CRI/A/18/2002

IN THE
HIGH COURT OF LESOTHO

In the
matter between

MOEKETSI
HEISI APPELLANT

and

REX
RESPONDENT

JUDGEMENT

Delivered
by the Honourable Mrs. Justice K.J. GUNI On the 29th October. 2002

The
appellant was charged with and convicted of contravention of Section
3 (1) as read with Section 43 of INTERNAL SECURITY (ARMS AND
AMMUNITIONS) ACT NO. 17 of 1966 as amended. It is being alleged that
the accused did wrongfully and unlawfully have the firearm and
ammunitions in his possession to wit .22 revolver serial NO. 668747
with 6 rounds without a certificate in force at that time.

Although
it is indicated that this statute has been amended, the amendment has
not been cited. It was amended by INTERNAL SECURITY (ARMS AND
AMMUNITIONS) (Amendment) ACT N0.4 OF 1999. This amendment turned the
maximum penalties provided under that statute into minimum penalties.
Although the statute which the appellant is alleged to have
contravened is not fully cited, including the amendment, there is no
complaint regarding this defect. Perhaps because the point concerning
defective charge cannot be raised for the first time on appeal. It
should be raised timeously so that the defect could be remedied by an
amendment without prejudice to any of the parties. VOVA F. NAMEKO and
OTHERS Vs REGINA 1956 H.CTLR 48 at 50F. RV HERSCHEL 1920 AD 575.
Again that defect is not so material that the accused could have been
prejudiced in the conduct of his defence. In fact the accused pleaded
guilty to the charge. The public prosecutor having accepted the plea,
went on to outline the facts of the case thus:-

"One NO. 10583 Tpr Lebina would tell the court that he is a
member of LMPS stationed at Mokhotlong. Then on 27/01/02 he left with
Sgt. Letsoepa to Botsola Tlokoeng following the information that the
accused had illegal firearms and

2

ammunitions. They searched for accused and found him. They identified
themselves as police officers and they also explained the purpose of
their visit. The accused then handed over a .22 revolver and 6 rounds
to Tpr. Lebina. That is where he sought a licence/certificate for
that property. The accused failed to produce any. He then warned him
and gave him the charge and arrested him. He kept the gun and rounds
described in a charge sheet as exhibits. I hand them in as such.
Marked Exhibit "1" collectively. That is all."

The
appellant indicated that he has heard the facts as outlined and he
accepted them. Therefore that online became the statement of agreed
facts. Do they disclose the commission of the alleged offence? What
are the essential elements of the offence charged. First of all the
accused must be found in possession of the firearm. To be in
possession the accused must have the firearm under his full control.
MPHUTHI Vs REX 1974-5-LLR at page 423, 426-C The police officers
introduced themselves to the appellant. They explained to him the
purpose of their visit. The appellant handed over the firearm. The
presumption may safely be made here that the said firearm must have
been on the person of the accused. If not, it was within his easy
reach. Therefore he was in possession. Secondly, the accused was
asked for the licence/certificate in respect of that firearm. In
terms of the statute under which the accused was charged, he must
have in his

3

possession
the licence/certificate in force at the time he is found in
possession of the firearm. The relevant provisions of that statute
read as follows:-

"No person shall --------have in his possession any firearm or
ammunition-----. Unless he holds a firearm certificate in force at
the lime"

The
appellant does not claim that he is entitled to possess the firearm
with or without the certificate. The police demanded production of
the firearm certificate. The appellant failed to produce it. That was
on the 27th January 2002. When the appellant appeared before court on
the 29th January 2002, he did not attempt to produce that
certificate. He did not claim to be the holder of the firearm
certificate in respect of that firearm and ammunitions. He does not
claim the right to possess the firearm with or without the
licence/certificate. He was therefore properly convicted.

The
appellant was sentenced to two years without an option of a fine for
the following reasons. The appellant pleaded guilty to the charge.
This plea of guilt was regarded by the learned magistrate as a sign
of remorse. She further expressed her gratitute to the appellant

4

by not
wasting the court's time. Dealing with a plea of guilt takes much
less time than dealing with a full-blown trial. The appellant is the
first offender. This type of an offender is still regarded as a
fallen angel and is therefore treated with some liniency. So far,
these are the features relating to the offence. They must be
considered in favour of the appellant. In addition there are those
circumstances which are perculiar to the appellant and relate to his
person. These are that he is a married man. He has two wives and two
minor children. All those people are dependant upon him. They look up
to him for their support and maintenance. Those factors the learned
magistrate indicated that she considered them in favour of the
accused.

In
aggravation of sentences the learned magistrate considered that this
type of weapons is common in Mokhotlong. They are being used by
people who commit offences such as murder and robbery. The learned
magistrate took into account that payment of a fine, by accused who
has been convicted of this kind of offence, is easily effected. All
these factors were improperly taken into account by the

5

learned
magistrate when assessing an appropriate sentence in respect of this
appellant. She is not entitled to mere allege that this type of crime
is prevalent in Mokhotlong without providing the statistics to
support this allegation. She did not even mention a single case of
robbery or murder committed by use of illegal firearm there at
Mokhotlong. She could also have made a list of cases involving
possession of firearms in contravention of the Internal Security
(ARMS and AMMUNITIONS) Act (Supra) which that court has dealt with in
two or so years. It was not proper to consider the bare allegation of
prevalence of the offence against the accused. The option of a fine
is given solemnly for the purpose of affording a convicted person an
opportunity to stay out of jail if he or she can pay the fine. The
accused person's readiness to pay the fine should not be held against
her or him. It is also not proper to consider that other people
before him have found money to pay their fine, therefore this accused
should not be given an opportunity to pay the fine. The statute under
which the appellant was convicted specifically made a provision for
the payment of a fine.

6

Two years
term of imprisonment is extremely severe. In PHAPANO KHANYAPA and
Another V Rex 1997-1998 LLR and Legal Bulletin Page 8, the court of
Appeal set aside the maximum penalty which have been imposed for the
commission of an offence of contravening this very same statute. In
Khanyapa's case the appellant had used the firearm to commit murder.
The court upheld the conviction and sentence in respect of the murder
charge. The Honourable Mr. Justice Beck AJA, in his view, the maximum
penalty was reserved for extreme contraventions of that statute. The
appellant in our present case has not committed any offence with the
use of that firearm. He told the court that he acquired that revolver
in order to protect himself and his livestock. His intentions were
Honourable. Khanyapa attacked and murded someone but the Appeal court
felt that the contravention of this statute in his case was not
intended to be met with the maximum penalty provided under this
statute. This sentence in the present case must be in the extreme and
therefore must be set aside. The sentence of two years imprisonment

7

without
the option of a fine is set aside. It is substituted with a fine of
M400.00

K.J. GUNI

JUDGE

For
Appellant - M. Ntlhoki & Co.

For
Respondent - Director of Public Prosecutions

8