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S v Nkuna (18/2012)  ZAGPJHC 115; 2012 (2) SACR 526 (GSJ) (18 May 2012)
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SOUTH GAUTENG HIGH COURT, JOHANNESBURG
High Court Ref No: 18/2012
Magistrate’s Court Ref No: 67/860/2011
In the matter between:
 This matter was referred to this Court for review by the Magistrate’s Court in Sophiatown, Newlands.
 The accused was convicted by the said court after he pleaded guilty to a contravention of section 4(b) (read with sections 1, 13, 17 and 25) of the Drugs and Drug Trafficking Act1, in that he was found in the unlawful possession of 7 grams of dagga (cannabis). He was sentenced to a period of 18 months’ imprisonment and was not legally represented at his trial.
 When the matter was first referred to me in chambers I requested the presiding magistrate to comment on whether this was not a proper matter for investigation in terms of section 255 of the Criminal Procedure Act2 (“the CPA”) read with section 21(1) of the Prevention and Treatment of Drug Dependency Act3 (“the PTDD Act”) particularly in the light of the accused’s admission that he uses dagga (cannabis) and the fact that he has several previous convictions for the misuse and possession of that drug. I requested the magistrate to respond in the light of the decisions in S v Nkosi and Others4, S v Njomane5 and S v Walters, Van Niekerk and Adams6.
 The magistrate furnished a response which I propose to quote in full here for purposes of reference. The relevant part of the response reads as follows:
“On any given day almost half the Newlands court roll is made up of drug possession cases. The community surrounding this court suffers greatly as a result of the problems which go hand in hand with the drug trade, in particular addiction. The court has thus to be careful to distinguish between those offenders who are addicts and who might benefit from rehabilitation and those who are habitual users and who would not.
The reason for the court drawing this distinction is that it is in the court’s experience that social workers only recommend rehabilitation for young or second time offenders with serious addictions who have acknowledged that they have a problem and are actively seeking help. In these kinds of cases addicts and their families more often than not approach the prosecution or court on the date of first appearance for assistance. All endeavours are made to assist both through in-patient and out-patient treatment programs or diversion where appropriate.
The prosecution is only amenable to rehabilitation as appropriate in the abovementioned cases and not when dealing with older offenders with long records who have had ample opportunity to assist themselves by approaching any of the organisations which deal with addictions. It is further submitted that many older offenders who routinely use dagga do not see anything wrong with the recreational or habitual use of dagga and thus do not consider themselves addicts or persons in need of rehabilitation.
The accused, Mr Nkuna is a 30 year old man with eight relevant previous convictions who told the court that he uses dagga – there is nothing to suggest that he is an addict as opposed to a habitual or recreational user. Section 21(1) of Act 20 of 1992 describes the circumstances under which the prosecution may act as follows:
‘… is a person who is dependent on drugs and in consequence thereof squanders his means or injures his health or endangers the peace or in any other manner does harm to his own welfare or the welfare of his family or fails to provide for his own support or for that of any dependant whom he is legally liable to maintain …’
It is respectfully submitted that there is nothing to suggest that the accused falls within the ambit of this description and I did thus not believe that an enquiry in terms of section 255 Act 51 of 1977 would be appropriate.
The prosecutors and social workers have made their attitude clear to this court on numerous occasions in the past that in the case of older offenders with previous convictions rehabilitation is not a viable option. Resources are limited and the community can best be served by rehabilitation been given to those who will benefit the most. The older offender appreciates the error of his ways and is able to secure help for himself should he so desire.
The Honourable the Reviewing judge is furthermore referred to the case of S v Mandla Nkosi (copy attached) which was confirmed on review and where the accused was sentenced to four years imprisonment due to his long list of previous convictions.”7
 I have also requested the Office of the Deputy Director of Public Prosecutions to make submissions in the light of the above. The submissions in essence are that the magistrate erred in not conducting a full and proper enquiry in this case and recommended that the sentence be set aside and that the matter be referred back to the magistrate to conduct an enquiry in terms of section 255 of the Criminal Procedure Act. It is further recommended in the submissions filed by the Deputy Director of Public Prosecutions that the prosecution obtain a full report from a social worker setting out the personal circumstances of the accused and that the prosecution check on the availability for committal of the accused at a rehabilitation facility.
 Section 255(1)(a) of the CPA provides:
“(a) If in any court during the trial of a person who is charged with an offence other than an offence referred to in section 18, it appears to the judge or judicial officer presiding at the trial that such a person is probably a person as is described in section 21(1) of the Prevention and Treatment of Drug Dependency Act, 1992 (in this section referred to as the said Act), the judge or judicial officer may, with the consent of the prosecutor given after consultation with a social worker as defined in section 1 of the said Act, stop the trial and order that an enquiry be held in terms of section 22 of the said Act in respect of the person concerned by a magistrate as defined in section 1 of the said Act and indicated in the order.
