REPORTABLE
CASE NO.: SA 85/2011
IN THE SUPREME COURT
OF NAMIBIA
In the matter between:
DANIËL
JOAO PAULO
|
First
Appellant
|
JOSUE
MANUEL ANTONIO
|
Second
Appellant
|
And
THE
STATE
|
First
Respondent
|
and
ATTORNEY-GENERAL OF
THE REPUBLIC OF NAMIBIA
|
Amicus
Curiae
|
Coram: SHIVUTE
CJ, MARITZ JA et MAINGA JA
Heard: 11 April
2012
Delivered: 30
November 2012
_________________________________________________________________
APPEAL JUDGMENT
_________________________________________________________________
MAINGA JA(SHIVUTE CJ AND MARITZ JA
CONCURRING)
This is an appeal with
the leave of this Court granted after the Court below had refused
the appellants leave to appeal.
On 20 December 2007 at
about 01h25 the appellants arrived at a roadblock outside
Keetmanshoop in a Toyota Land Cruiser with registration number
KEA-88-61. It was driven by the 2nd appellant and the
1stappellant was seated as a passenger. The vehicle was
stopped by the members of the Drug Law Enforcement Unit of the
Police Force. Sergeant van Wyk, with the permission of the
appellants, conducted a search of the vehicle in their presence and,
in theprocess he got the distinct smell of cocaine. He continued
with the search and found a false compartment concealed underneath
the vehicle. Hidden inside the compartment he found62parcelswrapped
in brown insulation cello tape containing a substance which he
thought was cocaine.The appellants were arrested and they, as well
as the Toyota Land Cruiser were taken to the Keetmanshoop Police
Station. The parcelswere forwarded to the National Forensic Science
Institute (NFSI) for analysis. They were weighed by the NFSI and
found to contain 30,1kg cocaine (synthesized crack) with a street
value of N$15 500 000.
On 27 September 2008
Chief Inspector de Klerk received information which caused him to
travel to Hardap Prison where the two appellants were kept in
custody at the time. He picked up the two appellants and took them
to Keetmanshoop Police Station. In the presence of the appellants
the garage where the Toyota Land Cruiser was being kept under lock
and key was opened. The spare wheel was removed and taken to the
Quality Tyre Workshop where the tyre was detached from the rim.
Inside the tyre were 14parcelsof a substance which he thought
wascocaine wrapped in brown insulation cello tape. These parcelswere
also forwarded to the NFSI where they were analysed and found to
contain9.25 kg hydrochloride and cocaine (synthesized crack) with a
street value of N$4 625 000.
As a result of these
discoveries the appellants appeared before Parker J in the High
Court on three substantive counts of dealing in, alternatively,
possession of dangerous dependence producing drugs in contravention
of s2(c) or (d), read with ss 1, 2(i) and/or 2(ii), 8, 10, 14 and
Part II of the Schedule of Act 41 of 1971, (the Act) as amended.
Count 2 relates to the
62 parcels of cocaine found on 20 December 2007; count 3 to the
14parcelsof cocaine which were retrieved from the spare wheel on 27
September 2008 and count 1 is, in essence, a combination of the
allegations in counts 1 and 2. The allegations in all three counts
and their respective alternatives are identical, the differences
being only in dates, weights and values.
In count 1 it was
alleged that during the period 20 December 2007 to 30 September 2008
at Keetmanshoop appellants dealt in, alternatively were found in
possession of dangerous dependence producing drugs, to wit 39,35 kg
of cocaine, except admixtures containing not more than 0,1% cocaine
calculated as cocaine alkaloid, with street value of N$20 125 000.
In count 2 it was alleged that on 20 December 2007 they dealt in,
alternatively were found in possession of cocaine alkaloid weighing
30,1 kg with a street value of N$15 500 000whereas, in count 3 the
allegation was that on 30 September 2008 they dealt in,
alternatively were found in possession of cocaine alkaloid weighing
9,25 kg with a street value of N$4 625 000.
Appellants pleaded not
guilty to all the main and alternative counts. At the end of the
State case,after consideration of an application in terms of s 174
of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), they were
acquitted and discharged on counts 1 and 3. They were eventually
convicted at the end of the trial on count 2 and each was sentenced
to 10 years imprisonment of which 4 years was conditionally
suspended for 5 years.The 31,1 kg cocaine and the Toyota Land
Cruiser with registration number KEA-88-61 were ordered forfeited to
the State.
The appeal lies against
the appellants’ convictions only. There are eighteen grounds
of appeal, the majority of which do not directly relate to the
judgment on conviction handed down on 19 January 2011 but to the
Court’s ruling on the application for discharge brought by the
appellants in terms of s 174 of the Criminal Procedure Act, 1977.
