THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 125/11
Reportable

In the matter between:

BRIAN DANIELS

1ST APPELLANT
JOHAN CLASSEN

2ND APPELLANT
FAREED MOHAMMED

1st  APPLICANT
WINSTON ANTONY BLAAUW

2ND APPLICANT

and

THE STATE

RESPONDENT

Neutral citation: Daniels v State (125/11) [2012] ZASCA 71 (25 May 2012)

Coram:
HEHER, SNYDERS, WALLIS JJA, McLAREN AND SOUTHWOOD AJJA

Heard:
9 May 2012

Delivered:
25 May 2012

Updated:

Summary:
Criminal Procedure – appeal charges referring to unconstitutional
presumptions – charges not per se a nullity – necessary to examine
whole of trial record to determine whether a failure of justice or
unfairness in the conduct of the trial has resulted.

___________________________________________________________________________________
_
ORDER

On appeal from: Western Cape High Court (Cape Town) (Veldhuizen J sitting as court
of first instance):
The applications for leave to appeal are refused.

_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (SNYDERS, WALLIS JJA, McLAREN AND SOUTHWOOD AJJA):
[1] These applications for leave to appeal come before us in consequence of an order
made in terms of s 21(3)(c)(i) of the Supreme Court Act 59 of 1959.
[2] The two applicants, Mr Fareed Mohammed, and Mr Winston Anthony Blaauw,
together with thirteen co-accused1 were tried by Veldhuizen J and assessors in the
Western Cape High Court for a variety of serious offences. The first applicant, Mr
Mohammed, was convicted only in respect of count 48, a contravention of s 5(b) of the
Drugs and Drug Trafficking Act 140 of 1992 (‘the Drugs Act’) for dealing in an undesirable
dependence-producing substance, to wit, 100 000 Mandrax tablets. He was sentenced to
imprisonment for ten years. The second applicant, Mr Blaauw, was convicted on two
counts of contravening s 5(b), counts 47 (65 000 Mandrax tablets) and 48, and sentenced
to ten years’ imprisonment on each, five years of the second sentence to run concurrently
with the sentence on count 47.

1 The first and second appellants, Messrs Daniels and Classen, having been granted leave, allowed their
appeals to lapse.

[3] The trial judge refused the applicants leave to appeal against their convictions.
When they applied for leave to this Court their applications were supported by affidavits by
each of them in which the following allegations were made:
1.
In the indictment against the accused they faced a charge framed as follows in
respect of both counts 47 and 48:
‘Oortreding van art 5(b) of 4(b) gelees met Artikels 1, 13, 17 tot 25 en 64 van die Wet op
Dwelmmiddels en Dwelmsmokkelary 140 van 1992 (Handel in of besit van ‘n ongewenste
afhanklikheidsvormende stof)’.
It was to the charges so formulated that the applicants pleaded not guilty. During the
course of the trial the charges were not amended.
2.
On 1 February 2010 an application for discharge was made by all the accused at
the end of the state case. The trial court refused the applications of the present applicants
in relation to counts 48 and 47, and 48, respectively.
3.
‘Just before the Court adjourned [the first applicant in these proceedings deposed]  . . .
the learned judge mentioned that the legal representative for Accused 3 should look at the case of
S v Tswai 1988 (1) SA 851 (C). I enquired of my advocate what that case entailed and was told
that it involved a presumption where drugs were found in a vehicle. I was further informed by him
that he had done some further research and that there was also a case of S v Thali 2007 (2) SACR
23 (C) where an appeal bench of the then Cape of Good Hope Provincial Division had set aside a
conviction in terms of the Drug Trafficking Act, because the charge was incompetent. I was
advised that the reason for this was because the charge sheet contained the unconstitutional
sections 21(a)(b)(c) and (d) of the Drug Trafficking Act and that the facts were almost identical in
my case. I was further advised by counsel that in all likelihood, if the charge sheet was not
amended by the State, the judge would follow that decision and would find that the charge sheet
was incompetent.

