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.

JUDGME NT 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

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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

   
   

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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.

   
   

4. 
   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.

   
   

5. 
   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

   
   

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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.

   
   

7. 
   Her sick child who is now 13 years old
   is
   substantially dependent on the appellant for
   emotional
   comfort. he is semi-paralised in the left leg.
   His
   father works on the mines in Welkom.

   
   

8. 
   The appellant exhibited her remorse by pleading
   guilty
   and by co-operating fully with the police in
   the
   investigation of the offence.

   
   

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

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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.

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I. MAHOMED

PRESIDENT OF THE COURT OF APPEAL

I agree

G.P.C. KOTZE
JUDGE OF THE COURT OF APPEAL

I agree

JUDGE OF THE COURT OF APPEAL