CRI/A/64/81

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

DIRECTOR
OF PUBLIC PROSECUTIONS Appellant

v

THE
RESIDENT MAGISTRATE

JONATHAN
MAGOME

AMBROSE
SIZAKELE Respondents

MBUSO
SHABALALA

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 4th day of
March, 1982

This is
an appeal by the Director of Public Prosecutions in terms of section
73(8) of the Subordinate Courts Proclamation against
the Judgment of
the Acting Senior Resident Magistrate who summarily acquitted three
accused persons on a charge of being in possession
of arms and
ammunition without a certificate contrary to s.3(2)(a) of the
Internal Security (Arms and Ammunition) Act No. 17 of
1966.

The three
accused persons arrived in a vehicle at the Lesotho border control
check point of Sani Pass. At Sani Pass the check point
is not situate
exactly on the recognised borders of Lesotho but some 150 yards
inside Lesotho. They alighted therefrom and proceeded
to the post.

It is not
clear from the evidence whether there is one building or two
buildings at the post. I think that from the record in all

probabilities there was one structure but divided into a customs
section and a police section.

There was
only one witness for the Crown Sgt, Lechesa. The Sgt's evidence in
chief was to the effect that he saw the three accused
seated at the
customs office at 11.30 a.m. on 21st April 1981. He was in civilian
clothes at the time. He

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asked for
their passports, A1 and A2 produced theirs but A3 said he did not
have one. He did not speak Sesotho well. The three accused
persons
said they were ANC members and were refugees from South Africa and
were on their way to see a Mrs. Tsinye a teacher and
President of ANC
in Maseru. At that stage they did not disclose they carried firearms
and ammunition. A1 was the first to be ushered
to the police part of
the building and was made to stand against a wall and lift his hands
up to be searched. At that Juncture,
and only then. Al is alleged to
have told the Sgt. to wait and declared he had a pistol on his
person. The Sgt. did not wait and
he did indeed find a loaded pistol
and an extra loaded magazine.

A1 then
volunteered the information that A2 and A3 (who were still in the
customs section) also had pistols and that the vehicle
they travelled
in was full of other arms and ammunition. A2 and A3 were brought in
from the customs section to the police section
and searched. Both
carried loaded pistols and magazines. The vehicle when searched
contained what was described as an "arsenal".

The
accused could produce no certificates to carry the arms and
ammunition from the Lesotho authorities or other authorities.

The cross
examination of the Sgt was confined to the following :

"I don't know whether a licence for a firearm in Republic of
South Africa is valid in Lesotho. If a man from the Republic
of South
Africa has a licenced firearm and enters Lesotho from the Border I
don't know whether such man is expected to declare
such firearm. I am
at the Border for the first time, I don't know whether I can charge a
man from Republic of South Africa, who
has a licenced firearm and
declares it."

The
defence argument was:

"It has got to be proved that accused had mens rea. A person who
on entering Lesotho declares his fire-arm at the first port
of entry
has no mens rea to possess those firearms in Lesotho. If the port of
entry is some distance away from the border in international
law and
also from the point of view of the laws governing the country, the
area between the boundary and the port of entry is nomansland."

The fact
of the matter, however, is that the accused did

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not tell
the policeman that they were holders of certificates issued to them
by the South African authorities. Since they said they
were ANC
members coming to seek refuge in Lesotho it is impossible to make an
inference, without evidence, that they may have had
such
certificates.

The
magistrate gave no written reasons for acquittal at the time and we
do not know what he had said orally when discharging the
accused. The
Director of Public Prosecutions requested a case to be stated in
terms of s.73(7) of the Sub­ordinate Courts Proclamation.
It was
thought then apparently that the magistrate had acquitted them on the
ground that they did not have "mens rea"
but from the
magistrate's reasons for Judgment filed on 13th November 1981 it is
clear that this was not so. His reason was that
as a matter of law
the three accused persons were not in Lesotho at the time because
they were still at the border post and had
not crossed beyond it into
Lesotho proper. He then went on to say that the accused persons were
not given a chance to declare the
arms and ammunition whilst in the
customs section and that they had not intended to smuggle the arms
into Lesotho for sinister
purposes since they have come through a
recognised border post. He continues by saying that the police should
have pounced on them
after they crossed the post etc..

It seems
to me that the learned magistrate had erred on the law and had come
to conclusions of speculative emotional nature not
substantiated by
the evidence he heard. The internationally recognised borders of
Lesotho were crossed and the accused were 150
yards within Lesotho
already. The physical situation of the check post was irrelevant to
his inquiry which was whether or not they
held firearms and
ammunition certificates Without hearing the accused he could not make
inferences based on personal sympathies
in violation of the prima
facie evidence of the Sgt. There was before the magistrate only an
argument that the accused intended
to declare the 'arsenal". The
actual evidence was that A1 made the declaration only when he
realised he was going to be searched
at the charge office building or
part of a building and surely they were in Lesotho then not in so
called "No man's land",
A charge under this Act is not
analogous to instances of importation of prohibited articles or goods
by tourists or travellers
in contravention of the

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Customs
and Excise Order 1970 and Regulations made thereunder where different
considerations may apply.

The
accuseds1 acquittal was wrong in law and they should have been
convicted. The appeal is allowed and in terms of s.73(10) I remit
the
case back to the magistrate who should give sufficient notice to all
parties to appear before him, reopen the case, record
a conviction,
and then pass sentence. He can at this stage take into account the
mitigating factors which appear to have influenced
his mind.

It would
seem that the three accused persons had been in custody from 21st
April 1981 to the 28th July 1981. Mr. Peete tells me
from the bar
that the accused may no longer be in the country to-day. If the
magistrate finds that this is in fact the case after
the necessary
enquiries and notices he should nevertheless alter the Court records
in his registry in accordance with the law as
laid down by the High
Court in this Judgment and apply it in all future cases, viz,

1. That
   the borders of Lesotho are the geographical internationally
   recognised borders and not the physical situation of any particular

   border or police post therein.

   
   

2. That
   a person in possession of firearms or ammunition within those
   borders without his being able to produce a certificate from
   the
   Lesotho authorities is ipso jure guilty of an offence under this
   section of the Act.

   
   

CHIEF
JUSTICE

4th
March 1982

For
Appellant : Mr. Peete

For
Respondents: