IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
Case no: CA & R181/2021
In the matter between:
NOLAN WELLINGTON Appellant
and
THE STATE Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
APPELS AJ:
Introduction
[1] The appellant was convicted in the Magistrates’ Court in Kariega on a
charge of contravening section 5(b) read with sections 1, 13(f), 17(e) of the Drugs
and Drug Trafficking Act, 140 of 1992 (“the Act”). 1 He was sentenced to eight years’
imprisonment, four years of which were suspended for five years on condition that he
is not convicted of contravening section 5 of the Act within the period of suspension.
1 Section 5(b) of the Act provides that: “No person shall deal in—…(b) any dangerous dependence-
producing substance or any undesirable dependence-producing substance,…”. Section 13(f)
provides that contravention of section 5(b) is a criminal offence.
[2] This is an appeal against his conviction and sentence. He was granted leave
to appeal by the Magistrates’ Court on 26 April 2021.
Non-compliance with Section 105 of the Criminal Procedure Act 51 of 1977
[3] In terms o f section 105 of the Criminal Procedure Act 51 of 1977 (“the
CPA”), the prosecutor must put the charge to the accused before the
commencement of the trial and the court must require the accused to plead to the
charge in accordance with section 106. The pro visions of section 105 are
peremptory.2
[4] In preparation for the hearing of the appeal, it became apparent that the
prosecutor did not put the charge to the appellant prior to the commencement of the
trial. Instead, the prosecutor addressed the trial cour t at the commencement of the
trial and stated that: “ The defence had access into the docket . . . as well as the
charge sheet, and is aware of the charge against the accused.”
[5] The magistrate did not require the appellant to plead to the charge. Instead,
the appellant’s attorney, Mr Malgas, confirmed the correctness of the statement by
the prosecutor and informed the magistrate that the appellant “ pleads not guilty and
is ready to proceed with the trial”.
[6] During the appeal, and in response to questions from the bench in relation to
the above, counsel for the respondent, Ms Obermeyer, informed the court that this
particular type of irregularity is not unusual and occurs frequently in the lower courts.
At the conclusion of the appeal hearing, the parties wer e requested by the court to
file supplementary heads of argument dealing specifically with the issue of non -
compliance with section 105 within two weeks of the date of hearing, this aspect
having not been raised by the appellant in the appeal. Both parties filed
supplementary heads of argument within the period stipulated by the court.
[7] In his supplementary heads of argument, the appellant’s attorney, Mr
Sojada, submitted that the failure to comply with section 105 rendered the trial unfair
Sojada, submitted that the failure to comply with section 105 rendered the trial unfair
and that the conviction and sentence ought to be set aside. In this regard, he
2 S v Mamase and Others 2010 (1) SACR 121 (SCA) at para 7.
referred to the case of S v ZW 3 where the court held that non -compliance with
section 105 is an irregularity. In S v ZW 4 the court held that the party who is seized
with the duty to put the charge to the accused is the state prosecutor, by virtue of
him being the official r epresentative of the State. The task of informing the accused
of the charge should not be left to the accused’s legal representative.
[8] It should however be noted that although the court in S v ZW 5 deemed the
failure of the prosecutor to comply with secti on 105 an irregularity and held that the
failure by the magistrate to intervene and cure the irregularity was a misdirection, the
court nevertheless did not hold that the irregularity and misdirection vitiated the
entire proceedings. This is evidenced by t he fact that the conviction of the appellant
was not set aside. The court set aside the sentence of life imprisonment because
(inter alia) the legislative provisions relating to prescribed minimum sentences were
not explained to the accused.6
[9] Mr Sojada, in the appellant’s supplementary heads of argument, also placed
reliance on S v Mashaba ,7 for the proposition that where a criminal trial does not
commence with the charge being put to the accused and affording him an
opportunity to plead thereto, “ everything that follows is not a trial in terms of the law
of the country .”8 It must be said that the facts of the present matter are
distinguishable from those in Mashaba, in that in those proceedings the plea process
envisaged in section 105 was entirely absent, the Magistrate having simply convicted
an unrepresented accused for contravening section 31(1) of the Maintenance Act, 99
of 1998, following a request from the pr osecutor to postpone the matter (by
agreement between the parties) to afford the accused an opportunity of making
payment of arrear maintenance in the admitted sum of R6 000. The court, in
Mashaba, relying on S v Gumbi and others9 and S v Mamase and others10 found the
Mashaba, relying on S v Gumbi and others9 and S v Mamase and others10 found the
proceedings to be irregular and set them aside.
