CRI/A/72-73/84.

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

'MAMANOELI
LETSOPHA 1st Appellant

'MAMATELA
LEBONA 2nd Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice J.L. Kheola on the 13th November,
1984.

The
appellants appeared before the Resident Magistrate of Leribe charged
with contravening section 7(1)(F) of the Internal Security
(General)
Act No.6 of 1982; in that upon or about the 30th day of June, 1983
and at or near 'Muela in the district of Leribe, the
said accused did
unlawfully support or benefit the members of Lesotho Liberation Army
with intent to overthrow the Lesotho Government
by force with
subversive intention.

Alternatively,
they were charged with contravening section 9(1) (b) of the Internal
Security (General) Act 1981, in that upon or
about the 30th day of
June, 1983 and at or near 'Muela in the district of Leribe, the said
accused did, unlawfully being aware
of the presence of members of
Lesotho Liberation Army fail to disclose that information as soon as
is reasonably practicable to
a member of the police force.

The first
appellant was found guilty in the main charge and sentenced to five
(5) years' imprisonment.

The
second appellant was found guilty of the alternative charge and
sentenced to pay R300 or to undergo fifteen (15)

2

months'
imprisonment. They are now appealing against both convictions and
sentences.

It is
common cause that on the 29th June, 1983 1st Appellant was at her
home in the company of Lecheko Mohale (P.W.3) who was her
lover. At
about 9,00 a.m. a certain man armed with two 9 mm. automatic pistols
and one big gun arrived. He was also carrying a
bag. He asked the 1st
Appellant whether that was the home of Ntate Letsopha and whether her
name was 'Mamanoeli. At first she denied
this but when the stranger
became angry she admitted that her name was 'Mamanoeli and that was
Letsopha's home. He told her that
her visitor was waiting for her in
the fields and he had a very heavy luggage and wanted her to assist
him carry it. She asked
who the visitor was; the stranger said he was
Clementi Theko. She knew Clementi very well because he was her lover
before he left
the country. She also knew that Clementi was a
terrorist. The stranger decided to go away and fetch Clementi
together with his
luggage.

After the
departure of the stranger the 1st Appellant asked P.W.2 to leave as
Clementi was a very dangerous man. P.W.2 complied
and went to a
nearby mountain where he had a very good view of Letsopha's houses.
At about 10.00 a.m. the two men arrived with
their luggage. It
contained 9 handbrenades, 9 primas, 198 rounds of ammunition for 303
rifles, 158 rounds of ammunition for AK47
rifles and 300 rounds of
ammunition for 9 mm. pistols. The two men left immediately after
depositing their luggage in the house
of the 1st Appellant. Before
they left they showed her the place where she was to dig a hole and
bury the explosives and the ammunition.

3

It is
further common cause that after the men had left P.W.2 returned to
the house of 1st Appellant. She told her that the two men
were
terrorists and that they had left the explosives and ammunition in
her house. That night P.W.2 assisted 1st Appellant to bury
them. She
says he volunteered to help her. He says she threatened to tell the
terrorists to kill him if he refused to help her.
On the following
day the 1st Appellant received a letter from the 2nd Appellant
informing her that Clementi and the other terrorist
were at her house
and wanted to see her. She immediately left for the home of the 2nd
Appellant. After she had left P.W.2 reported
the matter to one
Moeketsi who advised him to go to Maputsoe police station and report
the matter. P.W.2 did as advised and a team
of policemen left for the
home of the 2nd Appellant. During the arrest of the two terrorists
Clementi managed to ignite a handgrenate
and there was an explosion
and police immediately started shooting with their rifles. Clementi
died and some police officers were
injured by the explosion.

It is
further common cause that on the 30th June, 1983, the two terrorists
had been drinking very heavily; while they were at the
home of the
2nd Appellant the terrorists were dressed in a normal manner and
displayed no weapons or explosives which showed that
they were
terrorists. During their drinking bout a number of villagers visited
the home of the 2nd Appellant and drank beer with
the two men who
were strangers in the village.

