JANUARY J (SALIONGA J concurring):
 The appellants were charged for contravening section 3(b) read with sections1, 3(ii), 7, 8, 10, 14 and Part III of the schedule of Act 41 of 1971 (the Act)-Possession of potentially dangerous dependence-producing drugs (cannabis). They were each sentenced to N$1000 or six months imprisonment. This is a wrong charge. Cannabis is not listed in the schedules to the Act under Part III as a dangerous dependence-producing drug but listed under Part I as a prohibited dependence-producing drug.
 The magistrate further slavishly followed the submission by the public prosecutor and convicted the accused persons in terms of section 112(1)(a) of the Criminal Procedure Act, Act 51 of 1977 (the CPA). This court has in numerous cases stated that section 112(1)(a) is for trivial cases. Considering the prescribed sentences in the Act, possession of cannabis is not a trivial offence.
 Mr Gaweseb who represented the State in this appeal conceded that the appellants were charged with a wrong charge. He submitted that the conviction and sentence should be set aside, the matter be remitted to the magistrate for the appellants to be charged with the correct charge and to apply section 112(1)(b) of the CPA. I am not prepared to do that. It is the prerogative of the prosecution to decide if they wish to prosecute with the correct charge or not.
 The magistrate in any event left the magistracy. Further we were informed that one of the appellants passed away in the meantime.