14 Jul 2015

Gaborone High Court Judge, Dr Key Dingake has set aside a one year conviction sentence but sustained a P10 000 fine imposed by a magistrate court to a South African national who had illegally imported drugs into the country.

The judgement follows a case in which the convict, Dewald Steyn De Beer was appealing both his sentence and conviction for unlawful importation of ephedrine drugs into the country.

The appellant was convicted by Village Court Magistrate, Ms Priscilla Ditlhong on November 18, 2014. The 23-year-old De Beer was fined P10 000 and two years imprisonment with one year set aside on condition that he did not commit any other offence within the next three years. 

In his judgement, Justice Dingake said he was of the opinion that the lower court imposed the maximum sentence considering the circumstances of the case and as such said it would be prudent for him to only impose a fine without a prison term.

He however, said he did not agree with the appellant’s lawyer, without elaborating much, that the drugs should be handed back to the owner. The drugs would therefore, be in the storage and care of the state, where it would be disposed in an appropriate manner. 

While making submission before the court, the appellant’s attorney, Mr Friday Leburu said the punishment was harsh and disproportionate with the offense committed. He noted that in sentencing, the basic requirement is that the discretion should be exercised reasonably and judiciously. 

He argued it was apparent that in imposing the sentence, the magistrate imposed the maximum 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 may impose either or both sentences.

Mr Leburu noted that the position of the law was very clear on how first offenders were to be sentenced and therefore submitted that the magistrate in imposing sentence did not appear to have taken into account 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, the nature of the offense and the interests of the society. He noted that the accused was schizophrenic and of poor health.

Furthermore, he submitted that the offence could in all seriousness be classified as a serious offence. If anything, he said, it was at the lowest end of serious offences and the society has not suffered as a result of his actions particularly that the drugs were destined for South Africa and Botswana was never the intended destination. He therefore, said the impact, if any, would be felt elsewhere. 

Mr Leburu further submitted that it was not in dispute that the drugs were in transit, noting that Drugs and Related Substances Act provide 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”. 

He submitted that courts have held that there were a small body of authorities in this jurisdiction on the point that where imprisonment was imposed on first offenders courts, especially magistrates courts, try as far as possible not to send first offenders to prison, saying if at all they were sent to prison, the purpose should be to introduce them to prison conditions. 

He said the magistrate failed to consider that the appellant had already spent a month in prison and thus having been introduced to prison conditions. He therefore, submitted that the maximum may only be imposed in exceptional cases and that there was nothing exceptional about the present case. He argued that the magistrate adopted a course she was not entitled to adopt, noting that the punishment should fit the crime.

Mr Leburu said the trial magistrate had no discretion under the Act in the absence of a clear statutory provision to that effect 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 example, which does not deal with drugs nor specifically confer such discretion to order forfeiture. He therefore submitted that courts should not succumb to pressures and begin to forfeit people’s property for the mere asking by state outside the law.

In her reply, the 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 is convicted under this section the sentence is a fine of P10 000 and imprisonment for two years; two years according to the Interpretation Act being the maximum.

Regarding forfeiture of the drugs, she submitted that it should 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 argued that same could not be given back to him when he had the drugs unlawful and was convicted accordingly. She said the move would be a mockery of justice system in Botswana as it would be seen as condoning acts of criminality. 

According to court records, 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 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 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 needed 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 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 needed a certificate from the director of Health Services. ENDS