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[2009] ZAKZPHC 22
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Otto v S (AR 175/06) [2009] ZAKZPHC 22 (26 May 2009)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NATAL PROVINCIAL DIVISION)
CASE NO : AR 175/06
In the matter between :
MICHAEL JOHN
OTTO
Appellant
and
THE
STATE
Respondent
J U D G M E N T
LEVINSOHN AJP
[1]
The appellant who I shall refer to as the “accused” was
convicted by a
Regional Court of the following drug related offences
:-
Count 1 :
contravening section 5(b) of the Drugs and Drug Trafficking Act No
140 of 1992 (dealing in an undesirable dependence-producing
substance).
Count 2 :
contravening section 22A(3) of the Medicines and Related Substances
Control Act No 101 of 1965 (sale of a schedule 1
substance);
Alternative to Count
3 : a contravention of section 4(b) of the Drugs and Drug
Trafficking Act No 140 of 1992 (possession or use
of a dangerous
dependence-producing substance);
Count 4 :
contravening section 22A(3) of the Medicines and Related Substances
Control Act No 101 of 1965 (sale of schedule 1 substance).
[2]
The appellant was sentenced on Count 1 to two years imprisonment, on
Count 2 to four
years imprisonment, on the alternative to Count 3,
three years imprisonment and Count 4 five years imprisonment.
The cumulative
effect of the sentences imposed was fourteen years
imprisonment.
[3]
On being arraigned the accused pleaded not guilty to all the charges
and put the State
to the proof of the various allegations made
therein.
[4]
The State case in broad outline was the following.
[5]
Martinus Stefanus van Zyl was its principal witness. He is at
present a captain
in the South African Police Services. In 1996
he held the rank of sergeant and he was attached to the Narcotics
Bureau in
Cape Town. He was approached by the Durban Organised
Crime Unit to undertake and assist in undercover operations. He
was tasked with infiltrating the drug syndicates and had to gather
information in regard to the selling of drugs in nightclubs
as well
as the importation and exportation of drugs. Captain Small and
Captain Erasmus were his handlers. The investigating
officer
was Inspector Kriel. He had to identify drug dealers who were
suspected of being involved in drug trafficking.
He was also
tasked with concentrating on drug smugglers as well. To that
end he concentrated on the nightclubs in the Durban
area which he
visited frequently. He gave the names of the various nightclubs
concerned. He described how he visited
the nightclubs at night
and made contact with several drug smugglers. These persons in
fact sell the drugs at the nightclubs.
He clarified this by
saying that the drug smugglers are in fact drug “peddlers”.
Van Zyl said that when interacting
with these various persons he had
introduced himself as a photographer.
[6]
During this infiltration period he noted the characteristic clothing
worn by these
peddlers whose ages ranged between 16 and 18.
They were openly dealing in drugs at the clubs selling LSD and
Ecstasy.
[7]
Van Zyl said that while visiting these various clubs he noticed the
accused on numerous
occasions. The first time he met him was at
a club called “Crowded House”. He came to know the
accused
as the owner of the “Crowded House” nightclub.
He also noticed the accused at nightclubs like “Three Thirty”.
The accused was in the company of drug dealers from whom the witness
purchased drugs.
[8]
The first time the witness approached the accused was at the Jam
Lounge nightclub.
He said he was standing outside and the
witness stopped his vehicle and approached the accused and had a
short conversation with
him. That occurred on 28th January
1998. The next occasion when he saw the accused was on the
2nd February
1998. He met him at a nightclub called
“Bonkers” He saw the accused sitting down and he
approached him
and told him he was interested in buying drugs and
that he wanted “200 pille”. The English translation
of that
is “Ecstasy”. Van Zyl told the accused that
he gets his tablets for R45 and the accused replied that that was
a
good price. Van Zyl also said to the accused that he wanted the
drug LSD and he was able to get that at R25 a unit.
He wanted
300. The accused replied saying that if he took 400 he would
give it to him at R20 a unit. Van Zyl told him
that he was on
his way to Cape Town and would call him on his return. When he
returned from Cape Town he visited a nightclub
called Crash where he
saw the accused. He asked the accused whether it was still in
order for him to phone him and the accused
answered in the
affirmative.
[9]
On 20th February 1998 at approximately 1.15 in the afternoon he
telephoned the
accused. He asked him if he could see him in
connection with the purchasing of drugs. The accused answered
that he
should come to the Electric Avenue nightclub that evening.
The witness reported to Inspector Kriel that he was going to the
club
and the latter told him to proceed. At about 11 o’clock
that evening he went to the club. He saw the accused
standing
behind the DJ box. He approached him. The accused told
him that he could arrange 200 LSD units. He was
also informed
by the accused that he had Ecstasy as well. The latter drug was
being sold for R50. Van Zyl said the
accused called the barman
over the intercom. The barman approached. The accused had
a short conversation with him and
he (the accused) instructed the
barman to see how many tablets there were. The barman went
towards a storeroom and later
came back with a bank bag which
contained seven brownish small tablets with a hammer and sickle.
The accused then said the
price was R350. The tablets were
handed over to him and he in turn handed it over to the witness.
When that happened
the accused was standing close by. The
barman in turn handed the money to the accused and he put that into
his trouser pocket.
The accused further informed van Zyl that
he had 3 000 tablets which he could obtain after van Zyl had left the
club. Van
Zyl believed that these were Ecstasy tablets.
[10]
Van Zyl said that he took the tablets that had been sold to him and
the next day he reported
to the investigating officer Inspector Kriel
that he had purchased same. They agreed to meet the following
day at a spot
behind the Botanical Gardens in Durban. When they
met van Zyl informed Kriel that the accused had told him that a
further
3 000 tablets were available for sale and they could set up
another transaction. Van Zyl handed the tablets he had
purchased
to Kriel. The latter instructed him to do another
purchase.
[11]
On 23rd February 1998 the witness contacted the accused.
He told the accused he wanted
60 tablets. The accused
instructed him to come to the Electric Avenue club in half an hour’s
time. Van Zyl reported
to Kriel and Kriel instructed him to
meet him behind the Botanical Gardens. On arriving at the
Botanical Gardens Kriel searched
him and his motor vehicle. He
was handed R3 600 in cash whereupon he went to the club. The
club was open, there was
a barman on duty. The accused was not
present and the witness waited approximately 20 minutes. The
accused arrived.
He shook his hand and they walked towards the
door that the barman had entered into at the time of the previous
transaction.
In this room there was a shelf and on the shelf
was a brown box and certain liquor bottles. The accused took
out a bank bag
containing capsules. The accused placed them on
the table and said that there were 60 and it was the best. Van
Zyl
handed the money to the accused. He returned to the
Botanical Gardens where he handed the tablets he had purchased to the
investigating officer.
[12]
The next witness called by the State was Inspector Wickus Kriel the
investigating officer in
the case. Kriel described at length
the circumstances leading up to van Zyl’s role in the
undercover operation to combat
drug dealing in Durban. He
confirmed that he had given instructions to van Zyl to target one
Michael Otto. Van Zyl
reported to him that on 20th February
he had met with Otto and he was able to buy the drugs from him.
Kriel instructed
him to proceed. He received a report on
20th February 1998 that he had bought seven Ecstasy tablets from
the accused.
Kriel instructed him to keep these in his
possession and he would collect them the following day. He did
this and sealed
it with the official seal. Van Zyl informed him
that he was able to make a further purchase from the accused.
Kriel
requisitioned for cash and he met van Zyl at the Botanic
Gardens. He handed him R3 600. He searched his vehicle
and
van Zyl’s person and he proceeded to the accused’s
nightclub. Kriel followed him and stood on the roof of a
building
where one got according to him an excellent view of the
entrance to the nightclub Electric Avenue. He said that after
some
time van Zyl emerged from the club and Kriel assumed that he had
done the deal. As arranged they met at Botanic Gardens where
van Zyl handed him 60 capsules “of white substance”.
