Langa v King (NULL) [1994] SZHC 97 (08 December 1994);

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IN THE HIGH COURT OF SWAZILAND


Crim. App. No. 80/94


In the matter between:


JAMES ROMILDO LANGA Appellant


Vs


THE KING


CORAM : Hull, CJ.


FOR THE CROWN Mr. Ngarua


FOR THE APPELLANT In person


Judgment (8/12/94)


The appellant was with two women charged with the unlawful possession of ninety-seven "Mandrax" tablets containing methaqualone. Pending the trial one of the women - the second accused - absconded. The other, by her own testimony, had solicited three men in the Hub mall in Manzini (who happened to be police officers in plain clothes) to buy the tablets. At the end of the case she was acquitted, on the basis that she herself could not be said to have been in possession of the drugs.


On its own case, the Crown should in my view have charged the three accused with dealing unlawfully in the drug. It was plainly a ease of trafficking, on the facts alleged by the prosecution. If Swaziland suffers the misfortune of a serious influx of so-called hard drugs


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such as cocaine in its different forms, and heroin, it will be very important to recognise and to prosecute with vigour clear-cut cases of trafficking. It should also be borne in mind that dealers will not hesitate to enlist persons whose youthfulness or sex are perceived as inducing a sense of leniency in the approach of law enforcement agencies and on the part of the courts. Sentimentality is misplaced in what are sometimes called, aptly, if rather dramatically, "the drug wars".


However, the live issue on the present appeal is whether the appellant was rightly convicted of possession.


The case against the appellant, at its strongest, can be put as follows. The third accused approached the three police officers in the mall. She told them that she had something to sell, indicating that it was illegal. Then she took them to the Skills Centre in the mall and introduced them to the appellant. He showed them ninety-seven tablets, which he said had come with his sister-in-law from Maputo. (The third police officer then left, to get assistance from the police station.) The appellant said that the price was eight rand per tablet. At the time when this conversation took place his sister-in-law - the second accused, who later absconded - was present in the room.


The appellant does not deny any of this, except on one crucial point. In an unsworn statement from the dock, he said that it was his sister-in-law who was selling the tablets, that he thought they were for medicinal purposes (in other words, by clear implication, that he did not know they were proscribed drugs, so far as the transaction was concerned) and that all he did was to act as a translator on behalf of his sister-in-law, who could not speak English or Siswati.

Beyond that, in cross-examining the chemist who gave evidence for the Crown as to the content of the tablets, the appellant did put in issue the colour and size of the tablets involved in the transaction. In so doing, he appeared to be advancing, as a line of defence, the contention that the chemist had been given different tablets.


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There was one patent discrepancy in the evidence of the Crown's witnesses. The first of the police officers who were approached by the third accused in the mall said in evidence that, at the Skills Centre, the appellant had taken some tablets from his pocket and had got the remainder from some other place in the room. He could not say exactly where the appellant had taken them from. He did not mention that the tablets were at any time put into a plastic bag.


In his evidence in chief, the second of the officers testified that it was the appellant who had given them the tablets. He said that they came from his pocket. In cross-examination, it was put to him by the appellant (who was unrepresented) that they were in a bag "of his sister in law". His answer to that was


"That is not correct. They were taken by you from your pocket."


The presiding magistrate also questioned the second police officer about this. He elicited an answer that they were in a single plastic bag. When the magistrate informed him that his colleague had said that some were taken from some other place, the officer under cross-examination replied that he took it that his colleague was saying what he saw, "because we were not both doing the same thing at the same time." He went on however, in response to a further inquiry as to whether someone could have taken tablets out of a bag while he was not watching, to say that that could not have happened because he did not trust anyone in the room and was watching carefully whoever was moving.


Another police officer said that on the day in question, at his headquarters, the first police officer handed him ninety-seven tablets "in a packet".


There was one other difference between the evidence of the first and second officers. The second said that when they were approached in the mall by the third accused, she had said that she was selling something but that " she could not sell it in public because it was illegal". The first officer, who had already testified at the trial, had not said that.


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Moreover, in cross-examining the first officer, the third accused had asked and received the following questions and answers:


"Q. When I left with the Spar to the Skills Centre, from whom exactly, did you get the tablets.

"A. The tablets were produced by James Langa, the accused No. 1.


