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IN THE HIGH COURT OF SWAZILAND

CRIMINAL CASE NO.1”B”/2001IN THE MATTER BETWEEN:  

REX
VS
MASHESHA CHARLES NHLENGETFWA

CORAM                               :                 ANNANDALE J
FOR THE CROWN             :                 MRS. M. DLAMINI
FOR THE ACCUSED           :                 MR. C. NTIWANE

 


JUDGMENT


7TH MARCH 2002
 
During a joint operation of SADEC police services a huge quantity of dagga was found and confiscated in the mountainous area of Nkomazi in the Northern region of Swaziland. This area has local notoriety as prime cultivation land for the illicit growing of dagga or cannabis, internationally known as “Swazi Gold” and which fetches huge revenue on the black market. This particular haul yielded some 63 bags of raw harvested dagga and 1098 compressed vacuum-packed blocks of cleaned dagga with a total weight of almost three metric tons – worth a fortune.

The accused before court was arraigned on two counts of illegal possession of the dagga on the 20th and 21st of October 2000, being contraventions of Section 12(1)(a) of the Pharmacy Act, 1929 (Act38 of 1929 as amended). Initially, he appeared with eight others, two of which tendered pleas of guilty pertaining to the first count (63 bags), after which their trials were separated. Thereafter, the accused and the remaining six members of his household were prosecuted in this matter. The six others were acquitted and discharged under Section 174(4) of the CRIMINAL PROCEDURE AND EVIDENCE ACT, 1938 (Act 67 of 1938, hereafter referred to as the CPE Act). To avoid overburdening the already voluminous record and a repetition of especially points of law, this judgment should be read in conjunction with the written ruling under Section 174(4) of the CPE Act, dated the 11th December 2001.

Section 12(1)(a) of the Pharmacy Act criminalises the possession of “Africa dagga” or “cannabis indica”, being listed poisons in parts I and II of Schedule “C” of the Act. It reads:

“A person who is found in unlawful possession of a poison or
potentially harmful drug shall be guilty of an offence and liable on conviction for a first offence, to a fine not exceeding E15 000 or imprisonment not exceeding 15 years”.

Briefly summarised, the evidence presented by the Crown, and which is in consonance with what the accused had to say, is that the police searched the premises of his homestead on two successive days, during October 2000. The initial aim was to ascertain whether the large number of motor vehicles kept there were not stolen or reported as such. The police verified all vehicles to be lawfully possessed and the search was then directed towards dagga, as a smell of it was detected in the air, also as small traces of dagga was seen on the ground.

None of the number of abodes at the homestead yielded any results, but as the dagga particles ended up at the door of a particular house, the accused was called and told to open up. He tried the door, demonstrated it to be locked and told his wife to fetch the key, which she did. Once the door was unlocked, the police discovered 63 bags of dagga inside the house, which was then photographed

in situ, carried out and numbered as exhibits. Since no permit or licence to possess the dagga could be produced by either the accused or any member of his household all members of the family were arrested, taken off the police station at Mbabane and subsequently charged.

The evidence of the police officers, which was not alluded to by the accused and remains uncontested, is that during the initial interrogation of the arrestees, certain information was obtained which caused the police to return to the homestead the following day for a further search. The content and source of this information is unknown. On their arrival at the homestead, at first their search lead nowhere. Vigorious searching and observation by the Royal Swazi Police however eventually yielded results when and observant member of the police noticed that the corrugated iron roof of the same house in which the dagga was found the first day had something amiss.

Following this discovery, the officers used a ladder conveniently close to the house to climb onto the roof and it was found that some of the corrugated iron sheets were loosely fitted. Once removed, a “secret compartment” was found. This compartment is a small portion of the one roomed abode which had a wall towards one end, sealing off a portion of the room, but which portion had no mode of entry save through the roof. It had no door or window and this was not readily ascertainable from the outside, unless the dimensions of the interior were compared with the outer structure. On their visit the previous day of the same place, none of the many police officers noticed this anomaly.

The uncontested evidence is that the accused was called to observe the discovery and on doing so showed signs of shock.

Inside the “hidden” compartment was a further stepladder leading down to the floor, on which was placed a hundred and eleven bags of compressed vacuum sealed blocks of top grade dagga, 1098 blocks in all. Also in the compartment were further packing materials and an electronic scale. This was also confiscated as exhibits. It is this dagga, 2 294,5kg in weight for which the accused is charged under the second count, the first count being 614,7kg dagga found in the 63 bags the previous day.

Although the prosecution and defence evidence differ on the preliminaries pertaining to due caution on pointing out, the accepted evidence is that following discovery of the first batch of dagga on day one, the accused pointed out two vacuum sealing machines which were in the back of a vehicle checked earlier by the police, which machines ended up in court as exhibits. On both days a large quantity of plastic sealing bags, suitable to be used for vacuum packing as well as a large number of rolls brown plastic sticking tape were also found by the police – some in the garage, the rest in the compartment. These were also confiscated.

