Fatane and Others v Crown ( not Sure) (Constitutional Case No. 3/01)

Media Neutral Citation: 
[2004] LSHC 114
Judgment Date: 
24 September, 2004

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CONSTITUTIONAL CASE NO3/01

IN THE HIGH COURT OF LESOTHO


In the matter between:-

SELENKANE FATANE REV/CASE/117/2004

MOETI KOATAKE REV/CASE/131/2004

MOLEMO NKALAI & ANOTHER REV/CASE/133/2004

AND

THE CROWN


BEFORE: The Chief justice M. L. Lehohla

Mr. Justice W. C. M. Maqutu

Mr. Acting justice M. E. Teele


JUDGEMENT


DELIVERED ON 24TH SEPTEMBER 2004 BY THE HONOURABLE M. L LEHOHLA, CHIEF JUSTICE


INTRODUCTION


  1. These three matters came to the High Court on automatic review. During May 2004, Acting Justice Teele was allocated Review case


131/04. At about the same time Justice Maqutu was allocated the two remaining reviews in this matter. Having studied the respective files both Judges approached me with a request that these matters should be heard together in open court in view of the weighty issues that were thrown up by the facts in each case and the application of the Stock Theft Act 2000 as Amended which is a common denominator in all of them.


  1. I was persuaded of the need to accede to the said request and I directed that an amicus curiae counsel should be appointed to represent the accused persons and that the Crown should prepare submissions on specific constitutional issues which I shall detail later in this judgment.


  1. Mr. Mohau was appointed and he appeared as an amicus curiae and the Director of Public Prosecutions, Mr. Thetsane appeared in person. To enable both counsel to prepare their submissions a (late of the 23rd of August 2004 was appointed as a date of hearing.


  1. On the said date we heard full argument and postponed the matters to the 24th of September 2004 for the delivery of judgment. We are indebted to both counsel for their most helpful written as well as oral submissions.


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FACTS


  1. The facts of these reviews are pleasantly uncomplicated and can he briefly summarized.


Fatane's Review


  1. Fatane, a 33 year old man was charged with contravention of section 3(1) of the Stock Theft Amendment Act No. 5 of 2003:


    1. " in that upon or about the 18th of April, 2004 and at or near Matatiele in the Republic of South Africa, the said accused in a manner otherwise than at the public sale unlawfully and intentionally acquired or received into his possession 7 herd of cattle and brought the same to TERESENG in the district of Qacha's Nek where this court has jurisdiction without being duly authorized by the owner Jerry Setlamoreng Moshoeshoe to deal or dispose of the said cattle."


  1. The accused was charged before the Qacha's Nek Magistrate with first class powers. Accused pleaded guilty and the outline of facts revealed that the seven (7) cattle subject matter of the charge were stolen at Matatiele, Republic of South Africa. Upon being confronted by the Chief, the accused admitted having stolen the same. Accused was found guilty as charged and sentenced to pay M20,000.()0 (twenty thousand maloti) fine or to undergo imprisonment for ten years in


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default of such payment. All the stolen cattle having been recovered were restored to the possession of the complainant Jerry Moshoeshoe.


  1. The record reveals that accused had no previous convictions; that he was married and had two minor children dependant upon him for support.


Nkalai's Review


  1. The two accused Molemo and Liphehlo Masenkane both 26' years of age appeared before the Botha-Bothe Magistrate Court, with first class powers, charged with the contravention of Section 8(2) of the Stock Theft Act 4 of 2003 (the amendment). It was alleged that:-


"upon or about the .5th of January 2004, and at or near Patuoe Motete in the district of Botha-Bothe district the said accused did wrongfully and intentionally did (sic) both have in their possession 2 sheep and are (sic) unable to give a satisfactory explanation of such possession, the possession or in the lawful possession of Manko Khoali."


  1. Both accused pleaded guilty to the charge and after the outline of facts by the Public Prosecutor they were both found guilty as charged. The Learned Magistrate however found, and recorded, that the law under which the accused had to be sentenced prescribes minimum penalties that exceed his penal jurisdiction. The learned Magistrate then decided to deal with the matter in terms of S. 293 (1) of the Criminal


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Procedure and Evidence Act 7 of 1981 (CPE Act) which provides as follows:-


"Where on the trial by a subordinate court a person whose apparent age exceeds 18 years is convicted of an offence, the court may if it is of the opinion that greater punishment ought to be inflicted for the offence than it has power to inflict, tor reasons to be recorded in writing of (sic) the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court tor sentence."


