CRI/A/57/87

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

LANUTANI
ELIAS CHAOKE Appellant

Versus

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 13th day of October,
1987

The
appellant was convicted on his own plea on 13 May 1987 by the
Resident Magistrate at Butha-Buthe of the offence of dealing in
a
prohibited medicine or plant c/s 3(a) of the Dangerous Medicines Act,
1973. He was sentenced to imprisonment for two years and
he has
appealed against sentence. His co-accused was merely cautioned

The
appellant is a Tswana from Carltonville R S A aged 27 years.
According to the facts outlined to the magistrate's court by the

prosecutor the appellant was driving a S.A registered van when he was
stopped at a police road-block at Tale at 6.00 a.m on 13
May 1987
(the same day that he was brought to court) When asked what he was
carrying in the van the appellant told the police that
it was dagga.
On checking the police found 25 bags of dagga weighing a total of 175
kgs. This was exhibited in the court. The appellant
was asked to
produce

2

a permit
but he was unable to do so. The other female 'accused was a passenger
in the vehicle.

These
facts were agreed and admitted by the appellant and he was duly
convicted and commited to prison. A week later Mr. Sooknanan
applied
for his release on bail pending an appeal. In spite of the fact that
it was stated at the time that the appellant would
be going back to
South Africa, he was released on bail. He was not ordered to report
regularly (or at all) to the court Nor was
he even required to
deposit cash bail. No reason were given for releasing him.

In fact
he should not have been released on bail at all in my opinion. He had
pleaded guilty to a serious offence and his prison
sentence was not a
short one proper place for him was in prison while awaiting the
hearing of his appeal. As it was he was not
present for the hearing
of this appeal. Bail conditions must be strictly imposed and set out
and must include a require ment to
report in regularly so that the
court can keep track of the person bailed.

Although
the appellant pleaded guilty and he thus cannot appeal against
conviction, Mr. Sooknanan asked this Court to look at the
conviction
and consider reviewire or revising it on grounds of irregularity. The
main objection being that there was no interpreter
in the lower court
and the appellant did not understand the charge properly. The lower
court record states, before the pleas were
taken

3

"The accused say they understand Sesotho well The charge is
read, interpreted and explained to accused "

The
charge sheet shows "nil" against the place where the name
of the interpreter is inserted. Obviously the magistrate
should have
recorded this fact and the reason for the absence of the court
interpreter. Pre­sumably the magistrate acted as
his own
interpreter. May be he conducted the proceedings in Sesotho Again
this should have been stated and explained on the record

Clearly a
magistrate ought not to act as his own interpreter during an actual
trial so as to avoid any accusation or feeling that
he might have
been biased or mistaken in the way he interpreted what the accused or
a witness said. The best interpreter is obviously
one who is neutral
and who has no obvious interest in the case and no other part to play
in it

Neither
the Criminal Procedure and Evidence Act, 1981,nor the Subordinate
Courts Proclamation specifically required that the proceedings
be
conducted in English But, whatever language the proceedings are
conducted in, the magistrate should record them in English The
matter
is really one of convenience. If the accused, the prosecutor, the
witnesses and the magistrate all speak Sesotho there is
really no
point in wasting time having the oral proceedings translated into
English, particularly where the accused has pleaded
guilty. Otherwise
the evidence can be given in Sesotho and recorded by the magistrate
in English If the accused or his advocate

4

or a
witness do not speak Sesotho then clearly an inter­preter must be
used.

In the
present case the accused/appellant was a Tswana but, according to the
record, he claimed that he understood Sesotho well.
There is no
allegation by the appellant himself that he was not able to
understand the proceedings in the lower court. The grounds
of appeal,
drafted by Mr Sooknanan, make such an allegation but it is not
supported by an affidavit of the appellant to that effect,
which it
surely ought to have been if he was relying upon such an allegation.

In the
absence of that I prefer to accept the magistrate's record that the
appellant satisfied him that he understood Sesotho well
enough in the
circumstances

The fact
that the appellant said in mitigation that he was hired to drive the
vehicle carrying the dagga is no defence, especially
when he knew
what load the vehicle was carrying. In the facts related by the
pro­secutor, the appellant himself told the police
that it was
dagga, so he was not ignorant of the fact nor was he acting
innocently. In law he was in possession of it and also
transporting
it.

