CASE NO.: SA16(A)/2001

IN
THE SUPREME COURT OF NAMIBIA

In
the matter between :

JOHN
SAM APPELLANT

And

THE
STATE RESPONDENT

Coram: Strydom,
C.J., Chomba, A.J.A. et Manyarara, A.J.A.

Heard on: 08/04/2002

Delivered on : 03/10/2002

APPEAL JUDGMENT

Chomba, A.J.A.

John Sam was charged before the High Court
(O’Linn, J) jointly with Stephen Shakatimba, a Nigerian national
and Maria Sam who is John Sam’s mother. The charges preferred
against the three were as follows :

Count 1 – statement of
offence

Contravening
Section 2(c) of Act 41 of 1971 – dealing in dangerous dependency
producing drugs.

In
that on or about 8^th September 1996 at or near Windhoek in
the District of Windhoek the accused unlawfully and intentionally
dealt in dangerous dependence producing drugs, or any plant from
which such drugs can be manufactured to wit 4,735 kg of cocaine
Alternatively –

Count II – statement of
offence

Contravening
Section 2(d) of Act 41 of 1971 – possession of dangerous producing
dependency drugs.

In
that on or about 8^th September 1996 at or near Windhoek in
the District of Windhoek the accused had in their possession a
dangerous dependency producing drug or any plant from which such a
drug can be manufactured to wit 4,735 kg of cocaine.

At
the onset of the trial the particulars of offence on both accounts
were amended in that the weight of the drug charged was stated as
5,51 kg. A full trial ensued and at the end Maria Sam was acquitted.
Stephen Shakatimba and John Sam were both convicted on the main
charge and were sentenced to ten years imprisonment each. Of the two
convicts only John Sam has appealed and his notice of appeal shows
that he was aggrieved by both conviction and sentence. His appeal
was ably argued before this court by Mr. G. Barnard, briefed by H.
Barnard and Partners, while the State, as respondent, was equally
ably represented by Mrs. C. Barnard on behalf of the Prosecutor
General.

The
appeal against conviction was prosecuted on two grounds, viz –

1. As
   to the integrity of the drug cocaine, whether what was said to have
   been found in the possession of convict Stephen Shakatimba at the
   time of his arrest was the same with which the appellant was charged
   and later convicted of dealing in.

   
   

2. Whether
   the appellant had guilty knowledge in relation to the possession of
   the said cocaine.

   
   

The
case against the appellant was that he forged a friendship with some
Nigerians whom he casually met here in Windhoek. One of them told
him that a friend of his resident in South Africa was exploring the
possibility of using the appellant’s address in Windhoek for the
purpose of receiving mail from Brazil in South America. The
appellant gave his mother’s post box in that connection and this
was used on two occasions. On the last of these occasions Stephen
Shakatimba, the appellant’s co-accused who has not appealed, was
used as a courier to pick up the mail. He was sent by the South
African based recipient of the mail. That person had earlier phoned
the appellant and told him that some mail was being expected from
South America and that he would send someone from South Africa to
Windhoek to pick it up. When Stephen Shakatimba arrived in Windhoek
he was received by the appellant and stayed with the appellant at the
appellant’s mother’s place in Katutura Township. Not long
after Shakatimba arrived the appellant’s sister, Mrs. Vries,
collected three parcels which had arrived from Brazil. The appellant
took the parcels from the boot of her car and handed them to Stephen
Shakatimba. This was just after midday and on the same day the
appellant accompanied Stephen Shakatimba to the Inter Cape Main-
liner bus terminal in Windhoek where Stephen Shakatimba made a
booking for his return journey on Sunday, 8^th September
1996.

