HIGH COURT OF LESOTHO
NKALAI & ANOTHER REV/CASE/133/2004
The Chief justice M. L. Lehohla
Mr. Justice W. C. M. Maqutu
Mr. Acting justice M. E. Teele
ON 24TH SEPTEMBER 2004 BY THE HONOURABLE M. L LEHOHLA, CHIEF JUSTICE
three matters came to the High Court on automatic review. During May
2004, Acting Justice Teele was allocated Review case
131/04. At about the same time Justice Maqutu was allocated the two
remaining reviews in this matter. Having studied the respective
both Judges approached me with a request that these matters should be
heard together in open court in view of the weighty
issues that were
thrown up by the facts in each case and the application of the Stock
Theft Act 2000 as Amended which is a common
denominator in all of
was persuaded of the need to accede to the said request and I
directed that an amicus curiae counsel should be appointed to
represent the accused persons and that the Crown should prepare
submissions on specific constitutional issues which I shall detail
later in this judgment.
Mohau was appointed and he appeared as an amicus curiae and the
Director of Public Prosecutions, Mr. Thetsane appeared in
enable both counsel to prepare their submissions a (late of the 23rd
of August 2004 was appointed as a date of hearing.
the said date we heard full argument and postponed the matters to
the 24th of September 2004 for the delivery of judgment.
indebted to both counsel for their most helpful written as well as
facts of these reviews are pleasantly uncomplicated and can he
a 33 year old man was charged with contravention of section 3(1) of
the Stock Theft Amendment Act No. 5 of 2003:
in that upon or about the 18th of April, 2004 and at or near
Matatiele in the Republic of South Africa, the said accused
manner otherwise than at the public sale unlawfully and
intentionally acquired or received into his possession 7 herd
cattle and brought the same to TERESENG in the district of Qacha's
Nek where this court has jurisdiction without being duly
by the owner Jerry Setlamoreng Moshoeshoe to deal or dispose of the
accused was charged before the Qacha's Nek Magistrate with first
class powers. Accused pleaded guilty and the outline of facts
revealed that the seven (7) cattle subject matter of the charge were
stolen at Matatiele, Republic of South Africa. Upon being
by the Chief, the accused admitted having stolen the same. Accused
was found guilty as charged and sentenced to pay
thousand maloti) fine or to undergo imprisonment for ten years in
default of such payment. All the stolen cattle having been recovered
were restored to the possession of the complainant Jerry Moshoeshoe.
record reveals that accused had no previous convictions; that he was
married and had two minor children dependant upon him
two accused Molemo and Liphehlo Masenkane both 26' years of age
appeared before the Botha-Bothe Magistrate Court, with first
powers, charged with the contravention of Section 8(2) of the Stock
Theft Act 4 of 2003 (the amendment). It was alleged
"upon or about the .5th of January 2004, and at or near Patuoe
Motete in the district of Botha-Bothe district the said accused
wrongfully and intentionally did (sic) both have in their possession
2 sheep and are (sic) unable to give a satisfactory explanation
such possession, the possession or in the lawful possession of Manko
accused pleaded guilty to the charge and after the outline of facts
by the Public Prosecutor they were both found guilty
as charged. The
Learned Magistrate however found, and recorded, that the law under
which the accused had to be sentenced prescribes
that exceed his penal jurisdiction. The learned Magistrate then
decided to deal with the matter in terms of
S. 293 (1) of the
Procedure and Evidence Act 7 of 1981 (CPE Act) which provides as
"Where on the trial by a subordinate court a person whose
apparent age exceeds 18 years is convicted of an offence, the court
may if it is of the opinion that greater punishment ought to be
inflicted for the offence than it has power to inflict, tor reasons
to be recorded in writing of (sic) the record of the case, instead of
dealing with him in any other manner, commit him in custody
High Court tor sentence."
Koatake a male Mosotho adult aged 2() years was charged at the
Mokhorlong Magistrate Court as follows:
"That the said accused is charged with the offence of
contravention of Section 13(2) (a) of the Stock Theft Act No 4 of
as amended by Stock Theft Amendment Act No 5 of 2003.
In that upon or about the 4th day of October 2003 and at or near Ha
Meja in the district of Mokhotlong the said accused did unlawfully
and intentionally use violence at the time of committing theft of
Stock to wit, 7 sheep and 6 goats the property or in the lawful
possession of "Tholang Khotle"."
accused pleaded not guilty, but alter evidence was led by both the
crown and the defence, he was convicted as charged and
pay a fine of M25,000.00 (twenty-five thousand maloti), or to
undergo a period of 25 years imprisonment in default
will he evident later in this judgment, it is not necessary to
traverse and analyse all the evidence that was led on either
It will be sufficient for our present purpose to summarize the
evidence of the complainant as to how the offence was committed.
this judgment the correctness of the evidence of the complainant
will be assumed.
Rhode, the complainant, testified that he owns sheep and goats; that
on the date reflected in the charge sheet, he had
livestock and had proceeded to go to bed. In the dead of the night
he heard dogs harking. He prepared to go out
to investigate. As he
opened the door, stones were thrown at him. He resorted to looking
through the window; the stone thrower
also shifted his focus to the
window and pelted them with stones. Complainant's sheep and goats
reflected in the charge sheet
were stolen. When complainant raised
an alarm and villagers responded thereto, gun reports were heard
coming From the direction
of the robbers, thereby thwarting any
efforts to rescue the livestock. Later, however, 5 sheep and 5 goats
were recovered, and
restored to complainant's possession.
The Law: Fatane and Koatake's Reviews
these reviews the accused were charged with contravention of the
same section, but the difference was only in respect of the
particular subsections. This is section 3 of the Stock Theft Act No.
4 as Amended (The Act). It will be convenient to reproduce
entire section, and it reads as follows:-
(1) "Any person who in any manner, otherwise than at the public
sale, acquire or receives into his possession from any other
stock or produce or both, without having reasonable cause, proof of
which shall be on him, for believing at the time of
receipt that the stock or produce or both are the property of the
person from whom he receives them, or that the
person has been duly
authorized by the owner thereof to deal with or dispose of them
commits an offence and is liable on conviction
to the penalties set
out in section 13.
(2) If there are reasonable grounds for believing that any person who
is in possession of stock or produce has obtained the possession
such stock or produce unlawfully, or if any such person is proved to
have been in possession of such stock or produce unlawfully,
be competent for any chief member local authority or any person
authorized to do so under the Criminal Procedure and Evidence
1981, to arrest or cause to be arrested such person without a warrant
and if such person is unable to give satisfactory explanation
commits an offence and is liable, on conviction, to the penalties set
out in section 13."
