CIV/APN/28/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

RANTHOKO
KETSO Applicant

AND

DEPARTMENT
OF MINES AND GEOLOGY 1st Respondent

ATTORNEY-GENERAL
2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice G. N. Mofolo On the 26th day of August
2005

This case
took an ordinantly long time to complete and the delay as usual is to
be laid at the door of parties or their Counsel.
The case started in
1995 and was completed if I may so on 30 May, 2005 after the defence
closed its case. The major problem though
was respondents' counsel
securing his witness. When, on 30 May 2005 the defence closed its
case the Court was so impatient it intimated
that since parties did
not have time to address the Court the Court would oblige with their
heads of argument. Mr

Mapetla
for the respondents appears to have submitted his heads on 29 May,
2005 and to date applicant's heads of argument are not
in the file
despite an undertaking by Ms. Kotelo to file the same.

This
application came by Notice of Motion applicant claiming an order
that:

1. The
   suspension by 1st respondent of applicant's digging licence and
   rights at Kao Diamond Mining be declared null and void.

   
   

2. Applicant
   pay respondent Ml 5,000.00 (Fifteen Thousand Maloti) being damages
   which applicant has suffered as a result of suspension/non-renewal

   of his digging licence.

   
   

3. Respondents
   pay costs of this application.

   
   

4. Applicant
   be given further and/or alternative relief.

   
   

When the
application commenced and after counsel for the applicant had
addressed the Court, Mr. Mapetla for the respondents drew
attention
to the fact that the applicant had not proceeded properly by way of
application for there was a serious dispute of fact
and on this
ground the application be dismissed.

On
consideration of all the facts the Court had converted the
application into a trial and on 28 February, 1996 the trial had
commenced.

2

It was
P.W.l Ranthoko A. Ketso testimony on oath that he is a diamond digger
and had started digging in 1989 at Kao mines, Butha-Buthe
his digging
licence having been issued in 1989 thought at the time of giving
evidence he held no digging licence as on 29 December,
1992 he had
been stopped from digging by one Sakhele (D.W.I intra) an employee of
mines and geology who said he was to stop digging
by reason of having
lost a diamond. He says it was in December, 1992 when his diamond was
lost and he went to Sakhele's office
to report its loss. He had dug
out the diamond in October, 1992 at Kao and was weighed at Kao office
on 18 October, 1992 weighing
171/2 carats and as big as tip of his
small finger and then a carat was valued at Ml ,000.00 depending on
the quality of the diamond
and he had asked Sakhele how to dispose of
the diamond. The procedure was that after weighing the diamond
returned to the finder
and was not kept in safety deposit security
box. Sakhele suggested he travels to Maseru where he would find him
and he had spent
three days at Kao before coming to Maseru for lack
of transport. At night he buried the diamond and in the morning he
kept it in
his pocket and catching transport the diamond was in his
pocket. He had put up for the night at Peka, Ramosalla's his home. At
Ramosalla's in the morning he buried the diamond next to his son's
grave and the burial took place at night when it was dark. On'
9
November 1992 he got to

3

Sakhele's
office in Maseru holding the diamond. He found Sakhele, showed him
the diamond but he said he had made no arrangement
with buyers. He
suggested to leave the diamond with Sakhele as he felt unsafe but the
latter encouraged him to keep the diamond
and return after a period
of two weeks. He was desirous of Sakhele helping him because of the
size of the diamond and when he returned
to Peka nobody knew about
the diamond except Sakhele and members of the Committee. During the
day he had hung on to the diamond
and at night buried it near his
son's grave his house lying at the extreme end of the village. At
dawn he took out the diamond
and travelled to Maseru and it was two
weeks from 9 November, 1992 and Sakhele was absent it being claimed
he was held up at Kao
because of the rains and he had returned to
Peka with the diamond and kept it at the usual place. He says he then
decided to go
back to work at Kao leaving the diamond where it was
dug in believing it was safe. While at Kao Sakhele desired to see him
in his
office and in reply to his question said he had left the
diamond at home where he had hidden it. Sakhele then said he wanted
to
see the diamond as the witness could sell it whenever he wanted to
do so. He asked for three days to go home and then rain fell
and the
three days expired. On arrival at Peka at about 2 p.m. he looked for
the diamond and it was Christmas week. He says the
hole where the
diamond was dug in was shallow and for the two

