Accused is guilty of the crime of contravening section 12 (2) of the Pharmacy Act
of 1929 as amended by Pharmacy (Amendment) Act No.6 of 1983.
In that upon or about the months of August-September, 1999 at or near Motshane
Area, Hhohho Region the said accused person did wrongfully and unlawfully deal
by way of sale 15 bags of dagga weighing 150kg a poisonous substance under the
said Act to the total amount of E15000.00 and did thereby contravene the said Act.
He was acquitted on count 2, the learned trial judge, Sapire C.J., having held – correctly, with respect – that count
2 was a splitting of charges in view of count 1. On the remaining three counts the appellant was convicted and was sentenced as follows:
Count 1: 3 years imprisonment and, in addition, a fine of E15000 or 2 years
imprisonment in default of payment .
Count 3: A fine of E15000 or 2 years imprisonment in default of payment. This
sentence was ordered to run concurrently with the sentence on count 1.
Count 4: A fine of E15000 or 2 years imprisonment in default of payment.
For reasons that I shall state in due course, the learned Chief Justice correctly found that the evidence for the prosecution proved
beyond a reasonable doubt that the appellant had stolen 15 bags of dagga from the confines of the Malkerns police station on the
28th of August 1999.
The chronology of events that the prosecution witnesses testified to was the following:
On 22nd July, 1999, Detective Constable Mavuso, together with Detective Sergeant Moses Dlamini and Detective Constable Mamba, went to Takitsi
to the property of a lady known as Gogo Gwebu to investigate two Shangaans, by name Salad Matemakulu and Charles Matse, on suspicion
of possession of dagga. They found Salad Matemakulu in one of the rooms at Gogo Gwebu’s place and under his bed they found
a plastic shopping bag of dagga. Matemakulu was arrested and taken to Malkerns police station where he was questioned. In consequence
of information they obtained from him Detective Constable Mavuso returned that evening to Gogo Gwebu’s property to find Charles
Matse and to search his room. Matse had not been there when Matemakulu was arrested earlier that day. Mavuso was accompanied by Detective
Constable Shiba. Matse was still absent and the door to his room was locked. In the presence of a female who also resided at Gogo
Gwebu’s property, one Thabsile Mhlongo, Mavuso and Shiba forced open the door to Matse’s room, and in the room they found
16 bags and a tin container, all filled with well-matured, good quality dagga which they seized and took to Malkerns police station
where its arrival was recorded by Constable Seyama in the occurrence book, and where it was put for the night into the locked C.I.D.
office at the police station by Detective Sergeant Moses Dlamini. Next morning, 23 July, the 16 bags and the tin container of dagga
were entered in the exhibit register by Constable Gwebu and were locked away in a cell at the Police station because there was no
space for them in the exhibit room. None of these facts are disputed by the appellant, who was stationed at Malkerns police station
with the rank of Inspector, but who was on leave and absent from the station at the time.
The following day, 24 July, Constable Seyama was telephoned at the police station by the appellant who requested him to ask either
Mavuso or Shiba to contact the appellant. Seyama gave the message to Mavuso who duly rang the appellant and Mavuso was asked by the
appellant to meet him at the Thembelihle bottle store. Mavuso went there as requested and the appellant arrived in his white Toyota
Cressida. The appellant said that he had heard on the radio that 16 bags of dagga had been seized and were at the Malkerns police
station. He went on to say that an attorney, whom he named, was the owner of the dagga and wanted it to be returned. The appellant
said that he could arrange to get the dagga out of the Police station on the pretext of using it to set a trap, and that he could
arrange to replace it with an equivalent number of bags of dagga of inferior quality. This evidence was denied by the appellant,
who contended that Constable Seyama and D.C. Mavuso were both maliciously lying.
On 8th August, while the appellant was still on leave, he invited Constable Gwebu to come to the appellant’s quarters that night.