He took possession and he photographed and recorded the
tablets as
exhibits in SAP 13. According to Kriel this transaction took
place on 23rd February 1998. The accused
was not arrested
for that transaction because according to Kriel “we still had a
lot of other work that Sergeant van Zyl
still had to do”.
[13]
Kriel believed that there were drugs on the premises and he
accordingly made arrangements for
a search of the premises. The
search took place on 26th February. Upon searching the
premises of the nightclub
they found other tablets which resembled
those that van Zyl had previously purchased. In addition
another substance which
was found eventually to be cocaine was
discovered. Inspector Holamby also testified in regard to
this search and he
essentially confirmed the evidence of Kriel on
this aspect
[14]
Inspector Holamby said that a search warrant was obtained. The
accused was not present
at the time but one Chris was the manager of
the premises. A search was conducted in a storeroom/office
which Chris unlocked
for the police officers. Holamby said that
he found a box containing salt sachets and on top of that was a small
parcel containing
white powder which was found to be five grams of
cocaine. They also found a bag full of capsules which they
suspected to
be Ecstasy.
[15]
In response to questions Chris said that he knew nothing about the
drugs that were found and
that they should talk to the owner of the
premises, namely the accused. The accused was phoned.
Inspector Kriel spoke
to him and the accused arrived at the premises
accompanied by his attorney. At that stage no-one was charged.
According
to Holamby the accused was charged some four months later.
[16]
With this brief summary of the salient features of the State case I
now turn to the accused’s
evidence.
[17]
The accused said that during July 1998 he was approached by Inspector
Holamby and confronted
with certain allegations in regard to dealing
in Ecstasy. He was charged with the incidents which occurred on
the 20th and
23rd February 1998. In addition he was
charged with being in possession of drugs and that related to the
raid on 26th February
1998. The accused denied that he
knew anything about the drugs that were found in the storeroom on
that date. The accused
admitted that he was involved in the
nightclub called Electric Avenue. He said that there were four
partners as well as managers
running the business. According to
the accused about four or five persons had access to the keys of that
storeroom.
Insofar as the incidents on 20th and
23rd February were concerned the accused said that he had never
sold anything to
van Zyl or anybody else at Electric Avenue.
[18]
The Regional Magistrate in her judgment found that van Zyl was “an
excellent witness”
who made a very favourable impression on
her. She recorded that after a lengthy cross-examination van
Zyl emerged as trustworthy
and a witness whose evidence ought to be
believed. On the other hand the accused according to her was
“vague”.
“He gave unsubstantiated answers”.
She went on to record the following :
“The accused stated he did not know van Zyl but could not
advance any possible reason as to why van Zyl would choose to
implicate the accused as no bad blood existed between them”
(page 263 of the record).
According to the Regional
Magistrate the accused was not an impressive witness. He did
not take the Court into his confidence
but rather tried to be as
hedgy and vague and as non-committal as could be”. She
accordingly accepted van Zyl’s
evidence and rejected the
evidence of the accused as false beyond reasonable doubt. Hence
a guilty verdict was brought in
on the counts specified above.
[19]
In a very thorough and helpful argument Mr
Slabbert
has
attacked these convictions. He has argued that the Regional
Magistrate misdirected herself in certain important respects.
At the outset Mr
Slabbert
drew attention to the fact that this
was a classical “trap” case. Over the years our
Courts have emphasised that
a trap whether he be a police official or
a lay person may have a motive to secure a conviction which in the
words of Alexander
J in
S v Ramroop
1991(1) SACR 555 at 559 G
– I, “may override honesty”. It is thus
incumbent on the Court to view the evidence
of a trap with a degree
of caution and circumspection. The application of this
cautionary rule should be demonstrated in
the reasons for judgment.
Thus it seems to me that in the context of the events which unfold in
a trapping case a trier of
fact will look for corroboration of the
trap where such corroboration ought to be revealed.