On
8^th September 1996 the watchful eyes of Bryan Karl Eiseb,
the first prosecution witness, spotted a suspicious looking man who
was boarding a South African bound bus at the said bus terminal in
Windhoek. The man having entered the bus, Constable Eiseb entered
the bus also and went straight to that man. He interviewed him
briefly and discovered that the man, who turned out to be Stephen
Shakatimba, was travelling on a Zambian passport although he was a
Nigerian national based in South Africa. The man’s piece of
luggage which Constable Eiseb took special interest in was a black
carrier bag. He opened this in the presence of Stephen Shakatimba
and Willem M. du Plessis who, like Constable Eiseb, belonged to the
Drug Enforcement Unit of the Namibian Police Force. The bag was in
due course found to contain five files each of which yielded two
plastic envelopes. In each such envelope there was a powdery
substance. Having taken Stephen Shakatimba to the Drug Enforcement
Unit the police put all the powder in one receptacle and weighed it.
It was 4,735 kg. Constable Eiseb sealed the container in which the
powder was with seal 0007 which is the official seal. He then
delivered this to the National Forensic Science Institute of Namibia
for chemical analysis. It is necessary to record that before the
substance was delivered to that Institute Constable Eiseb carried out
a test on the powder which he called a speedy colour reaction test.
Describing the test he said a tiny quantity of the powder is placed
in a bowl and “two reagents” are added to it. If the powder is
cocaine then upon adding the reagent to it changes colour from the
usual off-white colour to blue. This is what in fact happened.

At
the Forensic Science Institute Laboratory the powdery substance was
weighed a couple of times. This is according to the evidence of John
Alweendo Shameya, a Forensic Analyst. Shameya stated so both in
his affidavit, exhibit D, in the court a quo and in his oral
testimony at the trial. On the first occasion the total weight of
the substance was 4,60 kg. However on the second weighing the total
weight was 5,51 kg made up of the following :

1. an
   off-white powder which was pure cocaine weighing .82 kg and

   
   

2. a
   white powder with a total weight of 4,69kg containing a negligible
   quantity of cocaine and the rest of the substance was not
   identified.

   
   

When
Constable Eiseb later retrieved the powder from the Forensic Science
Laboratory he noticed that it had changed its colour from off-white
to “more whitish”, quoting his own evidence.

Contentions as to the
integrity of the powder

As
noted earlier, the first issue which Mr. Barnard argued, and did so
hotly, was in regard to the cocaine in connection with which the
appellant was convicted. The argument he raised was two-pronged.
First he commented on the fact that the colour of the powder which
was recovered from the accused Stephen Shakatimba was off-white.
However the powder later collected by Constable Eiseb from the
Forensic Science Laboratory was, in the words of the constable,
“more whitish in colour.” The second leg of the argument was in
regard to the weight of the powder. In this connection Mr. Barnard
highlighted the evidence of Constable Eiseb who said that when he
weighed the powder on what he called an electronic scale it was 4.735
kg. At the Forensic Science Laboratory when it was weighed for the
first time by John Alweendo Shameya in the presence of Constable
Eiseb the weight was 4.60 kg. On a later occasion when weighed after
it had been chemically analysed and separated into pure cocaine and a
mixture of cocaine and the unidentified substance the total mass was
5.51 kg.

In
the light of the two varying phenomena regarding colour and weight,
Mr. Barnard hotly contended that the powder recovered from Stephen
Shakatimba was not the same as the one released from the Forensic
Science Laboratory. His submission was that the powder handed in by
the police to the laboratory had been compromised and therefore the
conviction of the appellant and his co-accused Stephen Shakatimba
was based on an alien powder. To this end Mr. Barnard criticized the
evidence of Dr. Ludik which was directed at proving that only one
powder, namely the one brought in by the police, was processed there
and later handed back to the police.

Dr.
Ludik’s evidence was significant in two respects. As to the
change of colour which was noticed by Constable Eiseb when he
collected the powder from the laboratory, namely a change from
off-white to more white, he testified that it was in the character of
cocaine to change colour. It had been proved at the laboratory that
cocaine was an extremely volatile substance like any other
hydroscopic salt. It reacts with the atmosphere when it is in a
container which is not pneumatically sealed. In his expert opinion,
such reaction with the atmosphere definitely causes discolouration.
In expressing this opinion Dr. Ludik was very emphatic.

