CRI\A\15\94

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

THANDAPHANTSI
SEPEQANE Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 26th day of April, 1995

Mr.
Sepeqane, your appeal succeeds merely as to the fact that you were
convicted under a wrong law. But while you might have been
hopeful
that such being the case then you are entitled to an acquittal I
regret that I should disappoint you.

The
proper verdict should have been that you be found guilty with regard
to contravention of Section 16 of Stock Theft Proclamation
of 1921 as
amended and not guilty of theft for theft is not a competent verdict
to a charge preferred under the relevant statute.
So this Court
acting in terms of Section 329(c) of the Criminal Procedure and
Evidence is empowered to correct the verdict, or
enter a proper
verdict and\or correct the judgment of the Subordinate Court which
has convicted you of theft when it should have
convicted you of
contravention of the above-mentioned section.

2

Regarding
sentence it is common ground between counsel that the six years'
imprisonment is rather on the high side. While in fact
I am prepared
to interfere with the sentence X am painfully aware that the fact
that you restored to the complainant his stock
it didn't benefit him
at all because the stock perished within a week of your restoration
of it to him.

The
record shows that you didn't have any previous convictions. So, that
stands you in good atead.

I am also
taking into account the fact that you have always and dutifully been
appearing before court here to prosecute your appeal
but because of
engagements by the Crown or something along those lines the matter
couldn't proceed; and that is not your own fault.

The
verdict by the Subordinate Court convicting the appellant of theft is
set aside and a proper one of "guilty of contravention
of
Section 16 of Stock Theft Proclamation 1921" is substituted
there for.

The
sentence imposed by the Court below is also set aside and substituted
by the following : namely, that the appellant is sentenced
to pay a
fine of One Thousand Maluti(Ml,000-00) or serve four years'
imprisonment of which half is suspended for two years on condition

that the appellant be not convicted of contravention of any of the
provisions of the 1921 Stock Theft Proclamation committed during
the
period of the

3

suspension.

JUDGE

26th
April, 1995

For
Appellant : Mr. Fosa

For
Respondent: Mr. Sakoane