3 S v ZW 2015 (2) SACR 483 (ECG) at p41(e).
4 S v ZW, supra at p41(c).
5 S v ZW, supra at p41(e).
6 S v ZW, supra at p41(f).
7 [2022] ZAMPMBHC 88 (8 December 2022).
8 S v Mashabe at para 12.
9 2018 (2) SACR 676 (SCA).
[10] Binns-Ward J, in analysing Mamase, stated as follows in S v Moses:11
“Para 7 of the judgment of the Supreme Court of Appeal in S v Mamase and
Others 2010 (1) SACR 121 (SCA), to which referen ce was made in ZW in the
passage quoted earlier, does not hold that s 105 is peremptory in the sense that it is
essential that it be complied with to the letter. The judgment holds that a plea
process in criminal proceedings is peremptory in terms of s 105, which is something
different. The appeal court made that observation in the context of determining when
a trial commences. Its determination was that that the effect of s 105 (and s 106,
which prescribes the nature of the various types of plea that an accused may plead)
is that a criminal trial does not commence until the accused pleads to the charge(s).
To use an analogy from civil procedure, litis contestatio is not obtained, and the case
is not triable, until the accused has pleaded.”
[11] It is a ccordingly clear that the appellant’s reliance on Mashaba is, in the
present circumstances, misplaced.
[12] In the respondent’s supplementary heads of argument, Ms Obermeyer,
submitted that, on the facts of this matter, the non -compliance with section 105 did
not render the trial unfair. In this regard, she referred to Moses12 where the court,
relying on ZW, Motlhaping v S,13 and S v Porrit,14 held that the application of section
105 should be approached pragmatically rather than formalistically.
[13] When it comes to the interpretation of statutory provisions, our courts have
emphasised that the focus is less on whether a provision has been couched in
peremptory terms, and more on whether the substantive purpose of the provision
has been achieved.15
[14] In this regard, it should be noted that the purpose of section 105 is to give
effect to an accused’s right as enshrined in section 35(3)(a) of the Const itution, to be
10 2010 (1) SACR 121 (SCA).
11 S v Moses 2019 (1) SACR 75 (WCC).
12 At para 19.
10 2010 (1) SACR 121 (SCA).
11 S v Moses 2019 (1) SACR 75 (WCC).
12 At para 19.
13 [2015] ZANWHC 60 (17 September 2015).
14 2016 (2) SACR 700 (GJ).
15 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the
South African Security Agency and Others 2014 (1) SA 604 (CC) at para 30.
informed of the charge with sufficient detail to answer to it. Therefore, where there is
non-compliance with the peremptory provisions of section 105, the appeal court
should consider whether the non -compliance has materially compromised the
appellant’s rights to a fair trial. An accused’s right to a fair trial would be materially
compromised if the purpose of section 105 was not achieved, i.e. if he was not
informed of the charge with sufficient detail to answer to it.
[15] Having said that, the provisions of section 105 of the CPA should ordinarily
be complied with according to its tenor, and it is lamentable that the magistrate did
not insist that the charge be put to the appellant. However, in the circumstances of
this matter, (i) the appellan t was legally represented; (ii) his attorney, in the
appellant’s presence in open court, confirmed to the court that the appellant had
insight into the charge sheet, was aware of the charge against him, and pleaded not
guilty thereto; and (iii) it is clear from the record that the appellant was familiar with
the charge sheet.
[16] I am of the view that in the present circumstances, the appellant was
informed in sufficient detail of the charge to enable him to plead thereto, which he
effectively did, through his legal representative. The object and purpose of section
105 was therefore substantially fulfilled, there being no prejudice to the appellant’s
right to a fair trial.
The Evidence for the State
[17] The appellant was arrested on 13 May 2017 by Sergeant Sonw abile Majuba
(“Majuba”) near the corner of Verwoerd and Cawood Streets in Kariega on suspicion
that he was dealing in an undesirable dependence -producing substance,
methamphetamine,16 known by its street name, “tik”. At the trial, the state led the
evidence of two witnesses, Majuba and Constable Ndabeni (“Ndabeni”).
[18] Majuba testified that he was on duty performing crime prevention duties with
[18] Majuba testified that he was on duty performing crime prevention duties with
Ndabeni on 13 May 2017. They were patrolling an area in Kariega in a marked police
16 Methamphetamine is listed in Part III of Schedule 2 of the Act. Section 1 of the Act defines
“undesirable dependence-producing substance ” as “ any substance or any plant from which a
substance can be manufactured included in Part III of Schedule 2.”
vehicle when they saw a man, late r identified as Dillon Mitchell (“Mitchell”), standing
near the corner of Cawood and Verwoerd Streets, Kariega. When their vehicle
moved in his direction, Mitchell suddenly took off and started running.
