THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable

Case No: 568/2022

In the matter between:

FRANK NABOLISA

APPELLANT

and

THE REGIONAL

FIRST RESPONDENT
COURT MAGISTRATE

MS SYTA PRINSLOO N.O.

THE DIRECTOR OF PUBLIC

SECOND RESPONDENT
PROSECUTIONS:
GAUTENG DIVISION OF
THE HIGH COURT,
JOHANNESBURG

Neutral Citation: Nabolisa v The Regional Court Magistrate and Another
(568/2022) [2023] ZASCA 07 (19 January 2024)
Coram:
ZONDI and MOKGOHLOA JJA and NHLANGULELA AJA
Heard:
24 AUGUST 2023
Delivered:  This judgment was handed down electronically by circulation to the
parties’ representatives by email, published on the Supreme Court of Appeal
website, and released to SAFLII.  The date and time for hand-down is deemed to be
11h00 on 19 January 2024.

Summary: Appeal against the dismissal of an application for review – whether
the appellant's right to a fair trial was infringed   – the appeal is dismissed.
________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Bokako AJ
with Yacoob J concurring, sitting as court of first instance):

The appeal is dismissed.
________________________________________________________________

JUDGMENT

NHLANGULELA AJA (ZONDI and MOKGOHLOA JJA concurring):

Introduction
[1] The appellant together with one Ms Natasha Mashiane, both legally
represented, appeared before the first respondent (sitting as the regional
magistrate at the Regional Division of Johannesburg, Alexandra) each charged on
two counts of dealing in or unlawful possession of cocaine in contravention of s
5(b) or s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act);
and unlawful possession of paracetamol (acetaminophen) and methenamine
(hexamine) in contravention of s 22A of the Medicines and Related Substances
Act 101 of 1965 (the Substances Act). At the conclusion of the trial, the appellant
was convicted of dealing in cocaine and unlawful possession of paracetamol and
methenamine. He was sentenced to undergo imprisonment for a cumulative
period of 30 years. Further, an order was issued that the exhibits, 2.455 kg of
cocaine, 5.681 kg of paracetamol and 2.748 kg of methenamine are forfeited to

the State. Ms Mashiane was found not guilty in respect of both counts, and she
was acquitted.

[2] Having exhausted all the avenues of appeal, albeit without success, the
appellant brought an application to the Gauteng Division of the High Court,
Johannesburg (high court) seeking an order to review and set aside the decision
of the first respondent convicting and sentencing him on the basis that his fair trial
rights were infringed, which vitiated the criminal proceedings in their entirety.
On 8 April 2021 the high court (per Yacoob J and Bokako AJ) dismissed the
review application. The appeal to this Court is with the leave of the high court.

The litigation history
[3] The appellant’s efforts to have his conviction and sentence quashed
commenced by engaging in the appeal process. Following upon the sentence
proceedings on 19 May 2014, he brought an application for leave to appeal against
both the conviction and sentence. The first respondent found that the application
for leave had no reasonable prospect of success on appeal, and she dismissed it.
Undeterred by that outcome, the appellant petitioned the Judge President of the
Gauteng Division of the High Court for leave to appeal against conviction and
sentence. On 5 September 2014, Mokgoatlheng and Strydom JJ dismissed the
appellant's petition for leave to appeal against both the conviction and sentence.
In a further application for special leave to appeal to this Court against conviction
and sentence, on 16 July 2015, Navsa ADP and Mbha JA dismissed the
application on the ground that there were no special circumstances present that
merited a further appeal. To that extent, all the efforts of the appellant to have his
conviction and sentence overturned on appeal came to naught. It is against that
background that the review remedy of the appellant must be considered.

Background facts

[4] The facts which gave rise to these proceedings are the following: Acting
on a telephonic police intelligence report, a team of police officers led by Warrant
Officer Hein Leonard De Jager went to house no. 2053 Makwata Street, Ebony
Park where they found one Ms Audrey Radien and her son in occupation of the
house. Ms Radien introduced herself as the mother of Ms Mashiane, the
appellant’s girlfriend. She permitted them to search the house. In a bedroom that
she identified to the police officers as belonging to Ms Mashiane, they found two
suitcases, one maroon and another black in colour, in which they found small
plastic packets that contained large quantities of powdery substances that they
suspected was cocaine. Thereafter, they removed the exhibits to the police station,
wrote them into the SAP 13 Register and kept them in the storeroom. These
exhibits were later analysed by Sergeant Rodney Machimane at the state
laboratory.

