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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: A346/2019

REPORTABLE:NO

OF INTEREST TO OTHER JUDGES:NO

REVISED

DATE: 4 May 2021

 

 

In the matter between:

SAMSON OFFICILA                                                                                   Appellant

 

and

THE STATE                                                                                              Respondent

 

 

JUDGMENT

 

 

This appeal was decided in terms of the provisions of section 19 of the Superior Courts Act 10 of 2013 and otherwise disposed of in the terms of the Directives of the Judge President of this Division. The judgment and order are accordingly published and distributed electronically.

 

DAVIS, J

 

[1]                Introduction

1.1      This is the judgment in an appeal against conviction and sentence which came before us on 25 January 2021. The appeal had previously served before this court on 11 August 2020. On that date Makhoba J and Maakane AJ removed the matter from the roll and sent it back to the Magistrates Court with instructions to attach “... the whole charge and all its annexures and to make sure that the transcripts are available”. By the time the matter came before us, we had hard copies of the heads of argument filed on behalf of the parties, but no record. Only the previous court order and the appellant’s heads of argument had been uploaded on the Caselines electronic platform. At a virtual hearing conducted in terms of the Practice Directives of the Judge President of this court, Adv Pistorius appeared for the appellant and Adv Kotze for the State. They assured us that the record was in existence and would be found and uploaded. In the event that this could be done, they were in agreement that we may proceed to deal with this matter without the hearing of further oral argument as contemplated in Section 19 of the Superior Courts Act, 10 of 2013. The record was subsequently uploaded and considered by us, which led to this judgment.

[2]                The proceedings in the court a quo

2.1        The appellant was charged in the Regional Court for the Gauteng Division on the following charges:

Count 1:       Contravention of section 4(1)(iv) of the Firearms Control Act, Act 60 of 2000: possession of prohibited firearm with serial number or identification mark altered to wit a 7.65 semi-automatic pistol.

Count 2:       Possession of ammunition in contravention of sections 90 and 121 of the Firearms Control Act, Act 60 of 2000; to wit 3 x 7.65 cartridges.

Count 3:       Contravention of section 4(a) and/or (b) read with section 1 of the Drug Trafficking Act, Act 140 of 1992 possession of drugs to wit being in possession of 10 amphetamine Tablets

Count 4:       Contravention of the Drug and Trafficking Act, by being in possession of dependent causing substances to wit 14 Metrodine Oxydermine tablets.

Count 5:       Contravention of dangerous dependent substance provisions, in contravention of Drug and Drug Trafficking Act, No 140 of 1992; being in possession of 13 “MADA” tablets.

Count 6:       Contravention of section 4 of the Firearms Control Act, 60 of 2000 by being in possession of a firearm without a licence.

2.2        The appellant pleaded not guilty and a trial ensued.

2.3        On 6 September 2017 the appellant was convicted on all six charges and sentenced as follows:

Counts 1, 2 and 6 were treated as one for purposes of sentence and the appellant was sentenced to 36 months imprisonment;

Counts 3, 4 and 5 were treated as one for purposes of sentence and the appellant was sentenced to undergo 24 months imprisonment.

2.4        The court a quo refused leave to appeal but the requisite leave to appeal the convictions and sentences was granted by this court. Principally at issue, both in the court a quo and now on appeal, was the chain of custody in respect of the evidence forming the subject matter of the charges (also referred to as the “chain of evidence”).

[3]                  Summary of facts

3.1        The facts relied on by the prosecution were reasonably simple: a member of the Community Policing Forum (CPF) in Centurion had alerted the police of “smash-and-grab” activities near a certain intersection. Two police officers were dispatched to the scene, a Warrant Officer Lundall and a sergeant Kekana. Upon their arrival, they noticed people fleeing through the bushes. They each gave chase, in different directions. Warrant Officer Lundall came across the appellant and upon seeing the appellant being armed fired a warning shot and a second shot, which hit the appellant in the leg. Upon arresting the appellant, Warrant Officer Lundall retrieved a firearm with three live rounds as well as a “milo container” with plastic bags inside, containing a specified number of blue, white and pink pills. He also found a plastic bag with pieces of green paper and two small pieces of a spark plug.

3.2         As the items above formed the basis of the possessory charges on which the appellant was convicted, the identification of the items and the chain of custody of the items became crucial.

3.3        According to his recollection, Warrant Officer Lundall personally handed in the items at the SAP 13 store but could not remember which officer was the receiving officer.

3.4        From the moment of the handing in of the evidence, the chain of custody became a but disjunctive:

Warrant Officer Lundall’s crew member, Sergeant (then constable) Kekana corroborates the finding of a Milo box in the appellant’s back pocket, but her recollection of the contents differs: she recalls 10 mandrax tablets (how she determined the nature or composition of the tablets was neither explained nor explored in evidence), 14 small white pills and 11 blue and white pills. She saw two other “smashed” pills and the ten green pieces of paper but made no mention of four other white pills nor of four pink pills mentioned by Warrant officer Lundall. The two smashed pills may or may not have been one of the two other sets of pills referred to by Warrant Officer Lundall, but he, in tum didn’t refer to any “smashed” pills.

3.5        While it is so that Warrant Officer Molelwa, who examined exhibits and determined the substances of pills at the forensics laboratory indeed received and examined a sachet of 14 tablets and a sachet of 11 capsules (and determined them to contain dependence producing drugs) as well as a sachet of 10 green pieces of paper (containing no drugs), she also received a sachet containing 2 tablets, 4 tablets, one tablet and three tablets without further descriptions and without detail corresponding to the evidence of the other two abovementioned witnesses. She also received another sachet containing two capsules, a sachet containing a pair of scissors and a cardboard box. The latter two items were not explained. The exhibits she received were in a sealed bag with serial number […]. This number differs from that on the evidence bag testified about by other witnesses.

