On 12 November 1998, Captain van der Merwe received a fax informing him that a parcel of drugs was to be routed via London to Ms Z B Muholi at her work address (PX Kaserne, Fast Forward). The parcel arrived on 16 November and was collected by Van der Merwe. Upon opening it, he found a baby bath, baby clothes, a letter purporting to be from the Salvation Army congratulating Muholi on a baby's birth, and 494.3 grams of heroin (valued over R200,000) hidden in a slit in the side of the parcel. On 18 November, police officers dressed as Fedex delivery personnel conducted a controlled delivery to Muholi at her workplace. Muholi, who worked in human resources at Fast Forward and assisted with deliveries, signed for the parcel. She was immediately arrested and the parcel was never handed to her. Muholi denied knowledge of the parcel's contents, stated she had never had a baby, and had no connection to the Salvation Army. A search of her flat revealed nothing incriminating.
The appeal was upheld. The conviction was set aside.
For a conviction of drug dealing in terms of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, where drugs have been sent to an accused who has never acquired possession of the drug in question, it must be proved beyond reasonable doubt that the accused had knowledge that drugs were being sent to him or her. Where there is more than one reasonable inference to be drawn from circumstantial evidence regarding the knowledge of the accused, the contravention of section 5(b) of the Act is not proved beyond a reasonable doubt. The Blom test for drawing inferences from circumstantial evidence requires that proved facts exclude every reasonable inference save the one sought to be drawn; if other reasonable inferences exist, there must be doubt as to the correctness of the inference of guilt.
The court noted that had Muholi signed for the parcel knowing that it contained heroin, she would have met the definition of dealing in drugs set out in the Act. The court also observed that just as a baby bath and clothes had been placed in the parcel as a decoy, the name and work address of Muholi could have been used as a decoy by the intended recipient to disguise their identity. A co-worker at Fast Forward expecting the parcel might have planned to take control of it after Muholi signed for it. The court acknowledged that viewing the facts cumulatively might make it probable that Muholi was the intended recipient and knew the parcel contained heroin, but probability does not equate to proof beyond reasonable doubt.
This case is significant in South African criminal law and drug trafficking jurisprudence as it clarifies the requirements for proving drug dealing under the Drugs and Drug Trafficking Act 140 of 1992. It establishes that where an accused never acquires possession of drugs sent to them, knowledge that drugs were being sent is an essential element of the offence. The judgment reinforces the strict application of the Blom test for circumstantial evidence and demonstrates that mere suspicion or probability is insufficient for conviction - the State must exclude all other reasonable inferences. It serves as an important safeguard against wrongful convictions in cases where an accused's name and address may have been used without their knowledge as part of a drug trafficking scheme.