HIGH COURT OF LESOTHO
Kuena Mokolokolo Accused 1
Mokolokolo Accused 2
- ON - SENTENCE
by the Honourable Mr Justice T Monapathi On 27th June. 2006.
matter both Accused faced two hundred and fifty charges of theft and
an alternative charge. I need to repeat that AI was
Lesotho Auto and Tourist Services (Pry) Ltd trading as Gateway. A2
was employee of Lesotho Government in the Ministry
of Health. One of
the consequences which I am conscious of is that the Government will
take action against A2. Accused are husband
of guilty was returned on the 26th March, 2006 on the charges of
theft being fewer by about six (6) being less than the
charged, that is by M6,019-79 to become the total of M470, 029-39. It
however remained a considerable sum of money which
was stolen during
a period of about a year in a systematic way. In addition the modus
operandi was so complex in the way it was
done and in its effect
which was to be as secretive and then become oblivious to the owner
of Gateway (who was the complainant)
who suffered that kind of a
heavy loss in revenue in the total sum mentioned supra.
the Accused did not testify under oath in respect of facts put
forward in mitigation, I did not mind inasmuch as this was
choice and seemingly some of the facts elicited from the bar were not
contested. In addition some facts could be gleaned
from the record as
being common cause. I however disagreed with Mr Mathaba in choosing
not to urge Accused to testify under oath
and then contending that
"submission will be made in line with the
which has devolved for some time in the High Court." As I have
said it is a matter of choice.
opinion an accused who seeks to make an impression with regard to
certain facts will opt out to testify on oath on those facts
wants to put forward. We will be tested on those facts and others. In
my view the result will invariably be that he will
most likely make
an impression on the court or he may be discredited on some of the
facts. It is not a practice which is obsolete
or in contradiction to
the other practices which have evolved. An accused who testifies will
often have all appearances of being
candied or being prepared to be
so. Most importantly his evidence will be tested.
Counsel Mr Mathaba reminded the court of the following approach to
the sentencing which I bore in mind in reaching my conclusion.
also urged by Crown Counsel Mr Thetsane to recall from the evidence
and observe inferences
about certain factors which amounted to aggravating circumstances.
This I also bore in mind as my comments infra will attest.
been held that the sentencing court should consider the crime, the
offender and the interests of society. See S V Zinn 1969
(2) SA 537
determining or assessing an appropriate sentence, the court is
required to have due regard to the main purpose of sentence
deterrence, prevention, reformation or rehabilitation and
retribution. Ideally one of them should be emphasized although
cannot always prevail or completely exclude others. One cannot ignore
the virtue of rehabilitation of prisoners. In this regard
is to emphasize the rehabilitative aspects of a sentence in
appropriate circumstances, each case depending on its own
also S V Khumalo 1948 (3) SA 327(A) at330D.
been held that to the above elements one factor must be added. It is
the quality of mercy as distinct from mere sympathy
for the offender.
I agreed with respect. I would however add that in my mind mercy is
in reality an aspect of justice. It is also
our inborn conscience and
an instant response to certain factors that have the element of
wanting to do good to a fellow human
being, who is in distress such
as an accused person who has just been convicted. I was, with regard
to the first aspect of this
submission, referred to S V Rabie 1975
(4) SA 855 (A).
has been reiterated that the sentence imposed should be in proportion
to the gravity of the offence. However the proportionality
sentencing of "an eye for an eye" proportionality does not
imply that punishment be equal in kind to the harm that
has caused. See S VMafu 1992 (2) SACR 495(A) at 497d. I need to note
here instantly that I should be conscious to
the nature of the
offence and the verdict which I have already recorded (supra). It is
the conclusion I made, borne out by the
amount of money involved, the system used by the First Accused to
steal and the enormous loss to the complainant herein. This
that the gravity of the officer perpetrated cannot be disputed.
Mathaba for the defence brought to my notice that the above
authorities were cited with approval by Mthiyane J in delivering
majority judgment of the Supreme Court of Appeal of South Africa in
the case of the Director of Public Prosecutions (Kwazulu
case No 365/2005, V, December 2005.
without saying that in determining an appropriate sentence the court
should have regard to the harm caused by the offender.
given by counsel was that of S VMogkalaka 1993 (1) SACR 705 (A). In
that case a fifty (50) year old appellant, who
had had prior
conviction of murder and had assaulted the complainant by hitting and
kicking and throttling a female employer was
sentenced to twelve (12)
months imprisonment of which six (6)
suspended for five (5) years. On appeal, because there was no medical
report produced at trial to show the extent of the injuries,
court set aside the sentence and substituted same with a sentence of
twelve (12) months imprisonment wholly suspended.
similar case an attitude to that was exhibited in S V Mogkalaka.
