S v Mafa (CA 130/2005) [2006] ZANWHC 56 (7 September 2006)

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: CA 130/2005

In the matter between:

DANIEL

MAFA

Appellant

and

THE

STATE

Respondent

CRIMINAL APPEAL

LEEUW J; HENDRICKS J

DATE OF HEARING : 23 JUNE 2006

DATE OF JUDGMENT : 07 SEPTEMBER 2006

COUNSEL FOR THE APPELLANT : Mr. S. Mookeletsi

COUNSEL FOR THE RESPONDENT : Adv. E.D. Reynierse

JUDGMENT

HENDRICKS J:

[A] Introduction:-

[1] The Appellant was convicted in the Magistrates Court, Rustenburg, on three (3) counts of dealing in drugs, one count of possession of drugs and one count each of forgery and uttering. On the first three counts he was sentenced to two (2) years imprisonment on each count. On count four (4) he was sentenced to one (1) year imprisonment. Counts five (5) and six (6) were taken together for purposes of sentence and he was sentenced to one (1) year imprisonment. He was thus sentenced to an effective term of imprisonment of eight (8) years.

[2] He applied for leave to appeal before the trial court, which application was refused. He then petitioned the Judge President of this division whereupon leave to appeal against the convictions and sentence was granted by my brother Landman J.

[3] When the appeal was heard on the 23rd June 2006, by my Sister Leeuw J and I, it was brought to the attention of Mr. Mookeletsi, who appeared on behalf of the Appellant, that certain portions of the record are indistinct. An order was made that the indistinct portions be corrected on or before the 31st July 2006.

[4] On the 26th July 2006 a letter was filed with the Registrar indicating that it is impossible for the clerk of the criminal court at Rustenburg to correct or reconstruct the indistinct portions of the record.

[5] Though it is difficult to read the record as it stands, it is not impossible to understand it.

[B] The Facts:-

[6] On 07 February 2003, Inspector Wessels together with an informer, Jacobus Erasmus Fourie, who was tasked to identify drug dealers in the Rustenburg area, went to meet the Appellant at a stadium at 23h30. This meeting was arranged telephonically between the informer and the Appellant with the purpose of buying drugs from the Appellant. The necessary authority for the operation was obtained from the Director of Public Prosecutions in compliance with Section 252 of the Criminal Procedure Act, Act 51 of 1977. The vehicle of the informer as well as the informer himself were searched by Inspector Wessels before they went to meet the Appellant. Drugs, (in the form of cocaine) were bought from the Appellant by the informer. Upon receipt of the cocaine from the Appellant, it was handed over immediately to Inspector Wessels, who was seated in the front passenger seat of the informer’s vehicle. Inspector Wessels duly sealed the parcel and kept it safe until it was sent for forensic analysis.

[7] On the 09th February 2003 Inspector Wessels again tasked the informer to set up a meeting with the Appellant. On this occasion Inspector Wessels had instructed an agent, Inspector Pieter Willem Coetzee, to accompany the informer. She asked the informer and the agent to search each other and the motor vehicle to ensure that neither they nor the motor vehicle had any drugs. Money was handed to the agent and he and the informer then left. When they returned, they handed a parcel to Inspector Wessels, who sealed it in their presence. She obtained their statements and the sealed parcel was kept safe and at a later stage sent for forensic analysis.

[8] On the 12th February 2003 Inspector Wessels again tasked the informer and the agent to set up a meeting and to buy drugs from the Appellant. The same procedure as that of the 09th February 2003 was followed. The agent, the informer as well as their motor vehicle were searched before they embarked on the operation.

Money was again handed to the agent to facilitate the buying of the drugs. Upon their return, a parcel was handed to Inspector Wessels which she sealed in their presence and kept it safe until she took it for forensic analysis.

[9] On the 13th June 2003, the day of the arrest of the Appellant, Inspector Wessels again tasked the informer to set up a meeting with the Appellant. A meeting was then arranged and the Appellant honoured the meeting. Armed with a search warrant, the Appellant and his motor vehicle were searched but no drugs were found. They proceeded to the premises situated in Maanblomsingel road, Rustenburg for which they had a search warrant. A search was conducted but again no drugs were found.

[10] The Appellant then informed the police members that he doesn’t reside at these premises but instead, he is staying at a house in Laurelstreet, Rustenburg. He offered to take them to his house and granted them permission to conduct a search which they did.

[11] Drugs in the form of dagga and cocaine were found. It was handed to Inspector Rossly who took it to the police station and entered it into the SAP 13 register. It was handed in for safekeeping until it was taken for forensic analysis.

[12] The Appellant was also asked for his identity document which he provided. This identity document looked suspicious. The Appellant was asked to point out the address mentioned in the identity document and he stated that he was not in a position to do so.

[13] The informer, Jacobus Fourie testified and corroborated the evidence of Inspector Wessels in all material aspects.

[14] So too did Pieter Willem Coetzee, the agent, testify and corroborate the evidence of Inspector Wessels and Jacobus Fourie on all material aspects with regard to the transactions when drugs were purchased from the Appellant as well as the arrest of the Appellant.