Koatake's Review


  1. Moeti Koatake a male Mosotho adult aged 2() years was charged at the Mokhorlong Magistrate Court as follows:


"That the said accused is charged with the offence of contravention of Section 13(2) (a) of the Stock Theft Act No 4 of 2000 as amended by Stock Theft Amendment Act No 5 of 2003.


In that upon or about the 4th day of October 2003 and at or near Ha Meja in the district of Mokhotlong the said accused did unlawfully and intentionally use violence at the time of committing theft of Stock to wit, 7 sheep and 6 goats the property or in the lawful possession of "Tholang Khotle"."


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  1. The accused pleaded not guilty, but alter evidence was led by both the crown and the defence, he was convicted as charged and sentenced to pay a fine of M25,000.00 (twenty-five thousand maloti), or to undergo a period of 25 years imprisonment in default of payment.


  1. As will he evident later in this judgment, it is not necessary to traverse and analyse all the evidence that was led on either side. It will be sufficient for our present purpose to summarize the evidence of the complainant as to how the offence was committed. In this judgment the correctness of the evidence of the complainant will be assumed.


  1. Tholang Rhode, the complainant, testified that he owns sheep and goats; that on the date reflected in the charge sheet, he had enkraaled his livestock and had proceeded to go to bed. In the dead of the night he heard dogs harking. He prepared to go out to investigate. As he opened the door, stones were thrown at him. He resorted to looking through the window; the stone thrower also shifted his focus to the window and pelted them with stones. Complainant's sheep and goats reflected in the charge sheet were stolen. When complainant raised an alarm and villagers responded thereto, gun reports were heard coming From the direction of the robbers, thereby thwarting any efforts to rescue the livestock. Later, however, 5 sheep and 5 goats were recovered, and restored to complainant's possession.


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The Law: Fatane and Koatake's Reviews


  1. In these reviews the accused were charged with contravention of the same section, but the difference was only in respect of the particular subsections. This is section 3 of the Stock Theft Act No. 4 as Amended (The Act). It will be convenient to reproduce the entire section, and it reads as follows:-


(1) "Any person who in any manner, otherwise than at the public sale, acquire or receives into his possession from any other person stock or produce or both, without having reasonable cause, proof of which shall be on him, for believing at the time of acquisition or receipt that the stock or produce or both are the property of the person from whom he receives them, or that the person has been duly authorized by the owner thereof to deal with or dispose of them commits an offence and is liable on conviction to the penalties set out in section 13.


(2) If there are reasonable grounds for believing that any person who is in possession of stock or produce has obtained the possession of such stock or produce unlawfully, or if any such person is proved to have been in possession of such stock or produce unlawfully, it shall be competent for any chief member local authority or any person authorized to do so under the Criminal Procedure and Evidence Act 1981, to arrest or cause to be arrested such person without a warrant and if such person is unable to give satisfactory explanation of such possession, he


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commits an offence and is liable, on conviction, to the penalties set out in section 13."


  1. Section 13, in so far as it is relevant, in turn reads as follows:-


"13 (2) A person who at the time of committing theft of stock, produce or both :


  1. uses violence or

  2. threatens another with or without a fire arm or any other offensive weapon commits an offence and shall be liable to:-


(i) In the case of first conviction, a fine not less than M25,000 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) In the case of a second or subsequent conviction, a fine not less than M50.000.00 and not exceeding Ml00.000.00 or imprisonment for a term not less than 50 years."


