[7]
It is clear that the purpose of this provision (and the remainder of section 10) is to assist the
prosecution in proving its case by legislating for a rebuttable evidentiary presumption. The legislature has set a threshold requirement
for the presumption to apply namely, that it must be proved beyond reasonable doubt that the accused was in possession of dagga exceeding
115 grams in weight [S v Noble 2002 NR 67 (HC) 69C-D). Where the accused pleads guilty of possession of dagga and in the course of the questioning in terms of Section
112(1)(b) of Act 51 of 1977 admits that he was in possession of dagga exceeding 115 grams in weight, it is obviously not necessary
for the prosecution to prove this fact. However, before the prosecution or the court can rely on a presumption like this, it must
remember that the presumption is rebuttable by proof to the contrary. The only way that the accused can present proof is by presenting evidence, which means that he/she must be afforded
the opportunity to do so under oath, either by giving evidence in person, or by calling witnesses. The prosecution must also be given
the opportunity to cross-examine on the evidence presented by the accused. The accused cannot attempt to rebut the presumption by
means of answers during the section 112(1)(b) questioning process.
[8]
What the learned magistrate should have done in this case was to question the accused separately
on the main count and then on the alternative count. When it became clear that the accused was in fact denying the element that he
was dealing in the dagga, but was admitting that he was in possession of the dagga, the magistrate should have asked the prosecutor
whether he/she accepts the plea on the alternative count. If the prosecutor had declined to accept the latter plea, the magistrate
should have entered a plea of not guilty on the main count and have let the trial proceed, during which the prosecution and the accused
would have had, in the normal course, the opportunity to present evidence under oath. If the prosecutor relied on the presumption,
the effect thereof should have been explained to the accused so that he could make an informed decision whether to present evidence
in rebuttal.
[9]
In the circumstances of this case, it is clear that the proceedings must be set aside for the magistrate
to properly apply section 112(1)(b) without applying the presumption.
[10]
In dealing with the issue of the presumption as I have, I must point out that the constitutionality of
the presumption is an issue on which this Court may still have to pronounce itself. In the Noble case this Court declined to do so because on appeal it was held that the prosecution had failed to prove beyond reasonable doubt
that the appellant had been in possession of dagga. My judgment should, however, not be seen as an indication that reliance must
necessarily be placed on the presumption.
[11]
In conclusion the following order is made:
1.
The conviction and sentence are set aside.
2.
The proceedings in terms of section 112(1)(b) of the Criminal Procedure Act are set aside and
the matter is remitted to the magistrate in terms of section 312(1) of this Act to question the accused afresh.
______________________________
VAN NIEKERK, J
I agree
_______________________________
MAINGA, J
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