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[2012] ZAKZPHC 23
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S v Mbatha (AR265/11) [2012] ZAKZPHC 23; 2012 (2) SACR 551 (KZP) (23 February 2012)
KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
REPORTABLE
Case no: AR265/11
In the matter between:
SELBY NHLANHLA MBATHA
…......................................................................................
APPELLANT
And
THE STATE
….............................................................................................................
RESPONDENT
JUDGMENT
MADONDO J
Introduction
[1] I have had the benefit of reading the judgment of
Gyanda J. I am not in agreement with the approach adopted in
interpreting
the word “cultivation” and the conclusion
that the cultivation of a single plant or few dagga plants per se
constitutes
dealing in dagga in contravention of the provisions of
section 5 (b) of the Drugs and Drug Trafficking Act no. 140 of 1992
(the
Act).
[2] This matter had served before Wallis J (as he then
was) as an automatic review. In his review judgment he referred the
matter
to this Court in order for it to decide the question whether
it is correct to treat the growing of a single dagga plant or bush
in
order to provide a source of dagga for personal use as “cultivation”
in the sense in which that word is used in
the definition of “deal
in” in section 1 of the Act and to consider and decide on the
continued application of the
decision in S v Van Zyl
1975 (2) SA 489
(N).
Factual Background
[3] The accused was charged in Dundee Magistrate’s
Court with the main count of dealing in 3.45kg, 6.50grams and 15.5
grams
of dagga in contravention of the provisions of section 5(b) of
the Act and the alternative count of possession of the same quantity
of dagga in contravention of section 4(b) of the Act.
[4] The appellant pleaded not guilty to the main count
but guilty to guilty to the alternative count. He stated that he
possessed
the dagga in question for personal use. However the state
did not accept the plea on the alternative count and proceeded to
trial
on the main count. The evidence led by a single witness,
established that following information Sonesh Singh, a Warrant
Officer
in the South African Police Service attached to Glencoe Dog
Unit, and Constable Ndima had received as to the presence of dagga at
the accused’s homestead, 14B Dlamini Village, Dundee, they
sought and obtained a search warrant.
[5] Armed with the search warrant they proceeded to the
accused’s homestead to conduct a search. On their arrival at
14B Dlamini
Village they introduced themselves and explained the
purpose of their visit to the accused and asked him for permission to
conduct
a search. After obtaining the required permission, Singh and
Ndima started searching the house of the accused.
[6] At the foot of the bed they found a plastic parcel
containing dagga. They then proceeded outside the house to conduct a
further
search on the premises. Outside the house they found a bread
packet containing dagga seed and loose dagga in a bundle of
newspaper.
Alongside the fence, within the precinct of the accused’s’
premises, they found a dagga plant 1.98m in height, which
appeared to
them to be well tended. They formed such an opinion on the basis that
the patch where the dagga plant was found had
been tilled, weeded and
there were no other plants growing wildly around it.
[7] Singh did not dispute that the accused possessed
dagga for his own smoking purposes. No evidence was led to show that
the accused
was dealing in dagga, nor did the accused admit dealing
in dagga by cultivating it. On the close of the State case, the
accused
elected to remain silent and close his case without calling
any evidence.
[8] The Learned Magistrate had difficulty in convicting
the accused of dealing in dagga in the absence of evidence to that
effect.
Nor could the accused be presumed to have been dealing in
dagga in terms of section 21(1)(a) of the Act on the ground that he
had
been found in possession of dagga in excess of 115 grams since
such presumption had been held unconstitutional. However, the
Magistrate
relying on the fact that the definition of the word ‘deal
in’ in the Act includes cultivation convicted the accused
on
the main count.
[9] However, it is worth pointing out that such a
finding by the learned Magistrate was not supported by any evidence.
The accused
had only pleaded guilty to possession of dagga but not to
the cultivation of the dagga plant. There is nothing in the
particulars
of the charge sheet which indicated that the accused
cultivated the dagga plant in question and that by such cultivation
he dealt
in dagga. Nor was the accused warned that should the
evidence establish that he was guilty of cultivating the dagga plant
in question,
he could on that ground alone be convicted of dealing in
dagga since in terms of the Act cultivation of dagga constitutes
dealing
in dagga. Therefore, it cannot be said that the charge of
dealing in dagga embodied cultivation of the dagga plant. Though
there
was evidence that the dagga plant had been tended and from
which it could reasonably be inferred that it was cultivated, still,
it was incumbent upon the state to prove beyond a reasonable doubt
that the accused cultivated the dagga plant in question.
[10] The State had therefore failed to prove that the
accused had committed the prohibited act. The prosecution had not
laid any
basis for the admission of the evidence of Warrant Officer
Singh that on enquiring from the accused whose dagga plant it was,
the
accused responded saying that it was his. Such evidence was
inadmissible for conviction on the main count. It is, therefore,
apparent
that the accused was presumed to have cultivated the dagga
plant in question simply on the ground that he had admitted being the
owner of the premises in question.
Interpretation of the word “cultivation”
[11] In section 1 of the Act the definition of ‘deal
in’, in relation to a drug, includes performing any act in
connection
with the trans-shipment, importation, cultivation,
collection, manufacture, supply, prescription, administration, sale,
transmission
or exportation of the drug.
