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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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