Gwebu did so and was told by the appellant that he, the appellant, wanted to take the bags of dagga out of the police station and
convey them to the house of the owner of the dagga so as to arrest him. He asked Gwebu to fetch Mavuso. Gwebu did so. The appellant
praised their work performance and promised to speak to Assistant Commissioner Vilakati about promoting them. On leaving the appellant’s
quarters Mavuso told Gwebu that the appellant was planning to sell the dagga and to replace it with inferior dagga. This evidence
of Gwebu and Mavuso was also denied by the appellant as a malicious fabrication. The appellant’s version was that Mavuso and
Gwebu paid him an unsolicited social visit that night, while he was still on leave and that in the course of conversation the appellant
asked if the dagga suspect had been arrested yet. On being told that he was still at large the appellant said he wanted the suspect
arrested and he urged Mavuso to find him.
On a night in August which, in the light of evidence to be mentioned below, must have been a few days before 28th August, a man by the name of Lucky Ndzingane was approached at his home by the appellant who asked him if he would keep 15 or 16
bags of dagga at his house for a few days. Lucky helped the appellant offload the bags of dagga from the appellant’s vehicle,
a Nissan van, and the bags were stored in Lucky’s house. Some days later, on a Saturday, the appellant told Lucky he would
fetch the dagga and when Lucky came home that night he was told by his nephew Sipho Matsebula, who lived with Lucky, that the bags
of dagga had been fetched earlier that night by the appellant. The appellant denied that he ever left or fetched any bags of dagga
with or from Lucky’s house, and he suggested that Lucky had a grudge against him and was lying to the court.
On Saturday 28th August the appellant was back on duty, his spell of leave having expired, and he was at that time acting Station Commander at Malkerns,
the Station Commander having gone on leave. At some time during that day the appellant saw Mavuso and told him that they would have
a good opportunity that very night to take the dagga out of the police station because the Trade Fair was on at Manzini and most
of the police officers would be on duty that night at the Fair. Mavuso himself was scheduled to be on duty at the Fair that night,
but the appellant said that he would fetch Mavuso from the Fair and that Constable Gwebu would unlock the exhibit cell for them.
He said that Mavuso would get a sum in the region of E30000 as a reward for his co-operation.
Mavuso and other policemen, including Detective Sergeant Moses Dlamini, assumed duty that night at the Trade Fair, but at about 11
p.m. the appellant, driving a white van used by C.I.D., fetched Mavuso from the Fair without Sergeant Dlamini’s knowledge and
they drove back to Malkerns. On arrival at the police station Mavuso fetched Gwebu who unlocked the exhibit cell and helped the appellant
and Mavuso to load the bags of dagga into the white van. Prior to 28th August about half the contents of one of the 16 bags of dagga had been stolen by a cleaner at the police station. This half-full
bag was left behind in the exhibit cell, as was the tin container of dagga, and only 15 full bags of Matse’s dagga were therefore
loaded into the white van. Constable Msibi was on duty in the charge office that night and he witnessed the removal of the bags from
the exhibit cell by the appellant, Mavuso and Gwebu. The appellant told Msibi that they were going to set a trap for a suspect and
that it was unnecessary to make an entry in the occurrence book recording their departure. In accordance with this instruction from
the acting Station Commander, Msibi made no entry in the occurrence book.
The appellant drove Mavuso to the appellant’s home at Motshane and there they off-loaded the 15 bags of dagga and put them in
a rondavel. From there the appellant drove Mavuso to another homestead where he and a man unknown to Mavuso brought from the house
16 bags of dagga which they loaded into the white van. Before returning to the police station they stopped again at the appellant’s
home where one of the 16 bags was off-loaded. Arriving back at the police station at about 2-30a.m. Gwebu opened up the exhibit cell
and he and Constable Msibi helped the appellant and Mavuso to take the 15 bags of dagga from the white van and put them in the exhibit
cell, which Gwebu then locked again. Constable Msibi was under the impression that the 15 bags that were brought back were the same
15 bags that had been taken out.
On leaving the Trade Fair at 6 a.m. Detective Sergeant Dlamini could not find Mavuso. On seeing him in his quarters back at Malkerns
Dlamini asked him how he had got back and Mavuso said that he had got a lift back that morning in one of the police vehicles.