Thus, the crux of the evidence is that a huge haul of dagga was found on two successive days in a house built on the homestead of the accused, together with packing materials and equipment. The Crown adduced evidence to try and show that the bags and sealing tape is similar to that used on the sealed blocks of compressed dagga, further that the vacuum sealing machines and an electronic scale which was found in the compartment, contained particles of dagga.
         The latter evidence is indicative that the sealing machines and scale may have had dagga traces, but is inconclusive for such a definitive finding. The evidence is that the instruments were kept inside a store room at the Police Headquarters, susceptible to contamination by the vast stores of dagga kept in the same area and it cannot with any certainty be found that the dagga traces found on it by the forensic chemist were present at the time it was found at the homestead. Likewise, it is not beyond reasonable doubt that the unused bags and tape found at the homestead are identical to that used in the already packed blocks, although it certainly points that way and there is no evidence to gainsay it. For the reasons pertinent to the outcome of the matter it does not require any definitive finding of fact whether the equipment had traces of dagga at the time of discovery or act, and neither whether the plastic bags and adhesive tape is identical to that used on the packed blocks of compressed dagga. What is noticeable due to its absence, is a device that had to be used to compression the blocks of dagga prior to vacuum packing. Such compressing equipment was seen at the police store during the

inspectio in loco, but it has no connection to this particular case. The only conclusion to be drawn, in light of the very thorough search by diligent police officers at the homestead, is that no machine that could have been used to compress the blocks of dagga was to be found anywhere on the premises of the homestead. This supports evidence later heard that the compressed dagga was brought onto the premises, pre-packed, and not that the packing was done in situ.
         The further evidence accepted is that the accused is the eldest son of his late mother, who used the room in which the dagga was found, during her lifetime, as a place where she attended to and accommodated “patients” who came to visit her, she being a woman versed in traditional healing, a “nyanga”. She “khonta’d” with the local chief for the land on which the homestead stands, using her eldest son, the (first) accused, as the male member of her household for this purpose, and not her husband who resided elsewhere at the time. At the relevant time, when the dagga was found, it was the accused who was in charge of the homestead. This aspect also caused his application for dismissal at the end of the Crown’s case to be turned down, unlike the remainder the co-accused persons.
         His counsel wisely advised him in his decision to adduce evidence to his defence. He testified that he knew nothing about the dagga until shown it by the police, on both occasions, saying he was shocked by it. He says that the compartment in the house came into being by an extention of her room wanted by his later mother, it being so small due to a rock hindering a larger addition, and that the procedure was still incomplete, with the inner wall still to demolished. His evidence about the state of the roof, the corrugated iron still to fixed down permanently, is fairly inconclusive. He thus knew of the existence of the sealed-off compartment in that house, but says he did not know it to contain anything.
         There is no evidence on record if indeed it is so that the outer dimensions of the house was extended, but only slightly due to a rock preventing further extention, as is the version of the accused, or whether only the inner wall of the compartment was built inside the existing structure, to create the compartment. The structure has been demolished by now and an inspection of it was neither asked for, nor would it serve a purpose, due to the demolition.
         The further evidence of the accused is that indeed he showed the vacuum sealing machines to the police, as the said. He has it that he happened to see the vacuum sealing machines for the first time when he momentarily opened the rear of the VW Caravelle at request of the police who wanted to see its engine, which was not in the rear of his new vehicle, but in the front. He says he had hardly used the new vehicle, which still had to undergo a traditional “cleansing” prior to it being used, and that he forgot at the time that the engine was not at the rear, as is the case with earlier model VW kombi’s. His own evidence, as well as that of the police, is that he was as co-operative as could be asked for and that he at no time tried to hinder or obstruct the police, nor did any of his family members.
         The accused also testified that he first became aware of the origins of the dagga found at his homestead some time after his arrest and after he had suffered a stroke while detained in Sidwashini prison, awaiting trial. He says that his son Vusi informed him that he and his brother in law were responsible, having agreed to keep the dagga in the house for reward by another person. Due to his medical condition, being in pain after suffering a stroke and also at pains for the occurrence of their arrest, further due to lack of time, they briefly met this once in the visitor’s room at the prison, and them being detained separately, he did not obtain further details. Throughout, the accused maintained ignorance of the presence of dagga until the time it was found by the police.
         The crucial witness called by the accused is his son, Vusi Nhlengetfwa. This person is a prisoner, currently serving a seven year sentence for possession of dagga at the same homestead, following his plea of guilty. His brother in law, who was not called, is apparently serving sentence as was well for the same crime. He seems to be under a misconception that he was convicted and sentenced for both lots of dagga, being the 63 bags of loose dagga found the first day, as well as the 111 bags with compressed dagga blocks found the day thereafter. According to both counsel, as borne out by the judgment and reasons for sentence, in that case, this man was only charged with and convicted of possession of the 63 bags dagga, not also of the compressed blocks.
         The evidence of Vusi Nhlengetfwa is that he is the son of the accused, who befriended a South African man and later conspired to keep dagga for this man at his father’s homestead. This, he said was in order for the other man to store the dagga near to the main tarred road, readily accessible for transportation, after it was brought there from the more inaccessible inferior roads further afield. Due to the risk factor and assistance required of him and his brother in law, they were to have received E10 000 as fee. Having agreed to this deal, he says that they then helped to bring the dagga to the family homestead and during the night, four loads of dagga was carried into the homestead without the knowledge of any other family members and stored in the unused house of his late grandmother. The bags of loose dagga were locked in the house while the bags with compressed dagga blocks were hidden in the compartment, through the roof. He says he kept the key to the house of which another key was still in the main house, being the one fetched by his mother when the police were there.

He is emphatic that his father knew nothing about this until the police came and that his father was only told of the event by himself, sometime later in the prison. He said, as his father did, that this revelation did nothing to soothe the situation and to the contrary, added insult to injury.

He subsequently pleaded guilty when arraigned in court, as did his brother in law, and was convicted and sentenced. The trials of the present accused and that of his son were then separated, with the present matter having two separate counts relating to the 63 bags loose dagga and the 1098 blocks compressed dagga.

