CRI/A/27/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

RAPHAEL
MOFOOA APPELLANT

V

REX

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 8th day
of November, 1993.

For the
Appellant : Mr. B. Sooknanan

For the
Crown : Mr. T.J. Semoko

JUDGMENT

The
accused was charged before the Subordinate Court of the Second Class
for Maseru. The charge read thus:

"That the said accused is charged with C/S 37F (1) (a) read with
(b) of Act No.14 of 1991. In that upon or about the 22nd
May 1991 and
at or near Hyperama Maseru the said accused did unlawfully steal two
watches being articles from the premises damaged
or which have been
damaged recently by disaster, riot or civil commotion at the said
Hyperama stores."

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Section
37F (l)(a) and (b) of the Internal Security (General) Act, 1984 (as
amended by Order No.14 of 1991) reads thus:

"37F. (1) A person who -

1. steals
   any article from premises which are being damaged, or which have
   been recently damaged by disaster, riot or civil commotion
   or which
   have been vacated by reason of impending, present or recent
   disaster, riot or civil commotion or in consequence of an
   order or
   direction given by a member of the police force of the rank of
   Sergeant or above for the purpose of -

   
   

1. preserving
   the public safety; or
   

   
   

2. (ii)
   maintaining public order, or

   
   

(iii) protecting persons or property from the dangers involved in
or consequent upon disaster, riot or civil commotion,
or

2. steals
   any article which has been left exposed or unprotected as a
   consequence of impending, present or recent disaster, riot
   or civil
   commotion; or .....

   
   

commits
an offence of looting and is liable on conviction to imprisonment for
a period not exceeding fifteen years."

Separate
offences are disclosed under paras.(a) and (b) of section 37 F(l) and
the reference to para.(b) in the charge in my view
renders the charge
bad for uncertainty. Secondly, Mr. Sooknanan submits that there is no
averment as to ownership or lawful possession
in the charge. That
would certainly be necessary in the case of a theft at common law.
The statutory provisions indicate that in
a charge under section
37F(l)(a) it

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is
necessary to aver only that Che property was stolen "from
premises". The difficulty with the present charge is that
it
does not clearly indicate that the property was stolen by the
appellant from the particular premises, or whether having been

removed from the premises by another and been "left exposed or
unprotected", the appellant thereafter stole the property.

The
charge was clearly defective. So also was the statement of facts.
There is no allegation of stealing as such, or indeed of ownership,

in the statement of facts. The accused agreed with the statement of
facts, but that takes matters no further. The statement of
facts
raises the inference of theft, but not as the only reasonable
inference. A statement of facts, as those very words indicate,
must
consist of a statement of facts, as such, which of themselves
establish each and every ingredient of the offence.

The plea
in the present case was equivocal and the trial thereafter was a
nullity. The appeal is allowed therefore. The conviction
and sentence
in the Court below are set aside and I order that the accused be
retried before another Magistrate of competent jurisdiction.

Delivered
at Maseru this 8th of November, 1993.

B.P.
CULLINAN

CHIEF
JUSTICE

CRI/A/26/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TOKA
MOOROSI

V

REX

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 2nd day
of November, 1993.

For the
Appellant : Mr. K.T. Khauoe

For the
Respondent : Miss N. Nku

JUDGMENT

The
accused was charged before the Subordinate Court of the First Class
for the Butha-Buthe district. He pleaded guilty and agreed
with a
statement of facts and was thereafter convicted on his own plea and
sentenced to 6 months imprisonment and a fine of M400,
or 12 months
imprisonment in default of payment thereof. The charge read as
follows:

"Toka Moorosi a mosotho male adult of about 48 years of headman
Thaabe Matela at Liqhobong charged with the offence of c/s
3(2) act
No.17/1966 of Arm & Ammunitions in that upon or about the 27th
day of May 1993 and at or near Liqhobong in the said
district the

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said accused did wrongfully and unlawfully found in possession of 4
rounds without being in possession of a firearm certificate
in force
at the time.