Regarding
the weight changes of 4.735 kg, then 4.60 kg and lastly 5.51 kg, it
merged during the evidence of Dr. Ludik that at the Drug Enforcement
Unit they used a scale which was described merely as an electronic
scale. According to Dr. Ludik the term “electronic” is nebulous
and does not import an idea as to its accuracy in taking
measurements. He stated that normally a manufacturer of scales
states on his products their weight limitations as to accuracy. At
the National Forensic Science Institute Laboratory the scale first
used was an industrial scale. This scale, Dr. Ludik stated, does
not guarantee accuracy of measurements and cannot correctly register
the first 500 grams. Finally on the third occasion a chemical scale
was used. This was after a chemical separation was carried out and
it was found that the cocaine which was pure weighed .82 kg while the
remaining powder with only a trace of cocaine weighed 4,69 kg,
making a total of 5,51 kg. It was Dr. Ludik’s evidence that the
scale used at that stage is the one that is intended for fine
measurements which can record up to three decimal points.
Additionally, according to Dr. Ludik, cocaine is by its nature
hydroscopic. This means that when it is contained in a package which
is not pneumatically sealed, it reacts with atmospheric vapour. In
doing so weight change may result owing to accretion of the
atmospheric vapour.

All
the foregoing expert evidence of Dr. Ludik was accepted by the judge
a quo . In the event the judge held that the change of colour
and weight was attributable to the hydroscopic character of cocaine
coupled with the fact that different scales were used on the three
separate occasions. In my opinion the ratio of the learned trial
judge was sound for the following reasons :

1. None of the prosecution
witnesses who deposed as to the handling of the powdery substance
confiscated from Stephen Shakatimba was discredited as to the
reliability of their evidence. For example Constable Eiseb, though
with a rudimentary experience in chemistry, testified that he
conducted a speedy colour test on the powder and found that its
reaction was that expected from cocaine: its colour changed from
off-white to blue. His evidence on that point was unchallenged.
Also unchallenged was the affidavit and viva voce evidence of
John Alweendo Shameya. He said that he received the powder under
seal 0007 from Constable Eiseb who himself had earlier testified that
he was the one who had affixed that seal to the package containing
the cocaine and had handed it to John Alwendo Shameya. Shameya also
testified that the same powder that he received from Constable Eiseb
was the very same which he surrendered back to Constable Eiseb in due
course. Equally Dr. Ludik did not succumb under the pressure of
cross-examination.

2. As regards the weight of
the cocaine, the fact that three different scales were employed is
not without significance. All we know about the scale used at the
Drug Enforcement Unit is that it was an electronic scale but that
does not indicate its margins of accuracy. As to the industrial
scale which was first used at the laboratory namely the industrial
scale, Dr. Ludik’s uncontroverted evidence was that it was not
capable of accurately weighing masses of less than 500 grams. On
the other hand the chemical scale used on the last occasion was
proved to have accuracy to a third decimal point. The chemical scale
was the most accurate of the three. In my considered opinion the
difference in weight would have been of concern in regard to the
integrity of the powder if the three weights were recorded from one
and the same scale.

Above
all I must emphasize that the total effect of the evidence from the
prosecution is that the one and same powder which the police found in
the possession of Stephen Shakatimba is that which was handed to and
analysed by John Alweendo Shameya at the laboratory and later handed
back to the police. Moreover if the National Forensic Science
Institute officers concerned with the handling of the powder received
from the police had intended to compromise the integrity of that
powder one would have expected them to substitute it with a powder
totally different from cocaine. It does not make sense that a powder
which was prima facie established by Constable Eiseb to be
cocaine should be replaced by another cocaine by John Alweendo
Shameya or indeed any other person at the Forensic Science
Laboratory. In any event the further evidence of the prosecution
witnesses was that when the powder received from the police reached
the laboratory it was kept under lock and key, and was only released
to Mr. John Alweendo Shameya when he was to carry out the chemical
analysis. Later it was handed back to the police.

