S v Guess

• Jurisdiction: South Africa
• Judgment Date: 09 September 1976
• Citation: 1976 (4) SA 715 (A)

S v Guess
1976 (4) SA 715 (A)

1976 (4) SA p715

Citation	1976 (4) SA 715 (A)
Court	Appellate Division
Judge	Holmes JA, Trollip JA and Joubert AJA
Heard	August 19, 1976
Judgment	September 9, 1976

Flynote : Sleutelwoorde A

Food and drugs — Drugs — Act 41 of 1971 — Dagga — Dealing in in contravention of sec. 2 (a) — 'Cultivation' in sec. 1 — Meaning of 'cultivate' — What State must establish before it can rely on presumption in sec. B 10 (1) (b) — Rebuttal of such presumption — Unlawful possession in contravention of sec. 2 (b) — Sec. 7 applied — Lighter sentence than that prescribed by sec. 2 (iii) imposed — Criminal procedure — Verdict — Weighing up of evidence of State and of the defence — Approach which court should adopt.

Headnote : Kopnota

As to the word 'cultivation' in the definition of 'deal in' in C section 1 of Act 41 of 1971, as amended, the word 'cultivate' ordinarily means 'to promote or stimulate or foster the growth of a plant by any person'.

On a charge of dealing in dagga in contravention of section 2 D (a) of the Act, in that the accused had cultivated dagga plants on certain land, before the State can rely on the presumptive proof of section 10 (1) (b) of the Act it must first establish beyond a reasonable doubt the following factual premises: (1) that the accused was the owner, occupier, manager or person in charge of the cultivated land; (2) that on the relevant date dagga plants were found on the cultivated land, and (3) that the accused was aware of the existence of those 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 accused dealt in dagga plants in contravention of section 2 (a) E unless the accused succeeds in proving on a balance of probabilities that he did not cultivate the plants.

The correct approach which the magistrate should adopt in weighing up the evidence of the State and that of the defence appears from the dicta in Schoonwinkel v Swart's Trustee, 1911 T.P.D. 397 at p. 401, and in S. v Singh, 1975 (1) SA 227 (N) at p. 228.

Where the Appeal Court found that the appellant, a young first F offender, had wrongly been convicted of dealing in dagga, in that he had succeeded in rebutting the presumption in section 10 (1) (b), but that he should have been convicted of unlawful possession of dagga plants and a few dagga seeds in contravention of section 2 (b) of the Act, it substituted a conviction of the latter section and, after finding and recording, for purposes of section 7 of the Act, circumstances G warranting a lighter sentence than that prescribed by section 2 (iii), substituted a suspended sentence of one year's imprisonment.

Case Information

Appeal with the leave of the Court a quo from a decision in the Cape Provincial Division (DIEMONT, J., and BAKER, J.). The facts appear from the judgment of JOUBERT, A.J.A.

A. A. Purcell, for the appellant: The trial court incorrectly H invoked the presumption contained in sec. 10 (1) (b) of Act 41 of 1971 which presumption is only applicable in a prosecution for an offence under sec. 2 (a). A reliance on this presumption was the basis of the State case. If for any reason the trial court was entitled to invoke the aid of the presumption then it wrongly failed to inform the appellant of the nature and extent thereof when he was arraigned. See S. v Lango, 1962 (1) SA 107; S. v Taylor, 1972 (2) SA at p. 311D; S. v Mavuya, 1974 (1) P.H. H(S) 88; S. v Williams, 1975 (2) P.H. H142. Inasmuch as the charge sheet contains no

1976 (4) SA p716

reference to or allegation of the extended meaning of 'deal in' (sec. 1 (iv), e.g. that it included 'cultivate' the trial court failed to apprise the appellant hereof before he pleaded. This explanation is necessary more particularly because of the wide A difference between the common meaning of 'deal in' and 'cultivate'.

D. A. J. Uys, for the State: 'Dealing in' dagga 'includes performing any Act, in connection with the collection, importation, supply, transhipment, administration, exportation, cultivation, sale, manufacture, transmission or prescription thereof'. See sec. 1 (iv) of Act 41 of 1971. When dagga is found on cultivated land, the owner, occupier, manager or B person in charge of the land who was aware of the existence of the dagga on his land, is presumed to have dealt in that dagga. See sec. 10 (1) (b) of Act 41 of 1971. The wording of the Act makes the meaning of this presumption perfectly clear: the person in charge of the cultivated land is presumed to have performed an act, which may be any act, in C connection with any one of the actus rei which the Legislator has deemed to be 'dealing in' dagga. Cf. sec. 90 bis of Act 13 of 1928; sec. 10 (1) (b) of Act 41 of 1971; S. v Mhlangu, 1972 (3) SA 679. Appellant had to show, on a balance of probabilities, that he had not performed any act in connection with 'dealing in' the dagga found. S. v Mofokeng, 1973 (2) SA 89; Marnitz v S., 1973 (1) P.H. H(S) 30; Snyman, Misdade D betreffende afhanklikheidsvormende Medisyne, p. 107. Even if appellant did not plant the dagga itself, he had committed an act which can be termed 'dealing'. S. v Kgupane en Andere, 1975 (2) SA 73. Active toleration of cultivation of dagga is an act performed in connection with the actus rei set out by the Legislator, cf., S. v Ndaba, 1962 (3) SA 202; S. v. E Buthelezi, 1968 (2) SA 715. Alternatively, appellant, by making available the ground and water to Makopan for the purposes of cultivating dagga, was at the least a socius criminis of Makopan in the act of dealing in dagga. See R. v Msibi, 1956 (1) P.H. H112; S. v Prinsloo and Others, 1964 (3) SA at p. 557D; R. v Madlele, 1959 (4) SA at p. 224.

Purcell, in reply.

Cur. adv. vult. F

Postea (September 9). G

Judgment

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...