I interpose here to
remark in passing that, if there is a party that could have been
aggrieved by the s 174 ruling, it should have been the respondent. I
must confess to some difficulty in understanding why the appellants
were acquitted and discharged on count 3. The evidence on that score
is that, after the appellants had been arrested, the vehicle was
taken to the Police Station at Keetmanshoop where it was kept under
lock and key at one of the garages at the station. There is no
evidence that the fourteen parcels eventually retrieved from its
spare wheel in the presence of the accused were or could have been
’planted’. More so, if regard is being had to the fact
that they were wrapped in a similar fashion as the sixty-two parcels
found earlier in the hidden compartment.The fact that the cocaine
constituting that charge was retrieved nine months later from the
Toyota Land Cruiser does not detract from the prima facie inference
that the appellants had been in possession of the cocaine at all
relevant times before their arrest on 20 December 2007. However, in
the absence of a cross-appeal, it is not necessary to deal with their
discharge any further.
Appellants’
counsel concedes that some of the grounds of appeal overlap or
essentially deal with the same issues. In the process even the most
insignificant matters were seized upon in an attempt to bolster the
substance of the appeal. It seems to me that appellants’
counsel trawled through both the s 174 ruling and the judgment
appealed against in the hope of finding an error which may find
favour with the Court in the appeal. Such an approach is not in the
best interest of justice because it tends to waste the time of the
parties and the Court. See Hindjou v The Government of the
Republic of Namibia 1997 NR 112 (SC) at115B-D.
The judgment of the
Court below was concise. First, it restated the conclusion which it
arrived at in the s 174 ruling based on an English case of R v
Lewis (G.E.L.) 1988 87 Cr. App. R. 270 (Court of Appeal) at 472,
namely,
‘. . . that if a person is in
possession of a motor vehicle or other means of conveyance (it)
leads to a strong inference that the person is in possession of its
contents, for a person takes over a motor vehicle or other means of
conveyance at risk as to its contents being unlawful, if such a
person does not immediately examine it’.
It then proceeded to
consider the version of the appellants that one Guilhermino had asked
the 1stappellant to take the vehicle to South Africa.The
Court referred to him as ‘a mysterious person’because the
vehicle was actually registered in the name of another person who had
made a declaration to the effect that the 2ndappellant was
authorised to drive the Toyota Land Cruiser for private use.
Thereafter, it proceeded to comment on a belated assertion advanced
for the first time in argument at the conclusion of the trial on the
merits that s 10(1)(e) of the Act was unconstitutional. The
Court found that, without citing the Minister responsible for the
administration of the Act and Attorney-General, the point was
unprocedurally raised. The Court nevertheless stated that it need not
rely on the evidential presumptions in s 10 of the Act because the
evidence was overwhelming that the appellants were jointly in
possession of the vehicle; that the State had proved its case beyond
reasonable doubt and that the appellants had dealt in the drugs found
therein.
The grounds of appeal
which would be relevant to the judgment appealed against are those
mentioned in paragraphs 1,2,3,4,6,13,16,17 and 18 of the Notice of
Appeal. Grounds of appeal 1–4 overlap and so do 16–18 as
they deal with essentially the same issues.The grounds of appeal can
thus be summarised as follows:
The Court below erred
when it held that:
a driver who comes in
possession of a vehicle has a duty to inspect the vehicleto ensure
that he or she will not convey any illegal substances in it, such
duty not being part of the Namibian law;
the appellants acted in
common purpose;
Guilhermino was a
‘mysterious person’and, as a result, the evidence of the
appellants was rendered false beyond reasonable doubt whereas, the
evidence established that the vehicle in question was registered in
the name of Guilhermino Beatriz;
The Court below erred
when it applied the presumptions in s 10(1)(d), (10)(e)
and 10(2) of the Act despite the fact that such presumptions are
unconstitutional and illogical.
I turn first to the
constitutional challenge to the presumptions in s 10(1)(d),
(10)(e) and 10(2) and the assertion that the Court below
relied on them.
Section 10(1)(d),
(1)(e) and 10(2) reads:
‘10 Presumptions
(a) . . .
(b) . . .
(c) . . .
(d) If in any prosecution for an
offence under section 2(a) and (c) or section 3(a) it is proved that
the accused conveyed any dependence-producing drug or any plant from
which such drug could be manufactured, it shall be presumed that the
accused dealt in such drug, unless the contrary is proved.
(e) If in any prosecution for an
offence under section 2(a) or (c) or section 3(a), it is proved that
the accused was upon or in charge of or that he accompanied any
vehicle, vessel or animal on or in which any dependence-producing
drug or any plant from which such drug could be manufactured, was
found, it shall be presumed that the accused dealt in such drug or
plant, unless the contrary is proved.
(2) If in any prosecution for an
offence under this Act it is proved that a sample which was taken of
anything to which such offence refers, was or contained any
dependence-producing drug or that such drug could be manufactured
therefrom, such thing shall be deemed to possess the same properties
as such sample, unless the contrary is proved.’
