Gamede and Othes v S (AR 434/08) [2009] ZAKZPHC 40 (4 September 2009)

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[2009] ZAKZPHC 40
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Gamede and Othes v S (AR 434/08) [2009] ZAKZPHC 40 (4 September 2009)

IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 434/08
In the
matter
between
:
MTHOKOZISI GAMEDE
1
ST
APPELLANT
NOBULA GAMEDE
2
ND
APPELLANT
NTENJANE MAKHANYA
3
RD
APPELLANT
and
THE STATE
RESPONDENT
APPEAL JUDGMENT
Delivered
on 04 September 2009
______________________________________________________
SWAIN J
[1] The appellants were
convicted of a contravention of Section 5B of the Drugs and Drug
Trafficking Act 140 of 1992 (the Act) in
that during June 2004 on the
farms Spitzkop and Mange, they dealt in 556 kilograms of
methaqualone, an undesirable dependence
producing substance, listed
in Part 3 of Schedule 2 of the Act. Each appellant was sentenced to
twenty years’ imprisonment and
declared unfit to possess firearms.
[2] The appeal is against
both conviction and sentence, with the leave of the Court
a
quo.
[3] The appeal was
advanced on three main grounds:
[3.1] Whether the State
had proved beyond a reasonable doubt, that the gas chromatographs
used to determine the nature of the substances
found on the farms
Spitzkop and Mange, functioned correctly and reliably.
[3.2] Whether the State
had proved beyond a reasonable doubt that the results of the analysis
of these substances, reflected on
the computer printouts produced by
these gas chromatographs, were correct and reliable.
[3.3] Whether the State
had proved that the appellants manufactured and/or dealt in
methaqualone.
[4] Simply put, did the
State prove beyond a reasonable doubt, that methaqualone was present
in the samples removed from the farms
Spitzkop and Mange and if so,
was it proved that the appellants were involved in its manufacture,
or dealt in it?
[5] Mr. Engelbrecht, S.C.
who, together with Mr. Bam, S.C. and Mr. West appeared for the
appellants, sought to persuade us that
the State had failed in its
endeavour to prove that the instruments utilised to detect the
presence of methaqualone had
“functioned
correctly, accurately and reliably”.
[6] Mr. Engelbrecht,
S.C., relying upon certain dicta in the following decisions
S v Mthimkulu
1975 (4) SA 759
(A)
S v Strydom
1978 (4) SA 748
(EC)
S v
Terblanche
1981 (1) SA 791
(T)
S v Dickenson
1982
(3) SA 84
(A)
S v van der
Sandt
1997 (2) SACR 116
(WLD)
submitted that it was
incumbent upon the State to lead expert evidence, to explain how the
automatic analysis in the instruments
was done and the basis upon
which it should be found that the analysis was correct and reliable.
This is particularly so as judicial
notice could not be taken of the
reliability of gas chromatographs
van der Sandt
supra
at
page 134 C
Mr. Engelbrecht, S.C also
submitted that the evidence led by the State fell short of this
objective, when compared with the nature
of the evidence led in
certain of these cases.
[7] The production of
certificates by the State, in terms of
Section 212
(4) (a) of the
Criminal Procedure Act 51 of 1977
to furnish
prima
facie
proof
of the presence of methaqualone in the samples, did not achieve this
goal, as they failed to include an explanation (as required
in van
der Sandt’s case at page 134 D) as to why the process of analysis
was reliable. The certificates did contain a description,
albeit a
cryptic one, of the process used to obtain the results.
[8] To cure this lack the
State led the evidence of Insp. Twala and Sgt. Mapatoana who
“evaluated”
the gas chromatographs used to produce the results which are in
issue. It is therefore necessary to examine their evidence at
the
outset.
