DESAI and Another v. THE STATE 1985 BLR 582 (HC)

Source:
Botswana Law Reports (1964 to date)/CHRONOLOGICAL LISTING OF CASES 1964 2019 Volume 3/1985/Cases Reported/DESAI and Another v. THE STATE 1985
BLR 582 (HC)
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DESAI and Another v. THE STATE 1985 BLR 582 (HC)
Citation 1985 BLR 582 (HC)
Court High Court, Lobatse
Judgment December 11, 1985
Judge O'Brien Quinn CJ
Counsel J. Redgment for the appellants.

O. Lepodisi, State Counsel, for the State.
Annotations
Flynote
Criminal procedure Evidence Expert witness Scientific analysis of drug Mandrax Habitforming drug Production of affidavits setting out
findings Explanation of finding by viva voce Expert witness crossexamined on findings Whether evidence sufficient to etablish nature of drug
in question.
Criminal procedure Evidence Admissibility Incriminating statement made in course of police investigation Whether statement a confession.
Criminal procedure Sentence Imposition of minimum sentence Long term of imprisonment with corporal punishment Whether punishment
inhuman or degrading HabitForming Drugs Act (Cap. 63:04) (1973 Rev.) as amended by Habit Forming Drugs (Amendment) Act, 1984 (Act No.
11 of 1984).
1985 BLR p583
Headnote
The two appellants arrived in a car at Mogo Hotel at Mogoditshane. There was a brown suitcase in the car. They were approached by police
officers who asked them about the contents of the suitcase. They said it contained tablets. When asked as to the nature of the tablets they
kept quiet. The police then 'seized the suitcase, opened it and found that it contained tablets in 52 plastic bags. The suitcase was sent to
Major General Neethling of the South African Police in Pretoria. He examined the contents of the suitcase and found that of the 52 plastic bags
in the suitcase, eight of the plastic bags contained 7848 tablets of mandrax. The appellants were then charged with being in unlawful
possession of habitforming drugs contrary to section 3(1)(b) of the HabitForming Drugs Act (Cap. 63:04) (1973 Rev.), before a senior
magistrate. At the trial, Major General Neethling produced two affidavits setting out what his findings were and how he reached those findings.
He also gave oral evidence and elaborated on the evidence contained in the affidavits and was crossexamined by the defence. The statement
made by the appellants when questioned as to the contents of the suitcase was admitted in evidence. The trial magistrate found the appellants
guilty of the offence charged and sentenced them to imprisonment for a minimum term of 13 years with corporal punishment. The appellants
appealed against both convictions and sentences. On appeal, counsel for the appellants argued that the evidence of Major General Neethling
was unsatisfactory in that there was no explanation of the test or tests which were made to ascertain whether or not the tablets were
mandrax tablets. He further argued that the evidence that the appellants had said that they had tablets was inadmissible as it was not shown
to have been voluntarily made. Counsel further contended that the imposition of a long term of imprisonment in addition to corporal punishment
was inhuman or degrading and that the provisions of section 3 (2) of Act No. 11 of 1984 prescribing such punishment were unconstitutional.
Held, dismissing the appeal: (1) if an expert's opinion is to carry any weight, it is essential for him to state his reasons. A court would not
ordinarily accept a bold statement of opinion on the very point it has to decide. In the instant case all that the witness was required to
establish was whether or not the tablets in question were mandrax tablets and he explained to the court a quo that they were mandrax tablets.
Nameng v. R.19641967 B.L.R. 33 (HC) and Nkgageng v. The State [1984] B.L.R. 230 distinguished.
(2) When the appellants said that the brown suitcase contained tablets, that evidence was not a confession, but merely an admission which
was, without doubt, voluntarily made, as no threat was made and no promise or inducement was held out to the appellants to make it and,
accordingly it did not require confirmation before a judicial officer. Dictum of Watkins Williams in Maruping v. R. 19641967 B.L.R. 20 (HC) at pp.
267; and of De Villiers. A.C.J. in R. v. Becker 1929 A.D. 167 at p. 171 applied. State v. Modisa 1981 B.L.R. 226 criticised.
(3) The imposition of long terms of imprisonment and minimum terms with additional mandatory corporal punishment for drugrelated offences,
while they are harsh punishments, must be looked at in the light of the gravity of the offences in respect of which they have been passed and if
there is no torture or similar forms of punishment legislated for in respect of them they cannot be such as could be termed punishments that are
inhuman or degrading. Consequently the provisions of section 3(2) and (3) of Act No. 11 of 1984 are not unconstitutional. Dicta of Aguda J.A. in
Petrus v. The State [1984] B.L.R. 14
1985 BLR p584
at pp. 32, 3940 and 41 and of Mckenna and White JJ. in Weems v. United States (1910) 54 L.Ed. 793 at pp. 799 and 807 respectively,
considered.
Cases referred to:
(1) Nameng v. R.19641967 B.L.R. 33 (HC)
(2) Nkgageng v. The State [1984] B.L.R. 230.
(3) State v. Modisa 1981 B.L.R. 226.
(4) Petrus v. The State [1984] B.L.R. 14, C.A.
(5) Tyler v. United Kingdom (1978) E.H.R.R. 1.
(6) Weems v. U.S. (1910) 217 U.S. 349; 54 L. Ed. 793.

