R v Masike (C of A(CRI)No. 7 of 2002)

Media Neutral Citation: 
[2003] LSHC 48
Judgment Date: 
14 April, 2003

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C of A(CRI)No. 7 of 2002


REX

and

TSELISO MASIKE


Summary


CORAM


STEYN, P

RAMODIBEDI, JA

PLEWMAN, JA


Criminal appeal - second appeal with leave of the Judge of the High Court - section 8(1) of the Court of Appeal Act No. 10 of 1978 -Unlawful possession of firearm in contravention of section 3(1) of the International Security (Arms and Ammunition) Act No.17 of 1966 as amended by Act No.4 of 1999 - Strict liability - Whether a firearm certificate issued in South Africa or in any foreign country is valid in Lesotho - Innocent transgression of the law - the effect thereof -Whether the audi principle applies before an order of forfeiture of a firearm to the Crown can be made - Section 57 of the Criminal Procedure and Evidence Act 1981 - the effect thereof - Failure by judicial officers to provide reasons.


The respondent was charged before the Berea Magistrate's Court with contravention of section 3 (1) of the Internal Security (Arms and Ammunition) Act No. 17 of 1966 as amended by Act No.4 of 1999 in that he was found in possession of a 9mm pistol without a firearm certificate. He only had a South African firearm certificate which he obtained when he purchased the firearm in that country. He pleaded guilty to the charge and was duly convicted as charged on his plea.


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The respondent advanced in mitigation of sentence that his transgression of the law was unintentional but was nevertheless fined five hundred maloti (M500-00) or six months' imprisonment. The firearm in question was declared forfeited to the Crown without giving the respondent the opportunity to be heard. Respondent appealed to the High Court against the order and that Court upheld the appeal and ordered the return of the firearm in question to the respondent. It however granted leave to the Crown to appeal to this Court.


Held, That section 3 of the Internal Security (Arms and Ammunition) Act No. 17 of 1966 as amended by Act No.4 of 1999 provides for strict liability to prevent proliferation of firearms and ammunition in the interests of public safety and public order;


Held, further, that Parliament has, in its wisdom, provided a mechanism in terms of which the Commissioner of the Lesotho Mounted Police alone can determine the fitness of any person to possess a firearm in Lesotho and also to determine whether the granting of firearm certificates will not endanger public safety or public order;


Held, accordingly, that a firearm certificate which is not granted by the Commissioner of the Lesotho Mounted Police is invalid in Lesotho and of no force or effect;


Held, further, that innocent transgression of the law should at least constitute a mitigating factor in respect of sentence and that the lower Court failed to take this factor into account;


Held, further, that section 57 of the Criminal Procedure and Evidence Act 1981 gives recognition to the common law principle of natural justice and the right to be heard


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before an order of confiscation can legally be made effective;


Held, therefore, that in all the circumstances of the case the appeal is upheld and the order of the Court a quo is altered to read:


  1. "The Appeal is dismissed".


  1. A sum of four hundred maloti (M400-00) of the fine imposed by the trial Court is suspended for three years on condition the respondent is not found guilty of contravention of Section 3 of the Internal Security (Arms and Ammunition) Act 17 of 1966 as amended by Act 4 of 1999 committed during the period of suspension.


  1. A sum of four hundred maloti (M400-00) of the fine paid by the respondent shall be refunded to him forthwith.


  1. The trial Court's order of forfeiture is altered to read:


"The accused is given three months within which to apply to the Commissioner of the Lesotho Mounted Police for a firearm certificate in respect of the 9mm pistol serial number 97893 failing which the firearm in question shall automatically be declared forfeited to the Crown."


M.M. Ramodibedi

JUDGE OF APPEAL


C of A (CRI) No. 7 of 2002

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:

REX APPELLANT

and

TSELISO MASIKE RESPONDENT


Held at Maseru


CORAM:

Steyn, P.

Ramodibedi, J.A.

Plewman, J.A.


JUDGMENT


RAMODIBEDI, J.A.


