CRI/A/46/90

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

Rex
Appellant

v

MOTSAMAI
KHAHLANE Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla __________on the 22nd April,
1993

The Court
is satisfied that the Repondent was served with a copy of Notice of
Hearing calling him to appear before Court today the
22nd of April
1993. However, at the time that the matter was called there was no
appearance on the part of the Respondent Motsamai
Khahlane.

His name
was called three times outside Court and there was no response
whereupon it was decided to proceed with this matter in
which the
Crown has appealed against the findings or verdict of the Learned
Magistrate in the Court below discharging the Respondent
as not
guilty as in his view, the subject matter of the charge had not been
proved.

In my
view there was not really anything to prove when both parties were in

agreement
and their minds were ad idem that the subject matter of the charge
was in fact a firearm. In any case the outline of the
case by the
prosecution in the Court below shows that the essential elements of
the charge were proved including the fact that
this was a firearm. So
the charge itself was properly preferred against the Respondent who
in any case pleaded guilty and admitted
the facts.

The
appeal by the Crown succeeds, the verdict by the Learned Magistrate
is set aside. In place thereof is substituted the verdict
of "Guilty
as Charged".

2

The
record Is sent back to the Learned Magistrate who presided over the
matter originally so that he can impose an appropriate sentence

following the fact that on appeal by the Crown the Respondent
Motsamai Khahlane has been found guilty not only on his own plea

tendered before the Court below but also as charged following the
overall consideration of this matter by the High Court today.

The
Learned Magistrate's order of forfeiture of the exhibit i.e. the
firearm to the state shall stand undisturbed.

This in
itself puts a question mark on the logic applied by the Learned
Magistrate regarding this exhibit. It is doubtful that if
he
perceived this exhibit to be a toy he should order it forfeited to
the Crown. Thus clearly it seems he was in no doubt that
the exhibit
is a firearm in terms of the relevant section under which the charge
was preferred. Furthermore he didn't need services
of a firearm
expert in reaching the conclusion that the exhibit be forfeited. He
therefore misdirected himself in verdict that
he pronounced.

JUDGE

For
Appellant : Mr. Thetsane

For
Respondent : No appearance

22nd
April, 1993