[19] Majuba testified that he exited the police vehicle and started chasing
Mitchell. As he closed in on him, Mitchell ran down a gravel road towards a motor
vehicle which was positioned diagonally across the road, approximately 200 meters
from where the chase started. Mitchell entered the vehicle and sat in th e front
passenger seat. Upon his entry, the appellant, who occupied the driver's seat,
switched on the ignition.
[20] Majuba approached the men and instructed them to exist and secure their
hands on the vehicle. He waited for Ndabeni to join him before he start ed searching
Mitchell. When he searched Mitchell, he found a small packet of tik inside his pocket
and arrested him for possession of drugs. Majuba commenced searching the
appellant and found a “money bag”, containing approximately 30 small plastic
packets of tik, in his back trouser pocket, as well as R212 on his person. He called
for back-up and in addition to Ndabeni, several other police officers arrived on the
scene.
[21] He thereafter searched the vehicle and found a small scale and a small
spectacle case. Inside the spectacle case, he found a spoon and small plastic
packets of tik, that looked similar to those found on the appellant. Majuba arrested
the appellant on suspicion of dealing in drugs. He testified that the scale and spoon
found in the vehicle a re tools commonly used by drug dealers to weigh drugs and to
scoop drugs into plastic bags (“the equipment”).
[22] The plastic packets were sealed into an evidence bag and tested at the
Eastern Cape Forensic Laboratory. According to an affidavit deposed to by W arrant
Officer Mabizela (“Mabizela”) in terms of section 212 of the CPA, the material inside
Officer Mabizela (“Mabizela”) in terms of section 212 of the CPA, the material inside
the plastic packets was tested and confirmed to be methamphetamine. The affidavit
of Mabizela was admitted into evidence with no objection by the appellant, marked
Exhibit B.
[23] The second witness who was called by the State was Ndabeni. During his
examination in chief, he corroborated Majuba in all material respects. However,
during cross-examination, it became evident that he was not paying close attention
to the search conducted by Majuba when he searched the vehicle. He was uncertain
exactly where in the vehicle Majuba found the equipment and other bags of tik and
was also uncertain of the exact quantity of the bags found by Majuba. He eventually
conceded during cro ss-examination that he did not watch Majuba closely when he
searched the vehicle because he was watching the two suspects.
The Appellant’s Version
[24] The appellant denied that Mitchell entered the vehicle and sat in the front
passenger seat. In fact, he denied knowing Mitchell at all. His version is that on the
night in question, he was driving a vehicle, which belonged to a family member, in an
area unknown to him. Having taken a wrong turn on a gravel road, he proceeded to
make a U-turn. In the process thereof, he saw Majuba chasing Mitchell. Mitchell ran
approximately 30 meters past the vehicle when Majuba caught up with him and
dragged Mitchell back to the vehicle, assaulted him, made him put his hands on the
vehicle and searched him. According to the appellant, he remained seated in the
vehicle until Ndabeni arrived. More police officers in police vehicles arrived on the
scene. Amongst them was Constable Bacor (“Bacor”).
[25] The appellant was instructed to exit the vehicle and he was searched. Cash
in the amount of just under R800, was found on him. Majuba searched the vehicle,
ripped out the sound boxes, searched inside the vehicle under the car seats, the
dashboard, and inside the cubby hole but found no drugs. It was only once Majuba
searched under the v ehicle at the rear -end on the driver’s side that he found the
drugs and equipment on the ground underneath the vehicle. Notably, on a reading of
the appellant’s evidence, he a t no stage informed Majuba that Mitchell was a
stranger to him and entirely unaffiliated with him. I return to this aspect later.
stranger to him and entirely unaffiliated with him. I return to this aspect later.
[26] Bacor was called to testify on behalf of the appellant. He was amongst the
policemen who were called as back -up. According to him, the appellant was still
seated in the vehicle when he arrived. He did not w itness Majuba conducting a
search of the vehicle. Instead, he saw Majuba searching around and underneath the
vehicle while the appellant remained seated inside. He saw Majuba pulling out a
transparent plastic bag with a number of smaller plastic bags insid e, filled with a
substance which he was told was tik, from underneath the right rear wheel of the
vehicle. After they pulled out the bag from under the vehicle, they arrested the
appellant and searched him. Majuba then informed him that they would take th e
vehicle to the police station where the vehicle would be searched.
