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[2012] ZAKZPHC 22
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Mbatha v S (AR265/11) [2012] ZAKZPHC 22; 2012 (2) SACR 551 (KZP) (23 February 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL, PIETERMARITZBURG
REPORTABLE
CASE NO. AR265/11
In the matter between:
SELBY
NHLANHLA MBATHA
…................................................................
APPELLANT
and
THE
STATE
….......................................................................................
RESPONDENT
JUDGMENT
GYANDA J
[1] In this matter, the accused,
Selby Nhlanhla Mbatha, was charged in the Magistrates’ Court
for the District of Dundee on
the main count of dealing in dagga in
contravention of the provisions of Section 5(b) read with
Sections 1
,
13
(f),
17
(e),
18
,
19
,
25
and
64
of the
Drugs and Drug Trafficking
Act, No. 140 of 1992
, in that on or about 14 January 2011 and at or
near Dlamini Village in the District of Dundee, he did wrongfully and
unlawfully
deal in an undesirable dependence producing substance, to
wit Cannabis (Dagga) in the quantity of 3.45 kg; 6.50 grams and 15.5
grams. In the alternative the accused was charged with contravening
Section 4(b)
read with
Sections 1
,
13
(d),
17
(d),
18
,
19
,
25
and
64
of
the
Drugs and Drug Trafficking Act, No. 140 of 1992
for unlawful
possession of dagga in that on or about 14 January 2011 and at or
near Dlamini Village in the District of Dundee,
the accused did
wrongfully and unlawfully have use or have in his possession an
undesirable dependence-producing substance, to
wit Cannabis (Dagga),
in the quantity of 3.45 kg; 6.50 grams and 15.5 grams.
[2] The accused, who was
unrepresented, pleaded not guilty to the main count but pleaded
guilty to possession of the dagga because
he smoked it. The State did
not accept the plea of the accused on the alternative count and
proceeded to trial on the main count.
The State called the evidence
of Sonesh Singh, a Warrant Officer in the South African Police
Services, stationed at the Glencoe
Dog Unit, who testified that on
4 January 2011, he proceeded to the
home of the accused in the company of one Constable Ndima as a result
of information received.
They proceeded to the home of the accused
armed with a warrant to search the premises.
[3] On searching the premises of the
accused, subsequent to obtaining his permission to search the said
premises, the police found
a parcel of loose dagga in a clear plastic
wrapping alongside the bed. On proceeding with their search outside
the premises alongside
the house, a clear bread plastic packet
containing dagga seeds were found. In addition, they also found a
newspaper bundle with
a few loose dagga in it. On further searching
the yard of the premises next to the house, they found a fully grown
dagga tree.
[4] According to the evidence of
Warrant Officer Singh, one could see that the tree had been taken
care of as it was cleaned and
maintained and there were no weeds in
the yard. Moreover, the yard was well fenced and there is an access
gate allowing access
into the premises. The accused was taken with
the dagga found, to a pharmacy where the dagga was weighed and
thereafter to the
offices of the South African Police Services at
Dundee where the dagga was handed into evidence into the SAP13
register.
[5] The evidence led by the State in
this regard was not challenged at all by the accused in
cross-examination in spite of his rights
thereto having being
adequately explained to him. At the close of the State case and upon
his rights to testify or call witnesses
being explained to him, the
accused elected to remain silent and stated that he wished to leave
everything to the Court.
[6] The Trial Magistrate, as he was
obliged to do, applied the meaning accorded to the word “cultivate”
in the decision
of
S v Van
Zyl
1
,
R v Potgieter
2
and
S
v Buthelezi
3
as contained in the definition of
“deal in” in
Section 1(1)
of Act, No. 140 of 1992, and
convicted the accused on the main count of dealing in dagga. The
definition of “deal in”
in the
Drugs and Drug Trafficking
Act, No. 140 of 1992
reads:-
“
deal
in”, in relation to a drug, includes performing any act in
connection with a transshipment, importation, cultivation,
collection, manufacture, supply, prescription, administration, sale,
transmission or exportation of the Drug.”
The accused was sentenced to 18
[eighteen] months imprisonment wholly suspended for a period of 3
[three] years on condition that
he is not again convicted of
contravening
Sections 5(b)
or
4
(b) of Act, No. 140 of 1992 committed
during the period os suspension and in addition he was ordered to pay
a fine of R1 000-00
[one thousand rand] or in default thereof to
undergo 6 [six] months imprisonment. The dagga was declared forfeited
to the State.
The case of the accused was
thereafter referred on Automatic Review to Wallis, J (as he then
was), who, in a Judgment dated 31 March
2011 opined that the meaning
accorded to the word “cultivate” was not the ordinary
meaning of the word “cultivate”
which in relation to
ground is essentially an agrarian term, and relates to an activity
associated with agriculture, relying on
the decision in
HTF
Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism
and Others
4
,
Wallis, J stated that:-
“
If
the more conventional meaning is applied, the conviction would fall
to be set aside.”