As
the trial judge found the witnesses who handled the cocaine at all
relevant stages to be credible witnesses this court is obliged to use
the well settled principle of law that an appellate court will be
slow to interfere with the finding of a trial judge who had the
opportunity of seeing and hearing the witnesses at first hand at the
trial, an opportunity which an appellate court does not enjoy. In
the event any finding by this court that the powder which was found
in Stephen Shakatimba’s possession was compromised at the Forensic
Science Laboratory as suggested by Mr. Barnard would amount to
impeaching the trial judge’s finding based on the credibility of
the witnesses Constable Eiseb, John Alweendo Shameya and Dr. Paul
Ludik. Just as the principle itself is well settled, so also are the
reasons justifying interference with its application well
established in law. See WATT & THOMAS V. THOMAS (1947) A.C.
484 and especially the speech of Lord Thankerton at pages
487-488. In the present case I find no reason for interfering.

I
would therefore reject the appellant’s argument suggesting that
the cocaine on which the conviction of the appellant was based was
not the same cocaine found in Stephen Shakatimba’s possession.

Guilty Knowledge – Mens
Rea

The
contention canvassed with regard to guilty knowledge was that the
appellant never knew the nature of the substance found in Stephen
Shakatimba’s possession. In the event, so the contention implies,
the appellant could not have known that Stephen Shakatimba and all
the other persons concerned in the transference of the postal
materials from Brazil through Namibia to South Africa were dealing
in cocaine. In this connection it was further contended that the
appellant’s involvement if any, in the business of trafficking
in cocaine could only be determined on the basis of circumstancial
evidence. Such evidence permits of no inference of guilty knowledge
being made against the appellant unless such inference is the only
one capable of being made to the exclusion of all other inferences.
The submissions made on the appellant’s behalf detailed aspects
of circumstantial evidence which the trial judge relied on and
concluded that these were not capable of supporting an exclusive
inference of guilt. I shall highlight some of these aspects.

The
letter, exhibit “O”, proved to have been written by Stephen
Shakatimba in Windhoek prison to a certain Romance Mutale, himself a
prisoner in Keetmanshoop prison, was one such aspect used by the
trial judge in arriving at a conclusion that the appellant was an
accomplice in the trafficking of cocaine. The judge held that in
that letter the appellant was identified as Argi and appears to have
accepted the assertions in the letter that Argi was paid N$14,000 for
his part in the trafficking.

Mr.
Barnard preferred to criticize the judge in this regard by arguing
that the letter amounted to an improperly obtained piece of evidence
and as such the judge ought not to have held its contents against the
appellant. For this argument he relied on the case of the State
v. Hammer and Others, 1994(2) S.A.C.R. 496 (c). The ratio of
that case is that the trial court has an overriding discretion to
exclude improperly obtained evidence if its prejudicial effect
outweighs its probative value.

While
in my view the above criticism is valid, I would rather found it on
the settled principle of law that an extra-curial statement made by
one of two or more persons jointly charged with a crime cannot and
must not be held as evidence against any co-accused whom it purports
to incriminate. This is what for instance, Colin Tapper, the learned
author of the 7^th edition of Cross on Evidence,
states on page 583 under the rubric, “co-defendants etc”: He
states “The out-of-court admission of a

co-defendant
is not evidence against his fellow party to litigation by virtue of
the mere fact that they are jointly involved in a particular
transaction. This rule operates not only to bar the use of such
admission as evidence in chief, but also to prevent use being made
of the admission in cross-examination of the third party. See R
v WINDAS (1988) 89 Cr App Rep 258.”

The
simple reason why such statement should not be held against anybody
save its maker is that it was not made under any sanction which would
have compelled the maker to avow its truth and furthermore the
statement has not been subjected to scrutiny such as by
cross-examination at the time it was made. The trial judge therefore
misdirected himself firstly in allowing prosecution counsel to
cross-examine the appellant on the contents of exhibit “O” and
secondly by holding the contents against the appellant.