[12] Though the word “cultivation” is not
defined in the Act its meaning can be gleaned from authoritative
dictionaries
and decided authorities. In ascertaining the meaning of
the word “cultivation“, regard must be had to the purpose
of
the legislation, scope and the context in which the word is used.
See SAPS v Police and Prisons Civil Rights Union
2011 (6) SA 1
(CC) at 13 para 30.
[13] The South African Concise Oxford Dictionary defines
the word “cultivate” as meaning to:
“
Prepare and use (land) for crops or
gardening, raise or grow (plants) especially on a large scale for
commercial purposes”
[14] In R v Potgieter
1951 (1) SA 750
(N) at 751E the
word ‘cultivate’ in section 61(1)(b) of Act 13 of 1928
was interpreted to mean “to promote or
stimulate or foster the
growth of a plant”. In this case the Court was asked to decide
whether or not, upon the evidence,
the dagga growing on the
appellant’s land was cultivated. There was evidence that the
plot had been weeded. The Magistrate
after taking all the
circumstances in to account, found as a fact that the accused had
cultivated dagga. Potgieter was cited with
approval in S v Ndaba
1962(3) SA 202(N) at 203 G-H; S v Buthelezi 1968(2) SA 714(N) at 715
D-E.
[15] In S v Guess 1976(4) SA 716(A) at 717B-C, the word
“cultivate” was interpreted to ordinarily mean to promote
or
simulate the growth of a plant by any person. However, giving the
word “cultivation” liberal interpretation so per se
to
constitute dealing in dagga without reference to
mens rea
presupposes strict liability in respect of the offence.
[16] This is quite evident in
S v Kgupane en Andere
1975(2) SA 73 (AD) at 75 H
where Bekker J said:
“
Na my mening geld the volgende; Dat ‘n
kweker van dagga skuldig is aan “handdryf” is nie te
betwyfel nie. Hy word
regstreeks getref en val binne die trefwydte
van die statutêre omskrywing van “handeldryf” wat
verskyn in art.
I van die wet. Kweek van dagga is handeldryf. Die
afleiding wat gemaak word uit hoofde van 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 vees. Met
ander woorde, soos ek die artikel vertolk is die verbod gemik
op die
kweek van die plant ongeag vir water doel dit ook al bestem is …”
[17] According to the interpretive approach adopted in
Kgupane case and other old decided authorities to the meaning of
cultivation,
cultivation of any kind and on any scale amounts to
dealing. It may take the form of a single dagga plant growing or a
few home
growing plants in pots or large commercial growing in the
fields. All according to the said approach are prohibited in the Act
and it does not distinguish cases on the basis of the size of the
plant and number of the plants involved.
[18] It is clear from Kgupane case,
supra
, that
conviction of dealing in dagga automatically follows upon mere proof
beyond a reasonable doubt of the proscribed Act, i.e.
cultivation of
dagga. In essence, cultivation of dagga per se constitutes dealing in
it without proof of intention to do so. The
state is required to
prove neither
mens rea
nor negligence. See
also R v City of
Sault Ste. Marie, [1978]2 SCR 1299
. However, this approach raises
serious legal and constitutional issues, which will appear more fully
in my discussion in the judgment.
Mens rea
[19] In the old decided authorities the word
“cultivation” has been interpreted as not requiring
culpability. This approach,
obviously, creates an anomalous situation
in our justice system where an accused person is convicted of a
criminal offence without
the fulfilment of all the elements of
criminal liability, namely; act, unlawful and culpable conduct which
accord with the definitional
elements of the crime charged, see CR
Snyman: Criminal Law 4
th
ed. P37.
[20] Generally, an act or omission is not criminal
unless it is accompanied by
mens rea
or a culpable state of
mind of a person who does or commits it.
Mens rea
focuses on
the mental state of the accused and requires proof of a positive
state of mind such as intent, recklessness or wilful
blindness.
Negligence on the other hand, measures the conduct of the accused on
the basis of an objective standard, irrespective
of the accused’s
subjective mental state. Where negligence is the basis of liability,
the question is not what the accused
intended but rather whether the
accused exercised reasonable care. Negligence is an acceptable basis
of liability in the regulatory
context. Regulatory legislation is
essential to the functioning of our society and to the protection of
the public. It responds
to the compelling need to protect the health
and safety of the members of our society and to preserve our fragile
environment.
See
R v Wholesale Travel Inc [1991] SCR (4
th
)
145 CSCC.
[21] The imposition of criminal liability in the absence
of a criminal intention has for some hundreds of years at least been
regarded
as an abhorrent concept in South African Law and in Anglo
–American Common Law. See
S v Coetzee and others 1997(1)
SACR 379(CC) at 1414
. In S v Qumbella 1966(4) SA 356 (A) at
364D-F, it was held that the judicial thinking of that time was
recognising more fully the
scope and operation of the basic principle
actus non facit reum nisi mens sit rea
as a fundamental rule
of our law.
[22] Homes JA at 364F referred to this rule as a
“fundamental principle of fairness”. It is on the basis
of this principle
that statutes creating criminal offences will, as
far as their language permits, be interpreted as requiring the
element of
mens rea
in some form, either subjective guilty
intent or at least negligence.
