The State v Bock (CR 23/2020) [2020] NAHCMD 151 (06 May 2020);

Group

Full judgment

Case Title:

The State v Romario Bock

Case No:

CR 23/2020

High Court MD Review No:

1054/2019

Division of Court:

Main Division

Heard before:

Lady Justice Shivute et

Mr Justice Liebenberg 

 

Delivered on:

6 May  2020

Neutral citation: S v Bock (CR 23/2020) [2020] NAHCMD 148  (6 May 2020)

 

The order:

a)   The charge in count 2 is substituted with a contravention of s 2(b) of Act 41 of 1971, the unlawful possession of dependence-producing substances (methaqualone and cannabis).

b)   The conviction and sentence on count 1 is set aside.

c)   The conviction on count 2 is confirmed.

d)   The sentence on count 2 is confirmed.

 

Reasons for order:

 

SHIVUTE J (concurring LIEBENBERG  J)

 

[1]        The matter was submitted to this court for review in terms of Section 302 (1) of the Criminal Procedure Act (Act 51 of 1977), hereinafter referred to as (the Act) .

[2]        The accused appeared in the magistrate’s court for the district of Keetmanshoop on two counts for contraventions committed under sections 3(b) of the Abuse of Dependence Producing Substances and Rehabilitations Centres Act 41 of 1971(the Act) as follows:

Count 1: Possession of potentially dangerous dependence – producing drugs – contravening s 3(b) read with sections 1, 3(ii), 7, 8, 10, 14 and Part III of the Schedule of act 41 of 1971, as amended. In that accused allegedly wrongfully and unlawfully had in his possession or use a potentially dependence producing drug to wit, 4x quarter mandrax tablets and 3x half mandrax tablets containing methaqualone valued at N$ 250.00

Count 2: Possession of potentially dangerous dependence – producing drugs – contravening s 3(b) read with sections 1, 3(ii), 7, 8, 10, 14 and Part III of the Schedule of act 41 of 1971, as amended. In that accused allegedly  wrongfully and unlawfully had in his possession or use a potentially dependence producing drug  to wit, 4x ¼  methaqualone tablets with a value of N$ 250.00 and 1x ballie of pure cannabis with a weight of 2 grams valued at N$ 20.00

[3]     The accused pleaded guilty to both counts and was convicted after the court invoked the provisions of section 112(1) (b) of the Act. He was thereafter sentenced to 3 months’ imprisonment in respect of count 1 and 2 months’ imprisonment in respect of count 2.

[4]      When the matter came on review, I directed the following query to the magistrate:

       ‘ 1.  The accused was convicted of two counts of possession of potentially dangerous dependence                 producing drugs contravening section 3(b) read with ss1, 3(ii),7,8,10,14 and Para lll of the Schedule of               the Act 41 of 1971 as amended.

         2.  On the 2nd count, the accused had admitted to have been found in possession of dagga. Is Dagga a       potentially dangerous dependence- producing drug? 

        3.   Although the accused admitted to have been found in possession of dagga, there is no charge or           particulars of the offence attached to the record. However, at page 2 of 10 of the record of                                    proceedings  it is indicated as follows:

‘’ Count 1; possession of dangerous dependence producing substance-c/section 2(d) Act 41 of 1971- I plead    guilty.   Count 2; possession of dependence producing substance-c/section 2(b) Act 41 of 1971- I plead  guilty‘’

4.  If the accused pleaded guilty to the above offences as indicated, of which there are no annexures or         particulars of the offence attached, why was he convicted of possession of potentially dangerous             dependence producing drug? ’

[5]      In reply to the query, the learned magistrate stated the following:

5.1     That the accused person pleaded and was convicted on two counts of Contravening the provisions of  Act 41 of 1971;

5.2     That Count 1 involved possession of potentially dangerous dependence – producing Drugs contravening section 3(b) read with other sections of the Act 41 of 1971 as reflected on the charge annexure. That this was the charge preferred to the accused by the state on hisfirst appearance, however when the accused was called upon to plead to the charges, the charge read to him was that of Contravening section 2(d) of Act 41 of1971 in respect of count one;

5.3     For Count 2, the charge read to the accused person was that of contravening section 2 (b) of Act 41 of 1971, possession of prohibited dependence producing substances, the accused was questioned and accordingly convicted in respect of that charge.

