S v Radebe (CA&R 75/06) [2007] ZANCHC 11 (12 February 2007)

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
>>
2007
>>
[2007] ZANCHC 11
|

|

S v Radebe (CA&R 75/06) [2007] ZANCHC 11 (12 February 2007)

IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION)
KIMBERLEY
CASE
NO.: CA&R 75/06
DATE:12-02-2007
In
the Appeal of:
VUSI
RADEBE
APPELLANT
versus
THE STATE
RESPONDENT
CORAM:
MOLWANTWA AJ et MOKGOHLOA AJ:
JUDGMENT: APPEAL
MOLWANTWA
AJ:
INTRODUCTION
1. The appellant was
convicted of contravention of section 5(b) of the Drug Trafficking
Act 140 of 1992, dealing in drugs in the Magistrate
of Kimberley on 4
August 2005. He was represented during the trial. He pleaded not
guilty to the charge. Despite his plea he was
convicted as charged.
He was sentenced to 4 years imprisonment.
He
is now appealing against both his conviction and sentence.
THE
STATE CASE
2. Inspector Willem
Albertus Van der Westhuizen testified that on 9 February 2005 in the
morning and around 13h00 the person that
purported to be the
appellant was contacted telephonically to arrange to buy cocaine from
him. All steps necessary as set out in
section 252A of the Criminal
Procedure Act 51 of 1977 (the Act) were followed. This included
procuring R600, 00 to be used for the
entrapment.
3. Between
16h00 and 17h00 as part of the operation and as agreed with the
dealer , the appellant and Constable Theron who acted as
“
the
agent
”
met in Kimberley town at a place agreed upon. He remained in his
vehicle within 10 to 20 meters from both Theron and the appellant
when they met in one street, sat down talking to each other and then
crossed over to another street. In that street he saw the appellant
point to a dustbin to which the agent walked and took out something.
4. He
testified that he kept them under observation at all material times
and never lost sight of them except the odd occasions when
cars were
passing by. However he did not see when the appellant received the
money from the agent. Soon thereafter the appellant
walked away.
Theron informed him telephonically that he received the cocaine. He
followed the appellant in his vehicle and saw him
enter John Craig
Store. Not long, the appellant walked out of John Craig apparently
knocking off. Nonetheless he took a photo of
the appellant when he
came out of the Store .He was certain that the man who was with
Constable Theron,
“the
agent”
earlier on was the same man that walked into John Craig and came out
hardly a few minutes. This same man was the appellant. The
investigating officer came to the scene, and Theron handed him the
cocaine for further investigations.
5. Constable Theron, “the
agent’s” evidence is significant. He testified that he met the
appellant in a street in Kimberley
as arranged earlier during the
day. They spoke and sat on a bench. The appellant first gave him a
small quantity of cocaine to
taste. He tasted it and was satisfied
that it was indeed cocaine. He then paid the appellant R600, 00 as
agreed. The appellant showed
him the dustbin in which he will find
the cocaine he was buying. He went to the dustbin and found the
cocaine, wrapped separately
in 10 small plastic packets. The
appellant walked away. He also took his own direction and immediately
informed Van der Westhuizen
telephonically that the transaction was a
success. They met with the investigation officer of this same case,
Constable Topkin and
handed over the cocaine in the 10 plastic
packets for further investigations. The cross-examination of Theron
was perfunctory.
At no stage was it put to him that he was not in a
position to identified the appellant. Nor was it put to him what
would have made
it difficult for him to be able to identify the
appellant.
6. Constable Topkin
testified that Theron handed him the 10 rocks of cocaine bought from
the dealer on 9 February 2005. He took the
same to the police
station. As is procedure he clearly identified the items with the
case number of this case, Kimberley Mass number
143/3/2005 SAP13,
9/2005. He locked them up in a safe in which exhibits for the
Specialised Crimes Unit are kept. The safe is in
the office of the
Specialised Crimes Unit separate from the general exhibit safe. On 19
February 2005 he removed the same items marked
as indicated above
from the safe specified and took them to the forensic laboratory in
Pretoria for analysis. The results from the
laboratory confirmed that
the substance tested was indeed cocaine. A certificate from the
laboratory was then handed in as exhibit.
THE
APPELLANT’S EVIDENCE
7. The appellant’s case
was that he was not the man who met the police trap and sold him
cocaine on 9 February 2005. He reported
on duty at John Craig Store
and never left the shop until he knocked off in the afternoon. He
never met the two police officers prior
to his arrest.
THE
DEFENCE ARGUMENT
8. Mr.
Nel for the appellant has made these submissions:
8.1 The Court erred by
not taking into account material discrepancies, improbabilities and
unsatisfactory aspects in the evidence
of the State.
8.2 The
Court did not approach the evidence of identity of the appellant with
the necessary caution.
