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[2012] ZAECBHC 9
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Skapu v S (C A & R 8/12) [2012] ZAECBHC 9 (17 October 2012)
IN THE EASTERN CAPE
HIGH COURT
BHISHO
CASE NO. C
A & R 8/12
NOT REPORTABLE
In the matter between:
JACKSON
SKAPU ;
Appellant
and
THE
STATE;
Respondent
APPEAL JUDGMENT
HARTLE J:
1.
The appellant was convicted by the regional
court, Mdantsane, of dealing in dagga in contravention of section
5(b) of the Drugs
and Drug Trafficking Act, No. 140 of 1992 (“the
Act”) and sentenced to five years’ imprisonment.
2.
He appeals against both conviction and
sentence.
3.
On conviction the grounds of appeal are in
essence that the trial court erred in accepting the state’s
evidence and rejecting
the appellant’s explanation that he was
unaware of the presence of dagga found in his motor vehicle upon his
arrest.
4.
The charge was that on 19 July 2010, and at
a Sasol garage in Mdantsane, he unlawfully dealt in an undesirable
dependence producing
substance
to wit
“
four half bags
(of
dagga)
weighing 98.75kg”,
alternatively that he possessed it.
5.
He pleaded not guilty to the main and the
alternative counts. He claimed that the dagga found in the back
of his vehicle by
the police did not belong to him, but to a friend
who had borrowed his vehicle. He had no knowledge thereof and denied
that he
was dealing with it.
6.
Apart from the formal evidence concerning
the analysis of substance samples, the state relied on the evidence
of two experienced
police officers. Warrant Officer
Mbebo
testified that on the day in question he received a tip off that a
dagga carrying vehicle would be filling up with petrol at the
Sasol
garage
en route
to
Dimbaza. He expected a grey canopied Toyota Legend 40 bakkie
with registration letters and numbers FKX 033EC. He
elicited
the assistance of his colleagues and waited near the garage for the
vehicle. They parked near the robots approximately
100 metres
away. They were three officers in two vehicles, but he and
Warrant Officer
Xolisile Hlulani
were together in one vehicle. At approximately 7pm they
observed the anticipated vehicle moving into the garage and
immediately
driving off again without stopping for fuel. The
vehicle drove in the direction of Fort Jackson. They followed
it -
he and
Hlulani
in an unmarked vehicle bearing a blue lamp and siren which they
activated, and pulled the vehicle off at a nearby T-junction. The
vehicle turned out to be driven by the appellant who was alone at the
time.
7.
Mbebo
showed
the appellant his appointment certificate, told him the reason for
stopping him and asked for permission to search the vehicle.
The appellant got out and when
Mbebo
asked him to open the canopy he said that they should “
negotiate
”
or speak. His rights had already been explained to him and he
was again reminded of his right to remain silent.
He was
handcuffed and, when the unlocked canopy was opened, the witness
discovered four half hessian bags of dagga and another
plastic bag
not quite full. He was struck by the smell of the odour of the
grass which had been recently cut and knew it
to be dagga. The
appellant was arrested. He was not asked for any explanation,
neither did he give any. He also had
a passport and money totalling
R6 810.00 in the vehicle together with Absa bank slips which gave the
impression that he had just
withdrawn the cash. The dagga was
weighed the following day in the appellant’s presence and its
value estimated by
Mbebo
to be in the sum of R98 000.00. The latter took samples
from the bags which were sent for analysis, later positively
found to
be
cannabis
.
8.
Hlulani,
who
also testified, corroborated
Mbebo
as to the happenings of that night, the only difference being that he
personally did not observe the approach of the appellant’s
vehicle when it entered the garage. He only saw it upon its
exit when it was pointed out to him by his colleague.
9.
