Ramoejane v S (A7/2021) [2021] ZAFSHC 115 (29 April 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Appeal number: A7/2021

In the Appeal between:

TSHEPO

RAMOEJANE

Appellant

and

THE

STATE Respondent

CORAM: OPPERMAN, J et DANISO, J

HEARD ON: 12 APRIL 2021

JUDGMENT BY: DANISO, J

DELIVERED ON: 29 APRIL 2021

[1] The Appellant was arraigned at the district court, Kroonstad on a charge of possession of drugs in contravention of section 4 (b) of the Drugs and Drug Trafficking Act 140, of 1992. (“The Act”).

[2] The Appellant was arrested on 04 January 2018 by constables Samuel Nche and Selemela Mpandla from the Kroonstad Crime Intelligence Unit.

[3] The Appellant pleaded not guilty and elected not to disclose the basis of his defence.

[4] After the close of the State’s case the Appellant unsuccessfully applied for a discharge in terms of section 174 of the Criminal Procedure Act, 51 of 1977 (The CPA). He was subsequently convicted and sentenced to a fine of R800 or 80 days’ imprisonment wholly suspended for a period of three years with conditions.

[5] The Appellant is aggrieved by the conviction. He appeals to this court by way of a petition in terms of section 309C of the CPA.

[6] The Appellant was convicted on the evidence of constables Nche and Mpandla. They testified that immediately before the Appellant was arrested they received information from an informant that there was a person selling drugs at a tuckshop known as Seven Days Tuck Shop in Maokeng, Kroonstad.

[7] On the way to the tuckshop the police came across the Appellant. He matched the description provided by the informant. They introduced themselves to him, explained the reasons why they approached him and searched him. Two tablets which they identified as Mandrax were retrieved from his jeans’ pocket. No explanation was provided by the Appellant. He was promptly arrested and driven to his residence to verify his address. Thereafter the Appellant was taken the police station where the tablets were sealed in the evidence bag in his presence and booked into SAPS 13. The tablets were sent to the laboratory for analysis. They were found to contain Methaqualone (Mandrax), an illicit drug listed in Part III of schedule 2 of the Act.

[8] Constable Nche told the court that the Appellant was arrested seven meters away from the tuckshop while constable Mpandla said he was arrested in the street nearby the tuckshop. Under cross-examination it was put the State’s witnesses that the reason they went to the Appellant’s residence was to arrest the Appellant’s brother. The witnesses were adamant that they went to the Appellant’s home to confirm his address.

[9] The chain evidence in respect of the collection, sealing, safekeeping, dispatch and receipt by the forensic laboratory of the tablets which are the subject of the charge against the Appellant was not placed in dispute. An affidavit in terms of section 212 (4) (a) and (8) (a) of the CPA deposed to by the forensic analyst warrant officer Truddy Lebogang Maluleke who analysed the tablets and concluded that they contained Methaqualone was handed in by concurrence of the State and the defence as Exhibit “I”.

[10] It was also not in dispute that the Appellant was arrested on the said day. Accordingly, the only issue to be determined by the trial court was whether the Appellant was found in possession of drugs.

[11] The grounds of appeal are essentially that: The court a quo erred in its finding that the State’s evidence proved the Appellant’s guilt beyond a reasonable doubt despite the inherent improbabilities in the State’s case and the inconsistencies in the State witnesses’ evidence. The court dismissed the Appellant’s application for a discharge in terms of section 174 notwithstanding the fact that the application was not opposed by the State. The court also infringed on the Appellant’s right to fair trial by descending into the arena and cross-examined the Appellant.

[12] As far as the Appellant’s objection to the court’s refusal of a discharge in terms of section 174 of the CPA is concerned; the provisions of section 174 involve the exercise of a judicial discretion to acquit an accused person where a court is of the opinion that there is no evidence on which a reasonable court, acting carefully, might convict the accused either on the offence that he is charged with or a competent verdict on that charge. The decision on whether to grant the application is not depended on the State’s acquiescence.

[13] In this matter the application was premised on the grounds that the State witnesses had a reason to falsely implicate the Appellant, in consequence, they contradicted each other on material aspects namely; the exact spot where they arrested the Appellant and whether they went to the Appellant’s residence on that day. It was argued that at the time of the Appellant’s arrest, constable Nche had also concluded that the tablets found in the Appellant’s possession were Mandrax tablets despite the fact that he “does not have any qualifications to test it is drugs.” According to Ms Kruger for the Appellant, the contradictions are material thus the State’s evidence cannot be safely relied upon.

[14] The inconsistencies and differences in the State’s evidence are immaterial and ‘of a relatively minor nature which are to be expected from an honest but imperfect recollection, observation and reconstruction’. The contradictions actually militate against the conspiracy relied on by the Appellant.[1] It is also important to note that on the Appellant’s version he was arrested next to the tuckshop.

[15] On the facts germane to this matter any prima facie doubt with regard to whether the tablets were drugs (Mandrax) or not was dispelled by Exhibit “I”. The trial court’s finding that the contradictions between the State’s witnesses were immaterial and that there was sufficient evidence implicating the Appellant cannot be faulted.

[16] The Appellant complains that after all the evidence had been tendered the court a quo failed to properly analyse and evaluate the evidence, the court did not consider the inherent improbabilities in the State’s evidence, it erroneously concluded that the State witnesses’ testimony was satisfactory, the witnesses corroborated each other and it rejected the Appellant’s evidence on the basis that it was not reasonably possibly true.

