S v Crawford and Another

• Jurisdiction: South Africa
• Citation: 1978 (1) SA 640 (O)

S v Crawford and Another
1978 (1) SA 640 (O)

1978 (1) SA p640

Citation	1978 (1) SA 640 (O)
Court	Orange Free State Provincial Division
Judge	De Wet J and Lichtenberg AJ
Heard	October 31, 1977
Judgment	November 17, 1977

Flynote : Sleutelwoorde A

Food and drugs — Drugs — Act 41 of 1971 — Dagga — Dealing in in contravention of sec. 2 (a) — What constitutes — "Importation" in B definition of "deal in" in sec. 1 of Act — Such has a commercial connotation — Mere bringing into the Republic not amounting to "importation" — Appellants bringing six kg of dagga into Republic for their own use — Presumption in sec. 10 (1) (a) rebutted — Appellants only guilty of possession of dagga in contravention of sec. 2 (b).

Food and drugs — Drugs — Act 41 of 1971 — Dagga — Forfeiture of suitcase C in which dagga was contained and vehicle in which appellants were travelling in terms of sec. 8 (1) (b) — Neither "used in connection with the commission of the offence" of unlawfully being in possession of dagga in contravention of sec. 2 (b) — Nor used for conveyance of the dagga in such a manner as would justify its forfeiture under sec. 8 (1) (b) — Forfeiture order set aside. D

Headnote : Kopnota

The appellants had been convicted in a magistrate's court of dealing in dagga in contravention of section 2 (a) of Act 41 of 1971 in that they had imported six kilograms of dagga into the Republic from Lesotho. They had each been sentenced to five year's imprisonment and the suitcase in which the dagga was packed and the vehicle in which they were travelling E were ordered to be forfeited to the State in terms of section 8 (1) (b) of the Act. From the evidence it appeared that the appellants had stopped at a border post where a passport official had found the dagga in a suitcase in the boot of their car. In confessions and in evidence the appellants had said that they had purchased the dagga in Lesotho for their own use and that they were both dagga smokers. The magistrate, relying on the word "importation" in the definition of "deal in" in section 1 of the Act, held that the appellants were guilty of contravening section 2 (a) of the Act. In an appeal,

F Held, that the word "importation" in the definition of "deal in" in section 1 of the Act had a commercial connotation: the Legislature could have prohibited the mere bringing into the Republic of dependence-producing drugs if it so wished, but it had clearly not done so.

Held, further, by merely being in physical possession of the dagga after it had been brought into the Republic by them, that the appellants did not "perform an act in connection with the importation of" dagga.

G Held, further, on the facts, that the appellants had rebutted the presumption created by section 10 (1) (a) of the Act and should, accordingly, have only been convicted of being in possession of dagga in contravention of section 2 (b) of the Act.

Held, further, in regard to the forfeiture order, that it was obvious that neither the suitcase nor the motor vehicle "used in connection with H the commission of the offence" of unlawfully being in possession of dagga, nor could it be said that the suitcase and motor care were used for the conveyance of dagga in such a manner as to warrant or justify their forfeiture to the State under section 8 (1) (b) of the Act where the conveyance of the dagga was merely incidental to the appellants' own locomotion. Forfeiture order set aside.

Case Information

Appeal from a conviction in, and forfeiture order imposed by, a magistrate's court. The facts appear from the reasons for judgment.

S.G. Rein, for the appellants.

F.A. Bonthuys, for the State.

1978 (1) SA p641

Cur adv vult.

Postea (November 17).

Judgment

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...