The
learned trial judge also held that if, while he was in the room which
he shared with the appellant, Stephen Shakatimba opened the parcel
containing the cocaine, he had no reason not to have opened it in the
presence of the appellant. To the like effect was presumed fact 14
appearing among those facts which the trial judge held to have been
common cause or facts not seriously in dispute. The judge stated in
his judgment that when the three parcels, the subject of the charge
under consideration, were received from Brazil they were opened by
the first accused i.e. Stephen Shakatimba or the second accused (i.e.
appellant) or by one of them in the presence and to the knowledge of
the other. With due respect to the learned trial judge that holding
was purely speculative and not supported by a title of evidence save
that the investigating officer testified, among other things, that
some plastic wrappers from the parcels received from Brazil were
found in a dust bin at the appellant’s home. This in my view was
another misdirection on a matter of fact.

There
are other factual misdirections made by the trial judge which I find
unnecessary to delve into. However one fact stands out and does so
beyond dispute. It is that the appellant established an association
with persons involved in a triangular trafficking of cocaine from
some town in South America, possibly Brazil, through Windhoek,
Namibia, to Johannesburg in the Republic of South Africa. The
question that fell to be resolved by the trial judge was whether the
appellant got involved in the triangle with or without guilty
knowledge. It was contended that the appellant believed that his
association with those persons was innocent and therefore that he did
not know that his mother’s postal box was being used as a conduit
in cocaine trafficking.

The
scenario which was portrayed by the appellant in professing his
innocence may be summarized as follows. On one occasion when he and
his brother, now the deceased, went to a hair salon, the appellant
fortuitously met a Nigerian referred to in the evidence as Callex
Tjineto or Kallex Gineto. The latter had been staying at the home
of the owner of the salon but Kallex expressed unhappiness at
continuing to stay there because that owner was gay and had proposed
to Kallex an indecent association. Kallex asked if the appellant
could provide him with alternative accommodation, a proposal which
the appellant readily accepted. Kallex then moved to the appellant’s
home. The appellant was at the time, and had been since he left
school in or about 1993, that is about two years before this chancy
meeting, unemployed. The appellant was being kept by and was wholly
dependent on his mother, who at the time was a bankrupt with only
her former restaurant and shop providing family income as it was
rented. The appellant testified that despite that income his mother
was not a person who could be described as a moneyed person. In
spite of her inadequate financial position the appellant’s
mother gave a nod to the idea of this strange Nigerian moving in to
stay with the family.

Kallex
stayed with the family for more or less one month, providing no
contribution for his upkeep. When he finally wished to return to
his base in the Republic of South Africa, Kallex had to be assisted
with an amount of N$150 to enable him buy his ticket to travel by
bus. This money was provided by the appellant’s girlfriend who
was herself a student at the time. Kallex promised to pay back the
money by telegram and hence asked the appellant to let him have the
appellant’s postal address. The appellant gave him his mother’s
address.

On
a second visit to Windhoek, Kallex came with another Nigerian named
Austin otherwise known as Small or Smallboy or Kenneth Augustine.
The two were again hosted by the appellant at his mother’s house.
The appellant was introduced to Austin. On this occasion Kallex paid
back the loan. The visit this time was brief but again the
hospitality extended to the two Nigerians was gratuitous. Not long
after the said visit the appellant learned from Austin that Kallex
had left for South America. Austin asked the appellant if the
appellant’s mother’s post box could be used to receive some
electrical or electronic spares from Kallex in South America which
would then be redirected to him, (Austin) in Johannesburg. The
reason given by Austin for this mode of transmission of the alleged
postal material was that in Johannesburg he had no fixed address as
he repeatedly relocated himself from hotel to hotel. He also told
the appellant that he was doing a business of selling
electrical/electronic spares hence the arrangement for such spares to
be channelled through Windhoek. The appellant assented to this
arrangement.

On
the first occasion when the aforesaid arrangement was resorted to
Austin phoned from Johannesburg informing the appellant that Kallex
had dispatched some electrical spares to the Windhoek postal address.
Austin added that someone was on the way from Johannesburg to
Windhoek to pick up the spares. This person in due course telephoned
from the Inter Cape Main Liner coach station in Windhoek announcing
his arrival and asking the appellant to go and pick him up. The
appellant travelled by taxi to the coach station and later returned
home accompanied by the new arrival from Johannesburg who turned out
to be Stephen Shakatimba, another Nigerian. The appellant had
earlier collected two parcels of the postal material which had been
mentioned by Austin. The parcels were packed in plastic containers
which looked like carrier bags. The parcels were handed to
Shakatimba who shortly afterwards left for South Africa.