The Court below declined
to entertain the challenge to the constitutionality of s 10(1)(e)
of the Actwhen it was raised for the reason that the Minister
responsible for administering the Act was not cited and the
Attorney-General was not heard. In that regard the Court below
stated:
‘The Honourable Minister
responsible for administering the Act has not been cited. It would be
a glaring affront to the most fundamental jurisprudential touchstone
of natural justice that has stood the test to times for ages out of
number, that it, the common law rule of audi alteram partem of
natural justice, for this Court to consider the constitutional
challenges, as Mr McNally appears urge the Court to do, when the
responsible Honourable Minister, who would be expected to carry out
any order that the Court might make has not been cited, and, above
all, the Honourable Attorney General has not been heard.’
These obiter remarks of
the trial Court cannot be endorsed without qualification. The
validity of legal provisions which the Prosecution may seek to rely
on or enforce against an accused person in criminal proceedings may
be challenged collaterally in those proceedings. Whether it would be
permissible or appropriate for acourt seized with a criminal matter
to also determine the merits of the collateral challenge in the same
proceedings will depend on a number of circumstances such as the
nature of the challenge, jurisdictional requirements, procedural
constraints, the rights of persons who are not parties to the
proceedings and the interests of fairness and the administration of
justice – to mention a few. If, for example, the court in
question lacks jurisdiction to determine the collateral issue, the
issue must be raised and determined in a court of competent
jurisdiction.Even
if a collateral challenge is raised in criminal proceedings in a
court of competent jurisdiction, it may not always be appropriate or
permissible to determine the challenge in the course of such
proceedings. This, for example, may be the case when persons with a
direct and substantial interest in the outcome of the collateral
challenge are not parties to the criminal proceedings; if evidence
will be required to determine the validity of the legal provision
being challenged collaterally and whether the issue at hand is so
complex and important that it should be determined by a Full Bench –
or even by this Court in terms of s. 15 of the Supreme Court Act,
1990 – rather than by a single judge. In such instances, the
courtmay direct that the prosecution be stayed for the time being
until the collateral issue has been competently determinedunless, in
the exercise of its judicial discretion, the court considers the
issue to be so patently without merit or a procedurally abusive ploy
intended to delay the prosecution. On the other hand, there may be
instances where the collateral issue is purely legal in nature and so
easily determinable that the court may deem it appropriate to decide
it in the course of the criminal proceedings. In those instances, it
may be necessary for the court to invite amicus
curiae
contributions in argument from persons with a legal interest in the
matter who are not parties to the proceedings.
When the matter was
called in this Court, the same issue arose, albeit on an expanded
basis and, being before a different forum,in a different context.It
turned on whether the constitutionality of s 10(1)(e)of
the Act was properly before this Court, given the late stage and
manner in which it was raised in the Court below and whether the
constitutionality of ss 10(1)(d)
and (2) of the Act could be raised for the first time on appeal when
the Court below had not had the opportunity to pronounce itself on
the issue and, if so, whether it was necessary for the Court to
decide those issues in the circumstances of this case. I must be
quick to say that, upon the direction of this Court, the
Attorney-General
was notified by the registrar of the challenges and, as a result the
Government Attorney subsequently briefedsenior and junior counsel to
appear amicus
curiaeon
behalf of the Attorney-General.At
the hearing of the appeal the question was posed to Mr Hinda who
appearedon behalf of the appellants. After further reflection on the
considerations and authorities referred to earlier, Mr Hinda
conceded that the issue was not properly before Courtand that the
following remarks made inthe case of Gurirab
v Government of the Republic of Namibia and Others,
on which the appellants’ initially relied,were
distinguishable:
’In this regard Mr Obbes had
argued, correctly in my opinion, that a litigant is entitled to
invoke any provision of the Constitution during litigation, at any
time during litigation. But this of course is subject to the
safeguards mentioned in the Namibian High Court decision of Vaatz
v Law Society of Namibia 1990 NR 332 (HC) at 336,1991 (3) SA 563
(Nm)) at 567E-F (SA).
In that decision Levy J, in his
judgment, concurred in by Strydom AJP, said:
‘A litigant can invoke any
provision of his country’s constitution at any time during the
litigation. Should the other party be taken by surprise, the Court
will decide whether or not such party is entitled to a postponement
and whether there should be a special order as to costs.'"
The observation should be
understood in the context of a civil case it was made where the
procedural rules are different and litigants may join other parties
to the proceedings. It would be absurd, for example, to raise the
issue under consideration in a criminal trial at the sentence stage.
In this case where evidence may well have been be required to
determine the issue and it may have resulted in s 10(1)(d),
(10)(1)(e) and 10(2) being declared unconstitutional it could not be
raised for the first time per chance in counsel’s concluding
arguments on conviction in the Court below. It could have been raised
by way of a substantive application in which all interested parties
could have been cited and which would have allowed for the
presentation of all evidential material required to properly
ventilate the issue.
