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1986
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[1986] ZASCA 122
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S v Hlomza (268/84) [1986] ZASCA 122 (30 September 1986)
Case No. 268/84
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between
NDIKHO HLOMZA
appellant
and
THE STATE
Respondent
Coram
:
CORBETT GROSSKOPF et JACOBS, JJA.
Date of Hearing
: 5 September 1986.
Date of Judgmen
t: 30/9/1986
JUDGMENT CORBETT
JA:
The appellant, Ndikho Hlomza, and six others
appeared in the Port Elizabeth Magistrate's Court on a charge of dealing in a
prohibited
dependence-producing drug, viz. Mandrax tablets containing
methaqualone, in contravention of sec. 2(a) of Act 41 of 1971 ("the Act"),
/ and
2
and on an alternative charge of being in possession of or using a prohibited
dependence-producing drug, viz. Mandrax tablets containing
methaqualone, in
contravention of sec. 2(b) of the Act. When arraigned, all the accused pleaded
not guilty to both charges. At the
conclusion of the trial appellant (who
figured as accused no 3 therein) and accused no 2 were found guilty of dealing
in 365 Mandrax
tablets, which contained methaqualone,in contravention of sec.
2(a) of the Act. The others were acquitted. Appel-lant was sentenced
to the
compulsory minimum of five years' imprisonment and accused no 2, who was a
juvenile, was given an appropriate juvenile punishment.
Appellant appealed against his conviction and sentence to the Eastern Cape
Division, but without success. Leave to appeal to this
Court was refused by the
Court a
quo
, but granted on a petition to the Chief Justice. That appeal
is now before us.
/ The
3
The main witness for the State was Sgt Strydom, a detective in the South
African Police, attached to the Narcotics Bureau in Port
Elizabeth. He deposed
to having arrested a Black female named Lindiwe Mavis Swartbooi on 13 September
1982 for dealing in a prohibited
dependence-producing drug, viz. Mandrax tablets
. At the time of her arrest Strydom seized 15 such tablets. As a result of a
report
made to him by Swartbooi after her arrest, Strydom requested her to
telephone accused no 1 (one Vatiswa Patricia Hlomza) and place
an order of 70
Mandrax tablets. Swartbooi complied with this request. Thereafter Strydom and
Swartbooi,together with a number of
policemen, proceed-ed to the home of accused
no 1 at 4311, Site and Service, Kwazakele township, near Port Elizabeth. They
travelled
in two vehicles. At a certain stage the trap which had been thus
arranged was sprung and Strydom, accompanied by other police officers,
ran into
the house at 4311, Site and Service. In the sitting-room they encountered
accused
/ nos
4
nos. 2, 4, 5 and 6. Accused no 1 and Swartbooi were found in the main
bedroom. They were sitting on a bed; and be-hind and between
them lay a parcel
wrapped in newspaper. Strydom opened the parcel in the presence of accused no 1
and Swartbooi. It contained four
envelopes and each envelope contained a number
of Mandrax tablets, each wrapped in a piece of blue toilet-paper. In all there
were
8l ta-blets. Strydom seized these. The house was searched, but no further
tablets were found.
Strydom questioned accused no 1 and explained to her that he wished to know
whether there were in existence any other tablets connected
with the 8l seized
by him; and if so where they were. Accused no 1 then took him to ano-ther house
in Kwazakele, but this proved
to be a wild goose chase: no tablets were found in
the various places in this house indicated by accused no 1. They returned to no
4311 and Strydom there arrested accused nos 1, 2, 4, 5, 6 and 7 (accused no 7
having just arrived at the house).
/ On
5
On the following day, 14 September 1982, Strydom again questioned accused no
1 as to the possible whereabouts of other Mandrax tablets.
Thereafter she took
him and other police officers to a house, no 7 Mbhuze Street, in Zwide, as being
a place where further tablets
were concealed. This house is registered in the
name of a Black female, Nhomode Hlomza. Various places in the house were
searched,
but again to no avail. Accused no 1 then spoke to an old lady living
in the house. The latter denied any knowledge of tablets, but
suggested that the
police speak to a school-girl living in the house, who was then at school.
Strydom visited the school but no further
information was forth-coming. Accused
no 1 then suggested that accused no 2 be fetched as he should know where the
tablets were.
This was done and accused no 2 took them back to no 7 Mbhuze
Street. A number of person were then present there, including appellant.