[5] Sgt Machimane and Major Nolovuyo Gifta Makwatane, the government
employees attached to the Forensic Science Laboratory unit of the SAPS testified
on behalf of the state. Sgt Machimane testified that he was a forensic analyst who
was charged with the task of analysing the exhibits to verify if they were
‘dangerous dependence producing’ substances within the definition of that term
in the Drugs Act and the Substances Act respectively. After rigorous analytical
testing performed in a laboratory applying internationally accepted comparative
analytical techniques of gas chromatography coupled to mass spectrometry (the
GC-MS) and Fourier Transform Infrared Spectroscopy (the FT-IR), he found that
out of the substances that were contained in the maroon suitcase (evidence bag
FSG-249068) and the black suitcase (evidence bag FSG-249067), substances
weighing 2.455kg; 5.681kg; and 2.748kg were cocaine, paracetamol and
methenamine respectively. The forensic evidence adduced by Sgt Machimane
was foreshadowed in the affidavit that he had prepared in terms of s 212 of the
CPA. It was admitted in evidence as Exhibit ‘G’.

[6] The appellant was legally represented at the trial.  But he did not cross-
examine the state witnesses, testify in his own defence or call a witness to testify
on his behalf.  Mr Hamilton, the legal representative for Ms Mashiane, led the
evidence of Dr Cornelius Christoffel Viljoen who is qualified as a biochemist
with forensic experience in research of snake venoms. Dr Viljoen disputed the
integrity of the forensic analysis and findings of Sgt Machimane that some of the
exhibits contained cocaine powder, alleging that the 303 molecular mass
spectrometry found is a chemical description of cocaine as well as other
substances that have been compiled by the USA National Institute for Standards
and Technology. He testified that the GC-MS technique that was applied by Sgt
Machimane did not have unlimited capacity to produce unquestionable results.
He testified that since only a few of the majority samples obtained from the
exhibit substances were analysed, the findings of Sgt Machimane that the exhibits
contained cocaine, paracetamol and methenamine were not conclusive. He also
testified that the findings made by Sgt Machimane are incorrect because the
testing machines used had not been calibrated.

[7] Mr Hamilton also called Dr Andrew Dinsmare to testify. He has a doctoral
degree in chemistry. In the course of executing duties as a chemistry lecturer at
the University of the Witwatersrand, he ran a private analytic laboratory for 15
years for the benefit of research students. He once assisted in a research project
of a student on an assignment that had been offered by the National Intelligence
Agency. The assignment involved forensic analysis of narcotics or drug-related
substances. However, it was the student, not Dr Dinsmare that did the analysis.
He testified that the findings that the exhibit substances contained cocaine,
paracetamol and methenamine, were invalid because not all the samples were
tested in the HP9 machine. The reference samples used by Sgt Machimane were

not named and the results of the forensic analysis were hastily written by hand
instead of the HP9 machine printing them out.

[8] To the extent that Dr Viljoen queried the fact that the GC-MS machine was
calibrated, the prosecution applied for the re-opening of the state’s case to lead
the evidence of Major Makwatane, which was granted. Major Makwatane’s
evidence was that she, in her capacity as a laboratory technician, had carried out
suitability tests on the two machines described as HP4 and HP9 that were later
used by Sgt Machimane to analyse the exhibits. She disavowed any involvement
in the exercise of forensic analysis, but confirmed that the machines were
calibrated properly, and they were in good condition for the analysis of exhibits
to be carried out.

In the high court
[9] The appellant brought an application seeking an order to review the first
respondent's decision to convict and sentence him. He relied on the following
grounds of review:
(i) The second respondent’s failure to make proper disclosure and the first
respondent’s failure to order proper disclosure of the working papers of the
forensic analyst.
(ii) The first respondent placed an onus on an accused in a criminal matter.
(iii) The appellant was convicted of a non-existing offence of possession with
intention to deal, relying on a presumption, contained in s 21 of the Drugs Act1,
that has been declared unconstitutional.

1 Section 21 presumptions were declared unconstitutional in S v Bhulwana; S v Gwadiso 1995(2) SACR 748 (CC)

(iv) The first respondent permitted rude and inappropriate cross-examination by
the second respondent’s counsel.
(v) Evidence of a state witness in favour of the defence was rejected when the
witness was not discredited.
(vi) Sentencing proceedings were unfair.

[10]  The high court rejected all of the appellant’s grounds of review and
dismissed the application. It, nevertheless, granted him leave to appeal to this
Court.
In this Court
[11] The issue is whether the high court erred in finding that the appellant's right
to a fair trial was not infringed. To succeed in his review application the appellant
had to bring his application within the purview of s 38, read with s 35(3) of the
Constitution2 by satisfying the high court on the facts supporting his claim that
his constitutional rights were infringed during the criminal proceedings. In terms
of S v Zuma and Others3 (Zuma) the s 35(3) fair trial rights of the Constitution
that the appellant seeks to advance in his review proceedings embrace a concept
of substantive fairness that is much broader than the fair trial rights themselves.
The Constitutional Court in Zuma held at para [16]:

2 Section 38 provides: ‘Anyone listed in this section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a
declaration of rights.’
Section 35(3) provides: ‘Every accused person has a right to a fair trial, which includes the right–…(i) to adduce
and challenge evidence; . . .(l) not to be convicted of an act or omission that was not an offence under either
national or international law at the time it was committed or omitted;’
3 S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568;
[1996] 2 CHRLD 244 para 16. See also National Director of Public Prosecutions v King [2010] ZASCA 8; 2010
(2) SACR 146 (SCA); 2010 (7) BCLR 656 (SCA); [2010] 3 All SA 304 (SCA) para 4.

‘That caveat is of particular importance in interpreting section 25(3) of the Constitution. The
right to a fair trial conferred by that provision is broader than the list of specific rights set out
in paragraphs (a) to (j) of the sub-section. It embraces a concept of substantive fairness which
is not to be equated with what might have passed muster in our criminal courts before the
Constitution came into force. In S v Rudman and Another; S v Mthwana 1992(1) SA 343(A),
the Appellate Division, while not decrying the importance of fairness in criminal proceedings,
held that the function of a court of criminal appeal in South Africa was to enquire
"whether there has been an irregularity or illegality, that is a departure from the formalities,
rules and principles of procedure according to which our law requires a criminal trial to be
initiated or conducted".
A court of appeal, it was said, (at 377)
"does not enquire whether the trial was fair in accordance with 'notions of basic fairness and
justice', or with the 'ideas underlying the concept of justice which are the basis of all civilised
systems of criminal administration'."
That was an authoritative statement of the law before 27th April 1994. Since that date section
25(3) has required criminal trials to be conducted in accordance with just those "notions of
basic fairness and justice". It is now for all courts hearing criminal trials or criminal appeals to
give content to those notions.’

[12] The appellant’s attack on the high court’s judgment is based on the
following grounds:
(a) The prosecutor suppressed the working papers used in the forensic analysis of
the exhibit substances during the state case, thus depriving the appellant of his
right to challenge the forensic evidence adduced by Sgt Machimane   which
proved that some of the exhibits were cocaine;
(b)
The first respondent failed to order the re-calling of Sgt Machimane for
cross-examination on the working papers;
(c)
Sgt Machimane conducted selective forensic analysis of some of the
samples, instead of all, taken from the exhibit substances, which was irregular;

(d)
The HP4 and HP9 machines used and the GC-MS technique applied by Sgt
Machimane in analysing the exhibit substances did not meet internationally
recognized scientific standards;
(e)
The condonation by the first respondent of the prosecutor’s use of rude and
inappropriate language, ‘Ag shame’, when cross-examining Dr Dinsmare, the
defence witness, was improper; and
(f)
The finding by the first respondent that the appellant and his counsel had
not challenged the evidence of Sgt Machimane when that had been done by Mr
Hamilton, the legal representative for the co-accused, was erroneous.

[13]  In argument, it was submitted on behalf of the appellant that the
irregularities listed above constituted an infringement of the appellant’s
constitutional rights as set out in ss 35 (3) (i) and (l) of the Constitution. It was
contended further that the suppression of and/or late disclosure of the working
papers denied the appellant information that was favourable to his defence, denied
him his right to raise contradictions in Sgt Machimane's evidence, concealed
irregularities in methods used to analyse the exhibit samples and made it possible
for Sgt Machimane not to be recalled by the first respondent to clarify the
discrepancies between his s 212 affidavit and the working papers on which this
scientific analysis of the exhibit samples was done.

[14]   On the other hand ,  the State  raised a point in limine urging this Court to
dismiss the appeal on the ground that this appeal is res judicata4 as the grounds
for the appeal against the judgment and order of the high court are the same as
those on which this Court dismissed the application for special leave to appeal
This same point in limine had also been raised before the High Court, and it was

4 In Molaudzi v S [2015] ZACC 20; 2015 (8) BCLR 904 (CC); 2015 (2) SACR 341 (CC)para 14 it was stated “Res
judicata is the legal doctrine that bars continued litigation of the same case, on the same issues, between the same
parties.”

dismissed on the basis that the grounds for the review application and those for
the application for special leave overlap. In the absence of an appeal against that
decision, the point in limine cannot succeed.

