S v Langa

• Jurisdiction: South Africa
• Citation: 1990 (2) SACR 190 (N)

S v Langa
1990 (2) SACR 190 (N)

1990 (2) SACR p190

Citation	1990 (2) SACR 190 (N)
Court	Natal Provincial Division
Judge	Wilson J
Heard	February 3, 1988
Judgment	February 3, 1988
Counsel	J A Booyens for the accused at the request of the Court; G Engelbrecht for the State

Flynote : Sleutelwoorde D

Drug offences — Dagga — Dealing in contravention of s 2(a) of Act 41 of 1971 — What constitutes — Accused having possessed dagga primarily for own use but having envisaged possibility that others might share it — Accused having done nothing to offer or dispose of the dagga — Possession E for the purpose of disposing not included in definition of 'sell' or 'sale' in s 1 — Accused's possession accordingly not amounting to possession for the purpose of sale, as defined — Question whether an act connected with supply or sale of dagga falls within definition of dealing F an extremely difficult and uncertain one, depending largely on the facts of each case — Possession for the purpose of gratuitous supply may well in certain circumstances amount to act in connection with supply of such dagga, thus falling within definition of dealing in s 1.

Headnote : Kopnota

The accused had been found in possession of over five kilograms of dagga. At his trial he admitted to possession of the dagga, and was G convicted of dealing in dagga in contravention of s 2(a) of the Abuse of Dependence-producing Substances and Rehabilitation Centres 41 of 1971 on the basis of his own evidence that he had wanted to share the dagga with four of his friends, and give some of it to his brother. The tenor of his evidence was further that if anybody would have come to this home H while he was smoking, he would have shared his dagga with them. The magistrate held that the accused's conduct had amounted to 'offering and disposing of dagga', relying on the definition of 'sale' in s 1 of the Act. On review,

Held, that it was clear from the evidence that the accused had not done anything to offer and dispose of the dagga in question.

Held, further, that the reference in the definition of 'sell' to the I fact that ' "sale" has a corresponding meaning' had not been inserted to extend the definition of 'sell', but only to ensure that the noun and verb were given corresponding meanings.

Held, further, that the Act differentiated between possession for the purpose of sale and possession for the purpose of disposing, whether for consideration or otherwise, and that the latter was not covered by the J definition of 'sell' in the Act.

1990 (2) SACR p191

A Held, further, that the accused's possession had accordingly not been possession for the purpose of sale, as defined, and could therefore not, on the facts of the case as found by the magistrate, fall within the definition of dealing.

Held, further, that the question as to whether an act connected with the supply or sale of dagga fell within the definition of dealing or not was B a difficult and uncertain one to determine, and one which depended largely on the facts of each case.

Held, further, that it could well be possible that possession for the purpose of gratuitous supply might in certain circumstances amount to an act in connection with the supply of such dagga, but that this had not been the position in the instant case.

C Held, accordingly, that the conviction under s 2(a) of the Act had to be set aside, and that it had to be substituted by a conviction for the possession of dagga in terms of s 2(b).

Case Information

Argument on review. The facts appear from the reasons for judgment.

J A Booyens for the accused at the request of the Court.

D G Engelbrecht for the State.

Cur adv vult.

Postea (3 February 1988).

Judgment

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...