IN THE HIGH COURT OF LESOTHOIn the Appeal of
Delivered by the Hon. the Chief Justice Mr. Justice T.S.
Cotran on the 19th day of April 1984
Malefane Khetla and Tebalo Ntelele were convicted by a
magistrate of the first class at the Subordinate Court of Butha Buthe
in dagga (26 bags weighing 488 kg) contrary to Section
3(a) of the Dangerous Medicines Act 1973. Each was sentenced to
Both appealed to the High Court against conviction and
sentence and were released on bail pending appeal.
Khetla did not appear at the hearing.
Ntelele appeared to prosecute his appeal and was
represented by Mr. Khauoe.
The facts were simple. A police posse under the command
of W/0 Nyesemane stopped a closed van at a road block. It was driven
person who pleaded guilty to dealing in dagga. We are not now
concerned with him. The two appellants were seated next to the
The bags were inside the locked canope of the van.
There was no direct evidence whatsoever that the two
appellants had any knowledge of what the closed van contained.
There was no circumstantial evidence to indicate guilty
knowledge either. Both behaved quite normally, were utterly surprised
the van was opened by the driver to reveal the 26 bags, and both
said to Sgt. Mofolo (P.W.1), a member of the posse that they were
passengers going to Butha Buthe (p.3) The time when the police
stopped the vehicle was about 4pm., i.e. during day light, when
go about the normal business.
It seems to me that the appellants had no case to
answer. The magistrate however held that there was a case. The
to remain silent. But in this case the silence
could not have "strengthened" the case for the Crown. A
case will be "strengthened"
if there is some evidence. If
there is none the accused is exercising no more than his legal right
to say nothing.
The appeal must accordingly be allowed.
At the commencement of the hearing I did order the
arrest of the appellant Khetla who did not prosecute his appeal.
However, I must
now countermand this order because his position is
precisely the same as the appellant Ntelele who was successful. The
Ntelele will have his appeal fees refunded. Khetla will
forfeit his fees and the bail deposit will not be estreated to the
Crown as the appellant Khetla had now given a good excuse
for not appearing.
Crown Counsel incidentally did not support the
CHIEF JUSTICE 19th April 1984
For Appellant Mr. Khauoe
For Crown Miss Moruthoane
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