[15] On the merits of this appeal, it was submitted on behalf of the State that the
contention by the appellant that it had suppressed the working documents of the
forensic analysts, was not correct. The State argued that the documents were not
part of the docket. In any event, the s 212 statement of Sgt Machimane that was
contained in the docket was discovered, and it was used by the prosecutor when
leading the evidence of Sgt Machimane. Both the State and defence had closed
their cases when Mr. Hamilton brought an application in terms of s 87 (1) of the
Criminal Procedure Act 51 of 1977 (CPA)5 to be furnished with further particulars
of the docket. Although the first respondent dismissed the application, the
working papers sought were furnished to Mr Hamilton upon request for the same
from the Forensic Science Laboratory. Counsel for the State argued, with reliance
on Mkhize v S6, that the finding of the trial court that some of the exhibit samples
were cocaine was correct as Sgt Machimane was not challenged by counsel for
the appellant and the alleged discrepancies between the working papers and the
evidence of Sgt Machimane, as alluded to by Mr. Hamilton, were never put to Sgt
Machimane.

[16] In any event, the State submitted that the fact that the working documents
had certain numbers written in pen did not contradict the correctness of the

5 Section 87 (1) serves the right of the accused to obtain more information on what has been alleged or is missing
in the charge sheet to prepare his/her defence.
6 The case of Mkhize v S (390/18) [2019] ZASCA 56 (1 April 2019) restates the principle of law that the accused
has an obligation to put his/her case to the state witnesses under cross-examination, and the failure to do so
strengthens the state case against him/her. In terms of the decisions in the President of the Republic of South Africa
v South African Rugby Football Union & Others [1999] ZACC 11; 2000 (1) SA 1 (CC) para 61; and S v Boesak
2000 (3) SA 381 (SCA), the appellant deliberately abandoned his fair trial protection.

evidence of Sgt Machimane. It argued that both Dr Viljoen and Dr Dinsmare
lacked the skills and experience in forensic analysis of cocaine substances using
GC- MS and FT-IR techniques. The State further submitted that the use by the
State counsel of the term “Ag Shame” during the cross-examination of Dr
Dinsmare did not constitute an appropriate language. It argued that the comment
was made in response to Dr Dinsmare’s criticism of the evidence of Sgt
Machimane that he could not have analysed the number of samples which he said
he did. Dr Dinsmare, proceeded the argument, could not criticize the evidence of
Sgt Machimane when he had not studied Sgt Machimane's working papers before
testifying.

[17] The allegations that the appellant’s fair trial rights were violated during the
trial are not borne out by the evidence. The police witnesses conducted a lawful
search and seizure of the substance exhibits. I cannot find irregularities in the
manner in which the charge sheet was framed and the charges were put to him.
The first respondent handled the plea proceedings and the trial properly.  The
offences that were proved against the appellant were competent and he was
convicted on the strength of credible state evidence. The evidence of both Dr
Viljoen and Dr Dinsmare was correctly rejected by the first respondent. It
transpired during cross-examination that the criticism made by these witnesses
against the forensic findings of Sgt Machimane was not buttressed with scientific
facts. They testified without having read the working documents of Sgt
Machimane. They were proved not to possess experience in analysing drugs.
They had no experience in the use of the HP4 and HP9 machines that were
calibrated by Major Makwatane and used by Sgt Machimane. Dr Viljoen
conceded that he was a ‘chemical layman’. He was unable to point to any one
compound in the list compiled by the USA National Institute for Standards and
Technology that has the same molecular mass of 303 as the cocaine compound.
Dr Dinsmare conceded that he was rushed to give his testimony without having

had the benefit of consultation with Sgt Machimane.  He conceded that the
reference samples used by Sgt Machimane to analyse the exhibit substances were
in accordance with international best practices. He conceded that Sgt Machimane
did find cocaine and methenamine in the exhibits.

[ 18] I reject the appellant’s contention that the use of the phrase ‘ag shame’ by
the State counsel during the cross-examination of Dr Dinsmare was so
inappropriate to such an extent that it undermined the integrity of the proceedings.
A proper reading of the record reveals that the prosecutor merely used the
comment to lambast Dr Dinsmare’s stratagem of shifting blame for not having
prepared for trial.

