S v Hlomza

• Jurisdiction: South Africa
• Judge: Corbett JA, Grosskopf JA and Jacobs JA
• Judgment Date: 30 September 1986
• Hearing Date: 05 September 1986
• Court: Appellate Division

Corbett JA:

The appellant, Ndikho Hlomza, and six others appeared in the Port Elizabeth magistrate's court on a charge C of dealing in a prohibited dependence-producing drug, viz Mandrax tablets containing methaqualone, in contravention of s 2(a) of Act 41 of 1971 ('the Act'), and on an alternative charge of being in possession of or using a prohibited dependence-producing drug, viz Mandrax tablets containing methaqualone, in contravention of s 2(b) of the Act. When arraigned, all the accused pleaded not guilty to both charges. D At the conclusion of the trial appellant (who figured as accused No 3 therein) and accused No 2 were found guilty of dealing in 365 Mandrax tablets, which contained methaqualone, in contravention of s 2(a) of the Act. The others were acquitted. Appellant was sentenced to the compulsory minimum of five years' imprisonment and accused No 2, who was a juvenile, was given an appropriate juvenile punishment.

E Appellant appealed against his conviction and sentence to the Eastern Cape Division, but without success. Leave to appeal to this Court was refused by the Court a quo, but granted on a petition to the Chief Justice. That appeal is now before us.

The main witness for the State was Sgt Strydom, a detective in F the South African Police, attached to the Narcotics Bureau in Port Elizabeth. He deposed to having arrested a Black female named Lindiwe Mavis Swartbooi on 13 September 1982 for dealing in a prohibited dependence-producing drug, viz Mandrax tablets. At the time of her arrest Strydom seized 15 such tablets. As a G result of a report made to him by Swartbooi after her arrest, Strydom requested her to telephone accused No 1 (one Vatiswa Patricia Hlomza) and place an order of 70 Mandrax tablets. Swartbooi complied with this request. Thereafter Strydom and Swartbooi, together with a number of policemen, proceeded to the home of accused No 1 at 4311 Site and Service, Kwazakele township, near Port Elizabeth. They travelled in two vehicles. H At a certain stage the trap which had been thus arranged was sprung and Strydom, accompanied by other police officers, ran into the house at 4311 Site and Service. In the sitting-room they encountered accused Nos 2, 4, 5 and 6. Accused No 1 and Swartbooi were found in the main bedroom. They were sitting on a bed; and behind and between them lay a parcel wrapped in I newspaper. Strydom opened the parcel in the presence of accused No 1 and Swartbooi. It contained four envelopes and each envelope contained a number of Mandrax tablets, each wrapped in a piece of blue toilet-paper. In all there were 81 tablets. Strydom seized these. The house was searched, but no further tablets were found.

Strydom questioned accused No 1 and explained to her that he J wished to know whether there were in existence any other tablets connected with

Corbett JA

the 81 seized by him; and if so where they were. Accused No 1 A then took him to another house in Kwazakele, but this proved to be a wild goose chase: no tablets were found in the various places in this house indicated by accused No 1. They returned to No 4311 and Strydom there arrested accused Nos 1, 2, 4, 5, 6 B and 7 (accused No 7 having just arrived at the house).

On the following day, 14 September 1982, Strydom again questioned accused No 1 as to the possible whereabouts of other Mandrax tablets. Thereafter she took him and other police officers to a house, No 7 Mbhuze Street, in Zwide, as being a place where further tablets were concealed. This house is registered in the name of a Black female, Nhomode Hlomza. Various places in the houses were searched, but again to no C avail. Accused No 1 then spoke to an old lady living in the house. The latter denied any knowledge of tablets, but suggested that the police speak to a schoolgirl living in the house, who was then at school. Strydom visited the school, but no further information was forthcoming. Accused No 1 then suggested that accused No 2 be fetched as he should know where D the tablets were. This was done and accused No 2 took them back to No 7 Mbhuze Street. A number of persons were then present there, including appellant. Accused No 2 took the police to a room in the house where, standing on a bed, he felt with his hand through a hole in the ceiling. All that he was able to find was a roll of blue toilet paper. As a result of a report then made to him by accused No 2 Strydom went to look E for appellant, who was no longer in the house. He found appellant in Njoli Square (about 800 m away) and arrested him. He took him back to No 7 Mbhuze Street where accused Nos 1 and 2 spoke to him (appellant). Appellant then walked through into the backyard, accompanied by the police. There he showed F Strydom a piece of corrugated iron, which was up against a fence. Strydom removed the corrugated iron and there found a plastic bag...