R v Moyage and Others

• Jurisdiction: South Africa
• Citation: 1958 (3) SA 400 (A)

R v Moyage and Others
1958 (3) SA 400 (A)

1958 (3) SA p400

Citation	1958 (3) SA 400 (A)
Court	Appellate Division
Judge	De Beer JA, Beyers JA, Van Blerk JA, Reynolds AJA and Ogilvie Thompson AJA
Heard	May 20, 1958
Judgment	June 6, 1958

Flynote : Sleutelwoorde F

Criminal procedure — Indictment — Statutory G offences — Necessary averments — Whether one or more offences disclosed — Effect — Sentence — Imprisonment and fine — Effect of sec. 336 (1) of Act 56 of 1955 — Appeal — New points on appeal — Limitations on — Food and drugs — Dagga — Conveyance in contravention of sec. 61 (1) (b) of Act 13 of 1928 as amended — Proof of mens rea necessary — Whether H sub-section contains one or more offences — Immateriality of where charge discloses an offence and accused sufficiently informed of nature of offence — Sentence — Effect of proviso to sec. 336 (1) of Act 56 of 1955.

Headnote : Kopnota

Slavish adherence by draftsmen of charges to the words of the statute creating the offence can be - and often is - productive of wholly unnecessary confusion; but the Court must. in determining whether the charge contains particulars 'reasonably sufficient to inform the accused of the nature of the

1958 (3) SA p401

charge '(vide section 315 (1) of Act 56 of 1955), give due effect to the provision in section 315 (2) (a) that 'the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient'. Where the charge sheet reasonably accurately follows the words of the statute creating the offence, it discloses an offence. Where the charge sheet, although generally following the language of the statutory provision, omits a portion, one must enquire (a) whether what is stated discloses an offence (for if it does not, the conviction cannot stand); and (b) whether, if an offence A is disclosed, it is set forth in a manner that is reasonably sufficient to inform the accused of its nature.

Proof of mens rea is necessary to establish a contravention of section 61 (1) (b) of Act 13 of 1928, as amended.

Quaere: Whether the sub-section creates several offences or only one offence which may be committed in several different ways.

The proviso to section 336 (1) of Act 56 of 1955 does not permit a sentence for contravening section 61 (1) (b) of Act 13 of 1928 (as B substituted by section 17 of Act 29 of 1954) in which the sum of the periods of imprisonment, direct and alternative, amount to more than five years.

Appellants had been convicted of contravening section 61 (1) (b) of Act 13 of 1928 as substituted by section 17 of Act 29 of 1954. The charge, after setting out their names, had proceeded: 'beskuldig van die misdaad van Wet 13 van 1928 artikel 61 (1) (b) gelees met die 5de Skedule, soos gewysig. Alternatief, Wet 13 van 1928 artikel 61 (1) (c) gelees met 5de Skedule soos gewysig, deurdat op (of omtrent) die 8ste dag van Februarie C 1957 en te of naby Nylstroom in voormelde distrik, genoemde beskuldigde(s) wederregtelik gesamentlik of afsonderlik die een of die ander wederregtelik 'n plant of deel van 'n plant waaruit gewoonte vormende medisyne geekstraheër, verkry, voortgebring of vervaardig kan word, ingevoer, vervoer, versend, uitvoer oorlaai, verbou of insameling daarvan toelaat, of daarby behulpsaam was, te wete, Dagga 131 1bs. 1/4 ons. Alternatief. Dat die genoemde beskuldigdes op die tyd en plek in die Hoofklag vermeld wederregtelik 'n gewoonte vormende medisyne of so D 'n plant of deel van so 'n plant toegedien, vir verkoop of lewering besit het, of op enige wyse hoegenaamd lewer of ontvang het, te wete, Dagga 131 1bs. 1/4 ons.' Appellants had pleaded guilty. The Crown had called a sergeant of police who had deposed that the appellants had been stopped at 2 a.m. travelling at high speed in a motor car, which had contained, inter alia, four grain bags of dagga and over £700 in money, that the appellants had been warned, offered no explanation or permit, and been arrested; and that dagga was a habit-forming drug. Appellants E had been convicted on the main charge and sentenced in the case of No. 1, who had a considerable record, to £500 or 5 years' imprisonment with hard labour plus five years' imprisonment with hard labour, and in the case of the others to £400 or four years' imprisonment with hard labour. In an appeal a Provincial Division had suspended two of the four years alternative imprisonment in the case of the latter. In a further appeal,

Held, that the deficiencies in the charge sheet could have been corrected without prejudice and could not be relied upon for the first time on appeal.

F Held, further, that the charge sheet disclosed an offence and that what had been set out therein was reasonably sufficient to inform the accused of the nature of the offence with which they were charged.

Held, further, that the form of the charge sheet had, on the particular facts of the case, occasioned no real prejudice whatever to the appellants.

Held, further, that the required mens rea had been clearly established.

Held, further, however, that the sentence on No. 1 was incompetent and had to be altered to read 'Fined £500 and, in addition, imprisonment G with compulsory labour for a period of 5 years'.

Case Information

Appeal from a decision in the Transvaal Provincial Division (DOWLING, J., and HIEMSTRA, J.), leave having been granted by such Court, dismissing an appeal from a conviction in a magistrate's court. The H facts appear from the judgments of DE BEER, J.A., and OGILVIE THOMPSON, A.J.A.

