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[2011] ZANCHC 14
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S v August and Another (01/08) [2011] ZANCHC 14 (26 August 2011)
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IN THE HIGH COURT OF
SOUTH AFRICA
[NORTHERN CAPE HIGH
COURT, KIMBERLEY]
CASE NO: 01/08
In the matter
between:
ANDREW AUGUST
…................................................................
1
ST
APPELLANT
EUGENE DAVIDS
….................................................................
2
ND
APPELLANT
AND
THE STATE
….................................................................................
RESPONDENT
Coram:
Tlaletsi j et Pakati AJ
___________________________________________________________________________
Date of hearing : 01
August 2011
Date of judgment :
26 August 2011
JUDGMENT
TLALETSI J
Introduction
[1]
The
appellants appeared before the Regional Court, Kimberley on a charge
of contravention of Sec 5(b)
1
read with sec. 1.13,
17 to 25 and 64 of
Drugs and Drug Trafficking Act 140 of 1992
in that
they dealt in 299 tablets of Mandrax (Methaqualon) valued at R12
000.00. They were found guilty as charged. The first appellant
was
sentenced to three (3) years imprisonment two (2) years of which was
ordered to run concurrently with the sentence he was serving
on the
date of sentencing. Second appellant was sentenced to twelve (12)
months imprisonment. The present appeal is against the
convictions of
the two appellants only.
[2]
Before
dealing with the factual background there is one matter that is worth
mentioning. The appellants were arrested on 15 November
2004. Their
first appearance at the Regional Court was on 15 September 2006. It
would appear that between these two dates the matter
was on the
District Court roll. It is not apparent from the record why it took
that long before the matter was placed on the Regional
Court roll.
[3]
The trial commenced
only on 18 September 2007 and was finalised on 10 December 2009.
The delay in this
regard is understandable. The appellants had in the early stages of
the trial elected to conduct their own defence
despite the advice of
the Regional Magistrate that they have legal representation. They at
a later stage heeded the advice and
used the services of legal
representatives. The proceedings had to be transcribed to enable the
legal representatives to acquaint
themselves with the proceedings
that far. Some of the witnesses were recalled to enable the legal
representatives to cross-examine
them. At some state the tapes got
missing and the record had to be transcribed,
leading
to further delay. There was also an opposed application for discharge
at the close of the state case which was at the subsequent
appearance
refused.
2
The appellants
thereafter applied for the recusal of the presiding officer. The
application was opposed and was unsuccessful.
[4]
The appeal record
consists of seven volumes and is not in a satisfactory state. The
evidence is not placed in proper sequence; there
is a substantial
number of
“
onhoorbaar”
(inaudibles) and the
pagination is not properly done. It was a strenuous record to read in
preparation for the hearing. However,
in the interests of avoiding
further delay we agreed to entertain the appeal based on what had
been presented to us. We have been
assured and we were satisfied that
none of the parties would be prejudiced thereby.
Factual
background
[5]
The
appellants pleaded not guilty to the charges and denied each and
every allegation against them. The respondent tendered the
evidence
of the following witnesses. Constable Tromp, Mr Makokong, Captain
Swanepoel, Captain Botha, Inspector Louw, LJ Nel, Captain
Veli
Ruthenavelu and Superintendant G L Topkin.
[6]
The case
presented by the respondent is as hereunder.
[6.1]
During
the year 2004 Superintendant GL Topkin (“Sup. Topkin”)
was a captain in the Organised Crime Division of the South
African
Police Services (“SAPS”) in the Northern Cape Province.
He was also a co-ordinator of traps and undercover
operations
conducted in terms of sec. 252 (A) of the Criminal Procedure Act
(“the CPA”). During November 2004 Sup.
Topkin received a
report from a certain Captain Botha from Crime Intelligence Unit in
De Aar
relating to alleged unlawful activities by First Appellant
(alias Babes). Capt. Botha requested that First Appellant be added as
a suspect in an operation that was in progress in Hopetown relating
to investigation of drug related offences. Sup. Topkin’s
request to the Director of Public Prosecutions (DPP) Northern Cape to
accede to the request by the Crime Intelligence Unit, De
Aar, was
turned down. It was then decided on the advice of the DPP to rather
conduct an
ad hoc
operation for First Appellant. Authority for
the trap to be conducted against the first appellant and those who
might be involved
was authorised by Sup. Topkin in terms of sec
252(A) of the CPA.
