CRI/A/J5/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MALERATO
M0THAUNG Appellant

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 8th day of August, 1983.

On 2nd
October, 1981, the appellant appeared before the President Magistrate
of Maseru charged with the crime of theft on the following

allegations:

"Whereas at all relevant times the said Malerato Mothabeng was
employed as a Community Development Assistant and was as such
an
employee and entrusted with the custody and care of the money
belong­ing to the Government of Lesotho, the said 'Malerato

Mothabeng did during the period between 1st March, 1981 and 31 st
July, 1981 and at or near Maseru Reserve in the district of Maseru

un]avfully and intentionally steal a sum of money amounting to
ll,875-00 the property of the Government of Lesotho.

She
pleaded guilty to the charge. The public prosecutor accepted the plea
and the provisions of Sec. 240 (1) (b) of the Criminal
Procedure and
Evidence Act 198' were invoked.

The
facts, and these were admitted as correct by the appellant, disclosed
that at the material time

2

the
appellant had been employed by the Lesotho Government for two years
and deployed as a Community Development Assistant in the
Ministry of
Rural Community Development and Co-operatives. One of appellant's
responsibilities as to handle Government monies and
pay Government
employees working on the roads. Between the period 1st March, 1981
and 31st July, 1981 money totalling to the amount
of M1,875.00 was
given to the appellant to pay the road workers. Appellant took the
money but did not pay the workers. She instead
used the money for her
own personal interests That she was not authorised to do by her
employer, the Lesotho Government.

On this
evidence the appellant was convicted as charged . The trial court
imposed a sentence of years imprisonment, the whole of
which was
suspended for 2 years on condition that during the period of
suspension the appellant made good the amount of money involved.
The
appellant was quite happy with the conviction and the sentence
imposed by the trial court.

However,
the proceedings were subsequently sent for review by the High Court
in terms of the Subordinate Courts Proclamation No.
58 of 1938 (as
amended) of which Section 67 provides

"All sentence in criminal cases in which the punishment
(including detention in a reformatory, farm colony, refuge, rescue

home or other similar institution) in the case of a Resident
Magistrate's Court imprisonment for any period exceeding eighteen

months or a fine exceeding five hundred rands(or in the case of a
Resident Magistrate's Court presided

3

by a Senior Resident Magistrate imprisonment for a period exceeding
two years or a fine exceeding one thousand rands) or in the
cane of
Subordinate Courts of First Class for any period exceeding six months
or a fine ex­ceeding one hundred rands and in
the case of
Subordinate Courts of Second and Third Class for any period exceeding
three months or a fine exceeding fifty rands
or any whipping (save in
any case in which a male child under the age of eighteen years has
been sentenced under the Criminal Procedure
and Evidence
Proclamation) shall be subject in the ordinary course to review by
the High Court;but without prejudice to the right
of Appeal against
such sentence whether before or after confirmation of the sentence by
the High Court.'

On
review, the proceedings came before Rooney,J. who confirmed the
conviction but iras apparently somewhat disturbed by the order
of the
trial court suspending the whole sentence. He set it aside and
substituted therefor an order couched in the following terms

"The order suspending the sentence of imprisonment is set aside.
Accused is committed to prison. This order is made without
prejudice
to accused's right of Appeal."

The
effect of removing the suspension order was that the sentence of 2
years imprisonment imposed by the trial court became effective.
The
judge had in effect varied the sentence and made it more severe than
it had originally been. with that, the Appellant felt
aggrieved. 3he,
therefore, appealed to the High Court against the effective sentence
of 2 years imprisonment i.e. against the severity
of the sentence.

When the
appeal came before the High Court, the salient question for
determination by Cotran, C.J. sitting with Mofokeng,J. was
"whether
or not an appeal lies to the High Court" in the circumstances of
this case. That question was answered in the
negative. As it was
later pointed out by Golding, J.A. writing

4

a
majority judgment in 'Malerato Mothabeng v. Rex C. of A. (CRI) No. 5
of 1982 p.3 (unreported)

"The aspect which apparently induced the decision of the court a
quo is the effect of section 8 often Court of Appeal Act,
1978 which
was considered contradictory and subsections (1) and (?) thereof as
mutually destructive"

That section reads :8

1. Any
   party to an appeal to the High Court may appeal to the court against
   the High Court Judgment with the leave of the judge
   of the High
   Court, or when such leave is refused, with the leave of the court on
   any ground of Appeal which involves a Question
   of law but not on
   question of fact nor against severity of sentence.

   
   

2. For
   the purposes of this section an order made by the High Court in its
   revisional jurisdiction, or a decision of the High Court
   on a case
   stated, shall be deemed to be a decision of the High Court in its
   appellate jurisdiction."

   
   

At page 4
of the decision

in
'Malerato Mothabeng v. Rex, CRI/A/35/82 (unreported) the learned
judges are recorded as having considered the effect of the
two
subsections to section 8 above along the following lines .