[23] The general principle of our common law is that the
criminal liability arises only where there has been unlawful conduct
and
blameworthiness. See
Coetzee case at 438 at 162
. For, it
is the intention or the consciousness that one is committing a crime
that really constitutes the criminality. In R v Wallendorf
and others
1920 AD 383
at 394, it was held that it is a recognised principle of
our law and practice that “ordinarily speaking, a crime is not
committed
if the mind of the person doing the act in question be
innocent.”
[24] In S v Ngcobo
1972 (2) SA 557(N)
, the question
arose whether
mens rea
was part of the offence created by
section 2 (b) of Act 41 of 1971, which the possession of dagga, and
if it was, whether the Act
cast an onus upon a person who has been
found in possession of dagga to prove on the balance of probabilities
that he did not have
the required
mens rea
. The court answered
the first question in the affirmative and the second one in the
negative. In S v Pather 1973(3) SA 164 (N)
at 165E-F, the court held
that unless a statutory prohibition expressly or by necessary
implication excludes
mens rea
from an offence, such a mental
state should be regarded as a necessary element of it.
[25] The real concern is not whether the accused must
disprove an element or prove an excuse, but that an accused person
may be
convicted while a reasonable doubt exists. See
R v Whyte
(1989)51 DLR (6A) 481 at 493
.
[26] It was not the intention of the Legislature that
liability imposed for cultivation of dagga should be strict. In S v
Arenstein
1964(1) SA361 (AD) at 365C, it was held that in construing
statutory prohibitions or injunctions, the Legislature is presumed,
in the absence of clear and convincing indications to the contrary,
not to have intended innocent violations thereof to be punishable.
Indications to the contrary maybe found in the language or the
context of the prohibition or conjunction, the scope and object
of
the statute, the nature and extent of the penalty, and the ease with
which the prohibition or injunction could be evaded if
reliance could
be placed on the absence of
mens rea
. See also
R v H,
1944
AD 121
at 126
.
[27] In
R v Salmonson and another 1960(4) SA 748(T)
at 751.
Claasen J said:
“
Where the section of an Act though the
absence of such words as ‘wilfully’ or ‘knowingly’
unqualifiedly
prohibits and act, it becomes necessary to decide
whether it is an absolute prohibition or whether an absence of
mens
rea
could be a defence.”
[28] The Legislature may absolutely prohibit the doing
of an act and constitute it an offence without reference to the state
of
mind of the offender, and regardless whether he had any intention
of breaking the law or otherwise doing a wrongful act. However,
the
intention of the Legislature cannot be decided upon simple
prohibitory groups only. In every case it is for the court to
determine
upon other considerations namely; the object of the statute
in question, the context of the prohibition and the nature and extent
of the penalty, whether or not a guilty mind is necessary to
constitute the offence created by the statute. See
R v Wallendorf,
supra, at 397; F v H at 126.
[29] The object of the Act in the present matter is to
provide for the prohibition of the use or possession of or dealing in
drugs
and of certain Acts relating to the manufacture or supply of
certain substances or the acquisition or conversion of the proceeds
of certain crimes, the recovery of the proceeds of drug trafficking
and for matters connected therewith. It is apparent from the
above
that the Act aims at eliminating financial incentives from illicit
trafficking in dagga but not to brand any Act relating
to dagga
handling as dealing. Therefore it is appropriate to conclude that the
word “cultivation” should not be interpreted
in isolation
but with reference to dealing in dagga. For an accused person to be
convicted of dealing in dagga merely on the basis
that he or she has
cultivated dagga, a link must be established between cultivation of
and dealing in dagga. In other words, the
evidence must show beyond a
reasonable doubt that the accused person cultivated dagga for the
purpose of selling or supplying it
to other people. In fact, the
State must prove cultivation, prohibition, i.e. dealing in dagga and
intention.
[30] In
S v Van der Merwe 1974(4) SA 310 (E),
the
appellant had been convicted by a magistrate of dealing in dagga
because he had watered and nurtured a small dagga plant which
he kept
in a small tin in his room, but the court, in allowing the appeal
held as follows:
“
The legislation of this nature, with its
far-reaching criminal consequences, had to be given a restrictive
interpretation and that
the definition of dealing in dagga should not
be given a wider interpretation than was necessary to achieve the
obvious intention
of the legislature: equally a statute,
particularly, a penal statute, should not be given an interpretation
which would produce
a manifestly absurd result.”
Accordingly, in this case the court held that the action
of the appellant could not be held to fall within the extended
definition
of “dealing in dagga”. Conviction of unlawful
possession of dagga in contravention of section 2(b) of the Act was
substituted.
[31] In
S v Thembalethu 2009(1) SACR 50 (SCA) 55 para
8
, Kgomo AJA (as he then was) said the following:
“
The starting point in the interpretation of
a statutory provision remains an endeavour to ascertain the intention
of the legislature
from the words used in the enactment. Those words
must be accorded their ordinary, literal, grammatical meaning and a
court may
depart from the meaning only where to do so would lead to
an absurdity so glaring that it could never have been contemplated by
the legislature, as shown by the context or by such other
considerations as the court is justified in taking into account …
(Venter v Rex
1907 TS 910
at 915; and Randburg Town Council v Kerksay
Investments (Pty) Ltd
1998 (1) SA 98
(SCA) [1997] 4 all SA 121 at 107
B-G)”.