The Magistrate’s Judgment
[27] It is evident from the magistrate’s judgment that he found Majuba to be a
credible witness. He stated the following in his judgment regarding Majuba’s
evidence:
“After thorough cross examination the evidence of Majuba stood firm. He was an interesting
witness who made a good impression on the court. There could be little criticism of his
evidence…”
[28] Although the magistrate also found Ndabeni to be a credible witnes s, he
criticised certain aspects of his evidence and acknowledged that he did not fare as
well as Majuba under cross-examination. He however noted that Ndabeni, subject to
what I have stated above relevant to Ndabeni not having observed the search,
corroborated Majuba in all material respects. In his analysis of Ndabeni’s evidence
he stated the following:
“He confirmed Mr. Majuba's evidence on material aspects on point, although genuine
criticism can be brought into his testimony, it cannot be said that he was not
truthful…”
[29] Both Majuba and Ndabeni were therefore found to be credible witnesses by
the magistrate and he accepted their evidence.
[30] The magistrate did not find the appellant to be a credible witness and was
especially critical of the fact that there were material differences in the appellant’s
version that was put to Majuba, compared to the version he presented during his
own oral evidence. The magistrate was also critical of Bacor and noted that his
evidence and that of the appellant differed in mat erial respects from each other. He
therefore rejected the evidence of the appellant and Bacor insofar as it was
inconsistent with the accepted evidence of Majuba and Ndabeni.
Grounds of appeal
[31] The grounds of appeal against the conviction as formulated in t he notice of
appeal are the following:
(a) In the judgment, the trial court levelled criticism against Majuba and
therefore the evidence of Ndabeni is uncorroborated in respect of material issues in
the case.
(b) The court erred in not finding that there were mate rial corroboratory aspects
between the evidence of Bacor and the appellant.
(c) The court erred in finding that the state had proven the offence of dealing in
drugs.
[32] In respect of the sentence, the grounds of appeal are that:
(a) The court erred in finding that d irect and long -term imprisonment should be
imposed.
(b) Since no direct evidence of dealing in drugs was placed before the court,
direct imprisonment should not have been imposed.
Analysis
Assessment of the Evidence for the State
[33] The State bears the onus to p rove the guilt of an accused beyond
reasonable doubt. It is also trite that if an accused’s version is reasonably possibly
true, he is entitled to an acquittal. It is not necessary for the State to eliminate every
inference which is inconsistent with the a ppellant’s guilt or which is consistent with
his innocence. In this regard, in S v Sauls and Others17 the court held as follows:
“The State is, however, not obliged to indulge in conjecture and find an answer to every
possible inference which ingenuity may suggest any more than the court is called on to seek
speculative explanations for the conduct which on the face of it, is incriminating.”
17 S v Sauls and Others 1981 (3) SA 172 (A) at p182G-H.
[34] When faced with two mutually destructive versions, a trial court must
consider the credibility and reliability of the witnesses. Evidence that is reliable
should be weighed against the evidence that is found to be false and, in the process,
measured agains t the probabilities to ultimately determine whether the State has
satisfied the requirement of proof beyond a reasonable doubt.18
[35] In this matter it is common cause that the police found tik and the equipment
on the scene near the appellant. There is howeve r a factual dispute as to where the
drugs and equipment were found. The State’s witnesses stated that the tik was
found in the appellant’s pocket and that more tik and the equipment were found
inside the vehicle driven by the appellant. The appellant admit s that the police found
the tik and equipment on the scene but stated that it was found on the ground
underneath the vehicle. Following an analysis of the evidence in line with the
principles set out in S v Singh ,19 S v Janse van Rensburg and another ,20 and
Viveiros v S ,21 the magistrate correctly assessed Majuba and Ndabeni as an
acceptable witnesses, and rejected the evidence of the appellant and Bacor (insofar
as it contradicted the accepted evidence) as wholly improbable and not reasonably
possibly true , being alive not only to the contradictions between their respective
evidence, but also the inherent contradictions and inconsistencies in their evidence,
individually. Whilst not explicitly stated, it is clear from the magistrate’s reasoning
that he found Majuba’s evidence (and that of Ndabeni, subject to what I have stated
above), viewed holistically against the body of the evidence, to be probable and such
as to be accepted. No criticism can be levelled against the Magistrate’s
consideration of the aforesaid, and ultimately, the conclusion which he reached.
[36] Generally, a court of appeal will very rarely interfere with the findings of fact
[36] Generally, a court of appeal will very rarely interfere with the findings of fact
of the trial court, including credibility findings about witnesses. 22 The following was
18 Doorewaard and Another v The State 2021 (1) SACR 235 (SCA) at para 22.
19 1975 (1) SA 227 (N) at 228 E-H.
