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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 010/2005

PARTIES: N VELDMAN AND THE STATE

REFERENCE NUMBERS –

• Registrar: CA&R 250/2004

DATE HEARD: 22 FEBRUARY 2005

DATE DELIVERED: 25 FEBRUARY 2005

JUDGE(S): JONES & SANDI JJ

LEGAL REPRESENTATIVES

Appearances:

• for the State/Applicant(s)Appellant(s) J McCONNACHIE

• for the accused/respondent(s) IC DE FRIENDT

Instructing attorneys:

• Applicant(s)/Appellant(s): MILI ATTORNEY’S

• Respondent(s): DDP GRAHAMSTOWN

CASE INFORMATION –

• Topic and keywords: As per summary

Possibly reportable

In the High Court of South Africa

(Eastern Cape Division) Case No: CA&R 250/04

Delivered:

In the matter between

NZIMENI VELDMAN

and

THE STATE

SUMMARY: Right to legal representation – inadequate recording of explanation of rights – subsequent appointment of attorney – no failure of justice – dealing in dagga – sentence – misdirection regarding deferment of fine – forfeiture of immovable property – no proper proof of ownership or possession or custody and control of property – use of property not shown to be more than incidental to the commission of offence.

JUDGMENT

JONES J:

The appellant was convicted in the magistrate’s court, Komga of dealing in 6.5 kilograms of dagga in contravention of s 5(b) of the Drugs and Drug Trafficking Act No 140 of 1992 and was sentenced to 2 years’ imprisonment, suspended for 5 years on certain conditions, plus a further R6000 or 12 months’ imprisonment. In addition the magistrate ordered forfeiture of the dagga and the house at 1363 Lothe Street, Siviwe Extension, Komga, where the accused resided and where the offence was committed. He has appealed against the conviction, the sentence, and the forfeiture order in respect of the house.

The evidence on the merits was straightforward. The record reveals that the appellant sold three ‘arms’ of dagga to a police trap. The police were waiting ready to swoop outside the house where the transaction took place, 1363 Lothe Street, Siviwe Extension, Komga. They entered the house to find the appellant in possession of a total of 6.5 kilograms of dagga. Two other persons were also at the house and they were also arrested. They had had nothing to do with the sale. The state evidence was not disputed. Indeed, the appellant, who at that stage of the proceedings was unrepresented, did not cross-examine at all. Although the appellant had denied in the course of his plea explanation that he had dealt in or was in possession of the dagga, he chose not to give evidence in his defence. At that stage he was represented by an attorney. On the evidence, a conviction was inevitable.

Counsel for the appellant argued two points on the merits. They were

• that the record disclosed that the appellant did not have a fair trial; and

• that the State failed to prove that the substance in question was dagga.

The appellant was arrested on 5 March 2003. The record reflects that the appellant was brought before court on 7 March 2003. The note of the proceedings reads:

‘Remanded in custody 25/04/03. Bail fixed at R500. Rights of accused explained to him and he elects to conduct his own defence. Section 115 to stand over the next PO [Presiding Officer] together with a plea’.

The matter was postponed on a few occasions. The trial commenced on 10 June 2003 before a different presiding officer, who noted that the forfeiture provisions had already been explained by another magistrate on a previous occasion, and recorded the plea and the plea explanation in terms of s 115. The document reflects that the appellant denied dealing in dagga and that dagga was found in his possession. The rest of the proceedings were mechanically recorded. It is clear from the record that the magistrate did not again explain the appellant’s rights on trial. He placed on record that ‘before his plea on another occasion before another magistrate the forfeitures, presumptions and definitions relevant in the Act were explained to him and [he] indicated to me that he understood these explanations.

The trial then proceeded. Despite the right to cross-examination having been explained, the appellant did not cross- examine and the State evidence was not challenged. After hearing the evidence of two State witnesses the matter was postponed. At the resumed hearing the appellant was represented by an attorney. The attorney indicated that he had read the transcript of the evidence and did not wish to cross-examine the witnesses who had already testified. He made a formal admission on behalf of the accused that the dagga in question weighed 6.5 kilograms. The State closed its case. So did the defence, without calling the appellant or any other witnesses.

Mr McConnachie’s submission that the proceedings were not in accordance with justice was based primarily on the ground the appellant’s right to legal representation was not fully and properly explained to him. He submitted that the record does not reflect what rights were explained to the appellant, how effectively they were conveyed to him and whether the explanation was fully comprehended. Furthermore, his rights were not again explained to him when the actual trial commenced. The magistrate is also critcized for not assisting the appellant once it was apparent that he had failed to cross-examine on material issues, especially because the evidence against him was of a police trap, which must by tradition be viewed with caution by the courts.

It is indeed so that a cryptic note on the record that an accused’s rights were explained to him is not merely undesirable. It may sometimes be inadequate. In S v Daniëls en 'n ander 1983 (3) SA 275 (A) Nicholas AJA had this to say at 299E-H:

‘The second ground of objection is that it does not appear ex facie the record of the proceedings in the Caledon magistrate's court that accused No 2's rights in respect of ss (1) and (2) (a ) of s 115 were properly explained to him. In this regard reliance was placed on the decision of the Full Court of the Cape Provincial Division in the case of S v Evans 1981 (4) SA 52 (C). In that case it was held, after considering the matter on principle and in the light of authority, that the court is obliged to inform the accused in proceedings under s 115 that he is not obliged to answer questions. Failure to do this is an irregularity, the effect of which will depend upon the facts and circumstances of each individual case. That the accused's rights were explained to him, must appear from the record, in such a manner as, and with sufficient particularity, to enable a judgment to be made as to the adequacy of the explanation (at 58G, 58 last line-59A). I entirely agree. (Underlining added)

But an inadequate note on the record does not necessarily justify the conclusion that the accused has not had a fair trial. Here, the rights in question were the rights of an accused person to legal representation at his trial. In whatever manner the magistrate explained these rights on 7 March 2003, they were sufficiently understood to prompt the appellant to instruct an attorney for the resumed hearing. In my opinion this cured any irregularity there may have been in relation to the explanation and recording of the right to representation. There has not been a failure of justice. In my view, also, the appointment of an attorney disposes of the other criticisms made by Mr McConnachie of the way in which the trial was conducted.