Accused
no 2 took the police to a room in the house, where, standing on a bed, he felt
with
/ his
6
his hand through a hole in the ceiling. All that he was able to find was a
roll of blue toilet paper. As a re-sult of a report then
made to him by accused
no 2 Strydom went to look for appellant, who was no longer in the house. He
found appellant in Njoli Square
(about 800 m away) and arrested him. He took him
back to no 7 Mbhuze Street where accused nos. 1 and 2 spoke to him (appellant).
Appellant then walked through into the backyard, accom-panied by the police.
There he showed Strydom a piece of corrugated iron,
which was up against a
fence. Strydom removed the corrugated iron and there found a plastic bag,
knotted at its opening. He opened
the bag in the presence of accused nos 1 and 2
and appellant. It was found to con-tain 365 Mandrax tablets. Each tablet was
wrapped
in a piece of blue toilet paper, and together they were all parcelled in
a piece of newspaper.
/ All the
7
All the Mandrax tablets, ie the original 8l seized on 13 September and the
365 found on 14 September, were sent to the State Forensic
Laboratory for
analysis and were found to contain methaqualone. (It was only after the
commission of the offence and after appellant
had been convicted and sentenced
by the Magistrate that part I of the schedule to the Act, in which the
substances included within
the meaning of the term "prohibited
dependence-producing drug" are listed, was amended to specifically include
Mandrax - see Proc.
243 of 1982, G.G. no 8495 (dated 31/12/82), the amendment
coming into operation three months after promulgation of the Proclamation).
Appellant gave evidence at the trial. He was then
22
years of age and had reached standard 8 at school. From
the start he admitted the correctness of Strydom's evidence
as to his having pointed out the tablets under the piece
of corrugated iron in the backyard of no 7 Mbhuze Street.
/ He
8
He admitted too that he had put them there. He vacillated, however, in his
explanation for having done so. The story which he eventually
told was as
follows: He had been in hospital for an operation. On his discharge he met
accused no 2. The latter had a parcel in his
possession. The two of them then
proceeded to no 7 Mbhuze Street. There accused no 2 hid the parcel above the
ceiling of the toilet.
Appellant asked accused no 2 what he was doing and
accused no 2 replied that he was hiding Swartbooi's tablets ("pille"). Appellant
asked what tablets they were and was told that it did not concern him. Some days
later appellant came home to hear that a number
of people, including accused no
1 (who appears to have been related to him) and Swartbooi, had been arrested at
no 4311, Site and
Service, for the possession of tablets ("weens pille") and
that the house had been searched. He then thought of the tablets which
he had
seen accused no 2 hide at no 7 Mbhuze Street and of the possibility
/ that
9
that the police might search those premises as well. His sister, Nomonde,
lived at no 7 and he was worried about her because she was
still at school and
due to write exa-minations in November. He went to no 7, took the tablets from
where they were hidden in the
toilet, wrapped them in a plastic bag and hid them
behind the piece of corrugated iron in the yard. He stated that he did not know
what kind of pills they were or what their constituents were.
The appellant gave various explanations for his conduct in moving the tablets
to a new hiding place. Initially it was the thought
that the police would search
no 7 Mbhuze Street and his concern over Nomonde and her examinations. Under
cross-examination he stated
that it was raining that day and he did not wish the
tablets to be spoiled by the rain (which apparently could leak in under the
roof
of the toilet). He then also denied that he moved the tablets after hearing of
the arrests. He also
/ alleged
10
alleged that he had been drinking that day - "omdat dit
gerëen het".
At this point his attorney intervened and
told the Court that this statement,
viz. that he did not
move the tablets after hearing of the arrest of the
others,
was contrary to the instructions appellant had given
him.
Thereafter the appellant reverted to his original story,
viz. that he
moved the tablets after hearing of the arrests.
I might add that this deviation from his original evidence
and the instructions given to his attorney occurred when
the appellant was being cross-examined about knowing that
it was unlawful to possess these tablets. These expla-
nations may be contrasted with what was put (with reference
to the tablets) in the cross-examination of Strydom by
appellant's attorney:
"Is jy bewus van die feit dat nommer 2 dit versteek het - ag verskoon my, dat
nommer 3 dit versteek het op instruksies van nommer
2?-- Ek weet nie
Edelagbare."
These variations reflect poorly on appellant's credibility.
/ The
11
The evidence clearly establishes that the tablets which appellant concealed
behind the piece of corrugated iron were prohibited dependence-producing
drugs.
About this there is no dispute. On appeal to this Court, however, appellant's
counsel raised three points:
(1) that appellant was not shown to have possessed the tablets in
question;
(2)
that appellant was not
shown to have dealt in the tablets;
(3)
that
appellant did not at the time have the neces-sary
mens rea
in that he did
not know that the tablets were prohibited dependence-producing
drugs.
In my view, there is no substance in the
first
submission. The Act contains, in sec. l(xix), the fol-
lowing definitions:
" 'possess' includes keeping storing or having in custody or under control or
supervision, and 'possession' has a corresponding meaning."
/ In
12
In the present case the appellant hid the parcel containing the tablets in a
particular place, where, no doubt, he thoughtthat the
tablets would be safe from
discovery by the police and, perhaps, protected against the depreda-tions of the
weather. Only he knew
where the tablets were hidden. This is clear on the
evidence. He obviously had ready access to the premises at no 7 Mbhuze Street
and was, therefore, able at any time to recover the ta-blets and to take them
into his actual and immediate phy-sical control. In
all the circumstances I am
satisfied that at the time of his arrest the appellant had custody of or control
over the tablets in question
and that at all relevant times he intended to
exercise such custody or control. The fact that he may have done so on behalf of
or
for the benefit of someone else (eg. accused no 2 or Swartbooi) does not, in
my view, detract from the con-clusion that he "possessed"
the tablets for the
purposes
/ of
13
of the Act. (See in this connection
R v Binns
1961 (2) SA 104
(T), at
p 108 D-F;
S v Blafuw
1972 (3) SA 83
(C), at p 84 B-C;
S v Cronje
1976 (2) SA 62
(C), at p 68 B;
S v Singisw
a
198l (4) SA 403
(C), at p 405
A-D; S
v Qunta
1984 (3) SA 334
(C), at p 338; also Snyman
Criminal
Law
, p 371.)
The relevant portion of sec. 10(1)(a) of the
Act
provides as follows:
"If in any prosecution for an offence under section 2 it is proved that the
accused was found in possession of —
(ii) any prohibited dependence-producing drugs, it shall be presumed that
the
accused dealt in such drugs,
unless the contrary is proved."
Unquestionably the appellant was in this case "found in
possession" of the Mandrax tablets, which were shown to
have been a prohibited dependence-producing drug (see
S v Wilson
1962 (2) SA 619
(A), at p 624 D-F;
S v Majola
/ 1975
14
1975 (2) SA 727
(A), at p 734 H - 735 D). The presump-
tion contained in sec. 10(1)(a) therefore applies in
this case. The effect
thereof is that the appellant is
presumed to have dealt in the tablets,
knowing that they
were prohibited dependence-producing drugs and knowing
that
it was unlawful to do so (see
S v Ngwenya
1979 (2) SA 96
(A), at pp 101 H - 102 D). And here I would point out
that dealing in
includes possession for sale (see defi-
nitions of "deal in" in sec. l(iv)
and of "sell and sale"
in sec. l(xxxi) ). The onus was on the appellant to re-
but this presumption. This he could do on a preponderance
of probability (see
Ngwenya
's case, supra, at p 102 B).
As to appellant's
mens rea
, which includes know-ledge of unlawfulness
("wederregtelikheidsbewussyn"), it was submitted by appellant's counsel that in
this parti-cular
case the requirement of
mens rea
was not satisfied
unless the appellant knew that the tablets in question
/ contained
15
contained methaquolone. This argument was presented to
the Court a
quo
and rejected by it. The judgment of the
Court a
quo
, which
was delivered by KANNEMEYER J, MULLINS J
concurring, has been reported - see
S v Hlomza
1983 (4) SA
142 (E) - and the relevant portion of the judgment appears
at pp 144 H -
145 H. Here KANNEMEYER J makes reference to
a passage from the third edition of De Wet en Swanepoel,
Strafreg
, quoted, apparently with approval by RUMPFF CJ in
S v De Blom
1977 (3) SA 513
(A), at p 530 A-B. (Although
the judgment of RUMPFF CJ refers to p 140, the extract
from the third edition of
Strafreg
actually appears on
pp 148-9.) This passage from
Strafreg
reads as follows:
"Met die opvatting dat wederregtelik-heidsbewussyn
elementum
essentiale
van op-set is, wil ek saamstem. 'n Mens handel slegs dan
dolo
malo
wanneer hy hom willens en wetens in stryd met die regsorde stel. Dit
wil nie sê dat die dader moet weet dat hy art. w van Wet
X van 19YZ
oortree nie, of dat die dader moet weet dat wat hy voornemens is om te doen met
hierdie of daardie strawwe strafbaar is
nie, maar
/ slegs
16
slegs dat hy bewus daarvan moet wees dat wat hy wil doen
regtens
ongeoorloof is. Dit wil ook nie sê dat die dader
seker
moet wees
dat wat hy wil doen wederregtelik is nie, maar slegs dat hy hom die voorstelling
gemaak het dat wat hy wil doen
moontlik
regtens onge-oorloof kan wees, en
hy hom met hierdie moontlikheid versoen.
