The State v Cuna Issuf Omar
High Court MD Review No:
Division of Court:
Mr Justice Liebenberg et
Lady Justice Claasen
17 July 2020
Neutral citation: S v Omar (CR 50/2020)  NAHCMD 297 (17 July 2020)
Reasons for order:
LIEBENBERG J (concurring Claasen J)
‘84 Essentials of charge
whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.
Furthermore, section 88 of the CPA provides:
‘Where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall, unless brought to the notice of the court before judgment, be cured by evidence at the trial proving the matter which should have been averred.’
‘The said accused did wrongfully and unlawfully deal in a dangerous dependence-producing drug, or plant from which such drug can be manufactured, to wit 6 x white crystals with total weight of 43,8207 g valued at N$17 800.00 and 1 x white crystal powder with total weight of 6,8477 g valued at N$ 950.00’
‘Cocaine, excluding admixtures containing not more than 0, 1 per cent of cocaine, calculated as cocaine alkaloid.’
From the extract, the Legislature clearly intended to exclude a mixture of no more than 0.1 per cent of cocaine, calculated as cocaine alkaloid. Notwithstanding the fact the accused pleaded guilty and admitted, on a leading question posed by the magistrate, the substance to be cocaine, there was no scientific evidence produced by the state, establishing that the substance the accused allegedly dealt in was in fact a substance tested and calculated as cocaine alkaloid and whether or not it falls outside the prohibition and within the category of a mixture containing not more than 0.1 percent of cocaine, calculated as cocaine alkaloid.
‘What is prohibited is the drug called Methaqualone and where an accused is charged with dealing in, use or being in possession of mandrax, the onus is on the State to prove that what the accused was dealing in, used or had in his possession, contained Methaqualone. Ordinarily, this will require scientific evidence.’
In addition, the court in S v Maniping; S v Thwala,5 on this point stated at 75 C:
‘In a case where the charge is one of dealing in or possessing a prohibited drugs common sense dictates that is almost inevitable that an admission made as to the nature of the substance which is subject of the charge will
be based on previous illegal associations with that substance. In such a case the normal course to take should therefore be to refrain from asking further questions. And it follows from this that in such cases the state should be in a position to produce an analyst’s certificate or adduce other acceptable evidence of the nature of the substance.’
‘To summarise, where an accused who pleads guilty makes an admission when questioned pursuant to s 112(1)(b) of a fact which is palpably outside his personal knowledge:
(a) the court has a duty to satisfy itself of the reliability of that admission where the accused is not legally represented;
(b) if there appears to be any real risk that the exercise of testing the reliability of such an admission will result in the accused having to admit to previous criminal conduct the court should refrain from asking further questions;
(c) instead, the court should simply record the admission and invite the prosecutor to present evidence on that aspect of the charge and, if the prosecutor declines to do so, the court should record a plea of not guilty and leave it to the prosecutor to prove that particular element;
(d) where the charge is one of dealing in or possessing a prohibited drug the State should be in a position to produce an analyst's certificate and the accused should be given the opportunity of examining such certificate;
(e) where the charge is one of dealing in or possessing dagga the State should be in a position to prove by any acceptable means that the substance in question is dagga; and
(f) where the admission is made by the accused's legal representative more weight can usually be attached to such an admission and normally the court would be justified in accepting that the legal representative has satisfied himself that the admission can properly be made.’ 6
enquire whether in respect of the cocaine, he knew the percentage of the cocaine alkaloid. Moreover, the magistrate did not invite the state to present evidence on that aspect, resulting in the accused being deprived of the opportunity to examine same. Justice, in this regard will dictate that when an accused is charged with a drug offence under the Act involving a prohibited substance which can only be proven by scientific evidence or by other acceptable means, such evidence must be disclosed to the accused and placed on record for the court to judiciously satisfy itself that the substance so possessed or dealt in, is indeed a prohibited substance in the Act.
J C LIEBENBERG
2 S v Katari 2006 (1) NR 205 (HC) 206J – 207A.
3 Road Traffic and Transportation Act 22 of 1999.
4 S v Iipumbu 2009 (2) NR 546.
5 S v Maniping; S v Thwala 1994 NR 69.
6 S v Maniping; S v Thwala Supra, at 75H.
Cited documents 2
Documents citing this one 7
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- S v Classen (CR 9 of 2022)  NAHCMD 53 (11 February 2022)
- S v Hamukwaya (HC-NLD-CRI-APP-SNA 33 of 2021)  NAHCNLD 54 (19 May 2022)
- S v Hendrickse (CR 141 of 2022)  NAHCMD 676 (9 December 2022)
- S v Ndhidipaa; S v Nailenge; S v Martin (CR 31/2023)  NAHCNLD 92 (4 September 2023)
- S v Steenkamp and Others (113 of 2022)  NAHCMD 575 (21 October 2022)