[6.2]
Captain
Botha instructed his informer, Mr Makokong, who was then known to
First Appellant, to phone First Appellant and inform him
that he had
someone from Victoria West who was interested in buying Mandrax
tablets. First Appellant is said to have agreed and
suggested that
they should meet in Kimberley for him to meet the buyer and for the
transaction to be concluded. The reason why
Mr Makokong was used to
contact First Appellant is that he had been used to “infiltrate”
a certain Mr Willem Casper
(“Mr Casper”) who was at the
time a suspect in an undercover operation referred to above code
named “
Operation Empimpi”
. Mr Casper was known to
be a friend to First Appellant and there were allegations that they
were both instrumental and involved
in drug trafficking. “
Operation
Empimpi”
is the operation that the DPP declined authority
for First Appellant to be included as a suspect for investigation
purposes. They
were of the opinion that the inclusion of First
Appellant could prejudice “
Operation Empimpi
”.
[6.3]
On 03
November 2004 Capt. Botha and Const. Tromp travelled to Kimberley.
Const .Tromp who was at the time stationed at Hanover
was introduced
to Sup. Topkin as a proposed “
agent”
to be used
for the operation. Mr Makokong was also introduced to Sup. Topkin as
the informer who would facilitate contact with
First Appellant. In
the presence of Sup. Topkin on the same day, Makokong and Const.
Tromp spoke to First Appellant, about the
possible transaction
referred to above. He told First Appellant that he wanted to purchase
drugs. The first appellant told him
to phone him the following day on
Thursday. The following day at about 16h00 Const. Tromp phoned First
Appellant as arranged. First
Appellant offered to sell to Const.
Tromp 300 tablets at a cost of R40.00 per tablet. Const. Tromp
accepted the offer. First Appellant
then told Const. Tromp to phone
him the following day on Friday. Const. Tromp agreed and reported all
the discussions and arrangements
to Capt. Botha. Capt. Botha in
return reported to Sup. Topkin who was supposed to arrange money for
the transaction.
[6.4]
On
Friday 05 November 2004, at ±10h15, Const. Tromp phoned First
Appellant. The latter suggested that they should meet on
the road
next to Horseshoe Motel in Kimberley and further that he should phone
him immediately on arrival at the agreed meeting
place. Sup. Topkin
withdrew an amount of R12 000.00 from “
Uistande Voorskot
Staatskas”
for use in the proposed trap.
[6.5]
On 05
November 2004 Sup. Topkin went to the local Police Station to request
assistance in the handling of the docket and investigations
since he
was operating at Provincial level. Capt. Swanepoel, Sup. Vermeulen
and Insp. Louw were tasked to assist in the operation.
Const.Tromp,
Mr Makokong, Sup. Topkin and Insp. Botha met at a local
hotel/guesthouse specially booked as part of the operation.
According
to Sup. Topkin, Insp. Botha and Mr Makokong, Insp. Botha searched
both Const.Tromp and Mr Makokong to ensure that they
did not have any
money or drugs in their possession. Having found nothing of that kind
in their possession, Sup. Topkin handed
over an amount of R12 000.00
to Const. Tromp for him to use for the trap transaction. Insp. Botha
conveyed Const. Tromp who had
a bag (rugsaak) containing his clothes,
together with Makokong to the area next to the Horseshoe Motel as
arranged with First Appellant.
Whilst on this aspect, I have to
mention that Const. Tromp testified that he was searched but that did
not take place in the presence
of Mr Makokong who was according to
him not present. He mentioned further that he was initially conveyed
alone by Insp. Botha and
they picked up Mr Makokong somewhere in town
on their way to the proposed meeting place. Mr Makokong on the other
hand further
mentioned that when they arrived at Horseshoe Motel
being conveyed by Insp. Botha, it was warm and he also put his jersey
in the
bag that Const. Tromp was carrying. Const. Tromp’s
version is that it was only his clothes that were in the bag that he
carried.
I will return to these contradictions in due course since
these aspects together with the others referred to later, form the
basis
of the grounds of appeal.
[6.6]
Sup.
Topkin testified that he followed the Isuzu Bakkie driven by Insp.
Botha conveying Mr Makokong and Const. Tromp until they
alighted at
the intersection controlled by traffic lights next to the petrol
filling station and Horseshoe Motel. The two walked
towards a
“hicking spot” in front of the Horseshoe Motel. Insp.