(This passage, in substantially the same terms, is to be
found in the
fourth edition of
Strafreg
at p 152.) The
same passage from Strafreg
was quoted with approval by
ACKERMANN J (GORDON J concurring) in
S v
Magidson
, 1984
(3) SA 825 (T), at p 830 C-E. ACKERMANN J summed up
the position as
follows (at p 830 A-B):
"It is common cause that the accused was knowingly in possession of the
key-rings.
Dolus
, however, also requires knowledge of the unlawfulness of
the act. (See the passage cited above from
S v Ngwenya.
) Such actual
knowledge, however, may also be by way of
dolus eventualis
. It is also
not necessary that the accused must be aware that he is contravening a specific
section of a specific Act. It is sufficient
if he knows that what he is doing
may possibly be unlawful and recon-ciles himself with this
possibility."
/ (See
17
(See also Burchell and Hunt,
South African Criminal Law and Procedure
,
2ed, p 168; Snyman,
Criminal Law
, p l80.)
Adopting this general approach, I do not agree that in order to have the
requisite knowledge of unlaw-fulness the appellant had to
know that the tablets
which he possessed contained methaqualone. In general this would set a wholly
impractical standard of criminal
res-ponsibility in such cases; for how many
well-informed citizens, who knew that it was illegal to deal in Mandrax tablets,
would
have known that under the law as it then stood the prohibited ingredient
was methaqualone? The true enquiry, as is indicated by the
authorities quoted
above, is whether or not the appellant knew that possession or dealing in the
tablets in question was, or might
possi-bly be, unlawful, irrespective of
whether he knew what law was being contravened and what the precise provisions
of the law
might be.
/ Bearing
18
Bearing in mind that the onus of disproving know-ledge of unlawfulness rested
upon the appellant, I am of the view that
mens
reawas established in this
case. Indeed, I would have inclined to the same view had the onus not rested
upon the appellant. In this
connection I would refer, firstly, to the evidence
that initially appellant saw accused no 2 hiding the parcel containing the
tablets
in the ceiling of the toilet; and that when appellant asked him what
they were, he was told to mind his own business. This must have
given appellant
a fairly clear indication that possession of the tablets was unlaw-ful. Property
which may be lawfully possessed
is not nor-mally hidden in this way; nor in the
case of lawful pro-perty is the owner usually so secretive about it. Appel-lant
was
then nearly 22 years of age, had passed standard 8 and, according to the
magistrate, appeared to be "not unintelligent". It seems
very likely that
appellant,
/ living
19
living in the milieu which he did, would have been aware that there was such
a thing as an illegal drug trade and that certain types
of tablets were the
subject-matter of such trading.
Then there is the evidence that appellant, after having heard that accused
nos 1 and 2, Swartbooi and others had been arrested by
the police in connection
with tablets,
immediately went to no 7 Mbhuze Street, and hid the tablets in
question in the backyard. In his own mind appellant obviously associated
these
tablets with the tablets in respect of which the others had been arrested. (And
indeed their get-up in blue toilet-paper suggests
a com-mon source.) One does
not get arrested by the police in respect of tablets unless possession thereof
and/or dealing therein
is unlawful. In the circumstances appellant must have
realized that possession of and/or dealing in the ta-blets hidden in the toilet
was also unlawful. And this is
/ confirmed
20
confirmed by his further thinking that the police might come to search the
premises at no 7 Mbhuze Street for tablets; and his decision
to hide them
elsewhere so that the police should not find them.
Accordingly, the argument of appellant's counsel that appellant did not have
the requisite
mens rea
cannot succeed.
Finally, there is the argument that it was not established that appellant
dealt in the tablets. Here again the onus was on the appellant
to rebut the
presump-tion raised by sec. 10(1)(a). I do not think that he succeeded in doing
so. The evidence indicates that these
Mandrax tablets, 365 in number, must have
been possessed for sale. It may be that the ultimate seller would have been
someone other
than the appellant, eg. accused no 2 or Swartbooi; but what he did
was clearly calculated to assist in the dealing and it must be
inferred that
this was the
/ appellant's
21
appellant's intention. Thus even if he was not the main perpetrator, he was
at least a
socius criminis
.
The appeal is dismissed.
M M CORBETT
GROSSKOPF JA)
JACOBS JA) CONCUR.