At the time of the trial I was suffering from adverse cardiac related symptoms due mainly to the
stress of the trial and was not keen on further aggravating this condition by testifying. After taking
my health and the fact that the charge sheet was probably incompetent into consideration, I
decided that if it was not amended I would instruct my counsel to close my case.
No application to amend the charge sheet was made by the State and I accordingly closed my
case without leading evidence.’
4.
Save for omitting reference to a cardiac problem the second applicant deposed in
terms identical to the passages quoted.
[4] The reasons furnished by the applicants for not testifying in their own defence are to
be found in the ipse dixit of each, raised long after the event. Their counsel, who might
have been expected to corroborate their explanations, did not provide any supporting
statement. Nevertheless the State has not taken issue with the veracity or accuracy of
such evidence. I shall, for present purposes, accept it at face value.
[5] The confidence expressed by counsel at the end of the argument on absolution
proved unfounded. In his judgment at the end of the trial Veldhuizen J said:
‘[22]
Elk van die aanklagte onder die Wet meld dat die oortreding ten laste gelê gelees moet
word met artikels 17 tot 25 van die Wet. In die lig van die beslissings van die Konstitusionele Hof
(wat almal saamgevat is op bl 26b – d van S v Tshali 2007 (2) SASV 23 (KPA)) is hierdie
verwysings verkeerd. Die staat het dan ook geredelik toegegee dat daar nie op die vermoedens in
artikels 20 en 21 van die Wet gesteun word nie. Die verdediging wil dit hê dat die verwysing na
hierdie artikels in die Akte van Beskuldiging tot gevolg het dat die aanklagte ongeldig is. Ek stem
nie saam nie. Indien enige verwysing na artikels 20 en 21 geskrap word dan is die feitelike
bewerings wat in die aanklagte uiteengesit word steeds voldoende om die ten laste gelegde
oortreding daar te stel. Dit is nie onbelangrik om daarop te let dat artikels 20 en 21 van die Wet nie
misdaadskeppende artikels is nie maar slegs dien as bewysregtelike hulpmiddels om ‘n oortreding

van óf artikel 4 (b) óf artikel 5 (b) van die Wet te bewys. Die verdediging steun op die volgende
passasie in S v Tshali, supra, te bl 27f – g. Dit lees: ‘At the trial the appellant pleaded guilty to a
charge based in part upon statutory provisions which had been declared to be unconstitutional and
of no force and effect. Such a charge is incompetent and a conviction based upon such a charge
cannot, even upon a plea of guilty, be sustained.’ Die feite in Tshali verskil natuurlik van die feite
wat voor ons dien maar indien Erasmus R bedoel het dat enige aanklag wat ‘n verwysing na die
ongeldig verklaarde artikels bevat die aanklag in sy geheel ongeldig maak (wat ek betwyfel) dan
stem ek nie saam nie. Indien die aanklag gewysig word om die verwysing na artikels 20 en 21 te
skrap, wat te eniger tyd voor uitspraak gedoen kan word, dan sal daar geen benadeling vir die
beskuldigdes wees nie en, soos gemeld, wat oorbly is voldoende om die ten laste gelegde
oortredings daar te stel.’
[6] Having referred to the definitions of ‘deal’ and ‘sale’ in the Drugs Act, the learned
judge concluded:
‘Indien die hoeveelhede mandrax tablette wat in elk van die aanklagte onder die Wet betrokke is, in
ag geneem word noop gesonde verstand en dikteer logika dat dit, in die afwesigheid van enige
getuienis van die beskuldigdes, vir die handel en in besonder vir verkoop besit is. Sien die
passasie in S v Mutize 1978 (2) SA 911 (RA) at 913H.’
[7] Counsel for the applicants, sensibly, did not contest the learned judge’s conclusion,
which, as will appear, was plainly justified.
[8] According to the applicants, an application for a special entry was prepared by their
counsel in relation to the invalidity of the charges in counts 47 and 48. They were however
not present when and if it was submitted and argued. They say merely that the learned
judge converted it into an application for leave to appeal (which he refused). It is however
unnecessary to enter further upon this question, as there is nothing to suggest that the
application for a special entry was refused or that the refusal was the subject of an

