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[2016] ZANCHC 59
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Gogwane v S (CA&R61/2016) [2016] ZANCHC 59 (12 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: CA& R
61/2016
Heard on:
01/08/2016
Delivered
on: 12/08/2016
In
the matter between:
LAWRENCE
GOGWANE
APPELLANT
And
THE
STATE
RESPONDENT
Coram:
Olivier J et SL Erasmus AJ
JUDGMENT ON APPEAL
ERASMUS
AJ
[1]
The appellant, Mr Lawrence Gogwane, appealed against his conviction
and the sentence imposed by Mr CJ Els, the Magistrate of
Daniëlskuil
in the district of Postmasburg.
[2]
The appellant was charged with contravening section 5(b) read with
the provisions of sections 1, 13, 17, 25 and 64 of the Drugs
and Drug
Trafficking Act, 140 of 1992 (‘the Act’). The State
alleged that on or about 4 July 2010 the appellant had
dealt in an
undesirable dependence-producing substance, to wit 346
Methaqualone
(Mandrax)
tablets, a substance listed in Schedule 2, Part III, of the Act. The
annexure to the charge sheet contains an averment
that the State will
rely on the presumptions contained in section 18, 19 and 22 of the
Act.
[3]
The appellant pleaded not guilty and submitted a written plea
explanation indicating the basis of his defence. He denied
that
the bag in which the Mandrax tablets were found belonged to him and
further denied any knowledge of the contents of the bag.
He
averred that the bag belonged to ‘Dan’, a person to whom
the appellant provided a lift and accordingly denied that
the tablets
were under his control. In terms of s 115(2) of the Criminal
Procedure Act, 51 of 1977 (the CPA), he made the
following
admissions:
3.1
That the police found the tablets in his possession;
3.2 That the
tablets were packaged, sent and analysed correctly;
3.3
That the tablets contained methaqualone.
[4]
The State called two witnesses. They corroborated each other in
all material respects and their evidence was accepted
by the court
a
quo
.
The State’s version was that the police had received
information that drugs were to be delivered at the appellant’s
home. The police officials proceeded to the house of the
appellant. On their arrival they found the appellant behind the
steering wheel of a vehicle, in the process of reversing out of the
erf. The police followed the vehicle until it entered
another
erf, situated a short distance away, and parked behind the vehicle.
The appellant attempted to reverse, but could
not do so because the
police had parked behind the vehicle. The appellant alighted
from the vehicle and proceeded in the
direction of the house.
He was prevented from entering the house. The vehicle driven by
the appellant was searched
and the Mandrax tablets, found inside a
plastic bag which had been placed inside another draw string bag,
were seized. The
bag was found on the front passenger seat of
the vehicle, right next to the appellant.
[5]
It was put to the State witnesses that the appellant had been
accompanied by another male (‘Dan’) and a child.
According to the first state witness, who had proceeded to the
vehicle from which the appellant had alighted, the appellant was
alone throughout the period that they had observed him and there was
no other person in the vehicle. According to the second
state
witness, she initially could not see how many people were inside the
vehicle. The appellant was alone though when he alighted
from the
vehicle and there were no other people present at the scene.
The appellant neither provided an explanation on the
scene where the
tablets were found, nor at the police station.
[6]
The appellant testified and called his wife as a defence witness.
He testified that he was accompanied by a child and
Dan at the time
of his arrest. The appellant alighted from the vehicle,
followed by Dan. Dan ran to his house on the
premises where the
appellant had parked. The child had accompanied Dan. The
three police officials on the scene did
not make any attempt to
apprehend Dan. The appellant insisted that he had told the
police that the bag belonged to Dan.
The appellant’s wife
corroborated his version in as far as she had observed that Dan had
entered the appellant’s erf
and that he and the appellant had
left with her sister’s 6-year old child.
