IN THE HIGH COURT OF LESOTHO
In the Appeal of :
DIRECTOR OF PUBLIC PROSECUTIONS Appellant
THE RESIDENT MAGISTRATE
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 4th day of March, 1982
This is an appeal by the Director of Public Prosecutions
in terms of section 73(8) of the Subordinate Courts Proclamation
against the Judgment of the Acting Senior Resident Magistrate
who summarily acquitted three accused persons on a charge of
being in possession of arms and ammunition without a certificate
contrary to s.3(2)(a) of the Internal Security (Arms and
Ammunition) Act No. 17 of 1966.
The three accused persons arrived in a vehicle at the
Lesotho border control check point of Sani Pass. At Sani Pass
the check point is not situate exactly on the recognised borders
of Lesotho but some 150 yards inside Lesotho. They alighted
therefrom and proceeded to the post.
It is not clear from the evidence whether there is one
building or two buildings at the post. I think that from the
record in all probabilities there was one structure but divided
into a customs section and a police section.
There was only one witness for the Crown Sgt, Lechesa.
The Sgt's evidence in chief was to the effect that he
saw the three accused seated at the customs office at 11.30 a.m.
on 21st April 1981. He was in civilian clothes at the time. He
asked for their passports, A1 and A2 produced theirs but A3
said he did not have one. He did not speak Sesotho well. The
three accused persons said they were ANC members and were
refugees from South Africa and were on their way to see a Mrs.
Tsinye a teacher and President of ANC in Maseru. At that stage
they did not disclose they carried firearms and ammunition. A1
was the first to be ushered to the police part of the building
and was made to stand against a wall and lift his hands up to be
searched. At that Juncture, and only then. Al is alleged to
have told the Sgt. to wait and declared he had a pistol on his
person. The Sgt. did not wait and he did indeed find a loaded
pistol and an extra loaded magazine.
A1 then volunteered the information that A2 and A3 (who
were still in the customs section) also had pistols and that the
vehicle they travelled in was full of other arms and ammunition.
A2 and A3 were brought in from the customs section to the police
section and searched. Both carried loaded pistols and magazines.
The vehicle when searched contained what was described as an
The accused could produce no certificates to carry the
arms and ammunition from the Lesotho authorities or other
The cross examination of the Sgt was confined to the
"I don't know whether a licence for a firearm in
Republic of South Africa is valid in Lesotho.
If a man from the Republic of South Africa has
a licenced firearm and enters Lesotho from the
Border I don't know whether such man is expected
to declare such firearm. I am at the Border for
the first time, I don't know whether I can charge
a man from Republic of South Africa, who has a
licenced firearm and declares it."
The defence argument was:
"It has got to be proved that accused had mens rea.
A person who on entering Lesotho declares his fire-
arm at the first port of entry has no mens rea to
possess those firearms in Lesotho. If the port of
entry is some distance away from the border in
international law and also from the point of view
of the laws governing the country, the area
between the boundary and the port of entry is
The fact of the matter, however, is that the accused did
not tell the policeman that they were holders of certificates
issued to them by the South African authorities. Since they
said they were ANC members coming to seek refuge in Lesotho it
is impossible to make an inference, without evidence, that they
may have had such certificates.
The magistrate gave no written reasons for acquittal
at the time and we do not know what he had said orally when
discharging the accused. The Director of Public Prosecutions
requested a case to be stated in terms of s.73(7) of the Sub-
ordinate Courts Proclamation. It was thought then apparently
that the magistrate had acquitted them on the ground that they
did not have "mens rea" but from the magistrate's reasons for
Judgment filed on 13th November 1981 it is clear that this was
not so. His reason was that as a matter of law the three
accused persons were not in Lesotho at the time because they
were still at the border post and had not crossed beyond it into
Lesotho proper. He then went on to say that the accused persons
were not given a chance to declare the arms and ammunition
whilst in the customs section and that they had not intended to
smuggle the arms into Lesotho for sinister purposes since they
have come through a recognised border post. He continues by
saying that the police should have pounced on them after they
crossed the post etc..
It seems to me that the learned magistrate had erred on
the law and had come to conclusions of speculative emotional
nature not substantiated by the evidence he heard. The
internationally recognised borders of Lesotho were crossed and
the accused were 150 yards within Lesotho already. The physical
situation of the check post was irrelevant to his inquiry which
was whether or not they held firearms and ammunition certificates
Without hearing the accused he could not make inferences based
on personal sympathies in violation of the prima facie evidence
of the Sgt. There was before the magistrate only an argument
that the accused intended to declare the 'arsenal". The actual
evidence was that A1 made the declaration only when he realised
he was going to be searched at the charge office building or
part of a building and surely they were in Lesotho then not in
so called "No man's land", A charge under this Act is not
analogous to instances of importation of prohibited articles
or goods by tourists or travellers in contravention of the
Customs and Excise Order 1970 and Regulations made thereunder
where different considerations may apply.
The accuseds1 acquittal was wrong in law and they should
have been convicted. The appeal is allowed and in terms of
s.73(10) I remit the case back to the magistrate who should give
sufficient notice to all parties to appear before him, reopen
the case, record a conviction, and then pass sentence. He can
at this stage take into account the mitigating factors which
appear to have influenced his mind.
It would seem that the three accused persons had been
in custody from 21st April 1981 to the 28th July 1981. Mr.
Peete tells me from the bar that the accused may no longer be
in the country to-day. If the magistrate finds that this is
in fact the case after the necessary enquiries and notices he
should nevertheless alter the Court records in his registry in
accordance with the law as laid down by the High Court in this
Judgment and apply it in all future cases, viz,
That the borders of Lesotho are the geographical
internationally recognised borders and not the
physical situation of any particular border or
police post therein.
That a person in possession of firearms or
ammunition within those borders without his
being able to produce a certificate from the
Lesotho authorities is ipso jure guilty of
an offence under this section of the Act.
4th March 1982
For Appellant : Mr. Peete
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