20 2009 (2) SACR 216 (C) at para 8.
21 [2000] 2 ALL SA 86 (A) at para 3.
22 R v Dhlumayo and another 1948 (2) SA 677 (A) at p705-706.
stated in R v Dhlumayo 23 regarding the approach an appeal court should have to
credibility findings by the trial court:
“The trial Judge has advantages – which the appellate court cannot have - in seeing and
hearing the witnesses and in being steeped in the atmosphere of the trial. Not only has he
had the opportunity of observing their demeanour, but also their appearance and whole
personality. This should never be overlooked.
Consequently, the appellate court is very reluctant to upset the findings of the trial Judge.”
[37] Furthermore, where the issues turn on findings of fact by the trial court, the
following dictum in State v Hadebe and Others24 is instructive:
“Before considering these submissions it would be as well to recall yet again that there are
well-established principles governing the hearing of appeals against the finding of fact. In
short, in the absence of demonstrable and material misdirection by the trial court, its findings
of fact are presumed to be correct and will only be disregarded if the recorded eviden ce
shows them to be clearly wrong”.
[38] In this matter, and as intimated above, I am of the view that the magistrate’s
credibility findings, and findings of fact, were justified, there being no basis to
interfere therewith. In this regard, it appears from the record that Majuba’s evidence
was unassailable and that he held firm under cross -examination. No genuine
criticism was levelled against Majuba’s evidence by the magistrate, and none was
warranted.
[39] I agree with the magistrate that Ndabeni’s evidence was no t as strong as
Majuba in certain respects. More particularly, Ndabeni, who had appeared uncertain
in his evidence in chief in relation to the facts surrounding the search, conceded
during cross-examination that he did not pay close attention to Majuba’s se arch of
the vehicle, in that he was keeping watch over the two suspects. Accordingly, he had
no first -hand knowledge of where Majuba found the tik and the equipment, same
no first -hand knowledge of where Majuba found the tik and the equipment, same
having been shown to him by Majuba, following the search. For this reason,
23 R v Dhlumayo & another, supra at p705.
24 S v Hadebe and Others 1997 (2) SACR 642 (SCA) p645E-F.
Ndabeni was of the view that Majuba was best placed to answer questions in relation
to the search
[40] The magistrate, however, still found him to be a truthful witness. This finding
cannot be faulted. Ndabeni’s uncertainty about the exact quantity of tik and the place
where the tik and other items were found, is entirely explicable in the context of the
above circumstances and is not such as to impugn his credibility.
[41] The magistrate was also correct that Ndabeni’s evidence, subject to the
above concessions, corroborate d that of Majuba in all material respects. More
particularly, he confirmed that Mitchell started running as soon as he saw the police
vehicle approaching and that Majuba gave chase. He confirmed that Mitchell ran
towards the car of the appellant and got in to the front passenger seat. He further
confirmed that both the appellant and Mitchell were searched by Majuba and that
drugs were found on both of them. Although he could not corroborate Majuba’s
evidence as to exactly where the other drugs and equipment was found, he could
confirm that Majuba showed them to him after he conducted a search inside the
vehicle.
[42] The magistrate, having found both Majuba and Ndabeni to be credible
witnesses, and there being no reason to interfere with such findings, there is no merit
in the ground of appeal raised by the appellant which suggests that the trial court
levelled criticism against the evidence of Majuba, rendering the evidence of Ndabeni
as uncorroborated in respect of material issues.
Assessment of the Appellant’s Evidence
[43] A factor considered by the magistrate in assessing the appellant’s credibility
is the contradiction in the version put to Majuba on his behalf during cross -
examination and the appellant’s version during his own evidence. The record
reflects that it was put to Majuba by the appellant’s attorney that the appellant
observed Majuba approaching in advance and accordingly, he had an opportunity to
observed Majuba approaching in advance and accordingly, he had an opportunity to
dispose of any unlawful substances (had they been in his possession, which he
denied) before Majuba reached him. Despite Majuba’s protestations during cross -
examination that the appellant did not see him and accordingly did not have an
opportunity to dispose of the drugs, the appellant’s attorney persisted with this line of
questioning. Contrary to the version put to Majuba in this regard, the appellant
testified that he did not see Majuba approaching the vehicle as he was on the phone
at the relevant time.
[44] The appellant was confronted with why the version that was put to Majuba
on his behalf differed from his evidence under cross-examination. At no point did he
state that he never instructed his attorney to make those statements on his behalf. It
is therefore reasonable to assume what was put to Majuba during cross -examination
was in accordance with instructions he provided.