13, in so far as it is relevant, in turn reads as follows:-
"13 (2) A person who at the time of committing theft of stock,
produce or both :
another with or without a fire arm or any other offensive weapon
commits an offence and shall be liable to:-
(i) In the case of first conviction, a fine not less than M25,000
and not exceeding M50.000.00 or imprisonment for a term not
25 years and not exceeding 50 years or both; or
(ii) In the case of a second or subsequent conviction, a fine not
less than M50.000.00 and not exceeding Ml00.000.00 or imprisonment
for a term not less than 50 years."
accused in the Koatake review was charged with the contravention of
the provisions of S.13(2)(a).
following issues arise in the light of the facts of the above renews
a) Hearing in mind the fact that in all these reviews the
magistrates' penal jurisdiction were below the mandatory minimum
decreed by the provisions of Section 13 of the Act, did the
magistrates have jurisdiction to preside over and determine these
b) If the answer to enquiry (a) is in the negative, what should have
been an appropriate court of competent jurisdiction and;
c) Bearing in mind the provisions of S 8(1) of the Constitution, are
the mandatory minimum sentences decreed by S.13 of the Act
therewith, and in the event of inconsistency, what relief should be
appropriate to meet this situation;
d) There developed during argument, a further issue whether it was
competent for the court to consider the constitutional issues
in sub para (c) in the event that the court should find that the
magistrates had no jurisdiction to have heard these cases,
e) a further issue was that in the event that constitutional issues
could be competently dealt with by this court, on the facts
reviews, whether the provisions of S. 3 (1) of the Act were
consistent with the provisions of S. 12 2(a) of the Constitution on
the presumption of innocence.
was common cause between both counsel before us that the penal
jurisdiction of each individual magistrate fell short of the
mandatory minimum sentence decreed by S. 13. This court has held in
the past that where there is no power to punish there can
power to try. See R v Letsie Molapo 1985-90 LLR 223 AT 224. In that
event therefore, it is clear that the magistrates dealt
that were well beyond their jurisdiction.
magistrate in the Nkalai review incorrectly assumed that he could
try the accused, and as regards sentence, commit them to
for sentence in terms of S. 293 (1) of the CPE Act 1981. That was a
misdirection. S. 293 (1) only applies where the
magistrate had power
to try in the sense that he had jurisdiction on the subject matter
as well as the power to impose the appropriate
it was submitted by the Director of Public Prosecutions that the
issue of jurisdiction was determinative of the entire proceedings,
and what he consistently referred to as the "so called
constitutional issues" should not be gone into. Mr. Mohau, on
the other hand, submitted
that it was not possible to refrain from dealing with the
constitutional issues in this case as the issue of jurisdiction was
is the correctness of these submissions that I must decide. The
contention by the Director of Public Prosecution finds support
the Constitution itself. Section 22 of the Constitution confers on
the court the power to enforce the protective provisions
in sections 4 to 21 inclusive of the Constitution, which have been
referred to as the Chapter II rights. S. 22(2) provides
"provided the High Court may decline to exercise its powers
under this subsection if it is satisfied that adequate means of
redress for the contravention alleged are or have been available to
the person concerned under ;any other law."
S.22 of the Constitution deals with the situation where the court
enforces the Chapter II rights on the petition of an
is my humble view that the limitation contained in the above proviso
would also apply to the situation such as
is further support for the contention of the Crown in the
constitutional common law developed by the Court of Appeal. See
Khalapa v Commissioner of Police and Another 1999-2001 LLR 106 at
111 where Gauntlett JA said:
"It is again an important principle of constitutional litigation
that a court will not determine a constitutional question
matter may properly be adjudicated on another basis. Its African
genesis is a single sentence by Kentridge AJ in S v Mhlungu [995
SA 867 (CC) at 895 E:
"I would lay it down as a general principle that where it is
possible to decide any case, civil or criminal, without leaching
constitutional issue, that is the course that should be Followed."
........................this Court, in its judgement in Sekoati v
of the Court Martial C OF A (civ) 18/99, 9 November 1999) adopted the
same approach (at p. 10)"
The test has been put somewhat differently, namely that where it is
possible to decide the matter on any other ground other than the
constitutional ground, that course should be followed.
appears to me that whether we approach the matter from the point of
view of adequacy of a non-constitutional remedy or of the
possibility of deciding the issue on a non-constitutional basis the
result is the same. It appears undesirable to try to define
circumstances it would be appropriate to venture into a
constitutional enquiry, in addition to a non-constitutional one.
Each case must depend on its own facts.
Mohau submitted that it was not possible to avoid the constitutional
enquiry for the jurisdiction issue was not determinative
problems arising from these reviews. He submitted that there are
cases that are likely to arise on a daily basis and to merely set
aside the proceedings tor want of jurisdiction on the part of
magistrates will not resolve the issue. He points out that no
magistrate, not even the chief magistrates would have the necessary
penal jurisdiction and consequently no power to try stock theft
cases; and in the meantime anarchy would prevail.
the Stock Theft Act as amended confers jurisdiction on the Central
and Local Courts (Basotho Courts) to try cases under the
Section 14 A reads:
"notwithstanding any other law, a Central or Local Court shall
have jurisdiction to try any of the offences under this Act".
Mohau submitted that the conferral of jurisdiction on the Basotho
Courts in respect of offences attracting penalties as severe
those decreed by S. 13 of the Act would engage the right to a fair
trial conferred by S. 12 of the Constitution. Mr. Thetsane
other hand submitted that those courts ordinarily tried the Stock
Theft cases independently of the Act.
will be evident later in this judgment, the propriety of conferring
jurisdiction on the Basotho Courts does raise constitutional
of propriety as submitted by Mr. Mohau. In that event, therefore,
any attempt to avoid one constitutional enquiry leads
to another problem of a different type. It appears to me, therefore,
is not possible to adequately address issues arising herein without
resort to the constitutional issue.
Director of Public Prosecutions, however, had another string to his
bow. It was that this being an automatic review it was
appropriate to deal with constitutional issues. He submitted that we
are confined only to enquiring whether the proceedings
accordance with real and substantive justice.
argument loses sight of the real purpose of automatic review.
