CRI\A\39\92 IN THE HIGH COURT OF LESOTHO
In the matter between:
SOLOMON PITSO MAKHETHA Appellant
Delivered by the Honourable Mr. Justice J.L. Kheola
on the 10th day of November. 1992.
This is an appeal against the conviction and sentence of
the Subordinate Court for the district of Mohale's Hoek in a case in
the appellant was charged with the crime of contravening
section 7 (a) (ii) of the Hotels and Restaurants Act No.11 of 1984.
alleged that on the 14th day of February, 1991' and at or near
Mohale's Hoek Reserve in the district of Mohale's Hoek the said
did unlawfully and intentionally use or keep certain premises
as a restaurant without a valid restaurant licence for such premises.
The facts of this case are common cause. The officials
of the Ministry of Trade and Industry detected that the appellant was
his premises without a valid restaurant licence. His
premises were licenced as a General Dealer's trade. They arranged
with the police
to trap the appellant. A marked R5.00 note was given
to one person to go to the appellant's premises and to buy a bottle
from the appellant. He sold a bottle of beer to that person
and opened it. Police suddenly entered and arrested him and found the
marked R5.00 note in his possession. In that building there were
chairs and tables apparently used by customers when drinking their
beer; there was a big iron bar on which mutton was hanging; there was
fridge in which there were different kinds of drinks and beer;
were cases of different kinds of beer and cases of empty bottles;
there was a machine for cutting meat and a kitchen.
There is no doubt in my mind that the appellant was
caught red-handed selling liquor without a licence. Now the question
he was charged under the right law or not.
Mr. Sooknanaa, counsel for the appellant, submitted that
a condition precedent to appellant being charged under section 7 (a)
of Act No.11 of 1984 would be that the appellant used the
premises as a restaurant. The Crown would have to prove
that premises satisfied all the description of a restaurant e.g.
for section 17 at item 39 states that a restaurant should
have a menu for each meal and separate swing doors or a revolving
with kicking gates should provide for in-going and out-going
traffic to and from the kitchen. There was no evidence to that
I agree with the above submission that the premises
must, to some extent, resemble a restaurant as described in the law.
is normally a place where meals and refreshments are
sold. There was no evidence that meals were sold in those premises.
no evidence of the presence of food meals in the kitchen
ready for sale or which could be made ready for sale within a very
time. The presence of a kitchen does not take the Crown case
any further because in many big shops and big offices kitchens are
for use by the staff. If the police wanted to establish in a
satisfactory way that the premises were used as a restaurant the
thing to order was a meal and then liquor.
I am of the view that the Crown has failed to
prove that the premises were used by the appellant as a
restaurant but they proved beyond a reasonable doubt that the
liquor without a licence in terms of section 21 (1) of
the Liquor Licensing Act No.16 of 1976 which reads as follows:
"Any person who sells, deals in, or disposes of
liquor without a licence is guilty of an offence and liable -
on first conviction, to a fineof one hundred rand
or sixmonths imprisonment;
on second or subsequentconvictions, to a fine
of twohundred rand or twelve monthsimprisonment or both."
The appellant ought to have been charged under section
21 (1) of Act No.16 of 1976.
The appeal on both conviction and sentence is allowed.
The exhibits which were forfeited must be returned to the appellant
or if already
sold, the proceeds of the same be returned to him; but
the Crown institutes other proceedings under a different
JUDGE 10th November, 1992.
For Appellant - Mr. Sooknanan For Respondent - Miss
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