HIGH COURT OF LESOTHO
Case No. 270/2005 CR 1902 /2005
Order No. 5/2006 In the Maseru District
ORDER 23rd FEBRUARY 2006
an automatic review of a case which was tried in the Maseru
Magistrates' Court, by a 2nd class magistrate.
accused was charged with having committed two criminal offences as
: Malicious injury to property
COUNT II : Contravention of Section 3(1) (2) of the Internal Security
Arms and Ammunition, Act No. 16 of 1966 as amended.
to the charges are clearly spelt out in annexure A to the charge
complainant in count I is described as being Ntate Pakalitha
Mosisili. The crown alleges that the accused did, upon or about
24th day of September 2005 and at or near Matsoatlareng in the
district of Maseru wrongfully, unlawfully and with intention
injure Ntate Pakalitha Mosisili in his property open fire and shot
the dog of the said Ntate Mosisili and did commit the crime
II, the accused is charged with having committed the offence of
contravening the provisions of Section 3(1) (2) of the
Security Arms and Ammunition Act of 16 of 1955 as amended, in that
upon or about the 24th September 2005 and at or near
the district of Maseru, the said accused did wrongfully and
unlawfully purchase, acquire or have in his possession
serial No.JSA15210 without a firearm certificate and did commit the
offence as aforesaid.
accused was convicted on his own pleas in both counts. The facts are
briefly that on the day in question, one Thabo Maphasa
the cattle of the complainant.
said Thabo had with him some two dogs belonging to the complainant.
He returned home at about or around 4:30pm. That Thabo
accused and that the accused had requested Thabo to stop his
(Thabo's) dogs from biting him (accused). At that request
called the said dogs to himself and he asked the accused to pass on
saying the dogs will not harm accused.
accused was also in the company of his dog. Instead of going passed
Thabo and the dogs, the accused set his dog against. those
The dogs of Thabo which are described as having been taller than
those of the accused bit that of accused. This happened
the said Thabo had tried to stop his dogs from injuring the accused's
realized that his dog had been injured, the accused went to his home
which was apparently not far from where he had met Thabo.
came back to where Thabo was. He was then armed with a short gun. He
then short at the said two dogs of Thabo, injuring
one of them
incident was later reported to the complainant and the police.
Accused was ultimately arrested and given a charge after all
formalities had been complied with.
accused did not have a firearm certificate/license in respect of that
short gun. This short gun was handed in as exhibit 1.
learned magistrate did, at the end of the day order that exhibit 1 be
returned to the lawful owner. There is however no indication
who that lawful owner is.
learned magistrate imposed the following sentences upon the accused:
Count I :
"M500.00 or 5 months".
Count II: "M5,000.00 or 4 years, 1/2 suspended for 1 year
without committing a similar offence".
court is particularly concerned about the sentence imposed by the
learned magistrate upon the accused in count II.
concern of the court is that the Provisions of the Law which the
accused is alleged to have contravened do not deal with unlawful
possession of a firearm. Act No. 16 of 1966 is the Aliens Control Act
which makes provision for restricting and regulating the
aliens, into and out of Lesotho, for their sojourn therein, and for
related and connected matters.
which deals with matters related and connected with firearms and
ammunition and other transactions, is Act No. 17 of 1966
Security (Arms and Ammunition Act 1966). It is therefore clear that
the accused has in count II been charged, convicted
irregularly under a wrong law.
improper but then the most important consideration herein is that of
prejudice. Can it be said that in the circumstances
of this case the
accused has been prejudiced in his defence?
answer to this should, in the mind of this court, be in the negative
because it is a matter of common cause that the accused
used a short
gun to commit the offence in count II.
however always important that framers of charge sheets and indeed the
court before which the case against the accused is prosecuted
always carefully read and ascertain that the charge is correctly
framed under the relevant law/Act.
sentence imposed upon the accused in count II is also not in
accordance with the law. The appropriate prescribed sentence (as
the amended law) is M500.00 (Five hundred
or imprisonment for not less than twelve 12 months, or to both such
fine and imprisonment.
the sentence of M5,000.00 or 4 years imprisonment as has been imposed
by the learned magistrate is too excessive. This
I say with the
greatest respect to the learned magistrate.
learned magistrate has also not indicated how the sentences should
run. That should always be done when one is convicted and
on more than one count/charges.
foregoing reasons this court has come to the conclusion that
proceedings with regard to count I are certified as being in
accordance with real and substantial justice.
and sentence in count I are confirmed.
declines to certify proceedings in count II as being in accordance
with real and substantial justice. The charge is amended
Contravention of 3(1), (2) (a) of the Internal Security Arms and
Ammunition Act No. 17 of 1966 as amended, read with Section
in count II is confirmed but the sentence is set aside for being
substitutes a sentence of M500.00 (FIVE HUNDRED MALOTI) or 12
(TWELVE) months imprisonment.
are to run concurrently. It is also ordered that the short gun in
question, (exhibit 1) be forfeited to the crown and
that it be
disposed off lawfully by the police.
learned magistrate should summon the accused and inform him of the
order of the review.
committal warrant should also be accordingly altered to reflect the
result of the review.
All Public Prosecutors
O/C Police Maseru
O/C Prison Maseru
CID - Maseru
Director of Public Prosecutions
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