The appellant on the other hand testified
that he had lent his bakkie to a friend,
Bongani
Naidoo
, who had failed to return it to
him as agreed. On 19 July 2010 he was in Queenstown where he
lives when the friend called
to say he should come and collect his
vehicle at the garage which he directed him to. He took a taxi
to King William’s
Town and another from there to Mdantsane
where he waited a while for
Bongani
to turn up. The latter ultimately arrived in two vehicles. It
was already dark. He demanded his keys from him and he responded
in
an angry manner that he’d left them in the ignition. He
found his vehicle’s motor running and left immediately.
He hadn’t gone far when he was stopped by armed persons who he
suspected to be “
tsotsis
”.
Only later did he realise from the blue lamp flashing that these were
police officers, whereupon he opened the door.
He claims that
he was pulled from the vehicle and assaulted. The dagga was
then discovered in the back of the vehicle which
he saw for the first
time when it was pointed out to him. He surmises that it was
Bongani
who had set him up by phoning the police and leading him to be
arrested. The police did not want to hear his innocent
explanation
involving
Bongani
and again assaulted him.
10.
The state witnesses made a favourable
impression on the trial court. The magistrate found that there
were no improbabilities
in their evidence and that they corroborated
each other. Most critically
Mbebo
was emphatic that the appellant’s vehicle did not stop at the
garage and that nobody alighted from it. This was corroborated
by
Hlulani.
The
court thus rejected the appellant’s version that he had just
taken repossession of his motor vehicle under the circumstances
testified to by him. In the magistrate’s view there
was no room for finding that
Bongani
was on the scene or that the appellant’s vehicle had just
before been returned to him at the garage.
11.
The appellant relies heavily on the
contention that the trial court erred in finding that the state
witnesses’ corroborated
each other in material respects
especially around the issue of whether the appellant’s vehicle
stopped or not at the garage,
since
Hlulani
had not seen it entering but only leaving the garage. This
aspect was critical to the appellant’s version that he had
unwittingly taken repossession of his motor vehicle stashed with
dagga.
12.
In my view however the appellant’s
reliance on this supposed misdirection of the magistrate is
misplaced.
Mbebo
testified that the appellant’s vehicle drove into the garage,
did not fill with petrol but “
it
just went through and got out
”.
He confirmed that he did not see anyone alighting from the vehicle or
the car being filled with petrol. At
the time he made his
observations he was standing near the robot and although it was dark,
there was light at the garage.
As a result he could see
clearly His focus was moreover pertinently on the vehicle
at all times, so he said, as he
did not want anything to distract or
confuse him.
13.
Hlulani’s
testimony
relevant to this aspect is recorded as follows in the transcript:
‘
Can
you tell us what happened there on that day which brought you here
today? --- Warrant office Mbebo had the information.
COURT
:
Yes. --- That there would
be a bakkie from Mdantsane to Dimbaza.
PROSECUTOR
:
Proceed sir. --- We were
told that it was FKX033EC, a long base.
Yes,
sir. --- Warrant officer told us that this bakkie would fill petrol
at Sasol Garage. We waited for it.
Proceed.
--- He did not fill petrol, (he)
[1]
stopped it near the old police station – Fort Jackson police
station.
Proceed.
--- We were in two cars.
Yes,
sir. --- Warrant officer Mbebo alighted to the accused.
Proceed
sir. --- He took out an appointment certificate, showed it to him,
introducing ourselves that we are police and told him
why we were
stopping him.’
14.
Evidently there was a misunderstanding
during cross examination between the appellant’s legal
representative and
Hlulani
in
distinguishing between the police vehicle and the appellant’s.
In this regard the transcript reveals the following:
‘
How
long did the car stand at the petrol station when you were watching
this vehicle? --- I didn’t calculate the time, I wouldn’t
know how long it stood there.
[2]
So
the bakkie did stand at the garage?
[3]
--- It was shown to me by warrant officer at the time he was getting
out of the garage.
So
you didn’t see the bakkie entering the garage. --- No.
So you don’t know
if an exchange was done, if someone got out and then the accused got
in? --- No one arrived there.
