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1991
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[1991] ZASCA 128
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S v Abrahams (369/90) [1991] ZASCA 128 (27 September 1991)
Case No 369/90 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
EBRAHIM ABRAHAMS
Appellant
and
THE STATE
Respondent
CORAM: BOTHA, MILNE JJA et NICHOLAS AJA
DATE OF HEARING: 17 September 1991
DATE OF JUDGMENT: 27 September 1991
JUDGMENT
MILNE JA/
-1-
MILNE JA:
The appellant was charged in the Magistrate's Court together with one Delia
Jacobs (to whom I shall refer as Accused No 1) with contravening
section 2(a)
alternatively section 2(b) of Act No 41 of 1971 ("the Act"). The prohibited
substance which was the subject of both
the charges consisted of 173 tablets of
methaqua lone. Accused No 1 pleaded guilty to the alternative charge but only in
respect
of 5 tablets. She was, however, convicted 'on the alternative charge in
respect of all 173 tablets. The appellant pleaded not guilty
to both counts but
was convicted also on the alternative count and sentenced to a term of
imprisonment. His appeal to the Cape Provincial
Division was dismissed. With
leave granted on petition to the Chief Justice, he appeals to this Court against
his conviction and
sentence.
-2-
The appellant and Accused No 1 lived together as man and wife in what was
described as a "hokkie". For reasons which will become apparent,
the nature of
this structure is of some importance. It was erected on certain premises in
Paarl with the consent of the owner, who
lived in a double-storied flat on those
premises. The "hokkie" was constructed entirely of large pieces of cardboard
held together
with strips of adhesive substance (at one stage described as
"plakpapier", at another stage as "tape"). The roof of the "hokkie"
rested
against the wall of the flat, but there was a gap between the wall of the flat
and the wall of the "hokkie" nearest to it
so that there was a passage between
them which was referred to in the evidence as a "gangetj ie". This passage was
narrow but high
enough for a man to stand upright in it. It was open at both
ends but at one end access to it was barred by a fence and at the other
end
there was a small chest ("h kassie") which could
-3-
be moved aside to afford access to the passage. The "hokkie" had two
rooms.
Only two witnesses testified at the trial, a Sgt Solomans for the State and
the appellant.
The following facts are not in dispute:
(a) On the day referred to in the charge sheet,
Solomans, accompanied by a
number of other members
of the police force, including a Warrant
Officer
and a dog-handler with his "sniffer dog", arrived
at the premises
described above.
(b) When Solomans arrived the appellant was in the
back-yard of the premises
together with a group of
other men.
(c) Solomans
entered one of the rooms of the "hokkie"
(which was not the room occupied by
the appellant
-4-
and Accused No 1 ) and found a woman and a young boy there. He carried out a
search there with the assistance of the "sniffer dog"
but this search revealed
nothing unlawful - only a drum buried in the ground underneath the carpet of the
room which drum contained
nothing but potato bags. The appellant was a fruit and
vegetable hawker who employed a number of others and some of the employees
occupied this room with his permission. They had free access to the "hokkie" and
'to the passage already referred to and used to
store vegetable sacks and liquor
there. Solomans in fact found a case of beer and some empty beer bottles in a
container in the passage.
(d) Solomans then summoned the appellant from the
back-yard to be present while his, the appellant's, room was searched.
-5-
(e) Solomans then searched under the bed in the room and removed portion of the
wall of the "hokkie". Having done so, he put his
head and shoulders through the
hole in the wall created by his removal of part of the wall and, observing that
the soil was loose
at a particular point in the passage a short distance away,
dug with his fingers in the ground and found a plastic bag concealed
under the
earth. In this bag there were 173 tablets containing
methagualone.
There was initially some dispute about
what occurred thereafter, but eventually Solomans agreed that when the appellant
was confronted
with the tablets he may have said that he was a hawker, that he
had been away for two days and that he had no knowledge of the tablets.
Furthermore, when Solomans showed the tablets to Accused No
-6-1. she said that they were all hers.
