About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1990
>>
[1990] ZASCA 122
|
|
S v Guman (73/89) [1990] ZASCA 122 (28 September 1990)
Case No 73/89 /wlb
SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the appeal between:
FAROUK GUMAN
Appellant
and
THE STATE
Respondent
CORAM: VAN HEERDEN, MILNE et STEYN JJA
Date of Hearing
: 7 September
1990
Date of Judgment
: 28 September 1990
JUDGMENT
MILNE JA/.....
-1-
MILNE JA:
The appellant was convicted in the Regional Court on three charges, namely,
on count one of buying two pieces of unwrought gold containing
130,2 and 116,4
gm of fine gold respectively in contravention of section 143(1) of the Mining
Rights Act, No 20 of 1967, on count
two of having in his possession 7501,34 gm
of unwrought gold in contravention of sub-section (3) of that section, and on
count three
of having in his possession an unpolished diamond with a mass of 0,8
carats in breach of section 18 of the Diamonds Act, No 56 of
1982.
On each of the first two counts he was sentenced to 3 years' imprisonment and
on the third count to 9 months' imprisonment. It was
ordered that the sentence
on count three and 1 year of the sentence on count two were to run .
-2-
concurrently with the sentence imposed on count one. The effective period of
imprisonment was therefore 5 years.
The appellant's appeal to the Transvaal Provincial Division against his
convictions and sentence was dismissed. He then sought leave
to appeal against
the convictions only and such leave was granted by thé court
a
quo
.
The version of the State appears from the evidence of Sgt Likhula and
Constables Mokwena, Van Zyl and Sherman and the police informer,
John Malgas.
This may be summarized as follows:
Malgas, who owned a taxi had, so he said,
oh two previous occasions transported a black man called Paulus from
Bloemfontein to the
appellant's house in Benoni where Paulus had sold gold to
the appellant. This information was conveyed to the police who arranged
a police
trap. On 11
-3-
August 1987 the two pieces of gold which were the subject of count one were
handed by Sgt Van Dyk (who had died by the time of the
trial) to Const Mokwena.
I stress that the gold was not handed to Malgas. The importance of this fact
will appear later. Malgas and
Mokwena and a Sgt Mogape were driven by Likhula in
what was referred to in the evidence as a "Combi" to the house of the appellant.
They were followed in a saloon car by Sgt Van Dyk and Constables Van Zyl and
Sherman. Mogape, Mokwena and Malgas were admitted to
the house by the
appellant's wife and young son, who said that the appellant was not at home and
asked them to sit in the study while
she telephoned him. After a short while the
appellant arrived and Mokwena handed him the two pieces of gold. The appellant
then went
upstairs and returned with a scale and a calculator. The appellant
weighed the gold on the scale and then did some calculations on
the calculator.
He then offered a price of R4 655 for the gold and this was
-4-
agreed. This sum was then handed over to Mokwena ïn a bundle of bank
notes. Mogape then made an excuse to leave the room and
gave a pre-arranged
signal. Likhula then flashed his lights which wás a signal to the other
policemen in the saloon car. The
appellant then noticed the Combi and apparently
smelling a rat, whipped the bundle of money out of Mokwena's pocket and locked
the
front door shouting "skelms". Mokwena and Malgas then beat a hasty retreat
leaving the house at the back via the kitchen door and
leaving both the gold and
the money behind. Outside the house were Van Dyk, Van Zyl, Sherman, Mogape and
Likhula. All the policemen
then went to the back door and found it locked. The
police then surrounded the appellant's house and eventually, after some fifteen
minutes, the front door was opened. The policemen then entered the appellant's
house (Malgas did not enter with them but sat in the
Combi). At Van Dyk's
request and in the presence of the appellant,
-5-
Mokwena made a report to Van Dyk as to what had happened between the
appellant, himself, Malgas and Mogape before they had left the
appellant's
house. Van Dyk then asked the appellant where the gold was and, as a result of a
report by the appellant (although there
was a conflict as to the nature of this
report) the gold was found under the cushions of a chair or sofa in the study.
