Judgment No. HB 91/2004
Case No. HCA 32/99
IN THE HIGH COURT OF ZIMBABWE
CHIWESHE & NDOU JJ
BULAWAYO 19 MAY 2003 & 3 SEPTEMBER 2004
Mrs I M Nyoni, for the appellant
K I Phulufor the respondent (at the request of the court)
NDOU J: As the appeal centred around legal issues we felt that the respondent may not appreciate the basis thereof let alone being able to articulate her response thereto. We directed the Assistant Registrar to seek legal representation on her behalf. We are indebted to Mr Phulu for coming to the rescue and offering qualitative submissions on the respondent’s behalf.
The respondent was charged for being in possession of 50 kilogrammes of prepared Indian Hemp, commonly known as dagga in our jurisdiction, in contravening of section 9(b) of the Dangerous Drugs Act [Chapter 15:02]. She was aged 20 years then and pleaded not guilty to the charge. After hearing and evaluating the evidence, the trial court found that on the facts, the accused person was not in possession in the manner envisaged by the Act and the accused was accordingly acquitted and discharged. The appellant now appeals against that decision.
It is common cause that the police searched the respondent’s place of residence and recovered ten bags of dagga. According to the evidence of the police officers the respondent knew that the ten bags contained dagga, her only excuse was that the dagga belonged to someone else. The respondent herself does not dispute that
she knew that the bags contained dagga. In her evidence she says that the dagga was brought into the house by people who told her that they had been authorised by her brother Philip. The trial court accepted that the respondent had initially refused to accept the dagga in question and then at a later stage, upon instruction from her brother Philip, accepted the dagga to be placed in the house. From the record the use of the word accepted is clearly in the sense that she did not prevent the depositors from depositing the dagga in the lodgings in question. The raison d’être of the trial court seems to be that she had not the power to prevent the act in question. It is common cause that these depositors had, on a previous occasion not subject the trial in court a quo, brought dagga to the house and the respondent refused to accept it but it was left in the house on the instructions of Philip. It is common cause that when the same persons arrived with the dagga forming subject matter of these proceedings, they told her that they had been authorised by Philip to come and leave the dagga. She let them leave the dagga in the lodgings. I think it is necessary to highlight the set up at the respondent’s house to give context to the question of possession of the dagga. Her testimony, which was apparently accepted by the trial court reflects-
“Your Worship the reason why I came to stay with the last witness (Philip, brother) is that both my parents have passed away. I had a small child, the father of that child abandoned me and the baby and went to South Africa. I was being looked after at the church so that last witness’ mother said that it was not good for me to be kept at the church yet she had a room to accommodate me, so I was being kept there and I had to follow every rule in the house. Even if Philip, the head, allowed those people to bring those goods to the house I had no powers to shun them away.” (Emphasis added)
She also testified –
“America came to ask me to safe-keep the dagga for his wife. I refused. He went away and came back, he talked to Philip agreed to safe-keep the dagga …
Q When that happened were you present when Philip agreed to safe-keep the dagga?
A I was there but I was not in the room in which they were discussing the issue, I only saw the dagga brought at a later stage.
Q To who was is (the money) being paid?
A It was being paid to Philip.” (Emphasis added)
In her cross examination of a police officer she said-
“Q I was trying to tell you that the presence of the dagga in the house was beyond my powers
A It is true” (emphasis added)
The appellant seeks to rely on Philip’s evidence to the effect that he had not instructed the bearers of the dagga to take it to his lodgings. The evidence was rejected by the trial court and there is no legal basis for us to upset this finding on appeal. There has been no contention that the court a quo misdirected itself in making all the above factual findings. In any event, the appellant does not seek a reversal of these factual findings of the trial court. Even if it did so there would be no legal basis for us to grant the request in line with decided cases – S v Mlambo 1994(2) ZLR 410 (S); Soko v S SC-118-92; Mbanda v S SC-184-90 and R v Dhlumayo & Anor 1948(2) SA 677(A).
In the circumstances, we have to go by the factual findings of the trial court and decide whether the respondent possessed the dagga. On the facts it is clear that
the trial magistrate found that the respondent was not the person in charge of the house. She found –
“Given that kind of background, the court was quite at large to infer that the accused person did not have the requisite mental element to possess the dagga in question. The court did not lose sight of the fact that indeed the accused was aware that I mean to be having dagga in the house was an offence, she clearly conceded that but she clearly explained as to how she accepted the dagga on the date in question. It was a clear cut case that she was not accepting the dagga as per her agreement with the person in question but that she was only being used as an agent by the brother in question who was having dealings with the people in question. Given that set up the court is satisfied that the requisite mental element has not been proven as far as the possession of the dagga in question.”
