CRI/A/15/82 IN THE HIGH COURT OF LESOTHO
In the Appeal of :
MALERATO M0THAUNG Appellant
Delivered by the Hon. Mr. Justice B.K. Molai on the
8th day of August, 1983.
On 2nd October, 1981, the appellant appeared before the
President Magistrate of Maseru charged with the crime of theft on the
"Whereas at all relevant times the said Malerato
Mothabeng was employed as a Community Development Assistant and was
an employee and entrusted with the custody and care of the
money belonging to the Government of Lesotho, the said 'Malerato
Mothabeng did during the period between 1st March, 1981 and 31 st
July, 1981 and at or near Maseru Reserve in the district of Maseru
un]avfully and intentionally steal a sum of money amounting to
ll,875-00 the property of the Government of Lesotho.
She pleaded guilty to the charge. The public prosecutor
accepted the plea and the provisions of Sec. 240 (1) (b) of the
CriminalProcedure and Evidence Act 198' were invoked.
The facts, and these were admitted as correct by the
appellant, disclosed that at the material time
2/ the appellant ....
the appellant had been employed by the Lesotho
Government for two years and deployed as a Community Development
Assistant in the Ministry
of Rural Community Development and
Co-operatives. One of appellant's responsibilities as to handle
Government monies and pay Government
employees working on the roads.
Between the period 1st March, 1981 and 31st July, 1981 money
totalling to the amount of M1,875.00
was given to the appellant to
pay the road workers. Appellant took the money but did not pay the
workers. She instead used the
money for her own personal interests
That she was not authorised to do by her employer, the Lesotho
On this evidence the appellant was convicted as charged
. The trial court imposed a sentence of years imprisonment, the
which was suspended for 2 years on condition that during the
period of suspension the appellant made good the amount of money
The appellant was quite happy with the conviction and the
sentence imposed by the trial court.
However, the proceedings were subsequently sent for
review by the High Court in terms of the Subordinate Courts
Proclamation No. 58 of 1938 (as amended) of which Section 67
"All sentence in criminal cases in which the
punishment (including detention in a reformatory, farm colony,
refuge, rescue home
or other similar institution) in the case of a
Resident Magistrate's Court imprisonment for any period exceeding
or a fine exceeding five hundred rands(or in the case
of a Resident Magistrate's Court presided
/ by a Senior ....
by a Senior Resident Magistrate imprisonment for a
period exceeding two years or a fine exceeding one thousand
rands) or in the cane of Subordinate Courts of First Class for any
period exceeding six months or a fine exceeding one
rands and in the case of Subordinate Courts of Second and Third Class
for any period exceeding three months or a fine exceeding
or any whipping (save in any case in which a male child under the age
of eighteen years has been sentenced under the
Criminal Procedure and
Evidence Proclamation) shall be subject in the ordinary course to
review by the High Court;but without prejudice
to the right of Appeal
against such sentence whether before or after confirmation of the
sentence by the High Court.'
On review, the proceedings came before Rooney,J. who
confirmed the conviction but iras apparently somewhat
disturbed by the order of the trial court suspending the whole
sentence. He set it aside and substituted therefor
an order couched
in the following terms
"The order suspending the sentence of imprisonment
is set aside. Accused is committed to prison. This order is made
prejudice to accused's right of Appeal."
The effect of removing the suspension order was that the
sentence of 2 years imprisonment imposed by the trial court
became effective. The judge had in effect varied the sentence and
made it more severe
than it had originally been. with that, the
Appellant felt aggrieved. 3he, therefore, appealed to the High Court
against the effective
sentence of 2 years imprisonment i.e. against
the severity of the sentence.
When the appeal came before the High Court, the
salient question for determination by Cotran, C.J. sitting
with Mofokeng,J. was "whether or not an appeal lies to
the High Court" in the circumstances of this case. That
question was answered in
the negative. As it was later pointed out byGolding, J.A. writing
4/ a majority . ..
a majority judgment in 'Malerato Mothabeng v. Rex C.
of A. (CRI) No. 5 of 1982 p.3 (unreported)
"The aspect which apparently induced the decision
of the court a quo is the effect of section 8 often Court of
Appeal Act, 1978 which was considered contradictory and subsections
(1) and (?) thereof
as mutually destructive"
That section reads :
"8 (1) Any party to an appeal to the High Court may
appeal to the court against the High Court Judgment with the leave of
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 question of fact nor against severity of sentence.
For the purposes of this section an order made by the
High Court in its revisional jurisdiction, or a decision of the High
a case stated, shall be deemed to be a decision of the High
Court in its appellate jurisdiction."