[45] In assessing the credibility of a witness, one of the factors which a court may
take into account is “external contradictions” in what is put on his behalf to witnesses
compared to his own evidence. 25 The magistrate can therefore not be faulted for
considering the contradiction in what was put to Majuba in cross -examination
compared to the version which the appellant gave during his own evidence.
[46] Moreover, if regard is had to the probabilities, the appellant’s version that
Mitchell was unknown to him is highly improbable and was clearly designed to
distance himself from the commission of the offence. It is inconceivable that the
appellant would fail to mention this fact to Majuba, during the search a nd arrest,
particularly where tik was found on Mitchell, and by the appellant’s own account, not
on the appellant’s person nor in the vehicle but rather on the ground in close
proximity to where Mitchell was standing. The appellant also offered no explana tion
as to why he did not query the reason for his arrest, there and then, in circumstances
in which he maintains that neither the tik nor the equipment was found on him or in
the vehicle. That he did not do so defies logic and is against the probabilities.
[47] There is also no merit in the ground of appeal raised by the appellant that
the magistrate erred in not finding that there were material corroboratory aspects
the magistrate erred in not finding that there were material corroboratory aspects
between the evidence of Bacor and the appellant. They might have corroborated
each other in respect of where the drugs were found, but in other material respects,
most notably the search of the motor vehicle, they contradicted each other. The
appellant’s evidence was that Majuba conducted a thorough search inside the
25 Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others 2003 (1) SA
11 (SCA) at para 5.
vehicle but found no incrimin ating evidence. He testified in detail about how Majuba
searched the vehicle, and that he ripped out the sound box in the process but still
came up empty -handed. The searching of the vehicle and the failure to find any
incriminating items during the search is a material aspect of the appellant’s version.
[48] Bacor in contrast testified that the vehicle was not searched on the scene
and that Majuba stated that the vehicle would be taken to the station where a search
would be conducted. So convinced was Bacor th at no search was conducted on the
scene in his presence that the failure to conduct the search on the scene was later,
he alleges, the subject of a concern he raised with his commander, Captain Matthys,
once his shift ended. The magistrate therefore correc tly held that the appellant and
Bacor contradicted each other in material respects.
[49] The above inconsistencies were not the only difficulties that the magistrate
identified in Bacor’s evidence. Bacor was a notably unimpressive witness who saw fit
to change and adapt his evidence on many occasions. By way of example, he
initially testified that as the tik and equipment was found under the car and not on the
appellant (or in the vehicle), he having formed the view that that the appellant’s
arrest was “ unlawful”. Notwithstanding this, he accepted that the officers effecting
the arrest held a different view and he accordingly took no action to raise concerns
relevant to what he had witnessed. When probed during cross -examination
regarding his inaction after witnessing a purported illegality, including the absence of
an entry in his pocketbook relevant to the incident, Bacor altered his version, stating
that he had reported the incident to his commander and that he had offered to make
a statement as to what he had witnessed. He later testified that he was satisfied that
the arrest was lawful as the appellant could very well have disposed of the drugs by
the arrest was lawful as the appellant could very well have disposed of the drugs by
discarding them from the vehicle. The notion that he did not initially view the arrest
as unlawful was irreco ncilable with the notion that he raised any concerns with
Captain Matthys at all. When confronted with this anomaly, he was forced yet again
to adapt his evidence. This time, his view regarding the illegality of the arrest
remained unchanged, but he change d the nature of the complaint made to Captain
Matthys. It was now no longer about an unlawful arrest, but about his colleagues
excluding him from the search of the vehicle. The magistrate was rightfully critical of
Bacor’s evidence and held that, insofar a s it differed with that of Majuba, it could not
be accepted.
[50] In my view, the contradictions, inconsistencies, and lack of inherent
probability in the evidence of the appellant and Bacor justified the magistrate’s
rejection of their versions, insofar as i t conflicted with the established evidence of
Majuba and Ndabeni. I could not find that he committed any misdirection in this
regard.
Possession versus Drug dealing
[51] The appellant submitted that the trial court erred in finding that the state had
proven the offence of dealing in drugs.
[52] The magistrate did not provide reasons as to why he convicted the appellant
on the main count, as opposed to the alternative charge of possession of an
undesirable dependence producing substance. 26 Therefore, a further issu e in this
appeal is whether the evidence led at the trial supports a conviction for dealing in an
undesirable dependence producing substance, as opposed to possession thereof.
