IN THIS HIGH COURT OF LESOTHO In the Appeal
RAMAKOLOI RAMOHAPI Appellant
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
18th day of August. 1989.
The appellant has appealed to this Court against a
conviction for contempt pursuant to which the learned magistrate had
sentence of three months' imprisonment.
The contempt proceedings appeared to have arisen from
appellant's failure to honour his undertaking to pay a total of M200
of M100 on each of the two counts arising from traffic
The appellant had been given an opportunity to go and
collect the money for the fine imposed in October but failed to do
contempt proceedings were instituted against him
and culminated in his being sentenced to three months' imprisonment
of a fine on 31-12-86.
I was informed from the bar that the appellant had paid
the fine before contempt proceedings took place. I am also informed
informed the court of this.
But nothing on the record bears this out. In any
case nothing turns on this aspect of the matter as it is
not the basis of the appeal.
The appeal is based on the fact that the court below
erred in law in holding that appellant's failure to pay a fine
amounted to contempt.
Further that 3 months1 imprisonment
without option of a fine evokes a sense of shock.
The last ground of appeal is based on the ground that
the appellant had pleaded guilty. This should have gone a long way
mitigating the sentence. Further the contempt occurred
privately between the learned magistrate and the public prosecutor
In any event where contempt is held to be of so serious a
nature as to merit custodial sentence such sentence is more often
not wholly suspended.
Mr, Sakoane for the crown submitted that there is
no basis on the record for the submission that the appellant had paid
the fine in respect of
the traffic offence with which he had been
charged. He very properly conceded that provision of S. 316(1) of the
C P & E should
have been invoked where an accused person given a
penalty of a fine fails to pay it instead of committing him for
S. 316(1) reads:
"If the conditions of any order made, or
recognizance entered into, under section 314 or 315 are alleged
to have not been
fulfilled, the public prosecutor may, without any
notice to the convicted person, apply to any Subordinate
Court for a warrant for his arrest for
purposes of bringing him before the court to show cause
why he should not undergo the sentence which has been, or may be,
See also Ss. 315 and 316 in toto.
While I agree that the learned magistrate should have
invoked the provisions of S. 316, I do however think that S. 314(2)
more relevance. It reads:
"Whenever a court has imposed upon any person
afine without an alternative sentence of imprisonment
and the fine is not paid «... ....
the court which passed sentence on that person may issue
a warrant directing that he be arrested and brought before the court,
may thereupon sentence him to such term of imprisonment as
could have been imposed upon him as an alternative punishment, in
of sub-section (1),"
As pointed out earlier the appellant had not been given
any alternative form of punishment to the fine imposed. In default of
paying the fine the above section says he should have been
brought before the court for purposes of imposing an alternative
of imprisonment. It was wrong therefore to have arrested him
for purposes of laying a contempt charge against him and. proceeding
with the trial on that basis.
The record does not say within what period or on or
before what date or time the appellant was required to pay the fine.
date be inferred? I think not.
If the case for the crown in the court below was that
the appellant has committed contempt by defaulting in his payment of
then the onus of showing the exact date when the payment was
to be effected rested on the crown. For this charge to have stood in
the circumstances of this case time was clearly of the essence. In my
view the crown has not discharged that onus either.
The appeal succeeds.
JUDGE. 18th August, 1989.
For Appellant : Mr. Nathane For Respondent : Mr.
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