(supra). It was in a case revolving around the fact that
evidence was found. It is the case of S V Mathokona Khatid Malatji,
case No LR 153/2005/mns, 30th January 2006, Gauteng
Sentences of three (3) years in respect of five (5) counts were
reduced to twelve (12) months on each count. I noticed
danger of comparing two disparate cases and further that each case
will always depend on its own circumstances. Some cases
unavoidably and inevitably, attract severity in their sentences. I
cannot put it milder than that. Indeed some cases
have a distinct
appearance of being on the lenient side. I thought the two last
mentioned cases were an example of that kind.
further submitted that in revisiting the issue of deterrence,
imprisonment was not the only sentence that could serve as
deterrent measure. As had been held in The State V Akani Mhlanga case
No. A298/005, sometimes imprisonment when imposed on a
offender, can do more harm than good. The court however should remain
watchful of the fundamental principle that each case
considered on its own merits.
that even a suspended sentence can serve as a deterrent measure. It
was emphasized that-
"... the purpose of suspended sentence is to spare the offender
the rigours and humiliation of prison but the wish that the
sentence will be brought into effect is designed to operate as a
Petronella Scheepers V The State, Case No. 158/005 10th
November 2005 (SCA).
pertinently in the case of Mhlanga (supra) it was emphasized that
"... under no circumstances must then imposition of a term of
imprisonment be administered routinely without a thought being
to the possibility of an alternative sentence. Consideration must be
given to the possibility of imposing a fine that is
reasonable reach of the accused's means, allowing payment of such a
fine, to be deferred or ordering payment thereof
in instalments, and
the possibility of Community Service, and of restoring or repairing
damage caused by the crime before direct
imprisonment, is decreed".
Again to be emphasized is the gravity of the offence.
Issues however, of imposing a fine, restoring damage and other
alternatives to direct imprisonment, if the court is so minded or
inclined, require investigation. An accused who is prepared to go
into the witness box eminently takes advantage of the court
making such an investigation. Hence the value of an accused willingly
going into the box to "bare his chest" as it were.
with Mr Mathaba that no two cases can ever be exactly the same.
However in imposing a sentence a court of law should strive
measure of uniformity. Several cases often come up where comparisons
are sought to be made, where a sentence is often brought
show disparity or to urge the court to arrive at a certain decision.
But where unfortunately circumstances are clearly
dissimilar or where
facts are peculiar to each case it becomes problematic.
of sentences can be attributable to different categories of offences,
cases deserving zero tolerance such as bribery or
corruption cases in
order to demonstrate that "corruption does not pay",
political offences where violence was resorted
to redress grievances,
or to topple lawful governments. One finds that in armed robberies
where there are further aggravating factor
resulting in the cause of a robbery, death sentences consequently
become competent and due as one of the robust sentences.
sentences may even be appropriate in serious cases like murder
without extenuating circumstances. That is why the Honourable
Justice S N Peete in his paper Sentencing Policy and Practices in the
Courts of Lesotho, 30th April, 2004 at page 13 para 14,
underlining policy sentiment by saying that:
"The court must be thoroughly aware of and fully sensitive to
its societal responsibility by imposing robust sentences for
repugnant conduct which shows wanton disregard to life, rights and
property of other people in the community" I thought it
inarguable that the systematic looting of Gateway service station's
revenues smacked of wanton disregard of property of the
seemed so very serious to me.
that the court of Appeal of Lesotho disturbed the High Court
sentences in Ephraim Masupha Sole v Rex C of A (CRI) 5 of
counsel suggested it was because of an apparent imbalance. I frankly
did not see how the circumstances therein were relevant
present case except that the case indicated the manners in which
serious cases should be viewed. It is by imposing heavy
urged to consider certain cases for the purpose of interrogating the
principle of uniformity, by reference to decided cases
and/or theft. Firstly, it was the case of S V George 1992 (1) SACR
250. In that case the accused who had stolen an armored
containing R248,000-00 was sentenced to six (6) years imprisonment
half of which was suspended. On appeal the sentence
was set aside and
replaced with a fine of R5000.00 or two (2) years imprisonment and an
additional three (3) years imprisonment.
The latter was suspended for
five (5) years.
pertinently the two judge court in S V George (supra) had in reaching
their conclusion considered to following mitigating factors.