Botha parked his motor vehicle in one of the parking
bays of the then
Spar Supermarket next to the Horseshoe Motel in such a way that he
would be able to observe Mr Makokong and Const.
Tromp. Sup. Topkin
also took up position where he could keep watch on the two. In the
meantime Insp. Louw and Insp. Loubsher who
are attached to the
Organised Crime Unit, took up positions next to the Kalahari Lodge
along the same road leading towards Cape
Town. The purpose of their
posting there was for them to stop the suspect(s) in case they tried
to escape in that direction.
[6.7]
Const.
Tromp phoned First Appellant and told him that he had arrived at the
meeting place. According the Const. Tromp First Appellant
told him
that he would arrive in half an hour’s time. Const. Tromp
phoned Insp. Botha and reported what First Appellant said
to him.
After about 15 minutes a white Ford Sierra motor vehicle approached
from the direction of Kimberley Central Business District
(CBD) and
stopped where Capt. Tromp and Makokong were standing. This motor
vehicle was driven by the appellant. Const. Tromp was
seeing him for
the first time. First Appellant was alone in the motor vehicle. He
indicated to the two to embark the motor vehicle.
Const. Tromp
embarked on the front left passenger seat and Mr Makokong on the rear
left side. First Appellant introduced himself
to Const. Tromp as
“Babes” and exchanged greetings with Mr Makokong. First
Appellant requested Const. Tromp to allow
him to drive a few metres
back towards the CBD as he had off loaded a person next to the road
with tablets. Const. Tromp agreed.
[6.8]
First
appellant made a u-turn and drove towards the CBD. Sup. Topkin
followed them in his motor vehicle unnoticed. He phoned Insp.
Louw
and told him that he could move towards the direction of the CBD.
Insp. Botha also followed in his motor vehicle. He reported
to Sup.
Topkin that he was also following slowly. First Appellant stopped the
vehicle off the Memorial road next to the concrete
chairs and table
under a big tree next to the Formula 1 Hotel. They found Second
Appellant seated on one of the chairs. He was
wearing a Yellow –
T shirt and also had a yellow plastic bag between his legs. Second
Appellant stood up and walked towards
the motor vehicle. Sup. Topkin
drove past this area. He also saw Second Appellant walk towards the
motor vehicle. He, however,
could not notice the yellow plastic bag
in his possession. He mentioned that he may not have noticed the
plastic bag as he was
driving and had to pay attention on to the road
and traffic. Members of the Organised Crime Unit also started to
advance to the
scene where First Appellant had stopped.
[6.9]
Second
Appellant entered the motor vehicle on the left rear side. Mr
Makokong who was seated on that side moved towards the middle
of the
rear seat to give way to Second Appellant. Inside the motor vehicle,
First Appellant instructed Second Appellant to take
out the box and
hand it over to Const. Tromp. He complied. Const. Tromp opened the
box and found six shiny packs containing tablets.
First Appellant
mentioned to Const. Tromp that each packet contained 50 tablets.
Const. Tromp opened one packet and counted the
tablets. There were 50
tablets in this packet. Const. Tromp was satisfied and handed over
the money to First Appellant. The money
was made up of R100 notes.
According to Const. Tromp First Appellant started to count the notes
one by one putting those he counted
on the panel between the two
front seats next to the gear lever.
[6.10]
In the
meantime Sup. Topkin received a call from Insp. Botha reporting that
the transaction was in progress in First Appellant’s
motor
vehicle. Sup. Topkin phoned Capt. Swanepoel, Sup. Vermeulen and Insp.
Louw and reported that the transaction was in progress
and that they
could now carry out the arrest.
[6.11]
As
First Appellant was busy counting the money Sup. Vermeulen and Capt.
Swanepoel arrived. On seeing them First Appellant threw
the money
that was still in his hand between the seats of the motor vehicle.
Sup. Vermeulen and others introduced themselves as
police officers
and explained that they were arresting the appellants. They explained
to them their rights. Const. Tromp also identified
himself to First
Appellant that he is a police officer and that he was arresting him
for dealing in drugs. The tablets were confiscated
and counted in the
presence of the appellants. The tablets were 299 in total. Sup.
Topkin arrived during the process of the arrest
and confiscation of
the tablets and the money.
