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[2021] ZAGPPHC 244
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Officila v S (A346/2019) [2021] ZAGPPHC 244 (4 May 2021)
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HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO:
A346/2019
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:NO
REVISED
DATE:
4 May 2021
In the matter between:
SAMSON
OFFICILA
Appellant
and
THE
STATE
Respondent
JUDGMENT
This appeal was
decided in terms of the provisions of
section 19
of the
Superior
Courts
Act 10 of 2013
and
otherwise disposed of in the terms of the Directives of the Judge
President of this Division. The judgment and order are accordingly
published and distributed electronically.
DAVIS, J
[1]
Introduction
1.1
This is the judgment in an appeal against conviction and sentence
which came before us on 25 January
2021. The appeal had previously
served before this court on 11 August 2020. On that date Makhoba J
and Maakane AJ removed the matter
from the roll and sent it back to
the Magistrates Court with instructions to attach “...
the
whole charge and all its annexures and to make sure
that the
transcripts are
available”.
By
the
time
the
matter
came
before us, we had hard copies of the heads of argument filed on
behalf of the parties, but no record. Only the previous court
order
and the appellant’s heads of argument had been uploaded on the
Caselines electronic platform. At a virtual hearing
conducted in
terms of the Practice Directives of the Judge President of this
court, Adv Pistorius appeared for
the
appellant and Adv Kotze for the State. They assured us that the
record was in existence and would be found and uploaded. In
the event
that this
could
be done, they were in agreement that we may proceed to deal with this
matter without the hearing of further oral argument
as contemplated
in
Section 19
of the
Superior Courts Act, 10 of 2013
. The record was
subsequently uploaded and considered by us, which led to this
judgment.
[2]
The proceedings in the court a quo
2.1
The appellant was charged in the
Regional Court for the Gauteng Division on the
following
charges:
Count 1:
Contravention of section 4(1)(iv) of the Firearms Control Act, Act 60
of 2000: possession
of prohibited firearm with serial number or
identification mark altered to wit a 7.65 semi-automatic
pistol.
Count 2:
Possession of ammunition in contravention of sections 90 and 121 of
the
Firearms
Control Act, Act 60
of
2000; to wit
3
x 7.65 cartridges.
Count 3:
Contravention of section 4(a) and/or (b) read with section 1 of the
Drug Trafficking
Act, Act 140 of 1992 possession of drugs to wit
being in possession of 10 amphetamine Tablets
Count 4:
Contravention of the Drug and Trafficking Act, by being in possession
of dependent
causing substances to wit 14 Metrodine Oxydermine
tablets.
Count 5:
Contravention of dangerous dependent substance provisions, in
contravention
of
Drug and Drug Trafficking Act, No 140 of 1992; being in possession of
13
“
MADA”
tablets.
Count 6:
Contravention of
section 4
of the
Firearms Control Act, 60 of 2000
by
being in possession of a firearm without a licence.
2.2
The
appellant
pleaded
not
guilty
and
a
trial
ensued.
2.3
On 6 September 2017 the appellant was
convicted on all six charges and sentenced as follows:
Counts 1, 2 and 6 were
treated as one for purposes of sentence and the appellant
was sentenced
to 36 months
imprisonment;
Counts 3, 4 and 5 were
treated as one for purposes of sentence and the appellant was
sentenced
to
undergo 24 months imprisonment.
2.4
The court a quo refused leave to
appeal but the requisite leave to appeal the convictions and
sentences was granted by this court.
Principally at issue, both in
the court a quo and now on appeal, was the chain of custody in
respect of the evidence forming the
subject matter of the charges
(also referred to as the “chain of evidence”).
[3]
Summary of facts
3.1
The facts relied on by the prosecution
were reasonably simple: a member
of
the Community Policing Forum (CPF) in Centurion had alerted the
police of “smash-and-grab” activities near a certain
intersection. Two police officers were dispatched
to
the scene, a Warrant Officer Lundall
and
a sergeant Kekana.
