S v Khan
Jurisdiction | South Africa |
Citation | 2010 (2) SACR 476 (KZP) |
S v Khan
2010 (2) SACR 476 (KZP)
2010 (2) SACR p476
Citation |
2010 (2) SACR 476 (KZP) |
Case No |
AR55/10 |
Court |
KwaZulu-Natal High Court, Pietermaritzburg |
Judge |
Swain J and Madondo J |
Heard |
June 8, 2010 |
Judgment |
July 7, 2010 |
Counsel |
P Prior (attorney) for the appellant. |
Flynote : Sleutelwoorde
F Fundamental rights — Right to a fair trial — Rights of suspect — Admissibility of evidence of pointing out where suspect not informed of her rights in terms of s 35 of Constitution of Republic of South Africa, 1996 — Provisions of s 35 applying only to 'arrested', 'detained' and 'accused' persons, and not to 'suspects' — Rights of suspects adequately catered for by provisions of G Judges' Rules — To oblige police not only to caution suspect in terms of Judges' Rules, but also in terms of s 35, not striking even balance between interests of suspects and need not to hamstring police in their investigation of crime.
Fundamental rights — Right to a fair trial — Rights of suspect — Duty on police H to warn suspect in terms of Judges' Rules — Police having reasonable apprehension that appellant suspect in offence under investigation — Accordingly obliged to caution her in terms of Judges' Rules — Failure to do so infringement of her rights.
Evidence — Admissibility — Of pointing out — By suspect not warned in terms of I s 35 of Constitution of Republic of South Africa, 1996 — Provisions of s 35 applying only to 'arrested', 'detained' and 'accused' persons, and not to 'suspects' — Rights of suspects adequately catered for by provisions of Judges' Rules — Police failing to warn suspect in terms of Judges' Rules — Suspect's rights infringed — However, remaining evidence sufficient to prove guilt beyond reasonable doubt — Accordingly, admission of evidence J of pointing out not prejudicial.
2010 (2) SACR p477
Headnote : Kopnota
The appellant was convicted of contravening ss 4 (b) and 5 (b) of the Drugs and A Drug Trafficking Act 140 of 1992, and sentenced to five years' imprisonment, half of which was conditionally suspended. She appealed against the conviction only. It was contended on her behalf that evidence of a pointing out by the appellant ought not to have been admitted, since the police had not warned her of her right to remain silent and her right against self-incrimination before she produced the drugs in question. B
Held, that it was clear on the State's version that the police had not warned the appellant of her rights before telling her to hand over the drugs. (The court then embarked on an extensive review of authority on the question of whether a person was entitled to be informed of his or her rights prior to the point of arrest.) The provisions of s 35 of the Constitution of the Republic of South Africa, 1996, applied only to 'arrested', 'detained' and 'accused' C persons, and not to 'suspects'. The rights of the latter were adequately catered for by the well-established provisions of the Judges' Rules. To cast an obligation upon the police not only to caution a suspect in terms of the Judges' Rules, but also to advise him or her of the rights encompassed in s 35 of the Constitution, would not strike an even balance between the interests of suspects and the need not to hamstring the police in their investigation of crime. (Paragraphs [10]–[24] at 481 c–484 d.) D
Held, further, that, at the time the police approached the appellant, they had a reasonable apprehension that she was a suspect in the offence they were investigating. They were accordingly obliged to caution her in terms of the Judges' Rules, and their failure to do so was an infringement of her rights. It had therefore to be determined whether, if the evidence of the production E of the drugs by the appellant were excluded, the remaining evidence was sufficient to prove that she possessed the drugs. (Paragraphs [27]–[29] at 484 g–485 b.)
