S v Radebe (CA&R 75/06) [2007] ZANCHC 15 (2 March 2007)

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[2007] ZANCHC 15
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S v Radebe (CA&R 75/06) [2007] ZANCHC 15 (2 March 2007)

IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION)
KIMBERLEY
CASE
NO.: CA&R 75/06
DATE
DELIVERED:02-03-2007
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 the contravention of section 5(b) of the Drug
Trafficking Act 140 of 1992, dealing in drugs in the
Magistrate
district 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 a person 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 at a place agreed upon. The Inspector remained in
his vehicle within 10 to 20 meters from both Theron and the
appellant
when they met in one street. They sat down talking to each other and
then crossed over to another street. He saw the appellant
point to a
dustbin to which the agent walked and took out something.
4. Van
der Westhuizen 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 10
rocks of cocaine. He followed the appellant in
his vehicle and saw
him enter John Craig Store. Not long thereafter , 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
a few minutes later. This same man was the appellant. Theron
handed
over the cocaine to the investigating officer for further
investigations.
5. The
evidence of
“the
agent”
,
Constable Theron, 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 then showed him the dustbin in which he
found
the cocaine. The cocaine was wrapped separately in plastic packets,
10 in number. The appellant walked away. Theron 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 the case, Constable Topkin, and handed him 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 identify 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 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 considered in the context of the
following evidence:
9.1 Trade
in drugs in the Northern Cape was rife 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 thus selling at 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 from 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)
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 this was
never the appellant’s case
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 on the grounds of the
discrepancies tabulated 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 Visibility
was good and both witnesses had the opportunity and a good vantage
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. 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 convincing by far and the more
acceptable than that of the appellant. They all gave a step
by step
account of how they conducted the entrapment, what Van der Westhuizen
observed and what was Theron’s role. The discrepancies
referred to
are not material in my view and 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 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 favour 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
the sentence of the trial court unless it is shown that
a reasonable
person 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 is 28 years old, not married but
has 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.
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 R10000, 00 (ten thousand) rand or 2 (two)
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