S v Ntzweli

• Jurisdiction: South Africa
• Judgment Date: 15 December 2000
• Citation: 2001 (2) SACR 361 (C)

S v Ntzweli
2001 (2) SACR 361 (C)

2001 (2) SACR p361

Citation	2001 (2) SACR 361 (C)
Court	Cape Provincial Division
Judge	Jali J and Erasmus AJ
Heard	November 17, 2000
Judgment	December 15, 2000
Counsel	J M Theron for the appellant.; L J Badenhorst for the State.

Flynote : Sleutelwoorde B

Evidence — Trial-within-a-trial — When necessary — Evidence that dagga found in accused's house — Accused alleging that search of house illegal and requesting that a trial-within-a-trial be held to determine admissibility of evidence obtained by means of search — Magistrate's refusal to hold trial-within-a-trial amounting to a failure of justice. C

Headnote : Kopnota

The accused had been convicted in a magistrate's court of possession of dagga and was sentenced to a fine of R10 000 or three years' imprisonment, the whole sentence being suspended for a period of five years on various conditions. It appeared that the conviction was based largely on the evidence obtained by a search of the house where the accused lived. At the trial the accused's legal representative contended that the search was illegal and D requested that a trial-within-a-trial be held to determine the admissibility of the evidence obtained by means of the search. The court refused this request. On appeal,

Held, that the holding of a trial-within-a-trial would have enabled the court to establish whether the police had the necessary warrant and whether the appellant gave the police permission or not, without the accused being E subjected to cross-examination on the issue of his guilt. The Court's refusal to entertain the application had deprived the court the opportunity of establishing these facts.

Held, further, that this failure meant that the evidence had been admitted before the question of its admissibility was determined; the defending attorney could not put his client in the witness box on the issue of the F admissibility of the evidence in dispute without subjecting him to general cross-examination on the issue of his guilt. This had amounted to a failure of justice and rendered the trial unfair. In the light of the irregularity and the evidence as a whole the conviction had to be set aside. G

Case Information

Appeal from a conviction in a magistrate's court.

J M Theron for the appellant.

L J Badenhorst for the State.

Cur adv vult. H

Postea (15 December).

Judgment

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

2001 (2) SACR p362

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...