Sipho Matsebula testified that on a Saturday night at the end of the week in which 16 bags of dagga had been brought to Lucky Ndzingane’s
house the appellant came to Lucky’s house to fetch the bags of dagga. Sipho helped the appellant to carry the 16 bags of dagga
to the appellant’s vehicle where there was another man, unknown to Sipho, who loaded them into the vehicle. Although Sipho
could not put a date to this Saturday night, and although he thought the dagga was fetched much earlier than the time that was indicated
by the evidence of Mavuso, as supported by the evidence of Gwebu and Msibi as to when the van left from and returned to the police
station, it is obvious that this Saturday night could only have been the night of 28/29 August, which points to the conclusion that
the date when the appellant brought 16 bags of dagga to Lucky Ndzingane’s house would have been some few days earlier in that
last week of August.
All this evidence of what occurred on the night of 28/29 August was denied by the appellant. His version is that he was at the Malkerns
police station at about 10-30p.m. to check with Constable Msibi in the charge office if there were any problems, when Mavuso appeared
and said he wanted to go and arrest the dagga suspect, and would the appellant help him. The appellant asked Mavuso if he had transport
and Mavuso said he had the keys of the white C.I.D. van. The appellant agreed to help him. Gwebu then came and opened the exhibit
cell and the appellant helped to load the bags into the white van and told Msibi to book them out on duty. Mavuso directed the appellant
to a property at Takitsi where there were many rooms. A woman came to the vehicle and told Mavuso that the suspect was not there
but that he would be coming. The appellant said that he and Mavuso sat in the vehicle, which was parked next to the building, and
waited in vain for about two hours, during which time the appellant went into some nearby bushes to relieve himself, taking the keys
of the vehicle with him, and returned to the vehicle about 20 minutes later. The suspect not having shown up they returned to the
police station around 2 a.m. and returned the bags of dagga to the exhibit cell.
The next event, according to the prosecution witnesses, occurred on a day at the end of August or the beginning of September when
a man called Donald Isaacs was phoned by the appellant and asked if he knew anyone who would buy 15 bags of dagga that the appellant
had. Isaacs said no, whereupon the appellant asked him for the phone number of Isaacs’ brother-in-law, by the name of Coolboy
Littler. Isaacs gave the appellant the number of Littler’s cell-phone.
On a day early in September Littler and his colleague Andreas Mahlalela, alias Rasta, went to Mahlanya in response to a telephone
call on Littler’s cell-phone, and at Mahlanya they met the appellant in his car. In Rasta’s hearing the appellant told
Littler that he had 15 bags of dagga for sale for the sum of E15000. A day or two later the appellant brought 15 bags of a good quality
dagga to Rasta’s house and Littler gave the appellant E7000. Littler and Rasta then took a sample of this dagga to a certain
Johnson at Melmoth near Pietersburg in South Africa who agreed to buy the lot and gave them a part-payment of R5000, the balance
to be paid on delivery of all the dagga. On their way home from Melmoth Littler and Rasta met the appellant near Smoky Mountain,
Ezulwini, and gave him E3500. Back at Rasta’s house Littler and Rasta compressed all the dagga, which weighed 150kgs, into
blocks and they delivered it to Johnson in Swaziland near the Mahamba border post, where Johnson paid them the balance of the purchase
price of E37500 that they had negotiated with him. The Mahamba border post records show that a man called Johnson from Pietersburg
entered and left Swaziland on 7th September. Two days later, which would have been 9th September, Littler and Rasta met the appellant at Sidwashini and paid him the balance of E4500 that they owed him, having made a
profit of E22500 for themselves on the deal. Littler died before the appellant was tried and the evidence of these events was given
by Isaacs and Rasta. The appellant denied all this evidence and alleged that Isaacs and Rasta were part of a conspiracy to frame
him.
Some time after this, information came to the ears of Detective Superintendent Ndlangamandla that 16 bags of dagga had gone missing
from the Malkerns police station, and so, on 18th October, Ndlangamandla arrived at the Malkerns police station to investigate what he had been told. He was taken to the exhibit cell
by various members of the Malkerns police station, among them the appellant, who was still the acting Station Commander, and Mavuso.
