S v Muholi (450/05) [2006] ZASCA 38; [2006] SCA 44 (RSA) (28 March 2006)

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[2006] ZASCA 38
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S v Muholi (450/05) [2006] ZASCA 38; [2006] SCA 44 (RSA) (28 March 2006)

THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
CASE
NO: 450/05
Not
reportable
In
the matter between
ZANELE
BRUNETTE MUHOLI Appellant
and
THE
STATE Respondent
Coram
: MTHIYANE, HEHER, LEWIS, JJA
Heard:
10 March 2006
Delivered:
29 March 2006
Summary:
For a conviction of drug dealing in
terms of
s 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
,
where drugs have been sent to an accused, who has never acquired
possession of the drug in question, it must be proved that the
accused had knowledge that drugs have been sent to him or her. Where
there is more than one reasonable inference to be drawn from
circumstantial evidence as to the knowledge of the accused, the
contravention of
s 5(b)
of the Act is not proved beyond a reasonable
doubt.
Neutral citation: This case may be cited as
Muholi v State
[2006] SCA 44 (RSA).
JUDGMENT
LEWIS JA
[1] The appellant, Ms Z B Muholi, was charged in a magistrate’s
court with possession of, or dealing in, heroin in contravention
of
ss 4(b)
and
5
(b) of the
Drugs and Drug Trafficking Act 140 of 1992
.
She was convicted on the charge of drug dealing and sentenced to 12
years’ imprisonment. She appealed to the Johannesburg High
Court
against both conviction and sentence. The appeal was upheld only in
so far as sentence was concerned. The High Court (per Schwartzman
J,
Masipa J concurring) confirmed the conviction but reduced the
sentence to a period of imprisonment for eight years. The further
appeal against the conviction lies before this court with its leave.
[2] The
issue on appeal is whether the evidence led at the trial supports a
conviction for drug dealing. ‘Deal in’ is defined
in the Act as
including ‘performing any act in connection with the transhipment,
importation, cultivation, collection, manufacture,
supply,
prescription, administration, sale, transmission or exportation of
the drug’.
[3] The
conclusion of both the trial court and the court below was that
circumstantial evidence led to only one inference, and that
was that
Muholi was part of a chain in a drug dealing transaction. Many of the
facts are not in dispute. These are, in summary, as
follows.
[4] Captain
van der Merwe of the South African Police Service received a fax on
12 November 1988 informing him that a parcel of drugs
was to be
routed via London to a Ms Z Muholi, whose address was stated on the
parcel to be PX Kaserne, Room 6, Admin Room’. PX
Kaserne is the
address of a parcel handling business which trades as ‘Fast
Forward’. No evidence was led as to who had sent the
fax or where
the parcel had come from: at the outset of the trial it was stated
that the parcel had been sent from Pakistan via London,
but witnesses
who could testify to these allegations were not called by the State.
There is no evidence therefore as to the importation
of drugs by
Muholi.
[5] On 16
November Van der Merwe was advised by Inspector Koen, a member of the
police drug unit, stationed at Johannesburg International
Airport,
that the parcel had arrived. Van der Merwe collected the parcel that
day and took it to his office in Roodepoort. There
he took
photographs of the parcel, opened it, and found a baby bath and baby
clothes. He also opened a letter addressed to Muholi
that was in the
parcel, and that purported to come from the Salvation Army. The
letter congratulated Muholi on the birth of her baby
and thanked her
for past support.
[6] Van
der Merwe noticed a slit in the side of the parcel: hidden in the
side were packets of a substance that was subsequently proved
to be
heroin weighing 494.3 grams, with a market (street) value exceeding
R200 000. He put all the items back in the parcel, sealed
it and
instructed two other officers, Inspectors Brand and Engelbrecht, to
make what he termed a ‘controlled delivery’ to Muholi.
On the
morning of 18 November, Brand and Engelbrecht thus dressed in the
uniforms of a parcel delivery company, Fedex, and drove
in a Fedex
van to Muholi’s work address. Van der Merwe followed in an unmarked
police vehicle.
