R v Tsiu (Rev. Case No. 141/03 CR 286/03 Rev. Order No. 17/03 )

Media Neutral Citation: 
[2003] LSHC 112
Judgment Date: 
2 October, 2003

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IN THE HIGH COURT OF LESOTHO


In The Matter Between:


REX

vs

MALEME MATABOOE THABANG TSIU


Review Case No. 141/03 CR 286/03

Review Order No. 17/03 In the District of Qacha's Nek


ORDER ON REVIEW


2nd October, 2003.


The accused in this case has been charged with the offence which according to the charge sheet reads;


"That the said accused contravened Section 3(1) Stock Theft Amendment Act No.5 of 2003."


The allegations are framed thus;


'In that upon or about the 4th September 2003 and at or near Ha Mantileme (though I could not clearly read the name of that place) in the district of Qacha's Nek, the said accused in any manner otherwise than a public sale acquired or received in their


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possession 2 sheep without being duly authorized by the owner Rethabile Khasemene thereof to deal or dispose them."


The section under which the accused are charged is to be read with Section 13 which has prescribed the penalties. The accused pleaded guilty to the charge and were found guilty as charged by a magistrate with 1st class powers after the outline of facts by the prosecutor.


The magistrate passed a sentence of M2000 or two years imprisonment. He has not specified that the sentence was passed for each of the accused persons, but in making a committal warrant, the clerk of Court wisely made out two separate forms for each accused and thus cured the defect. In future the magistrate should be mindful of the fact that where sentence affects more than one accused, the word 'each' at the end of his sentence should never be omitted.


Section 13 of the said Act prescribes the penalties to be imposed as follows; Section 13. The Principal Law is amended in Section 13 -


  1. by deleting the penalties in sub-section (2) and substituting the following:

"(i) in the case of a first conviction, a fine not less than M25,000.00 and not exceeding M50,000.00 or imprisonment for a term not less than 25 years and not exceeding 50 years or both" or


(ii)…………………


Having been told by the magistrate that the accused are first offenders, section (a) (i) for penalties was applicable. The magistrate has not advanced reasons for his non-compliance with the provisions of that section in passing sentence. He may have been misled by the Public Prosecutor in the framing of his charge as he too made no reference to that relevant section of the Act.


I also had occasion to look at Act 5 of 1998 which is an amendment of some of the sections in the Subordinate Courts Order 9 of 1988, the relevant section being Section 61 of that Order. Section 4 of Act 5 of 1998 has amended Section 61 of Order 9 of 1988 as follows;


Heading - Jurisdiction in the matter of Punishment. "Section 4. Section 61 of the Principal Law is amended –


  1. in Subsection (1)


(i) by deleting paragraph (a) to (f) and substituting the following paragraph:


  1. a Chief Magistrate's Court.............................................................


  1. a Senior Resident Magistrate's Court...........................................


  1. a Resident Magistrate's Court.......................................................


  1. a Subordinate Court of the First Class; a fine of M20,000 and imprisonment for a period of 10 years;


  1. ........................................................................................................


  1. ........................................................................................................


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It is clear that the penalty prescribed under the Stock Theft Amendment Act for a first offender is by far well above the jurisdiction of the first class magistrate who presided over the matter.


In the exercise of my powers on review in terms of Section 68 (2) (b) (i) of the Subordinate Courts Order No.9 of 1988, I confirm the convictions but alter the sentence imposed by the trial magistrate to make it conform with the penalty prescribed by law by setting aside the sentence of M2000.00 or two years imprisonment and substituting it by M25,000.00 or 25 years imprisonment for each accused person. I would have had more comments had the matter been before me on appeal, but since it's on automatic review enough has been said.

The magistrate will have to call the accused persons before him and explain to them the changes in their respective sentences.


A. M. HLAJOANE

JUDGE


CC: The Magistrate - Qacha's Nek

Chief Magistrate

O/C Police -Qacha's Nek

O/C Prisons - Qacha's Nek

CID Office - Qacha's Nek

Public Prosecutor - Qacha's Nek