R v Mokheche (CRI/A 6 of 80) [1980] LSHC 36 (19 May 1980)

C R I / A / 6 / 80 IN THE HIGH COURT OF LESOTHO In the a p p e al of: THOMAS MOKHECHE Appellant v REX Respondent REASONS FOR JUDGMENT F i l ed by the Hon. Mr. J u s t i ce M. P. Mofokeng on the 19th day of May, 1980 The a p p e al is dismissed and what follow a re the r e a s o ns t h e r e o f. The a p p e l l a nt was convicted of the t h e ft of M150.00 received from the s a le of c e r t a in cement blocks being the p r o p e r ty of the Government of Lesotho. It was a l l e g ed t h at the a p p e l l a nt had a duty to d e p o s it the said money with the Sub-Accountancy b ut c o n t r a ry to h is duty he converted t he money to h is own use and thus s t o le it. He was sentenced to undergo imprisonment for a period of n i ne (9) months. The a p p e l l a n t 's grounds of appeal ere as f o l l o w s .- ( i) The c o n v i c t i on is a g a i n st the evidence and weight of the e v i d e n c e. ( i i) The sentence is excessive and h a r s h. The m a t t er made i ts appearance before me, in chambers, on the 29th January, 1980, in t e r ns of S e c t i on 320A of t he Criminal Procedure and Evidence Proclamation 59 Of 1938. An order was t h en made on the some day that it be placed on the r o ll of c i s es f or h e a r i n g, by the R e g i s t r a r, in terms of S e c t i on 320B of the s a id P r o c l a m a t i o n. On the 16th day of A p r i l, 1980 the m a t t er appeared on the r o ll of cases to be heard b ut was postponed to the 21st A p r i l, 1980. On the l a t t er d a te it was f u r t h er postponed to the 19th May, 1980 at the r e q u e st of the a p p e l l a n t 's c o u n s e l, and on t h at d a te the m a t t er was f i n a l ly disposed of. 2/ . .. -2- At the t r i a l, in the Court aquo appellant was represented by counsel and so was he before this court. The appellant had a ll the opportunity to elucidate his grounds of appeal but chose not to do so. The f i r st 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, C R I / A / 1 9 / 79 (unreported) dated 30th August, 1979 and shall not repeat i t. It is common cause that 1. appellant received the sum of M1 50,00 from the sale of certain cement blocks to Margaret Bassie, 2. appellant issued temporary receipts to the said Margaret Bastie, 3. 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 (c) 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 l a t e r. The appelant did not mention to her that the cement blocks in issue belonged to T s ' i l o. Margaret Bessie did not see- Mr. Makama at the prison on each occassion when she pur- chased cement blocks. (b) '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, (c) 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 s e ll any. (d) W/O Koza (P. W.1) stated that the appellant explained to him that the cement blocks did not belong to the Lesotho Government. 3/ . . .. - 3- 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 f i r st offender should not be sent to prison if circumstances warrant i t, 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 s t i ll relatively young. He was also a f i r st 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 (1) M20.00 at the end of May 1980; (2) M20.00 at the end of June 1980; (3) 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 JUDGEMENT