Mr McConnachie submitted further that the attorney was remiss in not recalling the state witnesses for cross-examination, and suggested that this is also a basis for holding that there has not been a fair trial. I do not agree. The appellant’s failure to cross-examine, the decision by his attorney not to recall the witnesses for cross-examination, and the appellant’s failure to give evidence to contradict the evidence of the state witnesses point overwhelmingly to the conclusion that he had no defence to the charge. If the position were otherwise I have no doubt that review proceedings would have been brought to explain what his defence was and why he did not put it up at the trial. As it is, the magistrate had no alternative but to return a verdict of guilty as charged, and we, on appeal, have no alternative but to uphold his decision.

As to the sufficiency or otherwise of the evidence that the substance was dagga, there was never any dispute about this at the trial. The trap went to buy dagga, and he asked for dagga. The appellant sold a substance which the State witnesses, both experienced policemen, say was dagga. They saw it in appellant’s possession, and took possession of it. The appellant made no formal admission that it was indeed dagga, but he did, through his attorney, make a formal admission that the dagga weighed 6.5 kilograms. The vagueness of the description of dagga by one of the policemen does not to my mind, in the absence of a specific challenge by the defence at the trial, create a reasonable doubt about whether or not it was dagga.

The magistrate’s sentence is in line with the sentences which are imposed by the lower courts in this Division and which are confirmed by this court on appeal or automatic review every week. It is certainly not shockingly severe or startlingly inappropriate. But he has misdirected himself in his reasons for refusing to allow the appellant to pay the fine in instalments. In the first place he said that the accused was not on record as being able to pay R1000, in spite of the tender by the accused, through his attorney, to pay R1000 immediately and the rest at a rate of R1000 per month. Further, he appears to have thought that giving the appellant an opportunity to pay in instalments would be an inducement to him to continue to sell dagga. This is not a correct approach, especially where the evidence disclosed other sources of income, for example running a shop. In any event, the suspended sentence of 2 years’ imprisonment is a strong inducement for him not to continue to deal in dagga. In view of the misdirections I think that the matter should go back to the magistrate to enable him to consider afresh the application to pay the fine in instalments. In doing so he should have regard to the judgment in S v Kika 1998 (2) SACR 429 (W), which emphasises that a deferred fine is not a favour which may be withheld arbitrarily or a covert form of punishment, but is an integral part of sentencing procedure, part of the process of determining what an appropriate fine might be in the circumstances. A refusal to give a convicted person the benefit of time to pay a fine must be justified by good and compelling reasons, which do not seem to me to be present in this case.

There remains the appeal against the forfeiture order. Section 25(1) provides for a declaration of forfeiture of immovable property. It says that whenever any person is convicted of an offence under the Act, the court convicting him shall, in the case of an offence referred to in section 13 (e) or (f), declare any immovable property which was used for the purpose of or in connection with the commission of that offence, and which was seized under section 11 (1) (g) or is in the possession or custody or under the control of the convicted person, to be forfeited to the State. In my judgment the requirements of the section have not been met.

In this case there is no evidence that the property was seized under section 11(1)(g), or that it was in the possession or custody or under the control of the appellant. Loosely phrased evidence given by the police that it was the appellant’s house or that the appellant was the owner of the house does not prove this fact for present purposes. In my opinion, it has no more significance than the kind of casual language a person uses when he says ‘Come to my house’ meaning the house where he lives, and not necessarily the house which is legally registered in his name. For purposes of a forfeiture order under the section the State must show that the house was in the possession or custody or under the control of the accused. These terms must be restrictively interpreted. The matter would be clear on proof that the accused is the registered owner. In the absence of proof of ownership there must be proper evidence to establish his possession or custody or control within the meaning of the Act (S v Cetwayo 1996 (2) SACR 628 (E)). The mere ipse dixit of a policeman, without giving the source of his information and the reasons for his assertion, would not ordinarily be sufficient.

The magistrate reached the conclusion that the house was used for the purpose of or in connection with the commission of the offence, as opposed to being incidentally the place where the offence was committed (see S v Vermeulen 1995 (2) SACR 439 (T)). This is not the only reasonable inference from the evidence. The evidence is that the appellant ran a ‘tuck shop’ on the premises, and that the dagga was brought to the house by somebody else and then sold from inside the house on this occasion. This house was used for the ordinary purposes to which township residences are frequently put, i.e. for living and running a small shop. It is no different from any other case where a drug seller keeps his dagga hidden in his room and sometimes sells it to people who come to the house. The house is not used for the purpose of or in connection with the commission of the offence within the meaning of that term as used in the Act.

In the result there will be the following order:

1. The appeal against the conviction and sentence is dismissed.

2. The forfeiture order in respect of the house is set aside.

3. The matter is sent back to the magistrate to enable him to consider afresh an application for the fine to be paid in instalments.

RJW JONES

Judge of the High Court

23 February 2005

SANDI J: I agree.

B SANDI

Judge of the High Court.

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