[32] The intention of the Legislature in prohibiting
cultivation of dagga is to prevent sale or supply of it to other
people. Therefore,
the provisions relating to ‘deal in’
should not be construed in such a manner as to make a person who
effectively possesses
dagga for personal use, therapeutic or other
purposes a dealer. In this regard SmalBerger J in
S v Solomon
1986(3) SA 705(A) at 709G
had the following to say:
“
Die wet tref ‘n duidelike ondeskeid
tussen handeldryf in, en die gebruik of besit van, verbode stof. Dit
blyk uit die bepalings
van Art 2 van de Wet. Hierdie ondereskuid is
veral te bespeur by die strawwe wat vir handeldryf en besit
onderskeidelik voorgeskryf
is. Dit is aanduidende van wetgewer se
bedoeling om nie hadeldryf en besit van eie gebruik, en di
ệ
gene
wat by die een of ander betrokke is oor dieselfde kam to skeer nie.”
Constitutional issues
[33] The second question arises is whether the principle
or practice according to which a court is free to interpret a
statutory
provision creating a crime in such a way that no
culpability is required from liability is compatible with the
Constitution.
[34] The general rule is that when a person has
committed an unlawful act intentional or negligently, the State may
punish him or
her. Deprivation of liberty, without established
culpability constitutes a breach of this established rule. In Coetzee
case,
supra
, at 443 para 176, O’ Regan J said:
“
Indeed the appropriate form of culpability
may well be affected by the nature of the criminal prohibition as
well as other factors.
In addition, it should be borne in mind that
significant leeway ought to be afforded to the Legislature to
determine the appropriate
level of culpability that should attach to
any particular unlawful conduct to render it criminal. It is only
when the Legislature
has clearly abandoned any requirement of
culpability manifestly appropriate to the unlawful conduct or
potential sentence in question,
that a provision maybe subject to
successful constitutional challenge.”
[35] Under article 14 of the United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
of
December 1988, the taking of appropriate measures to prevent
illicit cultivation of and to eradicate plants … containing
narcotic or psychotropic such as … cannabis plants cultivated
illicitly are permissible but the measures adopted must respect
fundamental human rights ….
[36] In Canada the principle of strict liability is held
to constitute infringement upon Canadian Charter of Rights and
Freedoms
(the Charter), provided that such an interpretation results
in imprisonment being imposed upon, because he is deprived of his
liberty
and security of person. However, it is not wrong to place a
burden on a person to prove that he had not acted negligently. See
Motor Vehicle Act Reference (1985) 23 CCC (3
rd
)
289,
[1785] 2 SCR 486
48CR (3d) 289; Wholesale Travel Inc (1991) SCR
(4
th
) 145(SCC); R v Hess, R v Nguyen (1990)
59 CCC.
[37] The Canadian Supreme Court has held that where a
statute imposes criminal liability without any
mens rea
requirement (ie. absolute liability) which may result in
imprisonment, it will be a breach of section 7 of the Charter. See
Motor Vehicle Act (19850 24 DLR (4
th
) 536
(SCC); R v Vaillancourt (1988) 47 DLR (4
th
)
399(SCC); R v Wholesale Travel Group Inc. (1982) 84 DLR (4
th
)
161 (SCC).
[38] It is a principle of fundamental justice that a
criminal offence punishable by imprisonment must have a
mens rea
.
See
R v Hess; R v Nguyen
[1990] 2 SCR 906
. Section 7 of the
Canadian Charter of Rights and Freedoms (the Charter) provides:
“
Everyone has the right to life, liberty and
security of the person and the right not to be deprived thereof
except in accordance
with the principles of the fundamental justice.”
[39] In
Re B.C. Motor Vehicle Act
[1985] 2 SCR 486
at513
, Lamer J, writing for
the majority, stated:
“
It has from time immemorial been part of
our system of laws that the innocent not be punished. This principle
has long been recognized
as an essential element of a system for the
administration of justice which is founded upon a belief in the
dignity and worth of
the human person and on the rule of law. It is
so old that its first enunciation was in Latin Action
non
facit reum nisi mens sit rea
.”
[40] In R v Vaillan Court, [1987] 2SCR 636 at 652, it
was found that section 7 of the Charter had elevated the requirement
of
mens rea
from a presumption of statutory interpretation to
a constitutionally mandated element of a criminal offence. On the
principle that
the innocent should not be punished Dickson J in
Papp
john v The Queen
[1989] 2 SCR 120
at 138
said:
“
There rests now, at the foundation of our
system of criminal justice, the precept that a man cannot be adjudged
guilty and subjected
to punishment unless the commission of the crime
was voluntarily directed by a willing mind”
[41] The doctrine of
mens rea
is an integral and
indispensable feature of criminal law. It is therefore not proper to
punish a man unless he had known that he
was doing wrong. See Kenny’s
Out lines of Criminal Law 19
th
ed: by JW Cecil Turner,
Cambridge, University Press, 1966 at P13. The doctrine of
mens rea
reflects the conviction that a person should not be punished unless
that person knew that he was committing the prohibited act
or would
have known that he was committing the prohibited act. Generally,
mens
rea
is an essential ingredient of all cases that are criminal in
the true sense not for offences created by statutes for the
regulation
of individual conduct in the interest of health,
convenience, safety and general welfare of the public.