How
far were you standing with Warrant officer Mbebo, what was the
distance from the garage? --- Not too far.
So
you could see clearly what was going on at the garge? --- Very much.
So
if you could see what was going on, how come you didn’t see the
exchange being done with regard to the person getting out
of and the
owner getting into the bakkie? – No one alighted from the car.
But
you say the car was stationary there. --- Ours?
[4]
No,
the accused’s vehicle. --- It got in and got out.
But
you just stated that it was stationary for a while. --- It got
into the garage and then it got out.’
15.
Evident from the exchange above is the
witness
Hlulani’s
confirmation that although he did not see the appellant’s
bakkie entering the garage, there was no lapse of time for the
appellant’s version to have even the slightest possibility of
being reasonably possibly true.
Hlulani
twice confirms in the passage above that the vehicle entered, albeit
he did not see it at that point, and left instantaneously.
Further no other person arrived there and no one alighted from the
motor vehicle.
16.
In the result the appellant’s
reliance on
Hlulani’s
lack of observation of the vehicle entering does not create doubt as
to the guilt of the appellant as contended for and there is
no basis
to support the so-called material misdirection attributed to the
magistrate in accepting the state’s testimony in
this regard.
This seems to me to be one of those instances where it can be said
that the quality and weight of the state’s
case is so
persuasive that the trial court was correctly compelled to eliminate
the possibility that the version proffered by the
appellant that he
was an unwitting carrier of the dagga might be reasonably possibly
true.
17.
Although
not foreshadowed in the notice of application for leave to appeal, in
the appellant’s initial heads of arguments
[5]
it was submitted that the state had failed to prove beyond reasonable
doubt that he dealt in dagga and that he should, at most,
have been
convicted of possession of dagga. This was not an argument Mr
Schuring
on
behalf of the appellant had much confidence in, but it was a concern
raised
mero
motu
by the court.
18.
The magistrate dealt with this aspect very
fleetingly in his judgment as follows:
‘
The
only conclusion that I can come to on the evidence placed before me,
is that the accused intended or possessed the dagga for
the purpose
of dealing with it. 98.75kg is just too much to possess for own
personal use. The only conclusion that
I can come to on the
evidence is that he possessed it for the purposes to deal with it.
I therefore
CONVICT
the accused on the main count, as charged.’
19.
“
Deal in”
is
defined in the Act as follows:
‘ “
deal
in”
, in relation to a drug,
includes performing any act in connection with the transhipment,
importation, cultivation, collection,
manufacture, supply,
prescription, administration, sale, transmission or exportation of
the drug;’
20.
Section 21(1)(a)(i) of the Act provides
that:
‘
(1)
If in the prosecution of any person for an offence referred to-
(a)
in section 13(f) it is proved that the
accused -
(i)
was found in possession of dagga exceeding
115 grams.
(ii)
…
(iii)
…
it shall be presumed,
until the contrary is proved, that the accused dealt with such dagga
or substance.’
21.
Section 13(f) of the Act refers in turn to
a contravention of section 5(b), which is a charge of dealing in any
dangerous or undesirable
dependence-producing substance respectively.
22.
Notwithstanding
what still appears in the text of the Act, in
S
v Bhulwana, S v Gwadiso
[6]
the Constitutional Court with effect from the date of its judgment
[7]
declared the provisions of section 21(1)(a)(i) to be inconsistent
with the right entrenched in section 25(3)(c) of the Interim
Constitution, invalid and of no force and effect. The section
25(3)(c) right referred to in the Interim Constitution is set
out in
virtually the same words in section 35(3)(h) of the 1996
Constitution.
[8]
23.
This
notwithstanding, where the inference that an accused dealt with dagga
is justified on the proved facts according to the well
known
guidelines stated in
R
v Blom
[9]
,
a conviction on this basis can be sustained.