The appellant gave evidence. He confirmed that he had indeed been away from
his home for two days on his hawker' s business and that
he had only returned
home a f ew hours before Solomans and the other members of the police force had
arrived. He also said that access
could easily be gained to the passage by
simply moving the, chest to one side. Solomans certainly gave the impression
that it was
more difficult to gain access to the hóle (where the tablets
had been buried) by means of the passage than by removing part
of the wall of
the "hokkie" as he had done. His evidence on this and other points was open to
serious criticism. Be that as it may,
it is common cause that others beside the
appellant and Accused No 1 had access both to the appellant's room and the
passage.
-7-
The magistrate did not f ind that the State had proved that the appellant had
actual possession of the tablets but relied on the presumption
created by
section 10(3) of the Act. In the court
a quo
King J (with whom Van
Heerden AJ concurred) came to the conclusion that actual possession had been
proved. The basis upon which he
did so was apparently the following:
(1) The evidence of Solomans to the effect that when he confronted the appellant
with the tablets, "Dit was vir my baie duidelik
dat hy groot geskrik het, want
hy was senuweeagtig".
(2) The tablets were found "...in of by sy slaap-kamer in 'n gat in die muur by
sy bed ...".
(3)
The appellant was the "huisbaas" of the
"hokkie".
-8-I shall deal with these points seriatim.
I have
considerable reservations about the reliability of Solomans's evidence. In his
evidence in chief he said quite categorically
that when he confronted the
appellant with the tablets the appellant did not answer him. In
cross-examination he was compelled to
admit that the appellant may have said
that he had been away for two days and knew nothing about the tablets. In his
evidence in
chief he refrained from disclosing what he later revealed namely,
that he had had to remove a section of the wall in order to gain
access from
inside the appellant's room to the area where the tablets were buried. Initially
he said it was not possible to gain
access to the passage except through the
appellant's bedroom. In cross-examination he was forced after some prevarication
to concede
that if one removed the chest at one end of the passage it was
quite
-9-
feasible to gain access to the passage from outside the "hokkie". Be that as
it may, even if one takes Solomans's evidence at its
face value, the fact that
the appellant was nervous when confronted by the police with the tablets found
in the passage outside his
"hokkie", is a neutral fact. It would be a natural
reaction for a completely innocent person to be frightened and nervous if the
police discovered a cache of drugs near his home.
There was no question of the tablets being found "in 'n gat in die muur by sy
bed". This is a misreading of the evidence. The tablets
were found buried in a
hole in the ground in the passage outside the "hokkie" after the police had
removed a section of the wall.
It is correct that it was the appellant who had been given permission to
erect the "hokkie" and in that
-10-
sense he was the "huisbaas". It by no means follows that he
was in
possession of everything in the "huis" and still less
of everything in the
vicinity of the "huis". There may well
be cases where the fact that a person
is the "huisbaas" of
particular premises is significant e.g. as in
S v
Mkize
1975(1) SA 517 (A) at 524C-G but it is not a rule or
principle
of reasoning which is of universal application.
It all depends on the
particular facts of eech case. The
learned judge expressed himself as
follows:
"Dit is moontlik dat ander persone ook van die teenwoordigheid van die Mandrax
bewus kon gewees het, maar dit is heel duidelik uit
die feite, na my mening, dat
hy synde die huisbaas moes bewus gewees het van die teenwoordigheid van die goed
en daardeur dit besit
het volgens die woordomskrywing in die betrokke
Wet."
I assume that when the learned judge said that
the appellant must have been aware of the presence of the tablets, he meant that
the
appellant, by inference, was
-11-
aware. But the fact that hé was the "huisbaas" would not, of itself,
justify the inference that he was aware of the presence
of the tablets.
Furthermore, even if the circumstances were such as to justify the inference
that he knew of the presence of the
tablets, and lied about his knowledge, it
would not necessarily follow that he had possession of them. Cf
Mkize
's
case supra at 525B. The evidence of the appellant that he shared the room with
Accused No 1 and that his employees had access to
that room was, as already
mentioned, not disputed. In the circumstances I do not consider that it is the
only reasonable inference
that he had possession of the tablets in any of the
senses of the word as defined in the Act.
