CRI/A/1-3/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

RALIKHOMO
RALIKHOMO 1st Appellant

WILLIAM
SOOTHO 2nd Appellant

SELLO
MOFUTSANA 3rd Appellant

v

REX
Respondent

JUDGMENT

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 9th day
of July, 1987.

The
appellants were convicted by the Resident Magistrate at Butha-Buthe
of dealing in a prohibited medicine or, any plant from which
such
medicine can be manufactured, contrary to section 3(a) of the
Dangerous Medicines Act 1973, (herein­after referred to
as 'The
Act'), and were each sentenced to two years' imprisonment. The second
appellant was granted bail. He resides in South Africa.
He did not
attend the hearing of the appeal. A warrant for his apprehension was
issued and the Court continued with the appeal
of the first and third
appellants.

At the
trial the three appellants pleaded guilty. They agreed with a
statement of facts read out by the prosecutor. That statement

revealed that two police officers encountered the three appellants
near Ha Pokane, between Butha-Buthe and Hendrick's Drift, between

19.00 and 20.00 hrs. The first appellant was leading two oxen pulling
a "scotch cart". The second and third appellant
were "on
the sides of the scotch cart": it is not clear whether they were
sitting on the sides

2

of the
cart, but in the least they were walking beside the cart. The police
observed some bags in the cart. The police stopped the
three
appellants and questioned them. The first appellant volunteered the
information that the bags contained dagga. The bags,
20 in number it
transpired, were opened in the presence of the three appellants and
were found to contain dagga: it was subsequently
ascertained that the
dagga weighed a total of 348 kilograms. The police seized the dagga,
the oxen and scotch cart.

The first
appellant appeals against sentence only: the third appellant appeals
against conviction and sentence. As to the third
appellant, the
learned Counsel for the first and third appellants Miss Ramafole
submits that none of the appellants were represented
in the court
below, and that a court must be particularly careful in dealing with
unrepresented accused persons, particularly in
the matter of a plea
of guilty. This I fully accept. She submits that as far as the third
appellant is concerned, the statement
of facts did not reveal a prima
facie case, as it did not disclose any knowledge on his part that the
bags contained dagga. She
submits, on the authority of R v Motaung
(1961)2 SA 209 per Schreiner J.A. at pp. 210/211, that mere presence
at the scene of a
crime does not establish complicity. While the
general proposition advanced by Miss Ramafole is trite law, I observe
that much
depends on the circumstances surrounding such presence. The
learned Crown Counsel Mr. Mdhluli submits that the inference is
irresistible
that a person walking beside (if not sitting on) a
scotch cart at night, containing approximately one third of a ton of
dagga in
bags, would, if he was not in possession of such dagga, have
known of the contents of the bags. That inference is certainly, on

the facts, a reasonable inference, but whether it is the only
reasonable inference to be drawn is another matter.

In this
respect Miss Ramafole refers to the review case of Rex v Vomesa
(1980) 1 LLR 8 decided by Rooney J. From a reading of the
report I
cannot be sure of the full

3

facts of
the case. it is clear therefrom that the accused transported bags
containing dagga, 192 kilograms in all. It is also clear
that he was
driving a vehicle when apprehended, so it would seem reasonable to
assume, judging by the large quantity of dagga involved,
almost one
quarter of a ton, that the dagga was transported in the accused's
vehicle, or indeed in another's vehicle in which he
sat. In this
respect the learned Judge observed that

"It was essential to prove that the accused was aware that the
bags transported by him contained dagga."

That
passage certainly suggests that the onus was on the prosecution in
the matter. If it was the case however that the accused
drove, or was
sitting in the vehicle which conveyed the dagga, then the onus in the
matter shifted by virtue of the following provisions
of section
30(1)(e) of the Act:

"(e) If in any prosecution for an offence under sections 3(a) or
3(c) or section 15(a), it is proved that the accused was
upon or in
charge of, or that he accompanied any conveyance on or in which any
dependence-producing medicine or any plant from
which such medicine
could be manufactured, was found, it shall be presumed that the
accused dealt in such medicine or plant, unless
the contrary is
proved."

It will
be seen from such provisions that even if an accused person but
accompanies any conveyance containing the particular medicine
or
plant, he is presumed to have dealt . therein, unless the contrary is
proved. Quite clearly the. onus of proving the contrary
must fall on
the accused. It will be sewn from section 2 of the Act that a
"conveyance" includes a cart drawn by oxen,
and that
a"dependence-producing medicine" (or any plant from which
such medicine could be manufactured) includes "dagga
... and the
whole plant or any portion thereof", which is contained in the
list of prohibited

4

medicines
in Schedule III to the Act.

In the
present case therefore the statement of facts revealed, as the only
reasonable inference I consider, that the third appellant,
if he was
not sitting upon the scotch cart, was in the least accompanying it.
Indeed the third appellant's second ground of appeal
reads:

"Though Sello admitted carrying dagga he did not know at the
time that what was being carried was dagga."

While the
prosecution did not adduce any evidence in the matter, and the third
appellant's presence beside the scotch cart was not
formally
"proved", to use the precise word contained in section
30(1)(e) of the Act, nonetheless the third appellant
admitted to such
presence, in agreeing with the statement of facts, thus under section
240(1)(b) of the Criminal Procedure Evidence
Act 1981, dispensing
with the necessity for evidence to be led. As I see it therefore, the
statutory presumption arose against
him, establishing a prima facie
case. In all the circumstances the appeal against conviction is
dismissed.

A number
of authorities have been cited indicating the gravity of the offence
involved. The legislation is clearly indicative of
such gravity.
Section 3 of the Act provides for a maximum sentence, in the case of
a first conviction, of a fine of one thousand
Maluti and imprisonment
for three years and in the case of a second or subsequent conviction,
a fine of two thousand maluti and
imprisonment for five years. Both
the first and third appellants were first offenders. Nonetheless it
will be seen that even in
the case of a first offender provision is
made for a custodial sentence. A court nevertheless has the option of
fining, rather
than imprisoning a first offender, but the scale of
punishments provided for a first offender indicates that a fine is
only appropriate
in relatively minor cases. Here the quantity of
dagga was approximately one third of a ton, meriting a punishment at

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the top
of the scale provided. Bearing in mind that the third appellant
pleaded guilty a court would nonetheless be failing in its
duty if it
did not impose a custodial sentence. I consider therefore that the
sentence imposed by the learned Resident Magistrate
upon the third
appellant was entirely appropriate. His appeal against sentence is
accordingly dismissed.

I observe
however that the first appellant is aged 76 years. Advanced age is
always a strongly mitigating factor. The learned Resident
Magistrate
recorded no reasons whatever in imposing sentence and I can make no
assumption in the matter unfavourable to the first
appellant. I can
only conclude therefore that the learned Resident Magistrate did not
take the appellant's advanced age into account.
That was an error in
principle and this Court is therefore at large in the matter of
sentence. I wish to say that again I consider
the sentence of two
years' imprisonment entirely appropriate, were it not for the
appellant's advanced age. In view of that factor
however the appeal
against sentence by the first appellant is allowed,to the extent that
1 order that the operation of such sentence
be suspended for a period
of one year, on condition that he commit no offence under the Act
during that period.

B.P.
CULLINAN

CHIEF
JUSTICE

9th July,
1987.

For the
1st & 3rd Appellants: Miss M. Ramafole

For the
Crown: Mr. T.S. Mdhluli