Discrepancies between the trap
and other witnesses will in this
context take on an added significance in the evaluation of the
overall credibility of a trap.
I may say at once that there is
no question that van Zyl’s evidence was admissible having
regard to the provisions of section
252(A)(2) of the Criminal
Procedure Act. The issue is one of the weight to be attached to
the evidence given by the trap.
[20]
In my view the Regional Magistrate misdirected herself in her
approach to the evidence of van
Zyl. She mentioned in her
judgment the cautionary rules applicable to a single witness.
Missing from this is the pertinent
observation that the single
witness is a trap and as mentioned above the trier of fact ought to
demonstrate in the reasons given
that it is safe to believe the trap
witness. In my view it is dangerous to rely simply on demeanour
and the impression made
by the police witness. Such police
witness would presumably have had experience in giving evidence
before a Court and would
make a good impression. Mere reliance
on demeanour is not a reliable yardstick for judging credibility.
[21]
In my view in a trap case of this nature one expects the State to
present a corroborative trail,
that is to say, the facts and indeed
records which support the evidence of the trap. Thus in the
trap cases that I have encountered
one find invariably evidence that
a trap is searched, the money that is handed over to him is marked
and he is kept under observation
throughout the operation.
After the trap is sprung the police that are supporting the trap
search for the marked money which
if found in the accused’s
possession serves as strong corroboration of the trap’s
evidence. Furthermore if the
trap testifies that he made a
cellphone call to the accused at a given time, these cellphone
records are readily available and
will show the call made by the trap
to the accused’s cellphone. Again, important
corroboration of the trap’s
evidence. One would also
expect the trap and his handler to keep notes in their respective
pocketbooks detailing the unfolding
of the operation.
[22]
In the instant case I am afraid that none of the above were presented
by the State in evidence.
It is also important to note that the
case before the Regional Magistrate commenced some six years after
the events that were described
in the evidence. It cannot be
acceptable that a witness such as van Zyl is permitted because of the
passage of time to hide
behind a fading memory. The precision
and the detail which is required in a case of this nature can simply
not be tested
by the accused. That has implications as far as a
fair trial is concerned. There is some suggestion in the record
that
the delay in charging the accused was due to various other cases
which the State brought against the accused and other persons.
Be that as it may the delay must inevitably be regarded as an
unsatisfactory feature in the case.
[23]
Mr
Slabbert
has pointed to a number of improbabilities in van
Zyl’s evidence. It is sufficient for purposes of this
judgment if
I deal with some of these.
[24]
With regard to the transaction on 23 February 1998 there is no doubt
on van Zyl’s evidence
that there would have been a cellphone
record trail of the conversations he had with the accused.
After van Zyl had bought
the seven tablets for R350 at R50 a tablet
the accused told him that he had 3 000 Ecstasy tablets available.
I agree with
counsel’s submission that since van Zyl’s
main task was to purchase drugs and trap the accused it is improbable
that
he did not make an arrangement with the accused in regard to the
future purchase of these 3 000 tablets. His conduct appears
to
have been inconsistent with the main purpose of the exercise namely
to trap the accused. Also one would have expected
van Zyl to
have discussed a price with the accused for the 3 000 tablets.
[25]
Insofar as the transaction on the 23rd is concerned here again
there is evidence from van
Zyl that he contacted the accused by
cellphone. This time he told the accused he wanted “60”.
He did not
say 60 of what. It is improbable that Kriel would
give him R3 600 when a few days before he had paid R350 for seven
tablets
which is R50 a tablet. One would have expected the
witness to have paid R3 000 for the 60 capsules not R3 600. Van
Zyl’s explanation when confronted with the question why he
arrived with R3 600 on this occasion he said :
“Your Honour, I must say that the tablets and the capsules
were
different. It was not the same product that I bought.”
This answer does not bear
scrutiny particularly in the light of his concession that he did not
know what he was expecting to buy.
