CRI/A/67/88

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

'MATHAABE
LETSIE

V

REX

Before
the Honourable the Chief Justice Mr. Justice B. P. Cullinan on the
31st day of May. 1989

JUDGMENT

The
accused was convicted by the Subordinate Court of the Second Class
for the Maseru District of dealing in a plant from which
a prohibited
medicine can be manufactured, namely 124 plants of dagga, and was
sentenced to a fine of M100 or six months imprisonment
in default of
payment thereof, "suspended for 1 year conditionally";

In
passing, I observe that the provisions of section 314 of the Criminal
Procedure and Evidence Act 1981, and in particular subsections
(3)
and (4) thereof, do not embrace the suspension of a period of
imprisonment in default of payment of a fine. The Court may only

suspend the operation of a sentence of certain date and duration.
Imprisonment in default of payment of a fine is provisional and

uncertain:

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it may
never take effect if the fine is paid. The Court cannot suspend the
operation of a sentence which may never come into operation.

In any
event, police found the dagga growing in the front garden of the
house occupied by the accused and her hospitalized husband.,
The
dagga was growing prominently in the front rather than the back
garden, in full view of the public on the roadway, in front
of the
house. The evidence established that the police called twice at the
accused's home that day. The first time she was not
present. The
police discovered the dagga on their second visit

The
accused testified that she suspected her brother-in-law of growing
the dagga. The evidence indicated that she had a gardner:
a
reasonable inference is that he grew it.

The
learned trial Magistrate relied upon the presumptions in section
30(1) (a) and (b) of the Dangerous Medicines Act, The first
of those
deals with the possession of dagga exceeding 115 grams in mass which,
as I see it, did not apply. In any event "possessions"

connotes not merely physical possession, but also the knowledge of
the nature of that possessed. Similarly the presumption under
section
30(1) (b) concerns the "owner, occupier, manager or person in
charge of cultivated land". While the accused could
be regarded
as part-owner or part-occupier of the land, with her debilitated
husband, the presumption nonetheless depends on the
fact that the
accused "was aware or could reasonably have been expected to
have been aware" of the existence of the dagga
plants on the
land. Here

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the
accused was aware of the existence of the plants, but again, as 1 see
it, such awareness, for the presumption to operate, must
include
knowledge of the nature of the plant That fact must be proved beyond
reasonable doubt before the presumption can operate.

In this
respect the learned trial magistrate in a ruling that there was a
case to answer, said that

" In the light of the fact that accused's husband is
incapacitated, it would be assumed that any major decisions rest upon

the accused in their home, and it is the feeling of this court that
accused has been properly charged and she has a case to answer.
"

Again in
her reasoned judgment the learned trial Magistrate observed that

" .... it is unlikely that accused could have let this plant
which do not even flower in the real sense of the word, and they
lack
fragrance, to grow in her front yard and to such massive extent".

I do not
see that such assumptions were established beyond reasonable doubt, I
cannot then see how the statutory presumptions would
operate,
shifting the onus on to the accused.,

I am not
satisfied that had the learned trial Magistrate directed herself
correctly in the matter that she would inevitably have
convicted the
accused. It would be unsafe to allow the conviction to stand. The
conviction and A

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sentence
in the court below are set aside and the accused is acquitted

Delivered
at Maseru this 31st day of May 1989.

(B. P.
CULLINAN)

CHIEF
JUSTICE