The exhibit cell was opened and 15 bags filled with dagga, 1 half-filled bag and a tin container of dagga were taken out of the cell
for Superintendent Ndlangamandla to see. On being asked, Mavuso falsely told Ndlangamandla that all of this dagga was the dagga that
he had seized in Matse’s room on 22 July.
Superintendent Ndlangamandla appeared to be satisfied by what he had seen, and the next day the appellant commended Mavuso for having
lied to the Superintendent. He counselled Mavuso to keep calm and said that the police station was due to be inspected soon by Assistant
Commissioner Vilakati who would in all probability order the dagga, which had been fruitlessly kept for so long without arresting
Matse, to be destroyed.
No such inspection occurred however, and Superintendent Ndlangamandla had come to suspect, by reason of further information he received,
that the dagga he had been shown was not the same dagga that had originally been seized. On 8th November he summoned Mavuso and interrogated him, and Mavuso then revealed the truth of what had happened. The appellant, who had
heard that Mavuso had been seen by Ndlangamandla, asked Mavuso what he had told the Superintendent. Mavuso assured him that he had
persisted in saying that the dagga had not been switched. However, the dagga was then removed from Malkerns on Ndlangamandla’s
orders and was taken to police headquarters, whereupon the appellant furiously accused Mavuso of being a sell-out and threatened
him with death by witchcraft. On 12th November the appellant summoned Constable Seyama and asked him if he had heard anything about dagga having been stolen from Malkerns
police station. Seyama said no, but the next day he was angrily accused by the appellant of lying and was warned to have nothing
to do with the matter. The day after that the appellant again spoke to Seyama and asked Seyama to tell him what police officers were
saying about him. He said to Seyama that they hated him and were unjustly accusing him of drug dealing, and he praised Seyama and
hinted at promotion saying that Assistant Commissioner Vilakati was a good friend of his.
On 15th November the appellant spoke to Constable Msibi and asked him if Superintendent Ndlangamandla had questioned him. Msibi said no,
and the appellant warned him not to tell Ndlangamandla that dagga had been taken out of the police station on 28th August. The appellant gave a similar warning to Constable Gwebu round about this same time in November when Gwebu returned to the
station after a spell of leave.
The appellant denied all these approaches to Mavuso, Seyama, Msibi and Gwebu and characterised their evidence as part of the alleged
conspiracy against him.
On 14th December Superintendent Ndlangamandla arrested the appellant. A month later one Bongani Gamedze, who was in prison where the appellant
was being held, was due to be released. The appellant asked Bongani if there were any witchdoctors in his area who knew how to doctor
court cases with “muti”, and Bongani said there were. On 14th January 2000, the day of Bongani’s release, the appellant gave Bongani a sheet of paper on which the appellant had written
the names of witnesses who he expected would be called to testify against him. He asked Bongani to give the paper to the driver of
a Jetta car who would in turn give it to the witch doctor to whom Bongani would take him so that the witch doctor could cause those
witnesses to become mentally confused, or to die. However, this paper was found on Bongani before he was released and it was shown
to Prison Officer Mahlalela. He summoned the appellant who admitted that he had given the paper to Bongani so that the appellant’s
relatives could see who were to be the witnesses against him. The appellant asked officer Mahlalela to destroy the document because
it would cause him trouble.
The appellant denied that he asked Bongani about a witch doctor who could influence court-cases and he denied asking officer Mahlalela
to destroy the paper that he gave to Bongani.
That then was the prosecution case.
The appellant’s response to all this evidence has been stated above. It consists of the version he gave of the meeting with
Mavuso and Gwebu on the night of 8th August, of the version he gave of what happened on the night of 28/29 August, and for the rest it consists of bald denials of the
evidence of Lucky Ndzigane, Sipho Matsebula, Donald Isaacs, Andreas Mahlalela (Rasta), Bongani Gamedze, Prison Officer Mahlalela,
Constable Seyama, Constable Msibi and Constable Gwebu.
