Dealing in drugs revisited : S v Mbatha 2012 (2) SACR 551 (KZP)

Abstract

The Drugs and Drug Trafficking Act 140 of 1992 (hereinafter the 'Act') makes provision for the essential crimes pertaining to drugs. The two most important crimes provided for in the Act are dealing in drugs and the use or possession of drugs (see sections 4 and 5 of the Act; CR Snyman Criminal Law (2008) 5ed 428-435; J Burchell Principles of Criminal Law (2006) 3ed 908-917). The Act divides drugs into three general categories which are: dependence producing substances; dangerous dependence producing substances; and undesirable dependence producing substances and the specific drugs resorting into each of these categories are listed in Schedule 2 of the Act (Snyman op cit 429). Dealing in drugs is the more serious offence of the two offences concomitantly carrying harsher sentences or penalties (see section 17(c) and (e) of the Act read with sections 13(e) and (f); S v Cwele and Another 2013 (1) SACR 478 (SCA); S v Gcoba 2011 (2) SACR 231 (KZP); S v Naidoo 2010 (1) SACR 369 (KZP); S v Mtolo 2009 (1) SACR 443 (O); S v Mlambo 2007 (1) SACR 664 (W); S v Tshabalala 2007 (2) SACR 263 (W); Snyman op cit 431). The Act defines 'deal in' in relation to a drug as 'performing any act in connection with the transhipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug'. The case under discussion is of particular relevance as the precise meaning ascribed to term cultivation for purposes of establishing the offence of dealing in drugs was in dispute. The case under discussion, in addition, reflects upon the definitional element of intention required for purposes of the offence of dealing in drugs. The decision is further topical as if, inter alia, reflects upon the principle of strict liability and addresses constitutional concerns relating to the proof of the offence of dealing in drugs. The decision further opens the door to critical debate pertaining to the issue of an accused's right to remain silent and the possible negative impact thereof.