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[2017] ZAKZPHC 25
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Xabadiya and Another v S (AR222/2009) [2017] ZAKZPHC 25 (25 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE
NO: AR222/2009
In
the matter between:
MBUYSWA
XABADIYA
First
Appellant
MBONGENI
MATYALENI
Second
Appellant
and
THE
STATE
Respondent
ORDERS
[1]
The appellants’ appeal against their conviction and sentence is
dismissed.
[2]
The conviction and sentences imposed on the appellants by the trial
court is confirmed.
JUDGMENT
HENRIQUES
J [CHETTY S AJ CONCURRING]
Introduction
[1]
The appellants were charged with dealing in dagga in contravention of
s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992
(the Drugs
Act). In the alternative, the appellants were charged with possession
of 387.2 kilograms of dagga in contravention of
s 4(b) of the Drugs
Act.
[2]
On 18 June 2008, the appellants were convicted on the main count and
sentenced to seven years’ direct imprisonment. Leave
to appeal
against both the conviction and sentences imposed were granted on 12
December 2008.
[3]
It would appear that the hearing of the appeal was delayed as the
orders in the court file reflect that the appeal record had
to be
reconstructed on several occasions. In addition, the appellants
changed attorneys of record.
Issues
in the appeal
[4]
The issues in this appeal are the following:
[4.1] Whether the
respondent discharged the onus of proving the guilt of the appellants
beyond reasonable doubt, in that the respondent
relied on the
evidence of a single witness, police reservist Leon David Manuel;
[4.2] Whether the
sentence imposed is disturbingly or shockingly inappropriate
warranting the appeal court interfering with the
sentences imposed.
[5]
The respondent relied on the evidence of Leon David Manuel and
Jacobus Prinsloo. Manuel testified that on 11 February 2006,
a road
block was in force on the national road in the Nolangeni area leading
towards Kokstad. This was a joint effort between the
South African
Police Services (SAPS) and the South African National Defense Force
(SANDF). At approximately 22h30, a Toyota bakkie
approached the road
block and the driver drove through the road block without stopping
when instructed to do so. The SANDF members
opened fire and stopped
the vehicle by shooting at the tyres of the vehicle. The occupants of
the vehicle fled the vehicle when
it came to a stop. The first and
second appellants, who were the occupants of the vehicle, were
subsequently arrested and escorted
back to their vehicle at the road
block.
[6]
During a search of their vehicle, dagga was discovered in bags at the
back of the bakkie. At the time the appellants indicated
that they
were under the impression that they were transporting second hand
goods and were unaware that it was dagga. They were
then taken to the
community service centre. During the course of cross-examination,
Manuel conceded that the appellants were assaulted
by the SANDF
members at the road block and he intervened to stop the assault. With
regard to what transpired at the road block
and the arrest of the
appellants, Manuel was a single witness.
[7]
Jacobus Prinsloo, of the Organised Crime Unit in Port Shepstone,
testified that he received a call from the Kokstad Police on
the
morning of 13 February 2006, and on his arrival at the Kokstad Police
Station, the first and second appellants were identified
as having
been arrested in relation to the dagga that was seized from the
bakkie. He proceeded to the strong room where the dagga
was being
stored and took samples from each of the bags in the presence of the
appellants. These samples were subsequently sent
to the forensic
science laboratory for testing and tested positive for dagga. That
was the respondent’s case.
[8]
An application in terms of s 174 of the Criminal Procedure Act 51 of
1977 (CPA) was bought but was subsequently refused and
the appellants
testified. The first appellant testified that he was telephoned by
the second appellant concerning a delivery which
they needed to make.
The second appellant had obtained the goods and arranged for payment
for the transport of such goods. He agreed
with the second appellant
that one of his vehicles could be utilized to transport the goods.
When he did not hear from the second
appellant after a long period of
time had passed, he called the second appellant who informed him that
there was a problem with
the immobilizer of the vehicle. The first
appellant then telephoned Andile Ncgwane at about 19h00 to
retrieve a spare key
and immobilizer for the bakkie. He then handed
the spare key and immobilizer to the second appellant, but decided to
make the delivery
on his own as the second appellant was still
experiencing difficulty in starting the vehicle.
[9]
The first appellant testified that he did not know what items they
were transporting and was under the impression that they
were
transporting second hand goods. When he saw the road block he
stopped. At the road block he was asked if he was in possession
of
pork, to which he responded ‘no’ and he was then told to
proceed. As he drove away he heard shouting and someone
opened the
canopy of the bakkie. He stopped the bakkie and whilst talking to one
of the SANDF members, he was asked to alight from
the bakkie and lie
on the ground where he was then assaulted. He was informed that he
was transporting dagga in the bakkie. He
however was not shown the
dagga as he was being assaulted at the time.
