CRI/A/15/2001

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'MASEKAKE
NYOKANA APPELLANT

And

REX

JUDGMENT

Delivered
by the Honourable Mrs Acting Justice A.M. HIajoane on 27th March 2002

This is
an appeal from the decision of the Magistrate of first class -
Maseru. The accused was charged of theft common. Briefly the facts of
the case were that, the complainant went with the accused who is his
daughter to Central Bank. The complainant withdrew the sum of
M10,200.00 (ten thousand and two hundred maloti) with the intention
of depositing the money with the Standard Bank.

They both
went to Standard Bank and joined the queue. Whist still on the queue,
the complainant left and went outside to have a smoke and left the
accused with the money. When he came back, the accused was no where
to be seen. He left for home after an hour without seeing any-trace
of the accused.- When he enquired about the accused when he got home,
he got the information that she came, took her clothes and left. The
matter was reported to the police.

The
offence was committed on the 3rdNovember 2000 or there about, and the
accused arrested on the 28th December, 2000.

When the
charge was preferred against her, the Appellant pleaded guilty to the
charge and accepted the outline of facts. She was found guilty as
charged and sentenced to four years imprisonment. The appeal is
against both conviction and sentence.

There are
two grounds of appeal . The first being that the Court which
convicted the Appellant was not a proper forum and that the sentence
imposed was heavy and induces a sense of shock having regard to the
circumstances of the case. The notice of hearing was issued to both
the Appellant himself and his counsel to inform them of the date of
hearing. Appellant's counsel" at least could have made his
appearance. Even besides, the Appellant's home is at Tšenola
here in Maseru. I therefore proceeded with the appeal-in the absence
of either Appellant herself or

2

her
counsel.

The
Respondent had duly filed his heads, but the Appellant filed none. On
the first ground of appeal, that the Court was not a proper forum, we
took it to mean that the Court had no jurisdiction. Section 59 of the
Subordinate Courts Order 1988 provides that the Court shall have
jurisdiction over all offences except sedition, treason and murder.
Section 3 of the same Act as amended gives the monetary jurisdiction
of up to M15,000 (fifteen thousand maloti) for first class
Magistrate.

As
regards the second ground of appeal the law and decision of this
Court have clearly shown that sentencing is pre-eminently a matter
for the discretion of the trial Court. The Court on appeal will only
overturn a decision if it feels and is convinced that the decision is
unreasonable in the circumstances of the case or the severity of such
sentence considered to be out of proportion to the gravity of the
offence. The Court on appeal will then take it that there has been an
improper exercise of discretion or a misdirection. See Lebitsa and
Another vs Rex 1980(2) LLR 404.

The
Respondent concedes that even though the appellant is a first
offender, the offence she committed was so serious that it warranted
a very severe sentence Mojela vs Rex 1977 LLR 321. The amount
involved is a lot of money, but consideration also had to be taken of
appellant's relationship to the complainant. She is his daughter aged
but 25 years. When the sentence was passed all the money had not been
recovered.

Through
complainant's private investigation he approached Court on the 5th
May, 2001 with the information that the appellant had on the 20th
November, 2000 deposited with NedBank an amount of M8,000 which he
asked the Court to transfer to his account. The appellant did not
object to the transfer instead she showed that in fact it was part of
the complainant's money, her father.The order for such transfer was
thus given by the Court.

On appeal
therefore, the Court considers the fact that the greater part of the
money has been recovered though this fact only came to be known
sometime after sentence had been given. That coupled with the
relationship of the appellant to the complainant, father and
daughter. The Court on Appeal therefore feels that the change of
circumstances would have influenced the Court in passing sentence.

The
appeal succeeds in that the conviction is confirmed, but sentence
varied to read two years imprisonment, half of which is suspended for
three years on conditions that she is not found guilty of a similar
offence during period of . suspension.

A.M.
HLAJOANE

ACTING
JUDGE

For
Appellant: Ms Shale

For
Respondent: Mr Monyako