4

weeks he
had been to Kao it had rained. He says government charges 15% on sale
of diamonds. He had then travelled to Maseru to say
he cannot find
the diamond and Sakhele said he would consult his superiors and he
had returned to Peka. He did not find Sakhele
in Maseru to avail
himself of the result of the loss of the diamond but was informed
Sakhele was in the mountains and he chose
to go to Kao, did not find
him but in Maseru Sakhele said he was to stop digging as he found the
witnesses' men digging and he
had stopped them. The witness has
testified he querried Sakhele stopping his men verbally for he should
have notified him in writing.
When he suggested renewing his licence
Sakhele refused. He says the renewal was on 22/09/92 expiring on
26/01/93. Sakhele had said
he would not allow renewal of the licence
pending his investigations. Sakhele had on 08/12/93 formally stopped
him from digging
when his diamond was lost on 29/02/02 and its loss
was reported to Sakhele on 29/02/92. Diggers had stopped operations
beginning
of January, 1993. He was never informed of the result of
the investigations and Sakhele never replied to letters he wrote to
him
until he came to Court the while Sakhele refused to renew his
licence.

He paid
his labourers Ml 20.00 per month excluding subsistence and there were
two labourers. Rental was M20.00 per month, his upkeep

5

M200.00
per month, machinery M20.00 per month and the money was from his
diamond operations being proceeds of sale of diamonds and
his
earnings were M15,000 - M20,000 per year. He says at time of brining
case to Court he hand spend M4,500.00 on his workers,
M500.00 on rent
and would have made at least Ml 5,000.00 between non-renewal of
licence and bringing case to Court. As for the
mounds of soil, dug,
even after non-renewal of his licence he paid his workers because
working tools like spades, pig axes, wheelbarrows
and so on are still
at the workplace and mounds of soil have to be guarded as there could
be diamonds inside. He says he is claiming:

1. Renewal
   of his licence.

   
   

2. Money
   he has asked for in his evidence.

   
   

Cross-examined
by Mr. Mapetla for respondents the witness has testified he knows
nothing about dates reflected on annexure "D".
He says the
document was wrongly annexed to the declaration because he knows
dates in 1993; he says he gave his lawyers an annexure
for 1993 and
he does not know where annexure "D" comes from. He says he
remembers one date being 26/01/93. He says when
he found the diamond
he did come to Maseru immediately. Put to him he refused to come down
in Sakhele's vehicle which offers security
he says Sakhele refused
him a lift giving him a day when he would find him in Maseru to sell
the diamond. Put to him the offer

6

of
transport was in presence of witnesses and he disappeared, he denies
this saying at the material time there was no bad blood
between him
and Sakhele save wondering why Sakhele would not help him. He says he
did not report Sakhele to his (Sakhele's) superiors.
The witness has
testified Sakhele had several government vaults for storing diamonds
but Sakhele refused. He believed it was safe
to keep a diamond in a
graveyard. He says he now knows it was negligent to do so and would
not do so again; he did not know the
diamond could be deposited with
the bank. He says the loss confused him and he felt sick. He says
loss of diamond was reported
to Sakhele in December, 1992 but it was
neither reported to police or his chief or neighbours. He says he
reported to the office
hoping there would be a follow up for he also
reported it to the mining committee and doesn't agree the chief of
villagers would
help him find the diamond. Put to him at the time he
was stopped from operations his licence had already expired and had
made no
effort to renew licence he says the letter had suspended him
from mining because of the disappearance of the diamond and says the

reply to letter of 18/02/93 suspending him from operating is one of
08/04/93. The witness has testified even if his licence had
expired
at least he should have been given an opportunity to complete the
works, meaning sieving mounds of soil.

7

In
re-examination the witness says he was stopped from digging though he
does not quite remember the date but it was beginning of
January,
1993 while the licence expired on 26/01/93.

After the
plaintiff closed his case defence witness D.W.I Sakhele Sakhele gave
evidence on oath to the effect that he is employed
by Natural
Resources attached to Mines and Geology as mining adviser to small
scale mining in Lesotho and his immediate superior
was the
Commissioner of Mines; his duty was to issue licences to diggers and
ensure diamonds found by diggers are sold legally
and correctly
benefit diggers and the government. Unauthorized people may not dig
and diamonds by authorized diggers are to be
sold lawfully. He knew
the applicant. He received information to the effect that at Kao a
digger had found a bid stone and found
the applicant was such a
person and the diamond was brought to him in his office at Kao with
Thabo Lithakong a government representative
subordinate to him and he
established the diamond was genuine and not a fake it was a very nice
stone. They had agreed they come
down to Maseru on 20/10/92 with
applicant and two military security personnel. On 20/10/92 at Kao one
Thabo Lithakong had informed
him applicant was nowhere to be found
and never saw him for

8

the rest
of the month including November. He says on 09/12/92 he caused
applicant to attend his office and in presence of Thabo
Lithakong the
government representative was asked about the diamond and applicant
had said the diamond was left at Tabola, Ramosalla's
at his home and
although applicant offered transport P.W. 1 had said he would find
his own transport and would be available on
15/12/92 and according to
the witness that was the end of the matter. On 15 December, 1992 he
was at Department of Mines and Geology
the whole day and applicant
did not turn up and had not heard of the applicant the whole of
December.