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(7) Dabutha v. The State 19641967 B.L.R. 189 (CA).
11 of 1984).
1985 BLR p583
Headnote
The two appellants arrived in a car at Mogo Hotel at Mogoditshane. There was a brown suitcase in the car. They were approached by police
officers who asked them about the contents of the suitcase. They said it contained tablets. When asked as to the nature of the tablets they
kept quiet. The police then 'seized the suitcase, opened it and found that it contained tablets in 52 plastic bags. The suitcase was sent to
Major General Neethling of the South African Police in Pretoria. He examined the contents of the suitcase and found that of the 52 plastic bags
in the suitcase, eight of the plastic bags contained 7848 tablets of mandrax. The appellants were then charged with being in unlawful
possession of habitforming drugs contrary to section 3(1)(b) of the HabitForming Drugs Act (Cap. 63:04) (1973 Rev.), before a senior
magistrate. At the trial, Major General Neethling produced two affidavits setting out what his findings were and how he reached those findings.
He also gave oral evidence and elaborated on the evidence contained in the affidavits and was crossexamined by the defence. The statement
made by the appellants when questioned as to the contents of the suitcase was admitted in evidence. The trial magistrate found the appellants
guilty of the offence charged and sentenced them to imprisonment for a minimum term of 13 years with corporal punishment. The appellants
appealed against both convictions and sentences. On appeal, counsel for the appellants argued that the evidence of Major General Neethling
was unsatisfactory in that there was no explanation of the test or tests which were made to ascertain whether or not the tablets were
mandrax tablets. He further argued that the evidence that the appellants had said that they had tablets was inadmissible as it was not shown
to have been voluntarily made. Counsel further contended that the imposition of a long term of imprisonment in addition to corporal punishment
was inhuman or degrading and that the provisions of section 3 (2) of Act No. 11 of 1984 prescribing such punishment were unconstitutional.
Held, dismissing the appeal: (1) if an expert's opinion is to carry any weight, it is essential for him to state his reasons. A court would not
ordinarily accept a bold statement of opinion on the very point it has to decide. In the instant case all that the witness was required to
establish was whether or not the tablets in question were mandrax tablets and he explained to the court a quo that they were mandrax tablets.
Nameng v. R.19641967 B.L.R. 33 (HC) and Nkgageng v. The State [1984] B.L.R. 230 distinguished.
(2) When the appellants said that the brown suitcase contained tablets, that evidence was not a confession, but merely an admission which
was, without doubt, voluntarily made, as no threat was made and no promise or inducement was held out to the appellants to make it and,
accordingly it did not require confirmation before a judicial officer. Dictum of Watkins Williams in Maruping v. R. 19641967 B.L.R. 20 (HC) at pp.
267; and of De Villiers. A.C.J. in R. v. Becker 1929 A.D. 167 at p. 171 applied. State v. Modisa 1981 B.L.R. 226 criticised.
(3) The imposition of long terms of imprisonment and minimum terms with additional mandatory corporal punishment for drugrelated offences,
there is no torture or similar forms of punishment legislated for in respect of them they cannot be such as could be termed punishments that are
inhuman or degrading. Consequently the provisions of section 3(2) and (3) of Act No. 11 of 1984 are not unconstitutional. Dicta of Aguda J.A. in
1985 BLR p584
considered.
Cases referred to:
(1) Nameng v. R.19641967 B.L.R. 33 (HC)
(6) Weems v. U.S. (1910) 217 U.S. 349; 54 L. Ed. 793.
(8) R. v. NhIeko 1960 (4) SA 712.
(9) R. v. Becker 1929 A. D. 167.
(10) R. v. Deacon 1930 T.P.D. 233.
(11) Maruping v. R.19641967 B.L.R. 20 (HC).
Case Information
APPEAL from a decision in which the appellants were charged with being in unlawful possession of habitforming drugs and were convicted and
sentenced to a minimum of 13 years' imprisonment with corporal punishment.
J. Redgment for the appellants.
Judgment
O'BRIEN QUINN C.J. This is an appeal against both the convictions and sentences passed by a senior magistrate at Gaborone on 30 April 1985.
The two appellants were charged with being in unlawful possession of habitforming drugs contrary to section 3(1)(b) as amended and S.I. No.
37 of 1982 punishable under section 3(2)(a)(b)(c) of the HabitForming Drugs (Amendment) Act No. 11 of 1984 and it was alleged that they had
unlawfully in their possession 52,000 tablets of methaqualone (BP), otherwise known as mandrax, tablets.
The learned senior magistrate found that the following facts were common cause
"The facts in common are that the two accused arrived in a car at the Mogo Hotel at Mogoditshane on 9 November 1984, with a brown suitcase.
They were approached by CID officers of the Botswana Police. The suitcase was seized by the officers and the accused were arrested. In the
presence of both accused and three other detective officers including an ASP, the fourth witness for the prosecution asked the accused what was in
the suitcase. What was said then by the accused is in dispute. The suitcase was not locked but when opened was found to contain tablets in 52
plastic bags. The lodgings of each accused were searched then and the fourth witness for the prosecution found a green suitcase. It is common
cause that this belonged to the first accused. Behind a torn lining of the case he found what appeared to be crushed particles of tablets. That much
is in common as between the State and the first accused. Briefly the prosecution alleges when the accused was approached by the police at the
Mogo Hotel and questioned about what was in the brown suitcase they said 'tablets'. The contents of each suitcase were examined by the seventh
witness for the prosecution on 15 November 1984 at Pretoria and of the 52 packets only eight were
1985 BLR p585
O'BRIEN QUINN CJ
found to contain the prescribed methaqualone and this amounted to 7848 tablets.
The particles found in the green suitcase weighed 0.17 grams and were found also to contain methaqualone. On receipt of the seventh witness for
1985 BLR p584
considered.
Cases referred to:
(1) Nameng v. R.19641967 B.L.R. 33 (HC)
(6) Weems v. U.S. (1910) 217 U.S. 349; 54 L. Ed. 793.
(8) R. v. NhIeko 1960 (4) SA 712.
(9) R. v. Becker 1929 A. D. 167.
(10) R. v. Deacon 1930 T.P.D. 233.
(11) Maruping v. R.19641967 B.L.R. 20 (HC).
Case Information
APPEAL from a decision in which the appellants were charged with being in unlawful possession of habitforming drugs and were convicted and
sentenced to a minimum of 13 years' imprisonment with corporal punishment.
J. Redgment for the appellants.
Judgment
O'BRIEN QUINN C.J. This is an appeal against both the convictions and sentences passed by a senior magistrate at Gaborone on 30 April 1985.
The two appellants were charged with being in unlawful possession of habitforming drugs contrary to section 3(1)(b) as amended and S.I. No.
37 of 1982 punishable under section 3(2)(a)(b)(c) of the HabitForming Drugs (Amendment) Act No. 11 of 1984 and it was alleged that they had
unlawfully in their possession 52,000 tablets of methaqualone (BP), otherwise known as mandrax, tablets.
The learned senior magistrate found that the following facts were common cause
"The facts in common are that the two accused arrived in a car at the Mogo Hotel at Mogoditshane on 9 November 1984, with a brown suitcase.
They were approached by CID officers of the Botswana Police. The suitcase was seized by the officers and the accused were arrested. In the
presence of both accused and three other detective officers including an ASP, the fourth witness for the prosecution asked the accused what was in
the suitcase. What was said then by the accused is in dispute. The suitcase was not locked but when opened was found to contain tablets in 52
plastic bags. The lodgings of each accused were searched then and the fourth witness for the prosecution found a green suitcase. It is common
cause that this belonged to the first accused. Behind a torn lining of the case he found what appeared to be crushed particles of tablets. That much
is in common as between the State and the first accused. Briefly the prosecution alleges when the accused was approached by the police at the
Mogo Hotel and questioned about what was in the brown suitcase they said 'tablets'. The contents of each suitcase were examined by the seventh
1985 BLR p585
O'BRIEN QUINN CJ
the prosecution's affidavit on 5 February 1985 the fourth witness for the prosecution then warned and cautioned both accused for the charge."
When the appellants were called upon for their defence the first appellant's evidence was, according to the judgment at p. 32, as follows:
"His defence was that a man called Eddie Adams 'left his luggage here' and said he would pick it up later on. He never returned. Then he received a
message from Mr. Modi that Adams had telephoned to request that he leave the suitcase at Mogo Hotel with the hotel owner. It was in the course of
taking it to the hotel which they found was closed that they were appproached by the CID. He never said to the police when asked what was in the
suitcase that it contained tablets. He had kept what he called 'sleepy tablets' in the green suitcase, given as prescribed when he was in hospital. He
never told the police this because he says he wasn't asked. He did not know the tablets were mandrax."
While the second appellant's evidence in defence was:
"The second accused also giving evidence on oath confirmed the delivery of the brown suitcase by Adams but most of his evidence is worthless. It