The crux of the case for the prosecution is based on the evidence of witnesses who are accomplices. Detective Constable Mavuso is
the main witness, and he was an accomplice of the appellant’s in the theft of the dagga. He had confided to Constable Gwebu
what the appellant’s unlawful intentions were, and Gwebu was therefore also an accomplice in facilitating the removal of the
dagga from the exhibit cell. Lucky Ndzingane and his nephew Sipho Matsebula knowingly kept possession of 16 bags of dagga on behalf
of the appellant and, although they were not accomplices in relation to any of the counts on which the appellant was tried, their
involvement in an aspect of the appellant’s conduct which was unlawful was such that it is appropriate to regard them as accomplice
witnesses. Finally, Andreas Mahlalela (Rasta), was an accomplice of the appellant in relation to the charge of dealing in dagga.
The learned Judge was fully alive to the need to treat the evidence of these witnesses with proper caution, and of the requirement
of corroboration of a nature that implicated the appellant so as to minimise the risk of false incrimination. It is plainly apparent
from the Crown evidence that I have summarised that there was no dearth of corroboration of their evidence. Indeed, there is no aspect
of the appellant’s behaviour from start to finish that rests upon the uncorroborated evidence of any one of the accomplice
witnesses.
For instance:- The initial interest of the appellant, at a time when he was on leave, in the bags of dagga that Constables Mavuso
and Shiba had seized is confirmed by the evidence of Constable Seyama (who is not an accomplice) who told of the telephone request
of the appellant for either Shiba or Mavuso to contact him, which message Seyama gave to Mavuso and which led to the meeting between
Mavuso and the appellant at the Thembelihle bottle store.
Next, the meeting at the appellant’s quarters with Constables Gwebu and Mavuso on the night of 8th August, when the appellant was still on leave, was testified to by both Mavuso and Gwebu, and it is of course settled law that accomplices
may corroborate each other –particularly when the evidence of the accused person on the point is unsatisfactory. In this regard,
the version of the appellant that these two constables paid him a friendly visit for no particular reason on the night of 8th August while he was on leave seems improbable and is difficult to reconcile with his contention that he is the victim of a malicious
conspiracy by these and other policemen who bear him ill.
The taking to, keeping in and fetching from Lucky Ndzingane’s house of 16 bags of dagga was testified to by both Lucky and his
nephew Sipho Matsebula and, as far as the fetching is concerned, also by Mavuso. In addition it is significant that in the course
of an inspection in loco held during the trial, Mavuso was able to take the Court to Lucky Ndzingane’s house, and there is
nothing to suggest that Mavuso knew either Lucky, or his nephew Sipho, or – but for the occasion when the appellant took Mavuso
there on the night of 28/29 August – where they lived.
With regard to the fetching of these bags of dagga by the appellant and Mavuso, Mr Ntiwane, who appears for the appellant, strenuously
argued that Sipho’s evidence that he recognised the appellant cannot be believed because the house is in a rural area with
no street lights and because the only source of light within the house itself was a candle that was not in the room when the bags
of dagga had been put. I find this submission very unpersuasive. Sipho knew the appellant by sight as a resident in the area and
he worked side by side with him in carrying the bags of dagga from the house to the vehicle where Mavuso waited to load them. However
dim the light may have been, there obviously had to be sufficient light for them to find their way in and out of the house, to locate
and remove all the bags of dagga from the room in which they were, and to carry them to the vehicle. There is to my mind nothing
improbable under those circumstances in Sipho’s assertion that he could see sufficiently well to recognise the appellant, who
was known to him.
Mavuso’s evidence of what he and the appellant did on the night of 28/29 August has a very great deal of corroborative evidence
to support it. As already stated, there is the evidence of Lucky and Sipho that it was the appellant who brought 16 bags of dagga
to Lucky’s house for temporary storage, that it was he who told Lucky he would be coming to remove it, and that it was he who
in fact came that very night and removed it. Then there is the evidence of Donald Isaacs that a telephone caller who identified himself
as the appellant wished to find a buyer for 15 bags of dagga that the caller had, and the caller was given by Isaacs the number of
Littler’s cell-phone. This led to a meeting between the appellant, Littler and Rasta, the sale and delivery to them by the
appellant of 15 bags of good quality dagga, and the onward sale by them of that dagga to the South African buyer Johnson, who took
delivery of the bags on 7th September near the Mahamba border post, as indicated by the records of that border post, which confirm that Johnson entered and left
Swaziland on that date.
