S v Lukas

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Salionga J and Small AJ
• Judgment Date: 22 October 2021
• Docket Number: HC-NLD-CRI-APP-CAL-2020/00026
• Hearing Date: 08 August 2021
• Court: Northern Local Division, Oshakati
• Citation: 2021 JDR 3025 (NmO)

Small AJ (Salionga J concurring):

Introduction:

[1]

The appellant was arraigned as accused 1 with two co-accused in the Magistrate's Court, Ohangwena on a charge of contravening section 2(a) of the Abuse of Dependence-Producing

2021 JDR 3025 p2

Small AJ (Salionga J concurring)

Substances and Rehabilitation Centres Act 41 of 1971. The State formulated the charge as follows:

'In that upon or about the 31st of August 2019, and at or near Okahauyulu Border in the district of Eenhana the accused did wrongfully and unlawfully deal in a prohibited dependence-producing drug or plant from which such drug can be manufactured to wit cannabis weighing 775 grams valued at N$7 750. Although the accused was charged in the alternative with the offence of possessing the same prohibited dependence-producing drug.'

[2]

The appellant pleaded guilty to the main charge on 14 October 2019 while his co-accused pleaded not guilty in both the main and alterative charge. The Court however entered a plea of not guilty in terms of section 113 of the Criminal Procedure Act 1977 after the appellant did not admit all the element of the alleged crime. After a trial on the same date his co-accused were acquitted on all charges while the appellant was convicted of the main count. On 15 October 2018 appellant was sentenced 5 years imprisonment of which 6 months imprisonment is suspended for a period of 5 years on condition that the appellant is not convicted of dealing in cannabis in contravention of section 2(a) of Act 41 of 1971 committed during the period of suspension. The appeal is against sentence only.

[3]

The appellant represents himself and the respondent is represented by Ms Khama.

[4]

The evidence presented indicates that the appellant, carrying a blue bag entered Namibia from Angola near but not through the Okahauyulu Border Post. When stopped by a police officer and asked what is in the bag, he indicated that it was cannabis, but he is only bringing it into Namibia on behalf of someone else. This contradicted the appellant's version when he pleaded that he did not know what the bag contained. The cannabis, properly identified and valued by another state witness, was packed in ten separate bags and further packed in a black plastic bag inside the blue bag.

[5]

Appellant elected not to give evidence after the State closed its case while both his co-accused gave evidence under oath. Accused two told the court that the appellant wanted him to take the blame for the bag of cannabis against payment of N$1000.00 and that he will pay whatever fine is imposed, but he refused to do so. Accused 3 told the court in his evidence that

2021 JDR 3025 p3

Small AJ (Salionga J concurring)

he saw the accused carrying the bag through the border until being stopped by the police officer but that he did not know what the bag contained. The appellant did not challenge this evidence in cross-examination.

[6]

Mr. Khama pointed out that the appellant's notice of appeal was filed out of time which requires an application for condonation showing a reasonable explanation and prospects of success on appeal. She submitted that appellant raises not valid grounds of appeal and even issues that were never placed before the trial court prior to sentence. She states further that this Court...