Both the accused and his son were exhaustively cross examined by the Crown’s counsel. What counsel set out to do is to erode the credibility of the defence version to the extent that it is to be rejected as not being reasonably possibly true. In endeavouring to do so, the Crown

inter alia referred Mr. Nhlengetfwa junior to what he would have said during his own trial in an effort to indicate contradictions. No record of the transcript of evidence in those proceedings was proven and the value of these potentially different aspects remains unsubstantiated. In any event, even it was properly proven as transcription of the court record, the portions pointed out by the Crown still do not materially differ to the extent that the witness would have been discredited to the required extent and have his whole version rejected.

The insurmountable obstacle faced by the Crown is the fact that indeed Mr. Nhlengetfwa junior is presently serving a sentence due to being convicted of possessing the very same dagga his father is now on trial for. He takes full responsibility for it and explained that his father was unaware of the presence of this dagga which was kept at the homestead. The question to be decided is whether his version is so devoid of having a reasonable possibility of being accepted, even if it is not believed as true by a trial court, that it must be rejected.

The Crown proved that the dagga was found at the homestead. The accused says he agrees with it, also that the paraphernalia associated with the packing of the compressed blocks being found in his vehicle, his garage and with the dagga itself. The explanation offered is that even though that is the case, he didn’t know about it until it was discovered by the police, that he was only told by his son sometime afterwards, in prison, that the son, his son in law and a third person conspired to store the dagga there, which process the son says occurred during the night without the knowledge of any other person, including the accused. Their evidence is that this caused a break in their relationship, which remains to date.

Could this version be possible? Has it been shown to be impossible, improbable or even highly unlikely? In my view, the version by the defence could well be rejected as false if evidence was adduced to the effect that the father and son conspired to have the son take the blame on him and serve sentence instead of the accused’s father. Perhaps it may be so, even to the extent that he will be handsomely rewarded by his father for it. Such speculation has no place in a criminal trial as no evidence to justify this inference has been heard. It was only hinted at during cross-examination by the Crown, which does not amount to concrete evidence at all.

The issue remains whether the defence version is so palpably untrue or devoid of being found inherently possible that it has to be rejected out of hand. It is not a question of weighing it against the case made out by the prosecution and rejecting one version and accepting the other. With reliance on R V M

1946 AD 1023 at 1027, Tebbutt J (JA in his present capacity in Swaziland) held in S V JAFFER (1988 (2) SA 84 (C) at 89-D that:
“The test is, and remains, whether there is a reasonable possibility that the (accused’s) evidence may be true. In applying that test one must also remember that the court does not have to believe (his) story; still less has it to believe it in all its details. It is sufficient if it thinks there is a reasonable possibility that it may be substantially true”.

This has been the refrain in a host of precedents in our criminal law over the years.

This court cannot justify a decision to reject the defence version of how the dagga came to be on the premises without the knowledge thereof by the accused. It is not that it can be deemed physically impossible for the three men to hide the bags of dagga in the house where it was discovered by the police, stashing it away overnight, three vehicle loads full. The explanation about the eventual discovery at the end of their toils, in the cab of the bakkie, vacuum sealing machines and plastic bags, and hiding it in the back of the conveniently nearby parked Caravelle and in the garage, instead of again going to the house and raising the roof, also can be true. This is borne out by police evidence that the accused willingly showed them the sealing machines in the Caravelle. The police had already done with the vehicle and would not again go back to it, were it not for the voluntary pointing out by the accused. If he indeed wanted to keep it away from police eyes, he merely could have avoided pointing it out to them. His conduct in doing so is more in line with that of a man assisting the police in their investigations than that of a guilty person trying to prevent discovery of incriminating evidence. The police witnesses more than once said that the accused was helpful and co-operative.

Much was made during the trial about the knowledge of the accused of the compartment in which the compressed blocks of dagga were kept. As a fact, he knew of its existence, the compartment itself, but it has not been shown in evidence, nor can it be deduced beyond a good measure of doubt, that he had constructive knowledge of the bags contained in it. The only evidence as to the duration that the dagga was kept there was presented by the defence witness, who says it was there for only a day or two before the discovery. The same applied to the bags of loose dagga in the other part of the house. Again, the only evidence as to the occupancy of the house is that presented by the accused and his son, that the house was used by his late mother and disused at the relevant time. It is not gainsaid nor improbable. Nor was any personal property of the accused found inside the house. The conduct of the accused when the second discovery was made is also not adverse to his case, to the extent that he must be disbelieved. He was said to have been shocked by the find, a natural reaction for a person in the situation he says he was.

On a careful consideration of all available evidence in its totality, having already found that the Crown established a prima facie case, this court cannot came to a finding that the case presented by the defence cannot reasonably possibly be true. The guilt of the accused has not been established beyond reasonable doubt, which entitles him to be found not guilty.

The accused is ordered to be discharged on both counts.

Concerning the exhibits it is ordered that all corporeal exhibits handed in during the trial be forfeited to the Government and that the dagga be destroyed by the Royal Swazi Police, a certificate to that effect to be appended to the record of proceedings as soon as it has been done.

