IN THE HIGH COURT OF LESOTHO In the
Appeal of :-
WALTER M. MGITHI 1st Appellant
MASINGA. 2nd Appellant
Delivered by the Hon. Acting Chief Justice J.L. Kheola
on the 16th day of June, 1986.
The appellants appeared before the Subordinate Court at
Mokhotlong charged with the offence of contravening section 3 (a) of
Medicine Act No. 21 of 1973, it being alleged that on
the 17th March, 1986 and at or near Sani Top Border Post in the
Mokhotlong, the accused dealt in dagga weighing 949
kilo-grams without a permit. They pleaded not guilty to the charge
but were found
guilty as charged and each was sentenced to thirty
(30) months' imprisonment. They are now appealing to this Court
against both conviction
The facts of this case, which are not in dispute, are
that on the 17th day of March, 1986 the truck driven by the first
was stopped by police at Sani Top Border Post. The second
appellant was a
passenger in that vehicle whose Reg. No. was GYC 946T.
The police searched the vehicle in the presence of both appellants
bags and some small bags of dagga were found. The
buck of the truck had a canopy with a partition. The bags of dagga
behind the partition which was sealed in such a way that
it was not easy for one to notice that the canopy was divided into
After the police had noticed that there was a partition
they asked the appellants to open it. The first appellant told the
that the partition could be opened only by breaking it with a
hammer. One of the police officers fetched a hammer from the office
and the partition was smashed. The bags of dagga were found.
The two police officers testified that the appellants
admitted that the dagga was theirs and that they were transporting
evidence ought not to have been admitted because it was a
confession to a policeman which had to be taken down in writing
a magistrate in terms of section 228 (2) of our Criminal
Procedure and Evidence Act 1981. I say the statement made to the
was a confession because the appellants went further to
explain that they had no permit.
At the trial the first appellant deposed that he knew
nothing about the dagga found hidden in the truck. He explained that
night preceding the day on which they were arrested the second
appellant took away the truck and went away with it. He did not know
what he put in it during the night.
The second appellant admitted that on the night in
question he took the truck and drove to some place where he collected
and loaded it on the truck. He said that the first
appellant remained at the hotel when he went to collect the dagga and
about the dagga.
- 3 -
The learned magistrate did not believe the appellants
and rejected their story. Miss Nku, counsel for the Crown, did
not support the conviction on the ground that there were conflicts in
the evidence of the two police witnesses.
I agree that there were
some minor conflicts which could not have affected the conviction of
the first appellant had it not been
because of the inadmissible
confession I have referred to above.
With regard to the conviction of the second appellant I
do not see how he can escape conviction because he made a confession
the trial court.
The appeal by the first appellant against both
conviction and sentence is allowed. The appeal by the second
appellant against both
conviction and sentence is dismissed .
J.L. KHEOLA ACTING CHIEF JUSTICE
10th July, 1986.
For Appellants - Mr. Matlhare For Crown -
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law