Lombard
J endorsed such an approach in
S
v Mathe
[10]
with particular reference to a
dictum
in
S
v Bhulwana supra
to this effect:
‘
Wat
in omstandighede soos die onderhawige nie uit die oog moet verloor
nie, is dat ten einde aan handeldryf in dagga skuldig bevind
te kan
word, daar nie van die Staat vereis word om te alle tye bo redelike
twyfel te bewys dat daar inderdaad handel gedryf is
soos deur die Wet
vereis nie. Die feit dat sekere vermoedens hieromtrent weggeval
het, beteken nie dat basiese regsbeginsels
en gesonde verstand ook in
die slag gebly het nie.
Waar ‘n person in
besit van ‘n groot hoeveelheid dagga gevind word en daar word
geen redelike aanvaarbare verduideliking
vir sodanige besit deur hom
of haar verskaf nie kan die afleiding redelikerwys gemaak word dat so
‘n person daarin handel
gedryf het soos deur die Wet omskryf.
‘
If
an accused is found to have been in possession of a large quantity of
dagga, it might, depending on all the circumstances and
in the
absence of an explanation giving rise to a reasonable doubt, be
sufficient circumstantial evidence of dealing and a justification
for
the imposition of a higher penalty.’
S v
Bhulwana; S v Gwadiso
(
supra
op 396G-H).
‘
The
large quantity of dagga which he had in his possession, coupled with
his demonstrably false denial of possession and the absence
of any
plausible alternative suggestion from him as to why it was in his
possession, fully justify the inference that he was engaged
in
dealing in dagga within the meaning of the relevant statute.
Indeed, he conceded himself in cross-examination that anyone
possessing so large a quantity of dagga would obviously intend to
sell it. The fact that the magistrate relied upon the
presumption in convicting the appellant is immaterial to the result.
The evidence proved beyond reasonable doubt that the
appellant was in
possession of this large quantity of dagga, far more than could
reasonably have been intended for his own use,
and that his denial
that he was in possession of it was false. Even without resort
to the statutory presumption, the inference
that he intended to deal
in it was the only reasonable inference which could have been drawn
in the circumstances.’
per
Marais R (soos hy toe was) in
S
v Sixaxeni
1994 (2) SASV 451 (K) at 455
g–j
.
’
24.
Applying these principles to the facts the
court concluded that the inference was inescapable that the appellant
in that matter
was dealing in the 131kg of dagga, in the manner
defined in the Act.
25.
The question in
casu
therefore is whether dealing could correctly be inferred from the
proved facts.
26.
However tempting it is to conclude, as the
trial court did, that the quantity of the dagga was far too great to
possess for his
own personal use, I am not satisfied that the
inference that the appellant was necessarily engaged in dealing with
the dagga is
the only one to be properly drawn in the circumstances.
27.
Although there is some indication that the
magistrate applied inferential reasoning he leaned too readily in my
view to the conclusion
which he did based on the vast quantity of
dagga found without reference to any positive proved facts from which
the inference
could be made. As it is, the fact of the
appellant’s possession of the dagga was a conclusion drawn,
properly in my
view, from all the circumstances and the manner in
which the appellant conducted himself at the time of his arrest.
The further
difficulty is that, on the state’s version, the
accused was not asked for an explanation at all and the cash found in
his
possession was evidently withdrawn from the bank as supported by
the Absa bank slips found. The possibility remains too that
the
appellant merely transported the dagga as a courier. This
therefore leaves open other reasonable inferences which cannot
categorically be excluded from the facts.
28.
In the result the appellant ought to be
given the benefit of the doubt that he necessarily was engaged in
dealing with the dagga
as defined in the Act.
29.
In the premises it appears apposite to set
aside the conviction of dealing and to substitute it with a
conviction of possession
of dagga.
30.
The next issue for consideration is what is
an appropriate sentence to be imposed. Even in respect of a
contravention of section
4(b) of the Act the possible penalties are
extremely severe. Section 17(d) invites the imposition of such
fine as the court
may deem fit to impose, or imprisonment for a
period not exceeding fifteen years, or to both such fine and such
imprisonment.