was heavily adverse towards the first accused suggesting that before they jointly visited the Mogo Hotel they had gone to the Gaborone Sun Hotel
where the first accused had picked up a white man and driven to the Mogo Hotel. At the Mogo Hotel there was another white man with a beard. Mr.
Desai spoke to the white man he picked up in Afrikaans. The second accused was told to sit at a table while the first accused spoke to the two white
men in the bar. From some distance the second accused saw the first accused open the suitcase to show them the contents. Thereafter the two
white men left. The first accused then joined the second accused and then they were approached by the CID."
During the evidence of the second accused an adjournment took place, during which adjournment it was alleged that the second appellant had
been taken out of prison and persuaded by the police prosecutor to give false evidence against the first appellant in consideration for which he
would make him a State witness and release him. This allegation and others were made in a letter addressed by the second appellant to the
Commissioner of Police but the letter was never sent to the Commissioner of Police.
The court d quo, of its own motion, recalled the fourth witness for the prosecution, who was the police witness who took the second appellant
out of the prison in the course of the trial, and his evidence was that the second appellant had complained to a prison officer that he had been
troubled by the first appellant and wanted to disclose the whole information to the police, that the prison officer contacted the police and that
the fourth witness for the prosecution took the second appellant to Mr. Setiko, a senior police officer. At the meeting which the second
appellant had with the police it transpired that his complaints
1985 BLR p586
O'BRIEN QUINN CJ
were: (1) that the first appellant had threatened to kill him, (2) that he had destroyed his documents and (3) that he the first appellant had
tried to persuade the second appellant to take the blame, but Mr. Setiko, quite properly, merely advised him to consult the prison authorities.
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1985 BLR p585
O'BRIEN QUINN CJ
the prosecution's affidavit on 5 February 1985 the fourth witness for the prosecution then warned and cautioned both accused for the charge."
When the appellants were called upon for their defence the first appellant's evidence was, according to the judgment at p. 32, as follows:
"His defence was that a man called Eddie Adams 'left his luggage here' and said he would pick it up later on. He never returned. Then he received a
message from Mr. Modi that Adams had telephoned to request that he leave the suitcase at Mogo Hotel with the hotel owner. It was in the course of
taking it to the hotel which they found was closed that they were appproached by the CID. He never said to the police when asked what was in the
suitcase that it contained tablets. He had kept what he called 'sleepy tablets' in the green suitcase, given as prescribed when he was in hospital. He
never told the police this because he says he wasn't asked. He did not know the tablets were mandrax."
While the second appellant's evidence in defence was:
"The second accused also giving evidence on oath confirmed the delivery of the brown suitcase by Adams but most of his evidence is worthless. It
was heavily adverse towards the first accused suggesting that before they jointly visited the Mogo Hotel they had gone to the Gaborone Sun Hotel
where the first accused had picked up a white man and driven to the Mogo Hotel. At the Mogo Hotel there was another white man with a beard. Mr.
Desai spoke to the white man he picked up in Afrikaans. The second accused was told to sit at a table while the first accused spoke to the two white
men in the bar. From some distance the second accused saw the first accused open the suitcase to show them the contents. Thereafter the two
white men left. The first accused then joined the second accused and then they were approached by the CID."
During the evidence of the second accused an adjournment took place, during which adjournment it was alleged that the second appellant had
been taken out of prison and persuaded by the police prosecutor to give false evidence against the first appellant in consideration for which he
would make him a State witness and release him. This allegation and others were made in a letter addressed by the second appellant to the
Commissioner of Police but the letter was never sent to the Commissioner of Police.
The court d quo, of its own motion, recalled the fourth witness for the prosecution, who was the police witness who took the second appellant
out of the prison in the course of the trial, and his evidence was that the second appellant had complained to a prison officer that he had been
troubled by the first appellant and wanted to disclose the whole information to the police, that the prison officer contacted the police and that
the fourth witness for the prosecution took the second appellant to Mr. Setiko, a senior police officer. At the meeting which the second
1985 BLR p586
O'BRIEN QUINN CJ
The senior magistrate carefully weighed up the evidence in the whole case and, despite certain discrepancies which had been pointed out by
chain of transmission of the exhibits and the quality of the expert evidence, held that the case really turned on one issue, namely, did the
accused know what was in the brown suitcase. The senior magistrate found as follows:
"The two accused had a suitcase in a car containing 52 packets of tablets each containing approximately 1000. It is true that only eight of the
packets were found to contain mandrax. By any normal standards outside the medical or pharmaceutical trade this would be a very large quantity. It
is of such notorious and common knowledge that there is a lucrative illicit market in mandrax both in Botswana and South Africa. If the accused knew
the general nature of the contents of the case and in such a quantity, and I find that they did, then they must have known the nature of the market
for which they were intended. Why would Adams not have them retain the case at their lodgings if Adams was to collect it? He could more easily and
safely have done so from there. Why risk the accused as carriers taking such a valuable consignment to the hotel. In all these circumstances I draw
the inference both accused were aware the tablets contained mandrax and I convict them as charged."
The appeal against conviction was based in the following grounds:
"A I The learned magistrate erred in finding that the State had proved a definite number of tablets contained methaqualone;
II The learned magistrate erred in failing to exclude evidence that the accused said the brown suitcase contained 'tablets';
III The learned magistrate erred in not placing weight on his finding that the suitcase was not concealed;
IV The learned magistrate erred in drawing an adverse inference from the fact that Adams told the accused to take the suitcase to the hotel;
V The learned magistrate erred in finding that the accused 'knew the general nature of the contents of the case';
VI Alternatively to V, the learned magistrate erred in failing to consider whether the accused believed that all the tablets were nonhabit forming
drugs."
And, in addition, the following ground was argued on the question of sentence:
"The provisions of subsection (2) of the proviso to subsection (3) of section 3 of the HabitForming Drugs (Amendment) Act 1984, are ultra vires
section 7 of the Constitution in that they provided for inhuman or degrading punishment."
On the first ground, i.e. A. I it was argued that the evidence of Major General Neethling was unsatisfactory in that there was no explanation of
the test or tests which were carried out and reliance was
1985 BLR p587
O'BRIEN QUINN CJ
placed on what was held by Roper, Acting Chief Justice, in Nameng v. R.19641967 B.L.R. 33 (HC) at p. 34 namely:
"The Court does not blindly accept the expert's evidence. Its function is to decide whether it can reasonably and safely act upon the evidence."
It was also argued, following what Corduff J. held in Nkgageng v. The State [1984] B.L.R. 230 that an expert witness should give details as to
how he had come to the conclusion that the exhibit before the court was the drug in question.
The question of the chain of transmission establishing that the seventh witness for the prosecution received the brown suitcase in the condition
in which it was found was also raised.
In arguing ground B II it was contended that the evidence that the appellants had said that they had tablets, was inadmissible, as it was not
shown to have been voluntarily made. Reliance was placed on State v. Modisa 1981 B.L.R. 226 at p. 227, Cross on Evidence (5th ed.) (1979) at
p. 247, and Phipson and Elliot,.Manual of the Law of Evidence (11th ed.) at p. 183, for the proposition that what the appellants had said was an
incriminating admission which was, thus, inadmissible unless shown to have been voluntarily made.
It was further argued that the senior magistrate failed to take account of the fact that the brown suitcase was visible to any onlooker and his
reasoning regarding the nonexistence of the person referred to as Adams should be set aside as it was contended that an unwitting agent
would not be aware of any risk and would therefore transport the suitcase openly.
The argument was also raised that the finding that if the appellants knew the general contents of the suitcase and the quantity, they must
1985 BLR p586
O'BRIEN QUINN CJ
The senior magistrate carefully weighed up the evidence in the whole case and, despite certain discrepancies which had been pointed out by
