SUMMARY                    CASE NO.: 126/2005

EDWIN LEBINA MODIBEDI v THE STATE

PARKER, J; NDAUENDAPO, J

Heard on:        2008 June 30
Delivered on     : 2008 July 10
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Delivered on:             2008 July 10

JUDGMENT:

[2]      The elements of the offence are contained in s 2 (b) of Act 41 of 1971, which provides:

…

who has in his possession or uses any such dependence-producing drug or plant, or …

[3]      The appellant raised seven grounds of appeal in his notice of appeal. I will proceed to deal with them seriatim.

[4]      As to Grounds 1 and 7; counsel for the appellant, Mr. Basson, agrees with Mr. Shileka, counsel for the State, and correctly so in my opinion, that these are not grounds of appeal upon the authority of S v Gey van Pittius and another 1990 NR 35. By a parity of reasoning, I think Ground 4 is in the same boat as Grounds 1 and 7, except that, and I accept Mr. Basson’s explanation, Ground 4 seems to be connected with Ground 2, which appears to be the main talisman on which the appellant appears to hang the fate of his appeal. And from a reading of the grounds, it is also my view that Grounds 2, 3 and 5 are also intertwined.

[5]      I now proceed to consider Grounds 2, 3, 4 and 5.

[6]      The main issue in Mr. Basson’s argument is this: the appellant’s co-accused pleaded guilty in the Regional Court for possession of cannabis, weighing 25.5 kg. That being the case, the appellant cannot also be convicted of 11 kg of cannabis, which according to Mr. Basson, was a part of the 25.5 kg. It appears that the case against the appellant was withdrawn at the Regional Court. He was later charged and prosecuted in the district Magistrate’s Court, and convicted.

[7]      The evidence of De Klerk, a police officer with the Drug Law Enforcement Unit, is the following. While accompanied by his fellow police officer, Coetzee, and others, they were ‘staking out’ a house. At about 22h00 he observed a person entering the house under surveillance. This person knocked at the door and he was admitted into the house. After a while this person came out, and the door was closed after him. De Klerk saw this person carrying a heavy object on his shoulders. The person walked towards his direction where he was hiding. When the person came closer to his position, he came out of his hiding place, and shouted loudly to identify himself as a police officer. The person screamed and dropped the bag he was carrying and tried to run away, but De Klerk grabbed him by the waist. “It was then that I recognized him as the Accused person as Edwin Lebina Modibedi.”

[8]      De Klerk described the bag. He took the appellant to the house from where he had fetched the bag. During the search in the presence of both appellant and his former co-accused, De Klerk found another bag under the bad. This bag was opened and cannabis was found in it. In his examination-in-chief-evidence in the trial court, De Klerk identified the specific bag he had seen the appellant carrying on his shoulders. An important piece of evidence is that after the appellant’s case was put on the roll (that is, after the co-accused had been convicted and sentenced), he took out that selfsame bag from the safe and in the presence of the appellant he again weighed it and, it weighed 11 kg. But the appellant’s position is that the specific bag was not weighed in his presence. I will return to the issue of weighing in due course.

[9]      De Klerk was cross-examined extensively on the issue by Mr. Basson (who was also the appellant’s legal representative in the court below) and he stood his ground and that evidence was never shaken from its foundations. Mr. De Klerk’s was an eye-witness account of events; and what is more, he caught the appellant red-handed, carrying the bag of cannabis.

[10]     De Klerk’s evidence is corroborated in material respects by the evidence of Coetzee. If Coetzee was in the ‘stake-out’ with De Klerk, then the likelihood of their evidence being similar in some respects cannot be ruled out, unless it was shown – and it was not – that Coetzee was nowhere at the ‘stake-out’, and only read De Klerk’s evidence and merely regurgitated it in the witness box. In any case, it must be remembered that Coetzee’s evidence was also subjected to cross-examination, to test the reliability of his own evidence. In this connection, Mr. Basson conceded – and correctly so, in my view – that S v Noble 2002 NR 67 is not relevant in this case.

