IN THE HIGH COURT OF LESOTHO
In the appeal of:
THOMAS MOKHECHE Appellant
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice M. P. Mofokeng on the 19th day of May, 1980
The appeal is dismissed and what follow are the reasons thereof.
The appellant was convicted of the theft of M150.00 received from the sale of certain cement blocks being the property of the Government of Lesotho. It was alleged that the appellant had a duty to deposit the said money with the Sub-Accountancy but contrary to his duty he converted the money to his own use and thus stole it. He was sentenced to undergo imprisonment for a period of nine (9) months.
The appellant's grounds of appeal ere as follows.-
(i) The conviction is against the evidence and weight of the evidence.
(ii) The sentence is excessive and harsh.
The matter made its appearance before me, in chambers, on the 29th January, 1980, in terns of Section 320A of the Criminal Procedure and Evidence Proclamation 59 Of 1938. An order was then made on the some day that it be placed on the roll of cises for hearing, by the Registrar, in terms of Section 320B of the said Proclamation. On the 16th day of April, 1980 the matter appeared on the roll of cases to be heard but was postponed to the 21st April, 1980. On the latter date it was further postponed to the 19th May, 1980 at the request of the appellant's counsel, and on that date the matter was finally disposed of.
At the trial, in the Court aquo appellant was represented by counsel and so was he before this court. The appellant had all the opportunity to elucidate his grounds of appeal but chose not to do so. The first ground of appeal is not valid because it does not sufficiently specify the issuea of fact or law or of both which are being challenged on appeal. It does not comply with Rule 1 (1) of the Subordinate Court Rules, Order No. XXXV which provides that a written statement setting out clearly and specifically the grounds on which the appeal is based shall be lodged with the clerk of Subordinate Court, I made the position quite clear in my judgment in the case of JOSEPH LETS'ABA RAKOTI v. REX, CRI/a/19/79 (unreported) dated 30th August, 1979 and shall not repeat it.
It is common cause that
appellant received the sum of M1 50,00 from the sale of certain cement blocks to Margaret Bassie,
appellant issued temporary receipts to the said Margaret Bastie,
appellant did not deposit the said money with the Sub-Accountancy,
There 13 overwhelming evidence that coment blocks were the property of the Lesotho Government, despite the appellant's denial The evidence of Margaret Bassie shows that the appellant sold the blocks to her and issued her with a temporary receipt bearing a Prisons Department date stamp. On the occassions when he issued the temporary receipts, he promsed to issue a proper receipt later. The appelant did not mention to her that the cement blocks in issue belonged to Ts'ilo. Margaret Bessie did not see-Mr. Makama at the prison on each occassion when she pur-chased cement blocks.
'Mathabiso Ts'ilo (P.W.3) testified that she never received the sun of Ml 50.00 from anyone in respect of the sale of cement blocks at the Butha-Buthe Prison,
Elliot To'ilo (P.W.4) testified that he did not receive the sun of M150.00 from Mr. Mikama or the appellant. He had his own bricks at the prison but he did not sell any.
W/O Koza (P.W.1) stated that the appellant explained to him that the cement blocks did not belong to the Lesotho Government.
The learned magistrate was quite correct, in my view, to have rejected the explanation of the accused. It was, beyond reasonable doubt, palpably false.
Although there is no rule that a first offender should not be sent to prison if circumstances warrant it, in this particular case this Court is of the opinion that an option of a fine would neet the situation. It would be quite an intolerabel situation for the appelant and the Administration that the former should find himself in prison among the very people he looked after, some of whon night, rightly or wrongly , have regarded him as their tormentor. Beside, the appellant is still relatively young. He was also a first offender. The learned magistrate did not specifically deal with these natters at the time he imposed the sentence that he did. The learned magistrate's sentence was therefore set aside and was, instead, substituted by the following .
"M90.00, or 9 months imprisonment "
The fine is to be paid is follows
M20.00 at the end of May 1980;
M20.00 at the end of June 1980;
Appellant (he agreed) surrenders his cash bail bond (M50.00) to the Registrar of this Court to whom all payments have to be made.
For Appellant. Mr. Makhene
For Respondent Mr. Mdluli
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