IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

v

JUDGMENT HANDED DOWN ON FRIDAY, 25 FEBRUARY 2011

CLEAVER J
[1] The appellant was convicted in the magistrates' court, Bellville of contravening section 5(b) of the Drugs and Drug Trafficking Act, No 140 of 1992 and was sentenced to eight years imprisonment of which four years were conditionally suspended Although the appellant had been charged with dealing with cocaine on the basis that he had been in possession of four kilograms of cocaine, he was found guilty on the basis of being in possession of 120 units of cocaine weighing 582.32g.

[2]     The appellant now appeals to this court against both the conviction and sentence.

[3] The facts giving rise to the appeal are not in dispute. All that is in dispute is that whether the evidence tendered, and taking into account that the defendant elected not to testify or to call any witnesses in his defence, was sufficient to justify the guilty verdict.

[5]     An affidavit in terms of s 212 (4)(a) and (8)(a) of the Criminal Procedure Act was
handed in to and accepted by the court. It was deposed to by one Bonga Precious Mabula
("Mabula"), a sergeant in the South African Police Service attached to the chemistry unit of
the forensic science laboratory as a forensic expert, in the service of the state. The relevant
portion of his affidavit reads as follows:

3.1. A-      three (3) units of solid material each wrapped in plastic.
3.2. B-      six (6) units of solid material each wrapped in plastic

3.5. E-      twelve (12) units of solid material each wrapped in plastic.
3 6.   F-      thirty three (33) units of solid material each wrapped in plastic.
3 7.   G-      thirty two (32) units of solid material each wrapped in plastic.
Calculated on the average mass of one (1) unit, one hundred and twenty (120) units are
equivalent to 582.32g
The seals were intact and broken by myself.
4.
I was requested to examine the exhibits in order to determine whether they contain any substances as listed in the Schedules of the Medicines and Related Substances Control Act, Act 101 of 1965 and/or the Drugs and Drug Trafficking Act Act 140 of 1992.
5.
During the performance of my official duties, I analysed the exhibits with processes requiring skill in Chemistry. The following technique was used:

5.1. Coupled Gas Chromatography Mass Spectrometry (GC-MS). GC-MS is an internationally accepted analytical comparative technique where compounds in the gas phase are separated and a characteristic pattern (mass spectrum) of the separate compounds is obtained.
Instrumentation used during analysis of the above mentioned exhibits was property calibrated.
6.
I compared the results to the reference material and determined that the exhibits contain cocaine. Cocaine is identical to one of the substances obtained from Coca leaves and is therefore listed in Part II of Schedule 2 of Act 140/92 "

[6] The appellant elected not to testify and was thereafter found guilty as the regional magistrate was satisfied that the state's case had been proved beyond reasonable doubt.

[8] Ultimately the submission by the appellant's counsel amounted to this: the chain of evidence linking the bullets collected from the appellant and received by Mabula was not sufficiently established in that
•	Combrinck was not able in court properly to identify the evidence bags which he says he handed in to the Ravensmead Police Station and thereafter to the forensic laboratory at Delft.
•	Combrinck could not say to whom he had handed the packages at Delft Laboratory.

"Ravensmead mas 276/11/2005 SAP 13/1270/2005".

[10]   The following evidence was therefore before the court:

2. On the same day the bags were booked out of the SAP 13 Register by Combrinck and placed in a safe in his office where they remained until he removed them from the safe and booked them into the forensic laboratory at Delft on 23 November 2005. During the time that the bags were kept in the safe, the only key to the safe was in Combrinck's possession.

4. The affidavit complies with the requirements 212(8)(a)(i) and (ii)(aa)

[12] Combrinck's evidence that he had delivered seven sealed bags to the forensic laboratory was not disputed and the appellant did also not dispute the number of bullets which Combrinck, Syali and Steyn said they had collected from him and that they had sealed the bullets in the evidence bags n his presence.

[14] The finding recorded by Mabula in the s 212 affidavit is that the substance which he found in the sealed bags contained cocaine. In terms of s 212(4)(a) of the Criminal Procedure Act, the production of Mabula's affidavit is prima facie proof of the fact that the substance contained cocaine.

[15] The absence of any evidence from the appellant converted the prima facie case against him to a case on which the magistrate correctly found that the state's case had been proved beyond reasonable doubt.

[16] The appellant's counsel did not seriously challenge the sentence which had been handed down by the regional magistrate, although heads of argument were provided in which it was submitted that having regard to the appellant's personal circumstances, the sentence imposed was shockingly inappropriate and a sentence in terms of s 276(1 )(h) of the Criminal Procedure Act ought to have been be imposed.

[18] It is clear from the judgment of the court a quo that full and careful consideration was given to all the relevant factors. These included the personal circumstances of the appellant. the fact that he had already spent a period in custody prior to the trial, a report from the correctional services official who recommended a sentence in terms of s 276(1 )(h) and references to a number of appropriate judgments in which sentences for similar offences had been handed down. I might add that the attorney who appeared for the appellant at the sentencing stage presented an extremely full and competent address in mitigation of sentence.

[19] Unfortunately this case is affected by the lengthy delay which ensued between the time of the appellant's arrest in 2005 and the trial which took place tn 2009. By the time the trial took place the appellant's personal circumstances had differed vastly from those which existed when he was arrested. Whereas he had been living a hand to mouth existence in 2005, he had by 2009 rehabilitated himself to a great extent and it could therefore be argued that such rehabilitation might be destroyed if a sentence of direct imprisonment is imposed. However, that fact was also taken into account by the court a quo.

[22] After considering all the relevant factors, the appellant's personal circumstances and the sentencing options open to him, the regional magistrate concluded that the seriousness of the offence and the interests of society outweighed the personal circumstances of the appellant and that direct imprisonment ought to be imposed In recognising the change in the appellant's circumstances, he partially suspended the term of imprisonment.

[23] I am not persuaded that the sentence imposed by the trial court is not one which should reasonably have been imposed or that the discretion bestowed on the trial court was not judicially exercised. In the result the appeal against sentence must fail.

[24] The appeals against both the conviction and sentence are dismissed and both the conviction of and the sentence imposed on the appellant are confirmed.

R B CLEAVER

KOEN AJ
I agree.

S J KOEN