[53] The phrase “ deal in” is defined in the Act as “ performing any act in
connection with the transhipment, importation, cultivation, collection, manufacture,
supply, prescription, administration, sale, transmission or exportation of the drug.”27
[54] While there is direct evidence that the appellant possessed the drugs, there
is no direct evi dence that the appellant was performing any of the above -mentioned
acts which constitutes dealing in drugs as contemplated in the Act. The State relied
entirely on circumstantial evidence in respect of the main charge.
[55] Therefore, the only way the appellant could, on the evidence before the trial
court, have been convicted on the main count of dealing in drugs, is through
inferential reasoning. The benchmark case for the correct approach when dealing
26 The appellant was charged in the alternative with a contravention of section 4(b) of the Act.
27 Section 1 of the Act.
with inferences to be drawn from circumstantial evidence i s R v Blom 28 in which the
following was stated:
“In reasoning by inference there are two cardinal rules of logic which cannot be ignored:
1. The inference sought to be drawn must be consistent with all the proved facts. If it is not
the inference cannot be drawn.
The proved facts should be such that they exclude every reasonable inference from them
save the one sought to be drawn. If they do not exclude other reasonable inferences, then
there must be doubt whether the inference sought to be drawn is correct.”
[56] In this matter, and on the accepted evidence:
(a) Mitchell stood on a street corner and started running as soon as he saw a
marked police vehicle approaching.
(b) He was chased by Majuba on foot. As Majuba closed in on him, he got into
the front passenger seat of a vehicle, parked diagonally on a gravel road.
(c) The appellant, who sat in the driver’s seat of the vehicle, switched on the
ignition as soon as Mitchell got into the front passenger seat.
(d) Majuba ordered both of them to exit the vehicle, whereafter both men were
searched.
(e) A small packet of tik was found on Mitchell and a “money bag”, containing
approximately 30 small plastic packets of tik was found in the appellant’s back
trouser pocket, as well as R212 on his person.
(f) On searching the ve hicle driven by the appellant, a small scale and
spectacle case, in which a spoon and small plastic packets that looked similar to
those found on the appellant, were found. Such equipment is routinely used by drug
dealers for the portioning and measurement of drugs.
[57] In such circumstances, the inference that the appellant was engaged in
conduct that constitutes the act of dealing in drugs as defined in the Act, and more
28 R v Blom 1939 AD 188.
particularly, conduct associated with the supply, sale, and/or transmission thereof, is
consistent with the above proven facts. There is no other reasonable inference that
can be drawn therefrom.
[58] The State must adduce proof beyond reasonable doubt, but that does not
mean that it has to prove the guilt of the accused beyond a shadow of a doub t.29 The
position was set out as follows by the court in the matter of S v Van der Meyden:30
“The onus of proof in a criminal case is discharged by the State if the evidence establishes
the guilt of the accused beyond reasonable doubt. The corollary is tha t he is entitled to be
acquitted if it is reasonably possible that he might be innocent (see, for example, R v Difford
1937 AD 370 at 373 and 383). These are not separate and independent tests, but the
expression of the same test when viewed from opposite perspectives. In order to convict, the
evidence must establish the guilt of the accused beyond reasonable doubt, which will be so
only if there is at the same time no reasonable possibility that an innocent explanation which
has been put forward might be t rue. The two are inseparable, each being the logical
corollary of the other.”
[59] On a conspectus of the evidence before the trial court, I am satisfied that the
State discharged the onus of proving its case, on the main charge, against the
appellant beyond reasonable doubt.
[60] The conviction on the main charge of dealing in an undesirable dependence -
producing substance must therefore be confirmed and the appeal on the conviction
must be dismissed.
Sentence
[61] It is trite that the imposition of a sentence is within the discretion of the trial
court.31 An appeal court will only interfere with that discretion if the sentence is so
shockingly disproportionate to what the appeal court would have imposed that it
29 S v Phallo and Others 1999 (2) SACR 558 (SCA) at para 11, recounting the words of Denning J in
Miller v Minister of Pensions [1947] 2 All ER 372 (King’s Bench).
Miller v Minister of Pensions [1947] 2 All ER 372 (King’s Bench).
30 S v Van der Meyden 1999 (1) SACR 447 (W), at p448f – g.
31 S v Rabie 1975 (4) SA 855 (A) at p857D-E.
warrants interference.32 An appeal court may also interfer e with a sentence upon a
finding of a material misdirection by the trial court.33
[62] In addition to the grounds of appeal relevant to the sentence imposed, to
which I have already referred, the appellant’s counsel argued that the trial court
failed to properly consider the personal circumstances of the appellant, and in doing
so, over-emphasised the seriousness of the offence and the interests of society. I do
not agree.
