S v Reddy and Others

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Smalberger JA, Howie JA, Zulman AJA
• Judgment Date: 21 May 1996
• Citation: 1996 (2) SACR 1 (A)
• Hearing Date: 07 May 1996
• Counsel: A J Horwitz SC for the first and second appellants,J Fasser for the third appellant R F Mina for the State

Zulman AJA:

The three appellants were convicted in the regional court, Durban of having contravened s 2(a) of the Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971 in that they dealt in methaqualone contained in 217 623 Mandrax tablets. Each appellant was sentenced to 15 years' imprisonment of which five years were suspended upon condition that they were not convicted of E contravening s 2(a) of Act 41 of 1971 committed during the period of suspension, and that each appellant paid to the clerk of the court, Durban, before 30 June 1993, an amount of R50 000 for equal distribution between two rehabilitation centres for drug addicts in Durban, Newlands Park Centre and Lulama Treatment Centre. D

F The appellants appealed to the Natal Provincial Division against their convictions and sentences. Their appeal was dismissed. Thereafter a successful application was made for leave to appeal to this Court. Due to an oversight on the part of counsel for the appellants leave was not sought specifically in regard to an appeal against sentence. However, in a subsequent application such leave was granted.

G In this Court the first and second appellants were represented by Mr Horwitz SC. The third appellant was represented by Mr Fasser. The respondent was represented by Ms Mina.

Shortly prior to the hearing of this appeal the appellants gave notice of an application H which they proposed to move at the hearing of the appeal. In the application leave was sought, in the event of the appellants' appeals against the conviction not being upheld, that the matter be remitted to the regional court for further cross-examination of the State witnesses on an issue identified in an affidavit deposed to by the first appellant. I However, during the course of argument before us, counsel for the appellants indicated that if this Court did not intend to place any reliance upon the evidence given by a certain Detective Sergeant Talbot, the application would not be pursued.

Heads of argument on behalf of the first and second appellants dated 15 May 1995 were prepared by Mr A W Mostert SC ('the main heads of argument'). However, subsequent to the preparation of those heads of argument, Mr Mostert died. Mr J Horwitz was then instructed to appear on

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A behalf of the appellants. He prepared a set of supplementary heads of argument on behalf of the first and second appellants ('the supplementary heads of argument'). The attitude taken by Mr Fasser was to adopt the arguments advanced on behalf of the first and second appellants.

In the main heads of argument emphasis was placed upon the propo-sition that in the B absence of proof of a common purpose between the three appellants their convictions could not be sustained. Whilst not abandoning this contention, Mr Horwitz, in the supplementary heads of argument, emphasised the argument that the inference of guilt drawn by the magistrate from the circumstantial evidence led was not the only reasonable inference to be drawn which was consistent with the proved facts.

C The evidence implicating the appellants in the commission of the offence, including that of the witness Talbot, which I will consider presently, was circumstantial. The magistrate rejected the evidence of Talbot, but nevertheless drew the inference that the three appellants, acting with a common purpose, had imported the Mandrax in question and had full knowledge thereof. It accordingly becomes necessary to examine D the accepted evidence in some detail in order to determine whether the inference which the Court a quo drew from it was consistent with all the proved or common cause facts.

The following material facts were either common cause or were not disputed by the appellants at their trial: E

1.

The appellants are Hindu businessmen who from time to time travelled to Madras in India on behalf of Hindu Temples in South Africa to place orders from the Madras Indian Trust for religious artefacts.

2.

F The artefacts are all donated to the Hindu community in South Africa.

3.

In December 1991 the three appellants visited Madras with the aforementioned purpose.

4.

Because of the then relationship between India and South Africa, the G artefacts ordered were not sent directly to South Africa. They were instead packed in crates and shipped to Singapore in a container containing other crates consigned to a Mr Rajah, an agent of the appellants of long standing. When Mr Rajah received the container in Singapore he removed the crates intended for South Africa without unpacking them and packed them in another container. He sent this container to the appellants H in Durban.

5.

In February 1992 all three appellants, having successfully ordered the artefacts in question on their December 1991 visit to Madras, returned to Madras. This was seemingly not to order other goods, but, according to the first appellant, to see if the religious artefacts, which included objects I known as kavadis which are carried at certain religious festivals, were ready and to ask that they be sent before Easter.

6.

Arrangements were made by the appellants with a shipping agent (Freight Five Shipping Services) to clear the goods when they arrived at Durban J Harbour. After returning to South Africa all three

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A appellants made enquiries of the shipping agent regarding the arrival of the consignment.

7.

The consignment was addressed to the South African Hindu Maha Sabha, 42 Maud Lane, Durban. The address on the invoice from the shipping B agent being 'c/o Mr C Reddy, 41 Bardia Avenue, Reservoir Hills'. (Mr C Reddy is the first appellant.) All three appellants went to the secretary of the Maha Sabha to obtain a letter addressed to the Controller of Customs and Excise which stated among other things:

'All the above goods are free donation to the temple. Please note the stone idols are carved from black granite stone. It is not ornamental C stone, not polished therefore please grant us under rebate of duty and also note these are repeated shipments. We suggest you give us release of goods without incurring extra charges when goods are detained for examination. Your kind gesture in waiving the duties is highly welcomed and commended.' D

8.

The police, as a result of information obtained by them, opened the container when it arrived in Durban at the premises of Freight Five Shipping Services. In order to do this it was necessary to break a seal on E the container after the police had checked that the number on the seal corresponded with the number on the consignment documentation. A bolt cutter was used for this purpose. The container contained 27 crates, eight of which had carefully constructed false bottoms. In five of the eight crates, a total of 217 623 Mandrax tablets was found. These tablets form the F basis of the charge against the appellants. The eight crates also contained kavadis in the top portion. The tablets, which were contained in 222 plastic packets, were not simply placed in or amongst the kavadis, but were carefully concealed in the false bottoms of five of the certain crates. These false bottoms were lined with black plastic sheeting. Four of these G crates contained 50 packets of tablets each and the other one had 22 packets in it. According to the State's case, the eight crates with false bottoms were of identical size and construction. On the appellants' version, which the magistrate accepted, the kavadis were contained in ten crates, but this finding does not have a bearing on the manner in which the tablets H were hidden. The bulk of the tablets were removed by the police and only a small quantity returned to each of the five crates which had contained the tablets. The rest of the crates were apparently left intact with the religious artefacts in them undisturbed. The crates were then closed. A transmitting device was inserted into one of the crates and the crates were I secretly marked. The container was then re-sealed with a new seal. It was later moved to the premises of a company known as Thrutainers.

9.

On 6 May 1992 when the container arrived in Durban, the three appellants went to the office of Freight Five Shipping Services and made payment for the charges relating to the consignment. They were then informed that the J container had been sent to Thrutainers

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A for unpacking. They were, of course, ignorant of the fact that the police had previously intercepted the consignment.

10.

The appellants arranged for a truck to take delivery of the items ordered and proceeded to the premises of Thrutainers.

11.

All three appellants were present when the container was unpacked. Certain of the crates and a carton were then loaded onto the truck which B the appellants had arranged for.

12.

The loaded truck accompanied by the appellants in two other vehicles, unbeknown by them also...