About
two months later Austin once again telephoned the appellant and said
that more postal materials were on the way from Kallex in Brazil and
that he (Austin) was again going to send someone from Johannesburg to
collect from Windhoek. These materials were also said to be
electrical or electronic spares. As on the previous occasion,
Stephen Shakatimba came to Windhoek and stayed for a few days
before the parcels arrived. He also enjoyed free hospitality. The
advice slip for the arrival of the postal material was received and
the appellant’s mother signed it. The appellant’s elder
sister, Mrs. Vries, brought three parcels from the post office.
These were similarly packed like the earlier two. The appellant
handed them to Stephen Shakatimba.

At
no time did the appellant enquire about, nor did he see or know
what the contents of the parcels were. In his statement to the
police the appellant stated, and while being cross-examined he
acknowledged, that Stephen Shakatimba was secretive when handling
the parcels while he was at the appellant’s home. Even this did
not arouse any suspicion about the contents of the parcels. He
described each of the parcels as being about 60 cm x 45 to 50 cm in
size, they were neither heavy nor light, “ but in between,” he
said.

The
foregoing paragraphs constitute the scenario painted by the appellant
in his evidence.

Evaluation of the Evidence

In
all his dealings with his Nigerian guests the appellant and his
family are said to have played host to them for absolutely no
recompense by them, save that at one time after the appellant had
been arrested and put in custody pending trial on the current charge
Austin remitted N$1,000 to the appellant’s mother so that the
appellant could be bailed out of custody.

When
the appellant was in the remand prison he once again met Stephen
Shakatimba who had earlier been arrested for the present offence and
was in the same prison. In this connection the appellant was asked
under cross-examination whether he remonstrated with Stephen
Shakatimba for having put him into trouble by involving him in
cocaine trafficking when the appellant did not know what was
happening. His only answer was that he spoke to another remandee,
one Polikarp, whom he asked why “the guys,” meaning Stephen
Shakatimba and the other Nigerians involved in the said triangular
cocaine trafficking, did not tell him that they were doing business
in cocaine.

The
appellant also narrated under cross-examination how at one time
while he was on bail pending trial for the current offence he acted
as an envoy for Stephen Shakatimba. The latter had asked him to
contact one, Chris, a brother of Stephen Shakatimba or Smallboy in
Johannesburg and asked him to arrange for a lawyer to represent
Stephen Shakatimba in the impending trial. The appellant obliged
but when he phoned Johannesburg he was told that Chris had moved
and his whereabouts were unknown. In this connection the appellant
said he made two or three telephone calls to Johannesburg.

The
mens rea alleged against the appellant was that of
dealing in cocaine “unlawfully and intentionally”. Intention
connotes knowledge, and therefore the allegation is that he knowingly
engaged in the unlawful traffic in cocaine. The question which poses
itself therefore is whether the prosecution proved beyond
reasonable doubt that the appellant acted with such mens rea
in interacting with the Nigerians. In other words did the appellant
have guilty knowledge?

