CRI/A/18/89

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MOSELANTJA
MOHOLA Appellant

v

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice B.K. Molai on the 7th day of August, 1990.

This
appeal has already been dismissed for the following reasons:

The
appellant appeared before a magistrate with First Class powers
charged with two counts of contraven­tion of Sec.4(a) of
the
Liquor Commission Order No.12 of 1986 and contravention of Section
3(a) of Dangerous Medicines Act No. 21 of 1973. The body
of the
charge sheet disclosed the following allegations:

Count I : "Upon or about 28th March, 1987 and at or near
Sixondo, in the district of Quthing, the said accused did unlawfully

import into Lesotho liquor products to wit; 143 Long Tom cans of beer
without permit and thereby com­mit an offence."

2

Count II
"Upon or about 28th March, 1987 and at or near Sixondo, the said
accused did unlawfully deal in a prohibited medicine
or plant from
which such medicine can be manufactured, to wit; 17.8 kg of dagga
without permit and thereby commit an offence."

When the
charges were put to her the appellant pleaded guilty. The public
prosecutor accepted the plea of guilty tendered by the
appellant and
the provisions of 5.240(1) (b) of the Criminal Procedure and Evidence
Act, 1981 were invoked. At the close of the
trial the learned
magistrate returned a verdict of guilty as charged on both counts. On
count I the appellant was sentensed to
six (6) months imprisonment
the whole of which was suspended for three (3) years on conditions. A
sentence of 18 months imprisonment
was imposed on Count II.

The
appeal was against only the sentence on a number of grounds which
could, however, be summed up in that it was too harsh.

The
facts, and these were admitted as correct by the appellant, disclosed
that prior to 28th March, 1987 she had imported a large
quantity of
beer cans into Lesotho from the district of Transkei in the Republic
of South Africa. On the day in question, 28th
March, 1987 members of
the Royal Lesotho Mounted Police carried out a house to house search
in the appellant's home village, Sixondo.
In the course of the search
they

3

found 143
Long Tom cans of beer and 1¼ bag of dagga inside the
appellant's house. She produced no permits authorising her
to import
the cans of beer and possess the dagga.

Consequently
the police officers took possession of the cans of beer and the
dagga. The dagga was sub­sequently weighed and
found to weigh
17.8 kg. The appellant was cautioned and charged as aforesaid.

After
considering the evidence, the trial magis­trate returned a
verdict of guilty as charged, on both counts, and correctly
so, in my
opinion. Indeed, the appellant herself lodged no appeal against her
convictions As it has been stated earlier, the appeal
was only
against the sentence. It is, however, trite law that the question of
sentence is pre-eminantly a matter for the trial
court's descretion
which must always be exercised judicially. Unless it can be shown
that in passing sentence the trial court has
misdirected itself or
imposed a sentence that is so excessive as to cause a sense of shock
a superior court cannot properly interfere
with the sentence.

In the
present case I was not convinced that the sentences imposed by the
trial court were excessive. In Count I the whole sentence
of 6 months
imprisonment was suspended. In court II a sentence of 18 months
imprisonment for a person found to have been dealing
in dagga was, if
anything, sinning on the side of leniency.

4

It
certainly did not cause me a sense of shock.

Regard
being had to the fact that the trial magistrate who had First Class
powers sentenced the appellant to serve a term of only
18 months
imprisonment in Count II I was convinced that the personal factors
raised in mitigation were properly considered. The
magistrate could
not, therefore, be said to have mis­directed himself in
sentencing the appellant.

By and
large I was satisfied that the appeal ought not to succeed and I
accordingly dismissed it.

B.K.
MOLAI

JUDGE

7th
August, 1990.

For
Appellant : Mr. Ramolibeli

For
Respondent : Mr. Sakoane.

10

The
workers are not prepared to obey orders of such employees on the
ground that their orders are not lawful. I am of the view that
the
applicant and its members have totally misconstrued the provisions of
section 28A of the Employment Act 1967. The certificates
of
employment issued to supervisors who come from outside Lesotho have
nothing to do with the employees of the first respondent
who are
under the supervision of such foreigners. The orders given by such
foreigners can be disregarded by workers if they are
unlawful in the
sense that they are outside the terms of employment of the workers or
to any law or regulation in force in the
country. The mere fact that
such foreigners have no certificates of employment cannot make their
orders unlawful. If the applicant
is unhappy about the employees of
the first respondant who have no certificates of work, all it can do
is to report them to the
appropriate authorities so that they can be
prosecuted under subsection (6) of section 28A of the Employment Act
1967.

It was
submitted on behalf of the applicant that the workers were not asked
if they associated themselves with the strike. I am
of the view that
this submission is not sound. The workers referred to are members of
the applicant who had meetings at which it
was agreed that a strike
action should be taken. The applicant represented all its members and
informed the management of the first
respondent that the workers
would go on strike on the 15th June, 1990 and this is exactly what
they did.

In the
result the application is dismissed with costs.

J.L.
KHEOLA

JUDGE

3rd July,
1990.

For the
Applicant - Mr. Rakuoane

For 1st
and 2nd Respondents - Mr. Moiloa.