[10]
The second appellant corroborated the first appellant’s version
of events when he testified. He testified that a consignment
of
second hand goods was loaded onto the bakkie. He was not present at
the time that the goods were being loaded and did not see
what was
loaded into the back of the bakkie. The difference in the two
appellants’ versions relates to what transpired at
the road
block. The second appellant indicated that the first appellant had
threatened to lay charges against members of the SANDF.
Conviction
[11]
In his judgment, the magistrate rejected the versions of the first
and second appellants as not being reasonably possibly true.
The
magistrate accepted the evidence of the single State witness, Leon
David Manuel who he found to be truthful and reliable.
[1]
[12]
In
S v Shackell
,
[2]
Brand AJA (as he then was) held:
‘
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. 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.’
[13]
In
Mlendile v S
,
[3]
Kubushi AJ held at paragraph 9:
‘
In
terms of section 208 of the CPA an accused may be convicted on the
evidence of a single competent witness. In
S
v Sauls & Others
1981 (3) SA 172
(A) at 180H it was noted that the absence of the word
"credible"
(in
section 208) is of no significance; the single witness must still be
credible. There is no rule of thumb test or formula to
apply when it
comes to the consideration of the credibility of a single witness.
The question is what weight, if any, must be given
to the evidence of
a single witness.’
[14]
In paragraph 10 of the judgment Kubushi AJ points out:
‘
The
correct approach in determining the guilt of an accused is as pointed
out in
S v
Chabalala
2003
(1) SACR 134
(SCA) 139i-j to 140a, to weigh up all the elements which
points towards the guilt of the accused against all that are
indicative
of innocence, taking proper account of inherent strengths
and weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused's guilt.’
[15]
It is not in dispute that on the day in question, the vehicle which
was been driven by the first appellant, in which the second
appellant
was a passenger, was stopped at a road block, and in the vehicle a
huge consignment of cannabis (dagga) weighing 387.2
kilograms in
total with an estimated street value of R387 200,
[4]
was found.
[16]
If one has regard to the huge quantity of cannabis found, which
according to the evidence was contained in 12 white wooven
bags, one
floral suitcase and two carrier bags,
[5]
there can be no doubt that the cannabis was intended for sale to the
public and could never have been for the personal use of the
appellants.
[17]
The issue is whether the appellants' version that they were unaware
that they were conveying cannabis and were under the impression
that
they were conveying second hand goods, is, having regard to the
totality of the evidence, reasonably possibly true.
[18]
I have given careful consideration to the evidence of the State
witness, Leon David Manuel and I am satisfied that he was a
good,
reliable and credible witness and that the learned magistrate was
correct in accepting his evidence in preference to the
evidence given
by the appellants.
[19]
The learned magistrate was alive to the fact that he was dealing with
the evidence of a single State witness and carefully
considered the
evidence of the State witness. As such I can find no reason to
disturb the learned magistrate’s finding that
Manuel was indeed
a credible witness whose evidence can be safely relied upon to
convict both appellants of the main count of dealing
in cannabis
(dagga).
[20]
The appellants' version is inherently improbable and does not have a
ring of truth about it. It is highly improbable that both
appellants
were totally oblivious to the fact that they were conveying such a
huge consignment of cannabis. The fact that they
failed to stop at
the roadblock and attempted to escape lends corroboration to the fact
that they were aware that they were conveying
cannabis and hence they
desired to escape rather than being arrested.
[21]
It is common cause that the tyres of the vehicle were shot by members
of the South African Defence Force who were also manning
the
roadblock. In cross-examination, it was put to Manuel that the first
appellant will say that the tyres of the vehicle were
shot by the
soldiers when the first appellant threatened to charge them for
assault. In other words, the vehicle’s tyres
were shot for no
apparent reason.
[6]
[22]
The first appellant, in particular under cross-examination,
contradicted the version put to the State witness referred to in
paragraph 21 above and said that when the vehicle stopped, two
soldiers approached the vehicle and one of them shot the tyres.
He
then became confused and thereafter he was assaulted.
[23]
The first appellant's explanation for this patent contradiction is
that his legal representative may have made a mistake in
so far as
the version that was put to the State witness regarding the
circumstances under which the tyres were shot was concerned.
