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[2019] ZAKZPHC 31
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Frank v S (AR100/18) [2019] ZAKZPHC 31 (7 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR100/18
In
the matter between:
BRENTON
FRANK
APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
Poyo
Dlwati
et
Bezuidenhout
JJ
Heard
:
15
March 2019
Delivered
:
7
June 2019
ORDER
On
Appeal
from
the Regional Court, sitting in Pietermaritzburg (sitting as the court
a
quo):
(a)
The
conviction and sentence of the appellant is set aside on the ground
that the provisions of
section 113
of the
Criminal Procedure Act 51
of 1977
ought to have been applied;
(b)
the
matter is remitted back to the Regional Court for the court to act in
terms of
section 113
of the Act.
JUDGMENT
Poyo
Dlwati J:
[1]
Consequent upon a plea of guilty, the appellant was convicted of two
counts of dealing
in cocaine in the Regional Court, sitting in
Pietermaritzburg, on 15 October 2015. On 29 November 2017, he was
sentenced to 6 years
imprisonment. Leave to appeal against both
conviction and sentence was refused by the court
a
quo.
The
appellant successfully petitioned this court for leave to appeal
against both his conviction and sentence.
[2]
The
facts upon which the appellant was convicted were briefly as follows:
in his statement made in terms of s 112(2) of the Criminal
Procedure
Act 51 of 1977 (the Act) the appellant averred that on 17 July 2014
he unlawfully dealt with a dangerous dependence producing
substance
weighing 2.38 grams. He had been contacted by a buyer only known to
him as Joe who later turned out to be a police agent.
The appellant
met Joe at Monty's Garage in Ortman Road in Pietermaritzburg. He
handed Joe five packets of drugs and received from
him R1 800 which
was the price that had been agreed on for the drugs. He admitted that
by doing so he was in contravention of
s 5(b)
of the
Drugs and Drug
Trafficking Act 140 of 1992
, read with
s 1
,
13
(f),
17
(e),
19
and
64
of the same Act. The second count was also similar to the first
except that it happened on 12 August 2014 and on this occasion
eleven
plastic sachets were handed to Joe in exchange for R3 000.
[3]
Upon
questioning by the learned magistrate on whether the appellant
understood the contents of the statement, his response was in
the
affirmative. He also confirmed that he agreed with everything that
was in the statement and that it was made by him voluntarily.
The
State accepted the facts in the appellant's statement as being in
accordance with the State's case. The learned magistrate
returned a
verdict of guilty based mainly on the statement made by the
appellant. I will revert later in the judgment with the
details of
the appellant's s 112(2) statement. There were enormous delays prior
to the sentencing of the appellant. On one of those
occasions, and
after the appellant had changed his legal representatives, and this
was during the sentencing proceedings, there
was a considerable delay
in securing the attendance of a doctor in order to deal with the
appellant's health in mitigation of sentence.
[4]
On
9 November 2017, Mr Chetty, being the appellant's new legal
representative, appeared on his behalf and applied for an adjournment
which was vehemently opposed by the State. This was understandably so
as the appellant had been convicted as long ago as 15 October
2015.
During that application, Mr Chetty submitted that he needed the
adjournment to properly consider the appellant's matter as
he, for
instance, during the short time that he had, had perused the plea and
had problems with it as it did not say that it was
cocaine that was
in those plastic sachets and that there was no confirmation that it
had been tested. In his view, the appellant
had not admitted one of
the elements of the offence and the court ought to have entered a
plea of not guilty. The matter was then
adjourned on that occasion to
27 November 2017 to allow Mr Chetty to familiarise himself with the
matter and be able to deal with
it effectively in the future.
[5]
On
27 November 2017, the matter was again adjourned to 29 November 2017
as the doctor was not available. On 29 November 2017, Mr
Barnard,
on
behalf of the appellant, made an application that a plea of not
guilty be entered, as there was a special defence available to
the
appellant as provided for in s 252A of the Act. Mr
Barnard
submitted
that as the appellant had not stated in his plea explanation that the
transaction did not go beyond the boundaries that
were referred to in
subsection (3) of s 252A, the court ought to have satisfied itself
that the special defence did not apply in
this matter. As this was
not done a plea of not guilty ought to have been entered. This
application was refused by the learned
magistrate. The appellant was
then sentenced and hence this appeal.
[6]
In
argument before this court, Mr
Barnard
submitted
that as the charges against the appellant were as a result of an
entrapment engineered by the police, it ought to have
been evident on
the record that the provisions of s 252A had been complied with,
namely that the court ought to have been satisfied
that the basis of
the admissibility of such evidence had been established beyond a
reasonable doubt. As this had been brought to
the attention of the
learned magistrate, so went the submission, he ought to have entered
a plea of not guilty as he had no discretion
in the matter. Mr
Barnard
further
argued that the provisions of s 113(1) of the Act were peremptory in
this regard and ought to have been complied with. In
support of his
submission, he made reference to various case law. It was therefore
argued that the matter ought to be remitted
back to the Regional
Court for compliance with the provisions of the Act.