[11]     As far as I am concerned, the fact that the appellant’s co-accused was convicted on his own plea of guilty and sentenced for possession of 25.5 kg of cannabis cannot wash away the evidence accepted by the court below – and correctly so, in my opinion – that the appellant was caught red-handed carrying a bag of cannabis, which he threw away when De Klerk accosted him. If the co-accused wished to carry the cross of guilt of the appellant also by including the weight of 11 kg in the amount on which he pleaded guilty, that is the co-accused’s own funeral: that is not the concern of this Court, or indeed, the concern of the court below. What matters, in my opinion, is that the appellant was caught red-handed carrying a bag of cannabis, which bag was exhibited in the trial court.

[12]     I fail to see how Mr. Basson can succeed with his submission that to convict the accused in respect of the 11 kg of cannabis would amount to “double jeopardy”. With respect, Mr. Basson’s understanding of the notion of double jeopardy is wrong. “Double jeopardy” is a Fifth Amendment constitutional provision of the United States Constitution, which prohibits anyone from being prosecuted twice for substantially the same crime. (United States v Ursery, 518 US 267 1996)) The appellant was not prosecuted twice for possession of 11 kg of cannabis.

[13]     But that is not the end of the matter. According to Mr. Basson, the State did not prove possession, and referred to me Phillander supra in support of his argument; coincidentally, Mr. Shileka also referred the same case to me in support of his submission. To buttress his argument further, Mr. Basson referred to me also S v Cain 1973 (2) SA 522 (N). As regards Phillander, it was Mr. Basson’s argument that the State had failed to prove the element contained in the qualification proposed by Jansen, JA in Brick supra that the State ought to have proved that the appellant possessed the cannabis for his own purpose or benefit. Thus, Mr. Basson’s argument taken further goes like this: “Save for denying that the Appellant had physical control over the cannabis it is submitted in the premise that the learned Magistrate erred further in not finding that the Appellant lacked the intention to possess the cannabis in the light of the fact that the co-accused claimed possession over the cannabis.”

[14]     With the greatest deference, Mr. Basson’s argument is circular and self-defeating in the following respects. First, the appellant’s denial of his physical control of the bag of cannabis that was exhibited in the trial court cannot be sustained; it is destroyed by the evidence of De Klerk and Coetzee, which the learned trial magistrate accepted and which I have no good reason to fault. Second, the dangerous circularity of Mr. Basson’s argument can be demonstrated thus: the appellant denies that he had physical control of the cannabis, but in the same breath, Mr. Basson argues that the learned magistrate erred in not finding that the appellant lacked the intention to possess; even if he had physical control of it. Mr. Basson wants to eat his proverbial cake and have it. If the appellant did not have physical control of the goods, as Mr. Basson argues, what is the meaning of his submission that the learned magistrate erred in not finding that the appellant had no intention to possess?

[15]     As I have said ad nauseam, I accept the learned magistrate’s factual finding that the appellant was in physical control of the bag containing cannabis. Accordingly, the element of “physical control” is established – beyond reasonable doubt, in my opinion.

[16]     What about the qualifying element, to wit, “effected for one’s own purpose or benefit”, which would make the physical control intentional? In my view, the qualification cannot be taken out of the equation and treated as if it is an independent entity, unconnected with the fact of physical control. There is only one, single element of the offence, viz. “possession”. The clause “effected for one’s (i.e. the controller’s) own purpose or benefit” is merely “a qualification”, i.e. “a circumstance, condition, etc. that modifies or limits …” (The Concise Oxford Dictionary, 9^th ed.). Thus the clause “effected for one’s own purpose or benefit” constitutes a condition that makes an otherwise unintentional physical control an “intentional physical control,” i.e. “possession”, which is the proscription describing the requirement set by s 2 (b) of Act 41 of 1971 for the crime under that subsection.