The appellant
refused to go upstairs with the police and all the policemen with
the exception of Sherman then went upstairs with the appellant's
wif e. In a
bedroom in the drawers of one of the beds they found a red briefcase containing
the same scale, a similar calculator
and a musical instrument. In the same
drawer they found a cake tin. In this cake tin there were 39 pieces of gold. The
weight of
this gold was 7501,34 gm and the value was R234 844.45. In the drawer
of the other bed there was a plastic bag and inside this were
further plastic
bags containing what was described as "gold dust" or
-6-
"grondstof". Eventually, some days later, the diamond which was the subject
of count three was found hidden in amongst the "grondstof"
when this was handed
over for analysis by the police. All these objects (excluding the diamond which
at that stage was still hidden)
were shown to the appellant when the policemen
came downstairs. Van Dyk then asked the appellant for the money which he had
paid
to Mokwena for the two pieces of gold. The appellant then went to a
wardrobe and produced a plastic bag from which he counted out
R4 655 in notes.
(There was some dispute as to exactly how this money was produced and I shall
return to this at a later stage).
These notes were then sealed in the
appellant's presence in a brown envelope. When the envelope was unsealed at the
trial and the
contents counted it was, eventually, after a number of miscounts
found to be R200 short. I shall also refer to this aspect of the
matter
later.
-7-
The appellant testified in his own defence. His doctor, Dr Carim, and his
wife also gave evidence. The defence version may be summarized
as
follows:
The appellant's wife thought that Mogape, Mokwena and Malgas were
plumbers and having been warned by the appellant several days before
to expect
plumbers she telephoned him at his shop to say that the plumbers had arrived.
The appellant drove himself from his shop
in his car and found these three
persons in the study. They wanted to sell him gold. He, however, showed them the
door and said that
he no longer dealt in gold. (He had two previous convictions
of dealing in unwrought gold, one in 1976 for which he received a suspended
sentence and one in May 1985, for which he was sentenced to a fine of R4 000, 2
years' imprisonment plus a further 2 years' imprisonment
suspended for 5 years
conditionally). He then went and lay down in a bedroom downstairs. He heard
banging on the door and when he
opened the front door the police asked him where
the gold was; he
-8-
said he did not know what gold they were talking about whereupon they went
straight to the study, lifted up the cushions of a sofa,
and found two pieces of
gold there. The police then asked him for the bundle of money that he had "paid
these people with"; he disclaimed
any knowledge of such money and he then said
to them "if you want money let me show you where my money is", he then showed
them money
which represented takings from his drapery shop which he intended to
bank. They said they wanted "the bundle". He refused to go upstairs
with the
police because he had a neck injury as a result of a motor accident and his wife
then went upstairs with the police. They
came back but had nothing with them and
said nothing about having found anything upstairs. One of the policemen then
asked him for
R4 600. He started to count out money from his takings and the
policeman then said he wanted it all in R20 notes. There were not
enough R20
notes to make up the full amount
-9-
so he counted out R3 600 in R20 notes, R400 in R10 notes and R600 in R50
notes (making a total of R4 600). The appellant later testified
that one of the
policeman said he must count out R650 in R50 notes so that the total was R4 650
not R4 600.
The appellant conceded in cross-examination that the briefcase which was
produced as an exhibit was used by his children and that
the electronic scale
was his. This scale was, so he said, lying on a wardrobe upstairs. He had last
used it a long time previously.
He knew nothing about the cake tin or the gold
found in the cake tin or the "grondstof" or the diamond and they were not shown
to
him on the day in guestion. He knew nothing of the calculator. He denied that
he had ever met Malgas.
The magistrate analysed the evidence of the
-10-
appellant, his wife and his doctor and found them to be unsatisfactory
witnesses. Mr
Mahomed
who argued the appeal both vigorously and
comprehensively did not attempt to suggest that the magistrate had erred in this
regard.
He exercised a wise discretion in not attempting what would, in my view,
have been an impossible task. He did however launch a serious
attack on the
State witnesses. I shall not attempt to canvass all the points which he raised
but the main thrust of the argument
on count one may be summarized as
follows:
(a) The evidence of police traps must in general be
treated with caution
particularly when, as here,
the accused is not offering gold for sale which
he
has in his possession, but is being tempted to buy
gold which the
police have in their possession.
