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[2018] ZAWCHC 91
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S v Mkulu (1773) [2018] ZAWCHC 91; 2018 (2) SACR 408 (WCC) (2 August 2018)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
High
Court Ref No: 1773
Clanwilliam Case No: 582/16
Magistrate’s Serial No:
01/17
In
the matter of:
THE
STATE
and
NKABELO
MKULU
Coram
:
ROGERS & SAVAGE JJ
Delivered:
2
AUGUST 2018
REVIEW JUDGMENT
Rogers J (Savage J
concurring):
[1]
This matter comes before
the court by way of automatic review. The accused, then aged 19, was
charged in the Clanwilliam Magistrate’s
Court with dealing in
189 stops of dagga, alternatively with possessing the dagga. On 4
January 2017 he pleaded guilty on the main
count. Following
questioning in terms of
s 112(1)(b)
of the
Criminal Procedure
Act 51 of 1977
, he was convicted and sentenced to a fine of R16 000
or 24 months’ imprisonment of which R12 000 or 18 months’
imprisonment were suspended for five years.
[2]
The record was timeously
transmitted to this court where it was received on 26 January 2017.
On the following day I directed the
following query to the
magistrate:
‘
1. The
accused was convicted of dealing in dagga. In the
s 112(1)(b)
questioning, he said he was sent by a friend on the farm to by the
dagga and was transporting it for his friend. He said his friend
smoked dagga.
2 On what
basis did you conclude that the accused’s answers constituted
an admission that he had been dealing in dagga
and not merely
possessing it? See in this regard
S v Solomon
1986 (3) SA 705
(A) and
S v Jackson ; S v Phillips
1990 (2) SACR 505
(E).
3. Did you
rely on the presumption in
s 21(1)(a)(i)
of the
Drugs and Drug
Trafficking Act 140 of 1992
? If so:
(a)
Was the accused’s attention drawn to this presumption?
(b)
Is it permissible to rely on this presumption at the
s 112(1)(b)
stage, particularly if the accused’s answers indicate prima
facie that he is not admitting to having dealt in, rather than
merely
possessed, the dagga?’
[3]
A year and a half later,
on 27 June 2018, the file and the magistrate’s reply (dated 31
May 2018) were returned to this court.
This delay should long since
have been noticed and queried by this court. Unfortunately, because I
was on long leave in the second
term of 2017 and acted in the Supreme
Court of Appeal in the third and fourth terms of 2017 and in the
first and second terms of
2018, I failed to realise that this matter
was outstanding. Although the administrative staff of this court
should have pursued
it, the primary responsibility for the gross
delay rests with the magistrate. The duty of lower courts in this
regard was recently
emphasised by this court in
S
v Jacobs & six similar cases
2017
(2) SACR 546
(WCC). Judgment in that matter was delivered on 26
August 2017. It is safe to assume that it became widely available to
magistrates
shortly thereafter.
[4]
In the present case, all
the magistrate says by way of explanation is that when my query was
returned to her office she ‘was
simply swamped with work,
having taken over as Head of Office and having to mentor a colleague
who had taken over in the criminal
courts’. This is
unacceptable. If a magistrate does not have adequate resources, she
should take it up with her superiors.
I have sympathy with overloaded
magistrates but they cannot be supine in the face of a workload
beyond their reasonable capacities.
There should at least be a paper
trail showing the magistrate’s endeavours to obtain assistance
from her superiors. This
allows responsibility for the violation of
justice to be traced. Nothing of that kind exists here.
[5]
On the merits of my query,
the magistrate stated that she did not rely on the statutory
presumption. She drew my attention to the
fact that the presumption
has been declared invalid by the Constitutional Court.
[6]
The magistrate then
referred to the statutory definition of ‘to deal’ as
including ‘performing any act in connection
with the
trans-shipment, importation, cultivation, collection, manufacture,
supply, prescription, administration, sale, transmission
or
exportation’ of drugs. She stated that in the questioning the
accused admitted that he had “collected (purchased),
supplied
and transported’ the dagga. Citing
S
v Adams
1986 (3) SA
733
(C), she submitted that the accused’s actions included the
elements of both ‘
verskaffing
’
and ‘
verkryging
’
.