[7[ Muholi
worked in the human resources department of Fast Forward, but
assisted in the mornings in taking delivery of items sent
to the
business. Brand and Engelbrecht arrived at the office and asked for
Muholi. She was not in the front office but another employee
said she
would call her. Muholi had been about to set off for a meeting with
union members, and had gone to the toilet beforehand.
She was told,
when there, that there was a parcel delivery for her. She thus went
to the front office where she saw the two police
officers dressed in
Fedex uniforms. She was asked to sign for the parcel, which she did.
[8] The
testimony of Brand and Engelbrecht differed from that of Muholi as to
her reaction when she came into the office. Engelbrecht
testified
that she said ‘oh my parcel’. Brand’s evidence was that she
said ‘oh my packet’. The difference between the words
‘parcel’
and ‘packet’ is in my view of no significance, given that both
officers are Afrikaans speaking. Muholi testified
that she had said
nothing of the kind, but had simply signed for the parcel, as
requested. Much was made by counsel for the State
about the testimony
of Muholi in this regard. I shall return to it when evaluating the
evidence for it is one of the facts (albeit
contested) from which the
trial court and the court below drew the inference that Muholi was
guilty of drug dealing.
[9] The
parcel was not ever handed to Muholi. As soon as she had signed for
it Brand and Engelbrecht identified themselves as police
officers.
They took her outside to where Van der Merwe was waiting, and handed
the parcel and the form that she had signed to him.
Engelbrecht told
Van der Merwe that Muholi had expected the parcel. It transpired that
this was because she had shown no surprise,
in his view, when
receiving it, and had said “oh my parcel’.
She had
also not asked why she was being taken outside by two police
officers. This too was regarded as a fact from which the inference
of
knowledge of the contents of the parcel, and thus guilt, could be
drawn. Van der Merwe then arrested her, and according to him
apprised
her of her rights including the right to remain silent. She was told
that her arrest was related to drug dealing. He asked
her if she
wanted to see anyone before being taken away, and she asked to see
her employer, Mr Fernwood. She was taken to his office.
Van der Merwe
told Fernwood that Muholi was under arrest and that he was
investigating a case of drug dealing.
[10] Muholi
was then taken by the police officers to her flat in Jeppe. The
parcel was opened in her presence. It was also photographed.
Muholi’s
flat was searched. She was then taken to Van der Merwe’s office
where 10 plastic bags of heroin were extracted from
the side of the
box that contained the baby bath and clothes. Photographs were taken
of this process too. By the time the appeal
was heard by the court
below all of the photographs and other exhibits had been lost. The
court below accepted that the evidence
led at the trial was
sufficient to confirm the existence of what was contained in the
parcel, and counsel for Muholi did not submit
that we should
disregard it. The evidence as to the contents of the parcel was in
any event never contested by Muholi.
[11] The
letter sent by the Salvation Army to Muholi, and found in the parcel,
stated, as I have said, that it was sent to her as
a gift on the
arrival of her baby. It thanked her for her co-operation and support.
Muholi told the police officers that she had
never had a baby and was
never likely to have one; that she knew nothing of the sender and had
never had anything to do with the
Salvation Army. Engelbecht
testified that when the parcel had been opened Muholi had looked
surprised, shaking her head as though
she had no knowledge of the
contents.
[12] This
is the essence of the evidence on which Muholi was convicted of drug
dealing. The charge of being in possession of drugs
was rightly
dismissed since Muholi had never been in possession of the parcel
containing the heroin. But both the trial court and
the court below
considered that the only reasonable inference to be drawn from the
cumulative evidence was that Muholi was part of
a chain dealing with
drugs.
[13] On
granting leave to appeal, this court asked that the heads of argument
address the question whether there was admissible evidence
to prove
that Muholi had dealt in heroin, having regard to the definition of
‘deal in’ set out above. Counsel for Muholi argued
that since she
had never performed any act in connection with the importation or
collection of heroin she could not be convicted
of dealing in the
substance. He conceded, however, that even if she had not herself
actively arranged the importation of, or collected,
the heroin she
could be guilty of drug dealing if she knew that the heroin was being
sent to her for collection or transmission.
