S v Nemalavuwe

• Jurisdiction: South Africa
• Judge: Noorbhai AJ
• Judgment Date: 10 June 1997
• Citation: 1998 JDR 0027 (V)
• Hearing Date: 10 June 1997
• Court: Venda High Court

Noorbhai AJ:

The accused was convicted of contravening section 2(a) of Act 41 of 1971 (dealing in dagga). The trial and subsequent conviction of the accused is a sequel to a search conducted by the police on his property and a discovery there of dagga, one in the form of a plant growing in the yard and another, in loose form, placed in the headboard of a bed in the bedroom. The plant found in the yard was some 1.7m high and grew among some trees.

The evidence against the accused is that of a police officer and was adduced and given in a rather haphazard and highly unsatisfactory fashion. The essence of the evidence is that the search of the accused's premises was conducted in his absence, but in the presence of his wife; the police then arrested the latter and left a message that the accused should come to the police station. On his arrival at the police station the accused was informed that he is under arrest and subsequently charged:

See record p. 2 lines 2-17.

1998 JDR 0027 p2

Noorbhai AJ

Neither the prosecutor nor the magistrate bothered to find out from the police officer whether the substance found by him on the accused's premises was in fact dagga or not, whether he knows dagga and, if so, how he identified the plant and/or substance in issue as dagga. There is also no evidence on record that the plant and/or substance were ever exhibited in court and positively identified as dagga.

The accused's evidence, on the other hand, is that he did not know that the plant found growing in his yard is dagga; he further averred that he knew the substance found in his bedroom to be an ear remedy, bought by him for the treatment of his child's ear ailment:

See	record	p. 3 lines 8 - 22;
		p. 4 lines 9 - 10; and
		p. 6 lines 20 - 23.

The defence which the accused raised in his evidence is therefore one of lack of knowledge or consciousness of unlawfulness. What this defence implies is that there is no basis for regarding an accused's state of mind as legally blameworthy if he is not aware that his conduct is wrongful or unlawful. In essence, there can be no criminal liability in the absence of mens rea in respect of the element of unlawfulness:

See	S v De Blom	1977 (3) SA 513 (A) at 532 E - H;
	S v Potwane	1983 (1) SA 868 (A) at 871 A - D; and
	S v Hlomea	1987 (1) SA 25 (A) at 32 F.

1998 JDR 0027 p3

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