IN THE HIGH COURT Of LESOTHO
In the Appeal of –
DUMA JAXA Appellant
Delivered by the Honourable Mr, Justice J.L. Kheola on the 22nd day of February, 1988
The appellant appeared before the Senior Resident Magistrate of Maseru charged with the offence of contravening section 3 (a) of Dangerous Medicine Act No.21 of 1973, it being alleged that on the 8th October, 1987 and at or near Khorong ha Nchela in the district of Maseru the appellant unlawfully dealt in dagga weighing 1864.08 kilograms without a permit. He pleaded guilty to the charge and after a summary of the facts of the case was, given by the public prosecutor he was convicted and sentenced to three (3) years' imprisonment.
The appeal is against the conviction and sentence on the grounds that the facts outlined by the public prosecutor did not disclose any offence, and that the sentence passed evokes a sense of shock, and that in passing the sentence the trial court failed to properly consider the mitigating factors raised by the appellant.
Before considering the grounds of appeal I think it is convenient at this stage to state what the facts were. On the 8th October, 1987 S/Lt. Khoase, Sgt. Manosa and Private Marosi were on their way to Ha Matholoana from Maseru. At about 11.00 p.m. they were at Ha Nchela when they saw a light delivery van with Reg. XE 3121 which was followed by a half truck with Reg. No. C 1388. They stopped both vehicles and searched them. The appellant was the driver of C '388 and when asked what he had loaded on his truck, he made an explanation.
They searched the truck and found that it was loaded with 108 bags of dagga. He did not have a permit authorizing him to either possess or to deal in dagga. He was charged with unlawful dealing in dagga and was taken to the charge office together with the dagga and the vehicle. The dagga was weighed in his presence and its weight was 1864.08 kilograms.
Mr. Mohau argued on behalf of the appellant that the facts stated by the public prosecutor did not disclose an offence in that it was stated that the appellant gave an explanation without telling the court exactly what he said. He submitted that the explanation could have been innocent and asked this court to set aside the conviction. He is actually asking this Court to speculate because he does not even know what explanation was given.
The offence created by section 3 (a) of Act No.21/73 is a very simple one to prove. The Crown has to prove that the appellant was found in possession of dagga exceeding 115 grams in mass, it shall then be presumed that the appellant dealt in dagga unless the contrary is proved. See Section 30 (1) (a) of the Act. This presumption was not rebutted by the appellant and yet he was found in the possession of 1864.08 kilograms.
The second presumption is that once it is proved that the appellant was upon or in charge of, or that he accompanied any conveyance on or in which any dependence - producing medicine or any plant from which such medicine could be manafactured, was found, it shall be presumed that the appellant dealt in such medicine or plant unless the contrary is proved. The appellant failed to rebut this presumption.
Section 272 of the Criminal Procedure and Evidence Act 1981 also places the onus on the appellant to prove that he had the necessary permit.
The appeal against conviction is dismissed.
The appeal against sentence is that in passing sentence the learned Senior Resident Magistrate did not consider the mitigating factors advance by the appellant. It is true that there is nothing in the record to show that the trial court took anything into account. There are many decisions of this Court in which it has been stated and emphasized that before passing sentence magistrates must give reasons for sentence. Magistrates are bound by the decisions of this Court and must follows them.
In mitigation of sentence the appellant said he was a first offender; that he has three children and a wife to support, that the owner of the truck ran away when the police stopped the truck, that he was taking the dagga to Cape Town in order to earn a living .
I must point out that no one is allowed by law to earn a living by unlawful means. The appellant ought to have thought of his children and wife before he committed the offence. This is a very
serious offence because it involves one of the largest amounts of dagga ever found in the possession of the accused persons who have appeared before this Court.
In a recent Review Order No. 3/88 Rex v. Kuenane and others (unreported) the accused were convicted of dealing in dagga weighing 178 kilograms. They were sentenced to two (2) years' imprisonment by this Court. In the present case the appellant was convicted of dealing in an amount more than ten times the amount in the review referred to above.
I have taken into account that the appellant is a first offender but because of the largest amount of dagga involved, I do not propose to interfere with the sentence imposed by the court a quo.
The appeal against sentence is dismissed.
22nd February, 1988.
For Appellant - Mr. Mohau
For Crown - Mr. Mdhluli.
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