[6.12]
The
version of Mr Makokong is slightly different from that of Const.
Tromp about the event in the motor vehicle. According to Mr
Makokong,
after Second Appellant got on to the motor vehicle, First Appellant
requested the “
goods”
and Second Appellant handed
over the parcel to First Appellant. First Appellant took out a box
from the plastic bag and handed it
over to Const. Tromp, keeping the
plastic bag on him. Const. Tromp thereafter handed the money over to
First Appellant by counting
the notes one by one into first
appellant’s hands. When the police arrived and asked what was
happening and ordering them
to get out of the motor vehicle, Const.
Tromp placed the money he was still to count in the area between the
two front seats and
First Appellant alighted the motor vehicle with
the money that had already been counted onto his hands. The police
took the money
that was in First Appellant’s possession as well
as the notes that were placed between the two front seats.
[6.13]
Insp.
Botha mentioned that when he was nearing the scene of the arrest he
noted that Mr Makokong was still present at the scene
contrary to
their arrangement with him that he must run away from the scene when
the arrest was being carried out. The reason why
he had to run away
was that the police did not want to use him as a witness in this case
in order to protect his identity as their
informer. Insp. Botha
mentioned further that Mr Makokong suddenly ran away. He cannot
recall whether he ran away on his own as
arranged or he indicated to
him to run away. However, he followed him pretending to be chasing
him. He later met Mr Makokong at
a place where he was waiting and
picked him up.
[6.14]
On 05
November 2004 at about 14h30, Insp. Louw handed over the following
items to Insp. Lourens who was responsible for safe keeping
of
exhibits at the Kimberley Police Station. 1 x yellow plastic bag
written “Vermeulens”, 1x box, 6 x plastic packets;
299
tablets; 1x Red Nokia Cellularphone, with Battery and Sim-Card. He
entered these items on the registers and kept them in a
safe. Insp.
Lourens was the only person who kept the key to the safe.
[6.15]
On 08
November 2004 Insp. Lourens handed over the items referred to above
to Insp. Louw. These items were handed over to Insp. JA
Nelson of the
Criminal Record Centre in Kimberley. Insp. Nelson took photographs of
the items. He prepared an album as well as
a key thereto. The photo
album as well as the key thereto were handed in as exhibits during
the trial during Insp. Nelson’s
testimony. Insp. Nelson
returned the photographed items to Insp. Louw. The latter returned
the items to Insp. Lourens on the same
day who locked them in the
safe.
[6.16]
On 17
November 2004 Insp. Lourens handed over the tablets to Insp. Louw.
Insp. Louw prepared the necessary packaging of the tablets
for
purposes of sending them for analysis at the forensic laboratory. He
marked them FSB 15337 and thereafter returned them to
Insp. Lourens
for safekeeping. Insp. Lourens kept the items in the safe until 01
December 2004. On this day he handed the items
over to Insp. Lourens.
On 02 December 2004 Inspector Louw arrived at the Forensic Laboratory
in Cape Town where he handed in the
package for analysis. He received
acknowledgment of receipt document with Kimberley Police Station,
Case-Number 202/11/2004 and
SAP13 number 72/2004. The person who
received the package signed for it and marked it no: FSB 151137 and
affixed a date stamp for
02 December 2004. This document was handed
up as an exhibit.
[6.17]
On 24
January 2005 Capt. Ruthenavelu, then sergeant, attached to the
Forensic Science Laboratory in Cape Town, received evidence
material
bag with unique number FSB 151137 from the Administration Unit of the
laboratory. The bag was marked
inter alia
“
Georganiseerde
Misdaad”
, Kimberley MAS 2024/11/4/2004. SAP 13
1724/11/4/04, containing 299 tablets contained in plastic packets.
She testified that the
investigating officer brought to her attention
that in her written statement /affidavit she had stated that she
received 5 plastic
bags instead of 6 and wanted her to verify it. She
then recalled her case docket and all the exhibits relating to the
case as she
could not recall the correct position. She went through
the docket as well as her notes and picked up that it was 6 bags. She
believed
that the mistake occurred when she transcribed the
information to her typist. Furthermore, 5 of the 6 bags contained
tablets of
similar make, colour and size and the other was different
and was as such separated from the rest.
[6.18]
Capt.