application for leave to appeal. Moreover it is common cause that the present application
has covered all aspects of the application for a special entry.
[9] In argument before us the submission of the applicants’ counsel was simple and
limited in its scope:
1.
The unamended charges in respect of counts 47 and 48 containing reference to the
State’s reliance on sections of the Drugs Act (the reverse onus provisions) that had been
declared unconstitutional, per se amounted to a nullity. (The sections are summarised in
Moloi and Others v Minister for Justice and Constitutional Development and Others [2010]
ZACC 2 at paras 10 and 11. There the Constitutional Court expressly left open the effect
on the validity of the proceedings of such an unamended charge while at the same time
censuring the prosecution for continuing to rely upon charges containing reference to
unconstitutional provisions.)
2.
Inasmuch as the applicants relied on the defects in the charges in deciding to
withhold their testimony from the trial court a failure of justice had resulted and their trial
had been unfair.
[10] Counsel submitted that his first proposition was borne out by the judgment of
Erasmus J in Tshali. In that case the appellant had been charged with one count of dealing
in dagga in contravention of s 5(b) of the Act. The charge was defective in substantially the
same respects as in the charges in the present appeal. Before a magistrate the appellant
in Tshali pleaded guilty to the charge as framed. The Cape court, on appeal, said:
‘[11]
There is, however, a more fundamental flaw in the proceedings to which Mr Pothier also
adverted. At the trial the appellant pleaded guilty to a charge based in part upon statutory
provisions which had been declared to be unconstitutional and of no force and effect. Such a
charge is incompetent and a conviction based upon such a charge cannot, even upon a plea of

guilty, be sustained.
[12] For the foregoing reasons, the conviction of dealing in dagga cannot stand.’
The learned judge proceeded to consider whether a conviction of possession was
competent. He said:
‘[14]
In the present case the appellant was charged simpliciter with dealing; there is no reference
to possession. The prosecution deliberately chose not to charge the appellant in the alternative
with possession. That was an unfortunate choice because it is not now open to this Court to
substitute a conviction of possession of dagga in contravention of s 4(b) of the Act.’
[11] That the court considered the appropriateness of a conviction for possession in para
14 of its judgment and rejected it, not because the charge as pleaded to was defective, but
because of the failure to charge the appellant with the alternative of possession, is prima
facie inconsistent with the statement in para 11 of the judgment that a conviction based
upon a charge containing reference to unconstitutional provisions ‘cannot, even upon a
plea of guilty, be sustained’. It suggests that, in para 11, the court did not intend to convey
that such a charge resulted in nullification of the proceedings which related to it.
[12] Whatever the court’s intention in Tshali, the legal position is not in doubt. Section
322 (1) of the Criminal Procedure Act 51 of 1977 sets the limits of the powers of a court on
appeal.
[13] Section 322 of the Criminal Procedure Act 51 of 1977 provides:
‘(1)
In the case of an appeal against a conviction of any question of law reserved, the court of
appeal may-
(a)
allow the appeal if it thinks that the judgment of the trial court should be set aside on the
ground of a wrong decision of any question of law or that on any ground there was a failure of
justice; . . .
Provided that, notwithstanding that the court of appeal is of opinion that any point raised might be

