CRI/A/1/95

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

Seboka
Mpe Appellant

and

Rex
Respondent

JUDGMENT

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 No.
17 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' imprisonment
in
default of payment.

The
appellant is now appealing to this court against the conviction on
the following grounds:

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1. The
   conviction is against the weight of evidence.

   
   

2. Taken
   together with that of the respondent's evidence, the evidence and
   the story of the appellant may reasonably possibly be
   true. .

   
   

3. There
   is no basis upon which the appellant's evidence and that of his
   witnesses was rejected. This is more so in casu when there
   is no
   comment about their evidence except a cursory one on that of the
   appellant.

   
   

The
evidence of P.W.I Trooper Rankhelepe, was to the effect that
following the information they had received, on the cede September,

1989 they went to the home of the appellant at Mapoteng. He was
accompanied by five police officers. They arrived there while it
was
already dark. When they approached the home of the appellant they
separated and approached the house from different directions.
He
approached the house in the direction of the front door. There was
light inside the house. He knocked at the main door which
was left
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
appellant 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
their heels. He followed them. He suddenly heard three gun reports
behind the house. He took cover and went back to the
house. He met
the 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

2

rushed to
it with the appellant. He discovered that it was the police vehicle
and found his colleagues there. He noticed that the
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 multiple injuries.
He denied
that they were accompanied by a civilian named Manama Polaki when
they arrived at the home of the appellant. P.W.I says
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 the house.
He says that
when they approached the house they did so from different sides. He
was from the back. There was some shooting before
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

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when they
left for the home of the appellant. Until he parted with P.W.I when
they approached the house of the appellant P.W.I did
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 denied
that 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, his
five children
and one Lefa Hlajoane who is the headman of that village. P.W.I and
one Manama Polaki arrived. They ordered him to
raise 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 three 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 transferred
to
Queen Elizabeth II Hospital and remained there for three weeks. After
his discharge from the hospital he went to his home and
remained
there for a week before he was again arrested by the police. He says
that the AK47 rifle (Exhibit "1") was not
found in his
possession but P.W.I was already holding it when he arrived there.

4

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 summary
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
the 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
the prosecution 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 explanation,

even if that explanation is improbable, the court is not entitled to
convict unless it is satisfied, not only that the explanation
is
improbable, but that beyond any reasonable doubt it is false. If
there is any reasonable possibility of his explanation being
true,
then he is entitled to his acquittal."

Similarly
in R. v M. 1946 A.D. 1023 at p. 1027 Davis, AJA. said:

". . .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

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is a reasonable possibility that it may be substantially true."

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 police
who took
the appellant to Klotse Hospital. One wonders why they did not
produce a medical report which, under normal circumstances,
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 doubt.

It is
correct that in cross-examination of the Crown witnesses the Defence
Counsel did not challenge the allegation that the appellant
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 Court 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 consideration 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 of the

defence case had been put to witnesses for the crown.

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For the
reasons stated above the appeal is allowed. The appeal fee must be
refunded to the appellant.

J.L.
Kheola

CHIEF
JUSTICE

11/9/95