The procedure adopted by
the appellants to raise the constitutionality of two more
presumptive provisions in this Court without the benefit of the
views of the Court below has the effect of obliging this Court to
sit effectively at first and final instance on the issue. Needless
to say this Court is the highest Court in the land and it is not
generally desirable for a Court to sit as a Court of first and last
instance.
In Namib
Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and
Others
2011(2) 469 at 474D–475A–E, this Court declined to
entertain an issue of standing in environmental cases on which the
High Court had not made any ruling. In Bruce
and Another v Fleecytex Johannesburg CC and Others1998(2)
SA 1143 (CC) at 1148D–E,the Constitutional Court of South
Africa albeit in a different context stated as follows:
‘[8] It is, moreover, not
ordinarily in the interests of justice for a court to sit as a court
of first and last instance, in which matters are decided without
there being any possibility of appealing against the decision given.
Experience shows that decisions are more likely to be correct if more
than one court has been required to consider the issues raised. In
such circumstances the losing party has an opportunity of challenging
the reasoning on which the first judgment is based, and of
reconsidering and refining arguments previously raised in the light
of such judgment.’
There are exceptions to
the rule, such as the obligation of this Court under s 79(2) of the
Constitution of Namibia to hear and determine constitutional issues
that may be referred to it by the Attorney-General.In
such instances, the rules of court specifically provide for
procedures to ventilate the issues at hand and to allow for an
informed adjudication.
It is different, however, when constitutional issues which require
evidence are raised for the first time on appeal. In the absence of
an application to receive further evidence, appeal procedures do not
allow for the consideration of evidence outside the four corners of
the proceedings in the Court below. That evidence does not in any
way deal with the constitutionality of the sections in question. In
the circumstances, it would not be appropriate in the circumstances
of this case for this Court to decide the constitutionality of the
provisions attacked on appeal for the first time.
The appellants’
failure to raise the constitutionality of s 10(1)(e)
properly
and timeously in the High Court also inhibits their ability to raise
it now in this Court for the same reasons.
Without derogating from the observation in Gurirab
v Government of the Republic of Namibia,
above, it should be as a matter of a general principle be required
that issues of the nature under consideration be raised in courts
from which the appeal arises before it can be entertained in this
Court. The views of the Court below are of particular significance
and value to us.This
Court being a Court of ultimate resort in all cases, will entertain
proceedings as a Court of both first and final instance ‘only
when it is required in the interest of justice.’ And only in
circumstances where it will be appropriate to do so. The concession
by Mr Hinda was therefore properly made.
I now turn to consider
the merits of the matter. Under the circumstances,my approach in
deciding upon the appeal is to consider whether,
on the evidence recorded unaffected by the alleged irregularities
arising out of the trial Judge’s misdirections,
there is proof of the appellants'guilt beyond reasonable doubt.The
appellants’ principal defence in the Court below was that they
did not have the required mens
reato
possess or deal ina dangerous dependence producing drug. But,
before counsel turned to develop the real issues on which this
appeal is anchored in argument, he spent some time in argument on
the irregularities that the appellants claim have been committed by
the Court below, particularly, the phraseology which the learned
Judge employed in the course of his ruling in the s 174 application.
As part of his reasoning,
the trial Judge stated:
‘The State has proved beyond
reasonable doubt that the accused persons were in prima facie
joint possession of the aforementioned motor vehicle and the 30,1 kg
of cocaine that were found in or on the motor vehicle on 20 December
2007.From the totality of evidence I have no doubt in my mind that
the substances is cocaine as referred to in Part II of the Schedule
to Act 41 of 1971 and also that its weight is 30,1 kg and its street
value was N$15 500 000,00.’
Appellants’
counsel submitted that the findings were both unreasonable and
irregular and resulted in the appellants not having had a fair
trial. He further submitted that by holding as it did, the Court
below in effect found that the State had discharged the eventualonus
upon it already at the end of the State’s case; that by making
such a finding before the appellants had the opportunity to testify
in their defence, the Court left them with an impossible hurdle to
surmount;that the Court applied the incorrect standard of proof
required at the close of the State’s case and that it did not
distinguish between a burden of proof and a duty to rebut. On the
Court’s findingsregarding the weight and street value of the
substance, it was submitted that the Court failed to distinguish
between fact and conjecture and, therefore, erred on the facts and
committed an irregularity. It was further submitted that the learned
Judge had no grounds for such a finding and further that the Judge
erred in making credibility findings as regards the evidence by the
State at the conclusion of the State’s case when it is trite
law that credibility plays but a limited role at that stage of the
proceedings.