The
relevant legislation is to be found in sections 2 and 3 of the
Internal Security Arms & Ammunition Act, 1966, and reads
as
follows:

"2......

"ammunition
except where otherwise

expressly, provided, means ammunition for any firearm as herein
defined and includes grenades, bombs and other like missiles, whether

capable of use with such a firearm or not, and prohibited ammunition;

"firearm
except where otherwise

expressly provided, means any lethal barrelled weapon of any
description from which any shot, bullet or other missile can be
discharged
and includes any prohibited weapon whether it is such a
lethal weapon as aforesaid or not, any component part accessory to
any
such weapon designed or adapted to diminish the noise or flash
caused by firing the weapon [and includes an air gun, air rifle or

air pistol;]

3. (1)
   Subject to the provisions of this Act, no person shall purchase,
   acquire or have in his possession any firearm or ammunition
   unless
   he holds a firearm certificate in force at the time.

   
   

2. If
   any person -

   
   

1. purchases,
   acquires or has in his possession any firearm or ammunition without
   holding a firearm certificate in force at the
   time, or otherwise
   than is authorised by such a certificate, or in the case

   
   

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of ammunition, in quantities in excess of those so authorised; or

2. fails
   to comply with any condition subject to which a firearm certificate
   is held by him;

   
   

he shall, subject to the provisions of this Act, for each offence be
liable on conviction to the penalty prescribed in section
43."

The
offence, in this case, under section 3(2) is the unlawful possession
of ammunition. Nowhere in the charge, or indeed the subsequent

statement of facts, is the word "ammunition" used. The
statement of facts contains the words "4 bullets of '38 pistol",

but even if the charge contained those words, it would not alter the
situation. The word used in the charge sheet is "rounds",

and that in the statements of facts is "bullets", which
word, the learned Crown Counsel Miss Nku concedes, is sometimes
used
to describe the complete round of ammunition, in all its component
parts, and also the actual projectile propelled from the
firearm
after the explosion of the propellant charge. Indeed, the definition
of 'firearm' above, indicates that the latter is the
more appropriate
meaning.

It will
be seen further that the word "ammunition" is capable of
two meanings, namely ammunition which is "capable
of use with
.... a firearm" and ammunition which is not capable of being so
used, for example, a bomb. In my view therefore
it was necessary for
the prosecution, so that the accused might know the

4

case he
was facing, to have alleged that the accused was in possession of
four rounds of ammunitrion "capable of use with a
firearm".
In this case the calibre of the firearm was identified, so that the
prosecution should have alleged Chat the accused

"unlawfully had in his possession four rounds of ammunition
capable of use with a firearm of ' 38 calibre, without holding
a
firearm certificate in force at the time."

The
charge was therefore defective. Further, in as much as the statement
of facts did not contain the necessary averment, it did
not disclose
a prima facie case.

During
the course of the address by the accused in mitigation, the learned
trial Magistrate observed that

"One of the four (4) bullets was tested immediately before Court
and it fired effectively."

That
observation was apparently in answer to the appellant's statement
that what was before Court "cannot fire any longer".
The
learned trial Magistrate's observation, however, takes the matter no
further. It was for the Crown to allege that the four
rounds of
ammunition were capable of use with a firearm,namely a '38 pistol.
There being a plea of guilty, it would not have

5

been
necessary, by expert evidence, to prove such aspect. But it was
necessary for the Crown to state such aspect and the prosecution
did
not do so.

As the
statement of facts did not disclose a "prima facie", the
plea was therefore equivocal and the trial was a nullity.
I have
considered the aspect of a re-trial. As I have observed, the charge
was in any event defective. I consider therefore that
in all the
circumstances, this is not a proper case in which to order a
re-trial.

The
appeal is allowed therefore, and the conviction and sentence are set
aside.

Delivered
at Maseru this 2nd day of November, 1993.

B.P.
Cullinan

CHIEF
JUSTICE