IN
THE HIGH COURT OF SWAZILAND
CRIMINAL
CASE NO. 103/99
IN
THE MATTER BETWEEN:
SABELO
DLAMINI
THEMBA
MAMBA THEMBA DLAMINI
VS
REX
CORAM
: MATSEBULA
J
FOR
THE DEFENCE : MR. S.M. KHOZA
FOR
THE CROWN ; MR. M. NSIBANDZE
JUDGMENT
The
three accused whose ages range between the ages of 17 and 19
respectively are charged under the provisions of Section 1 on count
one, Section 12(l)(a) of the PHARMACY ACT NO.38/29 AS AMENDED. The
unlawful possession of poison to wit 278kg of dagga and also
alternatively charged under the provisions of Section 8(1) Act
No37/22 as amended, unlawful possession of dagga to wit 278kg of
dagga without the necessary documents. On both counts, one and the
alternative, the date and place is the same and so too the quantity
of the substance mentioned.
The
accused pleaded not guilty to both the main and the alternative count
and Mr. Khoza presented them throughout.
The
Crown led the evidence of PW1 Themba Leonard Dlamini, a chemist whose
evidence was not challenged and I do not propose to deal with it in
details. In a nutshell, it is stated that he received 27 sealed
envelopes marked "A1" to "A27" under
2
the
seal "PIGGS PEAK CC1 790/99". These envelopes were brought
by one 2412 Constable Dlamini He broke open the seal and examined the
contents by virtue of his expertise to ascertain as a chemist whether
they do not contain control substances. He found that the contents
did infact contain control substances in the form of what we call
dagga. He prepared a report which he read, confirmed and handed in as
exhibit "A". It was his evidence that the control substance
"dagga" is a substance for which one can only possess if he
has a permit or licence.
The
Crown also led the evidence of PW2 2412 Constable Dlamini. He
confirmed that he had sealed the contents in envelopes taken from
each bag of dagga which he found at a homestead where he found
accused no. 1, 2, and 3. He had handed these samples to PW1 for the
expertise analysis. His evidence was that on the 25th May 1999, he
accompanied by other members of the Royal Swaziland Police from
Pigg's
Peak went to a homestead at Pondo in the Pigg's Peak area. They
arrived there in the morning and found four men standing outside the
yard. They introduced themselves to these men and requested
permission to search the homestead. Permission was granted but before
they began with the search, accused no. 1 asked permission to go and
fetch keys from one of the huts to enable him to unlock a locked hut.
However, the witness (PW2) told him that they would all go together
to where the keys were and start searching from that hut. This was
agreed to and a search was conducted but nothing of relevance to
their mission was found. They proceeded doing the same exercise to
all the huts but still nothing was found. When they reached the
fourth hut they found it locked, and accused no.1 used a key to
unlock it. They all entered the hut, that is the four men and police.
Stacked in this hut were 27 bags which according to the witness
contained dagga. PW2 said the four men were accused no.l, 2, 3, and a
fourth man Ackel Mamba. Also found with the bags of dagga were
machines and scales which according to the witness (he stated he had
dealt with these cases on numerous occasions) were machines used for
compressing dagga into manageable quantities and a scales for
weighing such quantities.
PW1
confronted all four men and asked them to produce a permit or licence
for possession but they failed. He arrested them and took them to the
police station and subsequently to the Correctional Services where
the dagga in the bags were weighed in the presence of the accused.
The dagga weighs 278kg. PW1 then took samples
3
from
each of the 27 bags and put them in 27 envelopes and forwarded them
to the police headquarters under seal number CC1790/99. These were
handed to PW1 for chemical analysis. PW2 later received the report
and put it in the docket and this was sent to the Director of Public
Prosecutions office. He later received the envelopes with the
samples, he gave them to PW1 who he handed them in as exhibit
"A1-A27" when he gave evidence. The bags were also handed
in as "B1-B27".
It
was PW2's evidence that he warned all the accused in terms of the
Judges Rule and stated further that he did not influence them to say
anything. He said after the caution, each of the accused opted to say
something. They stated that each of them had been employed at this
homestead to work with the dagga. He then arrested all the accused
and charged them with possession of dagga. He also arrested the man
called Ackel but he was later released at the instruction of the
DPP's office. He handed in the machines, scales and sellotapes
collected there as exhibit "1". That was PW2's evidence.
PW2
was cross-examined by Mr. Khoza. He stated that they had arrived at
the homestead at plus minus 6:15 to 6.30 in the morning. He said
further that he had made recordings in Ms pocket book at 7:30 in the
morning and read from the pocket book as he gave evidence. PW2 denied
that accused no.3 was found in the street next to the homestead and
ordered to join the other three men in the yard. The witness stated
that he walked ahead of the other members of the RSP and warned all
the men to stand still He denied that he knocked on the door o£the
first hut and denied that they were conducting a raid. He said they
had come to that homestead as a result of a tip-off He stated that he
did not know who the owner of the house was. He said after accused
no.l had unlocked the fourth hut, the accused entered and the police
followed. That was the evidence of PW2.