[9] Insp. Twala stated
that she evaluated the instrument described as HP3. This process
entailed three distinct steps:
[9.1] Firstly, the
instrument had to be “
tuned”
by opening the
“Cam
Station software”
on the computer and pressing the
“tune
function”
with the result that the instrument automatically tunes itself. By
tuning the instrument the mass spectrum parameters are adjusted.
The
tuning takes place automatically and the witness said she had an
understanding of how this was done “
but
I’m not comfortable like telling you step by step how the
instrument does it”.
When
the instrument has finished tuning, it produces a report which is
checked to see whether it passes, or meets the criteria.
If it does,
then the next stage is proceeded to. In the present case the
instrument passed the tune report.
[9.2] The Grob test
mixture is then run in the machine. This is a mixture of compounds
that are used to evaluate the suitability
of the instrument, which is
bought from a supplier to an international standard. The compounds
contained in this mixture are stipulated
in the SOP (Standard
Operating Procedure) manual utilised in the laboratory. The mixture
contains the following chemicals (as
appears from the record of the
proceedings in the Court
a
quo
parts of which it appears the transcriber was unable to transcribe).
“
COURT Do you want her to read it.
Ja? --- The SOP says:
“
The commercial Grob test mixture is
solution of an indican 2.3 butane diol, dicyclo [?} hexane amine, two
ether hexanoic acid, one
nonenal [?], one octanol [?] 2.6 dimethyl
alanine, 2,6 dimethyl phenol, methyl anticanoate [?], methyl neurite
and methyl caproate.”
The function of the Grob
mixture was to test the column performance of the instrument, namely
the ability of the column to separate
the compounds according to
their mass to ratio. The results are retrieved from the instrument
and a calculation is done on the
results, to determine whether they
meet the criteria set out in the system suitability report. In the
present case, the instrument
met the requisite criteria.
[9.3] Before the
instrument can be certified as fit for use, a further solution,
described as
“decker
flora tripe butyl amine”
(DFTPP) has to be run through the machine to evaluate the mass
“
spectrophotometer”.
This solution is
obtained from a supplier and an instrument technician in the
laboratory adds methaqualone to it. The results
are retrieved from
the machine and calculations are then done in respect of the mass
spectrometer and the results are recorded
in the systems suitability
report. The purpose in completing the report is to check if the mass
parameters meet the criteria.
If this occurs then the instrument is
declared fit for use. The report was handed in as Exhibit “J”.
The instrument met
the criteria and there were no limitations.
[10] Turning to the
evidence of Sgt. Mapatoana. She stated that she evaluated the
instruments described as HP2 on 08 September
2004 and HP4 on 09
September 2004. She confirmed the three steps described by Insp.
Twala, to evaluate these instruments and added
the following:
[10.1] The
“tuning”
procedure involved calibrating the mass spectrometer which is
attached to the gas chromatography. The tuning is automatically
done
to a standard that comes with the mass spectrometer. By tuning, it
aligns the electronics of the mass spectrometer, together
with the
voltages of the mass spectrometer. The results of the tuning then
have to be checked to see if they meet the requirements.
In the
present case the witness was satisfied with the results.
[10.2] The Grob mixture
was then run through the instruments. This is used to evaluate the
gas chromatograph portion of the instrument.
The Grob mixture
consists of compounds which are specifically different in functional
groups. In the present case the witness
was satisfied with the
results.
[10.3] The mixture of
DFTPP with methaqualone added was then run through the instruments in
order to check the sensitivity of the
mass spectrometer, as well as
the repeatability.
[10.4] The methaqualone
which is added to the DFTPP, is purchased as a reference material and
comes in a sealed ampoule with a
certified reference material
certificate, certifying that it is pure and has been tested. The
results are then recorded in a
systems suitability report, which in
respect of the instruments HP2 and HP4 were handed in as Exhibits
“L1” and “L2”.
She confirmed that the report and evaluation
is then valid for two weeks.
