HIGH COURT OF LESOTHO
MARY STELLA MOLAPO
Case No.37/2006 CR. No. 188/2006
Order No.8 /2006 In Maseru District
accused a fifty years old Mosotho woman was charged with contravening
section 34 (1) (a) of the Liquor Licencing Act of 1998
in that he
sold or exposed for sale liquor without a licence. She pleaded guilty
and was accordingly convicted.
outlined by the public prosecutor and accepted by the accused
indicated that on the 10th November 2005 when the licence
demanded from her by Inspector Semethe of Semokong Police the accused
failed to produce it. She claimed she had applied and
was waiting for
it. She in particular indicated that it takes about three months to
process the renewal of a licence, thus forcing
applicants to continue
trading without a licence in the meantime, if only to survive. She
was nevertheless convicted. I have no
quarrel with the conviction.
in imposing sentence the learned magistrate expressed the view that
section 34 (1) (a) carried with it a minimum penalty.
"34 (1) A person who sells or exposes for sale liquor without a
licence commits an offence and is liable —
first conviction to a fine of M5,000 or imprisonment for five years.
learned magistrate expressed the greatest sympathy for the accused,
who by the time she was tried already possessed the licence
had quite consistently maintained was in the waiting. His sympathy
was expressed in these terms and I quote him
"The delay leaves applicants with two absurd options. One being
to close down business, while awaiting a renewed licence,
The other being to conduct business without a licence ".
nevertheless, sentenced her to M5,000 or 2 years imprisonment holding
the view that it was the minimum sentence he could impose.
respect the learned magistrate erred in holding that section 34 (1)
(a) provides for a minimum penalty. I have no doubt he
was unaware of
the provisions of section 57 (1) of the Interpretation Act, 1977
"Where in an Act a penalty is prescribed for an offence under
that Act, such provision shall mean that the offence shall be
punishable by a penalty not exceeding the penalty prescribed. "
means that the penalty is the maximum and not the minimum that the
court may impose. In between the court has a discretion
would include even suspension of such sentences. This is based on the
principle that penal statutes must be interpreted
the statute provides in
clearest terms that the penalty is the minimum a court can impose, by
using such words as "not less than" the discretion
courts is maintained.
instant case deserves, as the learned magistrate, correctly in my
view observes deserves "the most linient penalty"
he says he would have cautioned and discharged the accused. He had it
in his power to do so. 1 endorse his views regarding
accordingly do what he should have done and caution and discharge the
she has paid the fine and I order that it be returned to her.
O/C Central Prison Director of Prisons
O/C Prisons Maseru
O/C Police Maseru
Director of Public Prosecutions
All Public Prosecutions
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