S v Crawford and Another

• Jurisdiction: South Africa
• Judge: De Wet J and Lichtenberg AJ
• Judgment Date: 17 November 1977
• Citation: 1978 (1) SA 640 (O)
• Hearing Date: 31 October 1977
• Court: Orange Free State Provincial Division

A De Wet, J.:

Both appellants appeared in the magistrate's court of Ficksburg on a charge of contravening sec. 2 (a) of Act 41 of 1971 in that they wrongfully and unlawfully dealt in six kilograms of dagga at the Ficksburg border post. Appellants were charged in the alternative with the offence of contravening sec. 2 (b) of the said Act in that they wrongfully and unlawfully had in their possession or used a prohibited B dependence producing drug, to wit, six kilograms of dagga. They pleaded guilty to the alternative charge but were both found guilty on the main charge and sentenced to five year's imprisonment. The magistrate also made an order that a suitcase (exh. 1 in the court a quo) in which the dagga was found, and a motor car, CB 69890, in which the dagga was conveyed, be C forfeited to the State. Against their conviction appellants lodged an appeal on the ground that the magistrate erred in holding that the appellants were guilty of contravening sec. 2 (a) of Act 41 of 1971 in that the evidence did not establish that the appellants dealt in dagga and that the appellants should accordingly have been found guilty of D contravening the provisions of sec. 2 (b) of the said Act.

From the evidence adduced on behalf of the State in the court a quo it appears that on 11 May 1977 at 12h15 a passport control official at the Ficksburg border post saw both appellants soon after they entered the Republic of South Africa from Lesotho. He inspected and endorsed their E passports whereupon they accompanied him to their motor car, a Triumph with registration number CB 69890. In the boot of the said motor car a suitcase was found by the passport official. Appellant No. 1 admitted that he was the owner of the suitcase. The suitcase was opened by the passport official and under clothes in the suitcase two bags were found both of which contained dagga. Both appellants and the dagga were handed over to F the police. The dagga was weighed by the police in the presence of both appellants without the containers and weighed six kilograms. Appellant No. 1 admitted to the police that he was the owner of the said Triumph motor car in which the dagga was found. Both appellants made confession before a magistrate. It appears from the said confessions that both appellants bought the said dagga in Lesotho for R10 per bag for their own personal G use. At their trial both the appellants testified under oath. According to their evidence they were then both 22 years of age. Both alleged that they are dagga smokers and that they bought the said dagga for their own personal use. They had no intention to use the dagga for any other purpose.

H The magistrate, relying on the definition of "deal" in sec. 1 of Act 41 of 1971, states in his reasons for judgment that appellants imported the dagga into the Republic and that both appellants had just completed the act of importing the dagga when they were arrested. The magistrate relied on an unreported judgment of this Division in the case of S. v Motseki Motete, dated 4 April 1977, and came to the conclusion that the State proved that both appellants were guilty of contravening sec. 2 (a) of Act 41 of 1971.

De Wet J

Mr. Rein, on behalf of the appellants, submitted that the physical bringing in of the said dagga into the Republic from Lesotho is not in law A "importation" within the meaning of that word in the definition of "deal in" in sec. 1 of the said Act. He conceded that the appellants were guilty of contravening sec. 2 (b) of the said Act in that they unlawfully had the said dagga in their possession. Mr. Bonthuys, on behalf of the State, contended on the other hand that a physical bringing into the Republic from another country of a large quantity of dagga as in the present case B amounts to "importation" within the meaning of sec. 1 of Act 41 of 1971. The State, therefore, according to Mr. Bonthuys, proved that both appellants dealt in the said dagga and submitted that they were, therefore, properly convicted of contravening sec. 2 (a) of the said Act.

In sec. 1 of the said Act "deal in" is defined as follows:

C "'deal in' in relation to dependence-producing drugs or any plant from which such drugs can be manufactured, includes performing any act in connection with the collection, importation, supply, transhipment, administration, exportation, cultivation, sale, manufacture, transmission or prescription thereof."

According to the said definition of "deal in" the mere "importation" of a dependence-producing drug is not per se regarded as "dealing in", but only the performing of any act in connection with such importation is regarded D as "dealing in". In the Afrikaans version of the said section it is a "handeling verrig in verband met die invoer" which is regarded as "handeldryf". Without deciding whether the word "importation" in the said Act has a commercial connotation or not HOFMEYR, J.A., in a judgment in which HOLMES, J.A., concurred, is reported to have said the following in the case of S. v Norden, 1977 (2) SA 51 (AD) at pp...