Mabelo v S (CA&R 15/2009) [2009] ZANCHC 27 (29 May 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2009
>>
[2009] ZANCHC 27
|

|

Mabelo v S (CA&R 15/2009) [2009] ZANCHC 27 (29 May 2009)

Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division)
Case
Nr:
CA&R
15/2009
Case
Heard:
25/05/2009
Date
delivered:
29/05/2009
In
the matter between:
M
S
Mabelo PLAINTIFF
and
The
State
RESPONDENT
Coram:
Lacock
J et Henriques AJ
JUDGMENT
Henriques
AJ:
The Appellant seeks to
appeal against his conviction on charges of dealing in 112,15
kilograms of dagga.
BACKGROUND FACTS
The
Appellant was charge
d
in the Upington Magistrate’s Court on charges of dealing in dagga,
alternatively possession of dagga. On 25 June 2008 the
Appellant
was found guilty of dealing in dagga and was sentenced to 6 years
imprisonment of which 2 years were suspended for
a period of 5
years.
It
was common cause that on
4 September 2006 whilst performing crime prevention duties members
of the Organized Crime Unit, Upington, seized an abandoned
vehicle
with registration numbers and letters SRB 062 GP. After the vehicle
was searched, dagga was found in the vehicle in eleven
sealed bags.
Fingerprints were found on sellotape which was used to seal one of
the bags.
The
fingerprint expert
,
A P C Pretorius, identified the Appellant’s fingerprints on the
sellotape. He further testified regarding the uniqueness
of the
fingerprints found on the sellotape.
During
the trial the Appellant
who
was represented, did not dispute that his fingerprints were found on
the sellotape and, his version as to how his fingerprints
came to be
found on the sellotape only came to the fore during his evidence in
chief and was not put to any of the State witnesses
specifically the
fingerprint expert.
The
Magistrate convicted the
Appellant
based solely on the circumstantial evidence.
GROUNDS OF APPEAL
The grounds of appeal
upon which the Appellant relies are to be found in the record of
proceedings. However, Advocate Cloete
in his heads of argument at
paragraph 5 referred to the following grounds of appeal namely:
“
5.1 Die
Verhoorhof het fouteer deur te bevind dat die Staat sy saak bo
redelike twyfel bewys het, spesifiek dat die staat se saak
op
omstandigheidsgetuienis berus deurdat ‘n vingerafdruk van die
Appellant op die kleefband gevind is waarmee een van die sakke
dagga
verseel was.
5.2 Die Verhoofhof
het fouteer deur die Appellant se verduideliking van sy vingerafdruk
te verwerp as nie redelik moontlik waar
nie.”
THE LEGAL POSITION
IN RELATION TO CIRCUMSTANTIAL EVIDENCE
The
locus
classicus
in relation to circumstantial evidence is the case of
R
v Blom
1939 AD 228
where Watermeyer JA referred to the “two cardinal
rules of logic” which governed the use of circumstantial evidence
in a
criminal trial. He held as follows:
“
1. The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, then the inference cannot be drawn.
2. The
proved facts should be such that they exclude every reasonable
inference from them save the one 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
.”
(at 202-203)
Hav
ing
regard to the learned authors Hoffman and Zeffert, 4
th
edition at page 591 the writers were of the view that “..
the
cogency of circumstantial evidence usually arises from a number of
independent circumstances which all point to the same conclusion
”.
In a criminal case the question is whether “
the
evidence as a whole furnishes sufficient proof of guilt
”.
What is noteworthy in
this case is the following:
The
Appellant’s explanation as to how his fingerprints came to be
found on the sellotape was the fact that he sold vegetables
and
would often use sellotape and newspaper to pack the vegetables. He
recalled lending a friend the sellotape to use to close
up a
window. This was his explanation which he put forward during his
evidence in chief.
This
explanation was never put to the State witness,
the
fingerprint expert, Pretorius, in cross-examination. Neither was
this explanation ever put or suggested to any of the other
State
witnesses.
The
Appellant also did not identify
the
person to whom he lent the sellotape. The name of the friend to
who he lent the sellotape, Pakkies America, was disclosed
in his
notice of appeal for the first time.
During the course of
argument, Advocate Cloete who appeared for the Appellant conceded
that the Appellant’s explanation was
never put to any of the
State’s witnesses especially the fingerprint expert, Pretorius.
He was also constrained to concede
that in addition during the
Appellant’s evidence and cross-examination he could have and ought
to have disclosed the identity
of the friend to whom he lent the
sellotape to.
The
Magistrate correctly found in my view that the Appellant never
denied or placed in
dispute that his fingerprints were found on the sellotape. He found
that the Appellant could not provide a reasonable explanation
as to
why his fingerprints were found on the sellotape, and thus came to
the conclusion that the Appellant had not provided a
version to the
Court.
He
correctly found in my view that it was highly unlikely that the
Appellant’s fingerprints got onto the sellotape during the
normal
cause of his business, and that the accused’s fingerprints could
have accidently landed up on the sellotape.
This
coupled with the fact that the Appellant’s version was never put
to the State witnesses, and that he never disclosed the
identity of
the friend who he lent the sellotape to, I am of the view that the
Magistrate correctly found that the only reasonable
conclusion one
could reach was that the Appellant’s fingerprints ended up on the
sellotape whilst the Appellant was sealing
the black bags containing
the dagga.
It
is for this reason that I am of the view that there is no merit in
the appeal and accordingly make the following order:
T
he
appeal is dismissed.
________________________
J I HENRIQUES
ACTING
JUDGE
NORTHERN CAPE
DIVISION
I agree:
________________________
H J LACOCK
JUDGE
NORTHERN CAPE
DIVISION
For the
Plaintiff:
Adv
P J Cloete
On
behalf of
: Legal
Aid Board, KIMBERLEY
For the
Respondent: Adv C G Jansen
On
behalf of
: National
Director of Public Prosecutions, KIMBERLEY