S v Ntzweli

• Jurisdiction: South Africa
• Judge: Jali J and Erasmus AJ
• Judgment Date: 15 December 2000
• Citation: 2001 (2) SACR 361 (C)
• Hearing Date: 17 November 2000
• Counsel: J M Theron for the appellant. L J Badenhorst for the State.
• Court: Cape Provincial Division

Jali J:

The appellant in this matter was found guilty in the magistrate's court in Clanwilliam of possession of dagga on 9 September 1998. He was sentenced to a fine of R10 000 or three years' imprisonment. The whole I sentence was suspended for a period of five years on condition that the appellant was not found guilty of contravening s 4(b) or s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 during the aforesaid period of suspension. The appellant appeals against both conviction and sentence. J

Jali J

The facts of the matter are briefly that on or about 10 July 1998 at or near Uitbreiding South, Clanwilliam, in the A district of Clanwilliam, the accused was allegedly found in possession of 25 packets of dagga. The aforesaid dagga was found pursuant upon a search by the police who did not have the necessary search warrant.

The aforesaid dagga was found in the lounge of a two-roomed house under certain crates. It is apparent that, B when the police arrived at the house they knocked at the door and the appellant opened the door for them. They then proceeded to search the house. According to members of the police, the appellant gave them permission to search the house. Subsequent to that, they found the aforesaid dagga in the main room or lounge. Whilst they were searching, the appellant's co-accused in the court a quo, came out of the other room in the house. The C appellant and his co-accused were subsequently arrested and charged as set out above. The accused pleaded not guilty and stated in amplification of their plea that they had no knowledge of the dagga. They lived together in one room in the same dwelling. There are other people who come and live there. They also raised the issue of D the constitutionality of the search in their plea explanation.

At the close of the State case, the accused applied for a discharge in terms of s 174 of the Criminal Procedure Act 51 of 1977, which was unsuccessful. Thereafter the accused closed their case. The appellant's co-accused was found not guilty and discharged. The appellant was convicted and sentenced as aforesaid. Both accused E did not testify or lead any evidence in their defence.

The appellant's counsel has submitted that the conviction was inappropriate in a number of respects, including the fact that the house was searched without the necessary search warrant, and the accused did not consent to F the search. Secondly, the fact that the appellant was never advised of the fact that he could refuse to have his house searched. Thirdly, the fact that the magistrate disallowed an application by the defence counsel for a trial-within-a-trial to be held to decide on the admissibility of the evidence which had been illegally or unconstitutionally obtained. Fourthly, that the magistrate misdirected himself in convicting the accused of G possession of dagga when there was not any proof beyond reasonable doubt that he was the one who was in possession of the dagga.

I will firstly deal with the third point which was raised by the appellant's counsel. This submission is, obviously, H inter-linked with the first two points as well.

When Inspector De Waal Visser, a member of the South African Police Dog Unit, was testifying, the appellant's legal representative in the court a quo made an application for the holding of a trial-within-a-trial. The basis of the said application was that the appellant did not consent to the search of the house, and thus the search violated the appellant's constitutional rights. The magistrate ruled against the holding of a trial-within-a-trial at that stage I and said the necessity thereof would be considered after cross-examination. That was never done thereafter.

In this Division, since the advent of constitutionalism in our country, there have been a number of judgments which have considered the J

Jali J

question of whether the issue of admissibility of the evidence which was allegedly obtained in conflict with the A accused's fundamental right to a fair trial as contained in s 35 of the Constitution of...