The
witness has testified he sees annexure B2 (a) where the applicant
says he went on three occasions being 5th, 10th and 11th December,

1992 to have diamond auctioned but did not find the witness. The
witness has replied 5th December, 1992 was a Saturday and not
a
working day and did not meet applicant. Did not meet applicant on 10
and 11 December, 1992 but met him at Kao office on 9 December,
1992.
The witness says on 15 February, 1993 he met applicant at Queen
Elizabeth II hospital, asked him about the diamond and why
he did not
come on 15/12/92 and the answer was the diamond went missing where he
had buried it next to his child's grave at his
home at Tabola,
Ramosalla's. Applicant had said he had not

9

reported
the loss to either his chief or police but had reported it to
government representative and the committee at Kao. He had
then
agreed with the Commissioner of Mines that digging operations be
suspended but not the licence. He had checked at Peka, Maputsoe
and
Leribe police and found it was true he had not reported. As to
whether applicant had reported to the committee at Kao and the

government representative the answer was also negative. The witness
has testified they noticed in February, 1993 that applicant's
licence
had expired on 26 January, 1993 and at the time a letter suspending
digging operations had been sent and in any event since
the licence
had expired it was believed applicant had deserted because of the
loss of the diamond. Applicant had not applied for
the renewal of the
licence which is applied for before the last day of its expiry. The
witness says on 26/01/93 the licence no
longer existed. He says
sometime in April it had been reported to him by members of the
Committee that applicant had been seen
at night with unknown people
but had disappeared. The witness has also testified he also informed
the committee members should
they see applicant at the area he was
not to be seen in the area as his licence had expired and in any
event a letter had been
written him not to go on with digging
operations until he had clarified the matter of the diamond. Though
he can't remember the
date when he came down to Maseru from Kao, on

10

06/04/93
applicant had come to his office in Maseru i.e. Mining and Geology
for the first time saying he had not received a letter
from the
witness who then gave the applicant a copy of the letter written to
him and according to the witness, this was the last
he saw of the
applicant.

The
witness has testified before and after the loss of the diamond
applicant did not have labourers and if applicant left labourers
at
his works subsequent to the suspension of digging operations that
would be illegal and reference was made to s. 33 of Precious
Stones
Order No. 24 of 1970. He says prior to the episode his relationships
with applicant were cordial and he bore no grudge against
the
applicant.

Cross-examined
by Ms Kotelo the witness has testified he has not told lies and has
nothing to hide. The witness says the report
he received was not
hearsay for it was an official report. He says that applicant went to
the area of his digging at light is not
a cooked up story. He also
denies the diamond was found by one 'Mantolo Kori afterall he does
not know her. Applicant denies he
received the letter annexure "B"
dated 8 April, 1993. The witness has denied annexure "B"
was informing him
of the loss of the diamond. The witness has
testified the diamond was a 17.6 carat top white and No.2 after a

11

top
diamond, clear with no spots on craggs and belonged to applicant with
15% governmentlevy. He says a diamond of its calibre would
be 17.6 X
M25,000.00 i.e. M262,000.00+.

The
witness has denied he should not have returned the diamond to P.W.I.
The witness has denied he was negligent for the diamond
belonged to
P.W.I the applicant. The witness has testified his role was merely to
certify that it's a diamond and not to seize
it. He says digging and
licences involve the police. He says the reverse side of the digging
licence condition 4 refers to diggers
who have organized themselves
into cooperatives and concerning note 2 a diamond has to be sold in
his presence.

Ms.
Kotelo was time again going off the tangent and the Court has warned
her to keep the subject in sight. The witness has testified
applicant
should have left Kao with him to Maseru where in Maseru the diamond
would have been sealed in the presence of the finder,
two policemen
and kept in the strong-room of the Commissioner of Mines until the
diamond is sold and if not sold to be re-sealed
and kept in the safe
until the next auction. The owner for safe keeping is given relevant
copies. The witness has denied there
are mounds of earth on
applicants area for the plot has been allocated

12

renewed
from time to time. In any event D.W.I has denied he stopped applicant
from his digging operations on 29 December, 1992 agreeing
in
cross-examination that the stoppage was on 18 February, 1993
applicant's licence having expired on 26 January, 1993. Annexure
C
confirms that applicant's operations were stopped on 18 February,
1993. I have also perused the reverse side of the licence and

although written in Sesotho and not translated, I am a Mosotho and
understand the contents though I must emphasise documents like
these
have to be translated as I have no wish to force my translated ideas
on others who may disagree with me.

