S v De Vries

• Jurisdiction: South Africa
• Judge: Joubert JA, Hoexter JA, Nicholas AJA
• Judgment Date: 28 September 1988
• Citation: 1989 (1) SA 228 (A)
• Hearing Date: 22 September 1988
• Court: Appellate Division

Nicholas AJA:

Over the period between October 1984 and February 1985 three men were tried together in the Durban magistrate's court: Fuad de Vries, aged 48 years, as accused No 1; Ebrahiem Mayman, aged 40 years, as accused No 2; and Leon Jaftha, aged 22 years, as accused No 3. J The main charge against them was dealing in a prohibited

Nicholas AJA

A dependence-producing drug (methaqualone) contained in 9 860 Mandrax tablets in contravention of s 2(a) of Act 41 of 1971. Each pleaded not guilty, but was found guilty. De Vries and Mayman were each sentenced to seven years' imprisonment, and Jaftha to imprisonment for five years. De Vries and Jaftha appealed to the Natal Provincial Division against B their convictions and sentences, and Mayman appealed against sentence only. At the hearing of the appeal on 11 December 1986, Jaftha failed to appear and his appeal was struck off the roll. The Court (Leon J, with whom Didcott J concurred) dismissed the appeals of De Vries and Mayman. With the leave of the Court a quo, De Vries now appeals to this Court C against his conviction.

The main witness for the State was Detective Warrant Officer J C Engelbrecht of the South African Narcotics Bureau (SANAB) in Cape Town, who, together with other policemen, had one or more of the accused under surveillance in Cape Town and Durban on various dates during February 1981. In summary, the police evidence was this. D

At about 5 pm on 7 February 1981, Mayman and Jaftha took off in an aircraft bound for Durban from D F Malan Airport in Cape Town. The counterparts of their air-tickets showed that they were booked to travel on to Mauritius and Bombay.

E At about 3 pm on 15 February 1981, De Vries left D F Malan Airport on a flight to Durban. Upon his arrival at the Louis Botha Airport in Durban at 5.45 pm he claimed his suitcase and then wandered aimlessly about the entrance hall of the terminal building until 8.25 pm when the flight from Mauritius landed. De Vries walked to the foreign arrivals hall. It was clear to the man who had him under observation that he F was waiting for someone, but he did not make contact. At 9.05 pm he left the terminal building and departed by taxi. On the following morning, 16 February, he returned to the airport and took the 9.05 am flight to Cape Town.

At about 5 pm on 22 February 1981, De Vries arrived at the Louis Botha Airport in a Chevrolet motor car CA 240235, which was parked in G the parking area. The driver was Joseph Hercules. The flight from Mauritius landed and Mayman and Jaftha, who was carrying a large brown suitcase, disembarked. They were met by De Vries and together the three of them walked to the Chevrolet motor car. The luggage carried by Mayman and Jaftha was placed in the boot, and the car drove off. It was followed by Engelbrecht and other policemen in a police car. In a street H in Berea the Chevrolet drew up outside the house of Hercules. The occupants got out. The police surrounded the car, and arrested the three accused and seized the luggage. They were all taken to the offices of SANAB in Durban.

There the luggage was searched and the brown suitcase, which had I been carried by Jaftha, was found to contain 9 860 Mandrax tablets. At about midnight, Engelbrecht sent a detective to fetch De Vries's wife, Aza de Vries, who was at Hercules's house, and she was also detained. After questioning, the four suspects were locked up at various police stations in Durban. On 24 February they flew to Cape Town. Again they J were taken variously to different police stations. On 25 February, each of the three

Nicholas AJA

A men made a statement before a magistrate, Mr Schrock, at the Cape Town magistrate's court. Mrs De Vries was released on the morning of 25 February.

When De Vries's statement was tendered in evidence at the trial its admissibility was challenged. His attorney informed the court that it had been made by De Vries as a result of threats made regarding his B own person and that of his wife, Aza de Vries, by Engelbrecht. This issue was accordingly tried in a trial within the trial, and evidence was given by De Vries and his wife Aza, and by Engelbrecht for the State.

In the course of his evidence in chief, De Vries described the circumstances leading up to his arrest and detention on 22 February, C and his transfer to Cape Town on 24 February. He said that Engelbrecht told him in Cape Town on 25 February that if he did not come out with the truth he and his wife would be detained under s 13 of the Act, and D that they would rot in gaol until De Vries did make a statement. If, however, De Vries agreed to make a statement, Engelbrecht would release Aza de Vries, and would consent to De Vries's release on bail of R1 000. Mrs De Vries was in poor health and had already spent four days in the cells, and so De Vries agreed to make a statement. Engelbrecht told him to say in the statement that De Vries sent Mayman and Jaftha to Bombay for Mandrax and that it was destined for Cape Town. De Vries made E the statement on the same afternoon and he was released on bail of R1 000.

De Vries was cross-examined at length. The cross-examination covers pp 87 - 180 of the record. It was not until p 130 that the question of the voluntariness of De Vries's statement was broached by the prosecutor, and this part of the cross-examination covered only six pages of the record. The prosecutor then went on to other topics and returned to F the real question again on p 179. For the rest, the cross-examination relates to De Vries's work, occupation and activities; his acquaintance with Mayman and Jaftha; a loan of R2 700 which De Vries said he had made to Mayman before the latter's departure to Mauritius in February; the purpose and circumstances of his visit to Durban on 15 February; and G the reason for his meeting with Mayman and Jaftha at Louis Botha Airport on 22 February.

At one stage (p 123), De Vries's counsel objected to the tenor of the cross-examination: the inquiry, he submitted, was limited to the admissibility...