This entire course of conduct by the appellant, as revealed by the evidence of Constable Seyama, Constable Gwebu, Lucky Ndzingane,
Sipho Matsebula, Donald Isaacs and Rasta is in complete harmony with the evidence of Mavuso that no sooner had the appellant come
to learn of the haul of dagga that was at the Malkerns police station than he recruited Mavuso’s co-operation in a scheme to
remove the dagga from the precincts of the police station under the pretext of using it to set a trap and then to replace it with
an equivalent quantity of dagga of inferior quality, and that this is exactly what the appellant did with Mavuso’s help on
the night of 28/29 August.
The credibility of all this evidence is significantly enhanced by the unsatisfactory nature of the appellant’s version of those
aspects of it which he attempted to meet with more than just a bald denial. These aspects are his versions of what happened on the
night of 8th August when he met with Constables Gwebu and Mavuso at a time when he was still on leave; and of what happened on the night of 28/29
August.
I have already commented on the appellant’s version of the meeting with Gwebu and Mavuso on the night of 8th August. With regard to the events of the night of 28/29 August the version of the appellant is in my view nothing short of absurd
and must be rejected.
Although not of major importance it is worth observing that on the appellant’s version of that night’s events it is a
mystery how Mavuso managed to turn up at the Malkerns police station at about 10.30 or 11p.m. when he had been taken much earlier
to the Manzini Trade Fair for duty during the night. Sergeant Dlamini was at a loss to know how Mavuso had managed to leave the Trade
Fair when he could not find him the next morning as they came off duty, and it is only in Mavuso’s evidence that the appellant
fetched him from the Fair that one finds an explanation of how Mavuso came to be at Malkerns police station with the appellant at
10.30 or 11 p.m.
Of much greater importance is the absurdity of the appellant’s evidence that he agreed to help Mavuso to remove the dagga from
the police station in order to trap its owner. He could give no explanation of how such a trap would work and he professed ignorance,
despite his senior rank and years of police experience, of how the process of trapping operates. The absurdity of the suggestion
is compounded by his evidence that all they did was to drive to the premises where the dagga had been seized in the first place,
park their vehicle alongside them, leave the bags of dagga in the vehicle, and sit in the vehicle for two hours or more waiting for
the suspect to arrive. For what purpose and in what manner the presence of 15 bags of dagga in the police vehicle would have been
used if the suspect had arrived, I cannot imagine. On the appellant’s version, the removal of the dagga was pointless, and
the alleged return to the custody of the police station of the same 15 bags of dagga, and not 15 bags of other dagga of inferior
quality, is wholly inconsistent with the evidence of Lucky Ndzingane, Sipho Matsebula, Donald Isaacs and Rasta, and, of course, Mavuso
himself. In conclusion, it is worth observing that the sinister purpose of the removal from the police station of the bags of dagga
finds support in the evidence of Constable Msibi that the appellant told him that he should not enter the removal of the dagga in
the occurrence book, and that no such entry was accordingly made.
Mr Ntiwane laid great stress upon the discrepancy between the evidence of Lucky Ndzingane and Sipho Matsebula on the one hand, and
that of Mavuso on other hand as to the time when the appellant and Mavuso arrived at Lucky Ndzingane’s house that night to
collect the bags of dagga that had been kept there for the appellant. The evidence that the dagga was in fact fetched that night,
and that it must have been fetched hours later than Lucky and Sipho thought, is so conclusive however that it must be accepted that
Lucky and Sipho’s estimate of the time is unreliable. This is not surprising, because Lucky arrived home that night in a state
of some inebriation, and Sipho had been asleep before the appellant and Mavuso arrived.