chain of transmission of the exhibits and the quality of the expert evidence, held that the case really turned on one issue, namely, did the
accused know what was in the brown suitcase. The senior magistrate found as follows:
"The two accused had a suitcase in a car containing 52 packets of tablets each containing approximately 1000. It is true that only eight of the
packets were found to contain mandrax. By any normal standards outside the medical or pharmaceutical trade this would be a very large quantity. It
is of such notorious and common knowledge that there is a lucrative illicit market in mandrax both in Botswana and South Africa. If the accused knew
the general nature of the contents of the case and in such a quantity, and I find that they did, then they must have known the nature of the market
for which they were intended. Why would Adams not have them retain the case at their lodgings if Adams was to collect it? He could more easily and
safely have done so from there. Why risk the accused as carriers taking such a valuable consignment to the hotel. In all these circumstances I draw
the inference both accused were aware the tablets contained mandrax and I convict them as charged."
The appeal against conviction was based in the following grounds:
"A I The learned magistrate erred in finding that the State had proved a definite number of tablets contained methaqualone;
II The learned magistrate erred in failing to exclude evidence that the accused said the brown suitcase contained 'tablets';
III The learned magistrate erred in not placing weight on his finding that the suitcase was not concealed;
IV The learned magistrate erred in drawing an adverse inference from the fact that Adams told the accused to take the suitcase to the hotel;
V The learned magistrate erred in finding that the accused 'knew the general nature of the contents of the case';
VI Alternatively to V, the learned magistrate erred in failing to consider whether the accused believed that all the tablets were nonhabit forming
drugs."
And, in addition, the following ground was argued on the question of sentence:
"The provisions of subsection (2) of the proviso to subsection (3) of section 3 of the HabitForming Drugs (Amendment) Act 1984, are ultra vires
section 7 of the Constitution in that they provided for inhuman or degrading punishment."
On the first ground, i.e. A. I it was argued that the evidence of Major General Neethling was unsatisfactory in that there was no explanation of
1985 BLR p587
O'BRIEN QUINN CJ
have known of the nature of the market, was based on the inadmissible evidence that the appellants had said that there were "tablets" in the
suitcase, and if the senior magistrate had believed the first appellant's explanation with regard to the green suitcase then there was no reason
not to believe him in regard to the brown suitcase.
The question of the conduct of the police prosecutor in having contacted the second appellant during the trial while he was in prison was also
raised and I was asked to show the court's displeasure at this alleged unethical conduct.
With regard to sentence it was argued that the provisions of subsection (2) and the proviso to subsection (3) of section 3 of the HabitForming
Drugs (Amendment) Act, 1984 are ultra vires section 7 of the Consitution in that they provided for "inhuman or degrading punishment".,
Reliance was placed on the Court of Appeal decision in Petrus v. The State [1984] B.L.R. 14, C.A. and in particular on the judgment of Aguda
LA. in that case. Reliance was placed also on Tyler v. United Kingdom (1978) 2 E.H.R.R. 1, and an article entitled "A Comparison of South
African and European views on corporal punishment" by Professor Middleton in the "Comparative and International Law Journal of Southern
Africa, Vol. XVII (1984) pp. 153 to 162 and Weems v. United States (1910) 217 U.S. 349 where dicta by Mr. Justice McKenna and Mr. Justice
White were cited. The point argued was that imprisonment for a minimum term of 13 years plus corporal punishment
1985 BLR p588
O'BRIEN QUINN CJ
is cruel and unusual, that is to say ex facie "inhuman and degrading", and so is ultra vires section 7 of the Constitution.
State Counsel replied to the points raised and seemed to be inclined to agree in part, at least, with the arguments on sentence.
I have given all the matters raised due consideration and I will deal with them in order.
With regard to the question of Major General Neethling's evidence and the authorities cited on the subject of expert evidence, I would, first of
all, say that this witness produced in the court a quo two comprehensive affidavits setting out what his findings were and how he reached
those findings. Secondly, in open court, he elaborated on the evidence contained in these affidavits and was subjected to rigorous cross
examination which took up almost two pages of the typed record. Under crossexamination he explained his experiments, explained how the
tests which he carried out were carried out in the same way in Washington and London and also pointed out that a test of a 10 per cent sample
of 1,000 tablets was internationally recognised as being sufficient to establish the nature of the drug being tested. With regard to the two
cases cited on the point namely, Nameng v. R.19641967 B.L.R. 33 (HC) and Nkgageng v. The State [1984] B.L.R. 230 I would point out that
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1985 BLR p587
O'BRIEN QUINN CJ
have known of the nature of the market, was based on the inadmissible evidence that the appellants had said that there were "tablets" in the
suitcase, and if the senior magistrate had believed the first appellant's explanation with regard to the green suitcase then there was no reason
not to believe him in regard to the brown suitcase.
The question of the conduct of the police prosecutor in having contacted the second appellant during the trial while he was in prison was also
raised and I was asked to show the court's displeasure at this alleged unethical conduct.
With regard to sentence it was argued that the provisions of subsection (2) and the proviso to subsection (3) of section 3 of the HabitForming
Drugs (Amendment) Act, 1984 are ultra vires section 7 of the Consitution in that they provided for "inhuman or degrading punishment".,
Reliance was placed on the Court of Appeal decision in Petrus v. The State [1984] B.L.R. 14, C.A. and in particular on the judgment of Aguda
LA. in that case. Reliance was placed also on Tyler v. United Kingdom (1978) 2 E.H.R.R. 1, and an article entitled "A Comparison of South
African and European views on corporal punishment" by Professor Middleton in the "Comparative and International Law Journal of Southern
Africa, Vol. XVII (1984) pp. 153 to 162 and Weems v. United States (1910) 217 U.S. 349 where dicta by Mr. Justice McKenna and Mr. Justice
1985 BLR p588
O'BRIEN QUINN CJ
they are clearly distinguishable in that the first one deals with the evidence of fingerprints and, in that case, the fingerprint expert did not go
and, in the second case, the court was dealing with evidence on affidavit only and not with vivavoce evidence which could be, as it was in the
instant case, subjected to crossexamination.
In my opinion the witness, Major General Neethling gave full and complete evidence, was subjected to crossexamination, and the senior
magistrate did not blindly accept his evidence. In Hoffman and Zeffertt, The South African Law of Evidence (3rd ed.) it is stated at pp. 856:
"In most cases, if an expert's opinion is to carry any weight, it is essential for him to state his reasons. As we have seen, the court should not
ordinarily accept a bald statement of opinion on the very point which it has to decide. In S v. Gouws [1967 (4) SA 527 (E)] an appeal was allowed
because a magistrate accepted the opinion of a chemist that Drinamyl ('purple hearts') was classified as a potentially harmful drug, without being
given an explanation of how the drug's chemical composition brought it within the relevant statutory category."
In the instant case all that the witness was required to establish was whether or not the tablets in question were mandrax tablets and he
explained in the court a quo that he found the amount of methaqualone in each tablet to be 54.4 per cent and rejected others which did not
contain methaqualone, which clearly shows that the tests were expertly and fairly carried out.
I consider that the senior magistrate had enough evidence from this witness for him to accept the correctness of what he said regarding the
composition of the tablets in question and I, therefore, reject this ground of appeal.
With regard to the claim establishing that the seventh witness for the prosecution (Major General Neethling) received the brown suitcase in the
condition in which it was found, this has not been seriously
1985 BLR p589
O'BRIEN QUINN CJ
challenged, and the point raised that the police in their keenness to get a conviction had approached the second appellant and told him he must
stick to the old statement which he had given or otherwise he would be in trouble was examined by the senior magistrate and found to be
baseless, I agree with the findings of the learned senior magistrate that the actions of the second appellant were just a ruse to gain audience
with someone connected with the investigation and prosecution of the case for his own purposes and I find that the chain of transmission of
the brown suitcase was proper and correct and was not interfered with by the police.
With respect to the findings of the senior magistrate at p. 4 regarding the use of the word "tablets" and the evidence of A.S.P. Setiko, at p. 20,
to the effect that some of the tablets were fake, it is clear, from the evidence of the seventh witness for the prosecution, at p. 27, that only