Ruthenavelu testified that she was requested to conduct tests to
examine whether the tablets contained any substances as listed
in the
Medicine and Related Substance Control Act, Act 101 of 1965 and or
the Drugs and Drugs Trafficking Act, Act 140 of 1992.
She testified
that upon receipt of the exhibits from the Administration Unit she
made sure that the seals were intact and that
all the information on
the exhibit bag matches the covering minutes. She was satisfied that
everything was in order and signed
for the receipt of the exhibits.
She kept the exhibits in her personal safe to which she was the only
person who kept the key and
had access to it. Capt. Ruthenavelu’s
tests revealed that the exhibits contained methaqualone which is
listed in Part III
of Schedule 2 of Act 140 of 1992.
[6.19]
On 17
February 2006 Insp. Lourens handed the cellular phone back to first
appellant.
Appellants’
case
[7]
First
Appellant’s version is that he had known Mr Casper since his
school days and were friends. During 2004 he used to travel
from
Kimberley to Mr Casper’s house in Hopetown to buy “full-kits”
(sheep head, feet and intestines). Mr Casper
further conducted a
business of selling vegetables and repairing shoes. He met Mr
Makokong at Mr Casper’s house during his
visits to buy
“full-kits”.
[8]
On 05
November 2004 he received a telephone call from Mr Makokong who told
him that he had something for him and that he was standing
at the
Horseshoe Motel. First Appellant testified that since he had met Mr
Makokong when he went to Mr Casper to buy “full-kits”
and
vegetables, he thought that Mr Makokong meant that he had “full-kits”
and vegetables for him. First Appellant mentioned
further that the
other reason why he thought Mr Makokong meant that he had “
full-kits”
and vegetables is that Mr Casper also used to bring his “
full-kits”
and vegetables to Kimberley and sell them and with the proceeds
thereof he bought shoe hooks and soles in Kimberly town for his
shoe
repair business. First Appellant is the one who used to fetch Mr
Casper from the Horseshoe Motel and transport him into town
for that
purpose.
[9]
After
receiving Mr Makokong’s telephone call First Appellant took an
amount of R430.00 with him to pay Mr Makokong for the
“full-kit”
and vegetables and drove to the Horseshoe Motel. As he was on his way
he heard someone who happened to be
Second Appellant whistling on the
side of the road. First Appellant looked and noticed Second Appellant
who was making an indication
with his hands that he requested a lift.
In response, First Appellant took out his hand through the window to
indicate with his
finger that he will return to pick him up.
According to him it was for the first time for him to see and have
contact with Second
Appellant on that day and further that he did not
see any yellow plastic bag in Second Appellant’s possession.
[10]
First
Appellant testified that when he arrived at the Horseshoe Motel he
noticed Mr Makokong who was in the company of a strange
man. He
stopped and Mr Makokong and Const. Tromp got into his motor vehicle.
As it had happened before he made a u-turn and drove
towards the CBD
where Casper usually bought the hooks and soles. After passing the
traffic lights intersection Const. Tromp mentioned
to Mr Makokong
that “
they could not make business there.
” First
Appellant noticed that Const. Tromp was in possession of a clothing
bag. He did not know what Const. Tromp wanted
or meant. He stopped on
the side of the road where Second Appellant was. He noticed that
Const. Tromp was doing something on his
bag. He did not notice what
he was doing. Second Appellant came, opened the left rear door and
sat on the left side of the motor
vehicle. First Appellant looked to
see whether the road was clear for him to get back onto the road. He
noticed two motor vehicles,
one in front and the other at the back,
both blocking his motor vehicle from rejoining the road.
[11]
The
occupants of the two motor vehicles alighted and came to his motor
vehicle. Sup. Vermeulen came to First Appellant’s
window and
asked what was happening. First Appellant responded that nothing was
happening. Sup. Vermeulen directed First Appellant’s
attention
to the money which was between the two seats. It was the first time
he saw this money. Sup. Vermeulen instructed him
to alight. He
complied. He was searched and his cellularphone and an amount of
R430.00 was taken from him. He denied that he was
at any stage found
or had any drugs in his possession. He did see a yellow plastic bag
written “Checkers” containing
tablets. First Appellant
testified that he knew Second Appellant. They are related and they
reside in the same street.