Appellant was twenty (20) years of age. He was incited to commit the
offence by an older man and he gave himself up shortly
after he took
the vehicle. He pleaded guilty. One of the learned Judges emphasized
that the accused showed remorse. How does that
case compare with the
case was that of Allan Aubrey Boesak V The State CC T25/00, 1st
December 2000 (Constitutional Court, RSA). The Accused had
defrauded the trust monies in the sum of R406, 321.21. He was
ultimately sentenced to effective three (3) years imprisonment.
Appellant has been in a prominent position as a Minister of the Dutch
Reformed Mission Church. The monies which he had stolen
trusts that had been established to assist victims of apartheid and
for benefit of their children and other dependants.
In my view, one
would have liked to be informed of the factors that were taken into
account in that
is because, speaking for myself, I would have had regard to the
accused's position and that he should have shown or was
exhibit much more responsibility. Furthermore I would have judged
that his failure to do so was more aggravating.
home I was referred to the case of Rex V Julia 'Maphamotse Lebina and
Majakathata Lebina C of A (CRI) No. 7 of 2001 11th
October 2002. The
two (2) appellants (husband and wife) were convicted of theft of
money amounting to M242, 240.84. Out of that
amount the first
appellant was found to have been responsible for taking Ml4, 388.19.
While the second appellant was responsible
for M983.53. On appeal
they were sentenced to eight (8) years and five (5) years
respectively. The money had been stolen from a
Scheme in the Treasury Department and first appellant acted as the
prime mover in this theft. The second respondent's
that he would assist some of the people in whose names the cheques
were issued by depositing the cheques into
his business account while
payment by the Government of Lesotho. I recognize some close affinity
between this case and the present case despite that
in the latter
there was more money involved. I did concede that rightly the
appellants did not receive similar sentences.
observe that in all its characteristics and factors involved one
could not compare the present case with Ephraim Masupha Sole's
That the latter is more serious is perhaps an understatement. The
same conclusion I would arrive at with regard to the case
Sekoala Thamae V The Crown C of A (CRI) No1 of 2005, 20th October
2005. In this case the sums of money involved were
equally large and
what Lesotho Government could potentially loose was beyond this world
considering the face value of the certificates
of Ml880 million
"whose actual value could not be established for these permits"
involved. But this was the potential
harm to the Lesotho Government
The side of the defence in the present case agreed that the case was
a serious one.
defence conceded herein that the original sum charged and what the
court actually found, that is minus about M6019.00, remained
substantial amount of money and indeed a huge loss to Gateway. I
disagreed that reduction of sums of money and withdrawal of
seven counts out of 250 was a significant difference. The loss in
revenue to Gateway by any standards, including Allan Aubrey
case, was substantial. It is important to note that the Court of
Appeal in confirming the sentence in Joseph Sekoala Thamae's
in confirming the judgment of the High Court it did not regard as
important, that the appellant therein had succeeded
in other counts
that the Accused did not plead guilty and there was prolonged trial
which even called for appointment of pro deo Counsel.
against them was overwhelming. Neither, at any stage, resorted to
changing their pleas. I would inevitably view this
as lack of
remorse. Indeed the half-hearted response or reticence as to whether,
if they were invited to recompense the
Gateway, Mr Molapo (PW2) in my view goes a long way to indicate such
absence of remorse. That why this case can surely
from that of S VGeoige (supra).
A lot of
negative things were a hallmark of the attitude of the Accused in
their defence. Nor was their defence, convoluted as it
any helpful. Their flat denied of complicity also went with strange
riders. Firstly, that their wealth received contribution
from sale of
dagga and that it was a result of jealousy or envy towards their
wealth that resulted in PW2 going out to implicate
them. These did
not augur well towards finding that there was any remorseful conduct
Otherwise it had good dose of arrogance.
pointed out earlier in commenting over the case brought forward by
the defence in mitigation one cannot ignore factors that
aggravating because it is a fundamental principle of the law that in
meting out sentence all factors should be considered and
"... what has to be considered in a trial consisting of the
crime, the offender and the interest of the society"
VZinn (supra). Indeed I found factors that were aggravating. I speak
about the issues now.
Thetsane for the Crown submitted the crimes of theft, fraud and
corruption have in recent times become very rife in Lesotho.
it is common knowledge that in our industrial and economically strong
neighbour, Republic of South Africa serious steps
of eradication of
these crimes have been taken. Equally in Lesotho there has been the
enactment of the Prevention of Corruption
and Economic Offences Act
1999. This bears testimony to the awareness of the prevalence of
these crimes and the will to stamp them
out The crimes are mostly of
a complex nature.