31.
The appellant is in his sixties, unmarried
and supports eight children, the youngest of whom is not yet school
going. The
children’s mother is unemployed. He is a
welder by profession, conducting business under the auspices of a
registered
company.
32.
He has two relevant hefty previous
convictions for dealing in dagga committed on 15 December 2003 and 18
July 2007 respectively,
neither of which seem to have deterred him
from repeat contraventions. In both cases the sentences were
partially suspended
allowing him to be the master of his own
rehabilitation, opportunities which he appears to have spurned and
which unfortunately
reflect a lack of remorse on his part. This
was evident too from the manner in which he conducted himself upon
trial.
The quantity of dagga involved is also not negligible
and on its own warrants a more censorious penalty although this court
should
be wary of attributing too much of consequence to it so as to
inadvertently treat him as a dealer whereas the substituted
conviction
is for possession only. The prevalence of the
offence is also a factor in aggravation.
33.
In my view a suspended sentence plus a fine
with the alternative of punishment would be an appropriate sentence.
34.
In the result I issue the following order:
1.
The conviction and sentence of the
appellant are set aside and substituted as follows:
“
1.
The accused is convicted of contravening
section 4(b)
of the
Drugs and Drug Trafficking Act, No. 140 of 1992
; and
2.
The accused is sentenced to
three (3) years imprisonment which is suspended for a period of five
(5) years on condition that he
is not convicted of contravening
section 4(b)
of the
Drugs and Drug Trafficking Act, No. 140 of 1992
committed during the period of suspension, plus a fine of R10 000.00
or eighteen (18) months imprisonment.”
HARTLE J
JUDGE OF THE HIGH
COURT
I AGREE AND IT IS SO
ORDERED:
EBRAHIM J
JUDGE OF THE HIGH
COURT
DATE OF APPEAL
: 14 September 2012
DATE OF JUDGMENT: 17
October 2012
Appearances:
For
appellant:
Mr
C Schuring
Instructed
by
Zepe
& Company,
34
Prince Alfred Street,
Queenstown
For
respondent:
Mr
Coltman,
Office
of the Director of Public Prosecutions,
Bhisho
[1]
This
must in my view be a reference to themselves and not the appellant
because it was the police officers who stopped his vehicle.
Appellant’s counsel misunderstood this statement to mean that
the appellant’s vehicle stopped, to bring it in conformity
with the defence’s case. However, the only stopping
which happened near the Fort Jackson police station was when
the
appellant was pulled off there by the police. This is
confirmed by
Hlulani
narrating a few lines below that they told the appellant why they
were stopping him.
[2]
Appellant’s
counsel understood this reply to confirm that the appellant’s
vehicle “
stood
there
”,
but
Hlulani
was clearly referring to the vehicle from which they observed the
appellant. This is clarified in the text below.
[3]
This
is a reference to the appellant’s vehicle again.
[4]
This
confirms the witnesses’ understanding that the only car
stationary was theirs.
[5]
These were drafted by Ms
Renou
who initially appeared for the appellant.
[6]
1996
(1) SA 338 (CC).
[7]
29
November 2005.
[8]
All the remaining presumptions in
section 21
(relating to dealing in
drugs) and
section 20
(relating to possession of drugs) have
suffered a similar fate. See in this regard
S
v Ntsele
[1997] ZACC 14
;
1997 (2) SACR 740
(CC),
S
v Mjezu
1996
(2) SACR 594
(NC),
S
v Manyonyo
1999 (12) BCLR 1438
CC and
S
v Mello and Another
1998 (3) SA 172
(CC). See too
GN
R585 in GG21266 of 15 June 2000 re the declaration of invalidity of
section 21(1)(c) of the Act.
[9]
1939
AD 188
at 202 – 3.
[10]
1998
(2) SACR 225
(O) at 229a.