The
appellant would have the court believe that he acted innocently, but
did he? It is a normal human instinct that when one comes into
contact with complete strangers, and especially when such contact is
fortuitous, one details with them cautiously for quite some time
before becoming free with them. This is especially so when the
strangers are foreigners whose purpose for visiting one’s country
is unknown as was the case when the appellant supposedly met Kallex
at the hair salon. It is even more unlikely for one to be
accommodative if such foreigner does not indicate for how long he
wishes to be hosted. To the contrary, in the present case the
appellant says that when he met Kallex Gineto casually at the hair
salon he instantly had pity for him because of the unproved
allegation which this Nigerian made of the gayish conduct of his
host, the salon owner. The appellant there and then took Kallex
into his mother’s home though his mother was herself a woman of
low financial means. He kept Kallex for one month, feeding and
accommodating him free of charge. He even caused Kallex to be given
financial assistance to purchase a ticket for his return to
Johannesburg. As if that was not enough, when Kallex returned to
Windhoek in the company of another Nigerian, Austin alias Smallboy or
just Small or Kenneth Augustine, the appellant still hosted the two
of them free of charge. Stephen Shakatimba, the courier, was
apparently also gratuitously hosted by the appellant’s family.
While these strangers were still newly acquired friends, as he called
them, the appellant readily agreed to use his mother’s postal
address to receive their mail from South America. The flimsy and
unconvincing reason for the user of the postal box in that way was
that Austin, the intended recipient of the mail, did not have a
permanent address in Johannesburg. Despite being a penniless,
unemployed person, the appellant unstintingly spent his precious
money in traveling by taxi to the terminal each time his stranger
friend phoned announcing his arrival from South Africa. On three
occasions when he was on bail he spent money in telephoning South
Africa to arrange for a lawyer for Stephen Shakatimba. Yet that very
Stephen Shakatimba was one of the stranger friends who caused him to
be arrested for peddling in cocaine and he never showed any rancour
against him when they met in the remand prison. Moreover at the time
when he should have been bitter with Stephen Shakatimba for putting
him into trouble, the appellant readily became Stephen Shakatimba’s
envoy in trying to arrange for Stephen Shakatimba’s legal
representation.

The
appellant further let these stranger Nigerian friends to
gratuitously use his mother’s postal box even though he knew that
the supposed electrical/electronic spares which were to pass through
that postal box were for sale in South Africa. In other words the
appellant was prepared to let these strangers do business at his
month’s expense. Lastly but not least, Stephen Shakatimba, to the
appellant’s knowledge, was secretive in handling the parcels that
came through his mother’s postal box, yet he would have the court
believe that this behaviour on the part of Shakatimba did not rouse
any suspicions as to what those people who had surrounded him were
up to.

The
foregoing concatenation of circumstances militate against the notion
exposed by the appellant’s counsel, and indeed by the appellant
himself, that the appellant acted innocently in this affair. They
are circumstances which, in my considered opinion, take this case out
of the realm of conjecture to one of reality as to the appellant’s
guilty knowledge when he was interacting with the Nigerians. In
other words the inference that the appellant knew or must have known
that he was giving succour to Nigerian cocaine dealers or that even
if he did not have actual knowledge to that effect, he had
constructive knowledge, is the only one reasonably possible to be
drawn, to the exclusion of all other inferences. In the event,
notwithstanding that I have held that the learned trial judge
misdirected himself on certain aspects as to the facts and law in
this case, I feel that no miscarriage of justice has been
occasioned. I would therefore dismiss the appeal against conviction.

Appeal against Sentence

As
regard the sentence I have carefully considered all the valid
submissions made on behalf of the appellant. I have also carefully
considered the reasoning of the lower court as to why a sentence of
10 years imprisonment was called for in this case. I have found
that the trial judge balanced circumstances which mitigate in favour
of the appellant against those that militate against him.

I
cannot stress more the point made by the sentencing judge that
trafficking in cocaine attracts condemnation worldwide because of its
deleterious effect on the physical and mental health of those who
abuse it. This offence therefore calls for a deterrent sentence to
be imposed on those who facilitate its abuse, the traffickers.
Moreover under section 2(a) of the Abuse of Dependence Producing
Substances and Rehabilitation Centre Act, Number 41 of 1971, the
offence of dealing in dependence producing drugs attracts a maximum
fine of ZAR30,000 which is equal to N$30,000, or a custodial sentence
of 15 years imprisonment or both such fine and imprisonment. In the
present case a sentence of 10 years imprisonment was imposed. This
sentence does not come to me with a sense of shock as being excessive
nor do I find it as having been based on wrong principles. I would
endorse it and consequently dismiss the appeal against sentence as
well.

____________________________

CHOMBA, A.J.A.

I agree

______________________

STRYDOM,
C.J.

I
agree

_______________________

MANYARARA, A.J.A.

For
the Appellant : Mr. G. Barnard

On
behalf of : H. Barnard and Partners

For
the Respondent : Ms. C. Barnard

On
behalf of : Prosecutor-General