Mr.
Nsibandze who is appearing for the Crown ordered the name of Ackel
Mamba to be called and when there was no response the Crown closed
the case.
An
application in terms of the provisions of Section 174(4) of the
CRIMINAL PROCEDURE AND EVIDENCE ACT AS AMENDED was moved by the
defence on behalf of all the accused. This was opposed by the Crown
and the court turned
4
down
the application and ruled that the Crown had made a prima facie case
against all the accused.
Mr.
Khoza then called first, to the stand, accused no.3 instead of
accused no.l. I will refer to accused no.3 as DW1 for the purposes of
this judgment. According to DW1 he was walking on the street minding
Ms own business, walking near a homestead. He said he was about to
cross a river when he saw a motor vehicle and raced towards it
intending to hike a lift. The motor vehicle made a u-turn, he then
saw police officers emerging and was called to move towards the
homestead which was subsequently searched. He said the police knocked
at the door of the hut and accused no. 1 opened and the police told
him that they had come to search the hut. Accused no.1 opened and DW1
was also pushed into the hut to be searched. The police searched and
found nothing of relevance. They search the other huts still they
found nothing of relevance; they got to the fourth hut and found it
locked. The police ordered him to unlock the hut but he told them
that he had no keys, as this was not his homestead. The police then
asked all the persons present whose homestead this was, they did not
get any response. They ordered accused no.l to fetch a key for the
locked hut. Accused no.1 went and came back with the keys. He opened
the house and inside there were many bags containing dagga.
The
police pushed DW1 and the other accused into the hut, he said. DW1
told the police he knew nothing about the dagga as he did not stay at
that homestead. He was asked if he knew about the compressor and the
other items found and he told them that he knew nothing about them.
Accused
no.l was called as DW2. DW2 having heard what DW1 said in his
evidence, his evidence was more or less along similar lines as that
of DW1. I indicated to Mr. Khoza that even though there was no
provision
in
the order of calling an accused person where there were more than
one, it is usually not advisable to start from the bottom up. This is
because the first accused would tend to repeat the version by the
last accused depending upon circumstances of each case, the weight of
such evidence could be less. In the present case, DW2 repeated what
was said by DW1 who is in the order of position in the accused docket
as accused no.3. Accused no.3 should have been called as DW3.
However, it was during the cross-examination of
5
DW2
by the Crown that it emerged that certain statements were made by the
accused. Mr. Nsibandze for the Crown read the contents; certain
portions of the contents of the statements were allegedly made by the
accused that is DW2. It further emerged that DW3 had also made a
written statement as DW1, Because of the contents of the alleged
statements under cross-examination, the court was put in an invidious
position. At the end of the day, I ought either to base my judgment
or findings on the contents of documents whose authenticity I was not
satisfied with. I then invoked the provisions of Section 199 of the
CRIMINAL LAW AND PROCEDURE ACT 1938 as amended. In terms of which the
court may at any stage subpoena any persons or witness or examine any
person in attendance although not subpoenaed as a witness or may be
called to re-examine any person if his evidence appears to be
essential to the justice and handlings of the case. The witnesses
were then called and statements were handed in as exhibits ("C"
in respect of accused no.3, "D" in respect of accused no.l,
"E" in respect of accused no.2). Before handing exhibits "C
-
D"
and "E", Mr. Khoza on behalf of the accused objected to
their handing in. He stated that this was on the basis firstly, the
witnesses who handed the statements in, had never signed the said
statements. Secondly, that the statements were regulated under the
provisions of Section 226 and that the statements could only be
handed in by the judicial officer before whom the statements were
made. In short, Mr. Khoza contended that these statements were
statements in a nature of confession.
I
have looked at the statements and considered their contents against
the definition of a confession laid down in cases suck as REX VS
BECKER 1929AD where the learned Judge de Villiers ACJ as he then was,
concluded that a confession could only mean "an unequivocal
acknowledgement of guilt equivalent to a plea of guilt."
Notwithstanding this definition of a confession the confessor must
make an extracurial admission of all the elements of the offence. I
do not find exhibit "C, D, E" to be confessions and I rule
that these were not confessions. Because Mr. Khoza made the
objection. My ruling still stands.
Turning
to the facts of the case. PW2's evidence is straightforward. I find
his evidence very credible. His evidence is corroborated by the
contents of exhibit "C, D, E" in every material respects.
(See in this respect STATE VS SAULS 1981(3) 17Z(A). This case dealt
with
a
single credible witness. PW2 has not shown any bias
6
in
the matter and I accept his evidence as being true. The court is
aware that the onus rests on the Crown to prove its case beyond
reasonable doubt and that no onus rests on an accused person to prove
Ms innocence. PW2 told the court that each of the accused said they
have been asked to work with the dagga. Accused no.3 recorded a
statement in which he stated that a Malaza man came to the homestead
and asked him to assist in doing a certain job. Accused no.3 does not
say what the job consisted of nor does he state in his statement if
he accepted the request by this Malaza man. The police arrived before
he had done anything.
