05 May 2015

Justice Key Dingake of Gaborone High Court has reserved a ruling in a case in which South African, Dewald Steyn De Beer, is appealing both his sentence and conviction for unlawful importation of ephedrine drugs.

Village Court Magistrate, Ms Priscilla Ditlhong, convicted the appellant on November 18 last year. The 23-year-old De Beer was fined P10 000 and imprisoned two years with one year set aside on condition that he did not commit any offence within the next three years.

Making submission before the court, the appellant’s attorney, Mr Friday Leburu, said the punishment was harsh and disproportionate with the offense committed. Mr Leburu argued that in sentencing, the basic requirement was that the discretion must be exercised reasonably and judiciously.

He said it was apparent that in imposing the sentence, the magistrate imposed the maximum sentence in respect of both fine and jail term, adding that it was trite law that a fine and prison term was the maximum permissible limits, to which a convicted person might be sentenced to and that a court might impose either or both sentences.

Mr Leburu noted that the position of the law was clear on how first offenders were to be sentenced and therefore submitted that the magistrate in imposing sentence did not appear to have taken account of the general practice in Botswana.

He said court was required, when deciding on a suitable sentence to be imposed on a convicted person, to take into consideration the interests of the accused person, nature of the offence and interests of society. Mr Leburu noted the accused was schizophrenic and of poor health.

Furthermore, he submitted the offence could not, in all seriousness, be classified as serious. If anything, he said, it was at the lowest end of serious offences and society had not suffered as a result of the appellant’s actions more particularly that the drugs were destined for South Africa while Botswana was never the intended destination. Therefore, Mr Leburu said the impact, if any, would be felt elsewhere.

He further submitted it was never in dispute that the drugs were in transit, noting that Drugs and Related Substances Act provided that, “Where drugs are to be imported into Botswana in the course of transit to another country, the importer shall before importation, notify the Director of Public Health Services in writing the ultimate destination of drugs, and shall in writing notify the director as soon as possible, and in any event within 48 hours, when such drugs have left Botswana”.

Further, the lawyer submitted that courts had held that there was a small body of authorities in such jurisdiction on the point that where imprisonment was imposed on first offenders courts, especially magistrates courts try as far as possible not to send them to prison. If at all they were sent to prison, the purpose must be to introduce them to prison conditions, he said.
Mr Leburu said the magistrate failed to consider the appellant had already spent a month in prison and thus having been introduced to prison conditions.

Therefore, Mr Leburu submitted that the maximum sentence may only be imposed in exceptional cases but there was nothing exceptional about the current case. He argued that the magistrate adopted a course she was not entitled to adopt given the punishment should fit the crime.

Meanwhile, Mr Leburu said the magistrate court had no discretion under the Act in the absence of a clear statutory provision to order forfeiture of the drugs.

He said the magistrate court would not have discretion on the basis of another Act of Parliament such as the Criminal Procedure and Evidence Act for, which did not deal with drugs nor specifically conferred such discretion to order forfeiture. Mr Leburu, therefore, submitted that courts should not succumb to state pressures and begin to forfeit people’s property outside the law.

In her reply, state counsel from the Directorate of Public Prosecutions (DPP), Mrs Miriam Amos, said the state was opposed to the appeal because it felt no harm or injustice was done to the appellant.

She noted that sentence was primarily a matter of discretion for the trial court and that an appeal court would not generally interfere with the trial court’s sentence unless a misdirection which resulted in a failure of justice had been occasioned against the appellant.

Mrs Amos argued that under Section 15(1)(a)once one was convicted under the section the sentence was a fine of P10 000 and imprisonment for two years; two years, according to the Interpretation Act, being the maximum.

Regarding forfeiture, Mrs Amos submitted that it must be borne in mind that the appellant was convicted of importation of drugs without the director’s approval, meaning that he was unlawfully importing drugs.

She, therefore, said the same cannot be given back to him when he had the drugs unlawfully and was convicted accordingly. Mrs Amos said the move would be a mockery of justice and Botswana would be seen as condoning acts of criminality.

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 arrival, he was said to have informed airport officials that his luggage was left in Nairobi and would come on the same flight after two days and he would come to collect it.

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

As 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 are indeed ephedrine which needs consent of the director to pass through the country to its final destination.

Ephedrine is a second scheduled drug under Drugs and Related Substance Act. It is not a habit forming drug as it is a controlled drug and could be dispensed from a pharmacy because of its medicinal properties. Possession of ephedrine in Botswana does not constitute an offense but its importation needs a certificate from the director of health services. Ends