Magistrates are required to conduct proceedings before them
and in accordance with the precepts of both formal and substantive
justice. The more severe the sentence, the greater
the need tor
supervision that those precepts have been observed. It is for this
reason that in such cases these proceedings are
brought for review
to this court.
68(1) of the Subordinates Court Act 9 of 1988 (as amended) provides
that, where the proceedings are in accordance with
justice, in the
case of a review by a judge, the judge shall "endorse his
certificate to that effect upon the record of
such proceedings and
return it to the magistrates court". S. 68 (2) and (3) on the
other hand reads:
"if upon considering the proceedings it appears to the
.......judge.... that the same are not in accordance with justice or
that doubts exist whether or not they are in such accordance:
b)the judge may
i) alter or reverse the conviction or increase or reduce
or vary the sentence of the court which imposed the
in any case the judge desires to have any question of law or fact
arising in any such case argued at the bar, he may direct
to be argued by the Director of Public Prosecutions and by such
other person as the judge may appoint." (my emphasis)
my humble, opinion the powers conferred on a reviewing judge are
wide indeed. The scheme of the automatic review provisions
intended to provide an accused, especially an un-represented
accused, with additional safeguards that his trial is fair
substantively and procedurally. The un-represented accused should
never under our law feel that because of his inability to secure
services of counsel his guilt is a forgone conclusion.
since the enactment of the Constitution the fairness of any trial
must be measured against the right to fair trial contained
Section 12 of the Constitution. The reviewing judge is obliged to
consider the matter on the basis of the ordinary statutory
law precepts. Hut he must go further and consider whether the
proceedings measure up to a fair trial under the Constitution
Kingdom. A reviewing judge will always be guided by the limitation
earlier referred to, namely
whether the non-constitutional remedy is adequate or whether it is
possible to decide the review without resort to constitutional
respectfully adopt the remarks of Mahomed AJ (as he then was) in the
Namibian case of S.v Acheson 1991 (2)SA 805 at 813:
constitution of a nation is not simply a statute which mechanically
defines the structures of government and relations
government and the governed. It is the "mirror reflecting the
national soul", the identification of the ideals
aspirations of the nation, the articulation of the values bonding
its people and disciplining its government. The spirit
tenor of the constitution must therefore preside and permeate the
process of judicial interpretation and judicial discretion......"
follows that the argument advanced by the Director of Public
Prosecutions cannot be sustained. It misconceives the purpose
review, the power and responsibility of this court as a reviewing
therefore, proves convenient to proceed to deal with constitutional
issues arising, starting with the issue of jurisdiction
constitutional sense. As earlier stated, the contention was that S.
I4A, conferring jurisdiction on the Basotho Courts,
violates a right
to a fair trial. The argument was that the penal sections of the Act
decree very severe sentences. Such sentences
are beyond the normal
penal jurisdiction of the Basotho Courts; these courts are manned by
court presidents the majority of whom
have no legal qualifications
whatsoever. Mr. Mohau
urged us to find that a right to a fair trial is necessarily
threatened if an accused appears before these courts with the risk
that he may be sentenced to the minimum sentence.
is merit in this argument. The principles underlying a fair trial
alone require that a presiding officer shall be conscious
of them in
order to ensure that they are applied and enjoyed by any particular
accused appealing before a court. Training is
a major component for
the attainment of the necessary knowledge. It will not help,
therefore, that a judicial officer is perfectly
honest and impartial
in the exercise of his duties if he is not aware of what those
duties entail. To take but one example, a
fair trial procedure as
developed in this jurisdiction is that an accused shall be advised
of his right to legal representation;
assisted in conducting his
defence where the need becomes apparent; advised of the right to
call witnesses etcetera. See Mahlaku
Letsaba v The Magistrate Leribe
and One C of A (CRI) No 2 of 2003 (unreported). All these matters,
given their lack of training,
the Presidents of the Basotho Courts
may not be conscious of.
take the matter further, assuming an accused is represented before
the Basotho Courts and the legal representative finds that
Chapter II rights of his client are being violated, and he raises
the matter for the consideration of the court, in terms
22 (3) of the Constitution unless the subordinate court finds that
the point raised is frivolous or vexatious, the
matter should be
referred to this court for determination, if a party so requests.
Would the untrained President of the Basotho
Courts be able to decide the issue of frivolity or vexatiousness? I
do not think so.
the problems arising from the conferral of penal powers of the
magnitude being considered under this Act are more profound
issue of a fair trial. They are institutional by their very nature.
Section 7 of the Central and Local Courts Proclamation
62 of 1938,
which establishes these courts provides as follows:-
"Every Central and Local Court shall have and may exercise
criminal jurisdiction to the extent set out in its warrant and
subject to the provisions of this Proclamation......."
10 of the Proclamation reads:
"The Minister, with the concurrence of the Chief Justice, may by
order confer upon all or any Central and Local Courts jurisdiction
enforce all or any of the provisions of any law specified in such
order, subject to such restrictions and limitations, if any,
Minister with the concurrence of the Chief Justice, may specify."
sections 7 and 10 are structured in such a way that the jurisdiction
of the Basotho Courts in criminal matters and in the
any statutory provisions is carefully controlled and monitored. The
Chief Justice plays an important role in this
process as an overall
administrator of the courts, conversant with the staffing and
aspects of these institutions. It is for this reason that the
Proclamation enables the Minister, with the concurrence of the Chief
Justice, to discriminate between the courts that may be given the
power to enforce statutes. The aptitude of any President is a
significant determining factor in that exercise.
requirement that the principles of a fair trial be observed is
enforced more rigorously in proportion to the severity of the
sentences prescribed or likely to be imposed. It is for this reason
that in this court where severer sentences are likely to
because of the grave nature of offences triable here, it is a
requirement that an accused should be represented. If
impecunious counsel is briefed for him pro deo. The sentences
prescribed by the Stock Theft Act necessitate the invocation
rigorous standard of what would be a fair trial and I am not
satisfied that all the Central and Local Courts make the
of the humble opinion that the right to a fair trial provided in
Section 12 of the Constitution is not an end in itself.
It is a
means to an end. That end is the protection of the right to personal
liberty enshrined in Section 6 of the Constitution.
By a right to a fair trial the Constitution seeks to ensure that
personal liberty should not be curtailed otherwise than after
processes that are beyond suspicion. It is for this reason that the
longer the sentence likely to be inflicted on the individual,
higher the yardstick for a fair trial.
is not without significance that the Central and Local Courts do not
administer an oath. Witnesses before those courts are
admonished to speak the truth. Rule 17(2) Basotho Courts (practice)
and Procedure Rules provides that "Oaths shall not be
administered to witnesses in the Basotho Courts".