He accordingly referred the matter
for Argument before the Full Court in relation to the meaning of the
word “cultivation”
in
the definition of “deal in” in
Section 1
of the
Drugs and
Drug Trafficking Act, No. 140 of 1992
.
[7] Having heard full Argument
presented on behalf of the State by Advocate T. S. Jacobs and on
behalf of the accused by Adv. J.
A. Booyens SC, duly assisted by Adv.
S. Franke, both acting
amicus
curiae
, to whom we are
indebted for their assistance, I came to the conclusion as set out
hereunder.
[8] The definition of the term
“cultivate” as contained in the forerunner to the
existing Act, namely Act, No. 41 of
1971, was dealt with by the
Transvaal Provincial Division consisting of, Cillié, JP and
Bekker, J in the case of
S
v Kgupane en Andere
5
in the Judgment of Bekker, J, where
he stated:-
“
Na
my mening geld die volgende: Dat ń kweker van dagga skuldig is
aan “handeldryf” is nie te betwyfel nie. Hy word
r
egstreeks
getref en val binne die trefwydte van die statutêre omskrywing
van “handeldryf” wat werskyn in art.
1 van die Wet. Kweek
van dagga is handeldryf. Die afleiding wat gemaak moet word uit
hoofde van die omskrywing van “handeldryf”
gesien in die
lig van die voorgeskrewe vonnis, is dat dit die bedoeling van die
Wetgewer is om die nekslag toe te dien aan kweek
van dagga al sou dit
deur die kweker vir eie gebruik bestem wees. Met ander woorder, soos
ek die artikel vertolk is die verbod
gemik op die kweek
van
die plant ongeag vir watter doel dit ook al bestem is. Natuurlik is
dit terselfdertyd dan ook so dat die kweker “in besit”
van die daggaplant is en dat ń pas ontkiemde plant minder as 115
gram
kan
weeg. Dit egter, gesien in die lig van die omskrywing van
“handeldryf” bied hom geen uitkoms nie. Die klem val nie
op die woord “besit” nie maar op “kweek” van
dagga, wat hom dan binne die trefwydte van handeldryf insleep.”
In this particular case the Court had
been dealing with a number of review cases
inter alia
the
review case of the
State v Isaak Mashinini
who, like the
accused in the present matter under consideration was found in
possession of a solitary dagga plant and based on
a similar
definition of “deal in” in the 1971 Act, he was convicted
of dealing in dagga and his conviction and sentence
were confirmed.
The Provincial Division had to deal with the selfsame query as in the
case under consideration, namely whether
or not the possession of one
dagga plant amounted to dealing in the substance which the Transvaal
Provincial Division answered
in the affirmative and confirmed the
conviction and sentence. It is indeed instructive that the headnote
in
S v Kgupane en Andere
reads:-
“
Cultivation
of dagga is dealing in dagga. It is directly hit by, and falls within
the scope of, the statutory definition of “dealing
in”
which appears in Section 1 of Act 41 of 1971. The inference must be
drawn from the definition of “dealing in”,
seen in the
light of the prescribed sentence, is that
the
intention of the Legislature to put an end to the cultivation of
dagga even though it was intended by the cultivator for his
own use.
(my
underlining).
The prescribed sentence must then be imposed. The escape which
Section 10 (1)(b) offers the accused is, for example, the possibility
of persuading the Court that he was not in fact the cultivator of
dagga.”
[9] In this regard, counsel for the
State also referred us to the decision in
State
v Guess
6
,
a decision of the
Appellate Division (as it then was) , a decision of Joubert, AJA, in
which Holmes, JA and Trollip, JA concurred,
where the Appeal Court
had to deal with the definition of the word “cultivate”
or “cultivation” as they
appeared in the preceding Act,
namely Act, No. 41 of 1971 as amended. In his Judgment at page 717,
Joubert, AJA stated:-
In
cases dealing with “cultivation” of dagga plants, our
Courts have accepted the word, “cultivate” as ordinarily
meaning “to promote or stimulate or foster the growth of a
plant by any person”.
The learned Judge of appeal
thereafter referred to various decisions in which this definition was
accepted and applied.
[10] In the matter of
State v
Guess,
however, the Court questioned whether the State succeeded
in establishing beyond a reasonable doubt, the factual premises so as
to give rise to the presumption contained in Section 10(1)(b) that
the appellant dealt in 85 dagga plants in contravention of Section
2(a) of the Act and, if so, whether the appellant succeeded in
rebutting the presumption by proving on the balance of probabilities
that he did not cultivate the dagga plants. The Court concluded that
the State proved beyond a reasonable doubt that the appellant
was in
possession of the dagga plants and therefore the Court
a quo
ought to have properly convicted him of the alternative charge under
Section 2(b) of having being in possession of 85 dagga plants
and not
of dealing therein.
