ineffective against
them before deciding whether
to testify. They also knew that the prosecution did not intend to
rely on them. They were in no way
dissuaded from testifying by
reliance on those provisions or deterred by a perceived difficulty
arising from the discharge of a
reverse onus.
4. They
decided not to testify because of advice received from their counsel
that judicial authority made it probable that they
would be acquitted
whether or not they gave evidence, because the State had failed to
amend the defective charges against them.
That advice was flawed but
reliance on it was not caused by the irregularity, which they knew
posed no threat to them, but because
they decided to exploit the
irregularity to their own advantage. Misplaced reliance on the legal
advice of their counsel given
in the bona fide (albeit mistaken)
pursuit of his professional mandate is not a ground for claiming that
justice has failed (
R v Mathonsi
1958
(2) SA 450
(A) at 455H-456D;
S v Seheri
1964
(1) SA 29
(A) at 35E-F). Where counsel relies (wrongly) on his view
of precedential authority in his own court, as happened here in
relation
to the weight that counsel attached to
S
v Tshali
, the scope for determining that the
trial was as a result, unfair, must necessarily be limited: cf
S
v Halgryn
2002 (2) SACR 211
(SCA) at para 14.
In this regard it seems to me that the language adopted by Erasmus J
was sufficiently loose to engender in the
applicant’s counsel
more optimism in its force than was justified. Nor should it be left
out of account that the version
put by counsel to the defence
witnesses was hardly of such substance as to induce confidence in the
defence case. In this regard
it should be pointed out that neither
applicant offered a statement explaining his plea of not guilty; nor
did either say on oath
in the present application that he would have
testified had it not been for his counsel’s advice or take this
Court into
his confidence as to the content of such evidence as he
was able to proffer.
[18] A short summary of
the evidence adduced against the applicants at the trial is all that
is required to establish the strength
of the State’s case,
independent of the influence of the defective charges.
[19] The State evidence
in respect of count 47 was in brief the following:
(1) On 26 May 2004 Mr
Classen (the erstwhile second appellant) was driving a white Isuzu
bakkie on the national road near Leeu-Gamka
in the direction of Cape
Town. When the vehicle was stopped and examined by a routine traffic
patrol it was found to contain a
false compartment in the chassis in
which were discovered 65 plastic sacks containing more than 100 000
mandrax tablets (metaquolone)
and powder.
(2) The police took
possession of Classen’s cellphone. Shortly thereafter a call
was received on it from a person who claimed
to be the owner of the
bakkie and wanted to know what was happening. The recipient, assuming
the guise of a disinterested bystander,
informed him that the driver
had been taken ill and removed by ambulance. The caller thereupon
offered him R1000 to look after
the vehicle, saying that he would
come from the Cape to fetch it. He thereafter telephoned several
times while en route to ensure
that the vehicle was in order and to
seek directions. Late at night a white Volkswagen golf driven by the
second applicant (and
carrying a passenger) arrived. Inspector
Moolman, who held himself out as the owner of the filling station
where the bakkie was
standing, asked for payment of the R1000 but the
second applicant first wanted to look at the bakkie. Moolman asked
for R500 for
the towing-in of the vehicle. After the second appellant
had inspected the vehicle he paid Moolman R500 and received the keys.
As he drove away in it the second applicant was stopped and arrested.
[20] The state presented
the following case in respect of count 48:
(1) On 17 June 2004 Cape
Couriers at Johannesburg International Airport received a consignment
which on inspection by its representative
appeared to contain drugs.
The consignment was destined for its Cape Town branch. When the
police were summoned they decided to
let the delivery take its normal
course but under surveillance.
(2) On the morning of 21
June 2004 the first applicant driving a Mazda bakkie collected the
boxes containing the consignment from
the Montague Gardens depot of
Cape Couriers. The police followed him to a Caltex garage. There the
first appellant met the second
applicant and another person. The
second applicant left with the Mazda bakkie. In Epping Forest the
boxes were transferred to a
white DAF bus and the second applicant
drove off in the Mazda. The DAF bus was followed by the police to
Elsies River. When the
boxes were opened they held 152 384.6g of
mandrax (metaquolone) tablets and powder.
[21] In regard to both
charges, the inference that the applicants were knowingly involved in
the commercial exploitation of the
mandrax that they transported at
the relevant times was the only reasonable inference in the
circumstances.
[22] Having regard to
what I have said earlier, I am unpersuaded that the irregularity
which was constituted by the unconstitutional
reference to the
reverse onus presumptions in the charges caused the applicants to
refrain from testifying in their own defence.
The evidence of their
guilt was overwhelming and they knew that the State did not intend to
rely on the invalid presumptions. The
inference is unavoidable that
they decided to take a chance on escaping conviction by relying on
the technical irregularity. No
failure of justice or unfairness in
the conduct of the trial resulted from the irregularity.
[23] The applicants’
counsel conceded that the evidence adduced by the State built a prima
facie case that called for an answer
by his clients; when they
remained silent, the onus on the State was discharged. There is
therefore no future for the applicants
in an appeal against the
merits of the conviction.
[24] The applications for
leave to appeal are accordingly refused.
_________________
J A HEHER
JUDGE OF APPEAL
APPEARANCES
1
st
and 2
nd
APPELLANTS: E H de Villiers
Legal Aid Board, Cape
Town
Legal Aid Board,
Bloemfontein
RESPONDENT: D A Greyling
(Ms)
The Director of Public
Prosecutions, Cape Town
The Director of Public
Prosecutions, Bloemfontein
1
The
first and second appellants, Messrs Daniels and Classen, having been
granted leave, allowed their appeals to lapse.