JACOBUS P. ANNANDALE
JUDGE
 


RULING UNDER SECTION 174(4) OF ACT 67/1938


11TH DECEMBER 2001
 
All seven accused before court were indicted under Section 12(1)(a) of the (amended) Pharmacy Act of 1929 (Act 38 of 1929) hereinafter referred to as the Pharmacy Act in that “…each or all of them, acting jointly in common purpose did unlawfully and intentionally possess 63 bags of dagga weighing 614.7kg a poison or potentially harmful drug…”. The second count pertains only to the first two accused, alleging a similar statutory offence, also allegedly with a common purpose, in respect of “…111 bags of dagga weighing a total of 2 294,5 kg…”. The second count may as well refer to 1 098 blocks of compressed dagga of the same weight. Both these offences were alleged to have been committed on respectively the 20th and 21st days of October 2000 in the Nkomazi area situated in the Hhohho region of Swaziland.
The statutory enactment under Section 12(1)(a) of the Pharmacy Act under which the indictments were brought refers to “…a person who is found in unlawful possession of a poison or potentially harmful drug” and carries penalties of a E15 000 fine or 15 years imprisonment for a first offence, while subsequent offenders face a maximum fine of E20 000 or 20 years imprisonment upon conviction. Although offences like the present are ordinarily prosecuted in the lower courts, the Director of Public Prosecutions sought leave to prosecute all of the accused in the High Court, which was granted under Section 88 (bis) of the CRIMINAL PROCEDURE AND EVIDENCE ACT, 1938 (Act 67 of 1938), hereinafter referred to as the CPE Act.
The trial has taken inordinately long for a matter of its relative lack of complexity and from the onset it was clear that no quarter would be given by either side. Each and every aspect was placed in dispute by the defence and the Crown was required to adduce evidence on aspects that ordinarily would have been conceded by mutual agreement, curtailing the duration of the proceedings. Whereas prosecutions of comparable issues may have taken a few hours, or even a day or two to complete, the present case has been on the roll for some sixteen days, with only the case for the prosecution having been presented thus far.
Although at risk of sounding critical about the protracted duration of the trial thus far, which most certainly could have resulted in exactly the same position as of the present time were if not for a repetition of delaying factors that so frequently surfaced, the tactical and legal manouvres by the defence attorneys are seen in the light of the dire consequences that are sure to follow a conviction. The Crown’s counsel parried on the same level of procrastination.
The upshot of the matter which now has to be decided is whether the Crown has proved its case to the extent that a reasonable man, acting carefully, might or may convict on the evidence as it now stands at the close of the prosecution’s case. All of the accused presently apply for an acquittal under Section 174(4) of the CPE Act on the assumption that there is no evidence to substantiate a conviction.
Essentially the basis of such contentions are threefold, namely (A): That the statutory prohibition has not been contravened; (B) That the expert evidence required to prove such contravention is lacking in substance; and (C) That possession as such has not been proved. The second proposition is split between two postulations: firstly that the statutory definitions and requirements have not been met under the Pharmacy Act, secondly that the enabling clauses of the CPE Act also fall short. In this ruling I propose to deal with the opposed application for discharge
seriatim in these components.
Statutory Enactment
Section 12 of the Pharmacy Act was amended in 1967 to read:
“12. Any person who is found in possession of or conveying a poison or potentially harmful drug which may reasonably be suspected of having been obtained in contravention of this Act, and who, on being brought before a court charged with having in his possession or conveying such poison or potentially harmful drug does not give an account to the satisfaction of the court of how he came by it shall be guilty of an offence..”
This clause which placed a burden of proof on an accused person where a “reasonable suspicion” arose was again modified from the original of almost a century ago in 1993 to the present Section 12(1)(a) of the Act, quoted above.

Section 10 of the Act refers to parts I and II of Schedule C thereof, which in turn lists the various substances deemed as “poisons”. The indictment falls short of referring to either section 10 or to schedule C of the Act. The point was not taken in-so-far as the present application for discharge is concerned, but all of the accused are ably represented and suffer no prejudice by this omission. They knew from the onset what case they have to meet but it should be noted that it is of importance to formulate charges substantially complete and correct, unlike the present. While critical of the manner in which the charges are formulated, it may as well now be said that it is equally important for the prosecution to put charges in the alternative, where applicable. In the present matter, one would have expected such alternative charges to have been brought under the Opium and Habit forming drugs Act of 1922, almost as old vintage as the present Act. Furthermore, charges of dealing in the substance could as well have been proferred in the main, with regard being had to the astonishingly huge quantity of material found at the scene.
Be that as it may, the charge as it has been formulated and put to the accused is to be considered as it stands and there is no application for an amendment that requires to be considered.
Part 1 of Schedule C of the Pharmacy Act lists under poisons:-

cannabis indica (Indian hemp or Cunjah or African dagga or Cape wild dagga) and all solid preparations thereof (except cannabis indica plasters)”
Part II of the same schedule includes:
cannabis indica, all liquid preparations or admixtures of”.
To be in the unlawful possession of a poison is a criminal offence under Section 12(1)(a) of the Pharmacy Act. The defence submit that it needs to be proven that the substance complained of has to fall within the listed “poisons”, and that cannabis indica” may be listed, but that under the Act, possession of “cannabis sativa” is not prohibited. The argument submitted in support of the application for acquittals and discharges of all accused at the end of the prosecution’s case is that the evidence has it that the substance is “cannabis sativa” which is not listed as a poison and therefore there is no case to answer.

