S v Naidoo

• Jurisdiction: South Africa
• Judge: Botha JA, Eksteen JA, Nicholas AJA
• Judgment Date: 29 November 1988
• Hearing Date: 18 November 1988
• Court: Appellate Division

Botha JA:

The appellant was charged in the magistrate's court, Durban, on two main counts of dealing in a prohibited dependence-producing drug in contravention of s 2(a) of Act 41 of 1971. In the first main count J it was

Botha JA

A alleged that, on 1 February 1984 and at Chatsworth, the appellant had dealt in 30 grams of dagga. In the second main count it was alleged that, at the same time and place, the appellant had dealt in 'methaqualone as contained in six Mandrax tablets'. To each of the main counts was appended an alternative count of a contravention of s 2(b) of the same Act, it being alleged that the appellant had been in B possession of the drugs mentioned above.

When the appellant was asked to plead to the charges on 3 February 1984, he was unrepresented. He pleaded guilty on both of the main counts. The presiding magistrate thereupon questioned the appellant in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977. The magistrate's questions and the appellant's replies to them give rise C to the issue in this appeal. I shall defer a quotation of the relevant part of the record until a little later. At the conclusion of the questioning the magistrate noted on the record that he was satisfied that the appellant was guilty of the charges to which he had pleaded guilty. The appellant was accordingly convicted on both of the main D counts. The case was then postponed for sentence.

The appellant (after a further intervening postponement) again appeared before the magistrate on 27 March 1984. He then informed the magistrate that he had instructed an advocate because he wished to E plead not guilty. The case was postponed then, and on a number of subsequent occasions. When it came before the magistrate on 28 June 1984, the appellant was duly represented by counsel. It appears from the magistrate's notes on the record that counsel for the appellant submitted to the magistrate that 'the facts admitted' by the appellant (sc during the questioning by the magistrate on 3 February 1984) showed that the appellant was not guilty on the main counts, but guilty on F the alternative counts; that the conduct of the appellant was related to the acquisition of drugs and not to the supply of them; and that, on the facts, the proper procedure would be to apply the provisions of s 113 of Act 51 of 1977 and to alter both pleas of the appellant to 'not guilty' on the main counts. The prosecutor opposed these submissions and G argued that the appellant had been correctly convicted. The case was adjourned to 11 July 1984 for judgment.

At the commencement of the proceedings on 11 July 1984 the magistrate enquired from counsel for the appellant whether it was correct to H assume that the appellant stood by the answers given by him when questioned in terms of s 112(1)(b) of Act 51 of 1977. Counsel replied affirmatively. The magistrate thereupon announced that counsel's submissions (sc those that had been put forward on 28 June 1984) were 'dismissed', and he ruled as follows: 'Both convictions stand.' After hearing counsel in mitigation of sentence, the magistrate, taking the I two counts as one for the purpose of sentence, sentenced the appellant to five years' imprisonment.

The appellant appealed to the Natal Provincial Division. In response to the notice of appeal filed by the appellant, the magistrate furnished written reasons for the convictions. He said, inter alia, that he had rejected the defence contention that the acts of the appellant J were related to the

Botha JA

A acquisition of the drugs in question, and that he was satisfied that those acts were related to the supply of the drugs. He also remarked as follows:

'In the present case it is clear from the evidence that appellant had purchased the drugs from one person and then resold it to another.

Accordingly, the court is satisfied that appellant was correctly convicted.'

B The Natal Provincial Division held, in a judgment delivered by Van Heerden J and concurred in by Wilson J, that the appellant's answers when questioned by the magistrate made it clear that he had bought the drugs and thereafter resold them; that by reselling the drugs the appellant 'was quite clearly dealing therein as that term is defined' in Act 41 of 1971; and that the magistrate had been correct in finding C the appellant guilty of dealing in dagga and Mandrax. However, the Court mero motu 'consolidated' the two counts. The order of the Court a quo was as follows:

'Save therefore as regards the consolidation of the two counts the appeal is dismissed both as regards conviction and sentence.'

The appellant applied for leave to bring a further appeal to D this Court. In his judgment on the application Van Heerden J said that there was a reasonable possiblity that this Court might hold that the appellant's statements in response to the magistrate's questioning were capable of being interpreted as meaning that the appellant was 'merely acting as agent for those who wanted to purchase the dagga and the Mandrax'. On that basis the leave sought was granted.

E I turn now to that part of the record which reflects the course of the proceedings before the magistrate on 3 February 1984 after the appellant had pleaded guilty to the two main counts. It reads as follows:

'Accused is questioned by court in terms of s 112(1)(b) of Act 51 of 1977. Procedure explained to accused.

X.

F Do you understand the two charges?

A.

Yes.

X.

Are you ready to proceed with your trial today?

A.

Yes.

Definition of ''dealing'' as defined in s 1 of Act 41 of 1971 explained to accused. Accused understands.

G Count 1

X.

Do you know dagga?

A.

Yes.

X.

Are people allowed to possess, use or deal in dagga?

A.

It is unlawful.

X.

Did you on 1.2.84 and at Chatsworth in this district deal in H 30 grams of dagga?

A.

Yes.

X.

Tell the court what you did.

A.

Three men came to me. They asked me for dagga to use. They asked me for dagga and Mandrax. I then went to someone and bought this dagga and six Mandrax tablets for R60 and then went I back to these three men and gave them this dagga and the Mandrax tablets and told them to pay me the R60. They then arrested me.

Count 2

X.

Do you know Mandrax?

A.

Yes.

X.

Are people allowed to possess, use...