eight of the 52 packets contained methaqualone while the others contained tablets whose physical appearance did not differ and could not be
distinguished from mandrax, which to my mind indicates that the tests carried out by the seventh witness for the prosecution were proper, fair
and thorough and that he sorted out the real mandrax tablets from those which were not, and which could be termed fake mandrax tablets.
This is, I consider, what the senior magistrate also found and quite properly so.
On the
© 2018 Juta question of whether
and Company (Pty) Ltd.or not the admission of both appellants that what was in the
Downloaded brown
: Wed Augsuitcase was "tablets"
03 2022 11:10:56 amounted
GMT+0200 to a Standard Time)
(South Africa
confession is a point to which I have given much thought.
1985 BLR p588
O'BRIEN QUINN CJ
they are clearly distinguishable in that the first one deals with the evidence of fingerprints and, in that case, the fingerprint expert did not go
and, in the second case, the court was dealing with evidence on affidavit only and not with vivavoce evidence which could be, as it was in the
instant case, subjected to crossexamination.
In my opinion the witness, Major General Neethling gave full and complete evidence, was subjected to crossexamination, and the senior
magistrate did not blindly accept his evidence. In Hoffman and Zeffertt, The South African Law of Evidence (3rd ed.) it is stated at pp. 856:
"In most cases, if an expert's opinion is to carry any weight, it is essential for him to state his reasons. As we have seen, the court should not
ordinarily accept a bald statement of opinion on the very point which it has to decide. In S v. Gouws [1967 (4) SA 527 (E)] an appeal was allowed
because a magistrate accepted the opinion of a chemist that Drinamyl ('purple hearts') was classified as a potentially harmful drug, without being
given an explanation of how the drug's chemical composition brought it within the relevant statutory category."
In the instant case all that the witness was required to establish was whether or not the tablets in question were mandrax tablets and he
explained in the court a quo that he found the amount of methaqualone in each tablet to be 54.4 per cent and rejected others which did not
contain methaqualone, which clearly shows that the tests were expertly and fairly carried out.
I consider that the senior magistrate had enough evidence from this witness for him to accept the correctness of what he said regarding the
composition of the tablets in question and I, therefore, reject this ground of appeal.
With regard to the claim establishing that the seventh witness for the prosecution (Major General Neethling) received the brown suitcase in the
1985 BLR p589
O'BRIEN QUINN CJ
On the question of whether or not the admission of both appellants that what was in the brown suitcase was "tablets" amounted to a
The evidence on the point was first given by the first witness for the prosecution, and he said:
"On arrival at the car I could see inside the vehicle. There was a brown suitcase. Sgt. Galeboe asked the two accused what was inside the
suitcase. They said they had tablets. They did not mention what kind of tablets."
The evidence of the second witness for the prosecution was to the effect that: "Sgt. Galeboe asked the accused what was the contents. The
first accused said 'tablets'. The Sgt. asked them what type of tablets and they kept quiet."
The evidence of the third witness for the prosecution, A.S.P. Setiko, was to the effect that: "Sgt. Galeboe took the suitcase out of the car.
Before opening it he asked the accused what the suitcase contained. In reply they said tablets. Sgt. Galeboe opened the suitcase."
On this evidence it is clear that both of the appellants said and were aware that the brown suitcase contained tablets.
Mr. Redgment's argument is that by saying that the suitcase contained "tablets" the appellants were making a statement adverse to themselves
which would be admissible only if it were shown to be voluntary.
In State v. Modisa 1981 B.L.R. 226 Corduff J., following Dabutha v. The State 19641967 B.L.R. 189 (CA) at p. 194 and R. v. NhIeko 1960 (4)
S.A. 712 A.D. at p. 720 where Shreiner J.A. said: "The burden rests on the Crown to prove that any statement of the accused which it tenders
was freely and voluntarily made," held that the following evidence of a police officer relating to statement by an accused was inadmissible:
"I arrested one Jacob Modise, that is the accused person. I explained the matter to the accused and he said he found the radio on the road at the
Location during the night."
1985 BLR p590
O'BRIEN QUINN CJ
In contrast to that there is the case of R. v. Becker 1929 A.D. 167 at p. 171 where De Villiers A.C.J. described a confession as: "an unequivocal
acknowledgment of his guilt, the equivalent of a plea of guilty before a court of law . . ." and went on to say
"The admission by accused of facts which, when carefully scrutinised and may be laboriously pieced together, may lead to the inference of guilt on
the part of the accused, however, consonant that may be with the meaning of the term 'confession' in the abstract, is not a confession within the
meaning of the Act."
Further, it was also held in R. v. Deacon 1930 T.P.D. 233 that before there is a confession of an act made unlawful in certain circumstances the
statement must apparently admit the act and negative the exceptions the operation of which would except from liability.
I have examined these authorities and I have also had occasion to consider Maruping v. R.19641967 B.L.R. 20 (HC) at pp. 267, where Watkin
Williams C.J. discussed the question of a statement made by a suspect when the police are merely making enquiries under Rule 1 of the Judge's
Rules. There he held as follows:
1985 BLR p589
O'BRIEN QUINN CJ
On the question of whether or not the admission of both appellants that what was in the brown suitcase was "tablets" amounted to a
The evidence on the point was first given by the first witness for the prosecution, and he said:
"On arrival at the car I could see inside the vehicle. There was a brown suitcase. Sgt. Galeboe asked the two accused what was inside the
suitcase. They said they had tablets. They did not mention what kind of tablets."
The evidence of the second witness for the prosecution was to the effect that: "Sgt. Galeboe asked the accused what was the contents. The
first accused said 'tablets'. The Sgt. asked them what type of tablets and they kept quiet."
The evidence of the third witness for the prosecution, A.S.P. Setiko, was to the effect that: "Sgt. Galeboe took the suitcase out of the car.
Before opening it he asked the accused what the suitcase contained. In reply they said tablets. Sgt. Galeboe opened the suitcase."
On this evidence it is clear that both of the appellants said and were aware that the brown suitcase contained tablets.
Mr. Redgment's argument is that by saying that the suitcase contained "tablets" the appellants were making a statement adverse to themselves
which would be admissible only if it were shown to be voluntary.
In State v. Modisa 1981 B.L.R. 226 Corduff J., following Dabutha v. The State 19641967 B.L.R. 189 (CA) at p. 194 and R. v. NhIeko 1960 (4)
S.A. 712 A.D. at p. 720 where Shreiner J.A. said: "The burden rests on the Crown to prove that any statement of the accused which it tenders
was freely and voluntarily made," held that the following evidence of a police officer relating to statement by an accused was inadmissible:
"I arrested one Jacob Modise, that is the accused person. I explained the matter to the accused and he said he found the radio on the road at the
1985 BLR p590
O'BRIEN QUINN CJ
"At that stage a caution is not required. Here the answer of the accused did not amount to a confession but to an admission only. If it had
amounted to a confession it would have been necessary to consider the provisions of s. 223 of the Criminal Procedure and Evidence Proclamation. As
it was an admission only the English law on the subject is applicable (see s. 272 Criminal Procedure and Evidence Proclamation)."
For section 223 and 272, now see sections 227 and 273. The practice of the police in Botswana is to follow the Judges' Rules as they apply in
the United Kingdom, up to the stage where section 227 of the Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.) comes to be
applied. Therefore, as in this instant case, the police were merely in the early stages of their investigation and the question of charging or
arresting the appellants had not arisen. When the appellants, therefore, said that the brown suitcase contained tablets, that evidence was not
a confession, but merely an admission which was, without doubt, voluntarily made, as no threat was made and no promise or inducement was
held out to the appellants to make it and, accordingly, it did not require confirmation before a judicial officer.
I base this reasoning on what was held by Watkin Williams C.J. in Maruping's case read in conjunction with the words of De Villiers A.C.J. in
Becker's case, and I consider that what was held by Corduff J. in Modisa's case went too far and extended the purport of the words of Shreiner
J.A. in NhIeko's case and the words of, Maisels J.A. (as he then was) in Dabutha's case to cover a different aspect of the matter entirely.
I, therefore, find that the senior magistrate was correct to hold that the statement of the appellants that the suitcase contained tablets was
admissible.
With regard to ground B Ill, it is true that the brown suitcase was openly in the back of the car and that no attempt was made to conceal it
but, for the argument to be raised that that showed a lack of guilty knowledge is somewhat weak. By finding that the suitcase was openly in
the motorcar and by finding that the appellants knew that the suitcase
