Agriculture student 'smokes out' dagga possession record

A Stellenbosch University agriculture student has breathed a huge sigh of relief after the high court set aside his criminal record for dagga possession.

What started like a blissful night at the Rocking The Daisies festival in 2015 became a headache for Hano Mong as he tried to have his criminal record expunged – years later.

Mong pulled out all the stops in his bid to have the blight on his name removed and sued the director of public prosecutions and the police minister last year.

He took the fight to the high court in Cape Town – and after a protracted legal battle, managed to have the criminal record erased and the court ordered that his R500 admission of guilt fine be paid back to him last month.

According to the judgment, Mong and two friends were enjoying the annual festival outside Darling in the Western Cape, along with “thousands of other young people” on October 1 2015, when police barged into their tent.

Sgt Emile Boumeester, who was on duty that night, told the court that police followed a “strong smell of dagga, coming from the tent” and upon searching it they found  a “packet of loose dagga under the table”.

“[Mong] and his two male friends then proceeded to discuss the matter amongst themselves, and the two male persons later indicated that it belonged to the [Mong],” the judgment reads.

“[Mong] had not denied or disputed this accusation and he was then accordingly arrested and taken to the police station [in] Darling. There his constitutional rights were fully explained to him, as is set out in the standard form… which was signed by [Mong].”

Boumeester said Mong paid an admission of guilt fine and the consequences of doing so were fully explained to him. But the court found – which was Mong’s main argument – that the conviction should have been confirmed by a magistrate before the clerk of court entered the admission of guilt fine into the criminal record book. Mong also denied that he was ever in possession of dagga, or that he admitted it was his.

“He admitted, however, that he paid the… fine and said that he had not known that by paying the fine he would acquire a criminal record,” the judgment reads.

“Although he admitted to paying the... fine, he had no recollection of signing any document. He was still under arrest when he was given the option to pay the… fine and when he did so.”

Overturning the conviction and sentence, Judge Robert Henney said: “In the result therefore, the entry of the conviction and sentence on to the criminal record book and into the register of criminal convictions of the South African Police Service falls to be set aside.”

Henney ordered the prosecution to “make a decision whether to prosecute [Mong] afresh”.

Eric Ntabazalila, spokesperson for the NPA in the province, said they would not appeal the ruling and would not prosecute Mong again.

Lawyer Barry Varkel said the ruling was unlikely to open floodgates for lawsuits.

“Each case would have to be taken on its own unique circumstances,” said Varkel.

“High court litigation is not for poor people. Admission of guilt fines, in my view, seem innocuous enough at first sight, yet they possess a scorpion-like sting, which will come back to bite an accused down the line, when the accused then realises he/she has a criminal record which will prevent international travel, a decent job and other first-world opportunities.”