[1] The Rampant stock theft epidemic in Lesotho has landed the respondent in deep trouble. It all came about in this way: while working in the mines in South Africa the respondent, who is a Lesotho citizen, bought a 9mm firearm (pistol) serial number 97893 for the purpose of protecting his livestock at home. He was careful enough to obtain


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South African licence No. 340620 5109081 for it and he apparently thought this was good enough for Lesotho. He simply did not obtain a Lesotho firearm certificate. More about this later.


[2] To his horror, the respondent was arrested by Lesotho police for unlawful possession of a firearm at his home at Ha Ratsoku in Berea district, Lesotho. This was on 29 March 2000.


[3] Thereafter a charge was preferred against the respondent in the Berea Magistrate's Court for contravention of Section 3 (2) of Act No.17 of 1966 (Arms and Ammunition) as amended by Act No.4 of 1999. The respondent pleaded guilty to the charge and was duly convicted as charged on his plea. He advanced in mitigation of sentence that his transgression of the law was unintentional. He was nevertheless fined five hundred maloti (M500-00) or six months' imprisonment. Apparently he paid the fine (the record does not say so directly but since, as appears in paragraph [6] below, the High Court ordered the fine to be refunded to the respondent, it may safely be assumed that he did in fact pay the fine).


[4] The respondent's nightmare was , however, not over. The Magistrate's Court ordered his firearm to be forfeited to the Crown for "directives".


[5] The respondent then appealed to the High Court against his conviction, sentence and the forfeiture order in question.


[6] On 16 August 2002 the High Court (Peete, J) upheld the appeal against the conviction and accordingly ordered the return of the firearm in question to the respondent. The appeal fee and the fine in question were also refunded to the respondent. Regrettably the learned Judge a quo advanced no reasons for his order. This, despite several warnings by this Court strongly deprecating the failure by judicial officers to provide reasons, something which can only bring the justice system into disrepute. See for example Mpho Hlalele & Another v DPP C of A (CRI) No.12 of 2000 (unreported) where Steyn P (Ramodibedi and Van


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den Heever JJA concurring) expressed himself in the following terms:


"The failure by both Courts to give reasons for their decisions is particularly reprehensible. See in this regard Molapo Qhobela v B. C.P. C of A 8 of 2000. (Unreported), See also Sv.lmmelman 1978 (3) S.A. 726 at p.729 (A) where Corbett JA says the following:


'The absence of such reasons may operate unfairly, as against both the accused person and the State, One of the various problems which may be occasioned in the Court of Appeal by the absence of reasons is that in a case where there has been a plea of guilty but evidence has been led, there may be no indication as to how the Court resolved issues of fact thrown up by the evidence or on what factual basis the Court approached the question of sentence.'"


[7] This then is the background to the matter before us. The Crown now seeks to appeal against the learned Judge a quo's order. I should add for completeness that, this being admittedly a second appeal, the learned Judge a quo has granted leave to appeal to this Court in terms of Section 8(1) of the Court of Appeal Act No. 10 of 1978. That section provides:-


"Any party to an appeal to the High Court may appeal to the Court against the High Court judgment with the leave of the judge of the High Court, or, when such leave is refused, with the leave of the Court on any ground of appeal which involves a question of law but not on a question of fact nor against severity of sentence."


[8] In Molapo v Rex 1985-89 LAC 6 at 7 this Court held per


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Wentzel JA that this section is intended "to ease the burden of this Court of determining issues of fact in a second appeal in matters which originate in the Subordinate Courts and which have been determined there and which have been the subject of appeal to the High Court."


[9] It is in my view hardly necessary to say that the remarks of Wentzel JA quoted in the preceding paragraph are rooted in the age-old principle that there must be finality to litigation. As a matter of policy, where points of fact have been fully investigated, canvassed and determined in at least two competent courts, including the High Court, there seems no valid justification to continue the debate in the highest superior Court. In such a situation this Court should be confined to matters of law only.


[10] Broadly stated I view the point of law that arises here in this way: Was there evidence upon which a reasonable Court could have come to the conclusion arrived at by the trial Court? That question necessarily begs another namely: Is a South African firearm certificate,


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or that of any other foreign country for that matter, valid in Lesotho without more? In order to answer these questions it is necessary to examine briefly the relevant Lesotho legislation.