[63] The trial court, in sentencing the appellant, was alive to the fact that it was to
impose a sentence which struck an appropriate balance between the seriousness of
the offence of which the appellant was convicted; his personal circumstances; and
the legitimate expectations and legal interests of the community.34
[64] In terms of section 17(e) read with section 13(f) of the Act, any person who is
convicted of dealing in an undesirable dependence -producing substance shall be
liable to imprisonment for a period not exceeding 25 years, or to both such
imprisonment or such fine as the court ma y deem fit to impose. The sentence
imposed by the trial court of eight years, four of which were suspended, was on the
lower end of the maximum period of imprisonment.
[65] The offence which the appellant has been convicted of is a serious offence.
This is evid enced by the fact that the legislature has ordained that imprisonment of
up to 25 years may be imposed. It is not difficult to understand why. Dealing in
undesirable dependence-producing substances, such as tik, results in grave harm to
others and is a sco urge on society. Courts should ensure that the sentences that
they pass have the requisite deterrent effect, whilst still giving due consideration to
the four objectives of punishment.35
32 S v Malgas 2001 (2) SA 1222 (SCA) at para 12.
33 S v Malgas, supra at para 12.
34 S v Zinn 1969 (2) SA 537 (A).
35 Namely, its deterrent, preventative, reformative and retributive aspects.
35 Namely, its deterrent, preventative, reformative and retributive aspects.
As set out in Director of Public Prosecutions, KwaZulu-Natal v P 2006 (3) SA 515 (SCA).
[66] The personal circumstances of the appellant presented from the bar in the
trial court is that he is a first offender. He is married and his wife is a member of the
South African Police Service. At the time of the sentencing, he was employed at a
company named Gravity, for approximately three years, earning between R8 000
and R9 000 per month. The company’s business involves excavations and laying
cables. He has two daughters who were at the time of sentencing, aged 21 and 27
years respectively.
[67] Whilst it cannot be said that the appellant is not a useful member of socie ty,
his personal circumstances must however be balanced against the seriousness of
the offence and the interests of society.
[68] In S v Randall 36, the court considered the seriousness of the offence of a
contravention of section 5(b) of the Act and stated the following regarding drugs and
the act of trafficking in drugs:
“Society is at risk should it hesitate to use every legitimate mechanism to i ts disposal to
protect itself against their destructive designs.”
[69] In refusing to interfere with an effective sentence of eight years’
imprisonment for dealing in cocaine, the court held further as follows:
“Having weighed the strong personal mitigating fac tors against the interest of the
community, I have come to the conclusion that this Court is not justified as a Court of appeal
in interfering with the sentence imposed by the magistrate. He has not misdirected himself
neither is the sentence so severe tha t we are entitled to upset it. Combating the importation
and distribution of dangerous drugs requires a multi -pronged strategy. Effective policing,
control over ports of entry, training of police and other protective services, expertise in
investigation and control, the education of our youth are some of the important components
of a protective shield against the destructive impact of the illegal trade in dependence -
of a protective shield against the destructive impact of the illegal trade in dependence -
producing substances. However, the courts have their role to play in imposing sentences
which speak clearly of society’s determination to fight this danger with all the weapons at its
disposal.”37
36 S v Randall 1995 (1) SACR 559 (C) at p566i
37 S v Randall, supra at p567b - d
[70] There is no question as to the seriousness of the offence and the legitimate
expectations and legal interests of the community. Regard being had to wh at I have
set out above, I am of the view that a custodial sentence was, in the circumstances,
appropriate, the personal circumstances of the appellant having been considered,
and the four objectives of punishment necessarily having been catered for in the
manner in which the sentence was structured. The sentence imposed by the trial
court neither induces a sense of shock nor is it unjust. In such circumstances, the
appeal against the sentence must fail.
Order
[71] Accordingly, the following order is issued:
[1] The appeal against the conviction and sentence is dismissed.
[2] The conviction and sentence imposed by the court a quo is confirmed.
________________________
G APPELS
ACTING JUDGE OF THE HIGH COURT
I agree.
________________________
I BANDS
JUDGE OF THE HIGH COURT
Heard: 8 October 2025
Delivered: 12 February 2026
APPEARANCES:
For the appellant: Mr. V.M. Sojada
Instructed by: Legal Aid South Africa
MAKHANDA
For the respondent: Ms. H. Obermeyer
Instructed by: The Director of Public Prosecutions
94 High Street
MAKHANDA