1985 BLR p591
O'BRIEN QUINN CJ
contained tablets the senior magistrate failed to consider the question of the burden of proof and to make the next logical finding, namely that
section 12(2) and (3) of the HabitForming Drugs Act applied:
"(2) Any person who is upon or in charge of or who accompanies any vehicle, aircraft or animal, in or upon which there is any habitforming drug
mentioned in section 2 ... shall, until the contrary be proved, be deemed for the purposes of this Act, to be the possessor of such drug, plant or
portion of a plant.
(3) The burden of proving any fact which would be defence to a charge of contravening any provision of this Act shall lie upon the person charged."
There is nothing in the evidence on the record to show that the appellants established, on a balance of probabilities, that they were not the
possessors of the mandrax tablets in the brown suitcase and, that being the case, I must reject this ground of appeal, also, as I reject grounds
BIV and BV for the same reasons.
With regard to the conduct of the second appellant to which reference has been made earlier in respect of the prison episode, I accept the
1985 BLR p590
O'BRIEN QUINN CJ
"At that stage a caution is not required. Here the answer of the accused did not amount to a confession but to an admission only. If it had
amounted to a confession it would have been necessary to consider the provisions of s. 223 of the Criminal Procedure and Evidence Proclamation. As
it was an admission only the English law on the subject is applicable (see s. 272 Criminal Procedure and Evidence Proclamation)."
For section 223 and 272, now see sections 227 and 273. The practice of the police in Botswana is to follow the Judges' Rules as they apply in
the United Kingdom, up to the stage where section 227 of the Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.) comes to be
applied. Therefore, as in this instant case, the police were merely in the early stages of their investigation and the question of charging or
arresting the appellants had not arisen. When the appellants, therefore, said that the brown suitcase contained tablets, that evidence was not
a confession, but merely an admission which was, without doubt, voluntarily made, as no threat was made and no promise or inducement was
held out to the appellants to make it and, accordingly, it did not require confirmation before a judicial officer.
I base this reasoning on what was held by Watkin Williams C.J. in Maruping's case read in conjunction with the words of De Villiers A.C.J. in
Becker's case, and I consider that what was held by Corduff J. in Modisa's case went too far and extended the purport of the words of Shreiner
J.A. in NhIeko's case and the words of, Maisels J.A. (as he then was) in Dabutha's case to cover a different aspect of the matter entirely.
I, therefore, find that the senior magistrate was correct to hold that the statement of the appellants that the suitcase contained tablets was
admissible.
With regard to ground B Ill, it is true that the brown suitcase was openly in the back of the car and that no attempt was made to conceal it
but, for the argument to be raised that that showed a lack of guilty knowledge is somewhat weak. By finding that the suitcase was openly in
1985 BLR p591
O'BRIEN QUINN CJ
portion of a plant.
senior magistrate's findings and, while it was not proper for the police prosecutor to have become involved, the second appellant was the cause
of the whole incident and the police, on the evidence, were proved to have been blameless in the matter.
I, therefore, dismiss the appeal against conviction.
With regard to sentence, the whole question of the constitutionality of a long sentence of imprisonment coupled with a mandatory sentence of
corporal punishment has been raised.
In Petrus and Another v. The State [1984] B.L.R. 14 in which the Botswana Court of Appeal dealt with and decided that mandatory corporal
punishment in instalments was unconstitutional, the court left open the question of whether the provision for mandatory corporal punishment,
by itself, is in conflict with section 7 of the Constitution.
Nevertheless Aguda J.A. at p. 32 et seq. dealt with the question of whether or not corporal punishment per se was inhuman and degrading.
Aguda J.A., after dealing fairly with the arguments raised and authorities cited, some of which were, in this instant case, also cited to me, gave
as his opinion on the question that corporal punishment of an adult being inhuman, as follows at pp. 3940:
"I have no doubt in my mind that judicial flogging of an adult is a degrading form of punishment, but so long as the world community has not
reached that stage when it can be abolished throughout the world, just as slavery has been abolished, it must continue to exist in some countries ...
What I do not think I should do is make a final pronouncement on the issue. Suffice it to say that whatever views one may have of corporal
punishment of an adult as a form of punishment for an offence, it is, in so far as Botswana is concerned, saved by subsection (2) of section 7 of the
Constitution."
On the question of torture, inhuman punishment, degrading punishment and other treatment, Aguda J.A. was of the opinion that, at p. 41:
"Under the Botswana Constitution such punishment which is inherently inhuman and degrading is prohibited by subsection (1) of
1985 BLR p592
O'BRIEN QUINN CJ
section 7, and cannot be saved by subsection (2) of the section, notwithstanding the fact that public sentiments favour it."
The main point, however, which was argued by Mr. Redgment was that the imposition of a long term of imprisonment in addition to corporal
punishment was inhuman and degrading and section 3(2) of Act No. 11 of 1984, insofar as it stipulated imprisonment for a term of not less than
10 or more than 15 years and a fine of not less than P15 000 or in default of payment imprisonment for an additional term of not less than three
or more than five years and corporal punishment, was inhuman and degrading and therefore unconstitutional. And, in addition, it was argued
that subsection (2) of section 7 of the Consitution did not apply to section 3(2) of Act No. 11 of 1984 in that the form of punishment authorised
by that Act was not a punishment which was lawful immediately before the coming into operation of the Consitution in 1966. That is to say, a
minimum term of imprisonment, with a minimum default sentence and mandatory corporal punishment did not exist together as a sentence for
one offence prior to the coming into operation of the Constitution.
In the
© 2018 Jutafirst
and place Aguda
Company (Pty)J.A.
Ltd. did say at p. 41 of Petrus v. The State: Downloaded : Wed Aug 03 2022 11:10:56 GMT+0200 (South Africa Standard Time)
"But in this case if the National Assembly decides to lay down what in some sense amounts to minimum punishment, then 1 am not prepared to
1985 BLR p591
O'BRIEN QUINN CJ
portion of a plant.
senior magistrate's findings and, while it was not proper for the police prosecutor to have become involved, the second appellant was the cause
of the whole incident and the police, on the evidence, were proved to have been blameless in the matter.
I, therefore, dismiss the appeal against conviction.
With regard to sentence, the whole question of the constitutionality of a long sentence of imprisonment coupled with a mandatory sentence of
corporal punishment has been raised.
In Petrus and Another v. The State [1984] B.L.R. 14 in which the Botswana Court of Appeal dealt with and decided that mandatory corporal
punishment in instalments was unconstitutional, the court left open the question of whether the provision for mandatory corporal punishment,
by itself, is in conflict with section 7 of the Constitution.
Nevertheless Aguda J.A. at p. 32 et seq. dealt with the question of whether or not corporal punishment per se was inhuman and degrading.
Aguda J.A., after dealing fairly with the arguments raised and authorities cited, some of which were, in this instant case, also cited to me, gave
as his opinion on the question that corporal punishment of an adult being inhuman, as follows at pp. 3940:
"I have no doubt in my mind that judicial flogging of an adult is a degrading form of punishment, but so long as the world community has not
reached that stage when it can be abolished throughout the world, just as slavery has been abolished, it must continue to exist in some countries ...
What I do not think I should do is make a final pronouncement on the issue. Suffice it to say that whatever views one may have of corporal
punishment of an adult as a form of punishment for an offence, it is, in so far as Botswana is concerned, saved by subsection (2) of section 7 of the
Constitution."
On the question of torture, inhuman punishment, degrading punishment and other treatment, Aguda J.A. was of the opinion that, at p. 41:
1985 BLR p592
O'BRIEN QUINN CJ
In the first place Aguda J.A. did say at p. 41 of Petrus v. The State:
hold that such punishment ipso facto amounts to inhuman or degrading punishment. In the result therefore it is quite clear to me that at the moment
the provision of the Penal Code which makes it mandatory for a court to make an order for corporal punishment along with a term of imprisonment
cannot be held to be inhuman or degrading especially where one considers the gravity of the offences in respect of which this form of punishment is
prescribed."
In the United States case of Weems 54 L.Ed. 793 it is true that Mr. Justice McKenna did say at p. 799:
"What constitute a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something
inhuman and barbarous,torture and the like. McDonald v. Com. 173 Mass. 322, 73 Am. St. Rep. 293, 53 N.E. 874. The court, however, in that case,
conceded the possibility 'that punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a