[7]
Although raised in his heads of argument, Adv JF van Heerden, on
behalf of the appellant, he did not persist and argue before
us that
the learned Magistrate misdirected himself during the credibility
findings and evaluation of the evidence and in accepting
the evidence
of the State witnesses. It is trite that a court of appeal
should not lightly interfere with a trial court’s
evaluation of
the evidence and that it can do so only where there has been a clear
misdirection in this regard. We are satisfied
that the
Magistrate was correct in accepting the version of the State and
rejecting the appellant’s version.
[8]
It is common cause that the legal representative of the appellant, as
well as the Magistrate, were under the impression that
the
presumption contained in section 21(1)(c) of the Act found
application. It is common cause further that this, on the
side
of the Magistrate, constituted misdirection as the relevant
presumption had been declared to be unconstitutional.
[1]
The relevant section read as follows:
“
If
in the prosecution of any person for an offence referred to-
(c)
in section 13(e) or (f) it is proved that the accused conveyed
any drug, it shall be presumed, until the contrary is
proved,
that the accused dealt in such drug;
”
[9]
Mr Van Heerden submitted that the conviction stands to be set aside
because of misdirection as the appellant’s right to
a fair
trial had been violated because of the Magistrate’s reliance on
the presumption. He referred to the decision
of
MOLOI
AND OTHERS v MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND
OTHERS
[2]
in
support of his argument.
[10]
In the cases referred to by Mr Van Heerden the charge had been found
to be defective in that the presumptions contained in
section 21 of
the Act had been referred to in the charge sheet. The charge
was found to be incompetent and that the accused
had been prejudiced
by the defective charge in the proper conduct of his case and thus
his right to a fair trial had been infringed.
[3]
In paragraph [28] it was stated:
“…
The
residual enquiry is whether, if the respective charge-sheets had been
properly framed to exclude the offending presumptions,
they might
well have elected to mount their defence or response to the charges
differently. In S v Hugo it was held that,
where the State
elects to make representations on the charge-sheet upon which it
relies, the accused is entitled to regard
these as exhaustive and to
prepare his defence in respect of these representations, and no
other. In R v Alexander and Others, quoted
with approval in S v
Pillay, the purpose of the charge-sheet was found to be –
'to
inform the accused in clear and unmistakable language what the charge
is or what the charges are which he has to meet. It must
not
be framed in such a way that an accused person has to guess or
puzzle out by piecing sections of the indictment or portions
of
sections together what the real charge is which the Crown intends to
lay against him.'“
(footnotes
omitted)
[11]
In
S
v DANIELS AND ANOTHER
[4]
,
where
the charge sheet also referred to the presumptions contained in
section 21 of the Act and it was accepted that this had constituted
an irregularity,
Heher
JA stated the test to be applied by a court of appeal as follows:
‘
There
is therefore, within the scope of s 322(1)
[5]
,
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
typifying it as 'fundamental'.
[12]
A court of appeal may therefore only interfere with a conviction
based on a defective charge if an accused had been prejudiced
by such
charge and there had been a failure of justice. The test for
such a failure has been established in
S
v CARTER
[6]
and
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…”
[7]
[13]
The case before us is to be distinguished from the Moloi-case and the
cases referred to therein as the State did not rely on
the provisions
of section 21 of the Act and there is no reference in the charge to
such presumptions. The learned Magistrate
misdirected himself
in relying on the presumption which had been declared
unconstitutional.
[14]
The approach to be applied by a court of appeal where the court
a
quo
had
misdirected itself on the law or the facts is trite. The court
of appeal is then free to come to its own findings and
establish
whether the appellant is actually guilty beyond reasonable doubt.
[8]
[15]
In terms of section 309(9) of the CPA a conviction (or sentence) may
not be set aside because of an irregularity unless the
irregularity
resulted in a failure of justice.
[9]
The appellant is required to show actual prejudice.
[10]
[16]
The factual findings of the court
a
quo
and evaluation of evidence in
casu
are
not affected by the misdirection of the Magistrate. We cannot
conclude that the appellant would have conducted his defence
in any
other manner. His defence was that he had no knowledge of
the Mandrax tablets and his version was correctly
rejected by the
court
a
quo.