(b) In this case after the transaction in which thé
accused allegedly
bought and paid for the gold,
no
-11-
money was fouhd in the possession of the person to whom it was allegedly paid
and the gold was not found in the actual physical possession
of the appellant;
although it was admittedly found hidden in his study.
(c) There are therefore no objective facts which point
to the guilt of the
appellant and the State is
obliged to rely solely on the evidence of
Mokwena
and Malgas (Mogape not having been called) to
establish such
guilt.
(d) There are a number of suspicious
and
unsatisfactory aspects in the evidence of Mokwena
and Malgas and the
evidence of Mokwena is, in any
event, contradicted on material points by
the
evidence of Van Zyl and Sherman.
Propositions (a) and (b) are correct.
Proposition
-12-
(c) is not. It was accepted that the 39 pieces of gold,
the
scale and the calculator were found in the upstairs bedroom
by the
police. For reasons which will become apparent
later, the finding of these
articles together does in the
circumstances point to the guilt of the
appellant on count
one as well as count two. There are, however, on the
face
of it, indeed some suspicious aspects of the State case and
the
argument merits careful consideration. The main points
of criticism of the
State witnesses were these:
(1) The appellant had suffered hairline factures
of
his neck vertebrae in a motor accident some months
before the incident
and he was still wearing a
neck brace. It is therefore improbable
that
Mokwena who had Malgas there with him, would have
allowed himself to
be dispossessed of the vital
trap money by the appellant.
-13-
(2) It is improbable that Mokwena and Malgas would simply have fled leaving the
appellant in possession of the money and in a position
to "re-arrange" the
evidence and conceal the gold.
(3)(i) There was a
serious contradiction between the evidence of Mokwena and Van Zyl as to the
circumstances in which the gold was
found. (ii) There were serious
contradictions between the evidence of Mokwena and Van Zyl on the one hand and
Sherman on the other,
as to whether the money, when it was produced by the
appellant, was in one packet.
(4) There was no evidence that Mokwena or Malgas told
the
group of policemen outside the house and
before the scale, calculator etc
were found that
these had been used in the transaction, or indeed,
that
any report had been made to the police
-14-
outside the house when Mokwena and Malgas emerged. (5) An inference
unfavourable to the State could be drawn from its failure to call
Sgt
Mogape.
As to (1) and (2)
: The appellant was well enough to drive himself to
and from the shop and even his own doctor agreed that it would be possible for
the appellant to have mounted the stairs although he said it would be a slow and
painful process. In any event, there is no question
here of the appellant having
overpowered Mokwena. The money was in one packet and it could have been the work
of a moment for a deft-fingered
man to remove it from Mokwena's pocket
particularly as the latter was not expecting the appellant to do anything of the
sort. While
it is indeed surprising that Mokwena and Malgas left the appellant,
as it were, in possession of the field, there is independent
corroboration of
the evidence that they did indeed leave the house by the back door. The
appellant
-15-
said that they left by the front door. His evidence was rightly disbelieved
and Sgt Likhula said that Mokwena and Malgas left by the
back door. What reason
would Mokwena and Malgas have had to leave via the back door unless the front
door had, as they said, been
locked by the appellant?
As to (3)
: There are, on the face of it, contradictions between the
evidence of Mokwena and Van Zyl as to the circumstances in which the gold
was
found. Mokwena said that when Sgt Van Dyk asked the appellant where the gold was
he said it was in the study, that they then
entered the study and that the
appellant said it was under the sofa. The cushions of the sofa were then removed
and the gold found.
Van Zyl, on the other hand, says that Van Dyk asked the
appellant where the gold was and the appellant then pointed to a chair that
was
in the room and said that that was the chair on which the man with the gold had
sat. Van Dyk then lifted the cushions
-16-
of the chair and found the gold. A possible explanation is that these are the
sort of discrepancies that may be found in the evidence
of honest witnesses
testifying some seven months after the event.