[7]
The magistrate’s
reference to
Adams
is
erroneous. The passage she cites is to be found in the
Solomon
case mentioned in my
query (which, by the way, overruled
Adams
on the point here
relevant). In my view, however, the magistrate, has misunderstood the
Solomon
case
and the conclusion expressed at 712J-713A. In
Solomon
Smalberger JA
distinguished between acts associated with the supply of drugs and
acts limited to the acquisition of drugs for personal
use. Despite
the wide language of the definition ‘deal in’, the
learned judge of appeal held that a person who buys
drugs for
personal use is not performing an act ‘in connection with’
the ‘supply’ or ‘sale’
of the drugs. Although
not specifically mentioned, the same must apply to the concept of
‘collection’ and ‘transmission’
of drugs. A
person who buys drugs for personal use will inevitably ‘collect’
(ie take delivery of) the drugs; and unless
he uses the drugs there
and then at the premises of the supplier, he will also inevitably
transport the drugs, whether by walking
with them on his person or by
taking it in a vehicle to the place of consumption. In the case of a
personal user, none of these
acts fall within the definition ‘deal
in’.
[8]
It was further held in
Solomon
that,
if this is so in relation to the personal user, it is also so in
relation to a person who is merely acting as an agent of
the user
without any separate role in the supply of the drugs. Smalberger JA’s
conclusion, and his application of the correct
approach to the facts
of that particular case, appear from the following passage (713B-E):
‘
Elke
geval moet natuurlik volgens sy eie feite beoordeel word. In die
geval waar ’n tussenganger of agent betrokke is, is
dit
gevolglik belangrik dat die feite van die bepaalde geval vasgestel
word alvorens daar oorgegaan word tot die volgende stap,
naamlik, om
te bepaal of daardie feite daarop dui dat die tussenganger of agent
se handeling betrekking het op die verkryging of
verskaffing van
verbode stof. In sekere gevalle sal dit duidelik wees in welke
kategorie die handeling van die tussenganger of
agent val. In ander
gevalle kan dit moeilike probleme oplewer.
In die onderhawige
geval het die appellant, soos reeds aangetoon, op versoek van ’n
voornemende koper, sonder enige vergoeding
of voordeel vir homself,
en bloot om die koper ’n guns te bewys, ’n Mandrax tablet
gaan koop by ’n persoon wat
deur die koper aan hom uitgewys is.
Die geld vir die aankoop van die tablet is deur die koper voorsien,
en die tablet was klaarblyklik
vir die koper se eie gebruik bestem.
Die appellant het geen handeling verrig wat die koper nie self kon
verrig het nie. Sy betrokkenheid
het net by die koper gelê, en
hy het bloot as verlengstuk van die koper opgetree. Sy optrede was
gerig op die ontvangs van
verbode stof, en nie om die verskaffing of
verspreiding van verbode stof te bevorder nie.
[9]
In the present case, the
questioning of the accused did not reveal a role going beyond that of
the accused in
Solomon
or in the other case
to which I referred the magistrate,
S
v Jackson; S v Phillips
.
The importance of thorough
s 112(1)(b)
questioning in such cases
is apparent from
S v
Naidoo
1989 (2) SA 114
(A). The accused there had stated, in answer to
s 112(1)(b)
questioning, that three men came to him, asking for dagga and mandrax
for use. The accused went to someone and bought the drugs,
went back
to the three men, gave them the drugs and was repaid the amount he
had payed to the supplier.
[10]
That would seem to have
been a stronger case for dealing than the present one yet Botha JA
held that the accused’s answers
did not without more justify a
conviction for dealing. After referring to the very passage in
Solomon
cited
by the magistrate in the present case, the learned judge of appeal
continued (119I-120H):
‘
If this
approach is followed in the present case, it is manifest that the
appellant's explanation falls far short of complying with
the
important requirement that all the facts pertaining to the
transaction must be established before it can be determined whether
the appellant's conduct constituted activities relating to the supply
of the drugs, or to the acquisition of them, or to both.