The 1st
Appellant gave evidence that she failed to report the presence of the
two men known to her to be terrorists simply because
she was afraid
that they would kill her. She assisted them to bury their explosives
and

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ammunition
for the same reason that they would kill her if she refused to do so.
She told the Court that the two men threatened
to kill her if she
reported the matter to any person. She told the 2nd Appellant when
she arrived at her home that the men were
terrorists.

The 2nd
Appellant testified that she knew Clementi very well and when he and
the stranger arrived at his house and the latter proposed
love to
her, she suddenly fell in love with him. It was then that they
started their drinking bout and by the time the 1st Appellant
arrived
she was already drunk. She denies that the 1st Appellant told her
that the two men were terrorists. As they were dressed
in the normal
way and were not carrying any guns she had no suspicion that they
were terrorists.

Mr.
Pitso, counsel for the Appellants, has submitted that the 1st
Appellant feared for her life if she disclosed the presence of
the
terrorists. He submitted that this was a reasonable explanation. He
referred me to the case of R. v. Chipesa, 1964(4) S.A.
472 in which
it was held that where the threat is directed to what might happen in
the future, the fear created by the threat is
much less than if the
threat is an immediate one, because the accused can and should go to
the authorities for protection. In the
present case the 1st Appellant
parted with the terrorists at about 10.00 a.m. when they instructed
her to go and bury their explosives
and ammunition. She was expected
to bury them during the night. The terrorists left her alone for the
whole day and night. On the
following day she received a letter from
the 2nd Appellant -which made it quite clear that at that particular
moment the terrorists
were far away

5

from her.
She decided to go to them instead of going to the police. I do not
think that Chipesa's case supports Mr, Pitso's submission
at all. The
threat in the present case referred to the future and the 1st
Appellant had ample time to go to the police or to her
chief. During
the night when she and P.W.2 buried the explosives she had the chance
to report to either her neighbours or her chief.
This sort of fear
based on what would happen in the future can under no circumstances
be condoned by the law. The threat must relate
to immediate harm to
the person's life. I come to the conclusion that the 1st Appellant
was properly convicted and her appeal against
conviction is
dismissed.

As far as
the sentence of five years imprisonment is concerned I think the
learned Resident Magistrate exceeded his jurisdiction.
The
jurisdiction of a Resident Magistrate is prescribed in section 62 of
the Subordinate Courts Proclamation of 1938 as amended.
It is
imprisonment for a period not exceeding four years or a fine not
exceeding one thousand rand. There is no provision in the
Internal
Security (General) Act 1982 authorizing any magistrate to exceed his
normal jurisdiction and to impose the sentences appearing
in the Act.
If the Legislature intended to give more powers to magistrate to
exceed their prescribed jurisdictions it would have
done so in no
uncertain terms like it has done in section 35 of the Dangerous
Medicines Act No. 21 of 1973.

For the
reason stated above I set aside the sentence imposed by the learned
Resident Magistrate and substitute it with one of four
(4) years'
imprisonment which was the

maximum
of the trial Court.

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The
conviction of the 2nd Appellant was not supported by any evidence
except a single sentence by her co-accused that she told her
that the
two men were terrorists. The 2nd Appellant denied this and there is
nothing in the record to show that she was lying.
Three of the Crown
witnesses visited her home and they saw nothing suspicious about the
two men which indicated that they were
terrorists. If the two men had
their small parcels or bags in which they had their pistols and
handgrenade it would be going too
far to expect the 2nd Appellant to
have demanded that her visitors should disclose the contents of their
bags. After all he knew
Clementi very well and fell in love with the
second terrorist at first sight. As Miss. Moruthoane. counsel for the
Respondent,
rightly pointed out there is a strong probability that
she knew or was told but there is no conclusive evidence in that
regard.

The
appeal against conviction and sentence by the 2nd Appellant is
upheld.

ACTING
JUDGE.

23rd
November, 1984.

For the
Appellants : Mr. Pitso

For the
Respondent : Miss. Moruthoane.