From these findings of the court a quo it is clear that-
- Respondent was not in charge of the house in question
- Respondent was aware that possession of dagga in the house was an offence
- Respondent “accepted the dagga not pursuant to an agreement with the bearer thereof, but acting as agent of her brother Philip
- She accepted the dagga to keep it on behalf of her brother. She was acting under the instructions of her brother – obeying her unlawful instructions so to speak.
From all these findings did she knowingly possess the dagga? It is trite that mens rea is clearly an essential ingredient of the offence – Sibanda & Anor v R (No 1) 1963 R & N 593 at 596D-G; S v Ahmed 1977(1) RLR 59 and S v Haywood 1978 RLR 238 at 239E-F. In casu, it has been accepted that the respondent knew that the 10 bags contained dagga and that it was unlawful to possess the dagga. But did she possess these bags of dagga in law? Possession is the act. The appellant referred us to a passage from Criminal Law (2nd Ed) page 414 [page 387-8 in 3rd Ed]. The South African Act [Drug and Drugs Trafficking Act 140 of 1992] differs materially with our
Act on the definition of “possession”. In addition to possession in ordinary juridical sense, there are two other ways in which the prosecution in South Africa may prove possession viz (a) the extended meaning of possession, and (b) the presumption of possession.
Both these ways are provided for in their Act. Our Act does not have similar statutory forms of possession. It therefore follows that the passage cited by the appellant is not applicable in our jurisdiction. Our Interpretation Act [1:01] is not of assistance in this regard as it does not define possession.
Coming to the facts of this case, did the prosecution prove possession in ordinary juridical sense? Possession consists of two elements, namely, a physical or corporeal element (corpus or detention) and a mental element (animus, that is the intention of the possessor) – S v Binns 1961(2) SA 104 (T) at 107 and S v Adams 1986(4) SA 882 (A) at 890-1. According to C R Syman, supra, at 387-
“The physical element consists in an appropriate degree of physical control over the thing. The precise degree of control required depends upon the nature of the article and the way in which control is ordinarily exercised over such a type of article. The control may be actual or constructive. Constructive control through somebody else, such as a representative or servant (C F Singiswa 1981(4) SA 403(C)). The animus element of possession relates to the intention with which somebody exercised control over an article and differs according to the type of possession. “Possession” may have different meanings in different statutes and in different branches of the law, and these differences are reflected in the different meanings of the animus element in each particular type of possession. … “possess” may be restricted to situations where X exercises control over an article with the intention of keeping or disposing of it as if he were the owner as opposed to keeping it (temporarily or otherwise) on behalf of somebody else. This is called possessio civils (Voet 41.2.3; Wicks v Place 1967(1) SA 561(E) 567; S v R 1971(3) SA 798 (T) 800). This is the narrow meaning of “possession”. There can be no doubt that if X’s possession of the substance amounts to this form of possession, he is guilty of contravening …”
It is not sufficient for the prosecution to prove that the accused merely had physical detention of dagga but that, in addition, it must be established that the detention was accompanied bymens rea. This additional factor is present when it is
shown that there was an intention to exercise control on the part of the accused. Knowledge that what she physically detained is dagga is an essential factor – Hlatshwayo v R 1946 NPD 118; R v Ndlovu 1948(1) SA 728 NPD and R v Keswa 1949 (3) SA 1 (O). The state also has to establish some sort of knowledge on the part of the accused that the thing possessed is a forbidden thing – R vMatsoso 1950(4) SA 178 (O) and S v Smith 1965(4) SA 166 CPD. In R v Sibanda and Anor 1964(1) SA 311 (SR) BEADLE CJ observed-
“The books abound with authority dealing with the question of the proof of mens rea in statutory offences where the unlawful “possession” of certain articles is forbidden. In all these cases it has always been held that the onus is on the Crown to prove mens rea: see, for example the following cases: unlawful possession of firearms or explosives, R v Ruda, 1958 R & N 275; unlawful possession of filings of current coins, R v Shankerji, 1932 TPD 343; unlawful possession of uncut diamonds, R v Matsoso, 1950 (4) SA 178 (O) at page 184; unlawful possession of unwrought gold, R vGumbi 1927 TPD 660 --- at page 662; unlawful possession of liquor, R v Keswa 1949(3) SA 1(O); unlawful possession of barberton, R v Binns and Another, 1961 (2) SA 104 (T); unlawful possession of yeast, R v van Ewyk, 1945 TPD 70. Such cases as R v Seboko and Another, 1936 AD 173; which may appear at first sight to adopt a contrary view, can be distinguished, as all that these cases lay down is that in many instances it is not necessary for the Crown to establish animus possidendi; that it is sufficient if the Crown shows that the accused merely knew that he had the thing in his physical possession. It is clear, therefore, on the above authorities that the onus is on the Crown to establish mens rea in the case of possession.”