At page 4 of the decision
in 'Malerato Mothabeng v. Rex, CRI/A/35/82(unreported) the learned judges are recorded as having considered
the effect of the two subsections to section 8 above along the
"Is S.8(2) an independent and integral subsection
that gives en accused, in such plight as in the present case, an
to appeal against severity of sentence, or is the
subsection to be read in conjuction with and subject to the
reaquirements of 5.(1)?
The marginal note to the section speaks of
'second appeals1 but an occurrence under S.8(2) is not a
'second appeal' properly so called. The subsections are mutually
5/destructive in ....
destructive in our opinion but it is for the Court of
Appeal to decide on interpretation. If leave to appeal is needed, we
to grant it, for there is a point of law involved, but
if no application is made for leave to appeal or if no appeal is
the Court of Appeal within the time specified by the Rules,
then the appellant must be committed to prison to serve her
The appellant did note the appeal to the Court of Appeal
and in interpreting Section 8, Goldln J.A. in a majority
judgment had this to say :
"Subsections (1) and (?) must be read
together. The Court of Appeal is confined to dealing with a question
of law as appears from subsection (1). Accordingly where
seeks to appeal against a conviction or sentence on a question of lav
against an order made by the High Court in its revisional
jurisdiction, this is deemed to be an order by the High Court in
its appellate jurisdiction. Section 8(2) is clearly intended
used for the purpose of section 8(1) and not to deprive an accused of
his rights of appeal against severity of sentence or
on a question of
fact to the High Court. It does not alter a right of appeal to the
High Court out merely affords a more expeditious and less
costly means by which to have a question of lav brought before
the Court of Appeal." - vide 'MaLerato Mothabengh v.
Rex, supra, at p. 3 (unreported).
In the circumstances, the Court of Appeal allowed the
appeal and remitted the matter to the High Court for its decision.
As has been pointed out,, the appeal is against the
severity of sentence. It is based on the following grounds
"The sentence of two years imprisonment without an
option of a fine is too harsh
6/ considering ....
considering the fact that at the commission of the
offence, the appellant was pregnant and that at the time of her
had a newly born baby who is an invalid.
2. A suspended sentence was more appropriate
considering the fact that the appellant was still very young and was
first offender who showed
remorse and cooperation throughout the
investigation of her crime and at her trial.
3.The court should have considered as a mitigating
factor the fact that the appellant is also liable to repay the whole
the subject matter of the charge."
Most of the facts that this court is invited, in the
grounds of appeal, to consider as mitigating factors were raised
before the trial
court and are clearly reflected in the record of
proceedings. There can be no doubt, therefore, that the judge who
read through the
proceedings on review was aware that they had played
an important part in influencing the trial magistrate to suspend the
of 2 years imprisonment that he had imposed. However, the
judge clearly took the view that the offence against which the
had been convicted was too grave to warrant a suspended
sentence. Indeed, in a similar case Fano and Another v. Rex
1980(1) LLR 146 at p. 148 "lofokeng, J. had this to
say on the subject, and I entirely agree.
"The theft of Government's property is rampant.
This court has had an occasion to warn people who steal government's
about the serious view in which this court regards such
conduct. That was was the case of Monkhi v. Rex,
CRI/A/3'777, (unreported) at p. 12. That warning has gone unheeded.
It is the primary duty of every court in this land
7/ to mark
to mark their determination to discourage any idea that
Government property can be stolen with impunity. The courts in this
are determined to do all they can to discourage it. The
courts are therefore, determined to punish severely any one who
In the circumstances, the reviewing judge was, under the
powers vested in him by S.69(2)(b) (1) of the Subordinate _Courts
No. 58 of 1918, entitled to correct, as he did, the
sentence imposed by the trial magistrate. That section reads :
"If, upon considering the proceedings aforesaid, it
appears to the reviewing officer or the judge, as the case may be,
same are not in accordance with justice or that doubts exist
whether or not they are in such accordance :
(b) the judge may -
(1)nlter or reverse the conviction or increase or reduce
or vary the sentence of the court which imposed the punishment;"
I take the view that the removal of the suspension order
from the sentence imposed by the trial magistrate was, not only
reviewing judge's discretion vested in him under
provisions of 3.69(2)(b)(i) of the Subordinate Courts Proclamation,
also justified in the circumstances of the present case.
8/ I am not ....
I am not, therefore, prepared to interfer and the appeal
is accordingly dismissed.
However, in the discretion of this court, it is ordered
that the appeal deposit be refunded to the appellant.
B.K. MQLAI.JUDGE. 8th August, 1983.
For Appellant : Mr. Ramodibeli For Respondent' Mr. Kabati.
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