Pubdate: Mon, 06 Dec 2004
Source: Cape Times (South Africa)
Copyright: 2004 Cape Times
Author: Fatima Schroeder
Bookmark: (Cocaine)


'Magistrate Erred'

A Milnerton man's appeal against his conviction on charges of possession of 
cocaine, as well as dealing in and manufacturing the drug, has been dismissed.

But the Cape High Court expressed a strong view that his co-accused, who 
was acquitted on all the charges, should in fact have been convicted.

In addition, the court criticised the magistrate's findings that a key 
state witness had reason to give false evidence.

Moegamat Taurique Mearns and Melvyn Bathgate were tried in the Cape Town 
Magistrates' Court last year on charges of possession of cocaine as well as 
dealing in and manufacturing the drug.

The state alleged that they were found in possession of cocaine in Nomad 
Street, Sanddrift, on July 7, 1998 and that they distributed the drug to 

The men were initially also charged under the Prevention of Organised Crime 
Act and for income tax fraud, but the state later withdrew these charges.

On August 1 2003 the Cape Town Magistrate's Court convicted Mearns of 
unlawful possession of cocaine, and dealing in and manufacturing cocaine.

Magistrate Hennie le Roux found that a fingerprint on a package of cocaine, 
coupled with Mearns's failure to testify, led to his downfall.

He was sentenced to 15 years' imprisonment, of which eight years were 
suspended. Bathgate was acquitted on all the charges.

During the trial state witness Denzil Smith testified that Bathgate was the 
brains behind the cocaine operation and that Mearns acted as a manager. 
Smith helped with the packing of the manufactured products.

In his judgment, Magistrate Le Roux found that Smith was not a good witness 
and that he had reason to give false evidence against Mearns and Bathgate.

But, in a judgment handed down on Friday, Justice Deon van Zyl said 
Magistrate Le Roux had erred in making this finding.

He said Smith had made mistakes during his evidence but that he generally 
came across as an honest witness.

He said Bathgate had been lucky, and that he had serious reservations about 
the trial court's findings.

It was clear that Bathgate had played a leading role and that Mearns was 
his second-in-command, he said.

"How on earth did Bathgate get away? ... The state proved his guilt again 
and again. It is the biggest load of rubbish I have ever heard," the judge 
said in court on Friday.

But he said he could not take the matter further because the state had not 
appealed against the findings.

Acting Justice Nick Treurnicht agreed with the findings.

Bathgate is currently being prosecuted for income tax fraud and he also 
faces charges under the Prevention of Organised Crime Act. His trial is set 
for May next year.
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