"Is S.8(2) an independent and integral subsection that gives en
accused, in such plight as in the present case, an absolute
right to
appeal against severity of sentence, or is the subsection to be read
in conjuction with and subject to the reaquirements
of 5.(1)? The
marginal note to the section speaks of 'second appeals1 but an
occurrence under S.8(2) is not a 'second appeal' properly
so called.
The subsections are mutually

5

destructive in our opinion but it is for the Court of Appeal to
decide on interpretation. If leave to appeal is needed, we are

prepared to grant it, for there is a point of law involved, but if no
application is made for leave to appeal or if no appeal is
noted to
the Court of Appeal within the time specified by the Rules, then the
appellant must be committed to prison to serve her
sentence."

The
appellant did note the appeal to the Court of Appeal and in
interpreting Section 8, Goldln J.A. in a majority judgment had this

to say :

"Subsections (1) and (?) must be read together. The Court of
Appeal is confined to dealing with a question of law as appears
from
subsection (1). Accordingly where an accused seeks to appeal against
a conviction or sentence on a question of lav against
an order made
by the High Court in its revisional jurisdic­tion, this is deemed
to be an order by the High Court in its appellate
jurisdiction.
Section 8(2) is clearly intended to be used for the purpose of
section 8(1) and not to deprive an accused of his
rights of appeal
against severity of sentence or on a question of fact to the High
Court. It does not alter a right of appeal to
the High Court out
merely affords a more expeditious and less costly means by which to
have a question of lav brought before the
Court of Appeal." -
vide 'MaLerato Mothabengh v. Rex, supra, at p. 3 (unreported).

In the
circumstances, the Court of Appeal allowed the appeal and remitted
the matter to the High Court for its decision.

As has
been pointed out,, the appeal is against the severity of sentence. It
is based on the following grounds

"The sentence of two years imprisonment without an option of a
fine is too harsh

6

considering the fact that at the commission of the offence, the
appellant was pregnant and that at the time of her conviction she
had
a newly born baby who is an invalid.

2. A
   suspended sentence was more appropriate considering the fact that
   the appellant was still very young and was first offender
   who showed
   remorse and cooperation through­out the investigation of her
   crime and at her trial.

   
   

2. The
   court should have considered as a mitigating factor the fact that
   the appellant is also liable to repay the whole amount forming
   the
   subject matter of the charge."

   
   

Most of
the facts that this court is invited, in the grounds of appeal, to
consider as mitigating factors were raised before the
trial court and
are clearly reflected in the record of proceedings. There can be no
doubt, therefore, that the judge who read through
the proceedings on
review was aware that they had played an important part in
influencing the trial magistrate to suspend the sentence
of 2 years
imprisonment that he had imposed. However, the judge clearly took the
view that the offence against which the appellant
had been convicted
was too grave to warrant a suspended sentence. Indeed, in a similar
case Fano and Another v. Rex 1980(1) LLR
146 at p. 148 "lofokeng,
J. had this to say on the subject, and I entirely agree.

"The theft of Government's property is rampant. This court has
had an occasion to warn people who steal government's property
about
the serious view in which this court regards such conduct. That was
was the case of Monkhi v. Rex, CRI/A/3'777, (unreported)
at p. 12.
That warning has gone unheeded. It is the primary duty of every court
in this land

7

to mark their determination to discourage any idea that Government
property can be stolen with impunity. The courts in this country
are
determined to do all they can to discourage it. The courts are
therefore, determined to punish severely any one who steals

government' s property."

In the
circumstances, the reviewing judge was, under the powers vested in
him by S.69(2)(b) (1) of the Subordinate _Courts Proclamation
No. 58
of 1918, entitled to correct, as he did, the sentence imposed by the
trial magistrate. That section reads :

"If, upon considering the proceedings aforesaid, it appears to
the reviewing officer or the judge, as the case may be, that
the same
are not in accordance with justice or that doubts exist whether or
not they are in such accordance :

1. ......................

   
   

2. the
   judge may –

   
   

1. nlter
   or reverse the conviction or increase or reduce or vary the
   sentence of the court which imposed the punishment;"

   
   

I take
the view that the removal of the suspension order from the sentence
imposed by the trial magistrate was, not only within
the reviewing
judge's discretion vested in him under provisions of 3.69(2)(b)(i) of
the Subordinate Courts Proclamation, (supra),
but also justified in
the circumstances of the present case.

8

I am not,
therefore, prepared to interfer and the appeal is accordingly
dismissed.

However,
in the discretion of this court, it is ordered that the appeal
deposit be refunded to the appellant.

B.K.
MQLAI.JUDGE.

8th
August, 1983.

For
Appellant : Mr. Ramodibeli

For
Respondent ' Mr. Kabati.