[42] Acts or actions are criminal when they constitute
conduct that is itself, so abhorrent to the basic values of human
society
that it ought to be protected completely. While the criminal
offences are usually designed to condemn and punish past, inherently
wrongful conduct, regulatory measures are generally, directed to the
prevention of future harm through the enforcement of minimum
standards of conduct and care. The concept of fault in regulatory
offences is based upon reasonable care standard and such does
imply
moral blameworthiness in the same manner as a criminal fault.
Conviction for breach of a regulatory offence suggests nothing
more
than that the defendant has failed to meet a prescribed standard of
care.
[43] In
Harding v Price 1948(1) AER 283 at p 284
,
Lord Goddard CJ said:
“…
It is of the utmost importance for
the protection of the liberty of the subject that a court should
always bear in mind that, unless
a statute, either clearly or by
necessary implication, rules out
mens
rea
as a constituent part of a crime
the court should not find a man guilty of an offence against the
criminal law unless he has a
guilty mind …”
[44] In South Africa the principle of strict liability
infringes negatively on the right to a fair trial provided for in
section
35(3) of the Constitution, as well as with the right to
freedom and security of the person provided for in section 12(1) Of
the
Constitution Act, 108 of 1996 (the Constitution). See Coetzee
1997(1) SACR 379(CC) 442 h-I per O’Regan; Magagula 2001(2) SACR
123 (T) 145-146, 146b.
Presumption of innocence
[45] The principle that a person should not be convicted
unless he has some degree of
mens rea
is fundamental to our
law. However, in the interpretive approach adopted by certain old
decided cases the accused is convicted
on the mere proof of the
commission of the prescribed Act without reference to the culpability
of the accused’s conduct.
This has the effect of shifting the
onus onto the accused to prove his or her innocence.
[46] There is no question that the presumption of
innocence is a fundamental legal right which plays a very import role
in the administration
of our criminal law system. The importance of
the right is illustrated by its entrenchment in section 35(3)(h) of
the Constitution.
The said section provides:
“
(3) Every accused person has a right to a
fair trial which includes the right ─
(a) ….
(b) ….
(c) ….
(d) ….
(e) ….
(f) ….
(g) ….
(h) to be presumed innocent , to remain silent and not to testify
during the proceedings.”
[47] The presumption of innocence includes both the
right of an accused to be presumed innocent until proved guilty, and
the right
to have the state bear the burden of proving guilty beyond
a reasonable doubt. The interpretation which allows the court to
convict
an accused person of dealing in dagga on the mere proof of
dagga cultivation without proof of
mens rea
places an onus on
the accused to establish his innocence on the balance of
probabilities in order to escape conviction. It does
not exclude the
possibility of the accused being innocent. The real concern is not
whether the accused must prove an element or
prove and excuse, but an
accused may be convicted while a reasonable doubt exists. See R v
Whyte
[1988] 2 SCR 3.
This was affirmed in R v Chaulk [1990] 3
SCR1303; Coetzee case, at 446 para 190. It is also in conflict with
the long – established
rule of the common law on the burden of
proof that the prosecution must prove the guilt of the accused person
beyond a reasonable
doubt.
[48] The Constitutional Court has held that where a
legislative provision imposes an obligation upon an accused to
establish certain
facts to avoid criminal liability it constitutes a
breach of the presumption of innocence as enshrined in section
25(3)(c) of the
interim Constitution (now section 35 (3)(h) of the
Constitution). See S v Zuma and others 1995(1) SACR 568 (CC) 1995(2)
SA 642;
1995 (4) BLLR 401
at para 33; S v Gwadiso 1995(2) SACR 748
(CC) 1996(1) SA 388; 1995(12) PLLR 1579 at para 15; S v Mbatha; S v
Prinsloo 1996(1) SACR
371(CC); 1996(2) SA 464; 1996(3) BLLR 293 at
para 12; S v Julius 1996(2) SACR 108(CC); 1996(4) SA 313; 1996(&)
BLLR 899 at
para 3.
[49] In Canada, the right to be presumed innocent is
expressly protected by section 11(d) and inferentially by section 7
of the
Charter, which provides:
“
Any person charged with an offence has the
right to be presumed innocent until proven guilty according to law in
a fair public hearing
by an independent and impartial tribunal.”
[50] Section 11(d) requires, where a person faces penal
consequences, that the individual be proven guilty beyond a
reasonable doubt.
The State bears the burden of proof and the
prosecution must be carried out in accordance with lawful procedures
and fairness.
Section 11(d) is offended if an accused may be
convicted notwithstanding a reasonable doubt on an essential element
of the offence.
