Court name
High Court
Case name
S v Rooi
Media neutral citation
[2007] NAHC 163











CASE
NO.: CR 64/07






IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



THE STATE






versus






BARTHOLOMEUS
ROOI






(HIGH
COURT REVIEW CASE NO.: 296/07)







CORAM:
MAINGA, et
VAN
NIEKERK, JJ



Delivered on:
2007-04-13



_______________________________________________________________________REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:





[1] The
accused in this matter was charged with a main count of contravening
section 2(a) of the Abuse of Dependence-Producing Drugs and
Rehabilitation Centres Act, 1971 (Act 41 of 1971), in that he dealt
in 559 grams of cannabis valued at N$1 677. He was charged in the
alternative with a contravention of section 2(b) of Act 41 of 1971 in
that he had the cannabis in his possession or used it.



[2] The accused
pleaded guilty to both counts. The questioning in terms of section
112(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977) went
as follows:






"Crt: Did
any one force you do plead guilty to the charges?





Accd: No
one.





Crt: What
did you do wrong?





Accd: I
was found in possession of cannabis.





Crt: What
were you doing with the cannabis?





Accd: I
use it. I smoke it as I do with Tobacco.





Crt: Did
you want to smoke all the 559 grams of cannabis?





Accd: Yes."








"Crt: How
was the cannabis found on you?





Accd: I
was having the cannabis with me when I asked for a lift from a
certain farmer. He gave me lift on his vehicle and we drove to his
farm. While on farm he requested to search my bags. I agreed.
After searching he found the cannabis and then took me to the police.





Crt: Why
were you carrying the cannabis to the farm.





Accd: I
wanted to smoke the cannabis while at the farm.





Crt: Is
it not true that you wanted to sell it there?





Accd: No.





Crt: How
was the cannabis packed?





Accd: It
was rapped in 4 newspapers bundles.





Crt: The
law provides that if you are found with cannabis weighing more that
115 grams then you are presumed to have been dealing in that
substance. Do you understand that?





Accd: Yes.





Crt: Do
you have any explanation to convince the court that you did not want
to sell the cannabis as the law presumes?





Accd: I
have always been smoking cannabis since I was a child. I am so used
to it that I cannot do without it. So I wanted to smoke this one.





Crt: Do
you reside at that farm where you were arrested?





Accd: No
I was visiting relatives.





Crt: For
how long?





Accd: For
2 days.





Crt: Did
you want to smoke all the 559 grams of cannabis in two days?





Accd: Yes.





Crt: Why
had you packed the cannabis in 4 bundles.





Accd: For
easy carrying.





Crt: Is
it not correct that those were measurements for selling purposes.





Accd: No.





Crt: Do
you have any lawful excuse why you were possessing 559 grams of
cannabis for example are you a holder of a licence authorising you to
possess or deal in that drug.





Accd: No.
I do not have any such licence.






The
court is satisfied that you are admitting to all the elements of the
ALTERNATIVE count that is Possession or use of a Prohibited
Dependence Producing Drug in Contravention of Section 2(b) of Act 41
of 1971, however the court placed a presumption upon you due to the
quantity in excess of 115 grams that you were in possession to the
effect that you were dealing in the drug. The court is convinced
that you failed to rebut that presumption from your explanation. The
court accordingly arrives at the following verdict.





VERDICT:-
GUILTY AS CHARGED ON THE MAIN COUNT."










[3] Having
convicted the accused, the trial magistrate then sentenced him.





[4] On
review I directed the following query:



"Is
it permissible to apply the presumption contained in Section 10(1)(a)
of Act 41 of 1971 during the questioning of the accused in terms of
Section 112(1)(b)?"










[5] The magistrate
replied without relying on any authority, that he thought that it was
permissible. However, he seeks guidance on the matter.





[6] Section
10(1)(a) of Act 41 of 1971 provides as follows:



"If
in any prosecution for an offence under section 2
it
is proved

that the accused was found in possession of -






(i) dagga
exceeding 115 grams in mass;






(ii) ..........................................................................
., it shall be presumed that the accused dealt in such dagga,
unless
the contrary is proved.
"
(my underlining)







[7] It is clear
that the purpose of this provision (and the remainder of section 10)
is to assist the prosecution in proving its case by legislating for a
rebuttable evidentiary presumption. The legislature has set a
threshold requirement for the presumption to apply namely, that it
must be proved beyond reasonable doubt that the accused was in
possession of dagga exceeding 115 grams in weight [
S
v Noble
2002 NR 67
(HC) 69C-D). Where the accused pleads guilty of possession of dagga
and in the course of the questioning in terms of Section 112(1)(b) of
Act 51 of 1977 admits that he was in possession of dagga exceeding
115 grams in weight, it is obviously not necessary for the
prosecution to prove this fact. However, before the prosecution or
the court can rely on a presumption like this, it must remember that
the presumption is rebuttable by
proof
to the contrary. The only way that the accused can present proof is
by presenting evidence, which means that he/she must be afforded the
opportunity to do so under oath, either by giving evidence in person,
or by calling witnesses. The prosecution must also be given the
opportunity to cross-examine on the evidence presented by the
accused. The accused cannot attempt to rebut the presumption by
means of answers during the section 112(1)(b) questioning process.






[8] What
the learned magistrate should have done in this case was to question
the accused separately on the main count and then on the alternative
count. When it became clear that the accused was in fact denying the
element that he was dealing in the dagga, but was admitting that he
was in possession of the dagga, the magistrate should have asked the
prosecutor whether he/she accepts the plea on the alternative count.
If the prosecutor had declined to accept the latter plea, the
magistrate should have entered a plea of not guilty on the main count
and have let the trial proceed, during which the prosecution and the
accused would have had, in the normal course, the opportunity to
present evidence under oath. If the prosecutor relied on the
presumption, the effect thereof should have been explained to the
accused so that he could make an informed decision whether to present
evidence in rebuttal.





[9] In
the circumstances of this case, it is clear that the proceedings must
be set aside for the magistrate to properly apply section 112(1)(b)
without applying the presumption.






[10] In dealing
with the issue of the presumption as I have, I must point out that
the constitutionality of the presumption is an issue on which this
Court may still have to pronounce itself. In the
Noble
case this Court declined to do so because on appeal it was held that
the prosecution had failed to prove beyond reasonable doubt that the
appellant had been in possession of dagga. My judgment should,
however, not be seen as an indication that reliance must necessarily
be placed on the presumption.






[11] In
conclusion the following order is made:



1. The conviction
and sentence are set aside.


2. The
proceedings in terms of section 112(1)(b) of the Criminal Procedure
Act are set aside and the matter is remitted to the magistrate in
terms of section 312(1) of this Act to question the accused afresh.












______________________________



VAN NIEKERK, J









I
agree





_______________________________



MAINGA, J