IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) Case no: CA&R 206/2015 Date heard: 18 August 2015 Date delivered: 20 August 2015

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1 1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) In the matter between NOT REPORTABLE Case no: CA&R 206/2015 Date heard: 18 August 2015 Date delivered: 20 August 2015 LIVINGSTONE NAPOLEON INGRID NAPOLEON GLADWIN NAPOLEON First Appellant Second Appellant Third Appellant vs THE STATE Respondent JUDGMENT PICKERING J: [1] The three appellants, along with two other co-accused, were arrested on certain counts relating to dealing in drugs in contravention of the provisions of s 5(b), alternatively s 4(b) of the Drugs and Drug Trafficking Act 140 of [2] First and second appellants, who are married to each other, were arrested on four such counts whilst fifth appellant, the son of first and second appellants, was arrested on two such counts. [3] The appellants and their co-accused applied for bail in the magistrate s court, East London. The applications of the two co-accused who are the twin sons of first and second appellants were successful but bail was refused in respect of the three appellants. They now appeal against the refusal of their respective applications.

2 2 [4] It is common cause that first and second appellants were arrested at their residence at [..], [..], East London, and that third appellant was arrested at his residence at [..], [..], East London. [5] The investigating officer, Sergeant Mtebela, is a member of the Hawks. He not only attested to an affidavit but testified under oath at the hearing. According to him an undercover operation was launched by the police in terms of s 252 A of the Criminal Procedure Act 51 of 1977 (the CPA), with the aim of addressing and reducing the escalating drug trade in the East London region. [6] Prior approval and guidelines were obtained from the Director of Public Prosecutions in Grahamstown to conduct these operations which included the use of police agents as well as the making of video and audio recordings. The agents were tasked with investigating whether the applicants were dealing in drugs which they did by way of purchasing large quantities of mandrax tablets from the applicants. [7] According to Mtebela, first and second appellants sold mandrax tablets to the undercover police agents on three occasions during the period January 2015 to July 2015 from their home at [..], F.. These transactions, according to Mtebela s affidavit, were as follows: (a) (b) (c) On 25 March 2015 the first and second appellants sold five hundred mandrax tablets to police agents with an estimated value of R15 000,00. On 16 April 2015 the first and second appellants sold one thousand mandrax tablets to police agents with an estimated value of R30 000,00. On 26 May 2015 first and second appellants sold one thousand mandrax tablets to police agents with an estimated value of R29 000,00.

3 3 [8] Mtebela testified that these transactions were video and audio recorded and that first and second appellants were visible and could be heard on these recordings. [9] He averred further that on 8 July 2015 members of South African Police Services raided the home of first and second appellants and confiscated 2011 mandrax tablets valued at approximately R64 352,00 as well as a scale, a cash counting machine and R ,00 in cash. The two appellants and their twin sons Marvellous and Mohammed were then arrested. The 2011 mandrax tablets form the basis of count 4. [10] Mtebela averred that a similar undercover operation in terms of s 252A was conducted with regard to third appellant. He stated that on 28 May 2015 third appellant sold 1000 mandrax tablets to police agents with an estimated value of R29 000,00, after having been telephoned by first appellant with a request that he bring the tablets to first and second appellant s home. [11] Mtebela averred further that on 8 July 2015 members of the police services raided third appellant s home. Third appellant was observed flushing drugs down the toilet. The police blocked and removed the toilet pipes and confiscated 188 mandrax tablets therefrom. Eight packets of dagga were also found in the house as well as approximately R79 000,00 in cash. Third appellant was then arrested. [12] At the hearing of the bail application there was a dispute between appellants and the State as to whether the offences with which the appellants have been charged fell within the ambit of the offences listed in Schedule 5 to the CPA. [13] The relevant provisions of Schedule 5 are applicable, inter alia, to the following offences: Any offence referred to in section 13(f) of the Drugs and Drug Trafficking Act no 140 of 1992, if it is alleged that