[12]
Second
Appellant’s version is that on 05 November 2004 he went to seek
employment. He later walked along the Cape Town road
on his way home
towards the direction of the CBD. He saw First Appellant driving
towards the opposite direction. He requested a
lift from him by
whistling and directing with his hands. First Appellant responded by
indicating with his hand that he should wait
and that he will come
back to pick him up. He was seeing First Appellant for the first time
that day. It was also his first contact
with him. He had nothing in
his possession.
[13]
He
testified that after a while First Appellant approached from the
Horseshoe Motel direction and pulled out of the road. At this
stage
Second Appellant was seated under a tree on a concrete chair waiting
for First Appellant. First Appellant had two passengers.
Second
Appellant walked towards the motor vehicle and boarded on the left
rear side. After boarding, other motor vehicles arrived
and parked in
front and behind First Appellant’s motor vehicle. People came
out of the motor vehicles and ordered them to
alight from the motor
vehicle. They complied and they were searched. He did not see any
R100.00 notes until the motor vehicle was
being searched. He also saw
tablets for the first time when the motor vehicle was being searched.
He mentioned that the tablets
were contained in a yellow plastic bag
with the words “
Checkers”
written on it. It is not
the same plastic bag that appears on the photo album. He denied that
he possessed or dealt in any mandrax
tablets. That concluded the
evidence tendered on behalf of the appellants and the respondent.
[14]
The
court below made the following remarks and findings in its judgment.
14.1 That Makokong
was subjected to detailed cross-examination could not be destroyed
and was able to stick to the theme of his
evidence despite the fact
that he was told that he was not going to be used as a witness and
testified five years after the incident.
14.2 Although the
evidence of Const. Tromp differed in some respects from that of other
state witnesses he also stuck to his evidence.
On evaluation the
court was of the view that Const. Tromp did not appear to be trying
to hide something or lie to the court.
14.3 That the
contradictions in the state case were not fundamental.
14.4 First
Appellant’s alleged conspiracy by the police to have him
falsely arrested on dealing in drugs is unfounded.
14.5 That the
appellants’ versions are not reasonably possibly true and that
the state had succeeded to prove the guilt of
both accused beyond a
reasonable doubt.
[15]
The
appellants were subsequently convicted as charged. They applied and
were granted leave to appeal against their conviction by
the court
below.
The appeal
[16]
The
appellants have raised the following grounds of appeal. That the
trial court erred in finding that:
16.1 The
contradictions in the respondent’s evidence are not material;
16.2 The evidence
tendered by the respondent is reliable;
16.3 The appellants’
versions were not reasonably possibly true;
16.4 By not paying
sufficient consideration to the cautionary rules when
evaluating the
evidence of the police informer.
16.5 The appellants’
version regarding the conspiracy
against them falls
to be rejected and thereby wrongly placing the
onus
on the
appellants.
16.6 By finding that
the exhibit bag that Louw sent for analysis and that
received by
Ruthenavelu was the same despite the fact that SAP 13
numbers differed.
[17]
It is a trite
principle of our law that in criminal proceedings the state carries
the onus to prove the guilt of the accused person
beyond reasonable.
There rest no burden on the accused to prove his innocence. In
determining whether the state has proved the
guilt of an accused
person beyond reasonable doubt, a court is enjoined to evaluate the
evidence presented, weigh up all the elements
which point to the
guilt and innocence of the accused and take into account the inherent
strengths and weaknesses, the probabilities
and improbabilities on
all the versions presented and consider whether the balance weighs so
heavily in favour of the state as
to exclude a reasonable doubt as to
the accused’s guilt.
3
Navsa JA in
S
v Trainor
had
the following to say:
[9]“A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may
be found to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered.
In considering
whether evidence is reliable the quality of that evidence must of
necessity be evaluated, as must corroborative
evidence, if any.
Evidence,
of
course must be evaluated against the onus on any particular issue or
in respect of the case in its entirety. The compartmentalised
and
fragmented approach of the magistrate is illogical and wrong.”
