S v Guess

• Jurisdiction: South Africa
• Judge: Holmes JA, Trollip JA and Joubert AJA
• Judgment Date: 09 September 1976
• Citation: 1976 (4) SA 715 (A)
• Hearing Date: 19 August 1976
• Court: Appellate Division

Joubert, A.J.A.:

The appellant, a young man aged about 22 years, was convicted in the magistrate's court at Wynberg, Cape, of contravening sec. 2 (a) of Act 41 of 1971, as amended, in that on or about 26 November 1974 he was dealing in 85 dagga plants and some dagga seeds. The charge sheet contained an alternative count of contravening sec. 2 (b) of the Act in that he was in possession of such dagga. The appellant, who was not H represented, pleaded not guilty to both counts and added, as part of his plea, that he had not planted the seeds. He was, however, convicted on the main count of dealing in dagga on the basis that he cultivated the dagga plants on ground occupied by him. The minimum sentence of five years' imprisonment, made compulsory for a first conviction by sec. 2 (i) of the Act, was imposed. The Cape Provincial Division dismissed his appeal against his conviction but granted him leave to appeal to this Division.

Sec. 2 (a) of the Act makes it an offence for any person to deal in any

Joubert AJA

prohibited dependence-producing drug or any plant from which such dependence-producing drug can be manufactured.

The expression 'deal in' is defined in sec. I as follows:

'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, A transhipment, administration, exportation, cultivation, sale, manufacture, transmission or prescription thereof'.

(My italics).

On the basis of this definition, read with sec. 2 (a), it must be accepted, in the circumstances of this case, that the onus was on the State to prove beyond a reasonable doubt that the B appellant performed an act in connection with the cultivation of the 85 dagga plants. Act 41 of 1971, as amended, contains no definition of the word 'cultivate' or 'cultivation'. In cases dealing with the cultivation of dagga plants our Courts have accepted the word 'cultivate' as ordinarily meaning

'to promote or stimulate or foster the growth of a plant by any person'.

See R. v Potgieter, 1951 (1) SA 750 (N) at p. 751E; S. v C Ndaba, 1962 (3) SA 202 (N) at p. 203; S. v Buthelezi, 1968 (2) SA 714 (N) at p. 715E; S. v Van der Merwe, 1974 (4) SA 310 (E) at p. 311; S. v Van Zyl, 1975 (2) SA 489 (N) at p. 491.

Sec. 10 of the Act, however, contains several presumptions to assist the State in discharging the onus to secure convictions D by partly alleviating its burden of proof. Sec. 10 (1) (b) provides as follows:

'If in any prosecution for an offence under sec. 2 (a) it is proved that the accused was the owner, occupier, manager or person in charge of cultivated land on a date on which dagga plants were found on such land, of the existence of which plants the accused was aware or could reasonably be expected to have been aware, it shall be presumed that the accused dealt in such dagga plants, unless the contrary is proved.'

Before the State can rely on the presumptive proof of sec. 10 E (1) (b) it must first establish beyond a reasonable doubt the following factual premises:

(1)

that the appellant was the owner, occupier, manager or F person in charge of cultivated land on 26 November 1974;

(2)

that on 26 November 1974 85 dagga plants were found on that cultivated land; and

(3)

that the appellant was aware of the existence of those 85 dagga plants or could reasonably be expected to have been aware of their existence.

Once the State succeeds in proving the aforegoing, it can rely on the presumptive proof that the appellant dealt in 85 dagga G plants in contravention of sec. 2 (a), unless the appellant succeeds in proving on a balance of probabilities that he did not cultivate the plants. Per BEKKER, J., in S. v Kgupane en Andere, 1975 (2) SA 73 (T) at p. 76D:

'Die uitkoms wat art. 10 (1) (b) aan die beskuldigde bied is, bv. die moontlikheid om die hof te oorreed dat hy inderdaad nie die kweker van die dagga was nie.'

The issue on the merits is, therefore, whether the State H succeeded in establishing beyond a reasonable doubt the above-mentioned factual premises so as to give rise to the presumption in terms of sec. 10...