It is important for the court to distinguish clearly between the mental element necessary to establish possession and the mental element constituting mens rea. In this regard CORBETTJ (as he then was) in S v Smith supra, at 171E-172A said-
“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 … At the same time there is a general rule that ordinarily speaking, a crime is not committed if the mind of the
person doing the act in question is innocent: actus non facit reum nisi mens sit rea. This principle applies to statutory offences, save that a statutory enactment may be construed as having absolutely prohibited certain conduct and as having constituted is an offence without reference to whether the wrongdoer had an innocent or guilty state of mind. Whether a statutory enactment should be so construed depends upon its wording and various other considerations. The express words of the statutes may indicate that mens rea was intended to be an essential element of the offence, in which case the onus is upon the state to establish mens rea. Even where there are no such words, however, a consideration of such factors as the context of enactment, the object and scope of the statute, the nature and extent of the penalty attaching to the offence, and the ease with which the beneficial provisions of the statute could be evaded if the defence of the absence of mens rea were allowed to be set up may lead the court to the conclusion that the general requirement of mens rea was not excluded by the enactment. In that event, however, the state would not normally be required to prove the existence ofmens rea: prima facie the enactment is satisfied when the objective conduct of the accused person is brought within its terms and the onus is then upon the accused to prove the absence of mens rea upon a balance of probabilities. Generally the courts are reluctant to construe an enactment as excluding mens rea from consideration in applying a penal provision (see generally Rex v Wallendarf and Others, 1920 AD 383; Rex v H 1944 AD 121; Rex v Britz 1949(3) SA 293 (AD); Rex v Mayage 1958(3) SA 400 (AD); S v Ramaube 1964(2) SA 61 (T)”
In casu, it has to be emphasised that the offence is the possession of dagga, and not failing to report the presence of dagga to the police or the authorities. This distinction is necessary because the state’s representative in the court a quo and the
state counsel before us placed a lot of weight on the failure by the respondent to make a report to the police about the presence of the dagga in the lodgings. She was sharing with others. In my view, the mere presence of the respondent in the room in which the dagga was did not bring her within the ambit of this definition of possession of dagga in terms of section 9(b), supra. The question is whether the dagga was in her custody or under her control – S v Cain 1973(2) SA 522 (NPD); S v Ngcobo 1972(2) SA 557 (N); S v Blauw 1972 (3) SA 83 (C) and S v Mjoli 1968(3) SA 397 (T).
It is clear that the appellant is relying on the extended meaning of possession as per South African cases. It has been shown above that our Act does not provide for the extended meaning of possession. The appellant failed to appreciate the difference between the South African and the Zimbabwean acts. The whole basis of the appeal is not known by Zimbabwean law and the appeal is, therefore, ill-conceived.
On the facts, the court a quo accepted the evidence of the respondent that she did not have the intention to have custody of the dagga. She did not have an intention to exercise custody. She was not in control of the lodgings, she was there at the mercy of Philip. It is Philip who gave instructions for the dagga to be introduced into the lodgings. She had no say in the matter. The court a quo found that because she had no say and was not in charge of the house she was not in possession of dagga. In other words the court a quo found that she was, in the circumstances of this case, not in physical detention or custody or control of the dagga. The question of the animus element does not arise. This finding of fact cannot be faulted.
Accordingly the appeal must fail on both the factual and legal basis. It is ordered that the appeal be and is hereby dismissed.
Chiweshe J …………………… I agree
Criminal Division, Attorney-General’s Office,appellant’s legal practitioners
Coghlan & Welsh,respondent’s legal practitioners