[17]
The only issue that remains is whether the evidence warrants the
inference, as the only reasonable inference, that he was guilty
of
dealing in the Mandrax tablets.
[11]
Ms Mabaso, for the respondent, submitted that the only reasonable
inference was that he was dealing in the substance.
We agree.
[18]
The appellant was alone in his vehicle. A substantial number of
Mandrax tablets, to wit 346 tablets, were found in a
bag in the
appellant’s vehicle, right next to him. He had driven
from his own residence to another residence with the
tablets in his
vehicle. It is highly improbable that he, if he had possessed
the tablets for his own use, would have kept
it in his vehicle and
then travel with same to another house. He did not proffer any
explanation and, in court, the appellant
denied knowledge of the
tablets. This version was rejected.
[19]
There is no duty on this court to speculate in favour of the
appellant. We are satisfied that the facts of this case
warrants a conclusion that the appellant was dealing in the Mandrax
tablets and the conviction on a charge of contravening section
5(b),
read with section 13(f) of the Act. This being so, we do not
deem it necessary to deal with the submissions of Mr Van
Heerden
pertaining to a possible conviction on a charge of contravention of
section 4(b) of the Act.
[20]
In respect of the sentence of nine (9) years imprisonment, imposed by
the court
a
quo
,
Mr Van Heerden submitted that the sentence is shockingly
inappropriate and that the learned Magistrate over-emphasized the
seriousness
and prevalence of the offence and misdirected himself in
placing Mandrax in the same category as Cat, Tik, Heroin and
Cocaine.
[21]
The issue in respect of an appeal directed at sentence is whether the
court
a
quo
properly
and reasonably exercised the discretion bestowed on it when imposing
sentence.
[12]
This can entail,
even in the absence of material misdirection, that this court may yet
be justified in interfering with the sentence
when the disparity
between the sentence of the trial court and the sentence which
we would have imposed is such that it
can properly be described as
'shocking', 'startling' or 'disturbingly inappropriate'.
[22]
The appellant was not a first offender and has a previous conviction
for contravening section 5(b) of the Act. The details
of this
offence do not appear from the record. On 12 August 2003 he was
sentenced to five (5) years imprisonment of which
one year was
suspended for four (4) years on certain conditions.
[23] Although the facts
of each case and the personal circumstances of the accused differ, it
can be of assistance to look at other
cases where similar offences
had been committed.
23.1
In the case of
S
v BARTLETTE
[13]
the
appellant was convicted of dealing in and distributing drugs which
included 48 ecstasy tablets, 2 grams of heroin, 9 LSD tablets,
1 full
moon cocaine crystal, 2 half-moon cocaine crystal, 1 quarter cocaine
crystal, 3 grams of cocaine, 7 grams of heroin, 150
ecstasy tablets,
10 grams of heroin and another 10 grams of cocaine. The total value
of all these drugs amounted to R26,000.00.
He had no relevant
previous convictions. The sentence of twelve (12) years
imprisonment was confirmed on appeal.
23.2
In the case of
AUGUST
& ANOTHER v S
[14]
the
appellant were convicted of dealing in 299 tablets of Mandrax
(Methaqualon) valued at R12,000.00. The appeal was directed at
the
conviction only. The first appellant was sentenced to three (3)
years imprisonment, two (2) years of which were to run
concurrently
with the sentence he was serving on the date of sentencing. The
second appellant was sentenced to twelve (12)
months imprisonment.
23.3
In
GAMEDE
AND ANOTHER v
S
[15]
the
appellants were convicted in the regional court Durban for dealing in
556 kilograms of methaquolone (commonly known as mandrax),
the value
of which were estimated at R50 million. A mandrax manufacturing
operation was in progress on both farms where the appellants
were
arrested.
They
were each sentenced to a term of 20 years imprisonment.