[7]
Section
113(1) of the Act provides that
'If
the court at any stage of the proceedings under section 112 (I)
(a)
or
(b)
or 112 (2) and before sentence is passed is in
doubt whether the accused is in law guilty of the offence to which he
or she has
pleaded guilty or if it is alleged or appears to the court
that the accused does not admit an allegation in the charge or that
the accused has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge or if the court is
of the
opinion for any other reason that the accused's plea of guilty should
not stand, the court shall record a plea of not guilty
and require
the prosecutor to proceed with the prosecution: Provided that any
allegation, other than an allegation referred to
above, admitted by
the accused up to the stage at which the court records a plea of not
guilty, shall stand as proof in any court
of such allegation.'
[8]
Section
252A(l) of the Act on the other hand provides that
'Any
law enforcement officer, official of the State or any other person
authorised thereto for such purpose (hereinafter referred
to in this
section as an official or his or her agent) may make use of a trap or
engage in an undercover operation in order to
detect, investigate or
uncover the commission of an offence, or to prevent the commission of
any offence, and the evidence so obtained
shall be admissible if that
conduct does not go beyond providing an opportunity to commit an
offence: Provided that where the conduct
goes beyond providing an
opportunity to commit an offence a court may admit evidence so
obtained subject to subsection (3).'
Subsection
(3) provides that the court may refuse to allow evidence of an
entrapment if it is of the view that the trap went beyond
providing
an opportunity to commit such an offence.
[9]
During
the trial, the appellant pleaded guilty to the charges proffered
against him. He was legally represented throughout those
proceedings.
When asked by the learned magistrate whether he understood the
contents of the statement he agreed. He further advised
the court
that he agreed to all the contents of the statement and confirmed its
correctness and truthfulness of the statement.
Furthermore, in his
evidence during mitigation of sentence, the appellant conceded that
he admitted in his plea that during the
police traps he was found
selling small quantities of cocaine. He further explained that he was
sorry for having cocaine, hence
he pleaded guilty.
[10]
Perhaps
it is apposite at this stage to refer to his s 112(2) statement
tendered during the trial. It read as follows:
'I
the undersigned Brenton Frank, do hereby state as follows:
1.
I
make this statement freely and voluntary, and confirm that I have
taken independent legal advice on this matter.
2.
I
make this statement voluntarily and have in no way been induced to
make this statement.
3.
I
am aware that I have the right to remain silent, and I have the
option to plead not guilty.
4.
I
am aware that I have been charged with two counts of dealing in a
dependence producing substance, in terms of count I and count
3 of
the current charges contained in the charge sheet.
5.
I
hereby plead guilty to count I in that on or about 17th July 2014, at
or near Monty's Garage, Pietermaritzburg, I did unlawfully
deal in a
dangerous dependence producing substance to wit 2.38 grams, contained
in 5 plastic sachets.
6.
The
facts of the offence are as follows:
6.1
I
was contacted by the buyer known to me as Joe.
6.2
I
then met the buyer, who I now know was a police agent known to me as
Joe.
6.3
I
met him at Monty's Garage, Ortman Road, Pietermaritzburg.
6.4
I
then handed him the 5 packets and received from him RI 800, being the
agreed price for the drugs.
7.
By
doing so I admit having been in contravention of section 5(b) of Act
140 of 1992, read with section 1, 13(f), 17(e), 19 and 64,
of the
same Act.
8.
I
admit and confirm that at all material times, I acted unlawfully and
knew that I was committing the criminal offence of dealing
in a
dependence producing substance [and it was found to be cocaine]
[1]
analysed and confirmed to be cocaine with full knowledge of my
unlawful actions.
9.
I
also plead guilty on count 3'.
[2]
The
plea for count 3 is similar to the plea made in respect of count 1
save for the dates and the amount of drugs and money.
[11]
Whilst
it was raised for the first time after almost a year after the
appellant was convicted that a plea of not guilty ought to
have been
entered as he had not admitted to all the elements of the offence, I
disagree. On closer examination of the appellant's
statement in terms
of s 112(2), it was premised by the admission and acknowledgment that
he had taken independent legal advice
on the matter. This was from
the private counsel of his choice and one must assume that the
appellant had the necessary confidence
in him. This would have a laid
any fears that the advice given to him might not have been up to
standard or anything of the sort.
His statement was clear that he was
contacted by Joe, who at the time of his plea, he had known was a
police agent.
[12]
It
would have been clear to him and his counsel at that stage that the
evidence sought to be tendered was from a police trap. All
or any
defence would have been available to him at that stage, but perhaps
the evidence was overwhelming, hence a plea of guilty.
