29 Jun 2014

Principal Magistrate Goodwill Makofi has ordered the prosecution to request the director of public health services to apply for the forfeiture and destruction of ephedrine drugs, which have been a subject of contention between a defence lawyer and the state for some time as to whom it should be given to.

The judgement came after defence lawyer, Mr Friday Leburu representing Tamara Azevedo who was convicted for importing ephedrine drugs into the country without the consent of the director of public health services applied for the return of the drugs.

Accordingly, Mr Leburu acting on power of attorney, applied for the return of the drugs immediately after the closure of the criminal case which saw Azevedo being fined P5 000 or six months imprisonment in default of payment after her own plea of guilty.

The law provides that whoever feels should claim such an exhibit should apply for its return within a period of three months and if this period elapses, the exhibit will automatically be forfeited by the state. 

In the present case the director of public health services did not show such a desire and as such Azevedo, through her lawyer Mr Leburu applied for the return of the ephedrine.

Ephedrine is a second Scheduled Drug under Drugs and Related Substances Act and it is not a habit forming drug such as cocaine and mandrax which are listed under Schedule One. Its possession in Botswana does not constitute an offense.

However, the Thursday judgement has not resolved the matter as the court has failed to either give Mr Leburu the drugs or order that they be forfeited by the state and therefore this is opening the case for the parties to come and argue the matter afresh.

Nevertheless in his judgement magistrate Makofi lambasted the state for its poor submission which he said was tantamount to suggesting that the courts were allowing drugs to be peddled anyhow.

He further charged that at times counsels from Directorate of Public Prosecutions (DPP) bring suspects to court with wrong charges which he said was very unfortunate and should not be encouraged.

Meanwhile, Magistrate Makofi said the director of public health services is the one who, if they so wish could make application for forfeiture of the drugs within seven days or otherwise he will be compelled to give them to Mr Leburu.

Earlier on, Magistrate Makofi and the deputy director of the DPP, Mr Wesson Manchwe squared up as the latter wanted the court to make a ruling for their forfeiture though there is no provision in the law allowing such.

In his submission, Mr Manchwe argued that the application before the court was not properly made, but was was however out rightly dismissed by the magistrate as he referred him to his ruling that defence lawyer Mr Leburu had and still has the power of attorney as instructed by his client.

Mr Manchwe also argued that the drugs should not be returned to the convicted person because they did not enter the country lawfully in the first instance as doing that will be tantamount to condoning drug peddling.

He however acknowledged that ephedrine is not a habit forming drug as it falls under Schedule Two of Drugs and Related Substance Act, which does not advocate for such drugs to be forfeited as opposed to Schedule One drugs, which are habit forming drugs.

Magistrate Makofi said the state had during the course of trial not pointed out that the drugs did not belong to Azevedo, who has since returned to South Africa after paying her fine. He said the Act is clear as to what should happen to the drugs after the completion of the case and this empowers either of the parties in the case to apply for their return. ENDS