cruel and unusual punishment'."
However, Mr. Justice White, in the same case, when he was examining legislation in the light of the Eighth Amendment to the U.S. Constitution
said at p. 807:
"In the first place, if it be that the lawmaker, in defining and punishing crime, is imperatively restrained by constitutional provisions to apportion
punishment by a consideration alone of the abstract heinousness of the offenses punished, it must result that the power is so circumscribed as to be
impossible of execution; or, at all events, is so restricted as to exclude the possibility of taking into account, in defining and punishing crime, all those
considerations concerning the condition of society, the tendency to commit the particular crime, the difficulty of detecting the same, the necessity for
resorting to stern measures of repression, and various other
1985 BLR p593
O'BRIEN QUINN CJ
subjects which have, at all times, been deemed essential to be weighed in defining and punishing crime. And certainly the paralysis of the
discretion vested in the lawmaking authority which the propositions accomplish is immeasurably magnified when it is considered that this duty of
proportioning punishment requires the taking into account of the standards prevailing in other or different countries or jurisdictions . . ."
Thus, as I see it, the first thing to consider is whether a minimum sentence of 10 years coupled with a default sentence of three years, and
corporal punishment in addition, can be said to be cruel, inhuman or degrading. In Petrus' case the question of the constitutionality of
mandatory corporal punishment in Botswana was raised but the Court of Appeal left the matter open. In Weems' case it was conceeded by Mr.
Justice McKenna that a long term of imprisonment might be so disproportionate to the offence as to constitute a cruel and unusual punishment
but, in the same case Mr. Justice White would appear to have considered that the Eighth Amendment was too restrictive and paralysed the
discretion of the lawmaker in taking into account all the factors to be considered in fixing an appropriate punishment.
To consider the length of the punishment without considering the gravity of the crime being punished would not be a proper approach. In the
law applicable to this instant case the aim of the Legislature has been to punish and repress possession or dealing in mandrax which is a habit
forming
© 2018 drug.
Juta and Drugrelated
Company (Pty) Ltd.offences in respect of such drugs as cannabis, heroin, cocaine
Downloaded andAug
: Wed amphetamines are GMT+0200
03 2022 11:10:56 looked upon seriously
(South Africa Standard Time)
throughout the world and sentences for such offences are universally severe. Botswana is not the only country which has enacted strict
1985 BLR p592
O'BRIEN QUINN CJ
In the first place Aguda J.A. did say at p. 41 of Petrus v. The State:
hold that such punishment ipso facto amounts to inhuman or degrading punishment. In the result therefore it is quite clear to me that at the moment
the provision of the Penal Code which makes it mandatory for a court to make an order for corporal punishment along with a term of imprisonment
cannot be held to be inhuman or degrading especially where one considers the gravity of the offences in respect of which this form of punishment is
prescribed."
In the United States case of Weems 54 L.Ed. 793 it is true that Mr. Justice McKenna did say at p. 799:
"What constitute a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something
inhuman and barbarous,torture and the like. McDonald v. Com. 173 Mass. 322, 73 Am. St. Rep. 293, 53 N.E. 874. The court, however, in that case,
conceded the possibility 'that punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a
cruel and unusual punishment'."
However, Mr. Justice White, in the same case, when he was examining legislation in the light of the Eighth Amendment to the U.S. Constitution
said at p. 807:
"In the first place, if it be that the lawmaker, in defining and punishing crime, is imperatively restrained by constitutional provisions to apportion
punishment by a consideration alone of the abstract heinousness of the offenses punished, it must result that the power is so circumscribed as to be
impossible of execution; or, at all events, is so restricted as to exclude the possibility of taking into account, in defining and punishing crime, all those
considerations concerning the condition of society, the tendency to commit the particular crime, the difficulty of detecting the same, the necessity for
1985 BLR p593
O'BRIEN QUINN CJ
forming drug. Drugrelated offences in respect of such drugs as cannabis, heroin, cocaine and amphetamines are looked upon seriously
legislation to curb drugrelated offences. For example in the United Kingdom, drugrelated offences where cannabis is concerned attract
sentences from five to 14 years' imprisonment as they do where heroin, cocaine and LSD are concerned and also with regard to amphetamines.
In my opinion, the imposition of long terms of imprisonment and minimum terms with additional mandatory corporal punishment for such offences,
there is no torture or similar forms of punishment legislated for in respect of them they cannot be said to be such as could be termed
punishments that are inhuman or degrading and they come within what Mr. Justice White said in Weems' case, namely that the lawmaker ought
not to be "imperatively restrained by constitutional provisions to apportion punishment by a consideration alone of the abstract heinousness of
the offenses punished" and must not be "so restricted as to exclude the possibility of taking into account, in defining and punishing crime, of all
those considerations concerning the condition of society, the tendency to commit the particular crime, the difficulty of detecting the same, the
necessity for resorting to stern measures of repression, and various other subjects which have, at all times, been deemed essential to be
weighed in defining and punishing crime".
Thus, I find that section 3(2) and (3) of Act No. 11 of 1984 is not unconstitutional as mandatory corporal punishment is not, I consider, an
inhuman and degrading form of punishment and is thus not unconstitutional by virtue of section 7(2) of the Constitution. Further, long terms of
imprisonment are not unconstitutional particularly when
1985 BLR p594
they are commensurate with the gravity of the offences to which they apply, and a heavy fine with a minimum default sentence could not as I
have reasoned above, in any way, be held to be cruel, inhuman or degrading. And as the possession of and dealing in habitforming drugs is a
profitable enterprise the imposition of heavy fines and minimum mandatory default sentences could not be said not to be commensurate either.
The argument that such a combination of sentences did not exist prior to 1966 and, therefore, is not saved by subsection (2) of section 7 of
the Constitution does not, in my view, stand up, as the Penal Code which came into force on 10 June 1964 become the substantive criminal law
of the Bechuanaland Protectorate on that date and the unwritten substantive criminal law in force in the Colony of the Cape of Good Hope on
10 June 1891 no longer applied, and there was no prohibition, either on 10 June 1964, nor is there now, against the passing of long sentences,
the passing of minimum sentences in default of payment of fines, and the passing of mandatory corporal punishment. Therefore, if such a
sentence or combination of sentences was permissible prior to the coming into force of the Constitution on 30 September 1966, then it would be
saved by the terms of subsection (2) of section 7 of the Constitution.
I, therefore, hold that the senior magistrate was correct to have passed the sentences he did on both appellants and the appeals against
sentence by both appellants also fail.
Appeal dismissed.
E.K.T.
1985 BLR p594
1985 BLR p593
O'BRIEN QUINN CJ
forming drug. Drugrelated offences in respect of such drugs as cannabis, heroin, cocaine and amphetamines are looked upon seriously
legislation to curb drugrelated offences. For example in the United Kingdom, drugrelated offences where cannabis is concerned attract
sentences from five to 14 years' imprisonment as they do where heroin, cocaine and LSD are concerned and also with regard to amphetamines.
In my opinion, the imposition of long terms of imprisonment and minimum terms with additional mandatory corporal punishment for such offences,
there is no torture or similar forms of punishment legislated for in respect of them they cannot be said to be such as could be termed
punishments that are inhuman or degrading and they come within what Mr. Justice White said in Weems' case, namely that the lawmaker ought
not to be "imperatively restrained by constitutional provisions to apportion punishment by a consideration alone of the abstract heinousness of
the offenses punished" and must not be "so restricted as to exclude the possibility of taking into account, in defining and punishing crime, of all
those considerations concerning the condition of society, the tendency to commit the particular crime, the difficulty of detecting the same, the
necessity for resorting to stern measures of repression, and various other subjects which have, at all times, been deemed essential to be
weighed in defining and punishing crime".
Thus, I find that section 3(2) and (3) of Act No. 11 of 1984 is not unconstitutional as mandatory corporal punishment is not, I consider, an
inhuman and degrading form of punishment and is thus not unconstitutional by virtue of section 7(2) of the Constitution. Further, long terms of
1985 BLR p594
Appeal dismissed.
E.K.T.
1985 BLR p594
1985 BLR p594
Appeal dismissed.
E.K.T.
1985 BLR p594
E.K.T.
1985 BLR p594