7 of those Rules provides for the Criminal Procedure to be followed.
Part 7 consists of (24) twenty-four rules. Compare that
with the 345
sections in the Criminal Procedure and Evidence Act of 1981 that
applies in the ordinary courts.
The decision of the Court of Appeal in Lenka v Rex C of A (CRI) No.2
of 2004 (unreported) teaches us that this comparison
is not without
significance. At page 4 Plewman J.A said:
"what was recorded was her own understanding of what they had
said. That is not evidence at all. Section 220 of the Criminal
Procedure and Evidence Act provides as a prerequisite to
admissibility that evidence must be given on oath. The record is
not a proper record and the magistrate failed to properly
record the evidence. That is a fatal irregularity."
also reflects the common law position. There is a lot of
jurisprudence behind both the Criminal Procedure and Evidence Act
and the common law tailored to meet the requirements of a fair
trial. All this jurisprudence is not available to the Central
in conferring upon the Central and Local Courts the power to deal
with the Stock Theft Act despite its far reaching consequences
the liberty of the individual, the legislature has tailed to take
into account these inherent institutional features of the Basotho
Courts which make such courts, sui generis. The sentences that were
prescribed for the Basotho Courts in the Proclamation leave
no doubt that these courts were intended to deal with minor offences.
the very Proclamation establishing the Basotho Courts enshrines the
principle of proportionality that is so central to
process. Section 11 provides that these courts may inflict
".. provided that such punishment is not repugnant to natural
justice and humanity; and the fine or other punishment shall
case be excessive but shall always be proportionate to the nature and
circumstances of the offence and the circumstances
of the offender."
is these humane, proportionate sentences that compensate for lack of
legal training and clothe these courts with the necessary
institutional legitimacy. The ordinary Mosotho, knowing these courts
and their personnel, is more likely than not to be outraged
these courts impose sentences that are spelt out in the Stock Theft
Act. Rather than enhancing their image, these penalties
to evoke public scorn, anger and bring the administration of justice
in these courts into disrepute.
1995 the then Minister of Justice increased the penal jurisdiction
of the Basotho Courts without the concurrence of the then
Justice. That incident has been a subject of judicial comment in
this court. In the matter of The Law Society of Lesotho
v The Prime
Minister Pakalitha Mosisili NO and 2 Others, constitutional case
No.2/2004, (unreported) this court made the following
".........it seems that the Minister of Justice did not act
lawfully when he increased the criminal jurisdiction of the Local
Central Courts in 1995 without the written concurrence of the Chief
Justice as required by Section 10......... The jurisdiction
increased over the objections of the Chief Justice contrary to
Section 10 of the Local and Central Courts Proclamation 62 of
it is not strictly necessary, nor desirable, for the present
purposes to decide the effect of the warrant by the Minister
as this is not before us, it appears to me that the Central and
Local Courts' increased penal jurisdiction is itself
and may be open to challenge.
fact that the increased jurisdiction of the Basotho Courts is
introduced by statute (Stock Theft Act) does not insulate the
increase from attack both under the Proclamation which clearly
circumscribes how the increase should be effected, and under
Constitution. The prerequisite circumstances under which the
Proclamation permits an increase in the jurisdiction of the
REVERSAL OF ONUS: S.3(l)
58) Mr. Mohau submitted that S.3(l) of the Act (as amended) fully set
out earlier, violates the right to be presumed innocent in
S.12 (2)(a) of the Constitution that reads:
"Every person who is charged with a criminal offence (a) shall
be presumed to be innocent until he is proved or has pleaded
He submitted that it could not be said that the reversal of onus was
reasonably necessary to assist the prosecution in prosecuting
offenders. He submitted that the present provision goes beyond merely
shifting the evidential burden, and amounts to requiring
to prove his innocence as the section requires the accused to prove
the most significant element of the offence. He
referred us to
Attorney General Hong Kong v Lee Kwong- KUT 1993 (3) ALL ER 939 at
Director of Public Prosecutions conceded Mr. Mohau's argument.
I found to be a more compelling and profound ground of objection to
the S.3(l), however, rested on a different basis raised
by the court
with both counsel during oral argument. It is this, that S.3(i)
appears to criminalize any acquisition of"
stock made otherwise
than at the public auction, irrespective of whether there is proof,
or reasonable suspicion that such stock
has been stolen. The only
element of the offence under Section 3(1) is the absence of
reasonable belief of the
acquirer or receiver that the stock or produce or both are the
property of a person from whom he receives them.
my humble opinion, the section as it stands would violate the
individuals' rights contained in SAG (1) of the Constitution,
person shall be entitled to and (except with his own consent) shall
not be hindered in his enjoyment of freedom
to associate freely
with other persons for ideological religious, political, economic,
labour social, cultural and similar
purposes." (My emphasis)
possibly innocent activities has the potential to interfere with
trade in stock as an economic activity and undermine
dispensation. I do not think that a provision such as S.3(l) is
necessary for any purpose at all in a democratic
this court was to find that there was an omission, in that event I
would have to investigate the propriety of reading
in the words such
as "stolen stock or stock in respect of which there is
reasonable suspicion that it was stolen" after
person who in any manner, otherwise than at a public sale acquires
or receives into his possession from any other
See: S v Manamela and Another, Director General intervening 2000 (5)
BCLR 491 (CC.)
difficulty in the way of reading in the words referred to in the
preceding paragraph of this judgment is that the result would
that I would he duplicating an offence already created in terms of
S. 13(3)(d) of the Act which reads:-
A person who
knowing to have been stolen
d) is in unlawful possession without a satisfactory account
of such possession of,
e) conceals or procures the theft of;
f) illicity acquires or fails to show lawful means of acquisition of;
stock or produce or both, as the case may be commits an offence."
than that, Section 3(1) would exempt public auction, it is
substantially similar to Section 13(3) above. This section fortifies
my view that legitimate trade was being criminalized in section
3(1). That is not permissible.
ARK SENTENCES DECREED BY SECTION 13 OF THE ACT IN
CONFLICT WITH S. 8 OF THE CONSTITUTION.
in general plays a very important role in the lives of the Basotho.