However wise such an argument may sound to the ears of the accused persons, it does not persuade me to acquit on this basis. The evidence of Mr. Leonard Dlamini, which is again considered further down, is that the tests he conducted showed the material to contain T.H.C (Tetra-Hydro-Cannabinol) which is the active chemical component of cannabis. His evidence is that the average T.H.C. content of the one of the tested batch (originating from the 63 bags found on the first day of the raids, i.e. 20th October 2000) was 3.31% while the THC content of the second batch (originating from the 1098 compressed blocks found on the second day of the raid) was 5.47%. Mr. Dlaminis further and pertinent evidence is that the substance tested is listed as “African dagga” in schedule C of the Pharmacy Act. Though pertinently (but erroneously) put to him in cross-examination that the Act only refers to cannabis indica and not to African dagga, Dlamini referred to the wording of schedule C of the Act, quoted above, to substantiate his finding that the dagga is also listed as “African dagga”.
The submission by defence counsel is that since the variety of dagga at hand is the stronger variant of cannabis, namely c. sativa and no c. indica, it should fall outside the ambit of listed poisons. This cannot bring an end of the prosecution. The prima facie evidence of Mr. Dlamini is that the substances he tested in this matter contains dagga, which is a substance listed as “African dagga” in schedule C of the Act. It may be so that it is an omission that cannabis sativa is not pertinently named and listed as a poison under schedule C part 1 of the Act, but in the present matter, the defect is not fatal to the prosecution as “African dagga” was identified by Dlamini and that substance is indeed included in the schedule.
The Crown’s last witness, a pharmacist, was asked about the substances. Mrs. Magagula (PW XII) said that THC is cannabis specific and that concentrates of 3.31% and 5.47% are quite high. Further, of the genus cannabis, she referred to three species thereof. The fist, cannibas sativa is a cultivated variety, which is the variety that she would expect to contain the abovementioned concentrates of the active ingredient, THC (Tetrahydrocannabinol). Her further evidence is that cannabis sativa is locally known as “dagga”.
Her evidence, which remains uncontested, is not at variance with that of Mr. Dlamini, who classified the plant as “African Dagga”. As such, it is a fallacy to argue that the court should find that the plant material that was confiscated at the Nhlengethwa homestead is not listed in schedule C, part 1, of the Pharmacy Act of 1929.
Accordingly, the first leg in support of an application to acquit all the accused stands to fail. The Crown did adduce evidence that prima facie establishes the substance to be a scheduled poison under the Act, of which unlawful possession forms the basis of the indictment.
The second leg of the application under section 174(4) of the EXPERT EVIDENCE AND SECTION 220 of the CPE Act, is that the expert experience required to prove the basis of the charge lacks in substance. The statutory definitions and requirements have been touched on above, but require further scrutiny.
Mr. Ntiwane referred to a number of dictionary definitions of the word “chemist” to argue that Mr. Leonard Dlamini (PW1) is not a chemist within the meaning of the Pharmacy Act, and as such, in accordance with section 3 thereof, not allowed to practise as a chemist in Swaziland. This stems from the opening words of his affidavits (exhibits 10, 11 and 12), in terms of section 220(4) of the CPE Act wherein he says: “I am a chemist in the Royal Swazi Police…”.
The quoted dictionary or ordinary meanings of “chemist” inter alia has such a person to be “… skilled in chemistry; dealer in medical drugs; authorised to dispense such medicinal drugs; and engaged in chemical research or experience”. My own (very old) dictionary has a chemist also as “a person versed in chemistry; one whose business is to make chemical examinations or investigations; one who deals in drugs and medicines”. The meaning of “pharmacist” is nearly on par. It is “one skilled in pharmacy; a pharmaceutical chemist”. Pharmaceutical in turn refers to the use and sale of medicinal drugs; to administer medicine; pertaining to the knowledge or art of pharmacy or preparing medicines. Pharmaceutical chemistry is defined as “chemistry applied to those substances which are employed for the cure of diseases”. The Pharmacy Act itself does not define “chemist” (nor pharmacist).
From this short excursus and with a reading of the Act, the following comes to the fore:

