The court had to review an earlier decision by the same court. The accused was charged with contravening the Precious Stones Order of 1970 for wrongful and unlawful dealing in rough and uncut diamonds as a buyer or seller and for possession of uncut diamonds without a licence. The accused had pleaded guilty to all charges and convicted.
The court at hand had to decide on whether the first count of wrongful and unlawful dealing was appropriate in the circumstances and whether the charge and conviction should be amended.
The prosecutor relied on the testimony of the member in charge of the digging area who stated that when he searched the accused, he found three rough and uncut diamonds in her possession and upon requesting a valid dealing license, she failed to do so. There was no indication that the accused was going to sell those diamonds.
The court held that at the time the accused was apprehended she was not dealing in diamonds, but she was merely in possession of them. For there to be a crime there must be an act or on omission, a mere subjective contemplation of future criminal conduct which does not find outward expression indeed or omission is not criminally punishable.
The court held that the correct charge ought to have been one of possession and nothing more and ordered that the charge be amended accordingly. It however maintained that the previous sentence was adequate.
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
/did
- 2 -
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
/ought
-3-
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.
