- S v Motladile 2019 (1) SACR 415 (FB)
Intention to possess drugs
Section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 (hereinafter referred to as the “Drugs Act”) which is, inter alia, about the illegal possession of undesirable dependence-producing substances, does not give an emphatic or explicit indication that “intention” (dolus) is the required form of fault (mens rea) for such an offence.
However, on p64 of his Criminal Law, fifth edition as published by LexisNexis, the learned author Snyman, inter alia, states that “possession consists of two elements, namely physical and a mental. The physical element is objective in nature. It is referred to as corpus or detentio and entails the physical control over the article. The mental element is subjective in nature. It is referred to as animus, and describes the intention with which a person exercises control over the article. Before it can be said that such person possesses an article, both corpus and animus must be present, and they must be present simultaneously”. Thus Snyman.
Mr Motladile, the accused, who was unrepresented, was convicted in the magistrates’ court (“the trial court”) of the contravention of section 4(b) of the Drug Act - illegal possession of the undesirable dependence-producing substance metha-qualone, in the form of 39 Mandrax tablets. The sentence is, however, not stated. The accused pleaded guilty whereupon the provisions of section 112(1)(a) of the Criminal Procedure Act 51 of 1977 (“the CPA”) were invoked.
In due course the senior magistrate of the court concerned, formed the opinion that the proceedings supra “were not in accordance with justice”. Accordingly, the said senior magistrate referred the matter for special review to the High Court in Bloemfontein.