S v Tshabalala

• Jurisdiction: South Africa
• Judge: Thring J and Gihwala J
• Judgment Date: 13 November 1998
• Citation: 1999 (1) SACR 412 (C)
• Hearing Date: 13 November 1998
• Counsel: E Scholtz for the appellant J P Caulfield for the State
• Court: Cape Provincial Division

Thring J:

The appellant in this matter was charged in the regional court with contravening s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, it being alleged that on 26 September 1995 at Bellville she dealt in a dangerous and/or undesirable dependence-producing substance, to wit 152,98 g of cocaine. To this charge the G appellant pleaded not guilty. Throughout the trial she was represented by counsel. She was found guilty as charged. That was on 8 November 1996. Later on the same day she was sentenced to 12 years' imprisonment, of which four years were conditionally suspended. The appellant now appeals to this Court against both her conviction and sentence. F

H For her, before us, appears Mrs Scholtz, who is not the counsel who appeared for her at the trial. This appeal was initially set down for hearing on 5 December 1997. However, during November 1997 the appellant delivered an amended notice of appeal in which a new point was taken on her behalf for the first time, viz that a certain affidavit relating to the analysis of certain powder which had been found by the police in the I appellant's possession, and which affidavit had been handed in at the trial as exh 'A' in terms of s 212(4)(a) of the Criminal Procedure Act, 51 of 1977, was defective. In addition to this point, on 5 December 1997 Mrs Scholtz in this Court apparently raised, also for the first time in this case, an alleged irregularity in the trial, inasmuch as, whereas the appellant is apparently Zulu-speaking, the interpreter who interpreted for J her at the trial is Xhosa-speaking. This latter point is nowhere mentioned in either

Thring J

the original or the amended notice of appeal, nor are there any review proceedings A pending before this Court in which this point is taken. However, it was considered appropriate by this Court on 5 December 1997 (per King DJP, as he then was, with Motala AJ, as he then was, concurring), in terms of s 304(2)(c)(v) of the Criminal Procedure Act to refer the matter back to the magistrate so that he could deal with these to points. He has now done so in reasons which are before us. Both these points B have now been fully argued before us and I shall deal with them presently.

However, before doing so I propose to set out a number of facts which are common cause in this matter. They are the following.

During the afternoon or early evening of Monday 25 September 1995 (the time is not C material) the appellant boarded a Translux overland coach in Johannesburg which was bound for Cape Town. At approximately 08:00 the next day, that is to say, Tuesday 26 September 1995, the coach arrived at a place called 'The Lodge' in Bellville. It stopped there and the appellant alighted. She got into the back seat of a motor car which was D parked in a parking area near the coach. At this point she was approached by a Captain Blake, who was a member of the Narcotics Bureau of the South African Police Services. He identified himself to her and he and a colleague, a Captain Van Heerden, escorted her to the Bellville police station. There she was searched by a female police officer, a Sergeant Smith. Concealed in the appellant's panties Sergeant Smith found a E roll covered on the outside with paper towelling. Inside this roll were plastic bags containing two condoms and in the condoms, wrapped in more plastic bags, was a white powder. This powder was later taken by Blake to the South African Police forensic laboratory for analysis. According to the affidavit to which I have referred, which was deposed to by one Gerrit Smit and handed in by the State during the course of the State F case as an exhibit without any objection from the defence in terms of s 212(4)(a) of the Criminal Procedure Act, the powder contained cocaine, which is identical to one of the substances which are derived from the cocoa leaf and which are listed in Schedule 2 of the Drugs and Drug Trafficking Act. The appellant was placed under arrest and charged. G

The appellant's explanation for these events, which is not common cause, is that she had been under the impression that her possession of the powder had not been unlawful because at the relevant time she believed thet she was acting in concert with the South African Police in possessing it. She testified that a few weeks before her arrest she came to Cape Town from Johannesburg and met a man here called Tankiso, H who was a stranger to her, but with whom she had been put in touch by a mutual friend, one Sizakele, who was in the hairdressing business. The appellant says that she met Tankiso on her arrival by coach at the Cape Town station. He was waiting there for her. At the same time the police arrived on the scene and she was taken away and I searched by them. Nothing unlawful was found in her possession on this occasion. This incident was confirmed in his evidence by Blake. The appellant says that she and Tankiso were then released by the police. However, before they were released she says that she saw Tankiso talking to Blake. Tankiso then said to her that she must not be concerned by what had happened 'want dit is J

