This High Court case involved an accused that was charged with contravening section 6(1) (a) (i) and section 33 (2)(i) read with (ii) of the Precious Stones Order of 1970 (“order”). The charges were that the accused was in possession of three rough and uncut diamonds without being duly licenced to deal in rough and uncut diamonds. The accused pleaded guilty and was sentenced to three months’ imprisonment. However, the High Court was tasked to review the sentence on the ground that the accused was wrongfully charged. The record showed that the accused was merely found possessing the diamond unlawfully and not selling the diamond.
Thus, the issue for review was whether the accused was correctly charged under section 6(1)(a)(i) and section 33(2)(i) read with (ii) of the order.
The High Court accepted that the accused was wrongfully charged under section 6(1)(a)(i) and section 33 (2)(i) read with (ii) of the order, after reviewing the submissions. The court held that the offence he committed was limited to possession of the diamond unlawfully. To the alternative, the court stated that the accused ought to have been charged under section 6(1)(c) of the order which deals with unlawful possession of the diamond. Finally, the court allowed the amendment of the charge and confirmed the three months’ sentence stating that the punishment was proportionate to either of the offences.
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
V
'MATHAKHOLI SEPHULA
Review Order No. 8/84 CR. 142/84
Review Case No. 215/84 Butha-Buthe district
ORDER ON REVIEW
This case is before me on automatic review.
The accused was charged with contravening section 6(1) (a) (i) and section 33 (2)(i) read with (ii) of the Precious Stones Order No. 24 of 1970. The charges read :
Count 1
In that upon or about the 14th February, 1984 and at or near Liqhobong Diamond Digging Area in Butha-Buthe district, the said accused did wrongfully and unlawfully and not being duly licenced or authorized in terms of this Order to deal in rough and uncut diamonds as a buyer or seller did then possess three rough and uncut diamonds.
Count 11
In that upon or about the 14th February, 1984 and at or near Liqhobong Diamond Digging Area in Butha-Buthe district the said accused
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did wrongfully and unlawfully dig some diamonds at the above mentioned area not being in possession of a valid licence issued in terms of this Order.
The accused pleaded guilty to both charges. In terms of section 240 (1) of the Criminal Procedure and Evidence Act 1981 the prosecutor
accepted the plea and stated the facts disclosed by the evidence in his possession as follows: "On 14.2.84 one Sakhele Sakhele, who is in charge of Liqhobong Digging Area found the accused at the digging area. He searched her and found 3 rough and uncut diamonds in her possession. He asked her to produce a licence for dealing as a buyer or seller in diamonds. Accused could not produce one, but failed. The prosecution would show that accused was going to sell those diamonds." (My underlining).
It is clear from the words I have underlined that at the time she was arrested the accused was not selling or buying the diamonds. In other words, she was not dealing in diamonds. It appears that when the diamonds were found in her possession the accused told Sakhele that she intended to sell those diamonds. Now, to constitute a crime there must be an act or on omission; a mere subjective contemplation of future criminal conduct which does not find outward expression in deed or omission is not criminally punishable. (Burchell & Hunt: South African Criminal Law and Procedure, Vol. 1 p. 97).
The facts stated by the prosecutor show nothing more than mere possession of rough and uncut diamonds by a person who did not have a licence. The correct charge
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ought to have been contravention of section 6 (1) (c) of Precious Stones Order Mo. 24 of 1970. I see no prejudice to the accused if the charge sheet is amended accordingly. The charge and conviction in count 1 are amended accordingly.
The sentence of M120 or 3 months' imprisonment did not strike me as very severe. I confirm the sentence.
ACTING JUDGE
23rd May, 1984.
CC: The Magistrate - Butha-Buthe
O/C - Police - Butha-Buthe
O/C - Prison - Butha-Buthe
O/C Central Prison – Maseru
D.P.P. - Maseru
Director of Prisons
C.I.D. Police Headquarters
All Magistrates and Public Prosecutors.