Legitimate as some of
the criticism about the formulation of the reasons for the ruling in
terms of s 174 of the Court below might be, for the purposes of this
appeal, the criticism takes the appellants’ case no further
than that. It seems to me that,
what the Court below sought to express in so many words wasthe
measure of its satisfaction that, on the evidence, the State had
established a prima
facie
case which required an answer from the appellants. The trial Court
maywell have muddled its formulation of the test for a discharge,
but a insubstantial deviation from the perfect does not by that
reason alone result in the accused not being afforded a fair
trial.‘At
the heart of the right to a fair criminal trial and what infuses its
purposes, is for justice to be done and also to be seen to be
done.’Even
if I were to accept that the trial Judge erred in his formulation of
the test to be applied when assessing the sufficiency of evidence
for purposes of a s 174application at the close of the Prosecution’s
case, the error - which, in effect, set the evidential bar higher
for the State than that required by law – did not prejudice
the appellants. As will be apparent from the discussion of the
merits which follows, the State had made out a strong primafacie
case
against them and it would not have been appropriate to grant their
application for a discharge on Count 2.Notwithstanding the
unfortunate formulation, I am not persuaded that it constituted an
irregularity which vitiated the proceedings and precludes
consideration of the merits in the appeal.
It is common cause
between the parties that appellants were the occupants of the Toyota
Land Cruiser with registration number KEA-88-61when they were
stopped at a roadblock outside Keetmanshoop. It is also common cause
that their vehicle was searched and 62blocks called parcels
containing cocaine were retrieved from a false compartment under the
vehicle, which when weighed on an assized scale its mass, was
established at 30,1
kg. This evidence,
on the application of basic legal principles and common sense
without resort to any presumption in s 10 of the Act,
proves that the appellants had physical custody and knowledge of the
cocaine. There is no real dispute that cocaine is a prohibited
substance in terms of the Act. The evidence,
given the substantial quantity and the value thereof,
including the locality where the appellants were intercepted,
justifies an irresistible inference that the cocaine in their
custody was not for personal consumption but for dealing purposes.
From the appellants own versions regarding their respective
employments, they could not have afforded to acquire cocaine of such
substantial quantity and value for their personal consumption.The
point where they were stopped on their way to South Africais more
than a 1000 kilometres away from –and in the opposite
direction of - their respective homes.
Moreover, on their own evidence, their sojourn to South Africa via
Namibia was intended to be a very brief one and, they would have
used a different means of transport for their return journey. In
those circumstances, they could not possibly have possessed the
cocaine for personal consumption or use. This is so when regard is
had both to the ordinary meaning of ‘deal in’ and its
extended meaning as defined in the Act. The conventional meaning of
‘deal in’ is to buy and sell, but it may denote a wider
meaning of ‘doing business’ or performing a transaction
of a commercial nature.
The Act defines ‘deal
in’, in relation to dependence producing drugs or plant from
which such drugs can be manufactured, as including performing any
act in connection with the collection, importation, supply,
transhipment, administration, exportation, cultivation, sale,
manufacture, transmission or prescription thereof. There is no doubt
that, by bringing the cocaine from Angola across the border into
Namibia, they, in effect, imported it to Namibia - albeit with the
intention of exporting it again to South Africa.
In
S v Sixaxeni
Marais J (as he then was) stated:
‘The large quantity of dagga
which he had in his possession, coupled with his demonstrably false
denial of possession and the absence of any plausible alternative
suggestion from him as to why it was in his possession, fully justify
the inference that he was engaged in dealing in dagga within the
meaning of the relevant statute. Indeed, he conceded himself in
cross-examination that anyone possessing so large a quantity of dagga
would obviously intend to sell it. The fact that the magistrate
relied upon the presumption in convicting the appellant is immaterial
to the result. The evidence proved beyond reasonable doubt that the
appellant was in possession of this large quantity of dagga, far more
than reasonably have been intended for his own use, and that his
denial that he was in possession of it was false. Even without resort
to the statutory presumption, the inference that he intended to deal
in it was the only reasonable inference which could have been drawn
in the circumstances.’
The Constitutional Court
of South Africa referred with approval to Marais J’s
observation above in S
v Bhulwana, S v Gwadiso
when O’Regan J stated:
’If an accused is found to have
been in possession of a large quantity of dagga, it might, depending
on all the circumstances and in the absence of an explanation giving
rise to a reasonable doubt, be sufficient circumstantial evidence of
dealing and a justification for the imposition of a higher penalty.’
(See also S v Mathe 1998(2) (OPD) at 229d-g).
In S v Sixaxeni, the
dagga involved weighed 64,4 kg, in S v Bhulwana, S v Gwadiso,
the dagga weighed 850 g and 444,7 g respectively and in S v
Mathe, the dagga weighed 133,9 kg.