Upon their
arrival, they noticed people fleeing through the bushes. They each
gave chase, in different directions. Warrant Officer
Lundall came
across the appellant and upon seeing the appellant being armed fired
a warning shot and a second shot, which hit the
appellant in the leg.
Upon arresting the appellant, Warrant Officer Lundall retrieved a
firearm with three live rounds as well
as a “milo container”
with plastic bags inside, containing a specified number of blue,
white and pink pills. He also
found a plastic bag with pieces of
green paper and two small pieces of a spark plug.
3.2
As the items above formed the basis of
the possessory charges on which the appellant was convicted, the
identification of the items
and the chain of custody of the items
became crucial.
3.3
According to his recollection, Warrant
Officer Lundall personally handed
in
the items at the SAP 13 store but could not remember which officer
was
the receiving officer.
3.4
From the moment of the handing in of
the evidence, the chain of custody
became
a but disjunctive:
Warrant Officer Lundall’s
crew member, Sergeant (then constable) Kekana corroborates the
finding of a Milo box in the appellant’s
back pocket, but her
recollection of the contents differs: she recalls 10 mandrax tablets
(how she determined the nature or composition
of the tablets was
neither explained nor explored in evidence), 14 small white pills and
11 blue and white pills. She saw two other
“smashed”
pills and the ten green pieces of paper but made no mention of four
other white pills nor of four pink pills
mentioned by Warrant officer
Lundall. The two smashed pills may or may not have been one of the
two other sets of pills referred
to by Warrant Officer Lundall, but
he, in tum didn’t refer to any “smashed” pills.
3.5
While it is so that Warrant Officer
Molelwa, who examined exhibits and determined the substances of pills
at the forensics laboratory
indeed received and examined a sachet of
14 tablets and a sachet of 11 capsules (and determined them to
contain dependence producing
drugs) as well as a sachet of 10 green
pieces of
paper
(containing
no drugs), she also
received a sachet containing 2 tablets, 4 tablets, one tablet and
three tablets without further descriptions
and without detail
corresponding to the evidence of the other two abovementioned
witnesses. She also received another sachet containing
two capsules,
a sachet containing a pair of scissors and a cardboard box. The
latter two items were not explained. The exhibits
she received were
in a sealed bag with serial number […]. This number differs
from that on the evidence bag testified about
by other witnesses.
3.6
These
other
witnesses
are
Sergeant Mogotu
and
Constable
Phasa.
Sergeant
Mogotu
was the SAP 13 clerk at the Lyttelton police station at the time. She
received exhibits in the form of drugs and a firearm
on the day in
question,
not from
Warrant
Officer
Lundall,
but from Constable
Mbowene, who was the charge officer commander on 3 September 2013. On
5 September 2013, Sergeant Mogotu gave
a sealed bag with serial
number […] to Constable Phasa to take to forensics.
3.7
It was never explained or clarified by
the prosecution whether the bag referred to by Constable Phasa was
the bag containing the
drugs or the firearm or both.
3.8
The last prosecution witness was
Captain Nthandi. He received a 7.65 caliber semi-automatic pistol and
three cartridges of the same
caliber. He fired two of those and
performed ballistics tests. He also was able to retrieve the serial
number of the fire-arm,
which had previously been obliterated. In
similar fashion as Warrant Officer Malekwa, he resealed the exhibits
after having performed
his examination but, contrary to her evidence,
he gave no evidence of the bag number in which he had received the
exhibits.
[4]
Applicable
principles
4.1
In
S
v Matshaba
2016 (2) SACR
651
(NWM) the court held as follows at
[14] “
The
importance of proving the chain of evidence is to indicate the
absence of alteration or substitution of evidence. If no admissions
are made by the defence, the State bears the onus to prove the chain
of evidence. The State must establish the name of each person
who
handles
the
evidence, the date on which it was handled and the duration. Failure
to establish the chain
of evidence affects the integrity of such evidence and thus renders
it inadmissible”.
4.2
In order to save time-consuming
leading of evidence of the chain of evidence or to provide proof of
the chain of custody thereof
when it is not
really
in dispute, the prosecution may make use of the procedure provided in
section 212 of the Criminal Procedure Act 51 of 1997
by producing
affidavits indicating such chain. This would constitute prima facie
evidence which may become conclusive
if not attacked or controverted
.