Whether she was dealing
in drugs thus depends on her knowledge that she was going to receive
heroin in the parcel. Counsel for the
State argued that if she had
knowledge the necessary intention to deal in drugs would be proved.
In my view, had Muholi signed for
the parcel knowing that it
contained heroin she would have met the definition of dealing in
drugs set out in the Act. The simple
question, then, is whether the
evidence led at the trial proved beyond reasonable doubt that Muholi
knew that the parcel contained
heroin or any other drug.
[14] The
trial court and the court below relied on three factors in concluding
that Muholi was guilty. Before turning to these it
is as well to set
out the test for drawing inferences from circumstantial evidence set
out in
R v Blom
1939 AD 188
at 202-203:
‘
1 The inference sought to be drawn must be consistent
with all the proved facts. If it is not, the inference cannot be
drawn.
2
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.’
This two-stage test has been followed consistently and frequently
since.
[15] What
then is the evidence that the trial court and the court below relied
on in order to draw the inference that Muholi knew
that the parcel
addressed to her contained heroin? First, Muholi expressed no
surprise when she met the police officers, dressed
as Fedex delivery
men, in the office, and then said “oh my parcel’. Muholi denied
having said anything of the kind. She was disbelieved.
But even if
she had said it, this in itself is perfectly explicable: she had been
summoned by a co-worker from the bathroom to sign
for a parcel
addressed to her. Her words are easily related then to the fact that
she had been told there was a parcel for which
she must sign. Her
lie, if such it was, does not in itself lead to the inference that
she knew what was in the parcel.
[16] Second,
Muholi did not ask why she was not given the parcel for which she had
signed; did not ask why she was being taken outside;
and did not ask
why she was being arrested. The inference argued for by the State is
that she knew she had been caught for drug dealing.
There are, in my
view, other inferences to be drawn. She testified that she was taken
by surprise and was in a state of shock. She
thus did not realise
what was happening. This is perfectly plausible. She was placed in an
extraordinary situation – asked to sign
for a parcel by Fedex
employees who immediately identified themselves, after she had
signed, as police officers and asked to accompany
them outside
without explanation. The inference that she was shocked and confused,
and therefore did not question their instructions,
is just as
reasonable as the one that she knew what was in the parcel. Moreover,
before being told that she was to be arrested for
an offence relating
to drugs she was warned of the right to remain silent by Van der
Merwe. No inference can be drawn from her silence
in the
circumstances.
[17] Third,
the trial court found that it was highly improbable that a parcel
containing heroin with a value in excess of R200 000
would be sent to
a person who was not part of the drug dealing chain: it would not be
sent to a stranger. The court below accepted
that this was an
improbability and found that the only reasonable inference to be
drawn was that she was part of a chain dealing
in heroin. There is
another plausible inference to be drawn, however. Just as a baby bath
and clothes had been put in the parcel
as a decoy, so too could the
name and work address of Muholi have been used as a decoy. Her name
and address may well have been given
to the sender of the parcel by
the intended recipient to disguise his or her identity. A co-worker
at Fast Forward, expecting the
parcel, might have planned to take
control of it as soon as Muholi had signed for it. This is just as
probable as is the inference
that Muholi was the intended recipient
and knew that the parcel contained heroin.
[18] It
may be that the accumulation of facts from which the inference of
guilt was drawn makes it probable that Muholi was the intended
recipient, and knew that the parcel contained heroin. But each of the
facts relied upon in order to draw the inference of guilt leads
to
another reasonable inference. Viewing the circumstantial evidence
cumulatively cannot lead to the conclusion that the probabilities
add
up to proof beyond reasonable doubt. Accordingly, there is not proof
beyond reasonable doubt that she performed any act in connection
with
the collection of heroin. Muholi is thus not guilty of dealing in
drugs as defined in the Act.
[19] The
appeal is upheld. The order of the court below is replaced with the
following:
‘The
conviction is set aside.’
C H Lewis
Judge of
Appeal
Concur:
Mthiyane
JA
Heher JA