In conclusion it only needs to be said that the appellant’s contention that all this evidence is the product of a malicious
and lying conspiracy against him by all the witnesses is far-fetched in the extreme. His guilty mind in relation to the theft and
sale of the dagga is revealed by the enquiries, threats and promises that he made to Mavuso, Seyama, Msibi and Gwebu when Superintendent
Ndlangamandla became suspicious and began enquiring into the alleged theft of dagga from the Malkerns police station; as well as
by the evidence of Bongane Gamedze and Prison Officer Mahlalela concerning the document that the appellant gave to Bongane, and its
intended purpose. There can be no doubt whatsoever that the appellant’s guilt on count 1 was proved to the hilt.
I turn now to counts 3 and 4. As far as count 3 is concerned I consider that the appellant’s conviction and sentence on this
count should be set aside. The conveyance of 15 bags of dagga that forms the gravamen of this count is the conveyance of the 15 bags
of dagga from the police station to the appellant’s home that took place on the night of 28th August. The evidence of the conveyance is the same evidence that proves the appellant’s guilt of theft, which is a continuing
offence, on count 1, and count 3 in my view constitutes an improper splitting of charges with count 1.
Count 4, the dealing by way of sale in 15 bags of dagga, is an entirely separate and distinct count from count 1, requiring for its
proof evidence that is not necessary for the proof of count 1, although that evidence is corroborative of the appellant’s guilt
of theft. The only argument that Mr Ntiwane advanced before us in relation to count 4 was the extraordinary submission that it was
not proved that what the appellant dealt in and sold to Littler and Rasta was dagga. A number of police witnesses, all of whom claim,
as one would expect, to be thoroughly familiar from years of experience with the sight and smell of dagga, and even with its quality,
saw samples of the contents of the bags that were seized in Matse’s room by Constables Mavuso and Shiba, and said that it was
good quality, or “grade one”, dagga. The appellant himself considered it to be very good dagga and acquired an equivalent
number of bags of inferior quality dagga to substitute for it. The appellant sought for, and obtained, E15,000 for it, and experienced
dagger dealers like the late Coolboy Littler, his colleague Rasta and the buyer Johnson traded it for E37500. Finally, a police chemist
analysed the contents of one of the 16 bags that were taken from Matse’s room (namely the bag that was not removed from police
station because a cleaner had stolen half of its contents) as well as the contents of the tin that was taken from Matse’s room,
and found that both those receptacles contained dagga. It is wholly fanciful under all these circumstances to contend that the 15
stolen and traded bags were not proved beyond a reasonable doubt to have contained dagga.
With regard to sentence I can only say that, in my respectful view, the sentences that were imposed on counts 1 and 4 err, if they
err at all, on the side of leniency. The appellant’s conduct as a senior officer in the police was utterly disgraceful. The
corruption inherent in the betrayal of his calling as a police officer; in causing the culprit Matse to go unapprehended and uncharged
by purloining the dagga for his own pecuniary gain; in suborning and enticing a subordinate policeman to join with him in this gross
betrayal of police integrity; and in releasing for sale by dagga dealers of so large quantity (150kilograms) of dagga, is of the
gravest nature. His dishonesty is compounded by his attempt to blacken all the witnesses as perjured parties to an intricate and
wicked conspiracy to ruin his career.
There is however, one matter concerning sentence that calls for intervention. When an accused person has been kept in custody awaiting
trial it has became customary in this jurisdiction to backdate custodial sentences to the date of the accused person’s arrest.
It is, of course, entirely permissible not to do so, but in that case the trial Court should indicate that it has considered doing
so, but has decided not to, because in assessing sentence the time spent in custody awaiting trial has been taken into consideration.
In the present instance there is no indication that consideration was given to backdating, and counsel for the Crown has confirmed
that the appellant, who was arrested on 14th December 1999 was kept in custody from that date until the day he was sentenced. I consider therefore that the sentence that was
imposed on count 1 should be backdated to 14 December 1999.
For all these reasons I am of the view that, with the exception of the setting aside of the conviction and sentence on Count 3, which
is hereby ordered, the appeal must fail and the convictions and sentences on counts 1 and 4 are accordingly confirmed, save that
the sentence on count 1 is backdated to 14th December 1999.
C.E.L. BECK J.A.
I agree
R.N. LEON J.P.
I agree
J.H. STEYN J.A.
Delivered in open Court on this……….day of June 2001