(b) The prosecutor shall not give his consent in terms of paragraph (a) if the person concerned is a person in respect of whom the imposition of punishment of imprisonment would be compulsory if he were convicted at such trial.”
 The proviso contained in section 255(b) does not apply in this case because the imposition of punishment of imprisonment was not compulsory for the offence that the accused was convicted of.
 In terms of section 21(1) of the PTDD Act “the person” is described as one within the jurisdiction of the court to which the prosecutor is attached, and is “a person who is dependent on drugs and in consequence thereof squanders his means or injures his health or endangers the peace or in any other manner does harm to his own welfare or the welfare of his family or fails to provide for his own support or for that of any dependant whom he is legally liable to maintain …”
 Whether an accused is a person as referred to in section 21(1) of the PTDD is a question of fact which must be decided in the light of all the circumstances of the case. In the present case the appellant has about eight admitted previous, similar convictions. The first conviction was on 23 September 2002 where he was sentenced to a fine of R600,00 or 3 months’ imprisonment. The second was on 21 April 2005 when he was given an option of a fine of R2 500,00 or 6 months’ imprisonment suspended for 5 years. The third was about a year later on 29 May 2006 when he was given the option of a fine of R600,00 or 60 days’ imprisonment, suspended for 3 years on condition that he was not again convicted of the possession of dagga. The fourth was less than 3 years later, namely on 4 August 2008 when he was given the option of a fine of R500,00 or one month’s imprisonment. The fifth was two months later, on 21 November 2008 when he was given the option of a fine of R500,00 or 30 days’ imprisonment. The sixth was on 6 January 2010 when the accused was sentenced to 4 months’ imprisonment suspended for 3 years on condition that he is not convicted of possessing dagga within the period of suspension. The seventh was on 22 October 2010 and he was sentenced to a fine of R1 000,00. The eighth was on 29 November 2010 and he was sentenced to a fine of R600,00 or 60 days’ imprisonment suspended for 3 years on condition that he must not repeat the same offence. The accused also testified in mitigation that he had a 6 year old child as well as a wife. He was unable to maintain them save for sending them “something” out of the money which he made from a “piece-job” as an informal parking attendant. The accused did not volunteer evidence that he was addicted to dagga (or cannabis) but his record of possessing the substance speaks for itself. He was not convicted of dealing in dagga even though the magistrate to some extent appeared to approach the question of sentence on that assumption.
 Given all the facts it is probable that the accused is a person as described in section 22(1) of the PTDD Act particularly in the light of his rather frequent convictions for possession and the fact that the sentences imposed did not seem to deter him. It appears from the reasons of the magistrate which I have quoted above that addiction is a common problem in that court’s area of jurisdiction.
 The magistrate appears to contend that unless there has been an acknowledgment of addiction and an act of seeking help, there is no duty on the court to determine whether the person is probably a person described in section 21(1), or that it would be of no relevance to determine whether the accused is such a person, if the accused is an older offender with a list of previous convictions for that same offence, because of the attitude of the prosecution and the social workers toward such offenders. In particular, their view that such offenders are not capable of rehabilitation because they are older and despite having had the opportunity to do so they have not sought help themselves. This reasoning is disturbing. It is significant that neither section 255 of the CPA, nor section 21(1) of the PTDD Act, limits the exercise of the presiding officer’s powers or discretion in that manner. The holding of an enquiry is not limited to young offenders or first offenders or offenders with less than one previous conviction. The imposition of such limitations is, in my view, not authorised in terms of the relevant provisions. Furthermore, if that is the policy of the prosecution and the social workers, it has not been acknowledged, or confirmed by the Deputy Director of Public Prosecutions, who has furnished comments and has made recommendations in this matter. In my view, the blanket application of such a policy, without taking into account the facts of each case, constitutes an unlawful limitation on the powers and discretion that ought to be exercised in terms of those provisions. In failing to ascertain whether a person is a person as described in section 21(1) of the PTDD Act, or rigidly applying policies ordained by the social workers, or the prosecution, in a blanket fashion, irrespective of the circumstances of a particular case, does not enhance the administration of justice. There is a duty on presiding officers, prosecutors and social workers to act in terms of and according to the letter of the law.