Director of Public Prosecutions spoke for his office and in the above
vein. He also said that it was noteworthy that in an attempt
combat the scourge of the so-called white colour crimes,
office has resorted to engaging services of private practitioners to
complement his staff, to deal with such complex crimes
rigorous prosecution. I agreed with respect that the apparent
increase in the prevalence of these types of crimes
endeavours and improvement of policing structures is an aggravating
factor which should be taken into account. I was referred
regard to the following South Africa cases: S V MA997 (2) SACR 682
(c) at 686 (e-g), S V Tyers, 1997 (1) SACR 261 (a-c),
S V Mohase 1998
(1) SACR 185(0) at 193 (d-e).
proprietor of Gateway did testify to say in the evidence which this
court believed that following the unprecedented state of
thieving and decreased cast flow at her business which culminated in
an increase in bank overdraft she was left with
no option but to
engage the services of a company called Gilbarco. The company
installed and maintained fuel dispensing equipment.
She sought for
its assistance. It was on the advice of Mr Paul
(PW1) an employee of Shell Petroleum Company who supplied fuels to
Gateway, amongst others.
as Crown Counsel submitted further, had it not been for assistance of
Gilbarco these orchestrated acts of theft
would not have been
uncovered and that could easily have resulted in the demise of the
business of Gateway. Even at this stage
it must have been very
distressing on PW2 to find her company showing a clearly dismal
performance. This investigation of Gilbarco
which yielded indications
as to the root causes was preceded by PWl's investigation which was
an equally enlightening report. Indeed
PW1 had been a very convincing
and insightful witness in aid of the prosecution of these charges
before this court.
attitude of the Crown was that there was nothing mitigating about the
conduct of the Accused through and through. Firstly, the
which the Accused were charged and found guilty was well-planned,
well-thought out, and could only be
as serious. It was submitted that the careful planning and the
considerable length of time during which the crimes were
were themselves aggravating factors. I agreed with respect.
A lot of
things spoke against Accused 1. She was a trusted employee as deposed
by PW2. I agreed that this should have provided ample
her for reflection and consideration. I would add that there should
have been more empathy from her towards a business
which paid her a
monthly salary, in a community such as ours, where unemployment has
reached grotesque proportions. In this regard
I was referred to S V
Schutte 1995 (1) SACR 344 (C) at (f-g) and S V Kruger 1995 (1) SACR
27(A) at 29 (e).
aspect is that Al could safely be typified as a professional criminal
in that she resorted to this code of conduct over
a period spanning
thirteen (13) months. If this be not quite apt
cannot however be mistaken in concluding that one has to be fearless,
immoral, focused and without a conscience to engage in
This is true.
the conduct of Al, as said above, is that she was involved in a crime
that had all the elements of dishonesty and that
resulted in loss,
prejudice and distress which factor can only reflect the crime as
being very serious. In this regard I was referred
to S V Flanagan
1995 (1) SACK 13 (A) at 16 (i) - 17 (a) and S V Coales 1995 (1) SACR
33 (A) at 35 (c).
By way of
repetition, having commented about this issue in relation to a
decided case, both Accused showed no iota of remorse throughout
proceedings. This conduct as Crown counsel argued was typified by the
defence raised by both Accused. A2 said he sold dagga
amassed his wealth. Dagga is a dangerous medicine. It is habit
forming and is consequently prohibited substance both
in Lesotho and
the Republic of South Africa.
felt that it was an insult to this court that such a defence was
raised. It was called capricious in the light of the offences
charged. I would refrain from that conclusion except shorn of emotion
on the part of the court I would say accused person, by reason
their plight, go to extents to manufacture defences. How about if
indeed A2 sold dagga? I thought it could only mean that he
reckless as to the effect of the substance on people who use it. The
profits from sale of dagga may never have satisfied him
inasmuch as I
found that the Accused have illegally taken from and benefited from
the revenues of Gateway.
By way of
repetition, once more, it is to be noted that Al was in a position of
trust which was wantonly abused. She had custody
of monies. She was a
trusted employee. She betrayed the trust of PW2. Such abuse at first
glance is a more reprehensible act. This
is so in any society, be it
civilized or uncivilized. I was in that regard referred to S VMartiz,
1996 (1) SACR 405(A) at 417 (g-h).
agreed with the Crown that crimes brought about by careful planning
and abuse of trust, committed over a long period of time
involving large amounts of money per se contain aggravating
circumstances which fly in the face of and militate against
and civilized behaviour. They are ruthless acts. See also
S VPrice and Another 2003 (2) SACR 551 (SCA)
opinion mitigating factors are matters of facts and common sense.