[11] In the light of the aforegoing
it must be presumed, therefore, on the so called “Barras”
Principle, that the legislature,
when they enacted current
Drugs and
Drug Trafficking Act, No. 140 of 1992
must have been aware of the
definition accorded to the word “cultivate” in the
decisions referred to above, more especially
the decision of the
Appellate Division in
S v Guess
and, therefore, they must have
accepted that that definition would apply to the word “cultivation”
as it appears in
Section 1(1)
of the present Act or they would have
stated otherwise. The “Barras” Principle, as it has
become to be known, is the
decision in the House of Lords and the
Privy Council in the case of
Barras v The Aberdeen Steam Trawling
and Fishing Company, Limited
, as reported in the 1933 English Law
Reports, Appeal Cases at pages 402 where the Court dealing with the
definition of the word
“wreck” stated that:-
“…
on
the ground of the word “wreck” having being used in the
Act of 1894 and having received a judicial interpretation
must, when
used in the same context in the Act of 1925, bear that interpretation
unless a contrary meaning is indicated …”
The principle of interpretation in
the
Barras
decision, (although it was not
specifically referred to), was followed by the Appellate Division (as
it then was) in the matter
of
The
Minister van Justisie v Alexander
7
in the Judgment of
Corbett
JA
where he stated:-
“
It
is one of the canons of statutory interpretation that the Legislature
is presumed to know the existing state of the law: and
from this
presumption arises the rule that a statute must be interpreted in the
light of the existing law (see
Steyn
,
op. cit., pp. 105, 139, xliv; Craies on Statute Law, 7
th
ed., pp. 96 – 8.”
[12] I am of the view therefore, that
in spite of the sympathy that may be felt for a user of dagga
planting a single dagga plant
for his own use to be convicted of
dealing in dagga rather than possession thereof, as stated by Bekker,
J, in
S v Kgupane en Andere
it is quite clear that the
intention of the Legislature was that in its pursuit of the sharks
that unfortunately some minnows may
be caught in the same net.
[13] It is instructive, in this
regard, that the State of Maine in the United States in it’s
statutory definition of “cultivation”
defines it as:-
“
to
grow a seed; to grow, raise or tend to a plant; to harvest a plant;
or to knowingly possess a plant.” (No. 10 – 1281.
–
McGuire
v Holder
– US First Circuit as quoted in Findlaw for English
Professionals.”
In view of the foregoing and in spite
of the definition accorded to “cultivate” by Combrink, JA
in
HTF Developers (Pty) Ltd
v Minister of Environmental Affairs and Tourism and Others
8
where he stated:-
“ ‘
Cultivate’
in relation to ground is essentially an agrarian term and relates to
an activity associated with agriculture. There
is no reason why the
primary meaning should not be applied considering that the Act makes
serious inroads on the rights of owners.”
That definition in my view, is not
applicable to the present case as it clearly applied in a different
context to the present case
wherein the word “cultivate”
has, as already been seen been dealt with and defined by our Courts
directly on point
in relation to its applicability to the
Drugs and
Drug Trafficking Act more
especially dealing therein.
[14] It has been argued that a proper
interpretation to be attached to the word “cultivate”
would be the Oxford dictionary
one, meaning:-
“
raise
or grow (plants) especially on a large scale for commercial purpose”
on the basis that such a definition
would do justice to the case of a dagga user who grew a solitary
plant to satisfy his own needs
and cannot really be deemed a dealer.
This in my view, is merely based on the sympathy felt for a user who
is not in actual fact
a dealer. To put into perspective this attitude
one would have to, in due course, extend this “extended
definition”
to the situation of a manufacturer of mandrax or
cocaine who has a laboratory at home and manufactures small amounts
for his own
consumption. This could definitely never have been the
intention of the Legislature. It is abundantly clear that the
intention
of the legislature was to stop the production and supply of
drugs when it enacted Act No. 140 of 1992 and defined “deal in”
as it did in Section (1) of the Act.
The circumstances in relation to drug
users found in the position of the accused herein are factors that
may be relevant only to
the question of the sentences to be imposed.
[15] I am of the view, in all the
circumstances, that this Court cannot come to the assistance of a
user of dagga who cultivates
a dagga plant for his own personal use,
in the light of the definition of “dealing in” to say
that in as much as he
did not cultivate it for the purposes of
dealing in the substance but for his own use and possession, he
should therefore not be
convicted of dealing in dagga.
[16] In my view, would be wrong as
his act of cultivation falls full square within the definition of the
phrase “dealing in”
in the Act and he has, in my view,
correctly been convicted of dealing in dagga.
I would accordingly confirm the
conviction and sentence imposed.
_________________
GYANDA
J
_________________
I agree.
NTSHANGASE
J
APPEARANCES
DATE
OF HEARING: 18 November 2011
DATE
OF JUDGMENT: 23 February 2012
COUNSEL
FOR APPELLANTS: Mr J. A. Booyens SC (with Ms S. Franke)
COUNSEL
FOR RESPONDENT: Mr S. Gazo
1
1975
(2) SA 489
(N) at 491 at D-F
2
1951
(1) SA 750
(N)
3
1968
(2) SA 715
(N)
4
2007
(5) SA 438
(SCA) p(7)
5
1975
(2) SA 73
(TPD) p75 H
6
1976
(4) SA 716
AD
7
1975
(4) SA 530
(A) p 550
8
2007
(5) SA 438
(SCA) p 7