Mr Mahomed
submitted
however, that this could not be the explanation. He pointed to the fact that
Mokwena had denied that he had sat on the
sofa where the gold was found. This,
so he submitted, was sinister because it showed that Mokwena was trying to
distance himself
from the place where the gold had been "planted" by him. There
is, however, a much simpler explanation which, in the light of what
I shall call
the "overall picture" and which I shall refer to later, seems to me the true
explanation. This emerges from the evidence
of the appellant himself. The
appellant said that there were
two
two-seater sofas and one one-seater
chair in the study and that the gold was found under the cushions of one of the
two two-seater
sofas, this being the one Mokwena had sat on. These he said were
on the right-hand side as one entered the
-17-
study. He said that the single seater chair was also on the right-hand side
but then corrected himself and said it was on the lefthand
side. Be that as it
may, it is quite possible that Mokwena simply did not remember which of the two
two-seater sofas he had sat on.
I think it is relevant also to mention in this regard that the appellant's
evidence as to the finding of the gold was inconsistent
with the version that
had been put by his counsel to the State witnesses. That version was
unmistakably to the effect that on entering
the house the police went straight
to the sofa where the gold was hidden, thereby carrying the clear implication
that Mokwena had
told Van Dyk, before entering the house, where the gold was. In
his evidence on the other hand the appellant described Van Zyl as
having lifted
all the cushions and later in his evidence said quite clearly that Van Zyl had
conducted a search and had not simply
gone straight to the sofa where
-18-
the gold was found. There is a clear inconsistency here and, furthermore, the
appellant contradicted himself as to whether Mokwena
could have had any
opportunity to conceal the gold when leaving the house. He said quite
unequivocally at one stage that he had "got
the police out of the house with the
gold" and that he had "made sure" that they took the gold out of the house
because he did not
want the gold there. In answer to the question "So they took
the gold out of your house?" the answer was an unequivocal "Yes". When
confronted with this problem in cross-examination the appellant however came out
with the story that when he asked them to leave
he walked out to go and open the
door and that the police were then behind him and could therefore have concealed
the gold without
his
knowledge.
As to (2)
:
Sherman said that the money which
the appellant handed over
-19-
to the police was not an "isolated" amount of R4 655 but part of a larger sum
in the possession of the appellant, the balance of which
he retained. If this is
true, it does not help the appellant. It is common cause that after Mokwena and
Malgas left some 15 minutes
elapsed before the appellant unlocked the house and
during this time the appellant could have mixed the R4 655 with other money.
It
was submitted, however, that Sherman's evidence was inconsistent with the
evidence of Van Zyl and Mokwena because Van Zyl and
Mokwena had said that the R4
655 was in one packet. Mokwena's evidence was throughout that he was not paying
attention to exactly
what was going on. True, he did say that it was in one
bundle but in the same breath "As far as I know it was . only one bundle".
When
asked whether there was any other money in the wardrobe he said that he did not
take notice. He could not remember what was
tied round the bundle. Van Zyl was
more definite because he said "Beskuldigde het die hangkas se deur oopgemaak en
hy het h laai
oopgetrek binne
-20-
in die hangkas. Uit die laai het hy 'n plastiese banksakkie met geld
uitgehaal. Hy het die geld uit die plastiese sakkie uitgehaal
en dit op die bed
uitgetel en konstabel Sherman het dit toe getel." Sherman, on the other hand,
clearly says that there were about
three identical plastic bags in which the
money was contained. He was not certain of the exact number but there were more
than one.
In this regard it must be borne in mind that on the evidence Sherman
was the one responsible for the counting out of the money and
this inconsistency
is reasonably explicable on the basis that Mokwena was, as he says, not paying
attention and is simply mistaken.
The same applies to Van Zyl: there is no
strikingly memorable difference between three plastic bags and one plastic bag.
Had the
police conspired to say that there was one plastic bag so as to
incriminate the appellant then, at the very least, one would have
expected them
all to say the same on this point whereas it was clear from Sherman's evidence
in chief that his evidence was (a) that
-21-
there was more than one plastic bag and (b) that some money remained over
after extracting the sum of R4 655.