In my judgment the magistrate was correct in not finding that actual
possession had been proved. He relied however upon the presumption
contained in
section 10(3) (as
-12-
did the court a quo in the alternative). Counsel for the
State wisely
conceded that he could not rely upon the
presence of the appellant in the
bedroom after he had been
summoned to the "hokkie" from where he had been
standing
with a group of other men in the back-yard. As Trollip JA
pointed
out in
S v Maiola
1975(2) SA 727 (A) at 732C, the
rationale for the
operation of the presumption in section
10(3) is
"... that the drug or plant should be found so close and so circumstanced in
relation to the accused that it suggests that he must
have 'possessed' it, i.e.,
he was keeping or storing it or had it in his custody or under his control or
supervision (see the definition
of 'possess' in sec
1)."
It obviously follows that an artificially
created proximity
such as when the accused is summoned by the police to the
place where the
drug is, cannot be relied on. See
S v Mweli
1974(4) SA 259 (N),
S v Mulliqan & Another
1975(2) SA 111
(N) at 117A,
S v Mackay
1975(4) SA 98 (N) at 101A and
S v
-13-
Pretorius
1982(2) PH H1 94. Nor does the presumption in section 10(3)
of the Act apply when the drug is found in the immediate vicinity of
where the
accused had been at some earlier time.
S v Jogiat
1978(2) PH H239 at
p347.
Counsel for the State sought to rely on the fact that the tablets must have
been in" 'the passage when the appellant was in the back-yard
of the premises.
That is undoubtedly so but it does not assist him. The section requires that the
drug should be found in the immediate
vicinity of the accused. The finding of
the drug and its then situation in the immediate vicinity of the accused must
contemporaneously
co-exist. This concept is conveyed by the words "found in the
immediate vicinity of the accused" cf S
v Wilson
1962(2) SA 619 (A) at
624A dealing with the presumption contained in section 90 bis (a) and (i) of Act
No 13 of 1928 and
S v Jogiat
supra. At the time when the
-14-
tablets were found the appellant was no longer in the back-
yard. At that
time he was indeed in the bedroom and the
wall had been dismantled so that it
may be said that he was
then in the immediate vicinity of the tablets, but he
had
been brought there by the police; for the reasons already
indicated his presence there cannot be relied on. Even if
he had been
present in the bedroom when the police arrived
and had remained there until
the tablets were found, I doubt
whether on the facts it could have been said
that they
were found in his immediate vicinity. The tablets were not
found in the bedroom (nor, as the court a quo seems to have
thought, in a hole in the wall of the bedroom); they were
found outside the wall and buried in the ground. In S v
Mulligan
supra at p 115E Fannin J says this:
"One factor which may affect the question is the one of the accessibility of the
drug to the accused. For example, a man may be found
sleeping in his bed, next
to the outside wall of his bedroom. Dagga may be found hidden in a hollow
or
-15-
crevice on the other side of the wall, outside the house. It may in fact be only
inches away from him, yet it would be difficult
to hold that the dagga was found
in his immediate vicinity.
No doubt many different
such
situations may occur. In each case all the circumstances will have to be taken
into account."
Nor do I think that the presumption
would have operated if the police had found the tablets while the appellant was
still standing
outside in the yard. There is no evidence as to the distance
between the back-yard and the passage. Assuming however (as it seems
reasonable
to do) that they were sufficiently close to say that the appellant was in the
immediate vicinity, the State still faces
the problem that at that stage (a)
Accused No 1 who shared the bedroom with the
appellant, was in the bedroom and much closer to
the drugs than the appellant.
-16-
(b) The drugs were in fact hidden in the ground outside the "hokkie", the walls
of which were still intact.
(c) The appellant was, in any event, in the company of a number of
others.
These factors, taken together, would
militate against the application of the presumption. As Fannin J pointed out in
S v Mulligan
supra cit the onus is one which it may be extremely
difficult to discharge in some situations and unless the trial court appreciates
and makes allowance for the dilemma in which any who are in fact innocent may
find themselves, serious injustices may result. (p115
in fin -116C).
In my judgment the State failed to prove beyond reasonable doubt the facts
necessary to bring into operation
-17-the presumption contained in section
10(3) of the Act.
The appeal accordingly succeeds and the conviction and sentence of the
appellant are set aside.
A J MILNE
Judge of Appeal
BOTHA JA ]
] CONCUR NICHOLAS AJA ]