1
SOLOMON
MAPHOSA
IN
THE HIGH COURT OF SWAZILAND
REX
VS
SOLOMON
MAPHOSA HUMPHREY MASEKO
CRT.
CASE NO. 161/98
CORAM S.W.
SAPIRE
FOR
CROWN MR. NSIBANDZE
FOR
DEFENCE MR
M.
MATSEBULA
JUDGMENT
(30/11/98)
It
is alleged that the accused, Solomon Maphosa and Humphrey Maseko, not
being holders of a valid permit or licence to possess, did unlawfully
possess 98.7 kg dagga or cannabis, a habit forming drag, and in this
way the said accused did contravene Act No. 37 of 1922.
For
the prosecution we have the evidence of two Police Officers. One is
Station Commander Mamba and the other. John Lukhele. They were
patrolling around Fonteyn in the middle of the night at the time of
the alleged discovery of the offence. Their attention was drawn to a
vehicle which was behaving in what they considered a suspicious
manner. Although Station Commander Mamba said that it was the speed
of the vehicle which drew their attention, Lukhele said that there
are
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SOLOMON
MAPHOSA
other
features. Whatever gave rise to their suspicions, they were confirmed
because when they stopped the vehicle and searched it they found the
exhibits before Court, comprising five identical carrying bags each
containing dagga. It is common cause that the substance found was
dagga or cannabis. It is not contested that in response to the
request by the Police to produce some licence to possess the material
the accused did not produce such a licence.
The
Police evidence is that the accused persons took them firstly to a
house in Fonteyn where the dagga is said to have been dried and
packed. A device was produced to this Court as an exhibit which was
found at the house which is clearly an instrument for sealing the
plastic bags. The accused persons together also took the Police to
another house where a device for compressing dagga was found. This
particular press was subsequently taken into possession by the Police
and was inspected by the Court where it now stands at the Police
Headquarters. The dagga, which was found, was obviously packed for
commercial purposes and prima facie the accused had a substantial
case to answer.
The
accuseds' answer to the charge was to the effect that although they
were found in possession of the dagga it was not their dagga and they
did not know that the substance was in fact dagga.
The
evidence on behalf of the accused was given first by accused number 2
and thereafter by accused no. 1 who confirmed the story of accused
number 2. The purpose of the version given by the accused was to
explain how they came to be in the area in question with a load of
dagga on their vehicle and to indicate that they did not have the
required intention in regard to the possession of the dagga.
The
basis of the explanation attested to by the accused persons is that
accused no. 2 required thatching grass and had intended to buy some
of a woman of the same surname with accused no. 1 but no relation.
She lived in an area some distance from Mbabane and from Fonteyn
known as Maphalaleni. This place Maphalaleni is to the knowledge of
the Court in a rural area somewhere off the Mbuluzi River. It
occurred to me that the time for collecting thatching grass was
inappropriate to September, but the accused explained to me that this
woman kept stock of the grass.
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SOLOMON
MAPHOSA
Accused
NO. 2 did not have transport and called accused number 1 to assist
Mm. He apparently paid him at least E200.00 for his services. Accused
no. 1 is the owner of the lorry or bakkie and it is the same vehicle
in which the dagga was eventually found.
Together
the two accused went in the vehicle but were unsuccessful in
collecting the thatching grass. They proceeded to Manzini. Accused
no. 2 says that when they saw the would-be supplier of the thatching
grass she asked them as a favour to collect some parcels when they
returned from Manzini to collect the thatching grass which would then
be ready to be taken by them.
The
accused persons went to Manzini, did what they had to do there and
decided at 9.00 at night, so they say, to return to Fonteyn to pick
up the consignment of goods as requested and to deliver it to the
woman that night. Thereafter they would return to their respective
homes, spend a night there and come back and collect the thatching
grass the following morning. To behave in such a manner is quite
unbelievable. Firstly they must have arrived at the house in Fonteyn
shortly before midnight. In the absence of any evidence of some
arrangement, why did they expect those people in whose possession the
goods were to be up and available at that time of night? And it is
also impossible to fathom why people who are on the business of
trading in dagga on a commercial scale should put a large quantity of
dagga in the hands of complete strangers. Equally unlikely is that
the woman, supposedly the supplier of the thatching grass should send
these people who she had only met once to collect these goods of
great value to bring it from an urban area into the country is quite
contrary to human experience.
This
story is to be examined in the light of the Police evidence namely
that when the accused were found in possession and having been warned
of the charges against them they allegedly took the Policemen to the
houses and the places where the dagga had been dried and packed. The
accused version cannot be accepted even as being reasonably possibly
true. I am driven to the conclusion that the accused knew very well
what the substance was at the back of their lorry and that they
explained to the Police how it came about that they were in
possession. The explanation is
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SOLOMON
MAPHOSA
confirmed
by the exhibits found by the Police who were obviously used for the
packing and compressing of the dagga.
The
accused are therefore found guilty as charged.
SENTENCE
Accused
No. 1, who is a first offender, it is my view that he must suffer
both the criminal loss and he must have a custodial sentence which
will prevent him from doing this again. In his case I think it is
appropriate that he be given a prison sentence which, because of his
being a first offender, I propose to suspend. I also think it
appropriate in this case to declare the vehicle forfeit to the state
as he, No. 1 is clearly the owner of the vehicle and was using it for
the transportation of dagga.
You
will therefore be sentenced to three years imprisonment all of which
will be suspended for three years on condition that you are not
hereafter found guilty of contravening Section 7 of Act 37 of 1922
and convicted of an exceptional offence committed during the period
of suspension. The vehicle mentioned in the evidence and presently in
the possession of the Police will be declared forfeited under Section
324.
As
far as accused No. 2 is concerned he will be sentenced to a fine of
E2 000.00 in default of payment of which imprisonment for 2 years. He
will also be sentenced to 3 years imprisonment, all which will be
suspended for a period of 3 years on condition that he is not
hereafter found guilty of the commission of the same offence under
Section 7 of the Act committed during the period of suspension.
S.W.
SAPIRE
CHIEF
JUSTICE