Cattle, For example, are not just of economic value,
but they also
play a vital role in the ceremonies and in social institutions of
the Basotho. At burials cattle are slaughtered
purposes. Cattle are paid as bohali and their payment is, in
customary law, regarded as an essential for the validity
majority of Basotho men have lor many years been reliant, for their
source of income, on employment in the mines of the Republic
South Africa. The number of Basotho employed in these mines has
significantly decreased in the past few years. Farming has
their only viable option. Cattle play a crucial role in that regard.
high incidence of stock theft, however, threatens this only hope to
legitimate stock farmers. The legislature, no doubt with
stated matters in mind, was impelled to device means that would stem
the tide. This is both legitimate and understandable.
indeed needed to be done.
remains, however, is that Lesotho is now a constitutional democracy.
She has adopted a Constitution enshrining a bill of
Chapter II. All activity, executive, legislative and judicial has to
be measured against the norms and values articulated
Constitution. The Constitution represents the national consensus of
the way the
nation has elected to be governed. In the words of Mahomed AJ in
Acheson's case supra, it reflects the national soul.
question here arising is whether the legislature by enacting S.13
penalties violated the principles articulated in S. 8(1).
national consensus expressed in S. 8(1) is that
person shall be subjected to torture or to inhuman or degrading
punishment or other treatment."
The very section clearly demonstrates in subsection (2) that a break
with the past was contemplated. Conduct that was lawful immediately
before the coming into effect of the Constitution, even though it
might have offended vS.8(l), is excused and insulated from the
rigours of S.8(l)
Section 8(2) reads:
contained in or done under the authority of any law shall be held
to be inconsistent with or in contravention
of this section to the
extent that the law in question authorizes the infliction of any
description of punishment that was
lawful in Lesotho immediately
before the coming into operation of this constitution."
break with the past requires, therefore, that in the enactment of
laws by the legislature; the treatment of individuals by
executive; and in the conduct of proceedings and imposition of
sentences by the
judiciary, the proscription under S. 8(1) shall henceforth
pervasively govern and become a yardstick against which these
enacting this Constitution and building into it the provisions of S.
8(1), the framers of this Constitution were aware that
intended to serve the society which by no means had become perfect.
That within such society crimes would be committed
was a real
possibility. Appropriate consideration was given to this fact in the
Constitution. But section 8(1) was to apply to
all and sundry; the
law abiding citizens and the criminal element within the society.
The latter were as much part of this nation
as the rest of us.
is against this background therefore that we need to examine the
sentences decreed by section 13, and I proceed to do so.
on both sides agreed on the following:
minimum sentences are not per se unconstitutional;
the minimum sentences will only be unconstitutional if they are so
grossly disproportionate regard being had to what would
have been a fair and just sentence.
the Canadian case of Smith v The Queen 1988 LRC (const) to which Mr.
Mohau referred us, Lamer J puts the matter in the following
"the test for review under section 12 of the Charter is one of
gross disproportionality because it is aimed at punishments
more than merely excessive. We should be careful not to stigmatize
every disproportionate or excessive sentence as being
constitutional violation and should leave to the usual sentencing
appeal process the task of reviewing the fitness of a sentence.
Section 12 will only be infringed where the sentence is so unlit
having regard to the offence and the offender as to be grossly
the matter of S v Vries 1996 (12) BCLR 1996 (Nm) Frank J, approving
the approach in the Canadian cases, said the following
"The Canadians have evolved a set of principles which in my view
is the only sensible approach once it is accepted that a
in general be acceptable and constitutional but in a particular case
be unacceptable and unconstitutional. From a
reading of the Canadian
cases of Smith v The Queen, R v Coltz, and R v Kumar mentioned above;
the following may be said to be their
statutory minimum sentence of imprisonment is not perse
will be unconstitutional if it prescribes imprisonment: as
punishment, which is grossly disproportionate to circumstances
the offender and the offence.
section 12 test for "gross dispropotionality" is to be
applied first with respect to the offence and the offender
court, and then with respect to hypothetical cases
which.........can be foreseen as likely to arise commonly (R v
Kumar 180. see also Smith and Goltz cases)."
1 am in respectful agreement with Frank J that this is the correct
approach and that it is eminently sensible.
the South African case of S v Dodo 2001 (5) RCLR 423 (CO, to which
the Director of Public Prosecutions referred us, the approach
Smith's case was quoted with apparent approval. Ackermann J went on
to state in relation to the case before him that "..........it
is sufficient to hold that the legislature is not empowered to
compel any court to pass a sentence which is inconsistent with
Zimbabwe, the Supreme Court also applied the same test, namely
whether the sentences are grossly disproportionate. In the matter
S v Arab 1990 (I) ZLR 253 (SC) Dumbutshana CJ, dealing with the
mandatory 3 years imprisonment sentence under the Precious Stones
Trade Act 1978, had the following to say:-
"The minimum penalty prescribed by S. 3 (2) can only be found
degrading punishment if it is grossly disproportionate...........of
course if a sentence is grossly disproportionate it offends against
society's standards of" decency and infringes S. 15(1)
Provisions of section 1.5(1) of the Constitution of Zimbabwe are
identical with the provisions of S. 8(1) of the Constitution of
have found it necessary to refer to cases decided in other
jurisdictions only to dispel any misconception that might develop
that our decision has been influenced by our personal prejudices,
and that we have turned those into legal principles.
Fatane and Nkalai's Reviews
appears to me that the cases of the accused in these reviews are
representative of the typical cases that are likely to arise
frequently in this Kingdom. It becomes necessary therefore to
investigate whether in such circumstances it will be constitutional
to impose the statutory minimum sentences imposed under S13.
Mohau submitted that the sentences are so grossly disproportionate
that they should be struck down as offending against the
of S.8(l) of the Constitution.
Director of Public Prosecutions, however, approached the matter from
a different angle. He submitted that the reference in
S.3 of the Act
as amended, to penalties prescribed under Section 13 was made
erroneously. He submitted that a receiver under
S. 3 of the Act is
exposed to the same sentences that are prescribed for robbery, which
is a more serious offence. He submitted
that this is absurd and the
absurdity becomes even more glaring when one considers that the
definition of theft includes a receiver.
Theft is punished under S.
14. Section 14 reads as follows:-
"unless otherwise provided in this Act, a person who contravenes
a provision of this Act commits an offence and is liable
in a case of first conviction
fine not less than M7,000 and not exceeding M14,000
for a term not less than three years and not exceeding seven years
(i) in the case of second or subsequent conviction -
a fine not less than M15.00.00 and not exceeding M30.000.00
ii) imprisonment for a term not less than seven years and not
exceeding 14 years; or
83. The Director of Public Prosecutions submitted that it would be
absurd to read the Act in such a way that people who have committed
the same offence have different minimum penalties prescribed for
them. He submits that could never have been the intention of the
legislature. He therefore, urged upon us to find that where in
Section 3(1) and (2) there is a reference to penalties in Section
Section 14 was intended.