[51] The presumption of innocence for a regulated
accused is not meaningless because the State must still prove the
actus reus
. Fault is presumed from the bringing about of the
proscribed result and the onus shifts to the defendant to establish
reasonable
care on a balance of probabilities. See Wholesale Travel
case, supra. In Narcotic Control Act, R.S.C 1970 CN – 158, the
court
held that s 8 of Practice Control Act infringed s 11 (d) by
requiring the accused to prove (on a balance of probabilities ) that
he was not guilty of trafficking once the basic fact of possession
had been proved.
[52] However, the US Supreme Court has held that where
the person charged is aware of the regulated nature of the impugned
conduct,
it is constitutionally permissible to exact absolute
liability offences, even where imprisonment is available as penalty.
See United
States v Balint,
[1922] USSC 60
;
258 US 250
(1922); United States v
Dotterwhich;
[1943] USSC 168
;
320 U.S 277(1943).
[53] Even in the case of serious criminal offences, it
has been held that placing a persuasive burden on the accused to
establish
a defence does not violate the presumption of innocence.
See Patterson v New Work
[1977] USSC 118
;
432 U.S 197(1977)
; Martin v Ohio;
[1987] USSC 54
;
480 U.S
228(1987).
The American experience supports a finding that strict
liability is constitutionally permissible. Though we can benefit from
the
American experience and learning in the decisions of the highest
American Courts, should and must not be slavishly followed in South
Africa, for, there are historical and other differences between
American and South African Society.
Loss of Liberty and security of person
[54] Section 17 of the Act provides:
“
17.
Penalties
─ Any person who is convicted of an offence under this Act
shall be liable ─
(a) …
(b) ….
(c) ….
(d) ….
(d) ….
(e) in the case of an offence referred to in section 13(f), to
imprisonment for a period not exceeding 25 years , or to both such
imprisonment and such fine as the court may deem fit to impose.”
[55] The imposition of minimum imprisonment for an
offence which may be committed unknowingly and with no wrong intent
and for which
no defence can be made deprives or may deprive of
liberty offends the principles of fundamental justice .See Re. B.C.
Motor Vehicle
Act case,
supra
. At common law imprisonment was
reserved for more serious
mens rea
offences. Where
imprisonment is available as penalty, absolute liability cannot be
imposed since it renders the fault element entirely
and, in so doing,
permits the punishment of the morally innocent. See
Wholesale
Travel
Group Inc., supra.
[56] Generally speaking, the cause for deprivation of
freedom must be in accordance with the basic tenets of the legal
system. The
prohibition of arbitrariness is at the core of the
principle of legality, which forms part of the rule of law. The
imprisonment
following a conviction of strict liability violates the
right to freedom because it is a basic principle of criminal
liability
that punishment is justified by a degree of blameworthiness
on the part of the accused. The state’s right to punish
criminal
conduct rests on the notion that culpable criminal conduct
is blameworthy and merits punishment. Criminal liability without
fault
is not consonant with the basic tenets of the legal system; it
must therefore be justified under the general limitation clause
(s36).
[57] Attachment of a mandatory imprisonment sanction to
an absolute liability offence interferes with the provisions of
section
12(1)(a) of the Constitution providing the right not to be
deprived of freedom arbitrarily and without just cause in that an
accused
person convicted for cultivating dagga automatically loses
his or her liability . Imprisonment is the most severe sentence
imposed
by law, apart from death, and is generally reserved as a last
resort for occasions when other sanctions cannot achieve the
objectives
of the system.
[58] Section 12(1)(a) of the Constitution provides:
“
12(1) Everyone has the right to freedom and
security of the person, which includes the right –
not to be deprived of freedom arbitrarily or without just cause.”
The section provides protection against detention or
imprisonment. The substantive component requires the state to have
good reasons
for depriving someone of their freedom and the
procedural component requires the deprivation to take place in
accordance with fair
procedure. The section guarantees both
substantial and procedural protection.
[59] In Canada an absolute liability offence violates
section 7 of the Charter only if and to the extent that it has the
potential
to deprive life, liberty or the security of the person.
There is no need that imprisonment be mandatory. The combination of
infringement
and fine violates section 7 irrespective of the nature
of the offence and can only be salvaged if the authorities
demonstrate under
section 1 such a deprivation to be justified limit
in a free and democratic society.
[60] In South Africa the infringement of the right is
permissible in terms of the criteria for a legitimate limitation of
rights
laid down in section 36 of the Constitution. The law must
serve a constitutionally acceptable purpose and that there must be
sufficient
proportionality between the harm done by the law and the
benefit it is designed to achieve. This involves the weighing of
competing
values. In balancing process, the relevant considerations
will include the nature of the right that is limited and its
importance
to an open and democratic society based on freedom and
equality. The purpose for which the right is limited and the
importance
of that purpose to such society, the extent of
limitations, its efficacy and where the limitation has to be
necessary, whether
the desired ends could reasonably be achieved
through other means less damaging to the rights in question. See
S
v Mankwenyane 1995(3) SA 391 (CC).
