IN
THE HIGH COURT OF SWAZILAND
Cr.
Appeal No. 69/95
In
the matter between;
ZEMBE
CHARLES MADUNA Appellant
and
THE
KING Respondent
CORAM: S.W.
Sapire A.J.
FOR
THE CROWN Mr. Kilukumi
FOR
APPELLANT Mr. Nhleko/Adv. Kades
Judgment
(20/10/95)
The
appellant, Zembe Charles Maduna according to the record a man of
fifty years, married to four wives and his father of twenty children,
was arrested at his home in the Kuhlahla area by Superintendent J.D.
Dlamini and other police officers on 24/5/95, who were on a "dagga
raid". About 100 metres from the appellant's home an unspecified
quantity of dagga was seen by the police to be laid out for drying
purposes. A foot path lead from appellant's homestead to the dagga.
Suspecting that there may be more dagga in the accused's homestead,
they approached the homestead where the appellant was. The Sergeant
introduced his team to the appellant, who after being cautioned
allowed the police party to his house.
In
one hut, apparently part of the complex of dwellings occupied by the
appellant and his family a quantity of dagga was found. The appellant
informed the police party that this dagga belonged to his daughter.
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The
police apparently accepted this explanation for they turned their
attention to another hut, where they found a further quantity of
dagga, which subsequently became an exhibit at the trial. This dagga,
the appellant claimed to be his. The appellant explained that he was
a herbalist, that the hut in which the dagga was found was used for
the purpose of consultations, and that the dagga was used by him in
his practice as a herbalist for healing such people.
Some
confirmation for this explanation is to be found is the presence of
other herbs in the hut, which was noted by the police. The police did
not then question the explanation given by the appellant, but asked
him to produce a permit allowing him to heal people using dagga and
authorizing his possession of the dagga. This the appellant could not
do. Thereupon the appellant was arrested and the dagga in the hut of
which the appellant claimed ownership and possession was seized. Both
the appellant and the dagga which had been seized were taken to the
police station at Piggs Peak. The dagga was weighed in appellant's
presence, and weighed some 19.2kg. Samples were taken from each of
the three bags in which the dagga had been carried which was sent for
analysis. An affidavit reporting on the analysis and the three bags
of dagga was apparently handed in as exhibits. These exhibits were
not before this court but little turns thereon as the appeal is
diverted to sentence only.
The
appellant was charged before the Magistrate at Piggs Peak, with
having contravened Section 7 read with Section 8(1) of the Opium and
Habit Forming Drugs Act No. 37/1922, in that on or about 22nd May
1955 (I observed that the day does not agree with the date of the
raid testified to by Sergeant Dlamini) and or near Kuhlahla area in
the said district, the appellant not being holder of a valid permit
or licence to possess dagga, did wrongfully and unlawfully and
intentionally have or his possession 19.2kg of dagga, a habit forming
drug.
To
this charge the appellant pleaded guilty.
It
is to be noted that the plea of guilty related only the 19.2kg of
dagga which was found in appellant's consulting hut, and that the
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other
dagga seen by the police in the appellant's property did not form
part of the charge.
The
Crown led the evidence of Sergeant J. Dlamini to which I have already
referred to establish aliunde apart from the plea of guilty that the
offence had been committed. Reference should not have been made to
the presence of dagga drying near the appellant's home and other
dagga in the appellant's daughter's hut as the charge related only to
the 19.2kg found in the appellant's consulting but. It seems that
this evidence may have influenced the magistrate in regard to
sentence.
The
appellant was found guilty as charged. No previous convictions of any
nature were proved and the prosecutor indicated that the appellant
was a first offender.
In
mitigation it was said from the bar; no evidence being led, that -
(a) the
appellant's plea of guilty was sign of remorse
(b) he
was a first offender
(c) the
appellant had cooperated with the police
(d) he
was a married man, with four wives and twenty children dependent on
him
(e) appellant
had given an explanation as to his possession of a large quantity of
dagga which excluded him being a wholesale or ever retail dealer in
drugs.