He referred us to the case of Venter v Rex 1907 (2) TS 910 at 914 -
84) It is the correctness of this submission that I must determine.
It is to be noted that Section 3(1) and (2) were introduced
2003 amendment. The original section 3(1) proscribed acquisition of
stock, produce or both by a person unless he shall have
belief that the stock or produce was the property of one who disposes
of the same. It was not stated in so many words
that contravention of
the section would be an offence.
85) Section 3 (2) on the other hand was worded in much the same way
as it stands presently, except that after the words without
the amendment introduced the words that "........if such person
is unable to give a satisfactory explanation of
such possession he
offence and is liable on conviction to the penalties set out in
86) With the specific reference to the penal provisions in Section 13
made in section 3 of the Amendment, must he contrasted the
in respect of which no reference to a penal clause is made. These
include Section 4, which deals with registration of
which deals with tampering with marks of stock or with produce; and S
9, which deals with conveyance of stock.
These would attract
penalties under section 14. (the general penal clause).
87) Sections 4 and 6 were not initially the only provisions the
contravention of which attracted the penalties under section 14.
There were other less serious offences that attracted sentences under
section 14. But with the 2003 amendment this was changed.
They were the following
a) Section 5 that set up a regulatory framework for marking of stock
and made it an offence to use certain marks, (section 5)(5)).
2003 amendment still proscribed those marks but the contravention of
the new section now attracts the penalties under section
b) The original section 8 made it an offence to dispose of stock
without a beweys. There was no reference to the penal clause and
therefore S. 14 applied. But the amendment deleted subsection (9) of
section 8 which provided that
"A person who:-
a) contravenes a provision of this section; or
b) makes a false statement in a beweys commits an offence."
The amendment substituted the following subsection
a) makes a false statement in a beweys commits an offence
Commits an offence and is liable on conviction to the penalties set
out in Section 13."
Section 9 made it an offence to convey stock without a beweys and
made no reference to a penalty. Then S. (14) applied. Hut the
amendment changed all that. The "conveyance offences" now
attract penalties under Section 13.
88) I have set out this history and contrasted the provisions to
highlight the fact that the reference to the penal sections in
amendment appears to be deliberate. It recurs so often that it is
difficult to attribute its reference to a slip of the pen.
satisfied, therefore, that there is no lapsus calami contended for by
the Director of Public Prosecutions.
89) It must also be noted that the new section 13 penalties, which
are presently under review were introduced by the very 2003
It is inconceivable therefore that when the drafts-man referred to
these penalties he could have had section 14 in mind.
90) The Director of Public Prosecutions, however, very fairly
conceded that if his argument as to a lapsus calami failed, then
penalties prescribed under S. 13 are undoubtedly grossly
disproportionate. I think this concession is a proper one. Not even
person convicted of a murder would be exposed to penalties prescribed
in section 13. These sentences are so grossly disproportionate
they are likely to outrage the sensibilities of right thinking
members of the community. Even a law abiding citizen would
law unjust, were a first offender who pleads guilty, and all stolen
stock recovered by the owner, to be sentenced to a
period of 25 years
imprisonment, or to pay a fine of M25,000.00.
91) There is another aspect to the sentences that are prescribed.
There is no regard for the ability to pay the fine imposed. The
sentences would be affordable only to the rich. The impecunious
accused would have no option but to face imprisonment. Such a
sentence, rather than improving the image of the administration of
justice, brings it into disrepute. It has always been the approach
the common law as applied in this court that before a fine is imposed
the means of the accused should be investigated, so that
not to be imposed that were beyond the reach of the accused. The
approach in England is the same. See Magistrates Courts
guidelines 1st January 2004 based on the Criminal Justice Act 1991.
The Koatake's Review
92) The Director of Public Prosecutions insisted that as far as
robbery is concerned there is nothing wrong with the sentences.
submitted that robbery is a serious offence and the sentences are an
appropriate reflection of the gravity of the offence.
93) Undoubtedly, robbery is a serious offence and the sentences
imposed should necessarily be severe. The question, however, is
whether all robberies are the same. Experience teaches us that there
are different kinds of violence and different consequences
attach thereto. A robbery committed by a threat of violence and one
sheep stolen, is not the same as a robbery committed with
victims having been hurt in the process.
94) We do not live in a perfect society. Even those who commit
robberies at times are rehabilitated. A punishment that fails to
recognize these facts is not realistic. In a case where a robbery is
committed this court is most likely than not to impose a prison
of no more than \5 years imprisonment. A period of 25 years, in my
humble opinion, is too grossly disproportionate even for
involving violence. It must be borne in mind that given the state of
the economy and low or non existent income for
some households in
Lesotho, M25,000.00 is not a realistic option.
95) On being asked what he would consider the appropriate sentence,
but for the existence of the S. 13 penalties, the Director
Prosecutions stated that 10 years would be what he would ask for in
respect of a robbery. That is a reasonable view, contrasted
twenty-five years sentence in section 13.
96) I therefore conclude that the minimum penalties decreed by
Section 13 engage the provision of Section 8(1) of the Lesotho
AN ANALYSIS AS TO APPROPRIATE ORDERS
97) Section 2 of the Constitution provides that:-
"This constitution is the supreme law of Lesotho and if any
other law is inconsistent with the constitution, that other law
to the extent of the inconsistency be void."
Section 4(1) provides that the Chapter II rights:
"..........shall have effect for the purpose of affording
those rights and freedoms subject to such limitations of the
protection as are contained in those provisions..............."
98) It would have been apparent that S.8 of the Constitution does not
contain any limitation of the rights conferred. But even
so, we need
to recall the proper approach where a statutory provision is being
reviewed in the light of the Constitution. In Van
Rooyen and Others
vs S and Others 2002(8) BCLR 810 (CC) at 837 para 88 the following is
"that the legislation must be construed consistently with the
Constitution and thus where possible, interpreted so as to exclude
construction that would be inconsistent with judicial independence.
If held to be unconstitutional, the appropriate remedy ought,
possible, to be in the form of a notional or actual severance, or
reading in so as to bring the law within acceptable constitutional
standards. Only if this is not possible, must a declaration of
complete invalidity of the section or subsection be made."