8.3 The
State failed to prove beyond reasonable doubt that the substance the
appellant allegedly sold to the police officer was indeed
the same as
that analysed at the forensic laboratory.
EVALUATION
OF THE EVIDENCE
9. The submissions made
in the Heads of argument and orally on behalf of the appellant have
to be taken in the context of the following:
9.1 Trade
in drugs had taken a toll in the Northern Cape between 2004 and 2005.
The police embarked on several covert operations
in order to bring
dealers who had come into Kimberley to book. These operations were
made successful through the help of informers
and some police
officers operating under cover. This specific operation was named
“Operation
Dragon”
emanating
from “
Operation
Candy
”.
It is undisputed that this particular operation was conducted
properly and in terms of the prescripts, in particular section
252A
of the Criminal Procedure Act 57 of 1977 (the Act)
9.2 That
the police had prior to this arrest received information about
alleged drug dealers from an informer. Amongst others he gave
them a
name of an alleged dealer, “
Vusi”
who they contacted on the cell number he provided. They met this
“Vusi”
on 9
February 2005. That they bought 10 cocaine rocks at the value of
R600, 00 selling R60, 00 per rock from the same dealer.
9.3 That
two police officers, Van der Westhuizen and Theron were directly
involved in this whole operation. Van der Westhuizen kept
the alleged
dealer and Theron under observation from the moment the two met until
the transaction was completed around 17h00 during
the day.
9.4 Nowhere is it
disputed that:
9.4.1 All the above in
fact happened;
9.4.2 In particular that
Van der Westhuizen was at a certain stage very close to the appellant
and Theron. As he puts it on page
37 line 17;
“
. . . die tweede
keer waar hulle oorgestap het oor die straat, was hulle nie vêr van
my af nie, seker 10 meter, 15 meter na die –
van daar af na die –
na die vullisblik.”
So,
ek het hulle daar baie duidelik gesien”
(
My
own underlining)
Loosely translated he
says that the second time he saw them (the agent and the appellant)
they were crossing the street and they were
not far from him. It
could have been 10 to 15 m from the dustbin. That is when he saw
them very clear.
9.4.3 That Theron and the
appellant were in each other’s company for at most 15 minutes
around 17h00 during the day in Kimberley
in February and talking to
each other for the entire period. It was common cause or an accepted
fact that the month of February in
the Northern Cape falls in summer.
Ordinarily at 17h00 the sun is still shining. I found it very
strange and baffling that Mr. Nel
should argue that the appellant was
not properly identified in these circumstances.
9.4.4 That
the 10 packets of cocaine were locked safely after they were handed
over to the investigating officer and marked distinctively
with the
reference number of the case under discussion. No assertions were
put to the witnesses, in particular Topkin that there
was a
possibility that the substance could have been tempered with or that
there were other drugs in the same cabinet with the same
reference
number which could have created some confusion. In fact it was never
the case of the appellant.
9.4.5 It
is a trite principle of our law that if a dispute is left
unchallenged in cross examination the party calling the witness
is
entitled to assume that the unchallenged witness’s testimony is
accepted as correct. See
S
v P
1974 (1) SA 581
(RA) at 582 para E-G;
President of the Republic of South Africa v Rugby Football Union
2000
(1) SA 1
(CC) at para 61;
S
v Boesak
2001(1) SA 912 (CC) at 924 D-F
10. The argument of the
defence goes further to say that we should reject the version of the
State witnesses because of the discrepancies
referred to in the Heads
of argument. Such an approach in my view is incorrect and militates
against any notion of common sense for
the following reasons.
10.1 When the appellant
testified he said he did not know the two police officers, Van der
Westhuizen and Theron, he had no knowledge
about the alleged drug
deal which took place on 9 February 2005 at 17h00. In fact from the
time he reported on duty he never left
John Craig Store. Yet two
witnesses who did not know him prior to this incident gave
unequivocal testimony that he was in the company
of the agent for 10
to 15 minutes selling him drugs.
10.2 Both
witnesses had the opportunity, visibility and advantage point to
identify the appellant clearly. This was not a heist or
situation
under which both witnesses had no time to reflect and note all that
was happening around them and very close to them. This
was a well
planned operation. They knew they were to testify in court subsequent
to the arrest. See
S
v Mthetwa
1972(3) SA 766(AD) at 678a-c;
S v Leburu
[2003] 2 All SA 531(NC)
11. The last aspect that
was one of the grounds of appeal but not addressed persuasively is
that the Magistrate did not ask the appellant
whether he confirmed
what his legal representative had accepted as correct .i.e. that the
substance that was sent for analysis was
indeed cocaine.
12. It
is trite that an accused is bound by what his legal representative
had done in presenting his/her client’s case in court.
