CRI/A/53/83

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

CLETUS R.
SETHUNYA Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Acting Chief Justice Mr. Justice M.P. Mofokeng on 19th
September 1983

The
appellant was charged on three counts before the Court of the Chief
Magistrate it being alleged briefly in respect of the first
two
counts that he had stolen the property of his employer, the Ministry
of Information. In the third count he was alleged to have
contravened
the provisions of section 3(a) of the Internal Security (Arms and
Ammunition) Act of 1966 in that he had in his possession
certain
specified rounds of ammunition without holding a firearm certificate
in force at the relevant time. The appellant pleaded
not guilty to
all the three counts. He was found not guilty In respect of the theft
charges but guilty on the third count. He was
sentenced to pay a fine
of M80 or in default thereof undergo imprisonment for a period of
four months.

The
appellant concedes his conviction but states that the sentence is
severe. I do not agree. The times in which we live make this
type of
an offence very serious. The quantity of ammunition Involved was far
too much. The negligence displayed by the appellant
must be visited
with heavy penalties. The present sentence, in my view, meet this
requirement and yet its imposition does not Involve
a failure

2

to
exercise a proper discretion by the learned magistrate. especially
when it is realised that the law imposes the maximum fine
at M400 or
imprisonment not exceeding one year or to both such fine and
imprisonment.

The
appeal against sentence for the above reasons is dismissed.

Part of
the learned Chief Magistrate's sentence reads

"Ammunition and magazines are forfeited to the Crown. All
exhibits in Count 1 shall be given to the Ministry of Information
and
Broadcasting....."

On part
of the sentence is nothing else but an order as to the disposal of
the exhibits at the end of a criminal trial and I shall
treat it as
such.

Firstly,
it is not quite clear to this Court why the magazines were declared
forfeited. They were never part and parcel of the exhibits
before
Court nor did the appellant contravene any law in respect of or in
connection with them. There is no evidence on record
to justify the
making of this

order. It
is, therefore, set aside.

Secondly,
the evidence concerning the exhibits on count 1 was to a certain
extent, contradictory. Moreover, the appelant had wished
to introduce
the evidence of one Eric Horvitch. He went about it the wrong way. In
the result, the learned Chief Magistrate ought
not to have made the
order of forfeiture. He should, rather have left the question of
ownership of the articles wide opened by
simply not awarding it to
any of the disputing parties without hearing further evidence (orally
or verbally) in terms of section
56(3) of Criminal Procedure and
Evidence Act 1981. Then the appellant would have had an opportunity,
if so advised, of launching
the necessary action. In the
circumstances,therefore, I have no alternative but to set aside this
part of the learned Chief Magistrate's
order.

The order
made by this Court is as follows :

"It
is hereby ordered that the matter of exhibits

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in former
count 1 be remitted to the Court of the Subordinate Court to be dealt
with in accordance with the provisions of section
56 of the Criminal
Procedure and Evidence Act 1981".

It is
also ordered that appellant be refunded his appeal deposit.

ACTING
CHIEF JUSTICE

19th
September 1983

For
Appellant : In Person

For
Respondent: Adv. Nku