J. Unterhalter, for the appellants: The charge, slovenly drawn and ungrammatical, does not make it clear whether appellants are charged conjunctively, disjunctively or cumulatively. The charge sheet does not, therefore, disclose an offence; see R v Endemann, 1915 T.P.D. at

1958 (3) SA p402

p. 152; R v Omarjee, 1955 (2) SA at pp. 549, 550; R v Preller, 1952 (4) SA at pp. 470, 471; Ex parte the Minister of Justice: In re R v Masow & Another, 1940 AD at p. 89; Chowthee v R., 1931 NPD at p. 113; R v Sheshe & Others, 1951 (2) SA at p. 114; R. v. A Matsapula, 1952 (4) SA 39; R v Leibrandt, 1953 (1) SA 594; R v Freitag, 1953 (2) SA 178; R v Cebekulu, 1955 (2) SA at pp. 301, 302, and cf. R v Maloi & Another, 1947 (2) SA 156; R v Molloy, 1921 (2) K.B. 364. This is more especially the case in view of the presumptions against the accused, created by sec. 90 bis of Act 13 of 1928 as amended by sec. 31 of Act 29 of 1954. Sec. 61 (1) of Act 13 of B 1928 as amended by sec. 17 of Act 29 of 1954 creates the offence. As to the meaning of the word 'convey' see the Oxford Dictionary (vol. 2, pp. 946 - 7). Mens rea is an essential element of the offence; see Msibi v R., 1956 (1) P.H. H.112; R v Langa, 1936 CPD 158; R v Olivier and King, 1939 (1) P.H. H.30. The evidence adduced by the Crown does not go to prove that appellants knew that they were conveying dagga C and the Crown has, therefore, not proved a vital element of the offence. The plea of guilty by each of the appellants does not supply proof of the vital element of mens rea. Upon a plea of guilty there must be proof other than the unconfirmed evidence of the accused that the offence was actually committed; see sec. 258 (1) (b) of Act 56 of 1955. D All the elements of the offence must be proved aliunde; see R v Arnolds & Others, 25 S.C. 792; R v Schrade, 1912 CPD 985; R v Mtsi, 1908 E.D.C. 24; R v Scheepers, 16 E.D.C. 94; Sibisi v Bruyns, 1913 NPD at p. 513; R v Joseph Khoboke, 1944 OPD at p. 106; R v Matumba, 1949 (2) SA at p. 546; R v K., 1951 (3) SA at p. 180; R v Majola, 1954 (1) SA at p. 287; R v C., 1955 (1) SA at p. E 381; R v Mataung, 1949 (2) SA at p. 414. Even the subjective elements of the crime must be proved aliunde; see R v Mutimba, 1944 AD 23; R v Sherwin-Wilder, 1916 CPD at p. 617; R v Soqokomashe and Others, 1956 (2) SA at p. 144. On this basis the appeal by the third appellant should be upheld, because, apart from his plea, there is F no proof of his mens rea. As regards first appellant, his unsworn statement is not evidence of mens rea. Alternatively, his statement cannot be used to stultify the provisions of sec. 258 (1) (b) of Act 56 of 1955. As regards second appellant, his unsworn statement does not disclose that he was, in fact, conveying the dagga. Alternatively, his statement cannot be used to stultify the provisions of sec. 258 (1) (b) G of the Act; see R v Walker, 1946 E.D.L. 14; R v Mazibuko, 1947 (4) SA at pp. 825, 828, 830, 832, 833; R v Hilarius, 1949 (2) SA 278; cf. R v Radov, 1957 (4) SA at p. 47; R v Bushula, 1950 (4) SA at pp. 115, 117, 119, 120, 121, 122, 123; R v Ngoma, 1920 E.D.L. 370; R v Van der Merwe, 1952 (1) SA 143; R v Cutting, 1939 E.D.L. 193; R v Ouka Naran, 1946 CPD at pp. 501, 502; R v de Wet, 1933 T.P.D. H 68; R v Wooldridge, 1957 (1) SA 5; cf. R v Nkosi, 1942 E.D.L. 76; R v McWilliam, 1958 (2) SA 243; R v Heathcote, 1958 (2) SA 391. The matter has been put beyond doubt in Southern Rhodesia where it is provided that a conviction may follow a plea of guilty if evidence is adduced which confirms the plea; see Statute Law of Southern Rhodesia (Revised ed., 1939, vol. 1, tit. 5, ch. 28, p. 513, sec. 293) and cf. with Southern Rhodesia

1958 (3) SA p403

Criminal Procedure and Evidence Amendment Act 52 of 1949 (p. 509, sec. 19), R v Kufazwineyi, 1950, vol. 4, p. 31.

T. Grobbelaar, for the Crown: Die klagskrif openbaar 'n misdaad, aangesien dit die misdryf beskrywe in die bewoording van die wetsbepaling wat die misdryf skep, of in ooreenstemmende bewoording; sien art. 61 (1) (b) van Wet 13 van 1928 soos vervang deur art. 17 van A Wet 29 van 1954; art. 315 (2) (a) van Wet 56 van 1955; Gardiner & Lansdown, South African Criminal Law & Procedure (6de uitgawe, bl. 306); Ex parte The Minister of Justice: In re R v Masow and Another, 1940 AD op bl. 75; R v Omarjee...