C OF A
(CRI) 6 OF 1992

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

MASEHLOHO
KAO APPELLANT

V

THE KING
RESPONDENT

HELD AT
MASERU CORAM:

MAHOMED
P.

KOTZE
J.A.

LEON J.A.

JUDGMENT

MAHOMED
P.

The
appellant was charged in the Court a quo with the offence of
contravening section 3(l)(c) read with section 16 of the Official

Secrets Act (as amended), by unlawfully and intentionally
communicating an official secret file to a foreign agent. She pleaded

guilty to this charge and was correctly found guilty. She appeals
against the sentence of 5 years imprisonment which was imposed
on
her. No part of this sentence was suspended.

The
appellant was, at the time of the commission of this offence, in the
employment of the Government and this gave her access to
certain
official files. She removed FILE NO. FR/AFO/05

2

from the
Department of Foreign Affairs without any authority, and gave it to
one Michael JANKIE who was a member of the South African
Police,
attached to its security establishment. The file

"contained information relating to the movement of certain
people who had been in exile in Lesotho and apart from that, it
also
contained the policies of the government in regard to their dealings
with the liberation movements. It also contained information
relating
to whatever missions or meetings had been arranged or were being
arranged between the government and the liberation movements".

Objectively
considered, the offence committed by the appellant was undoubtedly a
serious offence. The trial Judge was also clearly
correct in holding
that there was an element of dishonesty in the conduct of the
appellant. Moreover it is conduct, which could
have potentially
serious consequences prejudicial to the public interest. Against
these objective characteristics of the offence,
however, must be
weighed a number of very relevant mitigating circumstances. These are
briefly that

1. The
   appellant was a woman of 32 with a stable history and no previous
   convictions.

   
   

2. In
   consequence of her conviction, the appellant has lost her employment
   in the civil service and probably

   
   

3

also certain benefits accruing from this employment over a number of
years.

3. The
   appellant did not commit the offence from any motives of personal
   gain or because of any empathy with the policies of any
   foreign
   power. She gave to JANKIE the relevant file, because he had been
   particularly helpful to her in arranging skilled treatment
   for her
   child for a serious medical condition and she felt morally obliged
   to him.

   
   

3. The
   appellant in fact resisted Jankie's requests for access to the file
   for a considerable time, and only succumbed when her will
   to
   maintain this resistance was systematically corroded by the
   persistence of Jankie who took advantage of her sense of moral
   debt
   to him.

   
   

3. The
   trial Court found it difficult to accept the submission that the
   appellant did not know what the file contained. There was
   no
   evidence whether she did or did not, but even if she was aware that
   the file pertained to security matters and the movements
   of
   political activists from South Africa, there is nothing to show that
   she was aware of the details in the file or that she
   properly
   appreciated any of the potential consequences of such an act. She
   was only

   
   

4

employed as a Telex-operator in the relevant Department.

6. The
   appellant was in custody for period of some 9 months before her
   conviction and sentence.

   
   

6. Her
   sick child who is now 13 years old is substantially dependent on the
   appellant for emotional comfort. he is semi-paralysed
   in the left
   leg. His father works on the mines in Welkom.

   
   

6. The
   appellant exhibited her remorse by pleading guilty and by
   co-operating fully with the police in the investigation of the
   offence.

   
   

6. 9.
   She must necessarily have suffered deep humiliation and rejection in
   a community which understandably holds strong feelings
   about conduct
   which can potentially be so injurious to the Kingdom of Lesotho and
   its citizens.

   
   

The
cumulative effect of these factors substantially mitigates the
objective seriousness of the offence. In my view, the trial Court
did
not attach proper weight to these factors in imposing a wholly
unsuspended sentence of 5 years imprisonment. There is a striking

disparity between the sentence which was imposed by the trial Court
and the sentence which this Court

5

would
have imposed if it had sat as a Court of first instance. This Court
is therefore entitled to interfere with the sentence of
the Court a
quo and to impose a sentence which would give expression both to the
objective seriousness of the offence as well as
the special personal
circumstances of the appellant and the reasons which influenced her
conduct. (S v Mazibuko 1978 (4) SA 563
(AD); S v Sibiya 1973 (2) SA
51 (AD); S v Mothibe 1977 (3) SA 823 (AD); S v Rabie 1975 (4) SA 855
(AD); S v Whitehead 1971 (4)
SA 613 (AD); S v Zinn 1969 (2) SA 537
(AD).

In the
result I order that

1. The
   conviction of the appellant be and is hereby confirmed.

   
   

2. The
   sentence imposed by the Court a quo is set aside and substituted by
   the following:

   
   

The
accused is sentenced to 4(four) years* imprisonment the whole of
which is suspended for 5 years on the condition that the accused
is
not convicted of any offence in terms of the Official Secrets Act or
the offence of theft, committed during the period of such
suspension.

Dated at
Maseru this 16th day of July, 1993.

6

I.
MAHOMED

PRESIDENT
OF THE COURT OF APPEAL

I agree

G.P.C.KOTZE

JUDGE OF
THE COURT OF APPEAL

I agree

R.N LEON

JUDGE OF
THE COURT OF APPEAL