Held, further, that, when due weight was given to the fact that the appellant was untruthful as to the place where the drugs were found, as well as to the nature and extent of her involvement in the running of the shop in which it F were found, which shop bore her name, the inference was irresistible that the appellant had been aware of the existence of the drugs and of its location. Such awareness, combined with the evidence of her involvement in the running of the shop, had as a necessary consequence that the appellant had physical control over the drugs, as well as the intention to exercise such control. Accordingly, the remaining evidence established her G guilt beyond reasonable doubt, and the admission of the pointing out evidence would therefore not be prejudicial to her. Furthermore, the production of the drugs by the appellant had not played a material role in their discovery. The police, who believed in the correctness of the information they had been given, would have lawfully located the drugs in any event, and such location, together with the rest of the evidence, would have resulted in the appellant's conviction. (Paragraphs [35]–[39] at 486 j–487 g.) H Appeal dismissed.
Annotations:
Cases cited
Reported cases
R v Holtzhausen 1947 (1) SA 567 (A): referred to I
R v Kuzwayo 1949 (3) SA 761 (A): referred to
R v Mazema 1948 (2) SA 152 (E): referred to
S v Hammer and Others 1994 (2) SACR 496 (C): referred to
S v Langa and Others 1998 (1) SACR 21 (T): considered
S v Lottering 1999 (12) BCLR 1478 (N): referred to
S v Mthethwa 2004 (1) SACR 449 (E): followed J
2010 (2) SACR p478
S v Ndlovu 1997 (12) BCLR 1785 (N): followed A
S v Orrie and Another 2005 (1) SACR 63 (C) ([2005] 2 All SA 212): not followed
S v Sebejan and Others 1997 (1) SACR 626 (W) (1997 (8) BCLR 1086): not followed
S v Skhosana 1973 (1) SA 322 (O): referred to
S v Thlabanelo 1986 (2) PH 130 (O): referred to B
S v Van der Merwe 1998 (1) SACR 194 (O): dictum at 199 i - 200 b applied
S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to.
Legislation cited
Statutes
The Constitution of the Republic of South Africa, 1996, s 35: see Juta's C Statutes of South Africa 2009/10 vol 5 at 1-38
The Drugs and Drug Trafficking Act 140 of 1992, ss 4(b) and 5(b): see Juta's Statutes of South Africa 2009/10 vol 1 at 2-476.
Case Information
Appeal against conviction. The facts appear from the judgment of D Swain J, in which Madondo J concurred.
P Prior (attorney) for the appellant.
D Naidoo for the State.
Cur adv vult.
Postea (July 7). E
Judgment
Swain J:
[1] The appellant appeals against her conviction of contravening s 5 (b) F of the Drugs and Drug Trafficking Act 140 of 1992 (the Act) - dealing in 243 mandrax (methaqualone) tablets, as well as contravening s 4 (b) of the Act - possession of 150 g of cannabis (dagga), in the magistrates' court for the district of Chatsworth.
[2] The appellant was sentenced to five years' imprisonment, half of G which was suspended for three years, on condition that she was not again convicted of contravening s 4 (b) or 5 (b) of the Act, committed during the period of suspension.
[3] The appeal, against the conviction alone, comes before us with the leave of the court a quo.
H [4] Mr Prior, who appeared for the appellant, attacked the conviction, inter alia, on the basis that an alleged 'pointing out' by the accused of the drugs was inadmissible, because the police officers failed to warn the appellant of her right to remain silent, and her right against self-incrimination, before she produced the drugs in question.
I [5] The evidence surrounding the production of the drugs by the appellant, as led by the State, was as follows:
Sergeant Bhugoo stated that on 28 August 2007 he, together with Inspector Naidoo, was performing crime prevention duties in the Unit 11 area of Chatsworth, when they received information concerning an Asian female by the name of Hanifa who
2010 (2) SACR p479
Swain J
resided at 1128 Block No 2. The information was that she had A drugs stored in a tuck shop situated at the rear of Block 2. The information they were given was that -
'. . . if we go into the tuck shop, on the cross hand (sic) there'll be an empty coke bottle crate. If you move the empty crate then you pick up the floor underneath. That's where the drugs will be B stored.'
