IN THE HIGH COURT OF LESOTHO
In the matter of :
DAVID LELINGOANA Appellant
Delivered by the Hon. Mr. Justice M.P. Mofokeng
on the 5th day of November, 1982.
The appellant was charged before the subordinate court
held at Qache's Nek facing a multitude of thirty-five (35)
counts of theft by false pretences. He pleaded not guilty
but was, at the end of the day, found guilty on all of them
and sentenced as follows :
"Counts 1-15 one year imprisonment each count.
To run concurrently."
"The remaining counts (i.e. from 16 - 35) one
year imprisonment on each count, to run
Half these sentences was suspended for a period of three years
on certain conditions.
The acts complained of in this matter were all committed
during the period 1st April 1981 to 29th May 1981 it being
commonly alleged that the appellant misrepresented to the
several persons mentioned in the respective counts that he
was a representative of the Principal Chief of Qacha's Nek
(P.W.2) and had been authorised by him to impose and receive
fines of cash and for small stock from persons who had failed
to remove their animals from certain reserved grazing area.
The Principal Chief of Qacha's Nek gave evidence and denied
that he ever authorised the appellant to act, as he did. He
said : "I never met him (appellant) during April and March
1981. I gave him no orders."
Mr. Moeti Letseka, an officer in the Department of
Agriculture, Qacha's Nek gave evidence to the effect that the
penalties or fines to be imposed in the circumstances described
above are fifty lisente (50L.) per head for small stock. He
never heard of a situation where a man involved in grazing
the pastures pays fines of animals. He, the witness assists
chiefs in this work. I will go further and say that he finds
support from Legal Notice No. 39 of 1980: Range Management
and Grazing Control Regulations published in Gazette No. 36
of 10th October, 1980 (Supplement No. 4). Section 6(3) in part :
The owner or possessor of stock found grazing
in contravention of Leboella restrictions shall be
liable to a fine of MO.50 for each head of large
(some as much as M70.00). It was quite obvious to me that
he acted in concert with the men who did the actual questioning
because whenever an argument immediately followed, (as it
invariably happened), appellant would always make his
appearance and tell his subjects that they must do as they were
told as he was acting on the authority of the Principal Chief.
He used his influence and that of his senior chief in order to
mild his people of their possessions. In one or two instances
the animals taken as a fine were slaughtered and roasted!
To demonstrate the appellant's common purpose with his men
Khataeo Thonkha (P.W.11) says: "When he arrived, chief (accused)
asked Ranketsi (one of his henchmen) whether they made any
progress. They said there was opposition so that there was no
progress. The chief talked to our Headman Khahliso and said:
'talk well to these messengers of mine,' he meant Ranketsi
and Khoanyane. We were satisfied when the chief talked, he
even said the order was from the Principal Chief Makotoko Theko
When he realised that his despicable game
had been seen
for what it was, he handed over to major Chaka
(P.W.7) a sum
of M1,270.00. In my view this was closing the
the damage is done.
I have carefully read the record of the case and it is
very difficult to make out which counts have been proved and
which have not; perhaps that is the reason for the strange
global sentences imposed by the learned magistrate. Public
Prosecutors must be encouraged to say at least in respect of
which count(s) a particular witness is being led in evidence.
This method was not followed and the result is that no evidence
was led in respect of the following counts : 5, 6, 7, 8, 13,
16", 18, 19, 29, 30, 31, 32, 33, 34 and I found count 35 rather
vague and embarrassing since it speaks of "sundry unspecified
persons who were cheated of monies all amounting to M275."
Although the appellant was legally represented there was no
voice of protest against such a charge nor were particulars
requested to clerify the position before the accused pleaded.
There had been an objection but it related to something
different namely that the charge sheet was now different as
it contained more counts. No self-respecting court can allow
a charge of this nature to stand especially if there is no
evidence sufficiently clearifying it.
In my view, the conviction on counts 1, 2, 3, 4, 9, 10,
11, 12, 14, 15, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28 is
confirmed, but the sentence imposed by the learned magistrate is
set aside. There was an appeal against sentence on the
ground that it was excessive. In my view, it was extremely
lenient. The appellant is a chief. He has abused his
privileged position - a position held in reverence or high
esteem by the Basotho people. The Ministry dealing with
Chieftainship Affairs is still going to take disciplinary action
against him. In consideration sentence also this Court cannot
close its eyes to the fact that the matter has been before
the courts since early this year, and the long period which
has elapsed since will have a profound effect on the sentence
to be imposed. (See Pieter Makoala v Regina, 1963-66 H.C.T.L.R.
64 at pp. 65D - 66A). The humiliation already being suffered
by the appearance of the appellant in various courts in the
eyes of his subjects who once loved and trusted him can be
described and felt by nobody else except himself. However,
he cannot be let off scotfree. Otherwise the law, in our
community will loose respect. Those who transgress the law
must be punished although the form of punishment may take
different forms depending on the particular circumstances of
each case and the personal circumstances of each individual.
But all are equal before the law.
The sentence on counts 1, 2, 3, 4, 9, 10, 11, 12, 14,
15, 17, 20, 21, 22, 23, 24, 26, 27 and 28 is one year each to
run concurrently, the whole of which is suspended for a period
of two years on condition that during the period of the said
suspension he is not convicted of an offence involving
The sentence on counts 3 and 25 is a period of two years1
imprisonment on each count. Half the sentence is suspended
for a period of two (2) years on condition that during the
period of the said suspension he is not convicted of an offence
involving dishonesty. I single these two counts because he
extracted M65.00 and M70 from Seotsa Sethuntsa (P.W.16) and
Tsabo Mangange (P.W.25) respectively. Very distressing indeed
when remembers the economic circumstances of the complainants.
This was not a particularly an interesting record to
read. It was too depressing. The Registrar is requested to
forward a copy of this Judgment to the Ministry of Chieftainship
I wish to express my sincere thanks to both counsel for
the thorough manner in which they presented their arguments.
They certainly made the task of this Court much easier in
preparation of this Judgment.
5th November, 1982.
For Appellant : Adv. Makhene
For Respondent : Adv. Peete,
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law