S v Ntombela

• Judge: Colman J and Bliss AJ
• Judgment Date: 26 March 1973
• Citation: 1973 (3) SA 89 (T)
• Hearing Date: 26 March 1973
• Court: Transvaal Provincial Division

Colman, J.:

The appellant was convicted by a magistrate of dealing in dagga in contravention of sec. 2 (a) of Act 41 of 1971. He was sentenced to imprisonment for five years of which two and a half years was C suspended, and in addition, a motor car belonging to him, which he had been driving and in which some 555 grammes of dagga were found, was declared to be forfeited to the State.

The appellant has appealed against the conviction and the sentence, including the forfeiture order.

As the 555 grammes of dagga were found in a vehicle which was being driven by the appellant, a matter which, I may say, was never in D dispute, the presumption embodied in sec. 10 (1) (e) of Act 41 of 1971 came into operation. That is a provision that, if in any such prosecution as the one with which we are concerned, it is proved that the accused was upon or in charge of, or that he accompanied any vehicle in which any dependence producing drug was found, it shall be presumed E that the accused dealt in such drug, unless the contrary is proved. There was therefore an onus upon the appellant to prove, on a preponderance or probabilities, that he had not dealt in dagga.

His case, which the magistrate did not accept, was that the dagga had never been in his possession.

[The learned Judge analysed the evidence and proceeded.]

F The magistrate has given a lucid judgment with which I agree as far as the merits are concerned, and in my judgment the conviction must stand.

I turn now to the forfeiture of the motor car, in respect of which Mr. G Rossouw who appeared for the State has very properly told the Court that he has difficulties. The relevant provision for forfeiture appears in sec. 8 (1) (b) of the Act and it reads as follows:

'Notwithstanding anything to the contrary in any law contained, the court convicting any person of an offence under this Act, shall declare... (b) any vehicle, vessel, aircraft or receptacle or other thing, which was used for the purpose of or in connection with the commission of the offence, or for the purpose of conveying or removing any H dependence-producing drug or any plant referred to in para. (a) which was used for the purpose of or in connection with the commission of the offence, or the rights of such convicted person to such a vehicle, vessel, aircraft, receptacle or thing, to be forfeited to the State.'

That provision was considered by two Judges of the Natal Provincial Division in S. v Mtshali, 1972 (4) SA 207 (N), a case in which the accused had been convicted, not of dealing in dagga...