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IN THE HIGH COURT OF SOUTH AFRICA

WITWATERSRAND LOCAL DIVISION

Case No. CA 156/06

In the matter of:

PHILDA NKOSI Appellant

vs

THE STATE Respondent

JUDGMENT

Horwitz AJ: The appellant and her father were charged with contravening section 5(b), alternatively, section 4(b) of Act 140 of 1992. The essence of the charges was that they had dealt in, alternatively possessed what is commonly known as mandrax tablets, an undesirable dependence producing substance as defined in that Act. They were also charged with corruption (or bribery, as it used to be called prior to the enactment of Act 12 of 2004) the allegation having been that they offered a police official R15000 not to proceed with the drug charge against them but the magistrate acquitted them on this charge.

As regards the drug charge, they were both convicted on the main count and each of them was sentenced to 15 years’ imprisonment. They were both granted leave to appeal but this court has been informed that the appellant’s father has since passed away. The appellant now appeals against both conviction and sentence.

I do not propose analysing the evidence in detail. No good purpose would be served in my doing so. All the witnesses were members of the South African Police and none of the evidence which they gave directly implicated the appellant in the commission of the offence. What had happened was that the police had received a report, obviously to do with dealing in mandrax, and in consequence they visited the father’s home. That was some time during the morning of 23 March 2005. They searched the premises and found one outside room completely fitted out as a drug manufacturing operation. The father was not home at the time; he was apparently having some matrimonial problems so, according to him, and no countervailing evidence was tendered on this score, he was not even living there. The appellant apparently does live in the house and the police found her there. There is some dispute about whether she was awake or asleep at the time. (She works as a security guard and, according to her, had returned from having worked a night shift.) It is not important which version is correct. The essence of the case against the appellant rested on circumstantial evidence. I will present an outline of the circumstantial evidence but it appears to me that what the magistrate relied on heavily was his finding that she was an untruthful witness. Now whilst I accept the magistrate’s finding in respect of credibility, I have the following difficulty with it, namely, that if one then takes the State’s version on the issues on which the appellant’s version was rejected and adds it to the undisputed evidence that there was a drug-manufacturing plant at the house and that the appellant resided there, it does not add up to proof beyond reasonable doubt that the appellant had anything to do with the manufacture of the drugs or that she even possessed any of them. The question, then, is whether the plain fact that she was found to be an untruthful witness can be added to the uncontroverted evidence that mandrax tablets were being manufactured on the premises where the appellant resided and from that conclude that she was guilty of the offence charged?

The main witness for the prosecution was a Captain Chili. I will accept that he was a reliable and honest witness and that the appellant and her father were not. But where does that take one? In an appropriate case, the fact that an accused person may have lied can strengthen an otherwise weak case for the prosecution but each case must be treated on its own merits. People lie for many reasons. If they choose to do so, they bear the risk that the court may draw the extreme inference of guilt against them. But a finding of guilty is not the punishment for having told a lie. The approach to what appears to be untruthful evidence must be tempered with logic and reality. In the present case, the appellant might have lied because she perceived her presence at, or the fact that she lived in, a house where an offence was being committed, as disastrous for her and so decided to adapt her evidence to fit the circumstances. She may also have lied to protect her father. (See S v Henning 1972 (2) SA 546 (N) at 549A-B.)

What one has on the State’s version is the clearest evidence that a mandrax factory had been established on the premises. The evidence is equally clear that not only the appellant, but others as well resided on the premises: her mother, her brother. For reasons which do not appear from the record, the charges were withdrawn against them. There was also evidence that a certain Mswandile resided on the premises. There is no reason to believe that he was a fictitious person because the police established that he had children who attended a local school but then nothing more was done to trace him. He was allegedly the lessee of the room which had been decked out as a mandrax factory.

As I have stated, none of the police evidence implicated the appellant in the operation of the mandrax factory. Interestingly, one piece of evidence which I thought was quite telling was the evidence that the appellant had tried to bribe one of the police officials to discontinue their investigation into the mandrax charge but the magistrate found the evidence of the police on this score to have been contradictory and unreliable. I had difficulty separating that evidence out from the rest of the police evidence because it all constituted a single unit but there is nothing in the magistrate’s reasoning which would enable this court to upset his finding so I believe that this court is obliged to accept it as correct.