"Q. Why then did you involve me in this business of the tablets, because I had been sent by the owner of the tablets?


"A. Because you were his agent.


"Q. I was learning at school - at the Skills Centre, and I was acting on instructions of my boss.

"A. 1 do not know."


She had also suggested to the officer that she left after pointing out the person to him, and that she had not been in the same room when arrested.


In other words, the third accused was denying guilty involvement. It must be added, however, that it was never suggested to the second officer, who was the next witness, that he embellished his evidence in this respect to close a gap.


In his judgment, the learned Senior Magistrate misdirected himself in one respect. He began by saying that he accepted the evidence of the second police officer "as confirmed by (the first police officer) and the evidence of 'the accused No. 2', to the effect that accused No. 1 had ninety-seven tablets in his pocket". But, as I have narrated, that was not the evidence of the first police officer. What he had said, positively, was that the ninety-seven tablets had been brought together from two separate sources. He had not mentioned a container. It seems to me most unlikely that a dealer would have had ninety-seven tablets in his pocket otherwise than in a container, or of course that


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he would have sold that amount of tablets except in a container of some sort. On the other hand, I think that it is just as unlikely that if the appellant had gathered together the tablets in the way-described by the first officer, that policeman would not have recalled - and so mentioned - that at some point the appellant had not put them into a single container to hand over.


In fact, too, the second accused never gave evidence. By the time her opportunity to do so arrived, she had absconded. This may be a typographical error. However the third accused did not confirm any police officer's evidence as to where the tablets were produced from.


Where then does that leave this affair?


On the most favourable version of events to the appellant, a woman accosted three policemen in mufti in the mall. Certainly she was not a shopkeeper, selling her wares. She took them to the Skills Centre. There, admittedly and voluntarily, the appellant acted as an interpreter for his sister-in-law as (on his account) she offered ninety-seven tablets to them at eight "rand" each. At least two persons in my view should have been charged, undoubtedly, with trafficking in drugs. One, undoubtedly, was the third accused. The fact that the second accused, the sister-in-law, absconded pending the trial suggests strongly that she was involved as well. The question here is whether the appellant was also a party to a criminal transaction.


In the modem world, his explanation that he merely acted as an interpreter while one of his relatives offered for sale ninety-seven tablets to two men who came into a place that was not a shop is of course, in the circumstances, difficult to believe.


However, the appellant does not have previous convictions. It was not suggested that he was not at his ordinary place of employment. The presiding magistrate did not say in his judgment that the appellant was obviously implausible. Every criminal charge falls to be proved beyond reasonable doubt, whether it be murder or a mere breach of the peace. I do think that it is at least reasonably possible that a


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person, through lack of prudence, or perhaps even of resolution, might play a by-stander' s role in the commission of a criminal offence to which, in truth, he is not a party. In fact, I would go a step further. Even in the modem world, I do think that a person is entitled to assume, if he does not believe or actively suspect otherwise, that his companions are not engaged in a criminal activity - and that he is not to be held criminally liable for a lack of vigilance.


In the present case, there was in my view a significant discrepancy between the accounts of the two police witnesses whom the third accused approached. One must have been wrong. In other words, one must have described incorrectly the circumstances in which they were eventually offered the tablets. The Senior Magistrate of his own motion did recall the officer to whom the first two officers handed over the tablets, and elicited from him that the quantity could have fitted into a person's trouser pocket. However, I can see no safe basis for concluding that it was the first rather than the second of the two officers who was wrong. There was a material discrepancy giving rise to a question of the reliability of the officers' evidence. Moreover, although I do not say so critically, in any personal sense, the trial magistrate did not summarise accurately the evidence against the appellant.


The third accused was a person who clearly had an ulterior motive to serve by giving false evidence - namely to exculpate herself - but her own evidence was that the appellant had told her that it was his sister-in-law who wanted her to go and look for tablets. The second police officer confirmed that the second accused could not speak Siswati.


The appellant is entitled to the benefit of any reasonable doubt. In my view, on a correct summary of the evidence, and taking into account the discrepancy between the two officers, it cannot safely be said that the case against the appellant was proved beyond reasonable doubt.


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The appeal is accordingly allowed, and the conviction set aside.


DAVID HULL


CHIEF JUSTICE