 The magistrate also seems to draw a distinction between people who are addicted and those who are merely habitual users and seemingly treats the two differently. Such an approach may prove to be problematic because it may entirely prevent the presiding officer from performing the essential duty required by section 255 of the CPA, namely to ascertain whether or not the accused before the court is a person described in section 21(1) of the PTDD Act. Section 255 of the CPA does not require the presiding officer to be satisfied that the person is a drug addict, or merely a habitual user of drugs. The section requires the presiding officer to assess whether the particular accused before him or her is “probably a person described in section 21(1)” of the PTDD Act. A person who habitually possesses a drug, who appears to be undeterred by sentences imposed upon him for such possession and who is not shown to be a dealer is probably a habitual user of the drug, if not an addict. A person described in section 21(1) is not necessarily an addict but need only be dependent on drugs to the extent that, as a consequence thereof, he, inter alia, squanders his means or injures his health or in any other manner harms his own welfare or fails to support himself or his dependants. A person who almost persistently makes himself guilty of the same offence of drug possession, due to its use, is clearly harming his own welfare because being convicted fined and/or imprisoned is not conducive to the welfare of such a person. The consequences of his act of possessing the drug are detrimental not only to his own welfare, but also to that of his dependants and society in general.
 At the stage envisaged in section 255 the magistrate does not have to find that the person is indeed dependent on drugs and that the detrimental effects of his acts are due to such dependence, but merely has to find that he is “probably” such a person. The presiding officer, being of such an opinion, will have to seek the consent of the prosecutor, who in turn will have to consult with a social worker (before giving or refusing such consent), in order to stop the trial and order that an enquiry be held in terms section 22 of the PTDD Act. Once the prosecutor’s consent is sought, the prosecutor is bound to act in accordance with the law, and not arbitrarily, in deciding whether or not to grant such consent. The section requires the prosecutor to consult with the social worker and to take all relevant facts of the particular case into account in deciding whether to consent or not. In turn, the social worker, in consulting with the prosecutor, is duty-bound to give rational input based on the facts of the particular case. The failure to take into account particular facts of individual cases in making decisions or recommendations in terms of section 255 of the CPA, are not consonant with justice and defeat the objects of section 255 of the CPA read with section 21(1) of the PTDD Act. Each case must be dealt with on its own facts.
 In my view the magistrate erred in failing to invoke section 255 of the CPA given the circumstances in this particular case. Depending on the position taken by the prosecutor, after consulting with the social worker, with regard to the facts of this particular case, the magistrate may stop the trial and order an enquiry. What is singularly lacking in this matter was the initial step of assessing, in the light of all of the circumstances of this particular case whether the accused was probably a person as described in section 21(1) of the PTDD Act and then to act in accordance with section 255.
 In order to enhance the administration of justice presiding officers should in assessing whether the accused is probably a person described in section 22(1) of the PTDD Act, and to that end, carry out an investigation in of the past history and present circumstances of the accused, particularly regarding the reason for the accused’s repeated possession of the drug and the impact it has had on the accused’s welfare and those of his dependants and including the cause for the apparent lack of deterrence8. It does not appear from the record that the magistrate did any investigation, particularly after the accused’s previous convictions were proved, in order to determine whether section 255 ought to be invoked. In my view the magistrate erred in that regard. The fact that the accused had multiple previous convictions for possession of dagga and that the sentences imposed seemingly did not deter him necessitated further investigation.
 I am of the view that the conviction is in order, but the sentence ought to be set aside and the matter referred back to the magistrate for the purpose of investigating, in the light of this judgment, whether, in terms of section 255(1) of the CPA, the trail of the accused ought to be stopped and an enquiry be held in terms of section 22 of the PTDD Act.9
 In the result I make the following order:
The conviction of the accused is confirmed.
The sentence is set aside and the matter is referred back to the magistrate to investigate, or reconsider, in the light of this judgment, whether, in terms of section 255(1) of the Criminal Procedure Act, the trial of the accused ought to be stopped and an enquiry be held in terms of section 22 of the Prevention and Treatment of Drug Dependency Act 20 of 1992.
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
E J FRANCIS
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
1 Act No. 140 of 1992.
2 Act No. 51 of 1977.
3 20 of 1992.
7 I should point out that annexed to these reasons was a single page in the matter of S v Mandla Nkosi, indicating, inter alia, that it was submitted to Khampepe J on 8/05/2009 and that the proceedings were certified to appear to be in accordance with justice and the sentence imposed was confirmed. The details and facts of that case are not stated. As a result one is not able to determine whether that case is in any way, or sufficiently, comparable to the present case. In any event, it does not appear as if any written reasons for the judge’s conclusions were furnished in that case. It is not the practice to furnish reasons unless the reviewing judge decides to review or comment on the proceedings or the decision made by the magistrate.
8 Compare in this regard S v Nkosi and Others 1972 (2) SA 753 (T) at 764B-C regarding the magistrate’s duty to fully investigate an unrepresented accused’s history and present circumstances for purposes of mitigation and in order to determine an appropriate sentence.
9 Compare with the order made in S v Walters;S v Van Niekerk;S v Adams (supra) at 751A-C