[61] Section 36 of the Constitution contains a set of
relevant factors to be taken into account by a court when considering
the
reasonableness and justifiability of a limitation. There is
absolutely nothing to show that the interpretive approach to the
meaning
of the word “cultivation” which infringes the
right to innocence and the right to freedom and security of person
constitutes
a legitimate limitation of the rights in question. Nor,
has it been shown that such infringement is for a good compelling
reason
and that it serves the purpose that is considered legitimate
by all reasonable and right thinking citizens in a constitutional
democracy. In order for the limitation on the right to freedom
brought about the adopted interpretive approach to the definition
of
the word “cultivation” to achieve that, it must be shown
that it is reasonable in the sense that it does not invade
the
entrenched rights any further than it needs in order to achieve this
purpose. In my view, the adopted approach does not pass
the muster.
Deterrence effect of the sentence imposed -
Decision in S v Van Zyl
[62] I now turn to determine whether the deprivation of
liberty resulting from conviction for dealing in dagga by reason of
cultivating
a single plant or a few plants accords with the
established fundamental principle of fairness. There is nothing to
show that the
cultivation of a single dagga plant or a few plants
presents a reasonable risk of serious, substantial or significant
harm to either
the individual or society. Since, the adopted approach
excludes culpability as a requirement; it is pointless to punish
somebody
who lacks culpability. The experience has taught that a
person is not deterred from committing a particular offence if he is
in
danger of being convicted of it regardless of his knowledge of the
surrounding circumstances. See also Stroud. Douglas Aikenhead,
Mens
Rea
, London: Sweet & Maxwell, 1914 at pp. 10-11. The adopted
approach therefore impacts negatively on the deterrent effect of the
sentence imposed for the offence.
[63] Obviously, punishing a mentally innocent person
would not achieve the desired purpose of the Act. The principle not
to imprison
a mentally innocent person stems from acute awareness
that to imprison a ‘mentally innocent’ person is to
inflict a
grave injury on that person’s dignity and sense of
worth. There must be a correlation between the moral blame and
punishment.
[64] Giving the word “cultivation” a liberal
interpretation in relation to “deal in” will have the
effect
of widening the meaning of the word “deal in” so
to include any acts or activities related to the handling of dagga
which would ordinarily not have fallen within the prohibition. Since
the Act covers all forms of dagga cultivation from small domestic
to
large-scale commercial growing, the section exposes an accused that
grows a single dagga plant or a few plants for their own
use to
severe punishment and to the full weight of the confiscation
machinery. They stand to lose their assets including homes,
for
conviction of the offence of dealing in dagga may be followed by
confiscation of assets under the Act (s 25).
[65] Section 25 of the Act empowers the court on
convicting an accused person of dealing in drug, in addition to any
punishment
which the court may impose to declare any property
including the immovable property which was used for the purpose of or
in connection
with the commission of the offence, under section
11(1)(g) of the Act or in the possession custody or under the control
of the
convicted person, to be forfeited to the State.
[66] In S v Van Zyl 1975(2) SA 484(N) the accused had
cultivated three dagga plants in the flowerpot within the meaning of
that
word in the wide definition of “deal in” in the Act.
At 492A-B, it was held that the Legislature could not have intended
that an act such as the appellant’s in relation to the
cultivation of dagga should be regarded as an actual dealing in
dagga,
more particularly when a minor act, must in terms of section 2
of Act 41 of 1971, attract a minimum sentence of five years. The
appellant’s single contribution to the cultivation of the dagga
plants was so trivial that the court should disregard it
by applying
the
maxim de minimis on curat lex
to the facts.
[67] Snyman rejects the
maxim of de minimis
. In
my view, it should be confined to cases where society is not
prejudiced by the actions of the accused. In
R v Dane
1957 (2) SA
472
(N) 473D
, it was held that the maxim has a bearing in
criminal cases, and can and should be applied in charges of extreme
triviality. In
S v Shangase and others
1972 (2) SA 410
(N) 425F- G,
Harcourt J, said:
“ …
however, the social evil involved
and the manifestly severe intention of the Legislature discernible in
the Act make it improper
to say that the harm ─ actual and
potential done ─ to the individual and to the community is of
so trifling a nature
that the maxim can be properly applied by a
court once a prosecution has been before it . “
[68] The punishment imposed must bear some relationship
to the offence charged. It must be a fit sentence proportionate to
the seriousness
of the offence. Only if this is so, can the public be
satisfied that the offender deserves the punishment he received and
feel
a confidence in the fairness and rationality of the legal
system.
Supremacy of Constitution
[69] When construing legislation with a view to
ascertaining its purpose and the meaning of the words used therein,
intention of
the Legislature is no longer a dominant consideration or
decisive factor. Section 2 makes Constitution the supreme law of the
country,
and any law or conduct that is inconsistent with the
provisions of the Constitution is invalid , to the extent of the
inconsistency,
of no force or effect, and the obligations imposed by
it must be fulfilled.
[70] Section 39(2) of the Constitution enjoins every
court tribunal or forum, when interpreting any legislation, to
promote the
spirit, purport and objects of the Bill of Rights. In
consequence thereof the definition of the word “cultivation”
as well as the decision in S v Van Zyl should and must be considered
and interpreted through the prism of the Constitution. See
S v
Dzukuda and others; S v Tshilo 2000(4) SA 1078 (CC) in para 38 at
1101-1102B; 200(2) SACR 443(C) at 465h-j; S v Malgas 2001(2)
SA 1222
(SCA) at para1230 B-E. Courts must therefore look to the Constitution
in order to assess any encroachment of rights by
statutory
provisions.