The
sentence in the case of the first appellant was found to be
unjustifiably excessive, given the fact that the evidence establishes
no greater role in the operation than to have assisted in attempting
to dispose of the evidence. The second appellant was directly
involved with the manufacturing process and was a first offender.
The appeal against the sentence was upheld and the sentence
of
the first appellant was substituted with a sentence of five (5) years
and the sentence of the second appellant was set aside
and
substituted with a sentence of fifteen (15) years imprisonment.
[16]
23.4
In the case of
S
v MASIKE
[17]
the
appellant was convicted of dealing in 184 tablets and 15.69 grams of
fragments and powder and sentenced to eight (8) years imprisonment
of
which two (2) years were conditionally suspended for a period of five
years. He had one previous conviction for dealing
in dagga.
The
appeal succeeded and the sentence was replaced with one of four (4)
years imprisonment of which two (2) years were conditionally
suspended for five (5) years.
23.5
In the case of
GAVIN
FRANS AND ANOTHER v S
[18]
the
appellant was convicted of dealing in 61kg of dagga. He was sentenced
to five (5) years imprisonment of which two (2) years
were
conditionally suspended for five (5) years. The appeal succeeded and
the sentence substituted with one of three
(3) years
imprisonment of which twenty (20) months were conditionally suspended
for five (5) years.
[24]
Having considered the facts of this case and taking into account the
sentences that had been imposed in other matters of similar
and more
serious cases, we would have imposed a sentence of six (6) years
imprisonment as court of first instance. There
is striking
disparity between that and the sentence of nine (9) years imposed by
the court
a
quo.
[25]
In the result, the following order is made:
1.
The appeal against the conviction is dismissed.
2.
The appeal on sentence succeeds and the sentence of nine (9) years
imprisonment is set aside and substituted
with the following:
“
The
accused is sentenced to six (6) years imprisonment.”
3.
In terms of
section 282
of the
Criminal Procedure Act, 51 of 1977
the
sentence is antedated to 06 January 2015.
_____________________
SL
ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I
concur
_______________________
CJ
OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the Applicants:
Adv.
J.F. van Heerden (oio Andre Potgieter Attorneys)
For
the Respondent:
Adv.
J. Mabaso (oio DPP)
[1]
S
v Bhulwana;
S
v Gwadiso
[1995] ZACC 11
;
1995
(2) SACR 748
(CC)
;
S
v Mjezu
1996
(2) SACR 594 (NC)
;
Constitutional Court Order
published under Government Notice No. R.585 in Government Gazette
212666 of 15 June 2000
[2]
2010
(2) SACR 78 (CC)
[3]
Moloi
supra
at
para [15] and [26] – [28]
[4]
2012
(2) SACR 459
(SCA) at para [16]
[5]
This
reference is to section 322 of the CPA
[6]
2007
(2) SACR 415 (SCA)
;
[7]
DANIELS
supra
at
para [14]
[8]
R
v Tusini & another
1953(4)
SA 406 (A) at 412C-F
[9]
S
v Seboko
2009(2)
SACR 573 (NC);
S
v Keyser
2012(2)
SACR 437 (SCA)
[10]
S
v Lubbe
1981(2)
SA 854 (C) at 860 A- B and F-G;
[11]
S
v Mathe
1998(2)
SACR 225 (O) at 228B – 229G
[12]
S
v Kgosimore
1999(2)
SACR 238 (SCA) at para [10];
S
v Malgas
2001(1)
SACR 469 at para [12]
[13]
(CA&R
92/07)
[2008] ZANCHC 5
(15 February 2008)
[14]
(01/08)
[2011] ZANCHC 14
(26 August 2011)
[15]
(161/2010)
[2010] ZASCA 122
(30 September 2010)
[16]
(161/2010)
[2010] ZASCA 122
(30 September 2010)
[17]
1992(1)
SACR 667 (A)
[18]
An
u
nreported
decision of the Northern Cape Division, Case no. CA & 201/2014