[19] The appellant did not ask for further particulars of the charge relevant to
the working papers. Neither did he ask for the discovery of the working papers of
the forensic analysis of the substances that had been found in his possession7.  The
dismissal of the appellant’s application for further particulars of the charges was
proper, it having been made on the basis that the papers sought were not part of
the police docket and were not sought for the purpose of preparation for trial. He
chose not to exercise his constitutional right to challenge the evidence of Sgt
Machimane that directly implicated him in the commission of the offences with
which he was charged. The appellant, still being legally represented, elected not
to testify.8

7 As indicated in Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC),
1996 (1) SA 725 (CC) at 778E the accused will have access to relevant parts of the docket if he or she asked for
discovery thereof.
8 It was stated in Osman and Another v Attorney General [1998] ZACC 14; 1998 (4) SA 1224 (CC); 1998 (11)
BCLR 1362 para 22 and S v Thebus and Another [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100
(CC) at para 57 that the exercise of the right to remain silence is not a risk, but has consequences for trial
proceedings.

[20] Consequently, none of the grounds of appeal have been proved. The
judgment of the high court cannot be faulted.

[21] In the result the following order is made:
The appeal is dismissed.

___________________________
ZM NHLANGULELA
ACTING JUDGE OF APPEAL

Appearances

For Appellant:

M Kolbe SC
Instructed by:

HJ Van der Westhuizen Attorneys, Roodepoort
Wessels & Smith Attorneys, Bloemfontein

For Respondents:
AM Williams
Instructed by:
Office of the State Attorney, Pretoria
C/O Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
19 January 2024
Status:
Immediate

The following summary is for the benefit of the media in the reporting of this
case and does not form part of the judgments of the Supreme Court of Appeal

Nabolisa v The Regional Court Magistrate and Another (568/2022) [2023] ZASCA 07 (19
January 2024
__________________________________________________________________________

Today the SCA handed down judgment dismissing the appeal against the decision of the
Gauteng Division of the High Court, Johannesburg (the high court).

On 8 April 2021 the high court dismissed an application brought by the appellant seeking an
order to review and set aside the decision of the first respondent convicting and sentencing him
on the basis that his fair trial rights were infringed. The common cause facts were that the
members of the SAPS, acting on a tip-off, searched and found large quantities of powdery
substances stored in two suitcases kept in a house used and controlled by the appellant.   In the
forensic tests that were conducted by Sgt Rodney Machimane, the drugs analyst attached to the
Forensic State Laboratory, it was found that the powdery substances were cocaine weighing
2.455kg, paracetamol (acetaminophen) weighing 5.681 kg and methenamine (hexamine)
weighing 2.748 kg. Having been charged and appeared for trial before the first respondent at
the Regional Division of Alexandra, the appellant was found guilty of dealing in cocaine in
contravention of s 5(a) of the Drugs and Drug Trafficking Act 140 of 1992 and unlawful
possession of paracetamol and methenamine in contravention of the Medicines and Related
Substances Act 101 of 1965. Pursuant thereto, he was sentenced to undergo imprisonment for
30 years. When his appeal remedy against the convictions and sentence was unsuccessful, he
resorted to the review application in terms of s 38 read with s 35 of the Constitution, alleging
that had the respondents not infringed his fair trial rights he would not be convicted and
sentenced. The upshot of the appellant’s appeal was that the decision of the high court would
have been different if the first respondent had taken into account that the prosecutor failed to
use the working papers of the forensic analysis when leading the evidence of Sgt Machimane;
selective samples of the exhibit substances were used during the forensic analysis; the HP4 and
HP9 machines used and the GC-MS technique applied in testing the exhibit samples did not
comply with international standards; and that the prosecutor was rude towards one of the
witnesses called to testify on behalf of the appellant’s co-accused. In assessing the appeal, the
SCA took into account the facts found proved by the regional court that the appellant was the

possessor of and dealer in the exhibit substances that were recovered by Warrant Officer De
Jager and that the forensic analysis conducted by Sgt Machimane revealed that the exhibit
substances fitted the description of cocaine, paracetamol and methenamine that are prohibited
substances under the Drugs Act and Medicines and Related Substances Act. The submission
made on behalf of the appellant that the forensic analysis of the exhibit samples and the
machines used did not meet international standards is not borne out of the facts. The SCA did
not find any irregularities in the proceedings before the high court, including the forensic
evidence adduced by Sgt Machimane.  Neither was any of the appellant’s trial rights infringed
in the management of the trial by the first respondent. The language used by the prosecutor
during the cross-examination of Dr Dinsmare did not compromise the integrity of the trial
proceedings. Instead, the SCA found that the appellant chose not to ask for further particulars
to the charge or to call upon the state to discover the working papers for the preparation of his
defence. The appellant chose not to testify and call witnesses to challenge the state evidence
which called for his answer.  In the absence of a misdirection on sentence, the appeal court is
not entitled to interfere with the imposed sentence of 30 years’ imprisonment.

In the result, the SCA dismissed the appeal.