4
[18]
In
S
v Mavinini
the Supreme Court of Appeal explained the position as
follows:
“
It
is sometimes said that proof beyond reasonable doubt requires the
decision-maker to have ‘moral certainty’ of the
guilt of
the accused. Though the notion of ‘moral certainty’ has
been criticised as importing potential confusion in
jury trials, it
may be helpful in providing a contrast with mathematical or logical
or ‘complete’ certainty. It comes
down to this: even if
there is some measure of doubt, the decision-maker must be prepared
not only to take moral responsibility
on the evidence and inferences
for convicting the accused, but to vouch that the integrity of the
system that has produced the
conviction – in our case, the
rules of evidence interpreted within the precepts of the Bill of
Rights-remains intact. Differently
put, subjective moral satisfaction
of guilt is not enough: it must be subjective satisfaction attained
through proper application
of the rules of the system”
5
[19]
Where there are
contradictions in the evidence presented by the state witness a court
must keep in mind that not every contradiction
or deviation affects
the credibility of a witness because contradictions and deviations
which are not material are not necessarily
relevant. The court must
consider all the evidence and decide whether the truth, despite the
shortcomings, has been told. The position
was authoritatively set out
as follows in
Sithole
v The State
.
6
“
It
is trite that not every error made by a witness will affect his or
her credibility. It is the duty of the trier of fact to weigh
up and
assess all contradictions, discrepancies and other defects in the
evidence and, in the end, to decide whether on the totality
of the
evidence the state has proved the guilt of the accused beyond
reasonable doubt. The trier of fact also has to take into
account the
circumstances under which the observations were made and the
different vantage points of witnesses, the reasons for
the
contradictions and the effect of the contradictions with regard to
the reliability and credibility of the witnesses.”
[20]
It is also an
accepted guideline that an appellate court shall not lightly
interfere with the factual finding of the trial court
in the absence
of cognisable misdirection by the trial court. Where however a court
of appeal is satisfied that the trial court
made an incorrect factual
finding it is bound to correct.
7
[21]
In this court, Adv
Setouto who appeared on behalf of the appellants submitted that the
appellants do not challenge the fairness
or lack thereof of the
process of the trap but only the finding of the court
a
quo
that
the contradictions in the evidence of Mr Makokong and Const. Tromp
that they are not material. He contended that such contradictions
are
material such that it cannot be said that the respondent had proved
its case beyond reasonable doubt. Secondly Adv Setouto
contended that
since the SAP numbers on the forensic packagae and those referred to
by Capt. Ruthenavelu differed, doubt exists
as to whether it is the
same exhibits that were analysed by the forensic laboratory.
[22]
On behalf of the
respondent, Adv Mokone contended that the magistrate was correct in
finding that the contradictions in the evidence
of the two witnesses
were immaterial. He further contended that the magistrate’s
finding that the tablets that were analysed
at the forensic
laboratory are the same tablets that were confiscated by the police
at the scene.
[23]
The court below’s
conclusion that the contradictions relating to the searching of Mr
Makokong and Const. Tromp and how they
travelled to the Horseshoe
Motel where they were to meet First Appellant are immaterial is in my
view incorrect. The searching
and observation of the people to be
used for the trap is one of the guidelines developed by the courts to
make the trap’s
evidence more acceptable. In this case such
evidence is made more material because of the alleged conspiracy by
the police to have
First Appellant arrested by the police. It must
however be emphasised that failure to take these steps does not
necessarily lead
to the evidence being totally rejected.
8
[24]
In my
view it was incumbent upon the court below to consider the
contradictions together with the entire evidence presented on
the
issue and decide whether the respondent’s evidence is
acceptable. Topkin and Capt. Botha corroborated the evidence of
Mr
Makokong that the two were searched simultaneously. Const. Tromp may
be mistaken that he was searched alone since the incident
happened
almost five years before he testified in court. It is common cause
with Const. Tromp that Insp. Botha is the person who
conducted the
search and is able to recall that they were searched simultaneously.
Const. Tromp’s written statement which
was made on 05 November
2004 is not helpful. The statement seem to have been made on the
basis that Mr Makokong would not be called
to testify and his
identity was being concealed. No reference is made to Mr Makokong in
the statement. Neither is any reference
made to the search by Insp.
Botha and handing over of the money to be used for the trap. All
details some of which are common cause
between the respondent and the
appellants came out during the trial. The trial court’s finding
that the contradictions are
not material may be wrong, however the
conclusion that the respondent has proved its case beyond a
reasonable doubt on these aspects
is not wrong as it is supported by
the evidence.
[25]
First
Respondent’s claim that the police conspired to falsely
implicate him in the case must be considered in light of the
entire
evidence presented. His own version has a number of improbabilities.
