S v Hlomza

• Jurisdiction: South Africa

S v Hlomza
1987 (1) SA 25 (A)

1987 (1) SA p25

Citation	1987 (1) SA 25 (A)
Court	Appellate Division
Judge	Corbett JA, Grosskopf JA and Jacobs JA
Heard	September 5, 1986
Judgment	September 30, 1986

Flynote : Sleutelwoorde

Food and drugs — Drugs — Act 41 of 1971 — Contravention of s 2 (a) — Dealing in Mandrax — Mens rea — For requisite knowledge of unlawfulness it is not necessary for accused to know tablets contained methaqualone — True enquiry is whether accused knew possession or dealing in I tablets was or might possibly be unlawful irrespective of whether he knew what law was being contravened and what the precise provisions of the law might be.

Headnote : Kopnota

In order to have the requisite knowledge of unlawfulness, on a charge of dealing in a prohibited dependence-producing drug in contravention of s 2(a) of Act 41 of 1971 (in casu Mandrax), it J is not necessary that the accused had to know that the tablets

1987 (1) SA p26

A he possessed contained methaqualone. In general this would set a wholly impractical standard of criminal responsibility in such cases, for how many well-informed citizens who knew it was illegal to deal in Mandrax tablets would have known that under the law as it then stood the prohibited ingredient was methaqualone? The true enquiry is whether or not the appellant knew that possession or dealing in the tablets in question was or might possibly be unlawful, irrespective of whether he knew B what law was being contravened and what the precise provisions of the law might be.

The decision in the Eastern Cape Division in S v Hlomza 1983 (4) SA 142 confirmed.

Case Information

Appeal from a decision in the Eastern Cape Provincial Division. (Kannemeyer J and Mullins J). The facts appear from the C judgment of Corbett JA.

G Furman for the appellant: The Court a quo correctly found that the requisite mens rea in order to sustain a contravention of s 2 of Act 41 of 1971 was mens rea in the form of dolus, and that the onus rests upon the State to prove this beyond D reasonable doubt. See S v Ngwenya 1979 (2) SA at 100B - C; S v Lombard 1980 (3) SA 948; S v Qunta 1984 (3) SA 334. The appellant's actions did not constitute a sufficient degree of guilty knowledge on his part. In S v Lombard (supra) it was accepted that pills which were in the accused's possession contained substances referred to in the Schedule to Act 41 of 1971 and, where the accused was not aware of this fact, the E State had not proved that the requisite mens rea in the form of dolus, on the part of the accused was present. It is not sufficient merely to have guilty knowledge, or to know that the pills in question may be dangerous, or that people have been arrested in respect of the pills, but, having regard to the fact that dolus is the requisite form of mens rea, the State F must prove beyond reasonable doubt that the accused must have known that the tablets which were briefly in his possession contained methaqualone, See S v Nagel 1978 (1) SA 363. On appeal in the instant matter, the Court a quo refused to uphold the restrictive interpretation placed on the degree of knowledge which was found in Nagel's case supra. It was held that the appellant had the requisite mens rea in that it was G not necessary to prove that the appellant knew the detailed requirements of the offence charged, or the exact section or wording of the Act in question, or the penalty for the transgression thereof, but merely that the appellant knew, or at least foresaw the possibility, that what he was doing was contrary to law in a broad sense. See S v De Blom 1977 (3) SA at 530A - B; Burchell and Hunt South African Criminal Law and H Procedure vol I 2nd ed at 168. This Court may take a different view as to the broad interpretation placed on the requirement of mens rea by the Court a quo. The Courts have always placed the restrictive interpretation on the provisions of Act 41 of 1971. See, for example, S v Ngwenya (supra). In support of the restrictive interpretation placed on the provisions of the Act, I it has been held, for example, that, where an accused was in unlawful possession of Mandrax pills, the court could not take judicial notice of the fact that Mandrax contains one or other of the substances mentioned in Part I of the Schedule to the Act. See S v James and Another 1982 (2) SA 222. Even if a broad approach is followed, this Court will find that the appellant's conduct in the instant case did not in fact make him guilty of J a contravention of s 2(a) of Act 41 of 1971. In this regard, he could equally, possibly, have been

1987 (1) SA p27

charged with any offence relating to the unauthorised A possession of or dealing in a substance containing methaqualone, prohibited under some other statute, or that his conduct merely amounted to a contravention of s 2(b) of Act 41 of 1971, or in fact that his conduct amounted to a contravention of a common law offence, for example, defeating B the ends of justice, or an attempt to do so.

S Redpath for the State: The appellant's defence is one of lack of mens rea in respect of the element of unlawfulness, it being alleged that he (appellant) did not know what the tablets contained, what they were used for or what type of tablets they were. In regard to the defence of lack of mens rea in respect of unlawfulness, the position in law is such as is set out in the case of S v De Blom 1977 (3) SA at 529H - 532H which, C briefly stated, amounts to the following: That in order to have mens rea in respect of unlawfulness an accused person need only foresee the possibility that what he is doing is contrary to law in the broad sense; it is not necessary that the accused person be sure that what he is doing is contrary to law or, that such an accused person know specifically which law is D being contravened. See also Burchell and Hunt SA Criminal Law and Procedure vol I 2nd ed at 168 para (e); Snyman Strafreg at 193 para (j). There is sufficient evidence on record to justify the inference that the appellant in fact had the necessary mens rea in respect of unlawfulness (in addition to the presumption contained in s 10(1)(a)(ii) of Act 41 of 1971). The appellant submitted that in order to have the required mens rea in E respect of unlawfulness in this case, the State must show beyond a reasonable doubt that he (appellant) must have known that the tablets which were in his possession contained methaqualone. The appellant relies on the decision in the case of S v Nagel 1978 (1) SA 363 as authority for the submission. F This entails that an accused person must be aware of the exact nature of the law he is transgressing before it can be said that he possessed the required mens rea in respect of unlawfulness. This is clearly not the correct approach, See S v De Blom (supra); Burchell and Hunt SA Criminal Law and Procedure vol I 2nd ed supra ; Snyman Strafreg (supra). The decision in S v Nagel (supra) was based on a point which was conceded and not argued. The concession made in Nagel's case G supra was erroneously made and ought not to be followed. In regard to the decision in the case of S v Lombard 1980 (3) SA at 948: the basis for the decision was the fact that appellant (Lombard) did not know that he had tablets etc, in his storeroom which contained prohibited substances. This decision H supports the respondent's argument concerning mens rea in regard to unlawfulness, to an extent. See S v Lombard (supra at 952B - C). In regard to the decision in the case of S v James and Another 1982 (2) SA 222: the effect of this decision has been nullified by the amendment to Part 1 of the Schedule to Act 41...