No point can be made of the fact that when the sealed brown official envelope
was opened and the money was counted out in court it
was R200 short, since even
on the appellant's version R4 650 was put into the brown envelope and it was
then sealed in his presence.
It simply remains a mystery.
As to (4)
:
It is correct that there was no
evidence that Mokwena or Malgas made any report to Van Dyk, Van Zyl and Likhula
when the former two
emerged from the back door of the appellant's house. There
is, however, no evidence that they did not make a report and
Mr Mahomed
was obliged to concede that, on the probabilities, Van Dyk would immediately
have asked
-22-
those who had been sent into the house what had happened, and that Mokwena
may have mentioned that the gold was inside the house.
On the version of the
appellant which was put to the State witnesses to which I have already referred,
Van Zyl went straight to where
the gold was hidden and in any event for what
purpose would the police have surrounded the appellant's house and insisted on
being
admitted unless they had been told that the gold was there? Once one
accepts, as one must, that this occurred, then there is every
reason to believe
that Mokwena mentioned the scale and the calculator outside the house and before
these items had been found. The
finding of these items therefore affords
substantial support for the State case.
I now wish to deal with what I previously called the "overall factor". This
is relevant to
all
the points I have been discussing. It is this. Mokwena
and Malgas could
-23-
only have given the evidence they did if they had conspired together to give
a false version to the effect that they had sold the
gold to the appellant for
R4 655, that he had used a scale and a calculator to work out the price, and
that he had seized the money
from them and that the gold must be in the house
(knowing that Mokwena had actually "planted" it inside underneath the sofa
cushions
in the study). I wish to make two observations at this stage. Firstly
the plan would have to have been conceived by Mokwena at the
time when he hid
the gold under the cushions and before leaving the house; and secondly, Mokwena
would have to have said to Malgas
"We must say that he kept the gold and that he
paid the sum of R4 655 but that he smelled a rat and took the money back" or
words
to that effect. In my view this scenario is not reasonably possible. In
the first place, Mokwena had no opportunity bef ore meeting
Likhula ánd
the others outside to alert Malgas to the plan. Secondly, for
-24-
Mokwena and Malgas to cóncur in such a plan they would have to have
been certain that there was R4 655 in the house. This sum
would, on the scenario
painted by the appellant, have been thought up on the spur of the moment. If
this had happened, it seems more
probable that a round figure like R4 000 would
have been invented. Be that as it may, how could they have known that anything
like
this sum of money would be in the house? On the appellant's version the
police would have had no reason to believe that there would
be any money in the
house. Even if they had learnt through some or other source that the appellant
kept money in the house and only
banked it every so often, how could they
possibly have known how much he would have there on a particular day or indeed
that he had
not banked it all on the very day on which the incident
occurred?
There is a further factor that must be taken into
-25-
account. The "trap" was Malgas and he was the one who was paid for his
services by the police. It may be that he might have been prepared
to "plant"
the gold but he was at no stage in possession of the gold. It is common cause
that Mokwena was the person who had possession
of the gold and he had nothing to
gain by "planting" it.
Finally, in my judgment no inference can be drawn from the failure to call
Mogape. It appears from the magistrate's judgment that
at the close of the State
case the prosecutor stated that he did not deem it necessary to call Mogape as a
witness. It does not necessarily
follow from this that he was available and
there is no other information on the record indicating that he was. (I do not,
however,
suggest that an adverse inference should have been drawn had it
appeared that Mogape was in fact available.)
-26-
Looking at the evidence as a whole, I am not persuaded that the magistrate
erred in convicting the appellant on count one.
I deal now with count two. It was accepted in the appellant's heads of
argument that the unwrought gold and the diamond which were
the subject of
counts two and three respectively were found by the police in the appellant's
house on the day in question. It was
submitted that in order to succeed on this
count the State bore the
onus
of proving not only that the appellant had
physical control of the gold, but also that he had the intention. to control it
for his
own purpose or benefit. Assuming, without deciding, that this is
correct, I have no doubt that the State discharged the
onus
. In my
judgment it was established beyond reasonable doubt: (a) that the appellant did
weigh the gold which was
-27-
the subject of count one with the scales and thereafter calculated the price
which he offered with the calculator; (b) this very scale
and a similar
calculator were found together with the gold which was the subject of count two
in the attaché case in the drawer
of a bed in the upstairs bedroom of the
appellant's house.