3.6        These other witnesses are Sergeant Mogotu and Constable Phasa. Sergeant Mogotu was the SAP 13 clerk at the Lyttelton police station at the time. She received exhibits in the form of drugs and a firearm on the day in question, not from Warrant Officer Lundall, but from Constable Mbowene, who was the charge officer commander on 3 September 2013. On 5 September 2013, Sergeant Mogotu gave a sealed bag with serial number […] to Constable Phasa to take to forensics.

3.7        It was never explained or clarified by the prosecution whether the bag referred to by Constable Phasa was the bag containing the drugs or the firearm or both.

3.8        The last prosecution witness was Captain Nthandi. He received a 7.65 caliber semi-automatic pistol and three cartridges of the same caliber. He fired two of those and performed ballistics tests. He also was able to retrieve the serial number of the fire-arm, which had previously been obliterated. In similar fashion as Warrant Officer Malekwa, he resealed the exhibits after having performed his examination but, contrary to her evidence, he gave no evidence of the bag number in which he had received the exhibits.

[4]                Applicable principles

4.1        In S v Matshaba 2016 (2) SACR 651 (NWM) the court held as follows at

[14] “The importance of proving the chain of evidence is to indicate the absence of alteration or substitution of evidence. If no admissions are made by the defence, the State bears the onus to prove the chain of evidence. The State must establish the name of each person who handles the evidence, the date on which it was handled and the duration. Failure to establish the chain of evidence affects the integrity of such evidence and thus renders it inadmissible”.

4.2        In order to save time-consuming leading of evidence of the chain of evidence or to provide proof of the chain of custody thereof when it is not really in dispute, the prosecution may make use of the procedure provided in section 212 of the Criminal Procedure Act 51 of 1997 by producing affidavits indicating such chain. This would constitute prima facie evidence which may become conclusive if not attacked or controverted . In S v Sithole 2013 (1) SACR 298 (GP) a full bench of this Division considered the sufficiency of objection to such prima facie evidence in order to place the State under the obligation to prove the chain by way of viva voce evidence. In the present case, the prosecution had from the start chosen not to go the section 212 route, but to lead evidence . The appellant had from the start not only questioned the chain of custody, but had, despite objections to his evidence in this regard by the prosecution, voiced his concerns: he and Warrant Officer Lundall had a “history”. This much was conceded by Warrant Officer Lundall who alleged that he had previously arrested the appellant on drug charges, but this allegation was neither proven nor substantiated. The two prior incidents of contact between the two had nothing to do with drugs. The first related to suspected stolen property and the second incident is even more astounding. The appellant testified that at a certain place which he had described, he had left his motor vehicle parked and when he returned, he found that it had been broken into and ransacked. He received information that this had been done by Warrant Officer Lundall. The appellant proceeded to the police station to lay a charge, but the police refused to register or investigate it. When confronted with this version in cross-examination, Warrant Officer Lundall conceded that he “recalled” the incident.

4.3        Added to this, is the fact that another suspect was also chased, apprehended and later released on the same day and at the same spot where the appellant was shot and arrested. There are differing versions as to why the appellant ran away before he was shot but one must also consider the fact that Warrant Officer Lundall maintained that he was given the description of the clothing that the suspect wore, which matched that of the appellant, while both Sergeant Kekana, his crew partner, and the other CPF witness called, maintained that no description had been given. In these circumstances, I find that the challenge to the chain of evidence, had sufficiently been raised and the State bore the onus as referred to above.

4.4             In Sithole (above) reference was also made to Hiemstra: Criminal Procedure at 24-31 where the following was said with reference to section 212 (8) of the Criminal Procedure Act: “the so-called ‘chain evidence’ explains what happened to the exhibit from the time it was disputed to the time the report was received. It is important that the chain be properly proved …”.

4.5        The court a quo did not properly consider the various and numerous discrepancies and even contradictions in the State’s case regarding the chain of custody over the exhibits and the actual chain of evidence. It materially misdirected itself in this regard.

4.6        The result is, not only that there is serious doubt as to the evidence itself, particularly regarding the drugs charges, but that some doubt is cast over the veracity of the finding of the fire-arm, which Warrant Officer Lundall had incorrectly described in his evidence. I say incorrectly, meaning that the caliber he described differed from the remainder of the evidence. Whether this was an error or a slip of a tongue was never cleared up. The firearm in question was not found on the person of the appellant, but on the ground “in his vicinity”.

4.7        The sum total of it all is that I find that the State has not acquitted itself of the onus that it bore and that the appellant’s exculpatory version may reasonably possibly be true. See: S v Radebe 1991 (2) SACR 166 (T), S v Trainor 2003 (1) SACR 35 (SCA) and contra S v Rohde [2019] 1 All SA 740 (WCC). It follows that the appeal should succeed.

[5]            Order:

The appeal is upheld and the convictions and sentences are set aside.

 

N DAVIS

Judge of the High Court

Gauteng Division, Pretoria

 

I agree

 

 

L BALOYI-MERE

Acting Judge of the High Court

Gauteng Division, Pretoria

 

 

Date of Hearing: 25 January and 5 February 2021

Judgment delivered: 4 May 2021

 

APPEARANCES:

 

For the Appellant:                                     Adv P F Pistorius SC

Attorney for the Appellant:

For the Respondent:                               Adv J Kotze

Attorney for Respondent:                      The State Attorneys,Pretoria

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