4 4 (a) the value of the dependence-producing substance in question is more than R50 000,00; or (b) the value of the dependence-producing substance in question is more than R10 000,00 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy... [14] It is common cause that the offences with which the three appellants have been charged resort under s 13(f). As stated above, the value of the mandrax tablets involved in each of the three transactions involving the alleged sale by first and second appellants of the tablets to police agents was less than R50 000,00. The magistrate found, however, with regard to these transactions that the total value of the transactions arising from these police operations was more than R50 000,00. In this regard he stated as follows: If there is an operation and there are more than one count and that is taken as an operation we should regard that as one operation even though there were numerous transactions so what the legislature set out here is to have a cumulative effect of this. [15] With respect to the magistrate, I cannot agree with this reasoning. The first and second appellants were charged with three separate counts, each count relating to a single offence of dealing in mandrax tablets with a value of less than R50 000,00. For his part third appellant has been charged with two separate counts, each count relating to an offence of dealing in mandrax tablets with a value of less than R50 000,00. In my view Mr. Liddell, who appeared for the appellants, both at the hearing of the bail application and on appeal, is correct in his submission that the magistrate erred in having regard to the cumulative value of the three separate offences. Such an interpretation flies in the face of the clear wording of sub-para (a) which refers to an offence in the singular. The fact that each transaction occurred during the course of one undercover operation over a period of months is irrelevant.

5 5 [16] The State relied further, however, on the provisions of sub-section (b) in that the value of the tablets on each count was more than R10 000,00 and each such offence was allegedly committed by a group of persons, or syndicate... acting in the execution of furtherance of a common purpose or conspiracy. [17] At the bail application Mr. Liddell disputed that a husband and wife could form a group with the meaning of the provisions of sub-section (b). In this regard the magistrate stated: Now the argument here is that a husband and wife do not make a group. I am not in favour of that argument because a group is set out as more than one person so two people, three people can be a group and if they work together that forms a group. [18] In my view the magistrate is correct in his reasoning. Mtebela alleged that the contents of the video and audio tapes revealed that first and second appellants were acting in concert in selling the mandrax tablets to the police agents. In such circumstances the fact that they happened to be husband and wife is entirely irrelevant. I am satisfied therefore that on this basis the magistrate correctly found that the provisions of Schedule 5 were applicable to first and second appellants. [19] The position of third appellant is somewhat different to that of the other appellants. According to Mtebela third appellant received a telephone call from first appellant in consequence whereof he brought one thousand mandrax tablets to first appellant s home which were then sold to the police agents. In the course of Mtebela s evidence, however, it was put to him that third appellant would testify that he had had no idea that the packet which he was told to bring to first appellant contained mandrax tablets. Mtebela replied that he could not dispute this. In the light of this it is not possible at this stage to find that third appellant was indeed part of the group. Accordingly it has not been established that Schedule 5 is applicable to his case. In the

6 6 circumstances I will deal firstly with the cases of first and second appellants on the basis that the provisions of Schedule 5 are applicable to them. [20] In terms of S 60(11)(b) of the CPA, where a person is charged with a Schedule 5 offence, the Court hearing his or her bail application shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the Court that the interests of justice permit his or her release. [21] Section 60(11)(b) therefore places an onus on an applicant for bail to adduce evidence that satisfies the Court that the interests of justice would permit his or her release on bail. I will return hereunder to the issue of the interests of justice in relation to the personal interests of the two appellants. [22] Section 65 of the CPA deals with appeals to a Superior Court against the refusal of a lower Court to admit an accused person to bail. Section 65(4) sets out the powers of this Court on appeal. It provides: The court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such Court or Judge is satisfied that the decision was wrong, in which event the Court or Judge shall give the decision which in its or his opinion the lower court should have given. [23] What was said in S v Barber 1979 (4) SA 218 (D) at 220E H is apposite: It is well-known that the powers of this Court are largely limited where the matter comes before it on appeal and not as a substantive application. This court has to be persuaded that the magistrate exercised the discretion which he has, wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair

7 7 interference with the magistrate s exercise of his discretion. I think it should be stressed that, no matter what this Court s own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail had exercised that discretion wrongly. [24] In S v Panayiotou case no CA&R06/2015, unreported Eastern Cape Division, Grahamstown, decision Goosen J stated as follows at para 27 with reference to S v Barber, supra: [27] This approach has been approved in a number of decisions. In order to interfere on appeal it is accordingly necessary to find that the magistrate misdirected himself or herself in some material way in relation to either fact or law (see S v Ali 2011 (1) SACR 34 (E) at para 14; cf. also S v M 2007 (2) SACR 133 (E)). If such misdirection is established, the appeal court is at large to consider whether bail ought, in the particular circumstances, to have been granted or refused. In the absence of a finding that the magistrate misdirected him or herself the appeal must fail (cf. S v Porthen and others 2004 (2) SACR 242 (C) at par [11]). [25] Both first and second appellants declined to testify as to the merits of the case against them, but both stated that they intended to plead not guilty. As stated above, the evidence of Mtebela was that the various transactions between first and second appellants and the police agents were video and audio recorded. In this regard Mr. Liddell accepted that there was, on paper, a strong prima facie case against the first and second appellants. He pointed, however, to the fact that the State case was silent as to the background events leading up to the Director of Public Prosecutions approving the s 252A operation and submitted that the matter had to be approached with great caution because of the interests of the police in securing convictions, the lack of any evidence as to whether the guidelines issued by the Director of Public Prosecutions were adhered to and the caution with which Courts in general approached evidence relating to traps. These are all valid considerations.

8 8 [26] The issue of the admissibility of the recordings will, however, no doubt be fully canvassed at the criminal trial. As was stated by Goosen J in Panayiotou s case supra at para 53 it is at that point that critical questions of the admissibility and reliability of the evidence will be tested. In this regard Goosen J stated further, correctly with respect, that what the Court is called upon to consider, in a bail application, is the nature of the evidence that is available to the prosecution and, absent a challenge in the bail proceedings to the admissibility or reliability to that evidence, the Court will accept the evidence. It is upon this acceptance that the Court decides whether the case is strong or weak. It can be accepted therefore in the circumstances of this matter that the State has established a strong prima facie case against the two appellants. [27] In the circumstances the magistrate correctly stressed the fact that the case against the two appellants was prima facie a strong one and that on conviction they faced the possibility of serving a very long term of imprisonment having regard to the nature of the offences allegedly committed by them. In this regard he stated as follows: Those two facts taken together may provide a temptation to the applicants to evade their trial. [28] Mr. Liddell submitted with regard to this statement that the magistrate had erred in refusing bail merely because the appellants might be tempted to evade their trial. [29] The provisions of s 60(4) of Act 51 of 1977 are relevant in this regard. S 60(4) provides as follows: (4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established: (a)... (b) where there is the likelihood that the accused, if he or she were

9 9 released on bail, will attempt to evade his or her trial; or (c)... (d)... (e)... [30] Mr. Sesar, who appeared for the State, conceded, correctly, that the only ground applicable to the case of the two appellants was that contained in sub-para (b). He submitted further that the magistrate s finding in this regard was correct. [31] In my view, however, the magistrate erred in his approach to the matter. The high water mark of his finding was that the strong prima facie case and the possibility of the appellants being in prison for a long time may provide a temptation to the applicants to evade their trial. This is not the test. As appears from sub-para (b) it must be established that there was a likelihood that the appellants would attempt to evade their trial. The word likelihood connotes something much more than a mere temptation. It is defined in the Concise Oxford English dictionary as meaning a probability. In S v Tshabalala 1998 (2) SACR 259 (C) the following was stated at 271 e f: 'Likelihood' in this context simply means probability. In cases not governed by s 60(11), if bail is to be denied, the State would have to establish or the court would have to find a probability that the applicant for bail, if released, would attempt to influence or intimidate witnesses In the light of the magistrate s misdirection in this regard I am at large to consider the matter afresh. [32] I turn then to consider whether or not it is probable that the two appellants, if released on bail, would attempt to evade their trial.