[17] The principles applicable in appeals where the factual findings of a trial court are attacked, are now established. In Mkhize v S (16/2013) [2014] ZASCA 52 para 14 the court held:

“The approach to be adopted by a court of appeal when it deals with the factual findings of a trial court is trite. A court of appeal will not disturb the factual findings of a trial court unless the latter had committed a material misdirection.[2] Where there has been no misdirection on fact by the trial Judge, the presumption is that his conclusion is correct. The appeal court will only reverse it where it is convinced that it is wrong. In such a case, if the appeal court is merely left in doubt as to the correctness of the conclusion, then it will uphold it. This court in S v Naidoo & others 2003 (1) SACR 347 (SCA) para 20 reiterated this principle as follows:

‘In the final analysis, a Court of appeal does not overturn a trial Court’s findings of fact unless they are shown to be vitiated by material misdirection or are shown by the record to be wrong.”

[18] In the record of the proceedings it is clear that the learned magistrate was alive to the mutually destructive versions proffered by the State and the defence witnesses with regard to the circumstances under which the Appellant was arrested.

[19] The defence version casts doubt upon the Appellant’s defence. It was not in dispute that on the day of the incident the police were conducting a search and seizure operation pursuant to a tip off from an informant that a person matching the Appellant’s description was dealing in drugs. The Appellant was searched, arrested and charged with being in possession of drugs. The Appellant’s defence in the court a quo was a bare denial. His version alternated from nothing was found in his jeans’ pockets to a cell phone was found in his pockets. What transpired at the Appellant’s residence is irrelevant to the consideration of the issue of whether the Appellant was found in possession of drugs or not. The allegations that the State witnesses conspired to arrest the Appellant because they had an axe to grind with him for intervening when they attempted to arrest his brother is unsustainable for these reasons and those that I allude to in paragraph [14] above.

[20] The trial court was correct in rejecting the defence evidence on the grounds that it was so improbable that it was false beyond reasonable doubt.

[21] It is a trite principle that there is no obligation on the Appellant to prove his innocence. Following the rejection of the defence version the question is still whether on the accepted evidence, the State has proved the Appellant’s guilt beyond a reasonable doubt.

[22] In this case, the court painstakingly weighed up all the elements which pointed towards the guilt of the Appellant against all those which are indicative of his innocence. It took proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so came to a conclusion that the balance weighed so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The court has applied the correct approach to the evaluation of evidence as articulated in S v Chabalala 2003 (1) SACR 134 (SCA) paragraph 15.

[23] As regards the cryptic contention that the trial court descended into the area by questioning the Appellant during cross-examination, the learned magistrate’s questioning of the Appellant is contained in five pages of the record, pages 107, 108, 111, 113 and 114. The court merely sought clarification with regard to the Appellant’s testimony in relation to the distance between the residence of the Appellant and that of his witness Ms van Rooi, the description of the vehicle that police were travelling in, what was his response to the discovery of the drugs and whether the drugs were indeed sealed in in his presence.

[24] I detect no irregularity in the conduct of the trial court. Despite the learned magistrate’s incorrect belief that she is a referee in court proceedings,[3] “Judicial officers are not umpires. Their role is to ensure that the parties’ cases are presented fully and fairly, and that the truth is established. They are not required to be passive observers of a trial; they are required to ensure fairness and justice, and if that requires intervention then it is fully justifiable.”[4]

[25] The fact that the questioning arose during the cross-examination of the Appellant does not vitiate the proceedings. In Gade v S [2007] 3 All SA 43 (NC) at page 46 paragraph 15 the following is stated:

"The general principle about questioning a witness by the court is noble and sound. The court has the right to question any witness at any stage of the proceedings the main purpose being to clarify and clear up points which are still obscure."

[26] Another aspect which requires determination is the Appellant’s attack against the trial court’s acceptance of the “drug chain” evidence despite the fact that no evidence was led in that regard.

[27] It was submitted by counsel for the State that this issue was not raised at the trial. At the commencement of the trial the State made a request to the court: “Your Worship may the defence just put on record if they are disputing the chain of evidence or not?” The defence’s response was “We are not disputing the chain your worship.”[5] There are no exceptional reasons why this issue should be canvassed at the hearing of an appeal.

[28] I’m in agreement with the State’s contention. The admission was made in court it therefore constitutes a formal admission as provided for in section 220 of the CPA. Furthermore, an affidavit in terms of section 212 of the CPA was handed in by concurrence of the parties (Exhibit “I”). The State is not required to adduce evidence to prove admitted facts. The objection is thus meritless.

[29] Having regard to the facts of this matter, I’m satisfied that the Appellant was correctly convicted.

Order

[30] The appeal against conviction is dismissed.

______

NS DANISO, J

I concur

___

M OPPERMAN, J

On behalf of Appellant: Ms S Kruger

Instructed by: Legal Aid SA

BLOEMFONTEIN

On behalf of respondent:

Adv TE Komane

Instructed by: The Director of Public Prosecutions

[1] See S v Oosthuizen 1982 (3) SA 571 (T) at page 576 para G-H.

[2] R v Dhlumayo & Another 1948 (2) SA 677 A, S v Pistorius 2014 (2) SACR 315 315 para 30.

[3] In its judgment on the application for s 174 at page 164 line 4, the trial magistrate States thus: “…upon listening to both submissions by the Defence as well as the State, the Court say them on here (sic) I’m a referee here.”

[4] S v May 2005 (2) SACR 331 SCA.

[5] Page 2 of the transcript lines 8 to 11.