The
appellant's attorney concluded with a plea for a sentence with an
option of a fine.
The
magistrate in imposing a sentence of three years imprisonment, of
which one year was suspended for two years on condition that the
appellant is not convicted of any offence in contravention of Section
7 of the Opium and Habit Forming Drugs Act 37/1922 or Section 12 of
the Pharmacy Act 38/29 committed during the period of suspension,
observed -
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(a) from
the evidence before the court it is clear that the accused
(appellant) is the wholesale supplier and;
(b) "he
cultivates dagga for the purpose of widespread distribution."
The
magistrate made it clear that these inferences were deduced from the
quantity of dagga found in his possession.
The
magistrate misdirected himself in overlooking or neglecting the
explanation given by the appellant for his possession of a large
quantity of dagga. It seems that the magistrate must have had regard
to the evidence of dagga drying close to the appellant's home. There
is no other suggestion in the evidence that he cultivates dagga. In
the absence of an explanation, possession of so large a quantity of
dagga may in appropriate circumstances lead to a permissible
inference that the possessor was a dealer in the substance. In the
present case however unlikely one may consider appellant's
explanation to be, like his explanation of the presence of other
dagga in the complex, it was not challenged.
This
misdirection makes it proper for this court to consider the question
of sentence afresh. Little purpose would be served by remitting the
matter to the magistrate.
The
magistrate referred in his judgment on sentence to the case of R. v.
Phiri 1982 -1986 SLR 508. In that case the facts were indeed similar
to the present in that the accused was found in possession of some
14.88kg of dagga. The Reviewing Judge Hannah C.J. found the sentence
initially imposed by the magistrate, E300 or 300 days to be grossly
inadequate and substituted a sentence of 3 years imprisonment, of
which eighteen months was suspended for three years on the conditions
which were repeated in the present case.
In
coming to the conclusion which he did, Hannah C.J. referred to
factors which were to be considered when sentencing in cases of
possession of dagga. Observing the circumstances in which an offender
may be found to be in possession of dagga will vary enormously from
case to case and the proper sentence will vary accordingly, he listed
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on
different sets of circumstances which might be applicable from case
to case. Clearly where a small quantity of dagga for personal
consumption is found, it is a far cry from the case where the accused
is found to be a wholesaler supplier. An offender in this latter
category is to be regarded as standing at the top end of the
sentencing scale. He is the person who is cultivating or in
possession for the purpose of widespread distribution to a number of
retail outlets. When the court is satisfied that this is the purpose
and the operation is being conducted on a large scale, the sentence
should be at or near the maximum even in the case of a first
offender.
The
magistrate's error lies in placing the appellant in this category.
The accused in the case considered by Hannah J. the accused had
admitted being a "wholesaler supplier" whereas in the
present case the appellant has given an account of his possession of
the large quantity of dagga which excludes the drawing of the
inference that the appellant possessed the dagga for wholesale
distribution. The appellant's explanation was not challenged let
alone shown to be untrue.
Because
of the magistrate's misdirection and failure to distinguish facts in
the case before him from those which pertained in R. v. Phiri he
placed appellant nearly on the top of the sentencing scale
notwithstanding that he was a first offender.
It
is open to me to set the appellant's sentence aside and impose a
sentence which I consider more appropriate.
The
appeal therefore succeeds and the sentence imposed by the magistrate
is set aside, the following being substituted therefore:
(a) The
appellant is sentenced to a fine of E1500 in default of payment of
which imprisonment for a period of one year.
(b) In
addition thereto, imprisonment for two years wholly suspended for
three years on condition that the appellant is not convicted of any
offence in contravention of Section 7 of the Opium and Habit Forming
Drugs Act 1922 (Act 37 of 1922) or of a contravention of
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Section
12 of the Pharmacy Act, 1929 (Act 3 of 1929), committed during the
period of suspension.
S.W.
SAPIRE
ACTING
JUDGE
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