[10.5] The results in
respect of the instrument HP2 were that it passed for all of the
components contained in the Grob, except
for alcohol and acids. In
other words, the instrument could not be used to detect the presence
of alcohol and acids. As regards
instrument HP4, the results were
that it could not be used to detect acids, but derivative amines were
allowed. The instrument
passed in respect of the sensitivity and
repeatability of methaqualone.
[10.6] The witness was
unable to tell the Court exactly how the machine and the computer
work.
[11] In developing his
argument that the evidence in the present case fell short of its
objective, Mr. Engelbrecht, S.C. compared
this evidence with the
evidence led in Dickenson’s case. We were referred to the analysis
carried out by the Appellate Division
of the evidence placed before
the Court
a
quo
in
that case, appearing at pages 92B to 93H of the report.
[12] In State v Dickenson
(at page 94E – F) the Appellate Division distinguished the nature
of the evidence led in that case,
from the evidence led in State v
Strydom and State v Terblanche, to establish the reliability and
accuracy of the gas chromatograph
used.
[13] However, what is
important is that the Appellate Division emphasised that each case
must be decided on the evidence before
it.
State v Dickenson
supra
at 94G
A comparison with the
nature of the evidence led in other cases can only serve as a guide
on this issue.
[14] An analysis of the
evidence in State v Dickenson by the Appellate Division reveals the
following steps were taken by the analyst
Muller in that case, to
ensure the results were accurate and reliable.
[14.1] Four control
samples containing different pre-determined percentages of alcohol,
were placed in the instrument to determine
whether it accurately
detected the percentage of alcohol present in each sample. If there
was a deviation falling outside certain
fixed parameters, it
indicated the instrument was not functioning properly. This was
termed an
“external
standard”.
[14.2] These tests were
repeated every ten days, to ensure that samples were reliably tested
in the interim.
[14.3] Tests of the
blood sample in question were carried out on two separate
instruments, under different conditions, to ensure
that the results
produced were consistent.
[14.4] It was ensured
that the instrument had a
“konstante
basislyn”
which
meant
“’n lyn wat
geen afwykings toon nie”
and this was obtained when the instrument was operating, but without
any sample for analysis, or when an analysis was done, which
did not
indicate any deviation. A constant base line was an indication that
the instrument was operating correctly.
[14.5] An
“internal
standard”
was
also applied in terms of which a mixture of tertiary butanol of a
defined concentration and volume, was added to both the blood
samples
and the alcohol control samples (referred to in paragraph 14.1
supra
).
If the results indicating the percentage of this mixture in both the
blood samples and alcohol samples remained constant, this
was a
further indication of the reliability of the results.
[15] Considering the
above evidence, the Appellate Division was of the view that it
indicated that the analyst was aware that the
instrument had to be
working properly before analysing samples. Of particular importance
was the use of the
“external
standard”
referred to above. In other words, results produced by the
instrument were measured against a yardstick, which was prepared
in accordance with a pure
chemical method. Consequently, it could not be said that the
instrument was used to determine its own
accuracy.
S v Dickenson
supra
at
page 95A- B
[16] Considering the
evidence led in the present case, and in the light of the evidence
led in S v Dickenson, I am satisfied that
it establishes that
sufficient evidence was led to prove the gas chromatographs
functioned correctly and the results are reliable,
for the following
reasons.
[17] Central to the
enquiry is whether the functioning of the instrument has been tested
against an external reliable yardstick,
repeated at regular
intervals. In the present case, the testing of the instruments,
utilising the Grob mixture fulfilled this
important function. It
cannot be said therefore that the instruments were used to determine
their own accuracy, in other words
the so-called
“external
standard”
was
satisfied.
