R v Kabeli (Appeal Case No. CRI/A/2/2004 Criminal Case No. CR 531/01)

Case No: 
Media Neutral Citation: 
[2004] LSHC 13
Judgment Date: 
1 January, 2004



In the matter between:




Appeal Case No. CRI/A/2/2004

Criminal Case No. CR 531/01

District: MAFETENG


This is an appeal against the sentence. The accused was convicted on his plea of guilty by the Subordinate Court sitting at Mafeteng. There the accused was charged and convicted of the crime of CONTRAVENING SECTION 3(a) read with (c) DANGEROUS MEDICINES ACT NO. 21 of 1973.

It is being alleged that on the 7th day of December, 2001 and at HA LUMISI in MAFETENG District, the accused did unlawfully and intentionally deal in any prohibited medicine or any plant from which such medicine can be manufactured to wit 62 plants of dagga, without a permit or prescription.

These dagga plants were found growing in the garden of one MAPHEELLO KABELI by the police officer - Trooper SEKETE who received information regarding these plants while he was there at this village on duty with his colleagues. He asked MAPHEEELO KABELI about the said dagga plants in her garden. Her explanation was that the said dagga has been planted by her son - this accused. Trooper SEKETE uprooted the plants. Thereafter went to look for the accused - PHEELO KABELI at his place of work. There he introduced himself. He explained the purpose of his visit. The accused volunteered to accompany this Trooper SEKETE back to the accused's home. From there they went to the police station together with the plants of dagga. At the police station they counted the plants which were found to be sixty-two (62) in number. The size of the plants is not indicated. They were not weighed either.


The accused who was properly convicted on his own plea of guilty, was sentenced to six (6) months imprisonment without the option of a fine. He has appealed against the sentence imposed on the grounds that it is harsh and induces a sense of shock :-

  1. That he is the first offender.

  2. The crime with which he is charge offers an option of a fine.

  3. The sentence imposed is the maximum penalty provided under the said statute.

  4. The quantity of the dagga found growing in the garden is not much.

The magistrate in his reasons for sentence accepted that the accused is the first offender who has pleaded guilty to the charge and by so doing have saved the court some time. Nevertheless the magistrate insists that those two factors set out above, do not entitle the accused to be treated with leniency. That is not entirely correct because there are instances where even the first offenders find themselves in fail. But that happens where the crime which the first offender is convicted of is a very serious one. Such cases are very rare and exceptional. In everyday run of the mill cases, the accused usually benefits from the fact that he has a clean criminal record. Being in unlawful possession of a number of plants of dagga which are not even weighed to indicate its exact and precise quantity, is not such a serious crime.


The size of the alleged dagga plants is not mentioned. They could be mature, nearly ripe plants. They could just have been newly grown seedlings or medium size crop. All these is speculation. The quantity of the alleged dagga is not established to be such an enormous one that it warrants a harsh sentence. It must be the size and quantity of the dagga, which affect the determination of an appropriate sentence in the matter.

The plea of guilty may not necessarily mean that the accused is contrite. Where the accused is caught redhandedly, there may be no alternative but to tender a plea of guilty on his part. But for tendering such a plea the accused should not be punished, but should be rewarded. His plea of guilty should be taken into consideration as a mitigating feature to his sentence - not aggravation. For being the first offender and for pleading guilty to the charge should have earned the accused some reduction from the maximum penalty provided under the statute which created both this offence and the punishment for its contravention.

The magistrate has taken into account as an aggravating feature the fact that the accused indicated to the court that he has just come out of prison and that he is awaiting trial in the matter. The magistrate correctly pointed out that being an awaiting trial prisoner merely shows that the accused is suspected of committing the


offence for which he was arrested and placed in custody . Being a suspect should not move the accused into a category of those prisoners who have previous conviction. Being only a suspect, he may be charged or may not be charged. Even if he is eventually charged with the commission of that suspected crime, he may or may not be convicted. Therefore it is wrong for the court to pass a harsh sentence against him on the ground that he is awaiting trial for another offence. Furthermore the alleged offence which he is awaiting trial has not been disclosed. It is this very same one? Is it another offence? The magistrate did not investigate its relevancy to the present charge. If it is not a similar or related offence, it is irrelevant. It cannot be used as an aggravation of his sentence on the ground that the accused has the potential to offend.

At the age of fifty-nine (59) years accused is an old man who for his age should be treated with leniency. He has for all his life so far kept a very clean record because he has no previous convictions. The section under which he was charged and convicted provides for an option of a fine, which is a clear indication that the legislature in its wisdom envisaged the situations of difference in the treatment of offenders under this statute. The six (6) months is the maximum provided for by that section. No reason is given by magistrate for sentencing the accused to the


maximum penalty provided under the section, except that by being a suspect in another matter, as an indication that he has a potential to offend again. Anybody can be suspected. Being a suspect does not make the person a potential offender. In terms of SECTION 329 (1) (C) CRIMINAL PROCEDURE ACT NO.9 OF 1981 the sentence of six (6) months imprisonment without an option of a fine is set. aside and the sentence of one month or M100.00 is substituted in its place.



For Appellant : Mr. Monyako.