Judge sets aside dagga conviction owing to law declared unconstitutional 30 years ago

A man found guilty of dealing in dagga has had his conviction and sentence set aside because the magistrate in his trial relied on a law which was deemed unconstitutional almost 30 years ago.

“It is inconceivable that 29 years after this section [of the Drugs and Drug Trafficking Act] was declared unconstitutional, it would still find application in a South African court,” Acting Deputy Judge President of Mpumalanga Takalani Ratshibvumo said in a recent ruling.

He ordered that the judgment be brought to the attention of the Chief Magistrate “to help identify areas in need of training and refresher courses”.

He also ordered court managers in the district to find out why it had taken four months to respond to queries from the review court and to report back to the high court.

Read the judgment here.

Celucolo Michael Mkhonza was convicted by the unnamed acting magistrate in the Mayflower Magistrates’ Court of dealing in drugs in May 2023. He was sentenced to three years’ imprisonment, wholly suspended, and a fine of R5,000, alternatively 24 months in jail.

In September 2023, the matter came before the high court in an automatic review. Queries were sent to the trial magistrate who only responded to them in February 2024.

Judge Ratshibvumo said that from the record of the proceedings it was clear Mkhonza had pleaded guilty to being in possession of 3.26kg of dagga.

Mkhonza had denied that he was “dealing”, saying that someone had given it to him to take to another person.

The magistrate, in handing down judgment, commented that although Mkhonza had “not directly admitted that he was dealing in drugs”, the presumption in the Act was “very clear that the weight of dagga that he was carrying is presumed that he was dealing in drugs”.

The magistrate had been asked to explain how he had come to this conclusion.

In his explanation, he said he had only now realised that that section of the Act, which deemed that a person in possession of drugs over a certain amount was guilty of dealing, had been declared unconstitutional.

Judge Ratshibvumo said almost three decades ago the Constitutional Court, in 1995, had ruled that section unconstitutional and of “no force and effect” because it imposed a “reverse onus of proof” on accused people caught with drugs, contrary to their fair trial rights.

The judge said it was only right that Mkhonza’s conviction and sentence be set aside.

“This may, however, be too little comfort for the accused who may have suffered substantial injustice at this stage,” he said, noting that while Mkhonza had been given a wholly suspended sentence, it was not known if he had paid the additional fine, or had begun serving the 24-month sentence attached to that.

Regarding the excessive delay in the provision of reasons by the magistrate, Judge Ratshibvumo said the magistrate had indicated that he had only received the record from the review court four months after it had been dispatched from the high court.

This delay was unjustified and inexcusable.

“With the advent of technology, requesting and advancing reasons from the trial court should be possible within 24 or 48 hours by means of email communication. Presenting a case for review after the accused has served the sentence defeats the whole purpose of review.

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“It is the duty of all officers involved within the Department of Justice and Constitutional Development and the Office of the Chief Justice to give effect to the legislative provision and the court directors meant to protect an accused’s rights.”

He directed that court managers must compile reports within 30 days identifying the source of delay and indicating steps taken to avoid similar delays in future.

Mbekezeli Benjamin of Judges Matter said it was troubling that the magistrate had not known the law.

“It is a basic step in the legal research process to check if the law relied upon is still good law. It is notable that once the concerns were raised with the magistrate, he conceded his error and asked the review judge to correct it. We support Judge Ratshibvumo’s order that the Chief Magistrate identify areas where refresher training might be needed,” he said. DM

First published by GroundUp.