I respectfully adopt this approach.
ORDER: SECTION 3(1) AMENDMENT
99) None of the options are available to me as I have tried to set
out in some detail in the analysis of this provision. I therefore
find that it cannot be saved and the order I make is that it is
struck down as invalid in its entirety.
ORDER: SECTION 13 AMENDMENT
100)In S v Vries supra the following approach was adopted. At page
1676 -1677 the following appears
(3) "where a statutory minimum sentence results in a shocking
sentence there are four options namely;
a) to declare the provision of no force or effect for all purposes;
b) to declare the provision to be of no force or effect only in a
particular class of cases i.e. to down-read it;
c) to decide the provision to be of no force and effect only in a
particular case before the court. The court must then enquire
it will be shocking; with respect to hypothetical cases
which..........can be foreseen as likely to arise commonly. If
answer to the second enquiry is in the affirmative the court must act
in one of the respects set out in 3(a) (b) or d)above.
If the answer
to the second enquiry is in the negative the court must act as set
out in 3 (c) above."
101) I have already said the sort of cases that we are dealing with
are likely to arise commonly in Lesotho. However, I propose
with the matter in such a way that the section is preserved and sever
the bad from the good so as to bring the section
in conformity with
Were I to declare section 13 of no force or effect for all purposes,
that would leave the provisions of S. 14 operative in respect
offences. This is the general penal provision.
102) I am not entirely satisfied that striking down S.13, thereby
bringing S.14 into operation would be a sound option. I say so
two reasons. First it would appear to me that would be at variance
with the intention of the legislature. The legislature
have intended that different penal provisions would apply to
103) But by severing the bad part of the section and leaving the good
the intention of the legislature is preserved.
104) The second reason for not making a total declaration of
invalidity, triggering the operation of the general penal section,
that the sentences provided under S.14 themselves are open to
constitutional objection that they engage the provisions of S.8(l)
105) The most sensible way to deal with the matter is to sever and
strike out the following from the section.
Section 13 (i) the words "not less than M25,000.00 and"
together with the words "not less than 25 years and"
Section 13(ii) strike out the following words "not less than
M50,000.00 and" together with the words "not less than
ORDER: SECTION 14
106) As will become evident later in this judgment in the matter of
Koatake the facts point to the irresistible conclusion that
is one of receiving stolen property knowing it to have been stolen.
This is an offence created by Section 13(3)(c) of the Act.
contravention of S. 13 (3) (c) attracts sentences under S. 14, the
minimum sentences under S.14 also necessarily have to
107) It is not inconceivable that cases will arise, where a person
who is a first offender; who pleaded not guilty; who has no
conviction and who is a minor of say eighteen years of age receives
one sheep. Can it legitimately be said that it is
disproportionate to sentence such an offender to minimum sentences
set out under Section 14? I do not think so. I do
not consider that a
minimum sentence prescribed by S.14 can be said to take into account
for penological purposes, the gravity
of the offence and the personal
circumstances of the offender.
108) Section 13 (3)(c) provides that a person who receives knowing to
have been stolen, stock or produce or both, as the case may
commits an offence. In Section 2, produce is said to mean "a
whole or part of the skin, hide, horn, carcass, wool, mohair,
egg, ostrich feather. The initial text before the 2003 amendment
included milk. I do not agree that it could be said that
of an ostrich feather or a horn of a dead ox would justify an
infliction of the minimum sentences prescribed under Section
109)I am of the opinion that those minimum sentences are open to the
same objection as those raised in respect of Section 13, even
respect of repeat offenders. They are clearly grossly
one has regard to the nature of the offences that have been created
in the Act that attract such minimum sentences. I am not aware
for example a horn of a dead ox has any value at all. Receiving a
horn of a dead ox might very well be the sort of case covered
principle that deminimis causa non curat lex. The same goes for an
110) The order that I propose to make is along the same lines as that
in respect of Section 13. And it is the following
Section 14 (a) (i) by deleting the words "not less than
M7,000.00 and" (ii) "not less than 3 years and"
Section 14(b)(i) strike out the following words "not less than
M15,000.00 and" (ii) "not less than seven years and"
111) In conclusion one can only hope that in the making of laws the
legislature, will consult the relevant stakeholders and affected
state institutions before making laws with far reaching consequences.
The Director of Public Prosecutions informed us that he was
of Stock Theft Act 2000 as amended and its defects until he was
confronted with them in court. He was never consulted
when it was
enacted. That is to be regretted. It is to be hoped that where
possible consultations on a broad basis should be undertaken.
courts too in matters of jurisdiction have a pivotal role to play and
their contribution would significantly enhance any legislative
product that affects this sphere of their activity
SPECIFIC ORDERS ON THE PARTICULAR REVIEWS
112) A few prefatory remarks are here called for. I have found that
the magistrate's court had no jurisdiction to deal with Stock
cases under the Act given the severe sentences decreed by Section 13.
However, I have also found that those sentences were
constitutional and I have made specific orders to bring the Act in
line with the Constitution. It is common cause that the
to try Stock Theft cases has always resided in the magistrate court.
With the striking down of the minimum sentences
the status quo has
been restored. That is in line, not just with the previous position,
but it also accords with the intention
of the legislature.
113) I now have to decide the proper course to follow in relation to
the present reviews and to give a clear direction in respect
similar cases that have already been decided under that Act before
the minimum sentences were declared unconstitutional.
114) The power of the court to make orders is conferred by Section
22(2) of the Constitution, which reads
"(2) The High Court shall have original jurisdiction
and may make such orders, issue such process and give such directions
as it may consider appropriate for the purpose of enforcing
enforcement of any of the provisions of Section 4 to 21 (inclusive)
of this Constitution."
115) The Chapter II rights in respect to which S.22 (2) relates are
set out in brief in S.4(l) of the Constitution. The said Section
concludes with the following proviso
"The provisions of this chapter shall have effect for the
purpose of affording protection to those rights and freedoms, subject
to the limitations of that protection as are contained in those
provisions, being limitations designed to ensure that enjoyment
the said rights and freedoms by any person does not prejudice the
rights and freedoms of others or the public interest."
116) It appears to me, therefore, that in making the orders and
giving directions as to what is appropriate for the purposes of
enforcing the Chapter II rights I must also be guided by the
knowledge that the enjoyment of these rights should not prejudice
rights and freedoms of others or the public interest. Had the S.13
minimum sentences been constitutional the proper order would
been that the trials of the accused were a nullity and the
proceedings set aside.
