C. of A.
(CRI) No.6 of 1980

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

NKO
MAHLOANE Appellant

V

REX
Respondent

HELD AT
MASERU

Coram:

SCHUTZ,
J.A.

VAN
WINSEN, J.A.

MARAIS,
A.J.A.

JUDGMENT

Van
Winsen,J.A.

Appellant
was convicted in the Magistrate's Court, Maseru of a contravention of
section 3(2)(a) read with section 43 of the Internal
Security Arms
and Ammunition Act No. 17 of 1966 in that appellant wrongfully and
unlawfully had in his possession a firearm and
five rounds of
ammunition, he not being in possession of a current firearm
certificate. He was sentenced to a fine of R150 or 5
months
imprisonment and was declared to have forfeited to the State the
firearm, a pistol, and five rounds of ammunition. On appeal
to the
High Court of Lesotho the conviction in respect of the firearm was
sustained but the sentence was reduced to M50. The forfeiture
order
was set aside and another order substituted, the terms of which are
not relevant to the present appeal.

Appellant
lodged a further appeal to this Court but on the 12th of January,
1981 his appeal was struck off the roll on the ground
that it was not
properly before this Court due to his failure to apply to the High
Court for leave to appeal to this Court and
for condonation of the
late filing of the necessary application. The High Court refused to
grant condonation and appellant now
approaches the Court for
condonation and for leave to appeal. The Crown opposes the granting
of the application for condonation
and for leave to appeal
substantially upon the ground that there are no reasonable prospects
of success on appeal.

2

The facts
relative to this case are not in dispute, the issue between appellant
and the Crown being whether on the undisputed facts
it has-been
proved that appellant was in possession of an uncertificated firearm.

The facts
lie in a narrow compass. The evidence adduced on behalf of the Crown
in the Magistrate's Court was briefly to the following
effect.

Troopers
Nkomo and Lesibo repaired to the house of the appellant in Roma at
Between 1 and 2 a.m. on the 16th of January 1979. The
troopers sought
entrance to the house but when they received no reply from within
they forced their way in. Inside they found appellant
and one Mokete
Libe. Appellant was in possession of a firearm which was knocked out
of his hand and troopers took possession of
this weapon. Nothing
turns on this fact since appellant held a licence to possess this
firearm Trooper Lesibo testified that Libe
had in his hand something
which looked like a plastic object which he threw away in the house
near some grain bags, and a suitcase.
A search for this resulted in
the finding at the spot where this object had been thrown of a
firearm wrapped in plastic, the muzzle
and trigger of which was
exposed. Appellant admitted to the troopers that he had no licence
for this firearm., He also stated to
them that he had been given it
by his late uncle. Appellant gave no evidence and did not call any
witnesses.

For
reasons not apparent from his judgment, the magistrate hearing the
case against appellant found the case against him proved.
The High
Court to which the appellant appealed found that it was reasonable
for the magistrate to have drawn the inference that
appellant was in
possession of the firearm which Libe had in his hand when the
troopers burst into the house.

The issue
on appeal is whether upon the undisputed evidence set out above such
an inference can be drawn.

It is
argued on behalf of appellant that the evidence disclosed that in
fact it was Libe who was in physical possession of the firearm
in
question and not the appellant, at the time the troopers entered the
house. The possession did not "revert" to appellant,
so it
was contended, when Libe threw the firearm amongst the grain bags.
Accordingly the prospects of success on appeal were such
that the
Court ought to accede to the application for condonation and for
leave to appeal.

3

The Act
under which appellant is charged contains no definition of the word
"possession" nor can it be deduced from its
terms that the
Legislature intended that mere physical detention of an
uncertificated firearm would constitute possession of that
firearm. I
can see no reason to differ from the conclusion arrived at by Jacobs
C.J. in the case of Ralitsoanelo Ralintsi v. Rex
LLR 1971-73 p. 68
that possession of an article under the Act in question envisages
both the physical detention of the article
and the mental element of
an intention to control the article. In my view the only reasonable
inference to be drawn from the facts
above set out is that appellant
was in possession of the firearm in the sense above described. He had
become the owner of the firearm
by donation and he must, when he
acquired it and kept it in his house, have acquired possession of it
in that sense. There is no
reason why it should be assumed, in
circumstances such as these, that the appellant, who was the owner of
the firearm, had surrendered
possession of it to Libe. No doubt, it
is theoretically possible that he had done so, but the appellant was
best able to say whether
this hypothetical possibility was an
actuality. He chose not to enlighten the Court. If the circumstances
had been truly neutral,
there might have been something to be said
for the view that the appellant's failure to testify took the Crown's
case no further.
But, in my view, they were not neutral in the sense
that the inference that the appellant had surrendered possession to
Libe was
just as likely as the inference that he had not. There is
also the fact that the explanation given to the police at the time by

the appellant contained no suggestion that he, in turn, had given or
lent the firearm to Libe. In the face of all this, the appellant's

failure to testify does, in my view, become highly significant. It
re-inforces the inference that the appellant had not surrendered

possession of the firearm to Libe. Indeed, it renders it the only
reasonable inference which can be drawn. It can never be said
that a
visitor to a house, merely by reason of his having in his hand an
object in the house belonging to his host, has possession
of the
object in the sense defined above. He might have it in his hand to
admire it, to use it, to evaluate it, or for some other
reason.
Clearly a prosecution against Libe for being in possession of the
firearm in question could never have succeeded. Had there
been
evidence that when the troopers found him, Libe had, for instance, in
pursuance of a purchase or a donation, received delivery
of the
firearm from the appellant, the position would have been different.
There was, however, no evidence of

4

any such
transaction having taken place and appellant did not choose to
testify to the effect that possession of the firearm, which
had
originally been with him, had been transferred to Libe. In the face
of these circumstances it cannot be said that there is
a reasonable
prospect of success on appeal.

In view
of this conclusion it is unnecessary to deal with the question of
whether, had such prospect existed, this Court would have
interfered
with decision of the Court a quo refusing to condone the appellant's
failure timeously to bring his application for
leave to appeal. I
also refrain from expressing an opinion as to whether the matter
sought to be raised on appeal is a matter of
fact or law.

Application
for leave to appeal is accordingly refused.

L. DE V. VAN WINSEN

Signed: ..........................

L. DE V. VAN WINSEN

Judge of Appeal

I agree
Signed: .........................

W.P. SCHUTZ

Judge of Appeal

I agree
Signed: ...........................

R.M. MARAIS

Acting Judge of Appeal

Delivered
on this 3rd day of July 1981 at MASERU

For
Appellant : For Respondent: