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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

LEAVE TO APPEAL JUDGMENT

Case No CA 54:/2013

In the matter between:

THE STATE APPLICANT

And

VENASIU JANUARY RESPONDENT

Neutral citation: January v The State (CC 54-2013) [2016] NAHCNLD 46 (25 November 2015)

Coram:JANUARY J

HEARD:25 November 2015

DELIVERED:25 November 2015

Flynote:Criminal procedure ─Leave to appeal─Drugs ─Possession of cannabis─Proof that substance is cannabis─Police witness.

Summary: The respondent had been charged for contravening section 2(b)read with sections 1, 3(ii), 7, 8, 10, 14 and Part III of the Schedule to Act 41 of 1941 as amendedfor possession of dagga. He pleaded not guilty and elected to remain silent. After evidence was heard, the magistrate mero motudischarged the respondent in terms of section 174 of The Criminal Procedure Act 51 of 1977 (the CPA). The trial court misdirected itself on the law which may cause another court to come to a different conclusion. This court found that another court may conclude differently and that there are reasonable prospect of success on appeal. Leave to appeal was consequently granted.

ORDER

The application succeeds and leave to appeal is granted to appeal against the acquittal in terms of section 174 of the CPA.

LEAVE TO APPEAL JUDGMENT

JANUARY, J

[1]This application for leave to appeal was heard in chambers on 25 November 2015. Leave to appeal was granted. The State was represented by Mr Gaweseb and the respondent by Ms Mugaviri. Ms Mugaviri requested reasons for the order. I indicated that reasons will follow. These are the reasons.

[2]The respondent in this matter appeared in the Magistrates Court Oshakati on a charge of contravening section 2(b) of Act 41 of 1971, Unlawful possession of Cannabis. He pleaded not guilty and did not disclose the basis of his defence. He opted to remain silent. The respondent was discharged by the learned magistrate mero motu at the close of the State’s case in terms of section 174 of the Criminal Procedure Act, Act 51 of 1977 (the CPA). This application is in terms of section 310(1) read with 310(2)(a) of the CPA by the State for leave to appeal against the discharge and acquittal of the accused.

[3]The crux of this application is against the finding of the magistrate that there was not sufficient evidence before court to prove that the content of the substance that was found in respondent’s possession was cannabis (dagga). The magistrate relied on the case of S v Mteleni 1995 NR 127 HC for her decision.

[4]In the Mteleni case the accused was convicted for possession of dagga in contravention of section 2(b) of Act 41 of 1971. The accused in that case pleaded not guilty to a charge of contravening section 2(a) of Act 41 of 1971- dealing in, alternatively, a contravention of section 2(b) of Act 41 of 1971-possession of dagga. The accused in the Mteleni matter gave a plea explanation and denied having been found in possession of or dealing in dagga and further stated that she did not know what dagga was. The court on review set aside the conviction and sentence because the State failed to proof that the substance was dagga.

[5]The State presented evidence in the Mteleni case by a witness, a police officer, who testified that the substance was dagga. The reviewing judges however found that evidence of the witness was not reliable as it could hardly be found to prima facie proof that the substance was dagga. The reviewing judges with reference to S v Adams and Ten Other Similar Cases[1] , R v Kolisi[2] and S v Ndaba[3]set aside the conviction and sentence. The reviewing judges concluded in the Mteleni matter that the conviction and sentence could not stand because of lack of evidence which enables the court to assess the value of the opinion by the officer as there was no evidence how the officer knew that it was dagga. She could have testified on hearsay that it was dagga.

[6]In casu it was not in dispute that plastic bags containing substances were found in possession of the respondent. The respondent did not deny that it was dagga or that he did not know what dagga was. The case of the respondent is in my view distinguishable from the Mteleni matter. In this case a police officer testified that he received a training course in detecting drugs for 2 (two) months and an advanced course for three months. He knows cannabis (dagga). It is green in colour, has seeds and a moff smell that is not in any other plant.

[7]It is in my view inescapable that a prima facie case was made out at the close of the State’s case. The magistrate discharged the accused mero motuand in my view should have placed him on his defence. I conclude that the learned magistrate, with respect, misdirected herself. I find that another court may come to a different conclusion and that there are reasonable prospects of success on appeal.

[8]Consequently I granted leave to appeal against the acquittal in terms of section 174 of the CPA.

______

H CJANUARY

JUDGE

APPEARANCES:

FOR THE STATE:Adv. Gaweseb

Office of the Prosecutor-General

FOR THE ACCUSED:Ms Mugaviri

Mugaviri Attorneys

[1]1986 (3) SA 733 (C)

[2] 1960 (2) SA 374 (E)

[3] 1981 (3) SA 782 (N)