Essentially,
the appellant's explanation reveals no more than the following: he
was asked by the recipients for dagga and Mandrax
'to use', which
denotes,
prima
facie
,
consumption by the recipients themselves; he went off and bought the
drugs from the supplier, paying for them with his own money;
and he
returned to the recipients, handed over the drugs to them, and asked
for payment of the money he had expended. Wholly unexplored
areas of
uncertainty relating to the precise nature of the transaction, which
cry out for further enquiry, include the following:
What was the
relationship, if any, between the supplier and the appellant? Was the
supplier known as such to the appellant? Did
the appellant go off to
buy the drugs on his own initiative, or was he directed or requested
by the recipients to do so? Did the
recipients know the supplier as
such? Did they request the appellant to go to the supplier for the
purpose of obtaining the drugs
for them? Did the recipients undertake
to refund to the appellant the money that he would spend in buying
the drugs? And, did the
appellant receive, or was he to receive, any
remuneration for what he had done, either from the supplier or from
the recipients?
The
lacunae
in
the appellant's explanation can be demonstrated by postulating and
contrasting two possible scenarios. Possibility
(a)
: the
appellant was acting as a runner for the supplier; the recipients did
not know the supplier; the transaction would not have
taken place but
for the intervention of the appellant; and the appellant would have
earned a commission from the supplier, had
the transaction been
carried through. Possibility
(b)
: the supplier was known to
the recipients, but not to the appellant; the recipients asked the
appellant, purely as a favour, to
obtain the drugs for them from the
supplier; the recipients directed the appellant where to find the
supplier; it was arranged
that the recipients would refund to the
appellant the money that was required to buy the drugs; and the
appellant would have derived
no advantage from the transaction.
On possibility
(a)
the appellant would have contravened
s 2
(a)
, but on
possibility
(b)
plainly not. In the latter case he would have
been no more than a mere conduit for the acquisition of the drugs by
the recipients
and he would not have been involved in any activity
related to the supply of the drugs (see
Solomon's
case
supra
at 713D - F). The decisive question is not whether the appellant
was acting as the agent of the recipients, as may have been suggested
in the judgment of the Court
a quo
on the application for
leave to appeal, for in certain circumstances an agent for the buyer
may be participating himself in activities
which are related to the
supply of drugs (cf
S v Williams and Others
1987 (3) SA 126
(E) at 130G - I). But on the facts postulated in possibility
(b)
the appellant would not have been doing anything that the
recipients could not have done themselves; as a mere conduit for the
recipients
his conduct was directed at the acquisition of the drugs
and not at their supply.’
[11]
The accused was thus
wrongly convicted of dealing in cannabis. The questioning showed that
he could competently have been convicted
of possession. We do not
know whether the prosecutor would have accepted a plea of guilty on
the alternative count. Ordinarily
the proper course would be to
correct the proceedings by setting aside the conviction and remitting
the matter to be dealt with
on the basis of a plea of not guilty to
the main count but of guilty to the alternative count.
[12]
However, given the gross
delay that there has been in finalising the case, justice requires
that we should finally dispose of it
by substituting a conviction for
possession and imposing a suitable punishment. The file indicates
that the accused paid the unsuspended
portion of the fine on 4
January 2017. Fortunately, therefore, the injustice perpetrated by
his conviction for dealing can be reversed.
[13]
The accused was 19 years
old at the time of the offence. He had no previous convictions.
According to the questioning, his role
was that of an agent to buy
and deliver dagga for personal use to a friend. The quantity of dagga
was reasonably substantial (189
stops – about 848 grams). In my
view, an appropriate punishment would be a wholly suspended fine of
R4000, failing payment
of which imprisonment of six months.
[14]
The following order is
made:
(a) The conviction and
sentence of 4 January 2017 are set aside and replaced with the
following:
(i) The
accused is convicted on the alternative count of possession of
cannabis.
(ii) The
accused is sentenced to a fine of R4000, failing payment of which
imprisonment of six months, wholly suspended for
a period of five
years on condition that the accused is not convicted of a
contravention of
s 4(b)
or
s 5(b)
of Act 140 of 1992
committed during the period of suspension.
(ii) The
sentence is antedated to 4 January 2017.
(b) The State is directed,
within two weeks of this order, to repay to the accused the amount of
R4000, being the fine paid
by him on 4 January 2017.
(c) A copy of this judgment
shall be sent to the director-general of the Department of Justice,
the regional court president
(Western Cape) and the Magistrates’
Commission for consideration of such action as may be considered
appropriate, in relation
to the Clanwilliam Magistrate’s Court,
having regard to the judgment and orders made in
S v Jacobs &
six similar cases
2017 (2) SACR 546
(WCC).
____________________
ROGERS
J
______________________
SAVAGE
J