See
R
v Matonsi
1958 (2) SA 450
(A) at 456C-D whereat
Schreiner
JA
stated:
“
Once
the client has placed his case in the hands of counsel the latter has
complete control and it is he who must decide whether a
particular
witness, including the client, is to be called or not. So in
Swinfen
v Lord Chelmsford
,157
E.R.1436 at p.1449,
POLLOCK,CB
.,
states the Court’s view that,
‘
a
counsel has complete authority over the suit, the mode of conducting
it, and all that is incident to it – such as withdrawing
the
record, withdrawing a juror, calling no witnesses, or selecting such
as, in his discretion, he thinks ought to be called, and
other
matters which properly belong to the suit and the management and
conduct of the trial.’”
See
also unreported judgment of
KGOMO
J
(as he was then) of
S
v David Hercules Brits and Another
Case No CA&R 41/99 delivered on 26/10/99 pp 6-11,and cases cited
therein. The thrust of these cases cannot be overemphasised.This
submission is without substance.
13. The
State’s witnesses’ version is by far the more acceptable than
that of the appellant. They all gave an explanation step
by step how
they conducted the entrapment, what Van der Westhuizen observed and
Theron’s role. The discrepancies or differences
referred to if ever
conceived to be material were of a relatively minor nature which in
my view actually confirm the lack of collusion
or conspiracy between
the witnesses to falsely implicate the appellant. See
S
v Mkohle
1990(1)
SACR 95(A) at 98f-h.
14. Weighing
the entire evidence and applying the approach in
S
v Chabalala
2003(1)
SACR 134(SCA) at 139i-140 a-b, I am of the view that all elements
which point towards the guilt of the appellant against all
those
which are indicative of his innocence, taking into account the
inherent strengths and weaknesses, probabilities and improbabilities
on both sides, the balance weighs heavily in favor of the State and
excludes any reasonable doubt about the appellant’s guilt
.
His
version that he does not know the State witnesses and did not deal in
drugs on 9 February 2005 is so improbable that it cannot
be
reasonably possibly true.
15.
None of the arguments and submissions raised by the defence
indicated that the trial court acted irregularly or misdirected
itself
in any manner or material respect with respect to the
conviction, which would entitle this Court to interfere with its
decision.
See
R
v Dhlumayo
.
1948(2) SA 677AD at 705-706 whereat
Greenberg
JA
said:
“
3. Where
there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate
court
will only reverse it where it is convinced that it is wrong.”
See
also
S
v Hadebe & others
1997(1) SACR 64 (SCA) at 645e-f. This conviction should in my view
stand.
AD
SENTENCE
16 It
is a trite principle of our law that a Court of appeal will not alter
sentence of the trial court unless it is held that a reasonable
man
ought not to have imposed such a sentence or that such a sentence is
totally out of proportion to the gravity or magnitude of
the offence,
or that the sentence voices a feeling of shock or outrage, that the
sentence is grossly excessive or insufficient, to
indicate that the
trial judge had not exercised his discretion properly, or that it was
in the interest of justice to alter it.
See
Director
of Public Prosecutions Kwazulu Natal v P
2006(1)
SACR 243(SCA) at 254c-f.
17. The appellant’s
personal circumstances are that he was 28 years old, not married with
one child. He was a first offender and
was employed at John Craig
Store for the past 4 years. Mr. Nel, in his submission stated that a
fine coupled with imprisonment would
have been appropriate.
18. The Magistrate
remarked that the society must be protected from people who commit
this type of offence, that many projects have
been embarked upon to
curb the commission of these offences, that this type of offence
leads to drug addiction. That in general
in this division the courts
impose up to 6 years direct imprisonment, even in the case of first
offenders.
19 In my view the
Magistrate over-emphasised the seriousness of the offence as well as
the interests of the society. Little weight
was attached to the
appellant’s personal circumstances. Punishment should fit the
crime as well as the individual. The conclusion
that 4 years
imprisonment is the only appropriate sentence is in my view
incorrect. It is not even substantiated to show that the
Magistrate
applied his mind and exercised his discretion judiciously.
20. None of the other
options of sentence as set out in section 276 of the Act were
considered by the Magistrate. The appellant was
simply sacrificed at
the alter of deterrence in line with the what the State strongly
argued for . This is a case in which a term
of imprisonment coupled
with a fine suspended wholly or partially should have been
considered.
ORDER
In
the result I make the following order:
1. The appeal against
the conviction is dismissed and the conviction is confirmed.
2. The appeal against
sentence succeeds and the sentence imposed by the Magistrate is set
aside and substituted with the following:
“
The
accused is sentenced to R5000,00 (five thousand rand) or 4 (four)
years imprisonment. In addition the accused is sentenced to
2(two)
years imprisonment wholly suspended for 3 (three)years on condition
that the accused is not convicted of contravention of
section 5(a) or
(b) of the Drug Trafficking Act 140 of 1992 committed during the
period of suspension.”
________________________
B
C. MOLWANTWA
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
_______________________
F
E. MOKGOHLOA
ACTING
JUDGE
NORTHERN
CAPE DIVISION