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[1989] ZASCA 136
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S v Ishmael (241/88) [1989] ZASCA 136 (2 October 1989)
Case No 241/88
/wlb
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the appeal between:
AHMED SALIEM ISHMAEL Appellant
and
THE
STATE Respondent
CORAM: VAN HEERDEN, MILNE et F H GROSSKOPF JJA
Date of Hearing
: 22
September 1989
Date of Judgment
: 2 October 1989
JUDGMENT
MILNE JA/
-1-
MILNE JA:
The appellant and three others were charged in the Magistrate's Court on two
counts of contravening s 2(a), one count of contravening
s 2(c) and three counts
of contravening s 3(a) of Act No 41 of 1971, and on a further two counts of
contravening s 22A 7(a) of Act
No 101 of 1965.
The magistrate came to the conclusion that the guilt of the appellant and one
of his co-accused had been established in respect of
all these charges but,
being of the view that there had been an improper splitting of charges, he
reformulated the charges and convicted
and sentenced the appellant as
follows:
On a new count one, of dealing in 70 1/2 "Mandrax" tablets in contravention of s
2(a) of the Act (in respect of which he was sentenced
to 5
years'
-2-
imprisonment);
on a new count two, of dealing in 46 tablets and part of a
tablet of "UCB" and 31 "K" tablets all containing secobarbital in contravention
of s 3(a) of the Act (in respect of which he was sentenced to 3 years'
imprisonment, the whole of which was suspended conditionally
for 5 years);
on
a new count three, of dealing in 4 "Wellconal" tablets containing dipipanone in
contravention of s 2(c) of the Act (in respect
of which he was sentenced to 5
years' imprisonment);
and on a new count four, of possession of 1 700
"Stopayne" tablets and 6 "Valium" tablets containing respectively meprobamate
and
diazepam in contravention of s 22A (7)(a) of Act No 101 of 1965 (in respect
of which he was sentenced to a fine of R500 or in default
of payment to 6 months
imprisonment, the whole of which
-3-was suspended for 5 years).
On appeal to the Transvaal
Provincial Division, the conviction and sentence in respect of the amended count
one were confirmed; the
conviction in respect of count two in respect only of
the 46 "UCB" tablets and part of a "UCB" tablet were confirmed, but the
cohviction
in respect of the 31 "K" tablets was set aside and the sentence was
altered to one of 2 years' imprisonment, the whole of which was"
suspended; the
conviction and sentence in respect of the amended count three were set aside;
the conviction and sentence in respect
of 6 "Valium" tablets only were confirmed
in respect of count 4, the conviction in respect of the "Stopayne" tablets being
set aside
and the sentence being altered to a fine of R250 or in default of
payment to 3 months imprisonment, the whole of which was suspended
for 5
years.
-4-
With leave of the Transvaal Provincial Division the appellant appeals against
the convictions which were confirmed by that Division.
For the sake of clarity,
I summarise these as follows: Amended count 1 - dealing in 70 "Mandrax" tablets
in
contravention of s 2(a) of the Act; Amended count 2 - dealing in 46 "UCB"
tablets and part of
such a tablet (such tablets also being
known as "Vesparax")
in contravention of
s 3(a) of the Act; Amended count 4 - possession of 6 "Valium" tablets in
contravention of s 22A (7)(a) of Act No
101 of 1965.
I shall, for convenience, refer to the UCB tablets as such even where the
witnesses described them as Vesparax
and I shall omit the inverted commas usually used when
-5-describing a
product by its proprietary name.
The appellant's co-accused at the trial were accused nos 2, 3 and 4 and I
shall refer to them as such.