But counsel for the
appellants submitted that the State failed to prove that the
appellants either had the corpus of the cocaine in question
or the animus to be in possession of the same. It is
contended that, while the appellants had control of the vehicle,
they had no knowledge that the cocaine was within their physical
detention or control. Counsel made reference to numerous cases to
support the submission, inter alia,S v Adams 1986(4) 882 (AD)
(possession of dangerous weapon); S v Brick 1973(2) SA 571
(AD) (possession of indecent or obscene photographic matter); Rex
v Keswa 1949(3) SA 1 (OPD) (possession of intoxicating liquor);
R v Binns and Another 1961(2) SA 104 (TPD) (possession of
intoxicating liquor); S v Smith, supra,(unlawful possession
and transportation of explosives and possession of implements of
house-breaking).
The principle gleaned
from the above cases which the appellants seek to rely on is
abridged in S v Smith, supra, at 171D–E as follows:
‘The concepts of custody or
possession comprise two main elements: they are, firstly, the
physical element of corpus, i.e. physical custody or control
over the res in question, exercised either mediately or
immediately, and the mental element of animus, i.e. the
intention to exercise control over the thing.’
The application of this
principle in our law does not support the reliance of the Court
below on the English Court of Appeal judgment in Lewis’
case that, ‘a person takes over a motor vehicle or other means
of conveyance at risk as to its contents being unlawful, if such a
person does not immediately examine i’..
. ' It is now settled in our law, that mens
rea is
an essential ingredient of the offence created by s 2(1)(a)
of the
Act in the sense that an accused person cannot be convicted of
dealing in any dependence-producing drug unless he or she knows that
the substance in which he or she is dealingis a prohibited drug
.
The version of the
appellants as summarised by their counsel in the Court below is
recorded verbatim as follows:
‘Accused one was approached by a
certain Guilhermino with a request to take his vehicle to South
Africa. Accused 1 did not have a so-called SADC driver’s
licence and he accordingly, approached accused 2 who he knew had such
a licence. Guilhermino then prepared the documents in respect of the
car, they agreed upon a price, and after he gave them money for
expenses, they left. They did not know what was concealed underneath
the car, and neither of them made any inspection of the undercarriage
of the car. The first time they saw the contents of the concealed
apartment was when Sergeant Van Wyk opened it at the roadblock
outside of Keetmanshoop.’
Counsel for the
appellants argued that there should have been evidence that the
appellants had either placed the substance in the secret compartment
themselves or had known that it was hidden there. In casu, he
submitted, there was no such evidence and that none can be inferred.
He further submitted that the versions of the appellants are
corroborated by the documents found in the vehicle, namely, the
identity document of the owner of the vehicle, the registration
documents in respect of the specific vehicle and the document that
authorised the 2ndappellant to drive the vehicle, the
validity of which were never disputed.
That the vehicle was
ownedby the appellants was not the State’s case as presented
to the trial Judge, nor found by him to be the position. I shall
assume in favour of the appellants that the vehicle belonged to Ms
Guilhermina Beatriz Peyavali Vieria Clemente Lubamba and that Mr
Guilhermino, who allegedly asked them to take the vehicle to South
Africa, was her husband as testified to by the 1stappellant.
But the declaration madeunder oath by the alleged owner, Ms
Guilhermina, is not entirely consistent with the version of the
appellants that Mr Guilhermino had asked them to take the vehicle to
South Africa where he wanted to spend the holiday. The declaration
states that ‘Guilhermina Beatriz Peyavali Vieria Clemente
Lubamba. . . hereby declare that Josue Manuel Antonio, (2nd
appellant) is authorised to drive a car of the make of Toyota Land
Cruiser, of darkgrey colour, licence registration number KEA-88-61,
for private use’(my emphasis). It must have occurred to
the appellants when they received that document, on their version,
that they were not authorised to drive it for private use but
rather, that they had to drive it to South Africa on behalf of the
owner or her husband.One would have expected them to require that
the document should reflect the true purpose of the journey. When
they accepted the declaration as it was received in evidence, the
authorisation to be gleaned from its express wording is that they
were using the vehicle for private purposes. In actual fact, that
declaration, notwithstanding their denials, is consistent with the
version theygave in response to Sergeant van Wyk’s enquiry,
i.e. that they were going to Upington to visit their brother. Upon
that reply - which suggested that they were indeed using the vehicle
for private purposes - Sergeant van Wyk asked them to pull it off
the road.They obliged, whereafter he informed them that he was going
to search for illegal drugs, firearms and anything which might be
illegally conveyed on or in it. Their nervous reaction led him to
conclude that there was something wrong.
