Case No. 81/2000
Crown Mrs. M. Dlamini
Defence Mr. S. Mdladla
this matter the accused, his wife and a person who I understand to be
a maid or servant at his house, were arrested because a quantity of
dagga was found in the house where they all reside. The matter was
brought before court with commendable speed as the arrest took place
only some 10 days ago. The matter received preference because one of
the accused persons was a mother whose child required her attention.
The matter also was facilitated by the attitude taken by accused
presently before court who was accused no. 1.
the commencement of the trial I granted the necessary permission to
proceed by way of summary trial in the High Court whereon the
representative of the Director of Public Prosecutions, Mrs. Dlamini
applied for a separation of trials. This was granted and accused No.
1 was dealt with first while the other two accused awaited the
outcome of his trial. The accused pleaded guilty and on his plea he
was found guilty.
elected to give evidence in mitigation and unfortunately unbeknown to
me and the court officials, the evidence he gave was not recorded.
The evidence is,
fresh in my mind and I will rely on what he said without it being
necessary for him to repeat what he said on oath again.
brief, he told how he was approached by two people who he knew to be
customers at the garage which he operates in Sidwashini. They asked
him to take custody for a short period of the bags of dagga which
they had. Tempted by the earning of E2 000.00 in what seemed to be a
very easy way, the accused took possession of the dagga which he kept
at his house. It seems a coincidence that the Police decided to raid
his home at the very time that the dagga was there. I do not believe
I am unduly judicially cynical if I suspect that the length of time
which the accused had the dagga in his possession was not quite as
short as the accused says. His evidence is however uncontradicted and
whatever reservations I may have in regard thereto I must accept it.
amount of dagga involved is considerable amounting to 74.4 Kilograms.
The evidence was led that the dagga was of a high quality if not the
best. I was not told what the street value of this consignment was.
question now arises as to what sentence should be imposed on the
accused for the crime to which he has pleaded and been found guilty.
A locus classicus in the passing of sentences in matters involving
the contravention of the provisions of the relative legislation is
Rex vs Phiri 1 This case is often referred to in the present
connection. The wisdom of the guidelines laid down in that case by
the then Chief Justice, Mr. Justice Hannah has often been recognised
but equally it has often been stressed that each case has to be
considered at its own merits.
his judgment the then chief justice considered various sets of
circumstances in which the provisions of the Opium and Habit Forming
Drugs Act 37 of 1922 could be transgressed. The first category which
merits the lightest sentence is where dagga is possessed for personal
consumption only. The second category is dagga possessed for supply
which is not strictly the position in this case. The case of the
wholesale supplier, which is the third category should, according to
the judge, be regarded as standing at the top of the sentencing
scale. The accused does not fall into this category. The fourth
category comprises members of the wholesalers distribution network.
In this connection the judge observed that inevitably the wholesaler
requires a number of couriers who play a vital role in his
distribution network. These persons are motivated purely by financial
gain and not infrequently will include persons whose background it is
such that the principal believes or hopes will induce leniency on the
part of the courts. Envisaged are the elderly women used as couriers
and fronts for the principal perpetrators of the offence. In regard
to these people, His Lordship said, those who engage in dagga
trafficking should not expect to be dealt with leniently. Normally
they should be dealt with by way of a substantial custodial sentence.
His Lordship then went on to consider the retail supplier and a
social supplier. According to the evidence, the accused was not a
factors which are important are the reasons for the offence and the
circumstances in which the offence was committed. His Lordship also
identified the case of the isolated transaction and said that a
distinction should normally be drawn between the offender who is
engaged in an isolated transaction and one who is part of 1 1982 to
1986 Swaziland Law Reports page 580.
continuing enterprise. Depending on the scale of the transaction the
sentence in such a case should be somewhat less and a partly
suspended sentence may be considered. It was submitted that the
accused falls within this category or is to be most likened with a
person in this category. On the evidence this is a valid submission.
other question of course is that the quantity of dagga found in
possession of the accused precludes the trivialisation of the
sentence. I must consider that a custodial sentence in this case may
be suspended wholly or in part. In favour of the accused it has to be
said that he appears to be contrite, and has not taken advantage of
any defences he may have had arising from the fact that he was not
present when the dagga was found. He has collaborated with the Police
and I understand that as a result of his information the person who
he says gave him the dagga had been apprehended and will face trial.
consideration of he being the first offender weighs heavily in his
favour and prompts me if it is possible to avoid sending him to
prison for any length of time. The accused's possession was very
peripheral to the actual trading in dagga which was going on.
fines prescribed by the act have become inadequate because of the
depreciation in the value of money. Depreciation has not eroded the
discomfort and disgrace of incarceration for any particular period.
This has remained constant and to equate a maximum sentence of E15
000 with 15 years imprisonment at the present time is not valid.
view of the accused's behaviour since his arrest, his relatively
minor participation in trafficking in dagga, his position in society
as a businessman and his responsibilities, and the way he has acted,
I am confident in accepting his assurance that this experience and
the sentence I will impose will be a warning to him and to others who
may be tempted.
the word must go out that possession of such a large quantity of
dagga will normally require the possessor to be sent to prison. But
there can be exceptions, and I think that the mitigating
circumstances to which I have referred allow me without being in
breach of my duty to avoid giving a sentence requiring the accused to
spend time in prison. There are special circumstances in this case,
not the least of which is his collaboration with the police, which
has resulted in the apprehension of those alleged to be the principal
sentence which I impose is as follows:
are sentenced to a fine of E6 000.00 in default of payment of which
you will be imprisoned for 2 years.
will be sentenced to imprisonment for a period of 5 years suspended
for a period of 3 years on condition that you are not hereafter found
guilty of an offence involving the possession of dagga in
contravention of the provisions of the Opium and Habit Forming Drugs
37 of 1922 or the Pharmacy Act 38 of 1929 committed during the period
of the suspension.
fine to be paid at the rate of E500.00 per month; the first
instalment to be paid on the last day of this month and subsequent
instalments are to be paid on the last day of each month thereafter
until the full amount has been paid.
exhibits to be destroyed forthwith and a certificate from the Senior
Police Officer to be filed with these papers forthwith.