He contented himself with
the answer that that was the amount the investigating officer gave
him. The latter told him to
go and purchase the exhibits from
the accused. He accordingly took the amount of R3 600 and went
to purchase. Van Zyl
said he could not remember the
conversation with the accused on the telephone on the 23rd February.
He did not record
the contents thereof in his statement either.
He said there was no agreement about a price to be paid for the
purchase nor
was he told how much money he had to bring with him.
When pressed as to why he took R3 600 with him he said :
“Your Honour, I took R3 600 because that was the amount
that
the investigating officer gave me purchase the Ecstasy”.
He admitted that neither
he nor the investigating officer knew that it would be R60 a unit.
He then fell back on fading memory
and said he could not recall the
conversation. Inspector Kriel in his evidence said that he had
been told on the 21st about
van Zyl’s intention to make
another purchase from the accused. That was fortified by his
actions in drawing the necessary
amount of money in preparation for
the transaction on the 23rd. The following exchange took place
between the cross-examiner
and Kriel :
“Now you’re ask – do you agree if his evidence
in
this court is that it’s only on the 23rd at 11:20 –
sorry, at 12:20, that is twenty minutes past twelve the
day he phoned
the accused, that evidence cannot fit in with your version.
It’s impossible because how would you have
known how much money
to go and draw? .--- The only reason I know is because he told
me beforehand.
When further pressed Kriel
said that van Zyl must have made arrangements prior to the 23rd.
[26]
Here again in the context of a trapping case this apparent
discrepancy ought to have weighed
heavily with the trier of fact.
As I have said above, one expects that the evidence of the persons
conducting the operation
will be consistent in every material
respect. Here we have an instance where a very important
ingredient of the trapping
operation is tainted with doubt.
Corroboration in the form of cellphone records could easily have been
obtained to back up
the version of the State witnesses. These
are noticeably lacking.
[27]
It is clear from Kriel’s evidence that he did not properly
observe or monitor van Zyl when
he went into the club. The
failure to keep observation throughout renders any trap and indeed
this one very suspect.
[28]
It follows that I cannot agree with the magistrate’s finding
that the witness was an “excellent”
one. In my view
having regard to some of the important deficiencies in the State case
to which I have alluded, a reasonable
trier of fact would entertain
serious doubts about the acceptability of the State case.
[29]
However one should eschew piecemeal reasoning. The evidence as
a whole including the accused’s
evidence, must be weighed in
the scales. Here again I am of the opinion that the
magistrate’s approach to the accused’s
evidence is
vitiated by misdirection. In the first place the regional
magistrate found that the accused could not “satisfactorily
explain how he obtained the photograph which was submitted”.
The accused explained that he was with a group of people
and was
speaking about van Zyl’s testimony to the effect that he never
drank. He said a woman by the name of Angie
who was part of
this group said she knew van Zyl. He was out drinking with her
one night and she had photographs of that
particular party. She
handed the accused the photograph. In my view this was a
perfectly acceptable explanation.
[30]
A further adverse finding against the accused’s credibility was
made in regard to a person
called Yolande. It was put to the
witness van Zyl by counsel for the accused that this person Yolande
knew van Zyl had bought
the drugs for himself. The magistrate
recorded that the accused had said he did not know Yolande.
That was regarded
by the magistrate as a contradictory feature in the
accused’s testimony. In my view this was a misdirection.
Counsel for the accused explained to the court that it was he who had
acquired the knowledge based on tape recordings which had
been used
in another drug related case. Those tape recordings had been
made available to counsel by the State. In these
there was a
conversation between Yolande and van Zyl. The regional
magistrate made a further finding which bore on the accused’s
credibility :-
“The accused state that he did not know van Zyl but could
not
advance any possible reason as to why van Zyl would choose to
implicate the accused as no bad blood existed between them.”
One often encounters
reasoning along similar lines from judicial officers in the lower
courts. A finding of this nature is
usually designed to
demonstrate an improbability in the accused’s evidence.