This brings me to the
presence of the Sellotape, the pop rivet gun and the pop rivets
found inside the vehicle. It is undisputed that the pop rivets
holding the panels of the false compartment and the Sellotape which
was used to wrap up the cocaine parcels were identical to the ones
in the vehicle. The only inference to be drawn is that they were
part of the material and tools used in the construction of the
hidden compartment and to pack and stash the cocaine. It is quite
probable, in my view, that they were kept in the vehiclefor running
repairs in case the false compartment would have been damaged due to
the bad condition of the roadsin Angola - as testified to by the
appellants. Appellants testified that they found the items in the
vehicle. In my view, be it on their version, they must have known or
been informed of the purpose of the items, from which the inference
logically follows that they also knew about the cocaine. That
inference is supported by the presence of the two partially used
bottles of deodorant and the perfumed Auto Silicon which Sergeant
van Wyk testified had been found in the passenger compartment of the
vehicle. They were clearly used to ‘damp[en] the smell’
of the cocaine. The two bottles of deodorant were located within
easy reach in the back pocket of the driver’s and passenger’s
seats while the perfumed Auto Silicon was actually at handbetween
the driver and passenger’s seat.
The 1stappellant
testified that from the time he had received the vehicle up to the
time that they were arrested, he did not get any‘funny smell’.
Both Sergeant van Wyk and Chief Inspector de Klerk testified that
the distinctive smell of cocaine in the cabin of the vehicle was
overwhelming. Mr McNally, who appeared on behalf of the appellants
in the Court below, asked Mr Shomeya, a Senior Forensic Analyst at
the NFSI, during cross-examination what the first thing that would
strike him should he come into contact with cocaine would be? Mr
Shomeya’s response was 'the smell’. The trial Judge also
remarked during the proceedings on the strong smell of the cocaine
entered as an exhibit in Court. The claim by the appellants,
particularly the 1stappellant who worked for a
pharmaceutical business,that they did not smell the cocaine inside
the vehicle was clearly untruthful under the circumstances. The
smell of the cocaine filled a largecourt room and yet appellants
claimed that they could not smell it in the vehiclenotwithstanding
the scorching heat of Angola and Namibia during that time of the
year and the fact that they had the vehicle in their possession for
more than a week. The handy presence of deodorant and perfumed Auto
Silicon belies their claim of ignorance. Moreover, common sense
dictates that, if they had no knowledge of the cocaine, the smell
should have caused them to investigate the source thereof. They did
not. Having regard to the testimony of the overwhelming smell, I am
driven to the conclusion that the appellants, notwithstanding their
protests to the contrary, must have smelledthe substance but did not
investigate it any further because they knew exactly where it came
and what was causing it .
There are numerous other
pieces of evidence that tends to show that appellants had knowledge
of the cocaine such as, for example, the reaction of the appellants
when Sergeant van Wyk took a torch with the intention of inspecting
underneath the vehicle.The 2ndappellant immediately placed
his hands over his head. What is crucial about that reaction is that,
the 2ndappellant did that before Sergeant van Wyk
discovered the false compartment. The 1stappellant was
asked by the Court during cross-examination whether that reaction
connoted anything ’in Angola’. His reply was that it is
done ‘when you are surprised by something, shocked’.
There was no reason for the 2ndappellant to be shocked at
the mere indication that the undercarriage of the vehicle was going
to be inspected unless he knew that it is likely to lead to the
discovery of the false compartment containing the cocaine. That he
feared discovery is an inescapable inference.Another example is their
reaction when Chief Inspector de Klerk took them from Hardap Prison
to Keetmanshoop Police Station and informed them of the cocaine
hidden in the spare wheel. The appellants immediately informed him
that they were not responsible for that cocaine, because the
vehicle had been in police custody for several months.
I now turn to consider
other issues that were raised, namely, the challenge to the finding
of the trial Court that it was satisfied beyond reasonable doubt
that the substance found in the hidden compartment of the vehicle
was cocaine with a street value N$15500 000. The appellants
submitted that Mr Shomeya analysed only four of the 62 parcelsfor
purposes of determining the percentage of the cocaine and that the
Court acted unreasonably and committed an irregularity when it
concluded on the basis of his evidence that the cocaine weighed 30.1
kg - especially in view of the fact that Mr Shomeya conceded that
the four parcels which he had weighed,did not contain 100% cocaine,
but cocaine in the following percentages 46%, 42,4%, 52,2% and
39,2%. Counsel pointed out that he further conceded that the cocaine
had been combined with some other substance(s), the nature and
weight of which compared to that of the cocaine had not been
determined. The preliminary tests conducted were positive and
indicated that all the parcels contained cocaine. The correctness of
these tests were subsequently supported by the sampled analysis of
the four parcels done by Mr Shomeya. The value of the cocaine is
irrelevant for purposes of conviction. What the State sought to
prove is that the appellants were dealing in cocaine. Whether Mr
Shomeya failed to determine the percentage of the other 58 parcels
is not material, given the provisions of s 10(2) of the Act quoted
earlier in this judgement: in the absence of evidence to the
contrary, the other samples are deemed to possess the same
properties as the analysed samples. On that basis the Court below
was entitled to conclude that the substance in the other 58 parcels
contained between 39,2% and 52,2% cocaine.