In all the circumstances the inference is irresistible that the appellant
kept the gold there for his own purposes.
I deal now with count three. The magistrate found as a fact that the
appellant was aware of the unpolished diamond that was hidden
in the "grondstof"
that was in the plastic bag in the drawer of the other bed. Nothing that
-28-
has been said persuades me that the magistrate erred in this regard. Section
89 of Act No 56 of 1986 placed the burden of proving
that it was not.an
unpolished diamond on the appellant. This
onus
was not discharged. It
was, however, argued that even if it was correctly found that the appellant was
in possession of an unpolished
diamond the conviction could not stand because it
was not proved that the appellant knew it was an unpolished diamond. I have some
doubt as to whether it was open to the appellant to raise this argument. His
defence was not that he did not know that it was unpolished
but that he did not
know of its existence. Assuming, however, that it was open to him to raise the
point in argument, the evidence
clearly established that the diamond was hidden
in the "grondstof" and that, in all the circumstances, it must have been the
appellant
who hid it there. If his state of mind was that he was lawfully in
possession of the diamond it is
-29-
inexplicable that he would have hidden it where he did. In the absence of any
explanation by the appellant the evidence establishes
that he was conscious of
the fact that he was not lawfully entitled to possess it.
It follows that the appeal fails in respect of all three counts.
I have already referred to the fact that leave was granted to appeal against
the convictions only. Mr
Mahomed
submitted, however, that on the
authority of
S v Shenker
1976(3) SA 57 (A) at 61C-D, this court was
entitled to consider the question of sentence. The court was there considering
the provisions
of section 369 of Act No 56 of 1955 which is the equivalent of
section 322 of the 1977 Act. Galgut JA relied upon the provisions
of sub-section
1(b) in concluding that the court had such power. This provïded
-30-
that the court of appeal may "give such judgment as ought to have been given
at the trial or impose such punishment as ought to have
been ordered at the
trial". With respect, I doubt whether that reasoning is sound. It appears to me
that these provisions were intended
to give the court power to alter the
sentence consequent upon an alteration in the verdict and in no other
circumstances. Thus if
an accused person were to be found guilty of assault with
intent to commit grievous -bodily harm and sentenced to 5 years' imprisonment
and on appeal the conviction were to be reduced to one of common assault these
provisions would give the court power to alter the
sentence accordingly. It is,
however, unnecessary to decide the point since I am, in any event, not persuaded
that the magistrate
erred in imposing the sentences which he did impose. Mr
Mahomed
pointed out that the magistrate had punished the appellant on the
basis that it was necessary "to protect the State economy" and
-31-
that dealing in gold or diamonds was "tantamount to sabotage of the State
economy". He submitted that this was a sérious exaggeration
of the
position. I agree but, on the other hand, the appellant had two previous
convictions of the same offence and still had a suspended
sentence hanging over
his head when he committed this, the third, offence. Mr
Mahomed
also
submitted that the magistrate while purporting to treat the appellant as a first
offender on counts two and three had nevertheless
given him the same sentence on
count two as he had on count one and that the sentence imposed on count two was
the maximum permitted
by the Statute. This is,
prima facie
, anomalous but
there are, in my judgment, two answers. In the first place the quantity of gold
which the appellant possessed was
substantial and was worth close on a quarter
of a million rand. Secondly,. although the appellant's previous convictions were
of
dealing in unwrought gold and not possession, it is usually not
-32-
possible to deal in gold without being in possession of it and the offences
are related. The magistrate duly took into account the
combined effect of the
sentences and ordered part of the sentence imposed on count two and the whole of
the sentence imposed on cpunt
three to run concurrently with the sentence on
count one. No good reasons for disturbing the sentence have been shown.
The appeal is accordingly dismissed.
A J MILNE
Judge of Appeal