It
is true that accused no.3 lied by saying he had been in the street,
away from the homestead when the police forced him to go into the
homestead. He also lied that he wrote the statement under duress that
he was threatened to sign it. However, the fact that he lied does not
mean, that the Crown, has proved its case against him. beyond
reasonable doubt nor does the statement he made assist the Crown in
any way in proving the case against him beyond reasonable doubt In
suck circumstances, the rules or procedures are very clear and the
case law is very clear that the court should give suck an accused
person the benefit of the doubt.
However,
the case against accused no. 1 stands upon a different footing. He
also made a statement, exhibit "D" In exhibit "D"
accused no.1 also makes mention of the man from the Republic of South
Africa, a Malaza. He states that this dagga was brought by this man
and left with him and accused no.2. Once accused no.1 accepted
delivery of the dagga, he placed himself in the spotlight
in-so-far-as the commission of this crime is concerned. The mere
possession of dagga is not an offence per se, it was up to him to
produce the necessary documents for possessing the dagga.
For
the purpose of this judgment, the mention of accused no.2 by accused
no.1 in his statement does not necessarily incriminate accused no.2.
This will depend on how accused no.2 reacts at the mention of these
names. He cannot, on account of his name having been mentioned by
another accused be convicted. However, accused no.2 also made a
statement exhibit "E" In exhibit "E" accused no.2
states that Malaza brought this dagga and he and others put the dagga
into the hut and they were supposed to start compressing it on the
day of their arrest. Here again, accused no.2 placed himself on the
spotlight and it was up to him to ensure that the necessary documents
7
for
possession of this stuff are available. When he was requested to
fetch these documents, he failed.
In
my judgment, he and accused no.l are guilty of being found in
possession of dagga. In the result, I find accused no. 1 and no.2
guilty on the main count, that is count one and not guilty on the
alternative count. I acquit and discharge them on the alternative
count. I find accused no.3 not guilty on the main and alternative
accounts therefore he is acquitted and discharged.
JUDGME1SIT
ON MITIGATION
You
have been convicted of a very serious crime. This Court and also in
my capacity as a parent, I am concerned about young people who get
themselves involved in such matters because the law is there and I am
bound to pass a sentence. I have just mentioned to your counsel what
the penal provision is and that I am very suspicious that you did not
possess this dagga by yourselves but some adults are using you. The
only way this Court can deal with this matter is to sentence the
person/s who have been found in possession of dagga and convicted
severely so that the people behind realise that children must not be
used in the perpetration of their dirty work.
Mr.
Khoza wants to have further consultation with you to enable him to
mitigate, if need be, call further witnesses in mitigation or call
you to the witness stand.
JUDGMENT
ON MITIGATION/SENTENCE
Your
counsel, Mr. Khoza, has addressed me and he has persuaded me not to
send you to jail because of your youth. If that were to be allowed
you would be contaminated by hardened criminals and instead of
reforming you will come back and commit more crimes. I have indicated
that I am not sure whether you are sorry for what you did. To me it
is clear from the evidence led that some older people used you to
achieve financial gain and you were doing the dirty work of these
drug pushers.
Ml
Nsibandze who is appearing for the Crown has also addressed me and
said that I should take into account your youthfulness and that you
are immature and it is easy for some people to manipulate people like
you.
8
You
must understand that the legislature takes a very serious view of
this crime. It provides for a fine of El5, 000.00 or imprisonment for
15 years for a first offender to prove that this is a very serious
crime which might cause you to remain in jail as long as a person who
has committed murder.
You
have been convicted of possessing 278kg of dagga and with the dagga
certain apparatus clearly indicates that this dagga was not meant for
personal consumption. The inference that this was meant for a
widespread distribution is inescapable. I have looked at the other
decided cases dealing with similar offences like REX VS PHIRI 1982/86
at 509 where the learned Chief Justice, as he then was, said in the
case similar to yours, that the court should bring the sentence very
close to the maximum even in a case of a first offender. In the Phiri
case supra which was decided in 1986, the court had to alter a
sentence imposed by the trial Magistrate which was E300.00 or 300
days and the Magistrate had suspended two thirds of that sentence,
the Court had to substitute that for a sentence of three years'
imprisonment, suspending 18 months thereof.
Having
listened to your counsel and taking all the factors into account, I
am of the view that the following sentence will be an appropriate
one.
"You
will be
fitted
E5, 000.00 or 5 (five) years' imprisonment and be further sentenced
to a further 3 years which last mentioned will be suspended for a
period of three years on condition that during the period of
suspension you are not again convicted of contravening the Pharmacy
Amendment Order of 1993, that is either being in possession of dagga
or some other similar substance ".
J.
M.
MATSEBULA
JUDGE