An argument was made
that the trial Court was wrong to have found that the appellants
were jointly responsible for the cocaine. That finding cannot be
faulted, as I have already stated, they both had knowledge of the
presence of the cocaine in the vehicle. The 2ndappellant
was actually the person who had been authorised to drive the vehicle
and their denials that they could not smell the cocaine which was so
overwhelming to the witnesses who came into contact with it, must be
rejected as false beyond reasonable doubt.
It was also argued that
the trial Judge relied on the presumptions in s10 to convict the
appellants. The purpose of the presumption in s 10(1)(e)
is to
assist the State in securing convictions by partly alleviating its
burden of proof in respect of certain elements of the offence. The
purpose of the subsection is to cast an onus on the occupants of a
vehicle in or on which a dependence-producing drug was found to
establish that they had no knowledge of the presence thereof on or
in the vehicle. That the assistance afforded is partial is clear,
for in each case certain factual premises have first to be
established by the State with requisite degree of proof before the
particular presumption can be invoked. Each provision . . .starts by
saying: 'If in any prosecution for an offence . . . it is proved
that . . . ’. The different factual premises for the
presumptions to apply are then prescribed. The words ‘it is
proved’ in the presumptions ordinarily means that proof by
adducing the necessary evidence in the usual way. In other words,
the words ought to be restrictively interpreted as meaning actual
and not presumptive proof.In
this case the State had to actually prove that the substance found
in the false compartment was cocaine and that it was found in the
possession of the appellants. The evidence of the smell, the
reactions of the appellants at the discovery of the cocaine, the
Sellotape, the pop rivet gun, the rivets and the perfumed spraysare
all facts relevant to prove that appellants knew about the presence
of the cocaine in the vehicle. The place where they were arrested,
the direction they were travelling in and the quantity of the
cocaine found on the vehicle are matters that go to show thatthey
were dealing in cocaine. All these factors, when considered in the
context of all the other evidence, make it unnecessary for the Court
to rely on any of the presumptions contemplated in s 10(1) of the
Act when considering its verdict.
Appellants’
versions are fraught with difficulties. They could not explain why
Guilhermino could not drive the vehicle himself to South Africa. Nor
could they explain who would drive back the vehicle to Angola after
Guilhermino had used it during his holiday in South Africa. More
still, they had no single personal particular of the person to whom
they had to deliver the vehicle. The 1st appellant’s
explanation upon a question by counsel for the State was that
Guilhermino had informed him that, once they had arrived in
Upington, he should call him. The 1st appellant had
visited Brazil, Nigeria, Democratic Republic of Congo, Congo
Brazzaville and South Africa before he undertook this journey and
should have known that a visitor who enters another country is
required to furnish the address where he or she is going to reside
in that country to the immigration authority at the port of entry.
It is unlikely that appellants would have proceeded to a foreign
country without the address where the vehicle was to be delivered.
On their own version they were hired for reward to take the vehicle
to Upington. There could be no reason why their employer would have
withheld the identity of the person and address where the vehicle
was to be delivered. Their version is further compounded with much
difficulty if regard is had to the fourteen parcels secreted in the
spare wheel. If as they said Guilhermino asked them to take his
vehicle to South Africa and he concealed the cocaine in the tyre
without informing them, surely he must have foreseen, given the bad
conditions of the roads in Angola, that should they get a puncture,
they would find the cocaine in the tyre. The inference again is
inescapable that whether their version is correct, or not, they knew
about the presence of the cocaine in the vehicle and the tyre.
It appears that all the
State witnesses who testified did so with solemn and sincere
endeavour to be as frank and accurate as possible. There is no
reason why Sergeant van Wyk would have lied or been mistaken that
they told him at the roadblock that they were visiting a brother at
school in Upington; nor could he falsely accuse the appellants of
their reactions when he took a torch to check underneath the
vehicle. That goes for the smell that led to the discovery of the
false compartment which contained the parcels of cocaine.
In all circumstances,
the evidence as a whole as recorded established the appellants’
guilt beyond reasonable doubt. The appellants’ version is
improbable, not possibly true on the proven facts and falls to be
rejected as false. The appellants were correctly convicted.
I therefore make the
following order:
The appealsare dismissed.
___________________
MAINGA JA
__________________
SHIVUTE CJ
___________________
MARITZ JA
APPEARANCES
APPELLANTS:
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GS
Hinda (with him P McNally)
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Instructed
byLorentzAngula Inc.
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FIRST
RESPONDENT:
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C
Moyo
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Instructed
bythe Prosecutor-General
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AMICUS
CURIAE:
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JJ
Gauntlett SC (with him F B Pelser)
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Instructed
by the Government Attorney.
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