HIGH COURT OF LESOTHO
MOSES DABULA APPELLANT
disposed of this matter on 13th March, 2001 and intimated that full
reasons for my decision would be filed, in due course. These now
accused (herein after referred to as appellant) appeared before a
Magistrate with First Class Powers charged with a crime of
contravening section 3 (a) of the Dangerous Medicines Act, 1973, it
being alleged that on or about 13th January 2001 and at or near
ha-Mothebesoane in the district of Berea, he dealt with 216 bags of
dagga weighing 2,247.1 kg in mass, without a permit authorising him
to do so.
was put to him, the appellant pleaded guilty to the charge. The
Prosecutor accepted "the plea of guilty" tendered by the
appellant and proceeded to outline the evidence, in his possession,
in accordance with the provisions of the Criminal Procedure and
Evidence Act, 1981 of which S.240 (l)(b) reads, in part:
(1) If a person charged with any offence before any Court pleads
guilty to that offence or to an offence of which he might be found
guilty on that charge, and the Prosecutor accepts that plea the Court
it is a subordinate Court, and the Prosecutor states the facts
disclosed by the evidence, in his possession, the Court shall, after
recording such facts, ask the person whether he admits them, and if
he does, bring in a verdict without hearing any evidence".
perhaps, necessary to mention that when, on 2nd February 2001, this
matter was placed before me for hearing, I found that no reasons for
judgment had been filed. The proceedings had just been rushed to the
High Court without affording the trial Magistrate the opportunity to
write reasons for judgment.
common knowledge that there are no recording machines for use in the
Magistrate Courts. The proceedings are recorded by the trial
Magistrate in long hand. After the final addresses by the litigants
or their legal representatives, the trial Magistrate considers the
evidence, makes findings thereon, applies the law and returns a
verdict impromptu. Unlike
High Court, the trial Magistrate does not always write judgments
after the completion of every case. He does, however, deliver verbal
judgements, in open Court. In this way the trial Magistrate is able
to dispose of several cases a day.
when an appeal is lodged, it is important that the trial Magistrate
reduces to writing the judgment he had delivered verbally, in open
Court, and the written judgment would form part of the proceedings.
It is only in this way that the Appellate Court will be able to know
how the trial Magistrate had approached the case.
for the above reasons that on 2nd February, 2001,I handed the file,
in this matter, back to the Registrar with the directives that the
proceedings should be returned to the trial Magistrate for written
reasons for judgment, which would form part of the proceedings. The
trial Magistrate has now complied with the directives.
nutshell, the facts (and these were admitted as correct by the
Appellant) disclosed by the outlining of the evidence which the
Public Prosecutor had, in his possession, were that on the day in
question, 13th January, 2001 the police received information
following which they proceeded to a place called ha-Mothebesoane.
They found the appellant and a big truck which was loaded with a
large number of bags. The registration numbers of the truck were OIL
101-812 and it was pulling a trailer with registration numbers OIL
94-72. According to the explanation of the
the truck was the property of his employers.
permission of the appellant, the police inspected the contents of the
bags which were loaded on his truck and found that they were dagga.
The police demanded, from the appellant, a permit authorising him to
be in possession of the dagga. He failed to produce any such permit.
The police took possession of the ignition key of the truck, together
with its cargo of dagga which was subsequently weighed and found to
weigh 2,247.1 kg. They were handed in as exh "1",
collectively. The appellant was cautioned, arrested and charged as
Magistrate considered the evidence, outlined by the Public
Prosecutor. He returned a verdict of "guilty as charged"
and, rightly so, in my view, as it will become clear as this judgment
be no doubt that the dagga, with which the appellant was found in
possession of, exceeded 115 grams, in mass. That being so, S. 30
(1)(a) of the Dangerous Medicines Act, 1973 under which the appellant
was charged, clearly provided, in part:
"30. (l)(a) If in any prosecution for an offence under section 3
it is proved that the accused was found in possession of dagga (also
known as intsangu, matekoane, cannabis or Indian hemp) exceeding 115
grams in mass, it shall be presumed that the accused dealt in such
dagga.............." (My underlinings)
underscored the words "shall be presumed" in the above
cited S. 30 (l)(a) of the Dangerous Medicines Act, Supra, to indicate
my view that because of the quantity of dagga found in his
possession, there was a legal presumption that the appellant was
dealing in dagga. However, it must be mentioned that mere dealing in
dagga is, per se, not a criminal offence. The offence is created by
dealing in dagga without a permit authorising a person to deal in
dagga. In the instant case, there was evidence, admitted as correct
by the appellant, that when the police demanded from him a permit
authorising him to deal in dagga the appellant failed to produce any
such permit. In dealing in dagga, as he did, the appellant, no doubt,
committed the offence of which he was correctly convicted, under the
fairness to him, it must be mentioned that, at the commencement of
the hearing of this matter, Mr, Fosa, counsel for the appellant, told
the court that he was abandoning the appeal against the conviction.
Only the appeal against the sentence would, therefore, be argued.
his conviction, the appellant was sentenced to serve a term of 2
years imprisonment, without an option of a fine. I was told, in
argument, that in sentencing the appellant to a term of imprisonment,
with no option of a fine, as he did, the trial Magistrate misdirected
himself. He should have given the Appellant an option of a fine, in
the circumstances of the case. It is important to observe, however,
that S.3 of the Dangerous Medicines Act, 1973 under which the
appellant was charged provided, in part:
"3. Notwithstanding anything to the contrary in any other law
contained, any person
(a) who deals in any prohibited medicine or any plant from which such
medicine can be manufactured; or
(d) ...........shall be guilty of an offence and liable on
the case of a first conviction for a contravention of any provision
of paragraphs (a) or (c) to a fine not exceeding one thousand rand
or to imprisonment for a period not exceeding three years or to both
such fine and imprisonment." (My underlining)
have underscored the word "or" in the above cited section 3
of the Dangerous Medicines Act, 1973 to indicate my view that, by the
use of the word, the trial Magistrate was given two alternatives.
viz. that he could either sentence the appellant to pay a fine or, in
the alternative, sentence him to serve a term of imprisonment, with
no option of a fine. In his discretion, the trial Magistrate opted
for the second alternative i.e a term of imprisonment, with no option
of a fine. In my view, in so doing, the trial Magistrate exercised
the discretionary powers vested in him, by the provisions of S. 3
(a)(d)(i) of the Dangerous Medicines Act, 1973. He could not,
therefore, be faulted.
further argued that the trial Magistrate had misdirected himself by
not considering the mitigation factors that had been raised on behalf
It will be observed, however, that according to the record of
proceedings, the trial Magistrate sentenced the Appellant after he
had afforded him the opportunity to address the court in mitigation.
Indeed, from para. 5 of his reasons for sentence, the trial
Magistrate specifically said, inter alia
"Despite the prayers advanced by the accused in mitigation
regarding his age and work responsibility, the court considered the
quantity of dagga involved and the manner in which it was
transported, it would not be meeting the ends of justice in the
opinion of the correct to give a sentence which is a bluff and
slapdash without considering the deterrent effect......"
I fail to
understand the purpose of affording the appellant the opportunity to
address the court in mitigation if it were not to enable it to assess
the appropriate punishment to be imposed on him after taking into
account the factors he had raised in mitigation of his sentence. That
being so, I had no hesitation in holding that there were no merits in
the arguments which I accordingly rejected.
result, the view that I took was that the appeal ought not to
succeed. It was, consequently dismissed.
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