Court name
Supreme Court
Case name
S v Sibande and Another
Media neutral citation
[2002] NASC 14
















CASE NO. SA16/2001



IN
THE SUPREME COURT OF NAMIBIA



In
the matter between :







CHARLES
SIBANDE FIRST APPELLANT



CHIMPHOTWA
AMON BANDA SECOND APPELLANT



And



THE
STATE RESPONDENT







Coram:
Strydom, C.J.; O’Linn, A.J.A. et Chomba, A.J.A.



Heard
on : 10/04/2002



Delivered
on : 11/10/2002











APPEAL
JUDGMENT







Chomba,
A.J.A.:
The sole legal issue which was argued before us
and which falls to be resolved in this appeal against conviction only
is that of guilty knowledge. This issue arises from the following
acknowledged facts which constitute common cause as determined by the
court a quo.







On
6th August 1997 the two appellants going by the pseudonyms
of Charles Sibande and Chimphotwa Amon Banda respectively and
travelling on fake Malawian passports, were found at the Inter Cape
Mainliner Bus station in Windhoek. They were about to board a
Johannesburg bound bus when vigilant police officers of the Drug
Enforcement Unit in the Namibian Police Force accosted them. Each
one of the appellants had earlier been noticed to be carrying a black
bag. The bags were later found to contain what appeared like
transformers.







For
reasons to be discussed later there is need to describe how the
so-called transformers were packaged and how each of them looked
like. When the contents of each bag were emptied what was yielded
were two boxes. Charles Sibande, that is the first appellant, who
was the first to be accosted was asked what the contents of the boxes
were. He replied that they contained electrical transformers. He
was unable to produce any papers relating to how they were acquired
or upon the authority of which they were being externalised from
Namibia. When each box was opened it indeed yielded what appeared to
be transformers. Each transformer was quite greasy outwardly on one
side and on the top and it had electric wires attached to it. Each
was also sealed and well secured by some nuts and, as warrant officer
Sydney Ettiene Philander the first prosecution witness said, each
transformer was so properly sealed that no one could see what was
going on inside. On a closer look at the electric wires they were
found to be falsely attached to the transformers and were easily
detached from it. The sealing was such that a transformer had to be
broken in order to discover what it contained. When this was done
the contents turned out to be a powder which was indisputably found
to be cocaine.







The
second appellant, Chimphotwa Amon Banda’s black bag contained items
similar to those found in Charles Sibande’s bag. There were
therefore four boxes found in the bags recovered from both
appellants. The boxes contained 72 so-called transformers in all.
When all the 72 were broken up the total quantity of cocaine found
weighed 72.5 kg.







It
was on the basis of the foregoing facts that the appellants were
charged with dealing in dangerous dependence producing drugs
contrary to section 2(c) read with section 1(i) and/or 2(ii), 8 and
10 and Part II of schedule to Act No. 41 of 1971. Each appellant
pleaded not guilty to the charge but after a full trial they were
both convicted accordingly and each was sentenced to 10 years
imprisonment.







It
was only after they had been charged in the names Charles Sibande
and Chimphotwa Amon Banda respectively that the appellants revealed
their true identities to be Vicmor Monerr and Elias Isanaku
respectively. They also owned up as to their nationalities. The
first appellant said that he was a Cameroonian citizen with mixed
parentage, a Nigerian mother and Cameroonian father. The second
appellant said he was a Nigerian. Each appellant stated that he
separately entered the Republic of South Africa and was at the
material time a refugee in that country. Each claimed that he held
recognized United Nations Refugee Status. They both lived in
Johannesburg where both were in part-time employment earning some
R800.00 per month.







In
professing their innocence as to the nature of the contents of the
so-called transformers, the explanation they offered for the first
time at their trial was to the following effect. On or about 3rd
August 1997 they were in a club in Johannesburg with a mutual friend
only known as Louis. Louis was at that time a man both appellants
had known for a couple of months. In the course of their
conversation with them Louis told them that he had intended to make a
trip to Namibia on behalf of one, Clifford, but he could not do so
because of his physical incapacity arising from a motor accident in
which he had been involved. At that time Louis had all the markings
of an accident victim. He asked if they could undertake the trip
instead. To this end he asked if they had passports, but although
they had none in fact, they agreed that they did have passports. By
arrangement with Louis the two appellants later met Clifford who
reaffirmed what Louis had earlier told them. Clifford said that he
could remunerate them with US$1,000 if they made the trip to pick up
electrical transformers in Windhoek and bring them back to the
Republic of South Africa. They became so excited about the prospect
of earning US$ 1,000.00 that the same night they visited a place
called Hillbrow in Johannesburg where they knew fake passports were
obtainable. Each purchased a passport at R150. Subsequently the
US$ 1,000.00 was paid to them and they were told that in Windhoek
they would receive the transformers from two men named Felix and
George. They were to meet with Felix and George at Continental
Hotel.