  1. The accused in the Koatake review was charged with the contravention of the provisions of S.13(2)(a).


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ISSUES ARISING


  1. The following issues arise in the light of the facts of the above renews namely:-



a) Hearing in mind the fact that in all these reviews the magistrates' penal jurisdiction were below the mandatory minimum sentence decreed by the provisions of Section 13 of the Act, did the magistrates have jurisdiction to preside over and determine these cases and;


b) If the answer to enquiry (a) is in the negative, what should have been an appropriate court of competent jurisdiction and;


c) Bearing in mind the provisions of S 8(1) of the Constitution, are the mandatory minimum sentences decreed by S.13 of the Act consistent therewith, and in the event of inconsistency, what relief should be appropriate to meet this situation;


d) There developed during argument, a further issue whether it was competent for the court to consider the constitutional issues arising in sub para (c) in the event that the court should find that the magistrates had no jurisdiction to have heard these cases, and


e) a further issue was that in the event that constitutional issues could be competently dealt with by this court, on the facts of these reviews, whether the provisions of S. 3 (1) of the Act were


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consistent with the provisions of S. 12 2(a) of the Constitution on the presumption of innocence.


ANALYSIS


Jurisdiction


  1. It was common cause between both counsel before us that the penal jurisdiction of each individual magistrate fell short of the mandatory minimum sentence decreed by S. 13. This court has held in the past that where there is no power to punish there can be no power to try. See R v Letsie Molapo 1985-90 LLR 223 AT 224. In that event therefore, it is clear that the magistrates dealt with matters that were well beyond their jurisdiction.


  1. The magistrate in the Nkalai review incorrectly assumed that he could try the accused, and as regards sentence, commit them to this court for sentence in terms of S. 293 (1) of the CPE Act 1981. That was a misdirection. S. 293 (1) only applies where the magistrate had power to try in the sense that he had jurisdiction on the subject matter as well as the power to impose the appropriate punishment.


  1. Now, it was submitted by the Director of Public Prosecutions that the issue of jurisdiction was determinative of the entire proceedings, and what he consistently referred to as the "so called constitutional issues" should not be gone into. Mr. Mohau, on the other hand, submitted


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that it was not possible to refrain from dealing with the constitutional issues in this case as the issue of jurisdiction was not determinative.


  1. It is the correctness of these submissions that I must decide. The contention by the Director of Public Prosecution finds support in the Constitution itself. Section 22 of the Constitution confers on the court the power to enforce the protective provisions contained in sections 4 to 21 inclusive of the Constitution, which have been referred to as the Chapter II rights. S. 22(2) provides that:-


"provided the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under ;any other law."


  1. Although S.22 of the Constitution deals with the situation where the court enforces the Chapter II rights on the petition of an individual, it is my humble view that the limitation contained in the above proviso would also apply to the situation such as automatic reviews.


  1. There is further support for the contention of the Crown in the constitutional common law developed by the Court of Appeal. See Khalapa v Commissioner of Police and Another 1999-2001 LLR 106 at 111 where Gauntlett JA said:

"It is again an important principle of constitutional litigation that a court will not determine a constitutional question where a


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matter may properly be adjudicated on another basis. Its African genesis is a single sentence by Kentridge AJ in S v Mhlungu [995 (3) SA 867 (CC) at 895 E:


"I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without leaching a constitutional issue, that is the course that should be Followed."


........................this Court, in its judgement in Sekoati v President

of the Court Martial C OF A (civ) 18/99, 9 November 1999) adopted the same approach (at p. 10)"


The test has been put somewhat differently, namely that where it is

possible to decide the matter on any other ground other than the constitutional ground, that course should be followed.


  1. It appears to me that whether we approach the matter from the point of view of adequacy of a non-constitutional remedy or of the possibility of deciding the issue on a non-constitutional basis the result is the same. It appears undesirable to try to define in what circumstances it would be appropriate to venture into a constitutional enquiry, in addition to a non-constitutional one. Each case must depend on its own facts.


  1. Mr. Mohau submitted that it was not possible to avoid the constitutional enquiry for the jurisdiction issue was not determinative of the problems arising from these reviews. He submitted that there are


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cases that are likely to arise on a daily basis and to merely set aside the proceedings tor want of jurisdiction on the part of the magistrates will not resolve the issue. He points out that no magistrate, not even the chief magistrates would have the necessary penal jurisdiction and consequently no power to try stock theft cases; and in the meantime anarchy would prevail.


  1. But the Stock Theft Act as amended confers jurisdiction on the Central and Local Courts (Basotho Courts) to try cases under the Act. Section 14 A reads:


"notwithstanding any other law, a Central or Local Court shall have jurisdiction to try any of the offences under this Act".