The offences with which the appellant was charged were alleged to have been
committed on 23 December 1985. The appellant admitted
that on the preceding day
he had taken a box from accused no 3's car and put it in his, appellant's,
bedroom. He also admitted that
on the following day he had removed from this box
15 UCB tablets and 2 Mandrax tablets. (The appellant apparently erred in saying
that he took 15 and not 14 tablets but no point was made of the discrepancy.) He
did so for the purpose of the transaction I am about
to describe. The
appellant's version of the transaction was the following: He was sitting in
accused no 3's car at about 5pm on 23
-6-
December 1985 together with accused nos 3 and 4. The car was parked outside
the appellant's home where he lived with his mother. Accused
no 2 approached
them and enquired from accused no 3 the price of 5 000 UCB tablets. There were
then some negotiations betweén
accused nos 2 and 3. Accused no 2
indicated that he would have to discuss accused no 3's price with another
person. In the meantime,
he would like to buy 15 UCB tablets and 2 Mandrax
tablets. According to the appellant, accused no 3 then instructed the appellant
to fetch these tablets from the box which accused no 3 had given him to store
the previous evening. The appellant said he then went
to his room, opened the
box and selected from its contents 15 UCB tablets and 2 Mandrax tablets. He had
known how to identify the
UCB tablets because accused no 3 had told him to get
tablets with what he called "sort of a cut out V on the tablet". He also said
that he knew how to identify Mandrax tablets as they were marked on one side
with the
-7-
letters 'MX' and on the other side with the letters 'RL'. On his return to
the car with the 2 Mandrax and 15 UCB tablets, he had handed
them to accused no
2. He accepted that the 2 Mandrax tablets were those mentioned in count one, as
originally framed and that the
13 UCB tablets and fragments of a fourteenth
tablet were those mentioned in count 2, as originally framed. On receipt of
those tablets
accused no 2 paid R70. According to the appellant the R70 was for
accused no 3, but accused no 3 instructed the appellant to take
the money from
accused no 2 and to look after it for accused no 3 until accused no 3 came back
to collect it later. Accused no's
2 and 3 then left and the appellant and
accused no 4 went into the appellant's house for a meal. During the course of
the meal W/O
Van Ryneveld and W/O Van der Westhuizen arrived. The appellant
admitted that Van der Westhuizen had asked him whether he had any
tablets. He
considered that request to be the same as asking him whether
-8-
he had any drugs. He responded by handing Van der Westhuizen the plastic
packet of tablets from the cupboard in his bedroom together
with the box of
tablets standing next to the cupboard.
Two police officers testified for the State. They were W/O Van Ryneveld, the
investigating officer, and W/O Van der Westhuizen. They
were both sergeants at
the time when the offences in guestion are alleged to have been committed. They
decided to set a trap for
persons whom they suspected of possessing and dealing
in drugs unlawfully. It was as a result of this trap that on 23 December 1985
accused no 2 approached the vehicle in which the appellant and accused nos 3 and
4 were seated as described above. Neither of the
police officers could give
direct evidence as to the transaction which then took place although Van
Ryneveld could see accused no
2 enter the vehicle. He also said that
-9-
shortly thereafter accused no 2 returned to him and showed him a plastic bag
with 16 white tablets in it. Van Ryneveld later arrested
accused no 2 and took
him to the place where Van der Westhuizen was waiting for them. Van der
Westhuizen searched accused no 2 and
found R80 in his possession. He also took
possession of the plastic bag containing the 16 white tablets from Van Ryneveld.
Van der
Westhuizen said that 14 of these tablets were UCB tablets and 2 were
Mandrax tablets. One of the 14 UCB tablets was broken into fragments
for
investigation, hence the reference to part of a tablet in the charge. Van der
Westhuizen and Van Ryneveld then entered the appellant's
house and Van der
Westhuizen searched the appellant and found R70 in his possession. The notes
making up this sum were marked notes
which, together with other marked notes,
had been handed by Van der Westhuizen to Van Ryneveld and by Van Ryneveld to
accused no
2 for purposes of the trap. Van der Wêsthuizen said that he
asked the
-10-
appellant to take him to his, the appellant's, bedroom. He asked the
appellant whether he had drugs of any kind in the room and the
appellant then
removed a plastic bag containing tablets from a cupboard in the bedroom. Van der
Westhuizen asked him whether he had
"any more tablets" and the appellant then
pointed out a cardboard box with tablets in it. Van der Westhuizen took
possession of the
bag, the box and the tablets contained in them. The appellant
admitted that the tablets were his. Although the appellant and his
mother had
spoken only of a box having been brought from accused no 3's car to the
appellant's home the previous night, it is clear
that according to their
version, the plastic bag and box which were found by the police in the
appellant's bedroom on 23 December
had been brought there the previous night by
the appellant from accused no 3's car.
It is not in dispute that:
-11-
(a) Van Ryneveld opened a police docket and gave it the identifying number "John
Vorster Plein MR 1623/12/85" and "Sonop" (SANAB?)
SAP 13, 6/86;
(b) Certain tablets were placed by somebody in 12 different envelopes marked
"A-L" respectively each of which was also marked "Sonop
SAP 13, 6/86" and "John
Vorster Plein MR 1623/12/85";
(c) Van der Westhuizen personally took such envelopes to Lt Ernest Mullach
Kruger for analyses in Pretoria;
(d) Kruger analysed the tablets in the envelopes and that amongst the tablets
contained in the various envelopes were
(i) 17 tablets containing
methaqualone, a prohibited dependence-producing drug listed in Part I of the
Schedule to Act No 41 of 1971;
(ii) 46 tablets containing secobarbital nitrate (this is a "salt" of
secobarbital), a potentially
-12-
dangerous dependence -producing drug listed in Part III of the Schedule; (iii) 6
tablets containing diazepam (diazepam is a benzodiazepine
listed in the 5th
Schedule to Act No 101 of 1965.)
