IN THE HIGH COURT OF LESOTHO In the matter
Seboka Mpe Appellant
Delivered by The Honourable Chief Justice. Mr.
Justice J.L. Kheola on 11/9/95
The appellant was charged with the crime of contravening
section 3 (2) (a) read with section 43 of the Internal Security Act
of 1966 (Arms and Ammunition). It being alleged that upon or
about the 21st day of September, 1989 and at or near Corn Exchange in
the district of Leribe the said accused did unlawfully have in his
possession a firearm, to wit AK47 rifle and 18 rounds of ammunition
without a certificate in force at the time.
He pleaded not guilty. At the end of the trial he was
convicted and sentenced to pay a fine of M70-00 or 7 months'
default of payment.
The appellant is now appealing to this court against the
conviction on the following grounds:
The conviction is against the weight ofevidence.
Taken together with that of the respondent'sevidence,
the evidence and the story of theappellant may reasonably
possibly be true. .
There is no basis upon which the appellant'sevidence
and that of his witnesses wasrejected. This is more so in
casu whenthere is no comment about their evidenceexcept
a cursory one on that of theappellant.
The evidence of P.W.I Trooper Rankhelepe, was to the
effect that following the information they had received, on the cede
1989 they went to the home of the appellant at Mapoteng.
He was accompanied by five police officers. They arrived there while
was already dark. When they approached the home of the appellant
they separated and approached the house from different directions.
approached the house in the direction of the front door. There was
light inside the house. He knocked at the main door which was
ajar. He found three men sitting at a table. They jumped with
surprise because he (P.W.I) was holding a big SLR rifle. The
pulled a big gun (rifle) that was lying on the table but it
fell on the floor. Two people who were with the appellant took to
heels. He followed them. He suddenly heard three gun reports
behind the house. He took cover and went back to the house. He met
appellant at the door holding a big rifle. He (P.W.I) pointed at
him with a pistol and took the big rile from him.
Thereafter he (P.W.I) heard many gun reports but kept on
holding the appellant. He then saw the lights of a vehicle and
rushed to it with the appellant. He discovered that it
was the police vehicle and found his colleagues there. He noticed
appellant was bleeding from the leg. He asked him about the
injury but the appellant did not answer him.
When he asked him about the rifle the appellant
explained but did not give him anything. They returned to their
Maputsoe police station
with the appellant being under arrest. He
examined the rifle and found that it was an AK47 rifle with serial
No. 1953 but there were
other numbers which were not part of the
serial number. There were eighteen rounds of ammunition. The
appellant was taken to Hlotse
Hospital for medical treatment.
Under cross-examination P.W.I insisted that the
appellant had only one wound on the leg. He denied that he had
He denied that they were accompanied by a civilian
named Manama Polaki when they arrived at the home of the appellant.
that on the following day i.e. the 22nd September, 1989 or
on the 23 September, 1989 the appellant was taken to the magistrate's
court and was remanded into custody.
P.M.2 Detective Trooper Tshabalala confirmed part of
P.W.1's story. He was not present when P.W.I found the appellant in
He says that when they approached the house they did so
from different sides. He was from the back. There was some shooting
he saw P.W.1 and the appellant standing somewhere near the
house. He went to them and saw that P.W.I was already holding an AK47
rifle which he did not have in his possession
when they left for the home of the appellant. Until he
parted with P.W.I when they approached the house of the appellant
not have an AK47 rifle in his possession.
P.W.2 says that when he came to P.W.I and the appellant
that night he noticed that the latter had a wound on the leg. He
the appellant had three injuries or wounds that night.
The appellant's story was that on the cede September,
1989 at about 6.00 p.m. he was sitting at his verandah with his wife,
children and one Lefa Hlajoane who is the headman of that
village. P.W.I and one Manama Polaki arrived. They ordered him to
both hands and they were pointing guns at him. They escorted
him to some place out of his yard. During the escort they shot him
times. He was taken to Maputsoe police station and spent the
night in a cell. On the following morning he was taken to his house
where an extensive search was made but nothing was found.
After the search he was taken to Hlotse police station
and then to Hlotse Hospital. He was admitted for a few days and then
to Queen Elizabeth II Hospital and remained there for
three weeks. After his discharge from the hospital he went to his
remained there for a week before he was again arrested by
the police. He says that the AK47 rifle (Exhibit "1") was
found in his possession but P.W.I was already holding it when he
The version of the appellant is substantially
corroborated by headman Lefa Hlajoane regarding the shooting of the
appellant by P.W.I
and Manama Polaki.
The learned magistrate who convicted the appellant has
not given any reasons for her judgment. What she did was to give a
of the evidence led by the prosecution and the defence and
suddenly returned a verdict of guilty. She has failed to give reasons
why she rejected the evidence of the appellant and his witnesses and
why she accepted the evidence by the prosecution. She blames
appellant for his failure to support his story with a medical report
to show that he had one injury on the foot. It seems to
me that the
learned magistrate misdirected herself as to upon whom the onus of
proof is in a criminal trial. The onus remains on
throughout the trial.
In R. v Difford. 1937 A.D. 370 at p. 373
Greenberg, J. said:
"... no onus rests on the accused to convince the
court of the truth of any explanation which he gives. If he gives an
even if that explanation is improbable, the court is not
entitled to convict unless it is satisfied, not only that the
is improbable, but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of his explanation
true, then he is entitled to his acquittal."
Similarly in R. v M. 1946 A.D. 1023 at p. 1027 Davis,
". . .the court does not have to believe the
defence story, still less does it have to believe it in all its
details; it is sufficient
if it thinks that there
is a reasonable possibility that it may be
In the present case the onus was on the prosecution to
prove that the appellant had only one wound on the foot. It was the
who took the appellant to Klotse Hospital. One wonders why
they did not produce a medical report which, under normal
would be found in the police docket.
It seems to me that the story of the appellant was,
reasonably possibly true. He ought to have been given the benefit of
It is correct that in cross-examination of the Crown
witnesses the Defence Counsel did not challenge the allegation that
was found in possession of a firearm. In Rex v 'Mota
Phafane 1980 (2) L.L.R. 260 it was held that it is important for
the defence to put its case to the prosecution witnesses as the trial
is entitled to see and hear the reaction of witnesses to every
important allegation. But failure to put his case does not always
imply an acceptance of the evidence of the Crown Witnesses. The
evidence for the defence is entitled to the same careful
as if the elements of the defence case had been put to
the witnesses for Crown.
In the present case the learned magistrate failed to
give careful consideration to the defence evidence as if the elements
defence case had been put to witnesses for the crown.
For the reasons stated above the appeal is allowed. The
appeal fee must be refunded to the appellant.
J.L. Kheola CHIEF JUSTICE
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