From
the US$1,000 they purchased bus tickets worth R350 each for the round
trip from Johannesburg–Windhoek-Johannesburg. They got to Windhoek
on the 6th of August 1997 in the morning and headed for
Continental Hotel. But Felix and George were not immediately
available there. They therefore, in the interim, booked a room in
the hotel as they waited to establish connection with the other two
men. Later in the day the manager of the hotel came up to their room
accompanied by two men who were introduced as Felix and George. The
appellants subsequently travelled together with the last mentioned
two persons by taxi to a shop where they were given two black bags
and from the shop they drove to the said bus terminal. At the
terminal Felix and George went their own way while the appellants
headed to board the Johannesburg bound bus. It was thereafter that
they were apprehended.







The
only pillar of defence relied on at the trial and indeed pivotal in
the submissions before us made on behalf of the appellants by Mr.
Barnard, is that the appellants did not know that the baggages they
were carrying contained cocaine. In trying to consolidate that
pillar of defence stress was laid on the near perfect semblance of
the so-called transformers to the real such things. It was said
that even the police officers’ perception of the “transformers”
was that they initially took them to be real. Moreover, Mr. Barnard
stressed another point, namely the fact that in this case there was
no direct evidence in proof of guilty knowledge on the part of the
appellants that the “transformers” contained cocaine. Therefore
he further submitted that in the circumstances the prosecution had to
rely on circumstantial evidence to prove the mens rea
of guilty knowledge, but he observed that in that event the
prosecution had a duty to prove beyond reasonable doubt that the
inference of guilt was the only one capable of being drawn from the
established facts to the exclusion of all other inferences.







Conceding
the trial judge’s holding that the appellants lied in certain
respects in explaining how innocent their involvement in the cocaine
saga was, Mr. Barnard prayed in aid the dictum in MAHARAJ
v PARANDAYA
, 1939
NPD23, viz : -







But
the court is not entitled to say that because (the accused) has been
proved to be a liar, he is therefore likely to be a criminal. It is
possible that an innocent person may put up a false story, because he
thinks that the truth is unlikely to be sufficiently plausible.”








He
also underscored the time worn principle of criminal procedure that
the onus to prove a crime beyond reasonable doubt rests squarely on
the prosecution and not on the defence. To this end Mr. Barnard
cited the dictum in R v DIFFORD 1937 AD 370 at 373, namely–







“………no
onus rests on the accused to convince the court of the truth of any
explanation which he gives. If he gives an explanation, even if that
explanation is improbable, the court is not entitled to convict
unless it is satisfied, not only that the explanation is improbable,
but that beyond reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is
entitled to acquittal.”











We
were also reminded of the statement of the same principle by being
referred to R v M 1946 AD 1023 at 1027 where the following was
stated: -







“……the
court does not have to believe the defence story, still less does it
have to believe it in all its details; it is sufficient if (the
court) thinks that there is a reasonable possibility that it may be
substantially true.”











I
must agree with Mr. Barnard at the outset that there was no direct
evidence to prove that the appellant had knowledge that they were
acting as couriers in a cocaine trafficking venture. Therefore an
inference of guilt from the circumstantial evidence elicited in
support of the charge of which the appellants were convicted had to
be the only one reasonably possible to be drawn from the established
facts to the exclusion of any others . Further I agree that an
accused person should be home and dry in earning an acquittal if he
can induce the court to accept that an explanation he gives is
reasonably possibly true. The question I must pose and answer
therefore is whether in the present case the identical explanations
given by the appellants were reasonably possibly true.







The
genesis of the episode leading to the appellants’ involvement in
this case was said to be the casual acquaintance they had with Louis.
They had known him, according to what they said, for a mere two
months. The only contacts they had with him were when they met at
Club La Frontier in Johannesburg where the first appellant worked and
where Louis was an occasional patron. On 3rd August 1997
they again met him and he reportedly told them that he would have
made a trip to Windhoek, Namibia on behalf of Clifford but for the
accident he had, and he asked them to go on his behalf if they had
passports; he told them that Clifford would pay them US$ 1,000.00
for the assignment. Clifford was a person the appellants hardly
knew, and yet he only had to repeat what Louis had earlier said for
them to implicitly believe that he was a person they could trust and
for whom they could make the errand on the terms offered. Even
before they received the US$1,000 they each went and purchased false
Malawian passports which cost R150 a piece. Not only were the
passports fake, the appellants also assumed false identities as
Charles Sibande and Chimphotwa Amon Banda presumably Malawian names
when in truth the appellants were West Africans.