As this was a
plea of guilty, and after questioning of the appellant, the learned
magistrate was satisfied that the evidence or
the plea tendered
proved the appellant's guilt beyond reasonable doubt. Unlike in S
v
Kotze,
[3]
the
admissibility of the evidence did not need to be established by the
State, as it was never an issue. In
Kotze,
for
instance, the evidence produced that the police agent Terblanche had
established a close and friendly relationship with the
appellant,
Kotze. This friendship which extended to more than a year was the
source of the entrapment. The appellant, on four different
occasions,
14 July 2001, 7 September 2001, 14 December 2001 and 10 February 2002
sold (purchased) unpolished diamonds in contravention
of s 20 of the
Diamonds Act 46 of 1986.
[13]
A
full trial was held in the Bellville Regional Court. During the
course of the trial the admissibility of the evidence of the trap
was
put at issue and a trial with in trial was held which ruled that
evidence as admissible. It was lamented in the judgment that
the
magistrate failed to request Kotze at the time to furnish grounds on
which he challenged the admissibility of the evidence,
as required in
s 252A(6) of the Act. In paragraph 20 thereto it was held that the
burden of proof to show that the evidence is
admissible rests on the
prosecution and this burden must be discharged on a balance of
probabilities. Later this was changed to
proof beyond reasonable
doubt in line with the constitutional presumption of innocence and
the constitutional protection of the
right to silence. The defence of
a trap therefore was never raised by the appellant in this matter
prior to his conviction as he
had pleaded guilty.
[14]
In
my reading of the appellant's statement in terms of s 112(2) of the
Act I can see no basis for the submission made that the conduct
of
Joe went further than providing an opportunity to commit the offence.
This was a submission and not evidence before the court
a
quo.
In
my view, this was an afterthought on the part of the new legal
representative of the appellant and with a view to delay the
sentencing procedure.
[15]
Whilst
it could be so that the defence of a trap is valid if those involved
in the trap went beyond providing an opportunity to
commit the
offence, in Kotze it was established that various attempts were made
to trap Kotze, something which does not feature
in this matter.
Terblanche had also established a close friendship relationship with
Kotze and this could have been construed as
exploiting that
friendship. I am therefore satisfied that in this case, the
provisions of s 252A were satisfied and the magistrate
correctly in
my view convicted the appellant.
[16]
However,
having said all the above, Mr
Barnard
submitted
that even though the issue of the admissibility of the trap was at
issue, namely whether the trap went beyond providing
an opportunity,
was not evidence before the court
a
quo,
the
allegation itself was enough to satisfy the requirements required in
terms of s 113(1) of the Act. He argued that as the allegation
was
made prior to the sentencing of the appellant the learned magistrate
had no choice but ought to have entered a plea of not
guilty. In this
regard he referred us to
Mokonotho
& others v Reynolds NO & another
[4]
and
Naidoo
v De Freitas
[5]
as
authorities for his propositions.
[17]
In
Mokonotho
above,
the court held that a mere allegation sufficed for the purposes of s
113 (1). This was brought about by the changes in s
113 which seemed
to have intended to remove the requirement of a reasonable doubt and
to replace it with a lighter test.
[6]
The same approach was adopted in
Naidoo
referred
to above.
[7]
As the Magistrate's Court is a creature of statute, it was therefore
not open to the learned magistrate to decide that the appellant's
defence was reasonable or what was alleged was true or not as that
was irrelevant at that stage. The provisions of s 113 are also
peremptory. All that suffices was that there was an allegation that
the appellant did not admit all the elements of the offences.
In such
circumstances, the learned magistrate ought to record a plea of not
guilty and require the prosecutor to proceed with the
trial. We are
therefore constrained by the peremptory provisions of s 113(1).
Perhaps the provisions of this section ought to be
reconsidered by
the lawmakers as it can have the unintended consequences of delaying
the finalisation of criminal matters which
might not be in the
interests of justice and at times detrimental to an accused's right
to a fair and speedy trial.
Order
[18]
Accordingly,
I make the following order:
(a)
the
conviction and sentence of the appellant is set aside on the ground
that the provisions of s 113 ought to have been applied;
(b)
the
matter is remitted back to the Regional Court for the court to act in
terms of s 113.
POYO
DLWATI J
I
agree
BEZUIDENHOUT
J
APPEARANCES
Date
of Hearing
:
15
March 2019
Date
of Judgment
:
7 June
2019
Counsel
for Appellant
:
Mr
Barnard
Instructed
by
: Chetty,
Asmall & Maharaj Attorneys
Counsel
Respondent
:
Ms
Dyasi
Instructed
by
:
Director of Public Prosecutions
[1]
This was handwritten and initialled into the s 112 (2) plea
statement.
[2]
Pages 176 - 177 of the Record.
[3]
S v Kotze
2010 (1) SACR 100
(SCA) para20 at 111c-g.
[4]
Mokonotho & others v Reynolds NO & another
2009 (1)
SACR 311
(T) paras 20 and 21.
[5]
Naidoo & another v De Freitas & another
2013 (1) SACR
284
(KZP) para 8.
[6]
Mokonotho& others v Reynolds NO & another
2009 (1)
SACR 311
(T) para 20.
[7]
Naidoo & another v De Freitas & another
2013 (I) SACR
284 (KZP) para 8.