  1. Mr. Mohau submitted that the conferral of jurisdiction on the Basotho Courts in respect of offences attracting penalties as severe as those decreed by S. 13 of the Act would engage the right to a fair trial conferred by S. 12 of the Constitution. Mr. Thetsane on the other hand submitted that those courts ordinarily tried the Stock Theft cases independently of the Act.


  1. As will be evident later in this judgment, the propriety of conferring jurisdiction on the Basotho Courts does raise constitutional issues of propriety as submitted by Mr. Mohau. In that event, therefore, any attempt to avoid one constitutional enquiry leads us inescapably to another problem of a different type. It appears to me, therefore, that it


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is not possible to adequately address issues arising herein without resort to the constitutional issue.


  1. The Director of Public Prosecutions, however, had another string to his bow. It was that this being an automatic review it was not appropriate to deal with constitutional issues. He submitted that we are confined only to enquiring whether the proceedings are in accordance with real and substantive justice.


  1. This argument loses sight of the real purpose of automatic review. Magistrates are required to conduct proceedings before them fairly and in accordance with the precepts of both formal and substantive justice. The more severe the sentence, the greater the need tor supervision that those precepts have been observed. It is for this reason that in such cases these proceedings are brought for review to this court.


  1. Section 68(1) of the Subordinates Court Act 9 of 1988 (as amended) provides that, where the proceedings are in accordance with justice, in the case of a review by a judge, the judge shall "endorse his certificate to that effect upon the record of such proceedings and return it to the magistrates court". S. 68 (2) and (3) on the other hand reads:


"if upon considering the proceedings it appears to the .......judge.... that the same are not in accordance with justice or that doubts exist whether or not they are in such accordance:


a) .................................


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b)the judge may

i) alter or reverse the conviction or increase or reduce

or vary the sentence of the court which imposed the

punishment


ii) .............................


  1. If in any case the judge desires to have any question of law or fact arising in any such case argued at the bar, he may direct the same to be argued by the Director of Public Prosecutions and by such other person as the judge may appoint." (my emphasis)


  1. In my humble, opinion the powers conferred on a reviewing judge are wide indeed. The scheme of the automatic review provisions is intended to provide an accused, especially an un-represented accused, with additional safeguards that his trial is fair substantively and procedurally. The un-represented accused should never under our law feel that because of his inability to secure services of counsel his guilt is a forgone conclusion.


  1. Now, since the enactment of the Constitution the fairness of any trial must be measured against the right to fair trial contained in Section 12 of the Constitution. The reviewing judge is obliged to consider the matter on the basis of the ordinary statutory or common law precepts. Hut he must go further and consider whether the proceedings measure up to a fair trial under the Constitution of the Kingdom. A reviewing judge will always be guided by the limitation earlier referred to, namely


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whether the non-constitutional remedy is adequate or whether it is possible to decide the review without resort to constitutional principles.


  1. I respectfully adopt the remarks of Mahomed AJ (as he then was) in the Namibian case of S.v Acheson 1991 (2)SA 805 at 813:


    1. "the constitution of a nation is not simply a statute which mechanically defines the structures of government and relations between government and the governed. It is the "mirror reflecting the national soul", the identification of the ideals and aspirations of the nation, the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the constitution must therefore preside and permeate the process of judicial interpretation and judicial discretion......"


  1. It follows that the argument advanced by the Director of Public Prosecutions cannot be sustained. It misconceives the purpose of review, the power and responsibility of this court as a reviewing court.


  1. It, therefore, proves convenient to proceed to deal with constitutional issues arising, starting with the issue of jurisdiction in its constitutional sense. As earlier stated, the contention was that S. I4A, conferring jurisdiction on the Basotho Courts, violates a right to a fair trial. The argument was that the penal sections of the Act decree very severe sentences. Such sentences are beyond the normal penal jurisdiction of the Basotho Courts; these courts are manned by court presidents the majority of whom have no legal qualifications whatsoever. Mr. Mohau


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urged us to find that a right to a fair trial is necessarily threatened if an accused appears before these courts with the risk that he may be sentenced to the minimum sentence.


