MASERU — A police constable convicted of possessing marijuana spent close to a year in jail before a High Court judge realised he had been charged under an outdated law.
The mistake only came to light when Justice Thamsanqa Nomngcongo heard Tšeliso Senthebane’s appeal two weeks ago.
In a classic case of miscarriage of justice, Senthebane was only freed last Thursday, a month before he was due to complete his one-year sentence.
Senthebane was convicted under the Dangerous Medicines Act No. 21 of 1973 and sentenced to one year imprisonment without an option of a fine on March 10 last year in Mohale’s Hoek.
In his appeal defence lawyer Haae Phoofolo had argued that the section of the Dangerous Medicines Act No. 21 of 1973, under which Senthebane had been convicted, had long been repealed by the Drugs Abuse Act 2008 when his client was arrested.
The proceedings against Senthebane had not begun after the 1973 law was repealed, Phooofolo argued.
He said the circumstances under which the accused was charged placed him outside the scope of the provisions of the Drugs Abuse Act because the crime he was charged with was allegedly committed in 2010, long after the repeal of the Dangerous Medicines Act in 2008.
“Logically there were no proceedings on the said charge pending or continuing in the court when the repealing Act was passed.”
Phoofolo told the court that there was no provision in the Drugs Abuse Act which was similar in content with the provisions of the repealed law.
“This means that the charge cannot even be amended to comply with the new law,” he submitted.
Justice Nomngcongo agreed and ordered that Senthebane be immediately released.
“Appellant’s appeal succeeds on the ground that he was wrongly charged and convicted under the repealed law, and it is ordered that Tšeliso Senthebane be released with immediate effect from custody,” Justice Nomngcongo ordered.
The judge said he was shocked that such a miscarriage of justice had happened.
“I am shocked,” the judge said.
Justice Nomngcongo said he would see Chief Justice Mahapela Lehohla about the mishap and ensure a similar situation does not occur again.
The crown did not oppose Senthebane’s release but said they would report the matter to the director of public prosecutions.