[7]
[24]
The second appellant in his evidence disavowed the version given by
the first appellant referred to in paragraph 22 above and
maintained
that the tyres were shot because the first appellant threatened to
charge the soldiers with assault, and in fact said
that the version
given by the first appellant in his evidence is not true.
[8]
[25]
If one has regard to the aforegoing there is no doubt that both
appellants were untrustworthy and unreliable witnesses and
that the
learned magistrate correctly rejected their version as not being
reasonably possibly true. I see no reason to disturb
these findings.
[26]
I am therefore satisfied that the State has discharged the onus of
proving the guilt of both the appellants beyond a reasonable
doubt
and that they were correctly convicted of the main count of dealing
in cannabis.
Sentence
[27]
It is trite that the imposition of sentence falls fully within the
discretion of the sentencing court and the court of appeal
would only
interfere with the sentence in the event of an irregularity,
misdirection, or where the sentence imposed is strikingly
or
disturbingly inappropriate.
[9]
[28]
The appellants are first offenders and no previous convictions were
proved. Insofar as the first appellant is concerned, he
was
self-employed, married with six children, his wife suffers from
asthma and he is diabetic.
[29]
Insofar as the second appellant, he is the nephew of the first
appellant. His mother had recently passed away, he earns income
by
driving the vehicle of the first appellant and he is single with two
children.
[30]
In arriving at the sentence imposed on the appellants of seven years’
imprisonment, the learned magistrate took into
account their personal
circumstances, the seriousness of the offence, the prevalence of the
offence and what he refers to as ‘the
scourge of drug abuse
among the schoolchildren’.
[10]
[31]
The learned magistrate was also conscious of the fact that a court
will not likely or easily send a first offender to prison;
however,
in view of the gravity of the offence and the huge consignment of
cannabis found, the learned magistrate concluded that
a term of
imprisonment was the only appropriate sentence.
[32]
In
S v Sithole
,
[11]
the appellant was arrested at a roadblock and found in possession 160
kilograms of cannabis. The appellant was convicted of dealing
in
cannabis and sentenced to seven years’ imprisonment which was
reduced to five years’ imprisonment by the Supreme
Court of
Appeal.
[33]
In
Legoa v S
,
[12]
the appellant was arrested whilst driving a vehicle belonging to his
mother in which 261.3 kilograms of cannabis was found. The
appellant
was a first offender with no previous conviction and was sentenced to
15 years’ imprisonment which was reduced
on appeal by the
Supreme Court of Appeal to one of five years’ imprisonment.
[34]
In this matter the quantity of cannabis considerably exceeds the
quantity of cannabis found in possession of the appellants
in the
cases referred to in paragraphs 32 and 33 above. In both the cases
the appellants were first offenders and notwithstanding
same, were
sentenced to direct terms of imprisonment without the option of
paying a fine.
[35]
I am satisfied that the learned magistrate correctly applied his mind
to all the relevant factors in this matter and that the
sentence of
seven years’ of imprisonment is an appropriate sentence and I
see no reason to interfere with it.
Conclusion
In
the circumstances I propose that the following Orders should be made:
i) The appellants' appeal against
their conviction and sentence is dismissed.
ii) The conviction and sentence
imposed on the appellants by the trial court is confirmed.
___________________
HENRIQUES
J
I
AGREE
___________________
CHETTY
S AJ
Case
Information
Date
of argument : 13 and 26 September 2012
Date
judgment reserved : 25 September 2012
Date
judgment delivered : 25 May 2017
Appearances
Counsel
for Appellants : Mr K L Singh
Instructed
by : Justice Centre, Pietermaritzburg
Counsel
for State : Adv B Manyathi
Instructed
by : Director of Public Prosecutions,
Pietermaritzburg
[1]
Appeal Record page 119 at lines 20 – 25.
[2]
2001 (4) SA 1
(SCA) para 30.
[3]
[2011] ZAFSHC 49
(10 March 2011).
[4]
Appeal Record page 33 line 25 to page 34 line 1.
[5]
Appeal Record page 32 lines 10 – 15.
[6]
Appeal Record page 22 lines 20 - 25 to page 23 lines 1 – 5.
[7]
Appeal Record page 63 lines 15 – 25.
[8]
Appeal Record page 92 lines 10 – 20.
[9]
R v Mapumulo & others
1920 AD 56
at 57;
S v Rabie
1975 (4) SA 855
(A) at 857D-E;
S
v Shaik & others
[2008] ZACC 7
;
2008
(5) SA 354
(CC) para 66.
[10]
Appeal Record page 130 line 3.
[11]
[2004] ZASCA 77
(16 September 2004.
[12]
[2002] 4 All SA 373
(SCA).