They immediately travelled to the tuck shop which had a sign displayed on its exterior, reading 'Hanifas Tuck Shop'. The structure was what is referred to as a Wendy house, being about three by three metres square. According to the witness, it was C supported at each corner by wooden poles, resulting in it being approximately 30 cm off the ground. On arrival at the tuck shop he saw the appellant seated on the floor, inside the tuck shop, counting some 'copper change' on the floor between her legs, as the door was open. He identified himself to her, as he was D wearing civilian clothes, and told her that he knew that she had drugs in the tuck shop. He then said the following to the appellant -
'and you can make things easy and just hand it over to me and things will be easy on your side', E
and he then said to her -
'I am only giving you one minute to think about it.'
The appellant then said 'OK, you're right', and went to the crate F on the floor which had been described to the witness, moved the crate, lifted a wooden panel in the floor and produced a yellow plastic packet and a clear plastic packet, which were, respectively, found to contain the mandrax tablets and the dagga.
The witness said he did not instruct the appellant to do this, she did it on her own because he had told her '. . . if she wants things G to be easy on her part, she rather just take out things because it will be easier on her part'.
Once the appellant had...
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2011 index
...and Company (Pty) Ltd S v Khan 1997 (2) SACR 611 (SCA) ............................................................. 384S v Khan 2010 (2) SACR 476 (KZP) ......................................................... 96-97S v Khoza 2010 (2) SACR 207 (A) .................................................
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2014 index
...195S v Khambule 2001 (1) SACR 501 (SCA) ............................................. 195S v Khan 2010 (2) SACR 476 (KZP) .................................................... 288S v Khoasasa 2003 (1) SACR 123 (SCA) .............................................. 222S v Kotzè 2010 (1) SACR 10......
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The law of evidence: Seven wishes for the next twenty years
...(N); S v Van der Merwe 1998 (1) SACR 194 (O); S v Ngwenya 1998 (2) SACR 503 (W); S v Mthethwa 2004 (1) SACR 449 (E) and S v Khan 2010 (2) SACR 476 (KZP).46 Supra (n 45).The law of evidence: Seven wishes for the next twenty years 287 © Juta and Company (Pty) Constitution and that there was n......
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The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo-American case law
...case made up of credi ble evidence may resu lt in conclusive proof again st the accused at t he end of a tria l;at 453. In S v Kahn 2010 (2) SACR 476 (KZP) pa ra 22 the cour t found that the ‘rights of su spects are adequately pr otected by the Jud ges’ Rules’. © Juta and Company (Pty) 334 ......
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S v GS
...stand. [26] In the light of this conclusion, it becomes unnecessary to deal with the application for leave to lead further evidence. J 2010 (2) SACR p476 Leach AJA A [27] The following order will therefore issue: 1. Leave to appeal is granted and the appeal is enrolled. 2. The appeal is uph......
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2011 index
...and Company (Pty) Ltd S v Khan 1997 (2) SACR 611 (SCA) ............................................................. 384S v Khan 2010 (2) SACR 476 (KZP) ......................................................... 96-97S v Khoza 2010 (2) SACR 207 (A) .................................................
-
2014 index
...195S v Khambule 2001 (1) SACR 501 (SCA) ............................................. 195S v Khan 2010 (2) SACR 476 (KZP) .................................................... 288S v Khoasasa 2003 (1) SACR 123 (SCA) .............................................. 222S v Kotzè 2010 (1) SACR 10......
-
The law of evidence: Seven wishes for the next twenty years
...(N); S v Van der Merwe 1998 (1) SACR 194 (O); S v Ngwenya 1998 (2) SACR 503 (W); S v Mthethwa 2004 (1) SACR 449 (E) and S v Khan 2010 (2) SACR 476 (KZP).46 Supra (n 45).The law of evidence: Seven wishes for the next twenty years 287 © Juta and Company (Pty) Constitution and that there was n......
-
The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo-American case law
...case made up of credi ble evidence may resu lt in conclusive proof again st the accused at t he end of a tria l;at 453. In S v Kahn 2010 (2) SACR 476 (KZP) pa ra 22 the cour t found that the ‘rights of su spects are adequately pr otected by the Jud ges’ Rules’. © Juta and Company (Pty) 334 ......