[18] As regards the
so-called
“internal
standard”,
I
consider this standard was satisfied by the use of the mixture of
DFTPP plus methaqualone. It seems to me that the object of
this test
was to ensure that the instrument was able to reliably detect
methaqualone in a predetermined concentration and volume,
in much the
same way as tertiary butanol was utilised in a similar manner in S v
Dickenson. In coming to this conclusion, I do
not lose sight of the
fact that Sgt. Moripe said the tests for methaqualone conducted on
the samples in July 2004 were unreliable
and had to be redone in
September 2004. Mr. Engelbrecht, S.C. submitted that the witness had
to speculate as to what the reasons
were for this and consequently,
an expert should have been called to testify about the reliability of
the instruments used. I
disagree. The witness said the
unreliability of the results could have been caused by one of two
reasons. Either the samples
were too concentrated, or the sample was
not tested within forty eight hours of the control sample. He agreed
he would have to
speculate as to which was the cause, but if he went
back to the laboratory he said he would be able to find the exact
reason by
examining the saved dockets. What is clear is that neither
of the possible reasons impinged upon the reliability of the
instrument
itself.
[19] A further submission
of Mr. Engelbrecht, S.C. was that the evidence as to the nature of
the Grob mixture and the DFTPP plus
methaqualone mixture, was all
hearsay evidence. As I understand the argument, it is that there was
no evidence before the Court
a
quo
,
to prove the composition or purity of either of these mixtures, which
were supplied by an independent supplier.
[20] In the field of
evidence to prove the reliability, or correctness of a particular
instrument, hearsay evidence is to some extent
admitted and acted
upon. The extent to which a court will insist upon, or relax, the
standards of proof which theoretically apply
when evidence involving
the use of scientific instruments is presented, will depend upon:
[20.1] The nature of the
process and instrument involved in the particular case.
[20.2] The extent, if
any, to which the evidence is challenged.
[20.3] The nature of the
enquiry and the
facta
probanda
in the case
S v Mthimkulu 1975
(4)SA 759 (A) at 765 A – B
[21] The purity or
composition of neither of these mixtures were challenged when Sgt.
Mapatoana and Insp. Twala gave evidence. They
were never asked
whether any problems had been experienced in this regard, nor whether
they could express any views on the purity
or composition of these
mixtures. As stated by Zulman A J A in
S v Reddy &
Others
1996 (2) SACR 1
(A) at 10 b – d
“
In considering the effect of
evidence, one need not be concerned with ‘remote and fantastic’
possibilities and that it is not
incumbent upon the State to
eliminate every conceivable possibility that may depend upon pure
speculation”
[22] When regard is had
to the nature of the enquiry, i.e. whether the mixture supplied by
the independent laboratory was pure and
contained the requisite
elements, as well as the purpose for which they were used, namely to
regularly test the functioning of
the instruments, I am satisfied
that in the absence of a specific challenge, the State was not
obliged to lead evidence to prove
these issues which were nothing
more, nor less, than a remote possibility.
[23] A further challenge
aimed by Mr. Engelbrecht, S.C. at the reliability of the results, lay
in the accuracy of the weighing scale
used by Sgt. Moripe. The basis
of the complaint was that the printout from the scale reflected a
total weight of 556.3 kilograms
and several dates, namely in 2002 and
2003. The witness said he had weighed the solid substance and powder
found at the farm Spitzkop
and he had done this in September 2004.
He said he was aware of the error in the printouts, but it did not
make a difference to
the weight and the representatives of Methla,
who calibrated the instrument, would have to rectify this.
[24] Any error in the
weight reflected would have no bearing upon the reliability of the
result that methaqualone was detected in
the weighed samples. When
the photographs are considered, a considerable quantity of samples
were collected, which does not suggest
any improbability in the total
weight produced by the scale. In any event the mere fact that the
printouts contained incorrect
dates, does not lead to a reasonable
inference that the scale did not perform its primary function of
weighing samples, accurately
and reliably. I regard the drawing of
such an inference as a remote possibility, which did not require the
State to lead the evidence
of an expert, that it was functioning
accurately at the time. In any event, a
Section 212
statement by
Johan McDonald (Exhibit “H”) indicated that the scale was
calibrated on 05 October 2004 and found to be in order.