In
S
v Sithole
2013 (1) SACR 298
(GP) a full bench of this Division considered the sufficiency of
objection to such prima facie evidence in order to place the State
under the obligation to prove the chain by way of
viva
voce
evidence. In the
present case, the prosecution had from the start chosen not to go the
section 212 route, but to lead evidence .
The appellant had from the
start not only questioned the chain of custody, but had, despite
objections to his evidence in this
regard by the prosecution, voiced
his concerns: he and Warrant Officer Lundall had a “history”.
This much was conceded
by Warrant Officer Lundall who alleged that he
had previously
arrested the
appellant on drug charges, but this allegation was neither proven nor
substantiated. The two prior incidents of contact
between the two had
nothing to do with drugs. The first related to suspected stolen
property and the second incident is even more
astounding. The
appellant testified that at a certain place which he had described,
he had left his motor vehicle parked and when
he returned, he found
that it had been broken into and ransacked. He received information
that this had been done by Warrant Officer
Lundall. The appellant
proceeded to the police station to lay a charge, but the police
refused to register or investigate it. When
confronted with this
version in cross-examination, Warrant Officer Lundall conceded that
he
“
recalled” the
incident.
4.3
Added to this, is the fact that
another suspect was also chased, apprehended and later released on
the same day and at the same
spot where the appellant was shot and
arrested. There are differing versions as to why the appellant ran
away
before
he
was
shot
but
one
must
also
consider
the
fact
that Warrant Officer Lundall
maintained that he was given the description of the clothing that the
suspect wore, which matched that
of the appellant, while both
Sergeant Kekana, his crew partner, and the other CPF witness
called, maintained that no description
had been given. In these circumstances,
I
find
that
the
challenge
to
the
chain
of
evidence,
had
sufficiently
been
raised and
the
State
bore the onus as referred
to
above.
4.4
In
Sithole
(above) reference was also made to
Hiemstra: Criminal Procedure
at 24-31 where the following was said
with reference to section
212
(8) of the Criminal Procedure Act: “
the
so-called ‘chain evidence’ explains what happened to the
exhibit from the time it was disputed to the
time
the report was received. It is important that the chain be properly
proved
…”.
4.5
The court a quo did not properly
consider the various and numerous discrepancies and even
contradictions in the State’s case
regarding the chain of
custody over the exhibits and the actual chain of evidence. It
materially
misdirected
itself in this regard.
4.6
The result is, not only that there is
serious doubt as to the evidence itself, particularly regarding the
drugs charges, but that
some doubt is cast over the veracity of the
finding of the fire-arm, which Warrant Officer Lundall had
incorrectly described in
his evidence. I say incorrectly, meaning
that the caliber he described differed from the remainder of the
evidence. Whether this
was an error or a slip of a tongue was never
cleared up. The firearm in question was not found on the person of
the appellant,
but on the ground “in his vicinity”.
4.7
The sum total of it all is that I find
that the State has not acquitted itself of
the
onus that it bore and that the appellant’s exculpatory version
may reasonably possibly be true. See:
S
v Radebe
1991 (2) SACR 166
(T),
S v
Trainor
2003
(1) SACR 35
(SCA) and contra
S
v Rohde
[2019] 1 All SA
740
(WCC).
It
follows that the appeal should succeed.
[5]
Order:
The
appeal is upheld and the convictions and sentences are set aside.
N DAVIS
Judge of the High Court
Gauteng Division,
Pretoria
I
agree
L
BALOYI-MERE
Acting Judge of the High
Court
Gauteng
Division,
Pretoria
Date of Hearing: 25
January and 5 February 2021
Judgment
delivered: 4 May 2021
APPEARANCES:
For the
Appellant:
Adv P F Pistorius SC
Attorney
for
the
Appellant:
For
the Respondent:
Adv J Kotze
Attorney
for
Respondent:
The State Attorneys,Pretoria