decided in favour of the accused, no conviction or sentence shall be set aside or altered by
reason of any irregularity or defect in the record or proceedings, unless it appears to the court of
appeal that a failure of justice has in fact resulted from such irregularity or defect.’
[14] The test for a failure of justice is clearly established: see S v Carter 2007 (2) SA 415
(SCA) and the authorities there referred to. In short it requires the appellate court to
exclude from consideration all aspects of the trial that were affected or influenced by the
irregularity and to evaluate only the evidence that remains unsullied. If on considering that
rump a conviction would inevitably have followed there has been no failure of justice; if it
would not have the appellate court may set aside the proceedings (and usually will).
[15] Considering s 322(1) in the context of the Constitution Van der Westhuizen J said in
S v Jaipal 2003 (4) SA 581 (CC) at 597B:
‘The meaning of the concept of a failure of justice in s 322(1) must therefore now be understood to
raise the question of whether the irregularity has led to an unfair trial.’
It is with this dictum in mind that the established test must be applied.
[16] There is therefore, within the scope of s 322(1), no room for approaching any
irregularity or defect in the record or proceedings (including the charge or indictment) as
per se nullifying a conviction in a criminal trial. The task of a court seized with an appeal is
to reassess the evidence without the influence of the irregularity or defect in order to
determine whether a conviction must inevitably have followed. In applying that test it may
be that the irregularity or defect is so inseparable from the whole that a fair trial is
necessarily excluded. Thus, if the court cannot conclude that, in the absence of the
irregularity, the accused would have conducted his defence in the same fashion, it would
be unlikely to conclude that there has been a fair trial. In that sense the effect of the
irregularity or defect may be to nullify the conviction (ie the conviction would be ‘fatally

irregular’). But that will usually only be determined on a conspectus of the full trial record
and not, as seems to be suggested in Tshali, simply by identifying the irregularity and
tipifying it as ‘fundamental’.
[17] In the present instance the inclusion in the charge sheet of reference to the
unconstitutional provisions did not exercise an adverse influence on the conduct of the
trial. I say this for the following reasons:
1.
The provisions relied on were procedural and not substantive. They were originally
designed to assist the State to overcome the difficulty of proving matters thought to be
more usually within the knowledge of an accused person, such as proximity to unlawful
drugs, control of a vehicle in which drugs were being transported etc. But even the
inclusion of such references in the charge sheet did not necessarily mean that the State
became entitled to or would invoke them. In fact neither the court a quo nor the
prosecution did so in this case. As the court noted in its judgment at the end of the case
the State readily conceded that it placed no reliance on the presumptions in ss 20 and 21
of the Act. Counsel, who appeared for the applicants at the trial, accepted in his heads of
argument that the charge sheet could have been amended without any prejudice to them,
had such an amendment been sought at the close of the State case. He further informed
us that it was made clear by the prosecution, during the argument at the stage of the
application for a discharge, that no reliance would be placed on the presumptions.
2.
Neither of the applicants has deposed that he was either informed of or understood
the meaning or implications of the reference to the impugned sections in the indictment.
Nor, save for what appears below, does either of them explain whether and how he was or
might have been prejudiced by such references. It is clear that the substantive scope and
content of the charges was not affected by their inclusion.

3.
On their own say-so both applicants knew that the reference to sections 20 and
21 was unconstitutional and ineffective against them before deciding whether to testify.
They also knew that the prosecution did not intend to rely on them. They were in no way
dissuaded from testifying by reliance on those provisions or deterred by a perceived
difficulty arising from the discharge of a reverse onus.
4.
They decided not to testify because of advice received from their counsel that
judicial authority made it probable that they would be acquitted whether or not they gave
evidence, because the State had failed to amend the defective charges against them. That
advice was flawed but reliance on it was not caused by the irregularity, which they knew
posed no threat to them, but because they decided to exploit the irregularity to their own
advantage. Misplaced reliance on the legal advice of their counsel given in the bona fide
(albeit mistaken) pursuit of his professional mandate is not a ground for claiming that
justice has failed (R v Mathonsi 1958 (2) SA 450 (A) at 455H-456D; S v Seheri 1964 (1)
SA 29 (A) at 35E-F). Where counsel relies (wrongly) on his view of precedential authority
in his own court, as happened here in relation to the weight that counsel attached to S v
Tshali, the scope for determining that the trial was as a result, unfair, must necessarily be
limited: cf S v Halgryn 2002 (2) SACR 211 (SCA) at para 14. In this regard it seems to me
that the language adopted by Erasmus J was sufficiently loose to engender in the
applicant’s counsel more optimism in its force than was justified. Nor should it be left out of
account that the version put by counsel to the defence witnesses was hardly of such
substance as to induce confidence in the defence case. In this regard it should be pointed
out that neither applicant offered a statement explaining his plea of not guilty; nor did either
say on oath in the present application that he would have testified had it not been for his
counsel’s advice or take this Court into his confidence as to the content of such evidence

