Cape Town - Western Cape High Court Judge Robert Henney has highlighted difficulties in the application of certain case laws by lower courts as part of a recent judgment wherein a woman’s conviction on two counts of possession of drugs was set aside on review.
Kim Paulse, who appeared several times at the Cape Town Magistrate’s Court after she had been arrested in Green Point for possession of drugs, had elected to conduct her own defence after her Legal Aid representative withdrew.
During proceedings, Paulse pleaded guilty and admitted that she was aware of the small amount of mandrax and methamphetamine (tik) and was subsequently sentenced to pay a fine or spend three months in prison.
The reason for the review was noted by Judge Henney, who said in his judgment: “I had serious concerns whether the said proceedings were in accordance with justice on account of her being convicted based solely on her testimony.”
After questioning the magistrate’s decision, it was conceded that an expert statement required to assist the court in coming to a suitable conclusion had not been provided.
This regards scientific evidence being placed before the court to determine whether the substances of tik and mandrax that Paulse admitted to having in her possession fell within the ambit of the Drugs and Drugs Trafficking Act insofar as it is an “undesirable dependence-producing substance”.
Judge Henney said: “In this case... the accused admitted to being in possession ... and the court convicted the accused without satisfying itself by means of the scientific evidence... that such an admission was correctly made.”
As a result, the judge set aside both conviction and sentence, further noting: “This is not the first matter with similar charges that came before me on automatic review where the magistrate failed to adequately appraise him/herself as to the correctness of an admission made by the accused.”
Judge Henney further issued a directive that the judgment be sent to Cape Town and Wynberg Magistrate’s courts to assist magistrates in handling such matters adequately.