“No person shall practise in Swaziland as a chemist unless he is registered as such in accordance with this Act” (Section 3). Section 2 defines “practise” as the “…doing or performing whether for gain or otherwise of any such acts as specifically belong to the calling of a chemist”.
The Act regulates how and where a person must register to practise as a chemist, what the qualifying criteria are, the fees to do so and deregistration. It also regulates the sale of drugs, proprietary medicines, poison, potentially harmful drugs etcetera, apart from creating statutory offences pertaining to unlawful possession of the latter two items. It also creates offences pertaining to the sale and dispensing of poisons drugs et al by chemists and others.
What the Act does not do, as defence counsel want it, is to stipulate that only a properly registered chemist may give expert opinions on the chemical analysis of suspected poisons, listed in the Act. Put differently, the contention is that in order to be able to come to the findings as Mr. Leonard Dlamini (PW1) did, he first has to qualify as a registered chemist.
This however is not the case. He would need to be a registered chemist before he is allowed to practise as a chemist, or as pharmacist, if he was to dispense and sell medicines, drugs, poisons and potentially harmful drugs. It does not matter whether he does so as commercial chemist selling and dispensing to the public, or as an employee of the Government, working in a hospital or clinic, or even in the Police Service. That is the law. But that is not the only function of a “chemist”. A chemist, as noted above, is also a person with the knowledge and skills acquired through appropriate studies, who is able to manufacture medicines, who is able to analyse medicines or other chemical and natural substances for their content, to “make chemical examinations or investigations”.
Thus, a chemist may have a dual role to play – either he registers and practises in the business of selling and dispensing medicines, drugs and so forth, or he does not register as such, which bars him from doing this, but not from otherwise carrying on with his trade. Mr. Dlamini is not a registered chemist under the Act. He is not allowed to dispense and sell medicines. He still remains a chemist in the ordinary sense of the word, a person with a B.Sc. degree, with majors in Biology and Chemistry. He also has a certificate in the Identification and Analysis of Drugs of Abuse obtained from the United Nations Laboratory in Vienna. He has more than nine years’ experience as a forensic chemist.
For purposes of evaluating his evidence it does not matter whether he is permitted to “practise as a chemist in Swaziland” or not. It would have been relevant if he was on trial, accused of dispensing medicine, drugs, poison, or potentially harmful drugs. Here, his evidence is that he performed an analytical examination of the substances given to him for that purpose. His evidence is that he did this “in a manner requiring skill in chemistry and found that it contains dagga (chemical content: THC 3.31% and 5.47% in respect of the loose and compacted dagga), which substance is listed as African Dagga in the Pharmacy Act, 1929, Schedule C “Poisons” Part 1”.
This evidence is to be considered through the lens of an expert witness, and not of a practising chemist, allowed to practise under the provisions of the Pharmacy Act.
The conclusions Dlamini came to were not under attack by the defence. Nor were his chemical knowledge and methods of analysis. There is no reason to doubt the findings he came to. At the very least, Dlamini’s viva voce evidence is prima facie proof that the material he analysed is indeed what he found it to be, namely “African dagga”.
The secondary focus of the attack on Mr. Leonard Dlamini centres on his affidavits, exhibits 10,11, and 12. He therein declares himself to be a “Chemist in the Royal Swazi Police” and adds that the “Forensic laboratory at Police Headquarters, Mbabane (is) designated by the Prime Minister as “(8) The Police Laboratory” as per the Designations of Institutions Notice of 1992 (Amendment of Legal Notice No.84 of 1980), under section 220(4) of the CPE Act, 1938.
Section 220(4) of the CPE Act makes provision for certain evidence to be presented and accepted in documentary form, on affidavit. It reads:
“If any fact ascertained by any examination or process requiring any skill in bacteriology, biology, chemistry, physics, astronomy, or geography is or may become relevant to the issue in an criminal proceedings, a document purporting to be an affidavit made by a person who alleges in such affidavit that he is in the service of the Republic of South Africa, or in the service of, or attached to, the South African Institute for Medical Research or any university in the Republic or any other institutions designated by the Deputy Prime Minister for the purposes of this section by notice in the Gazette, and that he has ascertained any such fact by means of any such examination or process, shall subject to sub-section (5), on its mere production in such proceedings by any person, be admissible to prove such fact”.
The second part of Section 220(4) refers to proceedings in the Magistrate’s courts.
A safety valve is incorporated in section 220(5) which brings within a trail court’s discretion a decision to call the deponent for viva voce evidence or written interrogatories.
In the present case, the deponent was called as first witness in the trial and gave oral evidence. During his evidence he referred to his affidavits, which were admitted as part of his evidence.
What the defence argue is that the affidavits themselves are not to be regarded as admissible evidence. This contention is based on the provision of section 220(4) whereunder the Deputy Prime Minister may designate other or further institutions, for purposes of the section, which in 1938 only referred to South African Institutions.
The designation of Institutions Notice of 1980 added seven further such institutions, mainly Swazi Hospitals and the Central Public Health Laboratory. Legal Notice No.56 of 1991 added on eighth, as “(8) Any recognised hospital, clinic, chemical or medical laboratory or medical research institution in any commonwealth country”.
Mr. Dlamini’s affidavit refers to a further purportedly designated institution, “The Police Laboratory”, as quoted above from the affidavit of Mr. Dlamini. It is this laboratory that Mr. Ntiwane specifically has it against.
In argument, he referred to Legal Notice No.164 of 1991, purporting to be “The Designation of Institutions (Amendment) (No.2) Notice, 1991”, which refers to the 1980 Notice as the “Principle Notice”, which this one seeks to amend. Therein, the Principal Notice is sought to be “…amended by adding after item (8) the following new item:
“(9) Police Forensic Laboratory”
This would have been all well and good if properly done, but as Mr. Ntiwane correctly pointed out, by the properly empowered Minister, i.e. the Deputy Prime Minister, as required by the CPE Act. This notice was however issued by the Minister for Justice, and not the Deputy Prime Minister.
Without going into the details of the reasons that I hold for my view, I agree with Mr. Ntiwane that the Minister of Justice could not achieve what he set out to do and accordingly, Legal Notice 164 of 1991 did not achieve what it purported to have done, to include the Police Forensic Laboratory as a designated institution for purposes of section 220 of the CPE Act. Essentially, it is because the purported designation was not made by the correct statutory empowered Minister.
The finalisation of this ruling was delayed because I endeavoured to do my won research about this aspect. I telephoned the Police Legal advisor’s office for a copy of the 1992 Legal Notice that Mr. Leonard Themba Dlamini referred to in his affidavits. I got none. I also phoned the offices of the Attorney-General to ask for the same Notice. I got none.
What was eventually forwarded to me is a photocopy of what appears to be the original instrument, seemingly signed by the Prime Minister. That is not sufficient. In order to acquire the status of law, the instrument had to be promulgated and gazetted. On receipt of the photocopy, a formal letter of enquiry about this aspect was sent to the offices of the Attorney-General, stating the issues at hand and the need to urgently ascertain the legal status fo the averred Notice. To date, I have received no reply, nor any Gazette.