Section
30(1)(a) of the Act provides that if the accused is found in
possession of more than 115 grams of dagga "it shall be
presumed
that the accused dealt in such dagga unless the contrary is proved."
A similar presumption is made under s.30(1)(d)
if the accused
con­veyed the dagga. The appellant was therefore in a very

5

precarious
position, for the quantity found in his pos­session and being
conveyed by him was 175 kgs, many times the stipulated
amount. I
therefore cannot agree with Mr. Sooknanan's submission that the
appellant's statement in mitigation that he was hired
was an
acceptable defence to the charge. He was hired to commit this offence
just as someone else might be hired to commit murder
or robbery It is
no defence at all.

Mr.
Sooknanan's next point was that, if the appellant was hired, the
person who hired him may have had a valid permit. But this
is pure
speculation The appellant has not said this and there is no affidavit
to that effect from anyone. Section 28(1) of the
Act provides that a
person charged with not being in possession of a licence, permit, etc
shall be deemed not to be in possession
of it unless he proves the
contrary The onus of proof is placed on the accused here. It was not
discharged by the appellant

The final
ground of appeal refers to the facts given to the court by the
prosecutor in which he des­cribed how the police stopped
the
vehicle and questioned the appellant, who told him that the vehicle
was carrying dagga and that he had no permit. Mr. Sooknanan
submitted
that this amounted to a confession to the police which is
inadmissible "in evidence" under s. 228(2) of the
Criminal
Procedure & Evidence Act 1981.

But the
facts given to the court by a prosecutor after a plea of guilty are
not evidence. The prosecutor is not on oath, he is not,
and cannot
be, a witness He is merely outlining the facts of the case so as to
enable

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the
magistrate to satisfy himself that the offence was committed and to
assist him in deciding upon a suitable sentence In such
circumstances
I consider that it is perfectly proper for the prosecutor to inform
the court what occurred between the appellant
and the police. The
same facts were admitted by the appellant.

One other
matter which I will touch on briefly is that Mr. Sooknanan commenced
his submissions by complaining that the magistirate
had given no
reasons for his judgment But, as I pointed out, there is no judgment
after a pled of guilty, merely a verdict, which
is guilty or not
guilty No reasons are required for a conviction at that stage. Some
magistrates do misleadingly record and head
their verdicts in such
cases as 'judgments" but they are not so in fact. Reasons must
always be given in judgments and when
awarding sentences of course.

Having
considered these various grounds of appeal I am satisfied that the
appellant was properly convicted and I can find no good
reason to
interfere with that conviction.

Turning
now to the appeal against the sentence of imprisonment for two years,
Mr. Sooknanan submitted that it was so severe that
it induced a sense
of shock. He added that the appellant was only the driver and not the
dealer. The appellant himself said that
he was hired by which he may
have meant that he was in fact just the drive But the rebuttable
presumption or law under s 30(1)(d)
of the Act is that, by carrying
so much dagga, he is taken to be a dealer A made statement in
mitigation is not

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proof to
the contrary, particularly as the appellant knew at the time exactly
what he was carrying in the vehicle.

Mr.
Qhomane for the Crown supported the sentence awarded on the grounds
that this is a serious offence which carries a maximum sentence
of a
fine of M1,000 or imprison­ment for up to three years, or both,
and that the appellant was transporting a large quantity
of dagga in
25 bags, so it was not a petty offence. He referred to Chabalala v R.
1981(1) L.L.R. 170, in which that appellant was
con­victed on his
own plea of dealing in 1254 kgms of dagga after being caught with it
in a vehicle at a police road block.
He was 25 years old end was
sentenced to imprison­ment for 2 years.

The
appeal judge referred to numerous previous decisions by the High
Court to the effect that a fine was no deterrent in these cases

because dealers could always pay up without any difficulty, since the
business was so very profitable. The appeal against sentence
was
dismissed in that case.

This is
certainly a serious type of offence and it does not appear to be on
the decrease unfortunately the appellant in this case
is aged 27
years and he is a first offender in this country. I agree that the
offence calls for a reasonably severe sentence and
that a fine would
not be appropriate. However, in the cir­cumstances, I am of the
opinion that the sentence was too severe.
A young first offender who
pleads guilty and saves the court's time can usually expect to be
dealt with by the court with some
degree of leniency, without
detracting from the seriousness of the offence committed

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But the
appellant, and others like him, must learn that he cannot come into
this country and commit a serious offence and then expect
to get off
lightly.

Accordingly,
this appeal against sentence is allowed to the extent that the
sentence of imprisonment for two years is set aside
and I substitute
for it a sentence of imprisonment for one year The appeallant's bail
is discharged forthwith and he must now serve
this sentence.

P.A.P.J.
ALLEN

JUDGE

13th
October, 1987

Mr.
Sooknanan for the Appellant

Mr
Qhomane for the Crown