Thring J

A die mense met wie ons sal werk'. Tankiso then gave her to understand that he and she would thenceforth assist the police in apprehending drug dealers, for which labours they would be rewarded. He would tell her what to do and would at all times assist her. All orders would emanate from him. She says that she then B returned to Johannesburg after he, Tankiso, had given her between R400 and R500 in cash and had purchased her return air ticket.

B She says that about six weeks later Tankiso telephoned her in Johannesburg and instructed her to travel to Cape Town by coach again. He told her that on the coach she would meet someone who would give her a package, and that she must get off the C coach in Bellville, where he would meet her. This she did on C 25-26 September 1995. At one of these places where the coach stopped on the way she says that she got out to go and buy some refreshments at a shop. Whilst she was there a person came up to her and gave her a package and told her to hand it to Tankiso. This person also told her D that the package contained cocaine. The appellant says that she was under the impression that she was now engaged in the police work of which Tankiso had spoken to her earlier. She says that she then went to the lavatory and concealed the package in her underclothing. Asked why she did this she said that the reason was because it was safer to do so. Her precise evidence in this regard in cross-examination was:

E 'Hoekom het u dit versteek? . . . Ek weet nie. Ek het maar gedog dit sou die veiligste wees. Dit sou meer veilig wees om dit te versteek.'

When the coach arrived in Bellville and she got out of it, Tankiso was nowhere to be seen, she says. However, the person who had handed her the package also got off the F coach and offered to take her to where Tankiso was. She then got into the back seat of a car that was apparently waiting for him at her bus station. The police then arrived. One of them was Blake, whom she recognised from her earlier experience in Cape Town. He, as I have already said, according to her was the policeman with whom Tankiso had a conversation on that occasion and she says that Blake in fact asked her whether she still remembered him. She was apprehended, taken to the police station and searched. G The package was discovered. She says that she made no attempt to conceal it. This appears to be correct. She says that from the police station she telephoned Tankiso after she had asked the police if she could do so, and he promised to come to her, but H instead of coming to her himself, he sent an attorney. In his judgment the magistrate rejected the appellant's explanation for her possession of the package as being entirely improbable and teeming with inconsistencies, although he also said that, as a witness, he could not say that she had made a poor impression on him. I agree with the magistrate's description of the appellant's evidence as containing 'soveel onwaarskynlikhede en ook teenstrydighede'.

I As to improbabilities, it is necessary to mention only two which in my view are glaring, although the magistrate refers also to a number of others. The two glaring improbabilities are, first, that if, as the appellant says, she was under the impression that in conveying the package she was engaged in legitimate police work, there would J have been no need for her to conceal it in her underwear. One would have expected her simply to have

Thring J

carried it openly in her luggage. The second improbability is that if her state of mind had A been innocent she would immediately on her arrest have protested her innocence to the police and pointed out that she was in possession of the packet as part of the work that she was doing for them. This is the more so, it seems to me, when it is borne in mind that one of the police officers who arrested her was Blake, the very man who, according to what the appellant would have the Court believe, had arranged with B Tankiso at Cape Town station for her to do the police work. She did not say in her evidence that she had any reason to suspect, at least at that stage, that Tankiso had misled her in this regard, and her conscience ought to have been entirely clear. If her evidence was true, all that she had to do was to remind Blake of the arrangement which C he, Blake, had made with Tankiso to the effect that the latter and the appellant would henceforth do police work for reward as informers and/or as traps. However, she did no such thing. She remained entirely silent as far as this is concerned. She does say that she asked the police for permission to telephone Tankiso, but it is significant, in my view, that this evidence of hers was never put to any of the police witnesses in D ...