IN THE HIGH COURT OF LESOTHO
In the Appeal of :
MLULEKI AUGUSTINE FONANI Appellant
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice B.K. Molai on the 13th day of January, 1988.
This eppeal has already been disposed of on the following reasons.
The appellant was charged before the Subordinate Court of Leribe with contravening S. 3(a) of the Dangerous Medicines Act No. 21 of 1973 on the allegations that on or about 16th September, 1983 and at or near Caltex in the district of Leribe he wrongfully and unlawfully dealt in 28 bags of dagga without a permit. He pleaded not guilty to the charge but was, at the close of the trial, found guilty as charged. A sentence of M1,000 plus 3 years' imprisonment was imposed. The appeal was against both the conviction and sentence on the grounds that the conviction was against the weight of evidence and the sentence too harsh.
In as far as it was relevant the evidence heard by the trial Court was that the police were holding a road block at a road junction next to caltex in Leribe when a van driven by the appellant came along. The police stopped the appellant's van and searched it. They found that the van was loaded with 28 bags of dagga. A permit authorising him to be in possession of the dagga was demanded from the appellant who failed to produce any. The police seized the
dagga and brought it to the police station together with the appellant. The dagga was subsequently weighed in the presence of the appellant and found to weigh 544 kg. He was cautioned and charged as aforesaid.
According to the police officers when he was asked about the vehicle the appellant explained that he had borrowed it from some other person and did not know that it was loaded with dagga. However, in his evidence in Court the appellant testified that whilst at Leribe hotel he was approached by two people with a request to accompany them to a certain place along the Butha-Buthe/ Leribe road where he would repair their stranded vehicle He obliged, and set out for the stranded vehicle in another vehicle driven by one of those two people. After repairing the stranded vehicle his two companions drove away in their vehicle leaving him with the one he had just repaired. He was following them in that vehicle when the police stopped him at the road block. He did not, however, know that the vehicle was loaded with dagga. Appellant denied, therefore, the police story that he told them that he had borrowed the vehicle from some other person.
The trial magistrate before whom the appellant and the other witnesses testified rejected the appellant's evidence as false and accepted as the truth that of the Crown witnesses. I see no good reason why the three (3) police officers who testified in support of the Crown case would falsify the appellant's explanation as to how he came to be driving the vehicle in which dagga was being transported. In my view the police officers testified to the truth when they said the appellant had explained that he had borrowed the vehicle from some other person. His evidence in Court that he was left with the vehicle by people who had requested him to repair it sounded unconvincing and was, in my opinion, nothing but an afterthought on the part of the applicant. In the circumstances I found nothing unreasonable in the trial magistrate rejecting, as he did, the appellant's evidence and accepting that of the Crown witnesses.
According to his own evidence in Court it seems to me that the appellant's explanation to the police that he had borrowed the vehicle from some other person was a lie. That being so, there could be no doubt that the appellant was found in possession of the 28 bags of dagga.
If he did not intend possession of the dagga the appellant would have taken it out of the vehicle he was driving. He did not. Wherefore, I came to the conclusion that the appellant had the requisite animus possessendi As had been pointed out earlier the dagga found in the possession of the appellant weighed 544 kg. In terms of the provisions of S. 30(1)(a) of the Dangerous Medicines Act 21 of 1973 there was a presumption that the appellant was dealing in dagga. He was, therefore, correctly found guilty as charged and I accordingly dismissed his appeal against the conviction.
Although in mitigation the appellant requested the Court to consider the fact that he was a first offender the trial magistrate made no mention of that in his written reasons for sentence. Where the Court is invited to consider personal factors in mitigation the trial magistrate must do so and the fact that he did must be reflected in the proceedings. Apart from the other factors considered by the Court a quo on behalf of the appellant I also took into account that the appellant was a first offender. The sentence of M1,000 plus 3 years' imprisonment was set aside and substituted by that of M600 or 3 years' imprisonment.
It was ordered that the appeal deposit be refunded to the appellant.
J U D G E.
13th January, 1988.
For Appellant : Mr. Ramolibeli
For Crown : Miss Nku.
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