DESAI and Another v. THE STATE 1985 BLR 582 (HC)

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DESAI and Another v. THE STATE 1985 BLR 582 (HC)

Citation 1985 BLR 582 (HC)

Court High Court, Lobatse

Judgment December 11, 1985

Judge O'Brien Quinn CJ

Counsel J. Redgment for the appellants.

1985 BLR p583

1985 BLR p584

Cases referred to:

(1) Nameng v. R.1964­1967 B.L.R. 33 (HC)

(2) Nkgageng v. The State [1984] B.L.R. 230.

(3) State v. Modisa 1981 B.L.R. 226.

(4) Petrus v. The State [1984] B.L.R. 14, C.A.

(5) Tyler v. United Kingdom (1978) E.H.R.R. 1.

(6) Weems v. U.S. (1910) 217 U.S. 349; 54 L. Ed. 793.

1985 BLR p583

1985 BLR p584

Cases referred to:

(1) Nameng v. R.1964­1967 B.L.R. 33 (HC)

(2) Nkgageng v. The State [1984] B.L.R. 230.

(3) State v. Modisa 1981 B.L.R. 226.

(4) Petrus v. The State [1984] B.L.R. 14, C.A.

(5) Tyler v. United Kingdom (1978) E.H.R.R. 1.

(6) Weems v. U.S. (1910) 217 U.S. 349; 54 L. Ed. 793.

(7) Dabutha v. The State 1964­1967 B.L.R. 189 (CA).

(8) R. v. NhIeko 1960 (4) SA 712.

(9) R. v. Becker 1929 A. D. 167.

(10) R. v. Deacon 1930 T.P.D. 233.

(11) Maruping v. R.1964­1967 B.L.R. 20 (HC).

J. Redgment for the appellants.

O. Lepodisi, State Counsel, for the State.

1985 BLR p585

1985 BLR p584

Cases referred to:

(1) Nameng v. R.1964­1967 B.L.R. 33 (HC)

(2) Nkgageng v. The State [1984] B.L.R. 230.

(3) State v. Modisa 1981 B.L.R. 226.

(4) Petrus v. The State [1984] B.L.R. 14, C.A.

(5) Tyler v. United Kingdom (1978) E.H.R.R. 1.

(6) Weems v. U.S. (1910) 217 U.S. 349; 54 L. Ed. 793.

(7) Dabutha v. The State 1964­1967 B.L.R. 189 (CA).

(8) R. v. NhIeko 1960 (4) SA 712.

(9) R. v. Becker 1929 A. D. 167.

(10) R. v. Deacon 1930 T.P.D. 233.

(11) Maruping v. R.1964­1967 B.L.R. 20 (HC).

J. Redgment for the appellants.

O. Lepodisi, State Counsel, for the State.

1985 BLR p585

While the second appellant's evidence in defence was:

1985 BLR p586

1985 BLR p585

While the second appellant's evidence in defence was:

1985 BLR p586

The appeal against conviction was based in the following grounds:

1985 BLR p587

1985 BLR p586

The appeal against conviction was based in the following grounds:

1985 BLR p587

(1) Nameng v. R.19641967 B.L.R. 33 (HC)

(1) Nameng v. R.19641967 B.L.R. 33 (HC)

(7) Dabutha v. The State 19641967 B.L.R. 189 (CA).

(11) Maruping v. R.19641967 B.L.R. 20 (HC).

(1) Nameng v. R.19641967 B.L.R. 33 (HC)

(7) Dabutha v. The State 19641967 B.L.R. 189 (CA).

(11) Maruping v. R.19641967 B.L.R. 20 (HC).