S v Khulu

• Jurisdiction: South Africa
• Judge: Miller J and Shearer J
• Judgment Date: 28 February 1975
• Hearing Date: 28 February 1975
• Court: Natal Provincial Division

Miller, J.:

This case comes before me for automatic review. It concerns a young African who was convicted by a magistrate of dealing in dagga in contravention of sec. 2 (a) of Act 41 of 1971 and was sentenced to 10 years' imprisonment. He had two previous convictions of a similar kind during 1974 in respect H of each of which he was sentenced to receive cuts. He had also been convicted during 1972 of an entirely unrelated offence for which, too, he received a juvenile caning.

There is no problem concerning the conviction in this case; the evidence, unchallenged by the accused who pleaded guilty, was to the effect that he agreed to sell two dagga rolls to a constable who had been sent out as a trap and that he was apprehended virtually in the act of handing over the dagga. The total mass of the dagga in his possession was 30 grammes. It is not clear whether all or only part thereof was to be handed over to the constable as representing two "rolls".

Miller J

The record of the proceedings shows that, the State case having been closed, the accused, who did not have the benefit of legal representation, elected to give evidence under oath but all that he said was that he was a scholar and that he sold dagga in order to get money for Christmas. After he had been A convicted and his previous convictions proved, he was taken to the district surgeon so that an assessment of his age might be obtained. The report of the district surgeon was read and handed in and the accused was asked whether he wished the district surgeon to testify and whether he contested the district surgeon's finding which, apparently, was that the accused was not less than 18. The accused said that he B contested that finding; he apparently maintained that he was 16. The court then called the district surgeon who adhered to his conclusion that the accused was at least 18 years old and gave reasons for that estimate. The accused did not question the district surgeon but is recorded as having said this:

"My parents told me I am 16 years old. If the doctor says I am 18 I cannot dispute it further."

C Thereafter the magistrate, apparently acting on his own initiative, called as a witness Major Smit, who is the head of the Narcotics Bureau of the S. A. Police. Immediately after qualifying himself, Major Smit said that there was a general tendency, since amendment of the law relating to the power to D suspend any part of the mandatory (minimum) sentence for dealing in dagga, for dagga-dealers to make use of youths for their purposes. He explained that he had made a cursory ("vlugtige") examination of 25 cases and that the general pattern revealed by his examination was that in 10 of the 25 cases youths had been found selling dagga. He pointed out that this revealed a 40 per cent incidence. His evidence was not led E by the prosecutor nor by the accused; neither of them asked any questions of him, but the magistrate did. He asked one question only and that was whether Major Smit could give any reason for this tendency, to which the witness replied that he did not think the reason was a secret - youths could lay claim to receive corporal punishment. Major Smit's evidence was F confined, exclusively, to the "tendency" and the reason for its existence. The accused thereafter pleaded in mitigation of sentence; he asked for a suspended sentence because, he said, his mother suffered from tuberculosis and there were small children in the house who required attention which his father could not always give them. The sentence of 10 years' imprisonment was then imposed by the magistrate.

No finding was recorded by the magistrate regarding the age of G the accused but, in answer to a query which I directed to him in that regard, the magistrate says:

"Inadvertently no finding in terms of sec. 383 of the Criminal Code was recorded. The evidence of the district surgeon relating to the age of the accused was, however, not disputed and the accused abandoned the claim he made to the district surgeon that he was 16 years old. His age was found to be at H least 18 years old because it was common cause at the stage when the court determined the age."

The magistrate is clearly wrong in saying that the accused abandoned his claim that he was 16 years old and he is equally wrong in saying that it was common cause that he was at least 18 years old. I need only refer to the above summary of the proceedings and more particularly to what the accused said after the district surgeon had given evidence. There is nothing of abandonment of a contention in the accused's statement that his parents

Miller J

told him he was 16 years old. That statement appears to me to be a re-affirmation rather than an abandonment of his...