S v Langa

• Jurisdiction: South Africa
• Judge: Wilson J
• Judgment Date: 03 February 1988
• Citation: 1990 (2) SACR 190 (N)
• Hearing Date: 03 February 1988
• Counsel: J A Booyens for the accused at the request of the Court G Engelbrecht for the State
• Court: Natal Provincial Division

Wilson J:

The accused in this case was convicted of dealing in dagga in contravention of s 2(a) of Act 41 of 1971 and sentenced to a fine of E R900, alternatively six months' imprisonment, and a further nine months' imprisonment suspended on the normal conditions for five years. The accused was admittedly found in possession of two bags which were later found to contain 5,466 kilograms of loose dagga. The accused at his trial admitted possession of the dagga and in fact exculpated the person F who was assisting him in carrying one bag. He was convicted, not on the basis of any presumption contained in the Act, but on the basis of his own evidence, that is that he stated that he wanted to give some of the dagga to his brother in the form of a 'zol' and to share it with four of his friends. He stated, so the magistrate found, that he was not going to sell it but was merely going to give it to them so they could smoke it together. This finding of the magistrate was not challenged on appeal and is, in my view, borne out by what the accused actually said. It G appears that the tenor of his evidence was that if anybody came to his home while he was smoking, he would share his dagga with them.

The matter came before the reviewing Judge who submitted the papers to the Attorney-General with a request that he express his views on the matter. The query by the reviewing Judge was:

H 'Prima facie it seems to me that the evidence, accepted by the magistrate, discloses that the accused possessed the dagga in question primarily for his own use but envisaged, as a possibility, or perhaps even as a probability, that friends, neighbours and his brother would smoke zols made from such dagga if they happened to visit him. I have some difficulty in seeing how the accused can be said to have performed any of the acts included in the definition of "deal in" even I if one has regard to the definition "sell". The accused did not possess the dagga with the intention of disposing of it; he possessed it for his own purposes but envisaged that other persons might also use it. In these circumstances should not the correct verdict have been one of possessing dagga only? I should add, again prima facie, if the conviction is altered to one of possession the effective sentence is appropriate but perhaps the suspended portion of the sentence J should be deleted.'

Wilson J

A A review opinion was submitted by Mr Roberts of the Attorney-General's staff where he dealt with three cases in which judgments had been given as to the meaning of the words 'deal in'. The three cases referred to were S v Joubert 1976 (1) PH H91 (A); S v Majola 1976 (1) SA 339 (N), S v Ebrahim and Others 1974 (2) SA 78 (N). These cases dealt with the question of what amounts to dealing, and it is clear from them that a B person who supplies dagga to others, even gratuitously, is dealing in dagga as defined in the Act. The first case, S v Joubert, was a case where the accused had passed a half-smoked zol to his companion and was thereafter, so the Appellate Division held, correctly convicted of dealing, although the consequences to the accused due to the compulsory sentence were, as the learned Judge said, tragic. All the cases cited dealt with instances where the accused had either supplied or sold C dagga, that is the transactions had already taken place. In Majola's case, which was somewhat different, it was shown that the accused, a herbalist, possessed the dagga in part for the purpose of sale to his customers in the form of...