This is faulty and judicial officers should
avoid reasoning along
those lines. In
S v Ipeleng
1993(2) SACR 185 at 189 C -
D, Mohamed J (as he then was) speaking in the Full Bench said the
following :
“It is dangerous to convict an accused person on the basis
that
he cannot advance any reasons why the State witnesses would falsely
implicate him. The accused has no
onus
to provide any
such explanation. The true reason why a State witness seeks to
give the testimony he does is often unknown
to the accused and
sometimes unknowable. Many factors influence prosecution
witnesses in insidious ways. They often
seek to curry favour
with their supervisors; they sometimes need to placate and impress
police officers, and on other occasions
they nurse secret ambitions
and grudges unknown to the accused. It is for these reasons
that the Courts have repeatedly warned
against the danger of the
approach which asks :’Why should the State witnesses have
falsely implicated the accused?’”
In
R v Mthembu
1956(4) SA 334 (T) at 335 – 6, very similar sentiments were
expressed by Dowling J.
“The magistrate in his reasons for judgment obviously takes
the
view that if the evidence of the traffic inspector is accepted then
the accused was guilty of driving to the danger of the
public.
In coming to the conclusion that that evidence is to be accepted he
said that the inspector saw the accused drive
as he says or he has
come to court to commit perjury. That is not the correct
approach. The remarks of the late Millin
J in
Schulles v
Pretoria City Council
, a judgment delivered on the 8th June
1950, but not reported, are very pertinent to this point; he
says :
‘It is a wrong approach in a criminal case to say ‘Why
should a witness for the prosecution come here to commit perjury?’
It might equally be asked : ‘Why does the accused come
here to commit perjury?’ True, an accused is interested
in not being convicted, but it may be that an inspector has an
interest in securing a conviction. It is, therefore, quite
a
wrong approach to say ‘I ask myself whether this man has come
here to commit perjury, and I can see no reason why he should
have
done that; therefore his evidence must be true and the accused must
be convicted.’ The question
is whether
the accused’s evidence raises a doubt.’”
[31] In the course of the judgment
the regional magistrate found :-
“He admitted that he had discussed the trial with various
other
people who it later became known that these were accused in similar
charges in other courts.”
I agree with Mr
Slabbert
that it is unclear why the regional magistrate regarded that fact as
sinister and adversely affected his credibility. That
too was a
misdirection.
[32]
Insofar as the raid which took place on 26th February 1998 is
concerned, it is clear that
the accused was not on the premises when
that took place. It was also established that other
persons had access to
that storeroom. It is indeed reasonably
possible that those other persons could have placed the drugs in the
storeroom without
the accused’s knowledge. It follows
from this that on this record there is no basis to reject the
accused’s evidence
which was to the effect that there were four
partners as well as managers running the business and that four or
five persons had
access to the keys of the storeroom. The
accused’s evidence in this respect could reasonably possibly be
true and no
basis exists to reject it as false beyond a reasonable
doubt. I find it unnecessary therefore to consider the legal
issue
in regard to “sale” as set out in count 4.
[33]
Insofar as the purchases on the 20th and 23rd February 1998
were concerned, the fact
that the magistrate’s findings of
credibility are vitiated by misdirection means that this Court is at
large to consider
the record as a whole and determine whether the
guilt of the accused has been established beyond a reasonable doubt.
In my
view there is no basis on a consideration of the record to make
that finding or to reject the accused’s evidence as false
beyond a reasonable doubt. It follows that the convictions on
Counts 1 and 2 cannot stand.
[34] To
sum up then the appeal is upheld and the convictions and sentences
imposed on Counts 1, 2, the alternative
to Count 3 and Count 4 are
set aside.
NILES-DUNéR J
Date of hearing : 17
February 2009
Date of judgment :
26th May 2009
Counsel for the Appellant
: S D Slabbert (instructed by Janice Selleck)
Counsel for the Respondent : P C Bezuidenhout (instructed by the
Director for Public Prosecutions