[11] Section 3 (1) of the Internal Security (Arms and Ammunition) Act 1966 (the Act) provides as follows:


"Subject to the provisions of this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition to which this Part of this Act applies unless he holds a firearm certificate in force at the time."


[12] Subsection (2) in turn provides as follows:


  1. If any person -


  1. purchases, acquires or has in his possession any firearm or ammunition to which this Part of this Act applies without holding a firearm certificate in force at the time, or otherwise than is authorised by such a certificate, or in the case of ammunition, in quantities in excess of those so authorised; or


  1. fails to comply with any condition subject to which a firearm certificate is held by him; he shall, subject to the provisions of this Act, for each offence be liable on conviction to the penalty prescribed in section 43."


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[13] The penalty prescribed for a conviction under Section 3(2) of the Act as amended by Act No.4 of 1999 is "not less than five hundred rands or imprisonment not less than six months, or to both such fine and imprisonment."


[14] It is instructive to note the following provisions of Section

4 (2) and (3) of the Act.


4. (2) The certificate shall be granted by the Commissioner of Police if he is satisfied that the applicant has a good reason for purchasing, acquiring, or having in his possession the firearm or ammunition in respect of which the application is made, and can be permitted to have in his possession that firearm or ammunition without danger to the public safety or to public order:


Provided that a certificate shall not be granted to a person whom the Commissioner of Police has reason to believe to be prohibited by this Act from possessing a firearm to which this Part applies, or to be of intemperate habits or unsound mind, or to be for any reason unfitted to be entrusted with such a firearm.


(3) A certificate granted under this section shall be in the prescribed form and shall specify the conditions (if any) subject to which it is held, the nature and number of the firearms to which it relates, and, as respects ammunition, the quantities authorised to be purchased and to be held at any one time thereunder."


[15] For the avoidance of any doubt the "Commissioner of Police" is defined in Section 2 of the Act to mean "the person for the


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time being exercising the powers or carrying out the duties of the Commissioner of the [Lesotho] Mounted Police."


[16] It follows from the aforegoing that a firearm certificate which is not granted by the Commissioner of the Lesotho Mounted Police as in casu is invalid in Lesotho and of no force or effect.


[17] In my view the scheme of the Act is simple. It prohibits strictly possession of firearms in this country without valid certificates issued by the relevant authority specifically assigned for that purpose, namely the Commissioner of the Lesotho Mounted Police.


[18] The language used by the Legislature in Section 3 of the Act is clear and uncompromising. There are no words such as "intentionally", "wilfully" or "maliciously" which are normally indicative of the intention to punish wilful or intentional wrongdoing only. See S v Arenstein 1964 (1) SA 361 (A) at 365 (C-D).


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[19] Indeed the very object of the Act is stated as being "to make provision in the interests of public safety and public order for regulating and controlling firearms, imitation firearms and other weapons and ammunition and for related purposes."


[20] In the light of the above considerations, I have no doubt that allowing importation or indeed possession of firearms in Lesotho without certificates issued in terms of the Act, as submitted on behalf of the respondent, would defeat the very object of the Act. It could perpetuate the very mischief that the Act was designed to prevent namely proliferation of unlicenced firearms and ammunition which in turn leads to a high rate of crimes of violence. It would in my view open the floodgates and the Commissioner of the Lesotho Mounted Police could simply lose the regulatory control that the Act vests in him.


[21] It is important to stress that in its wisdom Parliament has provided a mechanism in terms of which the Commissioner of the Lesotho Mounted Police alone can determine the fitness of any person


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to possess a firearm in this country and also to determine whether the granting of firearm certificates will not endanger public safety or public order. That is precisely the whole import of section 4 (2)of the Act. As I said in paragraph [17] above, and as I repeat now, the Act imposes strict liability. In this regard it must be borne in mind that for a poor country like Lesotho the substantial fine of "not less than five hundred rands or imprisonment not less than six months or to both such fine and imprisonment" for a contravention of Section 3 is in itself indicative of the intention of the Legislature to impose strict liability and the seriousness with which it views the issue.