5.4     The learned magistrate further stated that the record of proceedings were prepared manually and it appears that the prosecutor in charge did not make the necessary amendments thereto, further that the magistrate who prepared the record, failed to peruse it and assure that the relevant annexures were attached before sending it for review.

5.5      The learned magistrate then urged the review court to not set aside the proceedings of the court a quo pursuant to the judgement ofS v Rooi (CR 20/2019)[2019] NAHCMD 61 (20 March 2019) because the proceedings to be reviewed had taken place prior to the delivery of the judgement in the Rooi[1] case.

 Applicable law

[6]       Previous review matters considered by this court delivered conflicting judgments regarding the classification of the substance methaqualone. The court was previously guided by the classification as set out in Jutastat e-publications which provides that, methaqualone is classified under Part II as a dangerous dependence-producing substance.

 [7]       However, this court in the matter of S v Rooi[2] has subsequently come to realise that the Jutastat classification did not incorporate earlier amendments made to the Schedule as provided for in Proclamation No. 277 of 1977.[3] The relevant part of the Proclamation reads that Part I and Part II of the Schedule to the Act is amended by: 

‘(a) the deletion of the item “Methaqualone” in Part II and the addition of the item “Methaqualone” to Part I; . . ’

[8]        The court in the Rooi case concluded that Proclamation No. 277 of 1977 finds application in Namibia and the effect thereof is that methaqualone is classified as a dependence-producing substance under Part I of the Schedule, and not under Part II. Further that past judgments delivered by this court to the contrary have been wrongly decided and should not be followed.[4]

[9]   The court further held that if an accused is simultaneously found with different substances, for example cannabis and methaqualone, he should be convicted of only one offence, namely, contravening section 2(b) of Act 41 of 1971 for the possession of dependence-producing substances, to wit, methaqualone and cannabis. This case also confirms that cannabis forms part of Part I of the schedule under Act 41 of 1971 (dependence-producing substances).

[10]    In light of the above legal principles, the learned magistrate’s contention that the S v Rooi[5] case should not find applicability to judgements delivered before it, is incorrect as the case is applicable to past judgements which have been wrongly decided.

[11]       In casu, the accused person was charged with two counts under Part III (potentially dangerous dependence-producing substances) for allegedly being in possession of mandrax containing methaqualone and cannabis, this is incorrect because cannabis and mandrax containing methaqualone both form part of Part I of the schedule under Act 41 of 1971 and not Part III. The accused should therefore be convicted of only one offence, namely, contravening section 2(b) of Act 41 of 1971 for the possession of dependence-producing substances, to wit, methaqualone and cannabis.

[12]       Although the accused was charged under the wrong schedule of the Act in both counts, this court is satisfied that he admitted all the elements of the offence of a contravention of s 2(b) of Act 41 of 1971, (possession of a dependence-producing substance) and that the charge may be corrected on review. Count 1 thus stands to be set aside and the substance contained in that count is to be incorporated under count 2.

[13]       It follows that the review court does not have power to increase any sentence on review, in light of that, this court shall not interfere with the sentence imposed on count 2.

[14]       In the result, it is ordered:

a)   The charge in count 2 is substituted with a contravention of s 2(b) of Act 41 of 1971, the unlawful possession of dependence-producing substances (methaqualone and cannabis).

b)   The conviction and sentence on count 1 is set aside.

c)   The conviction on count 2 is confirmed.

d)   The sentence on count two is confirmed.

 

 

 

 

N N SHIVUTE

JUDGE

J C LIEBENBERG

JUDGE

 

 


[1] S v Rooi (CR 20/2019)[2019] NAHCMD 61 (20 March 2019)

[2] S v Rooi (CR 20/2019) [2019] NAHCMD 61 (20 March 2019)

[3] (Government Gazette No. 5789 dated 28 October 1977).

[4] S v Rooi (CR 20/2019) [2019] NAHCMD 61 (20 March 2019)

[5] Ibid.:

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