Olga Carlos Joao Bacar v The State

On 23 November 2012 at about 1800 hours, detectives from CID Drugs received information that the appellant, a 20-year-old Mozambican woman, was selling cocaine. She was located at Chester Court along Fife Avenue, Harare, and taken to her house where a search was conducted in her bedroom. A creamish substance suspected to be cocaine was recovered stashed in her shoes. The appellant initially stated that the substance belonged to her and she used it to lubricate her vagina. Preliminary tests done in her presence confirmed the substance to be cocaine. The substance was sent to forensic laboratory for analysis and confirmed to be cocaine weighing 10 grams with a street value of US$800.00. The appellant was charged with contravening section 156 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as read with s 14(a)(i)(a) of the Dangerous Drugs Act [Chapter 15:02] - unlawfully dealing in a dangerous drug.

• Whether the appellant was in possession of cocaine with the requisite physical control and knowledge (animus possidendi)
• Whether the cocaine was planted on the appellant by police or her ex-boyfriend
• Whether the substance recovered was cocaine or a different substance for personal use
• Whether the evidence proved beyond reasonable doubt that the appellant intended to deal in cocaine
• Whether the sentence imposed was appropriate given the circumstances and statutory provisions

The appeal against both conviction and sentence was dismissed. The original sentence of 36 months imprisonment (with 12 months suspended for 5 years on conditions of good conduct) was upheld. The cocaine was forfeited to the state and the appellant was to be deported to Mozambique after serving her sentence.

To establish criminal possession of dangerous drugs, the prosecution must prove beyond reasonable doubt two elements: (1) that the accused had physical custody or control over the drug, and (2) that the accused had knowledge of the presence of the drug in their possession (animus possidendi). The mere fact that drugs are found in premises where the accused has control, combined with knowledge of their presence, is sufficient to establish possession. Where cocaine is involved, the offense is particularly serious as it is a mood-altering and dangerous drug with serious health and social effects, warranting custodial sentences to discourage use and protect the community.

The court observed that the appellant was fortunate that no enquiry was conducted into whether the offense was committed in aggravating circumstances under s 156(2) of the Criminal Law (Codification and Reform) Act, as cocaine falls within the definition of dangerous drugs other than cannabis, which would have attracted a mandatory minimum sentence of 15-20 years imprisonment. The court noted that the trial court had erred on the side of lenience. The court also commented that imposing a fine for such offenses would trivialize the crime, and that cocaine is even more dangerous than dagga.

This case reinforces the legal principles governing possession of dangerous drugs in Zimbabwean criminal law, particularly the two-element test requiring both physical custody/control and knowledge (animus possidendi). It demonstrates the courts' strict approach to drug offences involving cocaine, treating them more seriously than cannabis offences. The judgment emphasizes the evidentiary standards required to prove possession beyond reasonable doubt and the difficulty of successfully raising defenses of planting or innocent possession. It also illustrates the courts' commitment to imposing custodial sentences for dealing in hard drugs to protect society, particularly youth, from the harmful effects of mood-altering substances.