Due to the impact that this may have on numerous criminal trials wherein affidavits emanating from the Police Forensic Laboratory on strength of it being a designated Institution as per section 220(4) of the CPE, a copy of this ruling is to be brought to the attention of the Attorney-General forthwith so that appropriate remedial action can be taken if need be.
The upshot of the finding is that the affidavits of Mr. Dlamini cannot be relied on as admissible evidence. This does not render his viva voce evidence useless. I am satisfied, at least prima facie, that he is an expert in his field of forensic analysis, which flows from his academical qualifications and post-graduate experience and also his Certificate in the Identification and Analysis of Drugs of Abuse obtained from the United Nations Laboratory in Vienna, Austria. His analysis of the substance tested and the factual finding thereon has not been contested, nor the methodology to arrive thereat.
If the Crown solely relied on the affidavits, it would have disposed of the matter but the viva voce of Mr. Leonard Dlamini is prima facie sufficient proof to determine that the substance complained at is what the indictment alleges it to be, a scheduled poison.
POSSESSION
The third leg of the application for discharge of the accused at this stage of the prosecution is that the Crown did not prove possession of the dagga by any of the accused.
As said above, the indictments under the Pharmacy Act has no alternative charges, such as under the Opium and Habit Forming Drugs Act of 1922 (Act 37 of 1922). Section 11 of the latter Act contains a number of legal presumptions to assist the Crown and also brings about a shift of onus in certain circumstances. The Pharmacy Act has none of those provisions, leaving the Crown with the full onus of proving guilt beyond reasonable doubt, as per our common law.
Mr. Lukhele pointed out that the charges allege all of the accused to have acted jointly in common purpose. It seems to be the standard practise to allege common purpose in just about all criminal prosecutions where more than one accused is involved in the same charge. It needs to be remembered that he who alleges is to prove, and where there is no common purpose that is proven, it is an allegation unfounded which may impact negatively on prosecutions. In this matter, about all that the accused have in common is being Swazi nationals, who reside in the Nkomazi area. There is no evidence whatsoever that they conspired to possess anything or commit any crime with a common purpose. The doctrine of common purpose has no application in this case.
Very briefly, the evidence against the accused is that during a joint international police operation, a search was conducted at the homestead where the accused persons reside. The initial part of the search was directed at the vehicles found on the premises, to establish if any were stolen. All vehicles passed muster and the search was then redirected to the various abodes on the homestead. A suspicion was roused when the police officers detected small particles of what they assumed to be dagga on the ground. They also said that they smelled dagga in the air.
Following on their hunch, further small particles were seen outside the door of one of the houses and the first accused, who was with them at the time, was asked to open the house. Finding that the door was locked, he sent his wife, the second accused, to fetch the key and on entering through the door, the police found a large number of bags, stashed inside the house. The rest of the family were called from where they were at the homestead and the police proceeded to remove the bags, which were consecutively numbered for identification purposes as they were carried out, 63 bags in total.
The house in which the dagga was found seemed not to be occupied by any person, in particular none of the nine people who were arrested. Much of the floor space was taken up by the bags and the bed which was there stood upturned on its side. Some pictures of football players and a certificate adorned a wall. This is indicative that at some stage prior to the events the room was inhabited.
A further search of the Nhlengethwa homestead yielded no further dagga, but the first accused opened the boot of his Caravelle Combi for the police. Though the same vehicle had earlier been checked to see if it was stolen, the two vacuum sealing machines which were in the boot were not initially found. The police further confiscated quite a number of plastic bags of the type suitable for use in the vacuum packing machines as well as a lot of brown plastic adhesive tape rolls, which were found in the garage.
As no lawful excuse to have the dagga was offered, all nine members of the family were taken under arrest to Mbabane. A further four men were also on the premises but released as they were found to be temporary construction workers.
That night the family members were questioned by the police. Although details of the results were not presented as evidence, further information was obtained and the following day the police returned to the homestead for a further search, accompanied by the first accused. After some time, loose roof sheeting screws were noted on the same structure in which the dagga was found the previous day. When these half-loose roof tiles were raised, a hidden compartment was discovered. It consisted of a small part of the house being blocked off with a wall, that has no door or window, the only access through the roof.
Therein a further 111 bags were found, each containing about ten blocks of top grade compressed dagga. In all, 1098 of these blocks, each weighing just over 2kg were removed, again with the bags being individually numbered by the police. A further quantity of plastic bags and brown plastic packaging tape rolls were also stashed away inside the secret compartment. Only the first and second accused were charged with the possession of these blocks.
The latter batch of bags were cut open and on removal, each block was further numbered and weighed. The size of each block is about two thirds of an A4 sheet of paper and approximately 8 centremetres thick. The dagga inside is very tightly compressed, to the extent that the police officers had to use hacksaws to remove a corner of each block as sample for forensic analysis. The compressed blocks of dagga were individually vacuum packed and the packages were well bound with brown plastic adhesive tape.
From each of the 63 bags and 1098 blocks a sample was taken for analysis by Mr. Themba Dlamini, of the Police Forensic Laboratory, whose evidence was mentioned above. Each sample was found to contain African dagga, a scheduled poison under the Pharmacy Act. The total weight of the loose dagga in the 63 bags is 614,7kg, that of the compressed blocks being 2 294,5kg, almost three metric tons in all.
I understand that two of the initial nine accused persons pleaded guilty to what seems to be the first count and were sentenced in April this year. Trials were separated, leaving the present seven accused persons before court, all charged on count one pertaining to the 63 bags of loose dagga, the second count pertaining to the 1098 blocks of compressed dagga being put to only the first and second accused.
To support this third leg of the application for discharge of all of the accused persons following the close of the prosecution case, both defence attorneys argue that possession has not been proven. I accept their exposition of relevant principles to be correct, namely that both animus or corpus elements need to exist before possession can be found.
This is in line with a host of decided cases, for instance S V CRONJE 1976(2) SA 62 (CPD) where Steyn J (as he then was) held, with Burger J concurring at page 68B-C (freely translated from Afrikaans):-
“(The requirement is still) that, in order to find that the appellant possessed dagga, she must not only have had the corpus (that is physical control or custody) but also the animus to exercise control over the dagga, be it for herself or another. See R V BINNS & ANOTHER 1961(2) SA 104 (T) at page 108, also S V CAIN 1973(2) SA 522 (N)”.