as he was able to proffer.
[18] A short summary of the evidence adduced against the applicants at the trial is all
that is required to establish the strength of the State’s case, independent of the influence
of the defective charges.
[19] The State evidence in respect of count 47 was in brief the following:
(1)
On 26 May 2004 Mr Classen (the erstwhile second appellant) was driving a white
Isuzu bakkie on the national road near Leeu-Gamka in the direction of Cape Town. When
the vehicle was stopped and examined by a routine traffic patrol it was found to contain a
false compartment in the chassis in which were discovered 65 plastic sacks containing
more than 100 000 mandrax tablets (metaquolone) and powder.
(2)
The police took possession of Classen’s cellphone. Shortly thereafter a call was
received on it from a person who claimed to be the owner of the bakkie and wanted to
know what was happening. The recipient, assuming the guise of a disinterested bystander,
informed him that the driver had been taken ill and removed by ambulance. The caller
thereupon offered him R1000 to look after the vehicle, saying that he would come from the
Cape to fetch it. He thereafter telephoned several times while en route to ensure that the
vehicle was in order and to seek directions. Late at night a white Volkswagen golf driven
by the second applicant (and carrying a passenger) arrived. Inspector Moolman, who held
himself out as the owner of the filling station where the bakkie was standing, asked for
payment of the R1000 but the second applicant first wanted to look at the bakkie. Moolman
asked for R500 for the towing-in of the vehicle. After the second appellant had inspected
the vehicle he paid Moolman R500 and received the keys. As he drove away in it the
second applicant was stopped and arrested.
[20] The state presented the following case in respect of count 48:

(1)
On 17 June 2004 Cape Couriers at Johannesburg International Airport received a
consignment which on inspection by its representative appeared to contain drugs. The
consignment was destined for its Cape Town branch. When the police were summoned
they decided to let the delivery take its normal course but under surveillance.
(2)
On the morning of 21 June 2004 the first applicant driving a Mazda bakkie collected
the boxes containing the consignment from the Montague Gardens depot of Cape
Couriers. The police followed him to a Caltex garage. There the first appellant met the
second applicant and another person. The second applicant left with the Mazda bakkie. In
Epping Forest the boxes were transferred to a white DAF bus and the second applicant
drove off in the Mazda. The DAF bus was followed by the police to Elsies River. When the
boxes were opened they held 152 384.6g of mandrax (metaquolone) tablets and powder.
[21] In regard to both charges, the inference that the applicants were knowingly involved
in the commercial exploitation of the mandrax that they transported at the relevant times
was the only reasonable inference in the circumstances.
[22] Having regard to what I have said earlier, I am unpersuaded that the irregularity
which was constituted by the unconstitutional reference to the reverse onus presumptions
in the charges caused the applicants to refrain from testifying in their own defence. The
evidence of their guilt was overwhelming and they knew that the State did not intend to rely
on the invalid presumptions. The inference is unavoidable that they decided to take a
chance on escaping conviction by relying on the technical irregularity. No failure of justice
or unfairness in the conduct of the trial resulted from the irregularity.
[23] The applicants’ counsel conceded that the evidence adduced by the State built a
prima facie case that called for an answer by his clients; when they remained silent, the
onus on the State was discharged. There is therefore no future for the applicants in an

appeal against the merits of the conviction.
[24] The applications for leave to appeal are accordingly refused.

_________________

J A HEHER

JUDGE OF APPEAL

APPEARANCES
1st and 2nd APPELLANTS: E H de Villiers

Legal Aid Board, Cape Town

Legal Aid Board, Bloemfontein

RESPONDENT:

D A Greyling (Ms)

The Director of Public Prosecutions, Cape Town

The Director of Public Prosecutions, Bloemfontein