The
purpose of the mission as plainly put to them was that they be used
in importing electrical transformers from Namibia to the Republic of
South Africa. In the circumstances it should have occurred to any
sensible law abiding person wanting to be innocently involved in such
a transaction to ask for import documents, especially considering the
information they were given that the transformers came from South
America via Angola and Namibia. They asked for none from either
Clifford or from the mysterious Felix and George.







The
appellants said that they were excited at the prospect of receiving
US$ 1,000.00 reward. But let us look at the expenses they incurred.
The passports cost was R300, return tickets were at R350 each, that
is to say R700 altogether and their sustenance on the entire trip,
including booking a room at Continental Hotel while they awaited the
arrival of Felix and George, were all expenses from the so-called
reward. That the US$ 1,000.00 was not the net reward but that their
entire expenses on the trip were to be met from that amount is
apparent from the answer given by the first appellant when cross
examined by Ms. Jacobs who asked :-







So
he paid you US$ 1,000.00 and you had to do everything yourself?”



Answer
– “correct.”







Therefore
if the appellants’ story is to be considered to be reasonably
possible, let alone believed, the expenses they incurred made quite a
substantial inroad into the so-called reward. The appellants were
not in desperate financial straits: they each had a reasonable income
of R800.00 a month; and they were United Nations registered refugees
in the Republic of South Africa.







Moreover
as United Nations registered refugees it was more likely than not
that the United Nations office in Johannesburg could have given them
travel documents to enable them travel to Namibia but they chose to
have recourse to the criminal subterfuge of assuming false identities
and acquiring dud passports. By so doing they were putting at stake
their hard won refugee statuses because not only did they choose to
travel as criminals (false names and fake passports) but their
assignment was also fraught with the danger of being caught as
smugglers of transformers and/or infringing the immigration laws of
Namibia. The question is whether it was worth undertaking the
risk-riddled journey for a paltry reward of very much less than US$
1,000.00. That the reward was indeed less than US$ 1,000.00 was
acknowledged by the first appellant when he said the following under
cross-examination:







Question
“ I put it to you that Clifford, or let me ask you this one. What
would you have done if you found out that there was cocaine in those
transformers before you boarded the bus?”







Answer
– “If I had discovered, if I had a slight knowledge of that what
was there was cocaine I could have abandoned the whole thing and then
go back and give the balance of the money to the owner.”
(emphasis supplied).







Quite
clearly therefore the mean reward said to have been promised by
Clifford was not, in my view worth the risk. On the other hand if
one takes into account the street value of cocaine, namely 8 million
Namibian Dollars, then it can be concluded that who ever might have
participated in successfully importing the cocaine to the Republic of
South Africa and in disposing of it there by sale would have expected
really substantial financial gain. It is therefore easy to see why
the appellants decided to throw caution to the wind and embark on
what was a perilous journey.







This
in my view is a classic case which fits the dictum of Denning, J, as
he then was, in MILLER v MINISTER OF PENSIONS (1947) 2 ALL ER
372 at page 373 –







Proof
beyond reasonable doubt does not mean proof beyond the shadow of a
doubt. The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave only a remote
possibility in his favour it can be dismissed with the sentence ‘of
course it is possible, but not in the least probable,’ the case is
proved beyond reasonable doubt …...”











In
the present case it has been proved incontrovertibly that the
appellants were found in possession of cocaine which was being
trafficked from the Republic of Namibia to the Republic of South
Africa. Prima facie the evidence against them was so strong, taking
the circumstances already analysed hereinbefore into account, that it
left a remote possibility that they were innocent handlers of
cocaine. The yarn they spun to explain how they came into possession
of it can indeed be dismissed with the sentence “of course it is
possible, but not in the least probable.” Even if they had no
first hand knowledge that they were transporting cocaine, in the
sense that they never saw it, the inference that they had
constructive knowledge of it is, on the totality of the evidence
against them, irresistible. I would therefore uphold the conviction
of both of them as charged on the main count and dismiss their
appeals.



























_________________________



CHOMBA,
A.J.A.























I
agree























_________________________



STRYDOM,
C.J.















I
agree























__________________________



O’LINN,
A.J.A,















COUNSEL
ON BEHALF OF THE APPELLANTS: Mr. G. Barnard




INSTRUCTED
BY: H. Barnard and Partners







COUNSEL
ON BEHALF OF THE RESPONDENT: Ms. A.N.T. Uukelo







INSTRUCTED
BY: The Prosecutor-General