The appellant's evidence that he
possessed the drugs that were found in his possession only as an agent for
accused no 3 and that
in the transaction involving the 16 tablets with accused
no 2 he was again acting only as the agent of accused no 3 was rejected
as false
by the magistrate (and by the Transvaal Provincial Division). The correctness of
this finding was not challenged and there
is no reason whatever to find fault
with it.
The appellant's counsel confined himself to two
main points: firstly, that it had not been proved that the
-13-
tablets contained in the envelopes which were analysed by Kruger were the
tablets that were found in the possession of the appellant
and accused no 2 and,
secondly, that the State had failed to prove that the appellant had the
necessary
mens rea
regarding the substances in respect of which the
convictions were upheld in the Provincial Division; i,t being the appellant's
contention
that it was not proved that he knew that possession or dealing in any
of the tablets was, or might be, unlawful.
Before dealing with the first
point I should perhaps mention that it was originally submitted in the
appellant's heads of argument
that the affidavit of Lt Kruger was inadmissible
for the purpose of proving the content of the tablets because it did not contain
an allegation that Kruger had received the tablets "in the performance of his
official duties" within the meaning of ss (8)(a)(il)
of s 212 of the Criminal
Procedure Act. The appellant's counsel was,
-14-
however, obliged to concede that the affidavit need not contain such an
allegation in order to afford
prima facie
proof of the content of the
tablets in terms of ss (4)(a) of s 212 and that the State did not have to rely
upon the provisions of
ss (8) to establish Kruger's receipt of the tablets since
Van der Westhuizen's evidence was that he personally delivered the envelopes
containing the tablets to Kruger. (I should add that, had it been necessary for
the State to rely upon the provisions of ss (8),
I would have had no hesitation
in holding that it was entitled to do so.) It was however submitted that the
evidence of Van Ryneveld
did not establish, beyond reasonable doubt, that the
tablets contained in the envelopes were those found in the possession of the
appellant and accused no 2. This argument found favour with the court
a
quo
in respect of some of the charges. It was on this basis that the appeal
to the
-15-
Provincial Division was partly successful. The argument is based upon the
fact that Van Ryneveld, in describing what happened to the
tablets after they
had been removed from the possession of the appellant and accused no 2, used the
passive voice. He said:
"The different tablets were placed in different
envelopes and marked from A-L"
The court
a quo
said of
this evidence:
"Van Ryneveld could thereby have meant to convey that he himself had thus packed
and marked the envelopes, or that he had caused
somebody else to do it and had
watched such person do it. In either of those events the fact was duly proved by
admissible evidence.
On the other hand, Van Ryneveld could have been concealing
the fact that he had parted with the tablets at Sonop, and that at some
later
stage some other person had brought him some envelopes marked from A to L and
had told him that the envelopes contained the
tablets which Van Ryneveld had
parted with earlier. In that case his evidence of the contents of the envelopes
would have been inadmissible
as mere hearsay. This is a valid criticism. It was
the prosecutor's duty to have led the evidence in such a way as to make it clear
that it was admissible. He ought not to have left open the possibility that Van
Ryneveld's evidence in this regard was mere
hearsay."
-16-
It was accordingly held that (save in relation to the Mandrax
tablets, the
UCB tablets and the 6 Valium tablets) the State
had failed to prove that the
tablets analysed were the
tablets of which the police had taken possession
as
aforesaid. Thus, in dealing with the 4 Wellconal tablets, it
was held
that:
"Van Ryneveld's evidence in the passive voice of the tablets being placed in
envelopes marked from A to L left open the possibility
that some other
unidentified person placed 4 Wellconal tablets in the envelope marked H and told
Van Ryneveld he had done so (with
no suggestion that Van Ryneveld supervised
that operation) and that such other person might have confused the tablets
obtained by
Van Ryneveld from the appellant with some Wellconal tablets from
some other source."
In relation to the Mandrax tablets, the UCB
tablets and the
Valium tablets, it was held, however, that the
appellant's
own admissions in evidence eliminated "... any danger of
a
mistake having been made at the stage when Van Ryneveld had
the tablets put into envelopes". Stegmann J referred to the
-17-
fact that the appellant admitted that he had fetched 2 Mandrax tablets and 14
UCB tablets from the box in his bedroom and to the fact
that the envelope marked
F (which was amongst the envelopes handed by Van Ryneveld to Van der Westhuizen,
and by the latter to Kruger)
contained 2 Mandrax tablets and 13 UCB tablets and
part of such a tablet. The Mandrax tablets were marked in exactly the same
fashion
to the markings described by the appellant as being on the 2 tablets of
Mandrax that he had fetched. The effect of the State evidence
was that the
plastic bag and box contained 68 1/2 Mandrax tablets, the exact quantity
contained in the envelope marked J. The court
a quo
referred also to the
envelope marked G which contained 33 UCB tablets; to the admissions of the
appellant to the effect that he had
UCB tablets in his possession which he
identified as tablets marked with a V-shaped cut; and to the fact that the
appellant admitted
that he knew that he was in possession of
-18-
6 Valium tablets, there being 6 such tablets contained in the envelope marked
K.
