Mohola v R (CRI/A 18 of 89) [1990] LSCA 125 (7 August 1990)

CRI/A/18/89 IN THE HIGH COURT OF LESOTHO In the Appeal of : MOSELANTJA MOHOLA Appellant v R E X Respondent REASONS FOR JUDGMENT Filed by the Hon. M r. Justice B. K. Molai on the 7th day of August, 1990. This appeal has already been dismissed for t he following reasons: The appellant appeared before a magistrate with First Class powers charged with two counts of contraven- tion of Sec.4(a) of t he Liquor Commission Order N o . 12 of 1986 and contravention of Section 3(a) of Dangerous Medicines Act No. 21 of 1973. T he body of t he charge sheet disclosed the following allegations: Count I : "Upon or about 28th March, 1987 and at or near Sixondo, in the district of Quthing, the said accused did unlawfully import into Lesotho liquor products to w i t; 143 Long Tom cans of beer without permit and thereby com- mit an o f f e n c e ." 2/ Count II .... Count II "Upon or about 28th March, 1987 and at or near Sixondo, the said accused did unlawfully deal in a prohibited medicine or plant from which such medicine can be manufactured, to wit; 17.8 kg of dagga without permit and thereby commit an offence." When the charges were put to her the appellant pleaded guilty. The public prosecutor accepted the plea of guilty tendered by the appellant and the provisions of 5.240(1) (b) of the Criminal Procedure and Evidence Act, 1981 were invoked. At the close of the trial the learned magistrate returned a verdict of guilty as charged on both counts. On count I the appellant was sentensed to six (6) months imprisonment the whole of which was suspended for three (3) years on conditions. A sentence of 18 months imprisonment was imposed on Count II. The appeal was against only the sentence on a number of grounds which could, however, be summed up in that it was too harsh. The facts, and these were admitted as correct by the appellant, disclosed that prior to 28th March, 1987 she had imported a large quantity of beer cans into Lesotho from the district of Transkei in the Republic of South Africa. On the day in question, 28th March, 1987 members of the Royal Lesotho Mounted Police carried out a house to house search in the appellant's home village, Sixondo. In the course of the search they 3/ found found 143 Long Tom cans of beer and 1¼ bag of dagga inside the appellant's house. She produced no permits authorising her to import the cans of beer and possess the dagga. Consequently the police officers took possession of the cans of beer and the dagga. The dagga was sub- sequently weighed and found to weigh 17.8 kg. The appellant was cautioned and charged as aforesaid. After considering the evidence, the trial magis- trate returned a verdict of guilty as charged, on both counts, and correctly so, in my opinion. Indeed, the appellant herself lodged no appeal against her convictions As it has been stated earlier, the appeal was only against the sentence. It is, however, trite law that the question of sentence is pre-eminantly a matter for the trial court's descretion which must always be exercised judicially. Unless it can be shown that in passing sentence the trial court has misdirected itself or imposed a sentence that is so excessive as to cause a sense of shock a superior court cannot properly interfere with the sentence. In the present case I was not convinced that the sentences imposed by the trial court were excessive. In Count I the whole sentence of 6 months imprisonment was suspended. In court II a sentence of 18 months imprisonment for a person found to have been dealing in dagga w a s, if anything, sinning on the side of leniency. 4/ It certainly It certainly did not cause me a sense of shock. Regard being had to the fact that the trial magistrate who had First Class powers sentenced the appellant to serve a term of only 18 months imprisonment in Count II I was convinced that the personal factors raised in mitigation were properly considered. The magistrate could not, therefore, be said to have mis- directed himself in sentencing the appellant. By and large I was satisfied that the appeal ought not to succeed and I accordingly dismissed it. B. K. MOLAI JUDGE 7th August, 1990. For Appellant : Mr. Ramolibeli For Respondent : Mr. Sakoane. - 10 - The workers are not prepared to obey orders of such employees on t he ground that their orders are not lawful. I am of t he view that t he applicant and its members have totally misconstrued the provisions of section 28A of t he Employment Act 1967. The certificates of employment issued to supervisors w ho come from outside Lesotho have nothing to do with the employees of the first respondent w ho are under t he supervision of such f o r e i g n e r s. The orders given by such foreigners can be disregarded by workers if they a re unlawful in t he sense that they a re outside t he terms of employment of the workers or to any law or regulation in force in t he country. The m e re fact that such foreigners have no certificates of employment cannot m a ke t h e ir orders unlawful. If the applicant is unhappy about t he employees of the first respondant w ho have no certificates of w o r k, all it can do is to report them to the appropriate authorities so that they can be prosecuted under subsection (6) of section 28A of t he Employment A ct 1 9 6 7. It was submitted on behalf of t he applicant that the workers w e re not asked if they associated themselves with the strike. I am of the view that this submission is not sound. The workers referred to are members of t he applicant w ho had meetings at which it was agreed t h at a strike action should be t a k e n. T he applicant represented all its members and informed the management of the first respondent that the w o r k e rs would go on strike on t he 15th June, 1990 and this is exactly what they did. In the result t he application is dismissed with c o s t s. J. L. KHEOLA JUDGE 3rd July, 1990. For the Applicant M r. Rakuoane For 1st and 2nd Respondents - M r. M o i l o a. -