I proceed now to consider the other circumstantial evidence against her. The state presented evidence that three safes were found on the premises containing quite a bit of money. The appellant’s evidence was that she sold clothes to supplement her income. This evidence was corroborated by the fact that new clothing was found on the premises and the amount of money was not so substantial that one can conclude that her version might not have been true. Her explanation is perfectly valid.

There was then some evidence that a little mat was found in one of the safes and on examination, it contained mandrax powder. The appellant advanced a ridiculous reason why there was mandrax powder on the mat. She stated that when the mat was removed from the safe, some powder had possibly spilled onto it. But again, the fact that she presented a version which lacked credibility does not impel one to draw the extreme inference. It does not do so alone and it does not do so, taking it in conjunction with other evidence.

What inference can be drawn from the finding of the mandrax powder in the pile of the mat, which according to the police evidence, had accumulated in the mat over a period of time? Although no evidence was presented of the precise dimensions of the safes, there are photographs of them in the record. None of them was a walk-in type of safe and the impression that I get from the pictures is that they were small, personal types of safes, the kind that one would instal in a wardrobe or cupboard. Concomitantly, we are not talking of a large floor mat, but something probably used to line the floor of the safe. Now as absurd as the appellant’s suggestion was, equally absurd is the notion that a drug dealer would secrete such a piece of carpeting in a small safe really intended for the safe keeping of small valuables, because the carpet contained traces of mandrax powder. It defies logic. I agree with counsel for the appellant that what probably happened was that a discarded piece of carpeting, probably from the room in which the mandrax factory had been established, was used to line the floor of the safe. The rejection of the appellant’s version on this score does not resolve the issue in favour of the prosecution.

Another piece of evidence that counted against her in the magistrate’s view was the following. After a number of items relating to either the manufacture or use of drugs were found, Captain Chili asked the appellant to whom they belonged. According to the police officer, the appellant said that they belonged to a certain Lindi, which is in fact a name by which the appellant is known. In her evidence, the appellant denied having said so. She stated that she had mentioned the name Selindile. The magistrate rejected her evidence but one must then ask: what could she possibly have hoped to achieve by mentioning her own name? The process of weighing up evidence is not a mechanical one: it is a process during which logic, reason and common sense must predominate. So the fact that she might not have fared well as a witness during cross-examination cannot permit one to reach a conclusion which simply does not make sense. The names Lindi and Selindile do not sound so far from each other that one can be sure that the police officer did not make a bona fide error.

It is also of importance that the appellant spontaneously told one of the police witnesses (Buthelezi) that she knew nothing about the drugs and that only her father knew something about the machines which were used to manufacture the drugs and which were found in the outside room.

One certainly must view the evidence holistically. Each separate fact must not be subjected to the test of proof beyond reasonable doubt. (Vide R v Mtembu 1950 (1) SA 670 (A) at 679.) If a number of probable facts are added together, they may add up to proof beyond reasonable doubt. But I believe that what we have here are a number of facts or circumstances which are all capable of explanations which are equally incriminatory or exculpatory. Adding all such facts or circumstances together cannot lead to an irresistible inference of guilt or, put otherwise, proof beyond reasonable doubt. The sum of a whole lot of neutral facts produces a neutral result, as does a compound result of such facts. (Vide New Zealand Construction (Pty) Ltd v Carpet Craft 1976 (1) SA 345 (N) at 350 G.)

In my view, the magistrate was incorrect to find that the evidence all added up to proof that the appellant was involved in the manufacture of mandrax at her late father’s home. That was not the only reasonable inference, to the exclusion of all other inferences. She should therefore have been acquitted.

I would uphold the appeal and set the conviction and sentence aside.

______________________

Horwitz AJ

Acting Judge of

the High Court

I agree. It is so ordered.

______________________

Labe J

Judge of the High Court

Date of judgment: 5 March 2008

Counsel for Appellant: JJH Huysamen

Counsel for Respondent :

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