CRI/A/86/82

IN THE HIGH COURT OF LESOTHO
In the Appeal of
:

PETER MOLAI Appellant

v
REX Respondent

REASONS FOR JUDGMENT

Filed by the Hon. Chief Justice, Mr. Justice T.S.Cotran
on the 9th day of February, 1983

Late Doting of this appeal is hereby condoned*

The appeal has been allowed on 7th February 1983 and my
reasons follow :

The appellant, who purported to have pleaded guilty to
the unlawful possession of dagga c/o to s. 3(b) of the Dangerous
Medicines
Act 1973, was found guilty as charged and fined M5 or 5
days imprisonment in default by a Class III magistrate sitting at
Leribe.
He paid the fine. The Resident Magistrate who reviewed the
case (Mr.Mophethe) thought the conviction and sentence were in
accordance
with real and substantial justice, but in terms of s.26(l)
of the Act he ordered the appellant's vehicle on which the dagga was
found
to be forfeited to the Crown. - The trial magistrate did not
make this order although it is mandatory. The appellant found this
out
after time for the appeal had elapsed because the police refused
to release the vehicle until the appellant proved ownership and
this
took him some time.

The appellant was unrepresented.

The facts as outlined by the public prosecutor reveal
that the appellant, who was driving a Mazda van, was stopped, as were
other
vehicles, by a police road block. His vehicle was searched.
Near the driver's seat the police found one seed of dagga. The police
officer (whose means of knowledge of the substance or his experience
in recognising the substance was not mentioned) showed him the
seed
and the appellant made an explanation. What explanation he made has
not been disclosed

/but

-2-

but the prosecutor boldly told the magistrate that "the
Crown evidence would show that the seed belongs to the accused".
The public prosecutor admitted however that the appellant "operated"
the van by which expression I take him to mean that
he,the appellant,
was not invariably the only person in the world who could have been,
at one time or another, inside this vehicle.
A passenger, a family
member, or a friend, could also have been on it.

The magistrate found "as a fact" that the
appellant "knew" about the presence of the dagga seed and
that he "knew"
it was dagga. There is not a scintilla of
evidence of that aspect in the prosecutor's "outline of the
facts" and is a supposition
which is quite untenable.

The appellant in the grounds of appeal (drawn by
himself) says he never knew the seed was in his vehicle though it is
a fact that
it was found in it. He further adds that he carries goods
for the public and had no idea how this seed came to be in the floor
of
the cabin of the van. Indeed a gust of wind could have blown it
into the van.

I am convinced that no offence whatsoever has been
disclosed on the facts as outlined. (See R. v. Monyane 1980(2) LLR
309 at 311).
The magistrate should have entered a plea of Not Guilty
and proceeded with the trial. The appellant could be convicted only
if there
was evidence, direct or circumstantial, as would have proved
beyond reasonable doubt that he knew both of the existence of the
seed
and its nature.

Mr. Peete for the Crown does not support the conviction
but his submission is that the Act does make a distinction on
quantity (s.30(1)(a))
and that possession of one seed is too trivial
and brings the maxim de minimis non curet lex into operation.

I prefer to allow the appeal on the ground mentioned
earlier. I can envisage circumstances where possession of one seed
may not be
de minimis.

The conviction sentence and order were accordingly
set
aside. The fine was ordered to be refunded to the
appellant
and his vehicle released to him. The appeal fee should
also be
refunded.

CHIEF JUSTICE

For Appellant: Adv.G.N.Mofolo 9th February, 1983