Conclusion
[71] Regard being had to the severe penalty of
imprisonment for a maximum period of 25 years or to both such
imprisonment and fine
as the court may deem fit to impose for
contravention of section 5(b), I am satisfied that the Legislature
did not intend to exclude
mens rea
as an essential ingredient
of the offence created by the inclusion of the word “cultivation”
in the definition of “deal
in” in the Act. See also
R
V Tsotsi
1956 (2) SA 782
(ad) at 785
. In
Tshwete v Minister of
Home Affairs (RSA)
1988 (4) SA 586
(AD) 612F,
Nestadt JA said:
“ …
where a statute is reasonably
capable of more than one meaning, a Court will give it the meaning
which least interferes with the
liberty of the individual (
R
v Sachs
1953 (1) SA 392
(A) at 399H
),
that a strict construction is placed on statutory provision which
interferes with elementary rights (Dadoo Ltd and Others v Krugersdorp
Municipal Council
1920 AD 530
at 552), that a statute is not presumed
not to take away prior existing rights (
Barlow
& Jones Ltd v Elephant Trading Co.
1905 TS 637
at 648
)
and that an interpretation which avoids harshness and injustice will,
if possible, be Adopted (
Principal
Immigration Officer v Bhula
1931 AD 323at33)
.”
[72] The law must serve a constitutionally acceptable
purpose. The State may not deprive its citizens of liberty for
reasons that
are not acceptable, nor, when it deprives citizens of
freedom for acceptable reasons, may do so in a manner which is
procedurally
unfair. See Coetzee case at 437 per O’Regan J. In
the same case at 422a-b, Kentridge AJ said:
“ …
if a provision of a statute
plainly infringes the constitution it should not be uphold simply
because it is unlikely to be invoked
or because a person prosecuted
under such a statute will readily obtain an acquittal. “
[73] In the present matter the accused was convicted of
dealing in dagga on the mere basis that the word “cultivation”
is included in the definition of “deal in” in section 1
of the Act without proof of
mens rea
. This has the effect of
shifting the onus to the accused to prove his innocence. Where a
legislative provision imposes an obligation
upon an accused to
establish certain facts in order to avoid criminal liability
constitutes a breach of the presumption of innocence
as enshrined in
section 35(3)(h) of the Constitution.
[74] As stated above, contravention of the provisions of
section 5(b) of the Act carries a heavy penalty. Sentencing an
accused
person to imprisonment or a combination of the custodial
sentence and a fine deprives the accused of his freedom. Convicting
and
sentencing a person without proof of
mens rea
offends both
against common law fundamental principle of fairness and section
12(1) (a) of the Constitution. This section aims
at protecting
physical liberty and security of person against unwarranted intrusion
by the State. The first part of the prohibition
requires that there
must be rational connection between the deprivation of freedom and
some of objectively determinable purpose.
The second part requires
the purpose, reason or cause for deprivation of freedom to be just.
[75] The infringement will not be unconstitutional if it
takes place for a reason that is recognised as a justification for
infringing
rights in an open and democratic society based on human
dignity, equality and freedom. The purpose of the limitation
restriction
on the rights will not be unjustifiable unless there is a
good reason for thinking that the restriction would achieve the
purpose
it is designed to achieve, and there is no other way in which
the purpose can be achieved without restricting rights.
[76] Proof of
mens rea
as the essential
ingredient of criminal liability is an established fundamental
principle of justice of our legal system and therefore
it cannot
legitimately be dispensed with in serious criminal offence carrying a
heavy penalty save for certain regulatory offences.
In the present
case
mens rea
is not expressly excluded by the provision of
the Act, nor, can it be said that it is excluded by necessary
implication. The word
“cultivation” should restrictively
be interpreted to mean cultivation for commercial purposes or to
supply to other
people. In order to secure conviction of dealing on
the ground of dagga cultivation, the State must prove beyond
reasonable doubt
cultivation, dealing and the
mens rea
to
commit such an offence on the part of the accused. In other words,
connection between cultivation of and dealing in dagga must
be proved
beyond all reasonable doubt.
[77] In my view, a distinction (implicit in the 1988
United Nations Convention) must be drawn between more and less
serious cases
of cultivation of dagga. The less serious cases
involving a single or small number of plants for personal use must be
prosecuted
under section 4(b) for unlawful possession. Whereas the
more serious, particularly, of large – scale commercial growing
from
which it can reasonably be inferred that the accused is dealing
in dagga and where on conviction the imposition of severe sentences
and confiscation of proceeds of crime might be appropriate, should
continue to be prosecuted as dealing under section 5(b). However,
an
accused person may be charged with cultivation of and hence dealing
in dagga if the evidence sufficiently establishes that a
particular
accused has cultivated dagga for commercial purposes or dealt in
dagga though on a small scale.
[78] In the result, appeal against conviction should
succeed. Accordingly, a conviction for dealing in dagga is set aside
and the
conviction for possession of dagga is substituted therefore.