This case concerned an appeal to the High Court by the appellant who subsequently made no further effort to prosecute his appeal. However, the judge was not prepared to leave the matter in that unsatisfactory state and decided to have the appellant and the second accused before the lower court, appear before the court and show cause as to why their sentences should not be increased. The two had been charged with selling uncut diamonds in contravention of s 6 (1)(b) of the Precious Stones Order 1970 and subsequently convicted.
The law applied was s 6(4) of the Precious Stones Order which specified the maximum limit of fine and imprisonment for offenders in this case, for the practice of dealing in uncut diamonds without authority. The judge decided that in his case that justice sternly demanded that illegal schemes to get rich quickly could not be tolerated by the courts. The appellant’s fine was increased in addition to a sentence of 6 months' imprisonment in default of payment.
The court exercised its entitlement to revisional powers to correct the inadequate sentence imposed upon the other offender in the lower court. The judge ordered that in addition to the fine that he had paid, and month spent in prison, the original sentence to imprisonment for twelve months be wholly suspended for three years on the condition that he was not convicted of any offence under the same law.
HIGH COURT OF LESOTHO
Appeal of :
the Hon. Mr Justice F.X. Rooney on the 6th day of October, 1982.
Khauoe for the Crown.
10th April, 1981, the appellant and another man, Lebohang Ntlaloe,
were at the Holiday Inn Maseru.
in their possession 11 uncut diamonds. These they sold for M2,500 to
Lt. Bower (PW.1) of the South African Police. Both
men had walked
into a trap prepared for them in cooperation with the Lesotho Mounted
Police. It was a commendable effort and the
two accused were not
induced or tempted to commit an offence but, were fairly and properly
14th September, 1981, they appeared before Mrs. Makoa charged with
selling uncut diamonds in contravention of section 6 (1)(b)
Precious Stones Order 1970. Both men pleaded not guilty, but, on the
15th January, 1982 they were convicted as charged.
fined the appellant M100 or 6 months imprisonment and Ntlaloe M150 or
10 months imprisonment. The uncut diamonds
were forfeited to the
appellant gave notice of appeal and on the 17th March, I directed
that the appeal be set down for hearing and I further directed
the appellant be informed in writing that he will be required to show
cause as to why (in the event of his appeal being dismissed)
sentence should not be enhanced. The appellant made no further effort
to prosecute his appeal and on the 2nd August, I dismissed
it on that
I was not
prepared to leave the matter in that unsatisfactory state. I made
arrangements that the appellant and his companion Ntlaloe
appear before the Court and show cause as to why their sentences
should not be increased.
provided by sec.6 (4) of the Precious Stones Order that any person
who contravenes the provisions of sub-sec. (1) shall be
guilty of an
offence and liable on conviction to a fine not exceeding M10,000 or
imprisonment for a period not exceeding 15 years
or both such fine
and such imprisonment. This is a clear indication of how seriously
the legislature views the practice of dealing
in uncut diamonds
without authority. Those who engage in this illegal trade seek to
enrich themselves at the expense of the economy
as a whole. It must
have been disheartening for the police officers who prepared the trap
and arrested the two accused to learn
that the trial magistrate
considered the offence to be trivial in character and imposed small
appeared before this Court and the matter was finally disposed of on
the 15th September.
appellant Molefe is a first offender. He is married with children. He
was formely a teacher but is now running a small manufacturing
business at Sebaboleng. He purchased the uncut diamonds and lost them
in the trap. He paid his fine of M100.
that in his case that justice demanded that it be brought home to him
that illegal schemes to get rich quickly cannot
be tolerated by the
courts. His fine was increased to M1,000 with a sentence of 6 months'
imprisonment in default of payment. As
he is in business and others
depend upon him, I made it possible that he could pay the additional
M900 at the rate of M50 a month
commencing on the 1st December, 1982.
I directed that payment should be made to the Registrar of this
Ntlaloe did not appeal against his conviction or sentence, this Court
is entitled to exercise its revisional powers to
inadequate sentence imposed upon him in the court below. Although the
accused has not been in prison before this case,
he has a criminal
record which includes a conviction in 1977 for unlawful dealing in
diamonds for which he was fined R100 or 5
months imprisonment in
default. At the same time he was convicted of the unlawful possession
of dagga and of a firearm. This gives
the impression that he is a man
who does not have any great respect for the law.
obvious that he came into this case because Molefe sought him out as
a person engaged in the illicit diamond business who
would be able
(or so Molefe hoped) to find a customer. It was unfortunate that
Ntlaloe'a customer turned out to be the police.
legitimate occupation is that of a plasterer employed in the building
trade. He said he earns about M5 or M6 per day worked
and his wife
has a job as a cleaner at the Hilton Hotel. After his conviction in
January Ntlaloe spent a month in prison before
he could arrange for
the payment of his fine. Although, I view with seriousness the part
he played in this matter, I was not inclined
to send him back to
prison. But, he must realise for the future that a considerable risk
attaches to his illegal activities. I
made an order that in addition
to the fine that he paid Ntlaloe was sentenced to imprisonment for
twelve months which sentence
was wholly suspended for three years on
the condition that he is not convicted of any offence under the
precious Stone Order 1970
committed during the period of the
for the Crown Law Office.
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