He has never bought “
full-kits”
or vegetables from
Mr Makokong on previous occasions and yet when he phones him and tell
him that he has something for him, he
does not enquire exactly what
he has or means. Instead he makes an assumption that it must be
“
full-kit”.
He decides to take an amount of
R430-00 without establishing what price is Mr Makokong going to
charge him.
[26]
In
addition, First Appellant when he arrives at the Horseshoe Motel he
does not ask Mr Makokong what is that that he has for him,
or where
he has kept what he has for him as he did not have anything in his
possession. He instead, load Mr Makokong into his motor
vehicle with
a stranger and on his own decides to make a u-turn and proceed to the
CBD without asking whether Mr Makokong had any
business to do there.
He allows the stranger to occupy the front seat when he had no
business to do with him. He then steps at
Second Appellant who the
police did not know that he was waiting for him under a tree. It is
also a coincidence that the police
who, if they conspired, would also
foresee that First Appellant would assume that he was offered a
“
full-kit”
and vegetables when he was not
specifically told, and that his relative, Second Appellant would wait
for him under a tree where
the false transaction would be carried. On
First Appellant’s own version, it was on his own initiative
that he picked up
Mr Makokong and Const. Tromp and drove towards the
CBD and stopped where Second Appellant was. On the contrary, the
police put
their stoppers on the opposite direction next to the
Kalahari Lodge and change their position when First Appellant drove
towards
the CBD. The court
a quo
in my view, was correct in
rejecting First Appellant’s version on the conspiracy to have
him falsely arrested. The police
may have wanted to have him away
from the “
Operation Empimpi”
but what they did by
setting the trap for First Appellant was not improper and was within
the law.
[27]
It was
further contended that the respondent had not proved beyond
reasonable doubt that the tablets that were analysed by Cpt.
Ruthenavelu were the same as those that were sent by the police for
this case. This contention was based on the differences in
the SAP 13
numbers. In this regard Cpt. Ruthenavelu testified that they do not
identify the exhibits according to the SAP numbers
but by a unique
FSB numbers (FSL-nommers). In this case there was nothing wrong with
the FSB number. As regards the argument whether
she received 5
packets or 6 packets of tablets, the trial court correctly in my
view, accepted her explanation as to the mistake
that she committed
which she rectified in her testimony. There was no evidence presented
to gain say her version.
[28]
In my
view it has not been shown that the court
a quo
committed any
misdirections warranting interference by this court. The court
a
quo
critically and holistically considered the evidence
presented, applied the cautionary rules in evaluating the evidence
where applicable
and committed no errors warranting interference by
this Court. The appeal against conviction falls to be dismissed.
In the result the
following order is made:
“
The
appeal against conviction is dismissed.”
______________________
L P TLALETSI
JUDGE
I concur.
_____________________
B PAKATI
ACTING JUDGE
Appearances:
On
behalf of the Appellant
:
Adv L Setouto
Instructed
by : Kimberley Justice Centre
On
behalf of the Respondent
:
Adv Mokone
Instructed
by : Director of Public Prosecution
____________________
TLALETSI JA
I agree.
_____________________
ZONDO JP
I agree
______________________
SANGWENI AJA
1
Sec
5 Dealing in drugs
- No person shall deal in –
(a) any dependence-producing substance; or
(b) any dangerous dependence-producing substance or any
undesirable dependence-producing substance,...
2
.
Sec. 174
of the
Criminal Procedure Act of 1977
.
3
See:
S v Chabalala
2003(3) SACR 134 (SCA),
S v Van Aswegen
2001(2) SACR 97(SCA) at 101e,
S v Mbuli
2003 (1) SACR 97(SCA)
at 110 para [57].
4
2003
(1) SACR 35
(SCA) at 41 para[9]
5
2009(1)
SACR 523 (SCA) at 529(para 26)
6
2006
SCA 126 RSA at para: 7;
S v Bruiners
en Ander 1998(2) SACR
432 (S) at 439 C-F.
7
S
v Mafaladiso
en Others (supra) at 595;
President of Republic
of South Africa v South African Rugby Football Union
2000(1) SA
1(CC) at 42E-44A;
S v Toubie
2004 (1) SACR 530
(W) at 535 H.
R v Dhlumayo
1948(2) SA 677(A);
S v Robinson
1968(1)
SA 666(A).
S v Nkosi
1993(1) SACR 709(A) at 711 e-g.
8
See:
R v Omar
1948(1) SA 76(T)