Such factors if found do serve in the eyes of the law to
accused's conduct less severe, serious or painful. I did see and I
appreciated when the defence pointed out the following
circumstances of the Accused.
are a married couple. Al was thirty (30) years of age while A2 was
forty (40) years of age. Al was at the time of trial
also a poultry
farmer. She realized a sum of M3, 500 per month when business was
A2 is a
Lesotho Government employee who earns a gross salary of Ml 500 per
month. Due to their bad family circumstances both Accused
did not go
far at school. Al did Form C. A2 did only Standard 6.
Accused have 2 minor children. They are both girls. One is eleven
(11) years old and the other thirteen (13) years of age.
is a High School student while the other is still a Primary School
from their own children they have other dependants. They are two
minor girls of A1's brother, the late Monesapula and his
Monesapula's children are 15 and 12 years of age. They are orphans
and have lived with Accused since the death of their
predeceased Monesapula, their father. They are both High School
addition both Accused take care of one Accused's youngest brother.
Apart from the above children who are under care of the Accused,
Accused take care of their elderly and sickly mother who is suffering
from hypertension and sugar diabetes. All are solely
dependant on the
Accused. "Accused are their hope of survival."
that the Accused do not say they were compelled to do what they did
because of the pressure to take care of or fend for
dependants. If so, it would have amounted to admission of guilt or
show of contrition. This was not the case. There were
pointed out by Accused as being mitigatory.
Accused are first offenders and as such they are generally law
abiding citizens. Secondly, this court was urged by the
consider that since the year 2000 Accused have gone through
uncertainty, excitement and the ordeal about this case since
first remand. Incidentally this matter was heard before the
court but was later withdrawn. I accepted that such is the pain or
unpleasant experiences of accused people in the
circumstances of the
Accused. Although this is a matter of their own making the court
ought not to close its eyes. Indeed the case
has taken a along time
to its completion.
accepted also in favour of the Accused that they have, despite the
delay in completing the case, abided by their bail conditions
faithfully until the verdict. The Accused were never induced to flout
their bail conditions even after knowing what the verdict
counsel was led to submit that they have demonstrated their utmost
respect for the law and orders of court. I agreed
that it is
invariably commendable for Accused to abide by their bail conditions
throughout the proceedings and these Accused did
I need to
impress that all above are outweighed by crucial factors that show
lack of mitigation. Some of these factors that the
being urged to consider are factors that should have influenced the
Accused not to do the crimes. This so more especially
whatever one's mindset the risk for discovery, arrest, custody and
punishment are always in the mind of even the most naieve
involved in acts of criminal nature. Then Accused must have thought
of the effect of being punished and being caught.
And again the
plight their children and dependants consequence.
with the Crown Counsel, it may be repeated, that the following
signiflcantly show lack of mitigating factors. It has not
demonstrated that the Accused were in any financial need. Indeed the
opposite seems the case by their own admission. Second,
shown no remorse. And thirdly, Accused have not elected at the
commencement of their trial to tender pleas of guilty
faced with such
overwhelming evidence against them I would say starting from first
witness. I was referred in that regard to S
VMartins 1996 (2) SACR
378 (W) at 383 (h).
without saying that a court should take recognition of the fact that
an accused person offers to compensate an aggrieved
person such as
PW2. But this the Accused have not done. As a corollary they have not
even taken this court into their confidence
by way of making a clean
breast I was referred in this regard to S V Van Westhuizen 1995 (1)
SACR 601 (A) 60S (d-e) and S V R1996
(2) SACR 341 (T) at 344 (e-g).
have expected that in the face of overwhelming evidence against the
Accused they should have taken an about turn of some
kind. Instead as
shown in the reasons for judgment, they have deliberately resorted to
bandying about and mentioning names of dead
people who naturally
would not be available to testify.
conclusion I agreed with the Crown's submissions that the mentioned
aggravating circumstances should be taken into consideration
especially, the conduct of the Accused. I would have
into account any show of remorse by way of a change plea or change of
mind along the way before sentence. That was not to
be. The trial
became protracted and wasteful as a result
that the Accused deserve punishment that it is preponderantly in the
nature of direct imprisonment It is as follows:
(5) years. A2 - Five (5) years, two (2) of which are suspended.
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