[17]     Thus, as I say, there is only one element, not two elements, of the crime in terms of s 2 (b) of Act No. 41 of 1971, even going by the Brick interpretation. The result of this conclusion is that the qualification, which Mr. Basson was so enamoured with, may be found to be established by the evidence. I do not, therefore agree with Mr. Basson that the State has to prove “intentional physical control” i.e. “possession”, and also “effected for one’s own purpose or benefit”, as if the elements of the offence to be proved are two separate elements. The element of the offence, as I have said previously, is “possession” – nothing more, nothing less.

[18]     In the present case, as I have said more than once, the appellant was found carrying the bag of cannabis, the subject matter of the charge, on his shoulders, away from the house that was under surveillance. When De Klerk identified himself to him by a shout, he dropped the bag and attempted to flee from the scene. What further evidence can possibly and reasonably be added to all this to prove that the appellant exercised physical control of the bag at the moment he was seen emerging from the house under surveillance, and he effected such control for his own benefit or purpose, thus making the physical control intentional? None, I may say. One must not lose sight of the fact that the purpose or benefit which the appellant wished to obtain from his physical control of the bag is a fact that was “peculiarly within the knowledge of the accused” (i.e. the appellant) (See S v Van Wyk 1993 NR 426 (SC)); and the Court cannot expect the State to prove a fact that was peculiarly within the knowledge of the appellant.

[19]     For all the above reasons, the grounds in Grounds 2, 3, 4 and 5 must fail. From the particular facts of the instant case, I do not find Cain supra of any real assistance at all on the point under consideration. In Cain, the appellant had been charged with and convicted of a contravention of s 2 (b) of Act 41 of 1971 in that he had possessed a quantity of dagga. The evidence showed that the appellant had visited a flat occupied by one P for the purpose of obtaining accommodation for himself. He was accompanied by C. At the flat there were other people present and at one stage the appellant saw an envelope on the window sill in the lounge which he recognized as contained dagga cigarettes. While alone in the lounge he heard C calling out “here are the police, get rid of that dagga.” The appellant thereupon picked up the envelope containing the dagga cigarettes and threw it out of the window into the yard, an act observed by a policeman. He explained that he did not want to get himself involved. In the present case, the appellant dropped the bag in order to make his flight from the scene easier, unencumbered by any load. He did not do so because he did not want to be involved. I now proceed to consider Ground 6.

[20]     As I mentioned earlier, it was De Klerk’s evidence that the specific bag, which is the subject matter of the present case, was weighted in the presence of the appellant, after it was “booked out”. More important, the learned trial magistrate proposed that the bag be weighted if that was important to the defence; and Mr. Basson (in that trial court) responded that he had no problem with the weighing of the bag. But curiously and inexplicably, Mr. Basson did not insist that the bag be weighed, if the weighing was so critical to the case of the defence. For Mr. Basson to come to this Court, sitting as an appeal court, and raise the selfsame question, which could have been resolved by the trial court, is not only unfair to the State; it also undermines the proper administration of criminal justice; results, which this Court cannot countenance. Consequently I do not think Ground 6 is well-founded.

[21]     It is trite that the function to decide acceptance or rejection of evidence falls primarily within the providence of the trial court. I do not find any irregularity or misdirections proved or apparent on the record. For this reason, I have no good reason to fault the findings of credibility and factual findings of the trial court. (See S v Slinger 1994 NR 9; Red v Dhlumayo and another 1948 (2} SA 677 (AD).)

[22]     I have taken into account the conclusions I have reached on the grounds of appeal canvassed by the appellant and submissions by both counsel. I have also considered the principles so clearly articulated by the Courts as to the limitedness of an appellant court to interfere with a trial court’s findings on credibility and factual findings. Having done all that I am not persuaded that a case has been made for the success of the appeal.

[23]     In the result, the appeal is dismissed.

[24]     The appellant’s bail is hereby revoked.

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PARKER, J

I agree.

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NDAUENDAPO, J

PRODUCTED:                                                    B.D. Basson Inc.

INSTRUCTED BY:                                                The Office of the
                                                                        Prosecutor-General.