10 10 [33] The major problem facing the State in this regard was that neither of the two appellants were cross-examined at all on the issue of the likelihood of their attempting to evade their trial, with the result that this issue was hardly canvassed before the magistrate. As was submitted by Mr. Liddell it was unfair towards the appellants to reject their evidence that they would not attempt to evade their trial without such evidence having been contested under cross-examination. [34] Accordingly it is necessary to have regard to the largely uncontested evidence of the appellants. [35] First appellant, a 58 year old man, testified that he had lived in East London all his life and was married to second appellant. They have six children. He has resided at [...], F., for approximately thirty years. He stated that he sold chickens wholesale to the community. He has no previous convictions relating to dealing in drugs nor does he has any outstanding cases or outstanding warrants for his arrest. His previous convictions, relating, inter alia, to possession of dagga, are all more than ten years old. [36] He stated that he suffered from diabetes and high blood pressure which necessitated his taking a considerable amount of prescribed medication. He stated that whilst in detention awaiting the hearing of the bail application he had not been given his medication by the prison authorities with the result that his health had been severely compromised and, at the time of the bail application he had sores in his mouth arising from his lack of medication. [37] In this regard the evidence of a witness called by the magistrate, namely Ms. Pumeza Nqenqa, a professional nurse and operational manager of the prison hospital section at Wesbank prison, is relevant. Although she denied that the accused would not have received his medicine she confirmed that he did suffer from severe diabetes and was required to take thirteen tablets a day. She stated that when she examined first appellant his blood pressure was 184/98, his pulse 108 and his blood sugar These were all

11 11 abnormally high readings. It is clear therefore that first appellant is not malingering. [38] First appellant s evidence that he did not possess a passport was not contested. He further stated that should he be released he would be prepared to agree to very stringent bail conditions and would not evade trial. [39] The second appellant confirmed that she had been married to first appellant for thirty years; that they had six children; and that she and first appellant sold chickens to the community. Although she had two previous convictions they were both more than ten years old. She too does not have a passport and stated that she would stand trial. [40] In all the circumstances the State has failed to establish as a probability that the two appellants would attempt to evade their trial. [41] What was said by Traverso J (as she then was) in S v Stanfield 1997 (1) SACR 221 (C) is relevant. The English headnote thereof, which correctly reflects what was said in the judgment, reads as follows: The Court held on consideration of all the evidence and on a balance of probabilities, that none of the factors in s 60(4)(a)(b)(c) and (d) of the Act were proven. The court a quo had lost sight of the fact that the denial of bail would be in the interests of justice only if one of the four grounds set out in section 60(4) of the Act were probable. [42] In my view taking into account the fact that none of the factors in s 60(4)(a) (e) were proven, as well as the ill-health of first appellant and the fact that, according to Mr. Sesar, the matter might only come to trial after a year, the denial of bail to the first and second appellants would not be in the interests of justice. [43] As regards third appellant Mr. Sesar correctly conceded that should first and second appellants be granted bail so too should he.

12 12 [44] Accordingly the following order will issue: 1. The appeal succeeds and the magistrate s order refusing bail is set aside. 2. First and second appellants are released on bail of R50 000,00 each on the following conditions: (a) That they appear personally in Court A of the East London Magistrate s Court at 8h30 on 4 September 2015 and thereafter on such times, dates and places to which the proceedings may from time to time be adjourned until the conclusion of the trial; (b) That they report in person to the person in charge of the charge office at Buffalo Flats Police station every day at any time between 06h00 and 18h00. (c) That they must be at their residence at [...], F., East London every evening between 18h00 and 06h Third appellant is released on bail of R20 000,00 on the following conditions: (a) That he appear personally in Court A of the East London Magistrate s Court at 8h30 on 4 September 2015 and thereafter on such times, dates and places to which the proceedings may from time to time be adjourned until the conclusion of the trial; (b) That he report in person to the person in charge of the charge office at Buffalo Flats Police station at any time between 06h00 and 18h00 on every Monday, Wednesday and Friday. (c) That he must be at his residence at [...], [...], East London every evening between 20h00 and 06h00.

13 13 J.D. PICKERING JUDGE OF THE HIGH COURT Appearing on behalf of the Appellants: Mr. Liddell Instructed by: Liddell, Weeber and Van der Merwe Inc 52 Broad Road, Wynberg, Cape Town Appearing on behalf of the Respondent: Adv. Sesar Instructed by The National Director of Public Prosecutions, Grahamstown