117) But if I give a purposive interpretation to SS.22(2) and 4(1) of
the Constitution, I am satisfied that an order nullifying
proceedings would prejudice public interest and /or rights of the
innocent victims of the offences committed by these and other
118) I come to the conclusion therefore, that the proceedings
pursuant to which the accused were tried and convicted, should not
nullified. I am fortified in this conclusion by what MAHOMED CJ. said
in a Namibian case of S v Shikuga 1997 (9) BCLR 1321.
He said at p.
"........accused persons who are manifestly and demonstrably
guilty should not be allowed to escape punishment simply because
constitutional irregularity was committed in the course of the
proceedings, but in circumstances which showed clearly that
conviction of the accused would inevitably have followed even if the
constitutional irregularity relied upon had not been committed.
is, however, a competing consideration of public interest involved.
It is this: the public interest in the legal system is
to the punishment of the guilty persons, it extends to the importance
of insisting that the procedures are adopted
in securing such
punishments are fair and constitutional and that the public interest
is prejudiced when they are not."
119) This approach which I respectfully endorse, was approved by my
brother Teele AJ in the matter of Rex v Rakoti'and one; Review
No 110/2004 (unreported). I am satisfied that public interest would
not require the insistence that the proceedings be set
aside for what
appeared to be want of jurisdiction before the constitutionality of
the sentences decreed by the Act was determined.
120)Having said this I therefore, make the following orders in
respect of each review.
121) Taking into account that he pleaded guilty; he was the first
offender and all cattle were recovered I am of the view that
sentence of three years imprisonment half of which is suspended for
three years on condition that he does not commit an offence
theft as an element will meet the justice of the case. The
proceedings are otherwise confirmed as being in accordance
and substantial justice. The charge is, however, amended to read S.
13(3)(f) instead of Section 3(1).
122) The two accused in this review were 26 years of age; they
pleaded guilty as a sign of remorse and they were first offenders.
The two sheep, the possession of which they failed to give a
satisfactory account were recovered. In all the circumstances a
of a fine of M 1000.00 or one year's imprisonment each in
default of payment should meet the justice of this case. The
are otherwise certified to be in accordance with real and
123) I need not burden this judgment with the analysis of the facts.
I have carefully examined the record and I find that there
pointing to the accused as a person who stole the sheep and used
violence. All indications, however, are that he received this
with guilty knowledge of their theft. In all the circumstances a
sentence of three years imprisonment without an option of
a fine will
meet the justice of this case. The proceedings are otherwise
certified to be in accordance with real and substantial
124) The conclusion at which I arrive is that Magistrates Court are
proper courts with jurisdiction to try Stock Theft cases. The
Magistrates in trying these cases should consider all the relevant
factors that are customarily taken into account in imposing
appropriate sentences. The fact that the legislature views Stock
Theft cases in a serious light should no doubt; be taken into
in conjunction with other relevant factors. No factor standing alone
can be decisive.
125) The history of sentences in Stock Theft cases will show that
there has been a significant shift from severe punishments to
humane and enlightened sentencing policies. In England for example
Stock Theft used to be a capital offence. That has since
Lesotho as part of the global community and having inherited a
civilization, it should not lag behind and inflict
respect of Stock Theft offences that would make the 21" century
resemble the medieval times.
126) One cannot comprehend for example, why the legislature would
find it necessary that a person who fails to mark stock timeously
sent to prison for a period of 25 years or to pay a fine of
M25.000.00 as the Stock Theft Act provides. It is not inconceivable
that an ordinary Mosotho could fail to mark stock timeously due to
over sight. Equally mind boggling is the fact that under the
people that are suspected of having committed violent crimes are
required to pay prohibitive bail deposits of M20,000.00. All
the face of the presumption of innocence enshrined in the
127) There is no doubt in my mind that the legislature needs legal
advisors and legal staff who are prepared to give genuine and
constructive advice to it to avoid the making of embarrassing
legislation. It is not right that a piece of legislation should give
the irresistible impression that it was conceived in anger. Not even
righteous anger should be allowed to cloud judgment. The good
of such legislation is thereby over shadowed by such detect.
128) The drafting of this legislation also does not inspire
confidence. There were many errors; for example the initial text
of referring to progeny of stock referred to the young of
stock. There has been duplication of offences and sections. The
of Public Prosecutions even had to argue that sections had
been mixed up. He argued this in an attempt to persuade court to the
view that all that need be done is remove or transfer sections
erroneously appearing in the amended Stock Theft Act to the robbery
part where they belonged. His conclusion being it could not have been
the intention of the legislative that receiving and being
possession of dairy
products tor instance should attract exceedingly higher penalty than
would the stock theft.
129)The orders that I make are as follows:
3(1) of the Stock Theft Act 2000 as amended is hereby declared
invalid and as being in conflict with Section 16(1) of
Constitution alternatively as being in conflict with Section 12 (2)
(a) of the Constitution.
minimum sentences are hereby declared unconstitutional as they
violate the provisions of Section 8(1) of the Constitution
minimum sentences are severed from the provisions of Section 13 in
the following manner:
(i) in Section 13 (i) by deleting the words "not less than
M25.000.00 and" together with the words "not less than
years and", and;
ii) in Section 13(ii) by striking out the following words "not
less than M50.000.00 and" together with the words "not
than 50 years and"
minimum sentences under Section 14 are hereby declared
unconstitutional as they violate the provisions of Section 8(1) of
the Constitution and the minimum sentences are severed from the
provisions of Section 14 in the following manner:
Section 14(b)(i) strike out the following words "not less than M
15.000.00 and" (ii) "not less than seven years
respect of all cases that were determined before the 24 of September
2004 in which the minimum sentences that have been declared
in para b) and c) above were imposed, those sentences are set aside
and the cases should be remitted to the respective
impose appropriate sentences in accordance with what has been stated
in this judgment.
accused persons who are in custody in cases falling under b) and c)
above are to remain in custody until the new sentences
imposed and in imposing the new sentences the periods spent by the
accused persons since their conviction to the date
of the new
sentences shall be taken into account
Director of Prisons is hereby directed to supply the Registrar of
this court with the number of cases falling under paragraph
c) above not later than two months of the making of this order.
14 A of the Stock Theft Act is declared invalid and in contravention
of S. 12 of the Constitution.
THE HIGH COURT
JUDGE OF THE HIGH COURT
Accused - Adv. K. K. Mohau
Crown - Director of Public Prosecutions
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