[22] As I pointed out in paragraph [1] above the respondent failed to obtain a Lesotho certificate in respect of the firearm in question. In the light of the aforegoing considerations it follows in my judgment that the finding of the trial Court was fully justified and could not be disturbed. It certainly cannot be said that no reasonable Court could have come to the conclusion arrived at by that Court and I did not understand Adv Fosa for the respondent to contest the general


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soundness of that proposition.


[23] Again, as I pointed out in paragraph [6] above, the learned Judge a quo gave no reasons for disturbing the trial Court's order of forfeiture. As was said in Padfield v Minister of Agriculture. Fisheries and Food 1968 (1) ALL ER 694 failure to give reasons may justify the Court to infer that there is no good reason. I cannot therefore resist the temptation to make such an inference in this matter.


[24] Although the guilt of the respondent is, in my view, beyond doubt it requires to be stated that statutes creating strict liability such as here can lead to devastating and unforeseen consequences to innocent transgressors. It makes common sense and logic in my judgment therefore that innocent violations such as here should at least constitute a mitigating factor in respect of sentence. The lower court failed to take this factor into account and in so doing misdirected itself. This Court is accordingly at large to interfere with the sentence imposed and thereby ensure that justice is done in the matter.


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[25] It is a fundamental principle of natural justice for which no authority is necessary that no man should be condemned unheard. The audi principle applies equally to property and in this regard it is pertinent to observe that Section 17 of the Constitution provides for freedom from arbitrary seizure of property save to the extent, inter alia, that is necessary in a practical sense in a democratic society for the taking of possession by way of penalty for breach of the law.


[26] Notwithstanding the above considerations the trial Court did not give the respondent the opportunity to be heard before declaring his firearm to be forfeited to the Crown. This, despite Section 57 (1) (a) and (3) of the Criminal Procedure and Evidence Act 1981 which provides as follows:-

57 (1) Any court which convicts an accused of any offence may, without notice to any person, declare:-


  1. any weapon, instrument or other article by means whereof the offence in question or which was used in the commission of such offence (sic); or


  1. if the conviction is in respect of an


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offence referred to in Part I of Schedule I, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property, and which was seized under this Act, forfeited to the Crown:


Provided that such forfeiture shall not affect any right referred to in subsection (4) (a) (i) or (ii) if it is proved that the person who claims such right did not know that such weapon, instrument, vehicle, container or other article was being used or would be used for the purpose of or in connection with the commission of the offence in question or, as the case may be, for the conveyance or removal of the stolen property in question, or that he could not prevent such use and he may lawfully possess such weapon, instrument, vehicle, container or other article as the case may be.


  1. Any weapon, instrument, vehicle, container or other article declared forfeited under sub-section (1), shall be kept for a period of thirty days with effect from the date of declaration of forfeiture or, if an application is received from any person within that period for the determination of any right referred to in sub-section 4 (a) or (b), until a final decision in respect of any such application has been given."


[27] Inherent in the letter and spirit of this section is, in my view, recognition of the common law principle of natural justice and the right to be heard before an order of confiscation can legally be effective.


[28] In all the circumstances of the case the appeal is upheld


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and the order of the Court a quo is altered to read:


  1. "The Appeal is dismissed".


  1. A sum of four hundred maloti (M400-00) of the fine imposed by the trial Court is suspended for three years on condition the respondent is not found guilty of contravention of Section 3 of the Internal Security (Arms and Ammunition) Act 17 of 1966 as amended by Act 4 of 1999 committed during the period of suspension.


  1. A sum of four hundred maloti (M400-00) of the fine paid by the respondent shall be refunded to him forthwith.


  1. The trial Court's order of forfeiture is altered to read:


"The accused is given three months within which to apply to the Commissioner of the Lesotho Mounted Police for a firearm certificate in respect of the 9mm pistol serial number 97893 failing which the firearm in question shall automatically be declared forfeited to the Crown."


M.M. Ramodibedi

JUDGE OF APPEAL


I agree:

J.H.Steyn

PRESIDENT


I agree:

C. Plewman

JUDGE OF APPEAL


Delivered at Maseru this 14th day of April 2003.


For Appellant: Miss L. Ntelane

For Respondent: Adv T. Fosa