[25] A final challenge
raised by Mr. Engelbrecht, S.C. was that no evidence was adduced that
the samples in the other matters, which
were run simultaneously with
the samples in this matter did not, after having been loaded into the
instruments, contaminate each
other. Having considered the evidence,
I am satisfied that this is again a remote possibility, such that it
was not incumbent
upon the State to eliminate such a possibility, by
leading the evidence called for.
[26] In the light of the
above I am satisfied that the State proved beyond a reasonable doubt
that the gas chromatographs used to
determine the nature of the
substances found on the farms Spitzkop and Mange, functioned
correctly and reliably.
[27] Turning to the
second main ground of appeal, namely whether the computer printouts
produced by the gas chromatographs were
correct and reliable. The
learned Magistrate dealt with this issue by reference to
Section 15
(4) of the
Electronic Communications and Transactions Act No. 25 of
2002
. I agree with his reasoning and conclusion in this regard.
[28] The remaining main
ground of appeal is whether the State proved beyond a reasonable
doubt, that each of the appellants manufactured
and/or dealt in the
methaqualone discovered on the farms Spitzkop and Mange.
[29] Dealing with the
first appellant. The sole reason of the Magistrate for convicting
the first appellant was the following:
“
Accused 1 pinned his colours to the
mast of accused 2 and relied upon her evidence being accepted.
Unfortunately for him, that did
not happen. It can be accepted that
accused No. 1 knew what was being conveyed on the motor vehicle in
which he was a passenger,
and that he assisted in the removal”.
On this basis the
Magistrate found the first appellant guilty of dealing in
methaqualone.
[30] The Magistrate
clearly misdirected himself in this regard. A rejection of the
second appellant’s evidence could not have
as its inevitable
consequence, a finding that the first appellant knew what was being
conveyed on the motor vehicle, and also assisted
in its removal.
[31] No evidence was led
to show that the first appellant had been seen previously on either
of the farms, nor that he had been
seen in the company of the
individuals who were dressed in gloves, boots and gas masks and who
were clearly involved in the drug
manufacturing process. This
evidence was of decisive significance in linking appellants 2 and 3
to the drug making activities
on the farm.
[32] As regards the
arrest of the first and second appellants, according to Insp. Khumalo
they spoke with the driver, being the
second appellant. Second
appellant, when asked what was at the back of the vehicle, said it
was food for the cows. She then said
that the kids who were left
behind at the farm had sent
“her”
to discard these things. Insp. Khumalo said it was Insp. Madonsela
who had addressed the second appellant. Insp. Madonsela, when
giving
evidence, stated that he had asked both the first and second
appellants what was in the motor vehicle and neither had responded
to
his question. He searched the vehicle, found certain items, warned
both appellants and then arrested them. Both appellants
gave him
their names and the second appellant then said that two male persons
at the farm had told
”them”
to take
“these things
that were at the back of the bakkie to go with them and discard them
because the policemen were coming”.
[33] In the light of the
obvious contradictions, very little weight can be attached to the
evidence of Insp. Madonsela, that he
enquired from
“both”
appellants what was in the bakkie, as opposed to Insp. Khumalo’s
evidence that the enquiry was only directed at the second appellant.

There is consequently no cogent evidence to prove that the first
appellant was directly asked for an explanation and failed to
give
one. In any event, it is trite that the first appellant was entitled
to remain silent.
[34] The evidence against
the first appellant is not direct, but circumstantial. The
circumstances in which he was arrested are
suspicious, and one would
have reasonably expected that, if innocent, he would have given
evidence to answer, or explain his presence
in the bakkie. A failure
to give evidence in such a case will strengthen any unfavourable
inferences, which can properly be drawn
from the prosecution
evidence.
The South African
Law of Evidence – Zeffertt et al page 128
However, this form of
reasoning can only apply when the prosecution case is strong enough
to call for an answer. It must be sufficient
in itself to justify,
in the absence of explanation or answer, the inference of guilt.
Zeffertt
supra
at page 128
[35] In the absence of
a
prima
facie
case against the first appellant, his failure to testify cannot
result in proof beyond a reasonable doubt that he is guilty of

dealing in methaqualone. The fact that the circumstances surrounding
his arrest are suspicious is not sufficient. His mere presence
in
the vehicle did not establish a
prima
facie
case against the first appellant.
[36] As regards the
second appellant, I agree with the finding of the Magistrate that she
“was an exceedingly
poor witness”.
Her
evidence of what she was doing on the night she was arrested when
leaving Mange farm is grossly improbable. Her professed ignorance
of
the identity of the individuals on the farm, who had been there for
some time, as well as her professed ignorance of what they
were doing
on the farm, is grossly improbable. In addition, the illogicality of
her travelling ahead of the individuals who had
to show her where to
deposit her load, is apparent. Also, her attempt to explain why she
drove at high speed, which was clearly
to evade arrest, is equally
improbable.
[37] Additionally, as
pointed out by the Magistrate, the evidence of Insp. van Heerden
placed the second appellant at Spitzkop farm
shortly before her
arrest. His identification of her is supported by his evidence that
she was wearing a blue dress under a green
one, as indicated in the
photographs he took of the second appellant at the time of her
arrest, being Exhibit “D”.
[38] In short, when all
of the evidence against the second appellant is considered, I am
satisfied that her protestations of innocence
and ignorance are not
reasonably possibly true.
[39] As regards the third
appellant, what is of decisive importance was his failure to testify.
There was clearly a
prima
facie
case established against him, by virtue of his arrival at Spitzkop
with a black bag, labelled as
“anthranillic
acid”,
in the
back of the vehicle he was driving. The evidence was that this was a
necessary ingredient in the manufacture of methaqualone.
Although no
forensic evidence was led to establish what the contents of the bag
were, when the presence of the bag labelled in
this manner, is taken
together with the evidence of Mchunu and Thusi, that the third
appellant visited the farm Spitzkop on several
occasions, an answer
was called for from the third appellant. The
prima
facie
evidence against the third appellant was sufficient in itself, in the
absence of any explanation by him, to ensure his guilt.
[40] Turning to the issue
of sentence. The challenge in respect of the sentence imposed upon
the second appellant, was that no
enquiry was made as regards the
interests of her minor children, should the second appellant be
incarcerated for twenty years.
S v M (Centre for
Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
I agree however with the
submission of M/s Franklin, who appeared for the State, that the
trial court was aware that the second
appellant had three minor
children and that a consideration of their interests would not have
altered the aggravating factors which
were present. The appropriate
sentence was clearly custodial and no issue was raised before the
Magistrate, that the minor children
would not be adequately cared
for, while the second appellant was incarcerated. In addition, I do
not agree that the cumulative
effect of the personal circumstances of
the second and third appellants, constituted substantial and
compelling circumstances.
[41] In all of these
circumstances I regard the sentences imposed as entirely appropriate.
[42] I would therefore
propose the following order:
The appeal of the first
appellant succeeds and his conviction and sentence are set aside.
The appeals of the second
and third appellants are dismissed and their convictions and
sentences are confirmed.
I agree
___________
HOLLIS A J
It is so ordered
____________
SWAIN J
Appearances/….
Appearances:
For the Appellant
:
Adv.
J. Engelbrecht, S.C. with
Adv. B. Bam S.C.
and
Adv. H.P. West
Instructed
by
: Eylers
Attorneys
Centurion
For the
Respondents
: Adv.
D. Franklin (M/s)
Instructed by
: The Director of Public Prosecutions
Date of Hearing
: 25
August 2009
Date of Filing of
Judgment
: 04
September 2009