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
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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
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"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
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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
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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