CRI/A/7/81

IN THE HIGH COURT OF LESOTHO.

In the Appeal of :

JOHN XUMALO Appellant

v
REX Respondent

REASONS FOR SUMMARY DISMISSAL OF AN APPEAL pursuant to
sec. 320 A of the Criminal Procedure

and Evidence Proclamation 59 of 1938.

Filed by the Hon. Mr. Justice M.P. Mofokeng on the
16th day of March, 1981.

The appellant was convicted of dealing in dagga,
contrary to the provisions of the Dangerous Medicine Act 21 of 1973.
The quantity
involved was 158.5 Kg. He was sentenced by the Senior
Resident Magistrate to undergo eighteen (18) months' imprisonment and
in addition
an order was made forfeiting the vehicle which had been
used in the conveyance of the said dagga, to the Crown.

The appellant appeals to this Court on the following
grounds.

1.

The sentence of 18 months' imprisonment without an
option of a fine was too harsh in the circumstances.

2.

The learned Magistrate should have imposed an option of
a fine in the particular circumstances of the ease,

3.

An order that EXH."2" (i.e. the vehicle) be
forfeited to the Crown was too harsh,

/2.

- 2 -

When the charge was read and explained to the appellant,
he pleaded guilty. The Public Prosecutor accepted his plea and in
terms
of the provisions of sec. 235(1) the Criminal Procedure &
Evidence Proclamation 59 of 1938 proceeded to disclose the evidence
in his confession. The learned Senior Resident Magistrate pursuant
to the provisions of the said section asked the appellant if
he
agreed with the facts as outlined by the public prosecutor to which
he replied in the affirmative. These then are the facts:

"On 12/2/81 certain policemen were travelling from
T.Y. to Leribe in a police van. When they were at Likhetlane River a
motor
vehicle with registration numbers ND H 3361 overtook them. As
the vehicle was in a very high speed they suspected it and followed
it. They stopped the vehicle here in Hlotse. The vehicle was driven
by the accused and he was accompanied by one passenger. When
the
police identified themselves as police the passenger got out and ran
away. One policeman chased the fleeing man while another
policeman
remained with accused. The policeman asked accused what the vehicle
was carrying and accused said it was carrying dagga.
The police
opened the panel van and found that it contained eleven bags of
dagga. Accused failed to produce a permit authorising
him to possess
or deal in dagga. He was cautioned and charged.

The dagga was later weighed in the presence of accused
and its weight was 158.5 Kg. "The dagga is here before court
together
with the motor vehicle. (Dagga - marked Ex. 1; motor
vehicle - marked Exh.2)"

The appellant was then convicted as charged. In my
view, the appellant was correctly convicted. The amount of dagga
found in his
possession was far too large. This was definitely

/3.

- 3 -

a case where the dagga was going to be sold at
astronomical profit Heavy fines are paid without the slightest
difficulty for the
business of smuggling dagga must be carried on
with as little en interruption as possible The fines, therefore, do
no longer act
as deterrence This Court generally supports
convictions imposed by magistrates who send first offenders to prison
in cases where
the quantity of dagga involved, such as here, shows
clearly, that the expected profits would be fantastic (See Rex v
Joseph Hlapho, Review Order 32/79 (unreported)) The quantity of
dagga smuggled is too large This type of crime is too prevalent in
the learned
Senior Resident Magistrate's district He was therefore
entitled to take that factor into consideration in determining the
suitability
of sentence In my view, there is nothing harsh about the
sentence; if anything it is on the lenient side However, the Court
aquo has a discretion as to what sentence to impose on an
accused especially if the crime with which he has been convicted is
prevalent
in its district

Finally it is obligatory in terms of section 26 (1) (b)
to declare forfeited to the Crown any "conveyance or receptacle
or other
thing which was used for the purpose of or in connection
with the commission of the offence "

There is therefore no sufficient ground for this Court
to interfere with the judgment of the trial Court and the appeal is
summarily
dismissed in terms of sec 320 A of the Proclamation
(supra)

The Registrar of this Court is hereby ordered to inform
the appellant the decision arrived at

M.P MOFOKENG

JUDGE.

16th March, 1981