S v Gibson

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA and Rabie JA
• Judgment Date: 22 August 1974
• Hearing Date: 16 August 1974
• Court: Appellate Division

Holmes, J.A.:

The appellant was sentenced in Port Elizabeth to imprisonment for five years on a conviction of dealing in dagga in contravention of sec. 2 (a) of Act 41 of 1971. His appeal to the Eastern Cape Division failed, save in regard to the actual number of the reefers in question; and he was granted leave to appeal to this Court.

Holmes JA

The relevant facts as found by the Court a quo on appeal to it, and with which we agree, may be tabulated as follows:

(i)

During April 1973 the appellant handed his Hi Fi set to a young man named Nosworthy in exchange for 200 dagga reefers for his personal use as he (the appellant) was then an addict.

(ii)

A Three days later the appellant handed back 20 of these reefers to Nosworthy who by then had no dagga to smoke, on the footing that Nosworthy would later return an equivalent number to him.

The appellant pleaded guilty to an alternative charge of being B in possession of 200 dagga reefers, which would attract a much lesser penalty; but the prosecutor declined to accept this plea.

It was common cause that the appellant's possession of the dagga reefers did not give rise to any presumption that they were intended for sale. This presumption only arises where an C accused is found in possession (see sec. 20 (1) (a) (i) of Act 41 of 1971), which was not the position in this case.

The Court a quo held that the transaction, relating to 20 reefers, was hit by the definition of "deal in" in sec. 1 of Act 41 of 1971. That definition reads as follows -

"(iv)

'deal in', in relation to D 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;"

In this Court Mr. Van Heerden, for the appellant, submitted that the ordinary meaning of "deal in" ("handeldryf", in the Afrikaans text which was signed) connotes a business E transaction; and that therefore the performance of any act in connection with, e.g., the supply or sale of dagga, had to be an act for the purpose of a business transaction before it could be said to fall within the definition. In other words, it was argued that a person providing dagga to another does not "deal in" dagga unless he intends acquiring, or does acquire, F some benefit from the transaction.

However, Mr. Van Heerden...