IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case number: A269B/2015

DATE: 14 MARCH 2016

In the matter between:

CHINATU, DOMINIC PETER...................................................................................................Appellant

And

THE STATE............................................................................................................................Respondent

JUDGMENT

SATCHWELL J:

INTRODUCTION

1. Appellant was convicted and sentenced in the district Magistrate’s Court at Kempton Park of contraventions of Act 140 of 1992 in that it was alleged that he dealt in 938.86 grams of cocaine which he was importing into South Africa having entered on a flight from Sao Paolo Brazil. He appears to appeal both conviction and sentence.

2. The only issue which has caused me some concern is why this trial took so long and to what purpose lengthy cross-examination was led of some many witnesses. At the end of the day there was no real dispute on the facts and all prejudice was to the appellant who remained in custody for a period of one year (6^th April 2012 date of arrest to 18^th April 2013 date of conviction and sentence.)

3. If there is any dispute between the prosecution and the defence it is that the police authorities set up an entire fake apprehension and prosecution for some unknown reason and that the appellant is a victim of such a scam.

4. The appellant was a passenger on a flight from Sao Paolo. On arrival at OR Tambo he was marked out for investigation. Inspector Thipe searched him and found a black plastic bag inside his boxer underpants short within his genitalia. This plastic bag contained items in a bullet form. Constable Ramakwela was called and he searched the appellant and found a black plastic bag inside the genitalia of the appellant containing about 50 bullets. The constable called a photographer, Warrant Officer Magome, whose affidavit of the appellant and the bag was admitted into evidence thereafter, Constable Ramakwela arranged for the appellant to be taken to hospital for an x ray where a foreign object was identified in his stomach. The appellant was under guard at all times. Warrant Officer Galane had the unpleasant task of observing the appellant excrete the bullets into a special Organised Crimes Unit toilet which enabled the foreign objects to be ejected into a sink.

5. The plastic bag and the bullets contained therein and the bullets excreted by the appellant were all placed into two sealed forensic bags. Constable Hlavete and Captain Pule (by way of affidavit) and Constable Sithosa all gave evidence on the chain of evidence. These various bags were delivered to the Forensic Science laboratory for analysis and the affidavit of Warrant Officer Masiso was that he analysed that material which was found to be cocaine being a prohibited substance in terms of the relevant legislation.

6. To this open and shut case, the appellant told the court that he had been on a month’s holiday to Brazil and was in transit through South Africa. His employment and means of taking himself off on such a holiday were not dealt with.

7. He denied that the black plastic packet containing bullets were ever found on his body. He denied that he ever excreted further bullets using the Organised Crimes Toilet.

8. In the course of an unnecessarily lengthy trial, there was much cross-examination of witnesses on taking of statements, details of forensic bags and the chain of evidence. As one read through the record, one began to think that there was actually some kind of defence being offered against the prosecution case. There was none.

9. I can find no misdirection in the judgment of the learned magistrate in the court a quo. The learned magistrate was extremely generous in taking into account the time spent in custody by the appellant when it was he who initially refused legal aid board representation which occasioned delays in commencement of the trail and it was his legal representative who explored every red herring for days on end.

10. I have no hesitation in confirming the conviction of the appellant and the sentence of twelve years imprisonment imposed on him.

11. An order is as follows: The appeal against conviction and sentence is dismissed.

DATED AT JOHANNESBURG 14 MARCH 2016

SATCHWELL J

I agree.

MOKOENA AJ

Counsel for Appellant:  Adv JL Kgokane

Attorneys for Appellant: Legal Aid of SA

Counsel for Respondent: Adv N Kowlas

Attorneys for Respondent: Office of DPP

Dates of hearing: 14^th March 2016.

Date of judgment: 14^th March 2016.