[15] In addition thereto, he testified that he and Inspector Wessels took the identity document belonging to the Appellant for forensic analysis to determine the authenticity thereof. A statement regarding the status of the identity document was obtained and handed in by consent.

[16] Inspector Daniël de Waal testified and corroborated the evidence of Inspectors Wessels, Fourie and Coetzee with regard to the arrest of the Appellant and the search conducted at his premises. Inspector Dikgang was the person who went to verify the address given in the identity document of the Appellant. He testified that that address does not exist.

[17] It was contended by Mr. Mookeletsi that the trap was not properly executed and that the actions of the agent went beyond creating an opportunity to commit an offence.

Furthermore, it was contended that the evidence was improperly obtained and that the Appellant did not have a fair trial.

[18] It is undisputed that the necessary authority was obtained from the Director of Public Prosecutions (D.P.P.) to act in accordance with the provisions of Section 252 (A) of the Criminal Procedure Act. The learned Magistrate, quite correctly in my view, approached the evidence with caution for fear of false implication.

[19] The D.P.P issued some guidelines with regard to how the operation should be conducted. It is clear from the evidence that these guidelines were communicated to the agent and informer. It was not expected that they should know it by heart. The mere fact that it was communicated to them is in my view sufficient.

[20] The testimony of the informer, which was accepted by the learned Magistrate, is to the effect that he obtained information that the Appellant was a prominent drug dealer in the Rustenburg area. He obtained his cellular telephone number and information about the car which the Appellant was driving.

[21] It is clear that the Appellant was already actively involved in dealing with drugs. Neither the informer nor the agent or the police enticed or provoked him into dealing in drugs. The Appellant was involved in drug dealing and would have committed these offences anyhow.

See:- S v Dube 2000 (1) SASV 53 (N).

[22] The offences occurred over a period of time at different occasions. On three different occasions the Appellant, when called upon to do so, sold drugs to the informer and the agent.

[23] I am of the view that the actions of the informer and agent did not go beyond the providing of an opportunity to the Appellant for the commission of the offences in counts one (1) to three (3).

[24] It was contended by Mr. Mookeletsi that it is non-sensical that the Appellant, well knowing that there are drugs in the house situated in Laurelstreet, would inform the police that he resides there and invite them to search the premises.

[25] It is common cause that the premises at Laurelstreet, where the Appellant said he resides was searched by the police. As to why he would invite the police to search the premises one can only speculate. It may well be that seeing that no drugs were found on his person, or in his motor vehicle, he thought that the police won’t find any at the premises he invited them to search.

[26] The fact of the matter remains that the premises were searched. The possibility of false implication is ruled out by the fact that if indeed the police wanted to implicate the Appellant, why would they go through the trouble of saying that the drugs (dagga and cocaine) were found at the premises? They could easily have said that it was found either on his person, or in his car or at the address in Maanblomsingel. It is highly improbable that the police would cease the opportunity to plant the drugs at the Laurelstreet premises when they did not beforehand know that the Appellant resided at these premises.

[27] Mr. Mookeletsi also submitted that the contradictions in the evidence of the State witnesses are material and that as a result thereof, their evidence should not have been believed by the trial court. I cannot agree with this submission. The Magistrate dealt with the contradictions in the evidence of the State witnesses and correctly, in my view, found that they are not so material that it renders it unacceptable.

Furthermore, the learned Magistrate also made strong credibility findings in favour of the State witnesses, which findings cannot be faulted. As the trial court, the learned Magistrate was in a better position to evaluate the demeanour of the witnesses who testified and it is very difficult for a court sitting as an appeal court to interfere with the credibility findings of a trial court.

[28] In my view, the Magistrate’s finding that the State succeeded in proving the guilt of the Appellant beyond reasonable doubt is indeed correct.

[29] Even with regard to the counts of forgery and uttering, I am satisfied that the guilt of the Appellant was proven beyond reasonable doubt.

[30] It is clear from the evidence that the Appellant handed the identity document purported to be his to the police official. It is undisputed that the identity document was tampered with and not authentic. The address as reflected on the identity document proved to be non-existent. The only reasonable inference that can be drawn, which is consistent with all the proven facts, is that the identity document was falsified or forged and also handed out as an authentic document.

[31] In my view, the appeal against the convictions should fail.

[C] Sentence:-

[32] The basis upon which the sentence imposed by the Magistrate was attacked was that it is excessive in that it induces a sense of shock, and that the seriousness of the offences was over-emphasized at the expense of the Appellant.

[33] In imposing an appropriate sentence, the Magistrate correctly had regard to the triad of factors to be considered and I am unpersuaded by the argument that the seriousness of the offences was over-emphasized. In my view the sentences are carefully balanced and the Magistrate guarded against imposing too a severe sentence by taking the last two counts together as one for the purpose of sentence.

[34] I am of the view that the sentence is not shockingly severe and excessive to the extent that it warrants interference.

[D] Conclusion:-

[35] Consequently, I am of the view that the appeal against both the convictions and the sentence should fail. The convictions and sentence must be confirmed.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree and it is so ordered.

M M LEEUW