The
heading of the reverse side reads:

"Items of agreement between the Digger and Department of Mines."

The introductory paragraph reads:

"I understand to have entered into an agreement with the
Department of Mines, Lesotho under mentioned terms hereunder
including
other items which may be brought forth from time to time
which terms I accept.

1. --------------------

   
   

2. --------------------

   
   

3. --------------------

   
   

4. Every
   digger is a member of diggers co-operative when at work and stones
   found will be sold by the Co-op for distribution of the
   money among
   members.

   
   

5. ------------------------

   
   

6. The
   holder of a digging licence who leaves the areas where he is a
   digger, must return before the expiry of three months unless
   he has
   obtained permission from the Inspector of Mines and Committee of
   Diggers for his long absence, a request that may not
   be refused
   unreasonably.

   
   

15

7. This
   licence may be cancelled by the Commission of Mines if some of the
   terms above have been breached. The Commissioner of Mines
   is to
   inform Diggers Committee before this licence can be cancelled.

   
   

Nota bene

1. --------------------

   
   

2. Under
   no circumstances does this licence authorize a digger to keep for
   himself diamonds he considers his.

   
   

Terms of
the licence are of vital importance in this case and I will come to
them towards the conclusion of the judgment.

There's
this business of applicant/plaintiff saying that they missed each
other with D.W.I Sakhele at Kao applicant/plaintiff placing
the blame
on D.W.I Sakhele. The latter for his part has denied this also
denying that applicant/plaintiff reported himself to him
at Maseru.
Indeed the diamond appears to have been in applicant/plaintiffs
custody for an appreciably long time as when he went
to Kao leaving
the diamond dug in a shallow hollow could have been swept away by
torrents assuming of course that applicant had
buried the diamond in
the shallow hollow. Account has to be taken that applicant/plaintiff
having lost the diamond he did not report
it in the village or to the
police. This apart, according to the terms and conditions of the
licence, diggers work as a co-operative
Society and a diamond found
belongs to the co-op to be sold by members and proceeds divided among

16

them
notwithstanding Sakhele's evidene that the conditions were not
applicable to the applicant since diggers had not organized

themselves into co-operatives.

This
Court was not addressed at all on conditions and notes appearing on
the reverse side of the licence and I will assume it is
because they
are irrelevant to this inquiry. Even allowing for the fact that the
law allowed applicant/plaintiff to keep the diamond
as his, I do not
understand why the diamond was kept in a shallow hollow for two weeks
nor do I understand why applicant kept the
diamond to himself for
such an unreasonably long period of time quite apart from the fact
that on discovering it was missing, necessary
reports were not made.
It is also a baffle why the applicant undervalued the diamond giving
it a paultry market value of M12,600.00
@ Ml,000.00 a carat when,
according to D.W.I Sakhele it was a rare stone valued at M262,000.00
@ M25,000.00 a carat. The reason
for undervaluing the diamond is
obvious to me; applicant wanted to give false information that the
lost the diamond was not worth
much and the government could not have
lost much either on its levy. I do not believe the applicant that the
diamond went missing
in a shallow hollow, rather, I am of the view
that applicant hid the diamond and withheld it from public scrutiny
and sale so

17

that he
could be the sole beneficiary from black market sale instead of
others benefitting from it in an open market. There was
no reason for
D.W.I Sakhele to lie for he has nothing to lose. There was reason for
applicant/plaintiff to lie and hide things
for this benefitted him.
This diamond went missing in applicant's/plaintiffs custody and the
Court is not satisfied with applicant/plaintiffs
explanation for the
loss. Consequently, the Court has believed D.W.I Sakhele and
disbelieved applicant/plaintiff and it cannot
be said that the
applicant/plaintiff has proved its case on a balance of
probabilities.

As for
mounds on applicant/plaintiffs plot, the reason these mounds have not
been sifted by applicant/plaintiff is because of the
expiry of
applicant/plaintiffs licence because once the licence expired by
operation of law applicant/plaintiff could not go on
with his sifting
operations. While it is true that operations were stopped to mount an
investigation into the disappearance of
the diamond, the real reason
why applicant/plaintiff would not carry out his operations is because
his licence had expired and
I am not aware applicant/plaintiff
applied for the renewal of his licence and it was refused. And though
applicant/plaintiff' s
evidence was that he applied for the renewal
of the licence, Sakhele in his evidence testified

18

applicant/plaintiff
did not apply for the renewal of the licence and I have believed
Sakhele and disbelieved the applicant.

In the
result applicant/plaintiffs case is dismissed with costs to the 1st
respondent/defendant.

G.N.Mofolo

JUDGE

For the
applicant/plaintiff: Ms. Kotelo

For the
respondent/defendants: Mr. Mapetla.

19