I agree that the guilt of the appellant was clearly established with regard
to the Mandrax, UCB and Valium tablets but I am, with
respect, unable to agree
that there is, in the particular circumstances of this case, any reasonable
possibility of Van Ryneveld's
evidence as to the packing of the tablets in
envelopes and the marking thereof being hearsay. He was the investigating
officer, he
opened the docket and there is nothing in the record to indicate
that anyone other than he and Van der Westhuizen at any stage handled
the
tablets. Furthermore, there is, in my judgment, no signif icance in the fact
that Van Ryneveld used the passive voice in the
passage set out above, since it
is quite apparent that Van Ryneveld, from time to time, used the passive voice
even when describing
actions which he himself
-19-
had performed. The appellant may, therefore, count himself . fortunate that
his appeal succeeded to the extent which it did in the
Provincial Division. I
would not have upheld the appeal on this point on any of the counts.
I deal now with the question of
mens rea
. The
true
enquiry in this regard,
"... is whether or not the appellant knew that possession or dealing in the
tablets in question was, or might possibly be, unlawful,
irrespective of whether
he knew what law was being contravened and what the precise provisions of the
law might be."
S v Hlomza
1987(1) SA 25 (A) at 32F. The
court
a quo
in the
present case came to the conclusion that
"... it was proved beyond reasonable doubt that the appellant knew that dealing
in or possession of
any
of the tablets in the plastic bag and box in his
room, including tablets of a kind he had never seen before and of those
constituents
was ignorant, was or might well be unlawful ... The appellant
recognised some of the tablets and knew very well that possession of
or dealing
in those might be unlawful. In the absence of any positive grounds for a
reasonable belief that he could
-20-
lawfully possess or deal in any other tablets in the plastic bag and the box of
kinds which he had never seen before and of whose
nature he was ignorant, he was
not free to assume that possession or dealing would be lawful. On the contrary,
his state of mind
can only have been one that recognized the possession of or
dealing in them might be unlawful."
I have no doubt that this
conclusion was correct. The
appellant admitted in his evidence that he was
found with the
drugs and that he knew that they were drugs; he
admitted
that he knew that the transaction in respect of the 2
Mandrax
tablets and the 14 UCB tablets was an illegal transaction;
one of
the explanations as to why accused no 3 had asked him
to keep the box in his,
the appellant' s, bedroom, was that
accused no 3 could not keep it at his own
house as the
latter's father had once caught him with Mandrax tablets and
implicit in this is the appellant's knowledge that it was
wrong to possess
Mandrax tablets; the appellant also
admitted that he knew what Mandrax
tablets looked like and
that before delivering UCB tablets to accused no 2 he
-21-
realised that a number of the tablets in the box were UCB tablets;
furthermore, he knew that he had a large number of such tablets
because he says
he was present when a price was being worked out for a possible purchase of 5
000 of such tablets by accused no 2.
It must be borne in mind, furthermore, that
the appellant said that he "knew" Mandrax tablets and that at the time when the
offences
were alleged to have been committed Mandrax was actually included by
that name in Part I of the Schedule to Act No 41 of 1971. Van
der Westhuizen's
evidence was that the appellant told him that the drugs in his, the appellant's,
bedroom were his property. The
evidence as a whole clearly established in my
judgment that the appellant possessed all the drugs in respect of which the
convictions
were upheld for the purpose of sale. The definition of "deal in" in
s 1 of Act 41 of 1971 of course includes any act in connection
with the sale of
any of the substances referred to in the Schedule to the Act, and
-22-
"sell" in relation to such substances includes póssessing for sale and
"sale" has a corresponding meaning. The evidence establishes
that the appellant
actually dealt in 2 Mandrax tablets and 14 UCB tablets. The State is assisted by
the provisions of s 10(1)(a)
of that Act with regard to the Mandrax tablets and
in the case of the remaining UCB tablets that the appellant did not actually
deal
in, his possession for the purpose of sale falls within the definition of
dealing as already indicated.
The appeal is accordingly dismissed.
A J MILNE
Judge of Appeal
VAN HEERDEN JA ]
F H GROSSKOPF JA] CONCUR