The import of this is that the Crown has to prove both of these elements to establish possession of dagga in order to prove mens rea which is an essential element of the crime that the accused have been charged with. As said above, there is no legal presumption in favour of the prosecution in the statutory enactment, which places the onus of proof squarely on the shoulders of the prosecution.

In S V CAIN 1973(2) SA 522 (NPD) to which Steyn J referred with approval in Cronje, it was held at page 524 that:-

“The words in this passage (referring to S V BLAAUW 1972 (3) SA 83(C) per Steyn J at p.84) which in our view require to be emphasized are:
“…but with the intention to exercise control over it…” (freely translated from Afrikaans) The learned Judge further referred to S V SMITH 1965 (4) SA 166 (C) per Corbett J, as he was then at p.171.
 
The weight of this authority is undoubtedly in favour of the general proposition that, where a person is charged with the contravention of a statutory provision which prohibits the possession of certain articles except under special circumstances or under the authority of a permit, mens rea in the sense of the accused person knowing that he has in his custody or under his control the forbidden article, is normally an essential ingredient of the offence and the onus of establishing such mens rea lies upon the (Crown).
 
With the greatest of deference I would venture to suggest that, in a number of the cases establishing this proposition, the court has failed to distinguish clearly between the mental element necessary to establish custody or possession, as the case may be, and the mental element constituting mens rea. The concepts of custody or possession comprise two main elements: they are, firstly, the physical element of corpus, i.e. physical custody or control over the res in question, exercised either mediately or immediately, and the mental element of animus, i.e. the intention to exercise control over the thing”.
 
“The learned Judge (Corbett J) in subsequent passages emphasized that the mental element or animus, necessary to give a person custody or possession of an article is distinct from the guilty state of mind constituting mens rea, the onus was upon the (Crown) to prove animus in relation to possession”.

Applied to the present facts, the defence argument is that neither of the two elements, corpus or animus, can justifiably be drawn as an only inference, to the exclusion of other reasonable inferences. Much reliance is placed on the fact that two of the nine arrested persons have admitted the 63 bags to have been theirs and were convicted of its possession. Further reliance is placed on the fact that the dagga was in a locked room, of which it cannot be said that the only key that gave access to it was the one fetched by accused number two. It is also said that none of the accused before court admitted the dagga to be his or hers, or that any of them have been proven to have a link with the room, save for living in the same homestead, which consist of a number of different houses apart from the one in which the dagga was found.

Out of all of the accused before court, it is only the first two who were asked to unlock the “dagga house”, the second accused being sent by her husband to fetch a key to it after he demonstrated that its door was locked.

None of the remainder of the accused were proven to have anymore knowledge of the dagga than what they were shown by the police or control over it than living at that homestead.

Concerning the second count, relating to the compressed dagga discovered on the second day in the secret compartment, only the first two accused are indicted. One may as well wonder on what basis this distinction was arrived at. The only evidence that may take the matter any further is that of the chief’s runner or umgijimi, who said that the land of the homestead was khonta’d by the mother of the first accused. A possible inference may thus be drawn that he is her successor in title and therefore in control of the whole of the homestead and that by necessity he would not only have knowledge of the secret compartment but that he knew of its contents and profited by it. Such an inference is sought to be strengthened by the wealth that the first accused has accumulated, further by the admission by the first accused that he was in charge of the homestead, also by pointing out the two vacuum sealing machines in the Caravelle Combi.

The Crown relies to a large extent on these aspects to seek the inferences that at least the first accused had constructive physical detention, the corpus element, and also the animus to gain some benefit out of the stash, thus the intention to exercise control over the dagga.

Following amendments in 1964 and 1991 of Section 174(4) of the CRIMINAL PROCEDURE AND EVIDENCE ACT, 1938 (Act 67 of 1938), it now reads as follows:-

“If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged, or any other offence of which he might be convicted therein, it may acquit and discharge him”.

The phrase “no evidence” is in contrast to the earlier version where a case sufficiently to require him to make his defence was the criterium. The present requirement is to determine whether or not there is evidence on which a reasonable man may convict. Where there is not sufficient evidence, at least prima facie, an application for discharge would rarely be refused. As a test for the criteria to be applied, Hiemstra CJ formulated the following in S V SHUPING & OTHERS 1983(2) SA 119 (B):-

The first consideration is whether there is evidence on which a reasonable man may convict; if the answer is negative it must be asked whether there is a reasonable possibility that the defence evidence may supplement the Crown’s case; if the answer is positive, a discharge should be refused. The latter part of this test remains to be qualified by further factors.

With no onus on the accused to prove his innocence it is with great care that a decision is to be made as to whether a prima facie case was proven on which a reasonable man may convict proof beyond reasonable doubt is a far cry from prima facie and it can very well be that an application for discharge as at present may be refused, but without any further evidence the defence case is closed and a verdict of not guilty being entered. A refusal to discharge does not by necessity mean that an answer is required through evidence by an accused person. Also, the dictum in SHUPING (supra) about an accused possibly supplementing the Crown’s case as part of the decision to refuse a discharge is open for criticism.

When all the above principles of law is juxtaposed with the totality of evidence so far heard, I cannot find that a prima facie case has sufficiently been made against Mr. Lukhele’s clients, accused numbers 3,4,5,6 and 8, as far as the first count goes, the only charge in which they feature. The same applies to the second accused, concerning both counts.

The opposite applies to the first accused in respect of both counts. A prima facie case has been made against him, but it remains to be pronounced if the Crown has discharged its onus beyond reasonable doubt, a question not now to be decided. Whether he decides to give evidence or remain silent is for his choice, wherein he will be advised by counsel.

Accordingly, all of the accused persons apart from the first are acquitted and discharged under the provisions of section 174(4) of the CPE Act, and his trial stands adjourned to the first available date that forthwith is to be allocated by the registrar, in liaison with counsel herein.

JACOBUS P. ANNANDALE
Judge