CRI
/A/6-7/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

1.
MALEFANE KHETLA

2. TEBALO
NTELELE

V

REX

JUDGMENT

Delivered
by the Hon. the Chief Justice Mr. Justice T.S. Cotran on the 19th day
of April 1984

Malefane
Khetla and Tebalo Ntelele were convicted by a magistrate of the first
class at the Subordinate Court of Butha Buthe of
dealing in dagga (26
bags weighing 488 kg) contrary to Section 3(a) of the Dangerous
Medicines Act 1973. Each was sentenced to
eighteen months
imprisonment.

Both
appealed to the High Court against conviction and sentence and were
released on bail pending appeal.

Khetla
did not appear at the hearing.

Ntelele
appeared to prosecute his appeal and was represented by Mr. Khauoe.

The facts
were simple. A police posse under the command of W/0 Nyesemane
stopped a closed van at a road block. It was driven by
a person who
pleaded guilty to dealing in dagga. We are not now concerned with
him. The two appellants were seated next to the
driver. The bags were
inside the locked canope of the van.

There was
no direct evidence whatsoever that the two appellants had any
knowledge of what the closed van contained.

2

There was
no circumstantial evidence to indicate guilty knowledge either. Both
behaved quite normally, were utterly surprised when
the van was
opened by the driver to reveal the 26 bags, and both said to Sgt.
Mofolo (P.W.1), a member of the posse that they were
passengers going
to Butha Buthe (p.3). The time when the police stopped the vehicle
was about 4 p.m., i.e. during day light, when
people go about the
normal business.

It seems
to me that the appellants had no case to answer. The magistrate
however held that there was a case. The appellants elected
to remain
silent. But in this case the silence could not have "strengthened"
the case for the Crown. A case will be "strengthened"
if
there is some evidence. If there is none the accused is exercising no
more than his legal right to say nothing. The appeal must
accordingly
be allowed.

At the
commencement of the hearing I did order the arrest of the appellant
Khetla who did not prosecute his appeal. However, I must
now
countermand this order because his position is precisely the same as
the appellant Ntelele who was successful. The appellant
Ntelele will
have his appeal fees refunded. Khetla will forfeit his fees and the
bail deposit will be estreated to the Crown.

Crown
Counsel incidentally did not support the conviction.

CHIEF
JUSTICE

19th
April 1984

For
Appellant Mr. Khauoe

For Crown
Miss Moruthoane