08 Dec 2014

Dewald Steyn De Beer, a South African national convicted of importation of drugs without the director of health’s approval, has been given bail to appeal his one-year imprisonment term and P10 000 fine while outside custody.

De Beer, 23, who was sentenced on November 18 by Magistrate Priscilla Ditlhong made an urgent application to the High Court seeking for an order that the appeal be allowed with costs and that the decision of the magistrate be set aside in its entirety.

The grounds of appeal were that the magistrate erred in evoking one year imprisonment sentence on the appellant. The trial court had sentenced him to a maximum of two years imprisonment and suspended one year.

The appellant also stated in his court papers that the sentence was excessive and disproportionate to the gravity of the offence even having regard to the amount or quantity of the drug, ephedrine. Through his lawyer Mr Friday Leburu, he said the magistrate erred in making an order for the forfeiture of the exhibits.

De Beer argued that the making of such an order in this regard was incompetent at law, for the importation of Schedule Two Drugs without prior consent of the director is not to be followed by automatic seizure of the said drugs.

Granting bail after a relatively short submission which was not opposed by state counsel, Mr Tshepo Magetse, Justice Singh Walia of Gaborone High Court said he had made some observation that the trial magistrate had made some errors when sentencing the accused.

He, however, wondered whether granting the appellant bail will not pose a danger to himself and others as he had been described as suffering from schizophrenic and whether he will be able to access his medication.

Though Justice Walia ultimately granted bail, he said the appellant should stay in Gaborone in a house known to the police and that he should deposit P2 500 with government treasury office and produce a local surety who will also pay the same amount.

He should also surrender his passport or travelling documents to the police and also report on Mondays and Fridays to the police as well as not go beyond the boundaries of Gaborone without prior notice of Broadhurst police station commander.

The facts of the main case indicate De Beer arrived in Botswana on October 17, 2014 at SSK Airport aboard Kenya Airways from India after connecting in Nairobi. Upon his arrival he is said to have informed airport officials that his luggage was left in Nairobi and will come on the same flight after two days and he will come to collect it.

However on October 18, 2014 De Beer was arrested at Rail Park Mall in Gaborone by police officers after they got a tip off that De Beer’s en-route luggage could be containing some drugs. It was then that the following day on October 19, 2014 he was taken to the airport to go and identify his luggage which upon search some whitish powder was discovered contained in plastic bags in the bottom of his suite case.

As the police officers together with customs officials suspected that the drugs could be ephedrine they were seized and sent to police laboratory where it has since emerged that they were indeed ephedrine which needs consent of the director to pass through the country to its final destination.

Inspector Modironyana Lekone of Sir Seretse Khama Airport Police Station (SSKA) who was the prosecutor in the matter presented before the court a police laboratory affidavit, customs clearance certificate, the certificate of weights and the ephedrine which weight 9.663 kg as part of evidence. A subsequent finger print out from police finger prints bureau has confirmed that De Beer has no previous convictions and as such he is a first offender.

The charge of importing ephedrine without the approval of the director of public health attracts a maximum fine of P10 000 and or two years in imprisonment.

Ephedrine is a second scheduled drug under Drugs and Related Substance Act. It is not a habit forming drug as it is controlled drug and could be dispensed from a pharmacy, because of its medicinal properties.

Possession of ephedrine in Botswana does not constitute to an offense but its importation needs a certificate from the director of health services. In addition a person dealing with drugs can notify the director of the drugs on transit 48hrs after they have passed the country. ENDS