C OF A (CRI) 6 OF
1992 IN THE LESOTHO COURT OF APPEAL In the matter
MASEHLOHO KAO APPELLANT
VTHE 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
certain official files. She removed FILE NO. FR/AFO/05
/. . .
from the Department of Foreign Affairs without any
authority, and gave it to one Michael JANKIE who was a member of the
Police, attached to its security establishment. The
file "contained information relating to the movement of certain
had been in exile in Lesotho and apart from that, it also
contained the policies of the government in regard to their dealings
the liberation movements. It also contained information
relating to whatever missions or meetings had been arranged or were
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
correct in holding that there was an element of dishonesty in
the conduct of the appellant. Moreover it is conduct, which could
potentially serious consequences prejudicial to the public
interest. Against these objective characteristics of the offence,
must be weighed a number of very relevant mitigating
circumstances. These are briefly that
The appellant was a woman of 32 with a stable history
and no previous convictions.
In consequence of her conviction, the appellant has
lost her employment in the civil service and probably
also certain benefits accruing from this employment
over a number of years.
The appellant did not commit the offence from
anymotives of personal gain or because of any empathywith
the policies of any foreign power. She gave toJANKIE the
relevant file, because he had beenparticularly helpful to
her in arranging skilledtreatment for her child for a
serious medicalcondition, and she felt morally obliged to him.
The appellant in fact resisted Jankie's requests for
access to the file for a considerable time, and onlysuccumbed
when her will to maintain this resistancewas systematically
corroded by the persistence ofJankie who took advantage of her
sense of moral debtto him.
The trial Court found it difficult to accept
thesubmission that the appellant did not know what thefile
contained. There was no evidence whether she didor did not, but
even if she was aware that the filepertained to security matters
and the movements ofpolitical activists from South Africa,
there isnothing to show that she was aware of the details
inthe file or that she properly appreciated any of thepotential
consequences of such an act. She was only
employed as a Telex-operator in the relevant
The appellant was in custody for period of some 9
months before her conviction and sentence.
Her sick child who is now 13 years old
issubstantially dependent on the appellant for
emotionalcomfort. he is semi-paralised in the left leg.
Hisfather works on the mines in Welkom.
The appellant exhibited her remorse by pleading
guiltyand by co-operating fully with the police in
theinvestigation of the offence.
She must necessarily have suffered deep humiliation
and rejection in a community which understandablyholds strong
feelings about conduct which canpotentially be so injurious
to the Kingdom of Lesothoand its citizens.
The cumulative effect of these factors substantially
mitigates the objective seriousness of the offence. In my view, the
did not attach proper weight to these factors in imposing
a wholly unsuspended sentence of 5 years imprisonment. There is a
disparity between the sentence which was imposed by the
trial Court and the sentence which this Court
would have imposed if it had sat as a Court of first
instance. This Court is therefore entitled to interfere with the
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
The conviction of the appellant be and is hereby
The sentence imposed by the Court a quo is set
asideand 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
Dated at Maseru this 16th day of July, 1993.
PRESIDENT OF THE COURT OF APPEAL
G.P.C. KOTZE JUDGE OF THE COURT OF APPEAL
JUDGE OF THE COURT OF APPEAL
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