  1. There is merit in this argument. The principles underlying a fair trial alone require that a presiding officer shall be conscious of them in order to ensure that they are applied and enjoyed by any particular accused appealing before a court. Training is a major component for the attainment of the necessary knowledge. It will not help, therefore, that a judicial officer is perfectly honest and impartial in the exercise of his duties if he is not aware of what those duties entail. To take but one example, a fair trial procedure as developed in this jurisdiction is that an accused shall be advised of his right to legal representation; assisted in conducting his defence where the need becomes apparent; advised of the right to call witnesses etcetera. See Mahlaku Letsaba v The Magistrate Leribe and One C of A (CRI) No 2 of 2003 (unreported). All these matters, given their lack of training, the Presidents of the Basotho Courts may not be conscious of.


  1. To take the matter further, assuming an accused is represented before the Basotho Courts and the legal representative finds that the Chapter II rights of his client are being violated, and he raises the matter for the consideration of the court, in terms of section 22 (3) of the Constitution unless the subordinate court finds that the point raised is frivolous or vexatious, the matter should be referred to this court for determination, if a party so requests. Would the untrained President of the Basotho


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Courts be able to decide the issue of frivolity or vexatiousness? I do not think so.


  1. But the problems arising from the conferral of penal powers of the magnitude being considered under this Act are more profound than the issue of a fair trial. They are institutional by their very nature. Section 7 of the Central and Local Courts Proclamation 62 of 1938, which establishes these courts provides as follows:-


"Every Central and Local Court shall have and may exercise criminal jurisdiction to the extent set out in its warrant and subject to the provisions of this Proclamation......."


  1. Section 10 of the Proclamation reads:


"The Minister, with the concurrence of the Chief Justice, may by order confer upon all or any Central and Local Courts jurisdiction to enforce all or any of the provisions of any law specified in such order, subject to such restrictions and limitations, if any, as the Minister with the concurrence of the Chief Justice, may specify." (My emphasis).


  1. Both sections 7 and 10 are structured in such a way that the jurisdiction of the Basotho Courts in criminal matters and in the enforcement of any statutory provisions is carefully controlled and monitored. The Chief Justice plays an important role in this process as an overall administrator of the courts, conversant with the staffing and training


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aspects of these institutions. It is for this reason that the Proclamation enables the Minister, with the concurrence of the Chief Justice, to discriminate between the courts that may be given the power to enforce statutes. The aptitude of any President is a significant determining factor in that exercise.


  1. The requirement that the principles of a fair trial be observed is enforced more rigorously in proportion to the severity of the sentences prescribed or likely to be imposed. It is for this reason that in this court where severer sentences are likely to be imposed because of the grave nature of offences triable here, it is a requirement that an accused should be represented. If he is impecunious counsel is briefed for him pro deo. The sentences prescribed by the Stock Theft Act necessitate the invocation of that rigorous standard of what would be a fair trial and I am not satisfied that all the Central and Local Courts make the grade.


  1. I am of the humble opinion that the right to a fair trial provided in Section 12 of the Constitution is not an end in itself. It is a means to an end. That end is the protection of the right to personal liberty enshrined in Section 6 of the Constitution.


By a right to a fair trial the Constitution seeks to ensure that personal liberty should not be curtailed otherwise than after processes that are beyond suspicion. It is for this reason that the longer the sentence likely to be inflicted on the individual, the higher the yardstick for a fair trial.


  1. It is not without significance that the Central and Local Courts do not administer an oath. Witnesses before those courts are only


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admonished to speak the truth. Rule 17(2) Basotho Courts (practice) and Procedure Rules provides that "Oaths shall not be administered to witnesses in the Basotho Courts".


  1. Part 7 of those Rules provides for the Criminal Procedure to be followed. Part 7 consists of (24) twenty-four rules. Compare that with the 345 sections in the Criminal Procedure and Evidence Act of 1981 that applies in the ordinary courts.


  1. 47. The decision of the Court of Appeal in Lenka v Rex C of A (CRI) No.2 of 2004 (unreported) teaches us that this comparison is not without significance. At page 4 Plewman J.A said:


"what was recorded was her own understanding of what they had said. That is not evidence at all. Section 220 of the Criminal Procedure and Evidence Act provides as a prerequisite to admissibility that evidence must be given on oath. The record is therefore not a proper record and the magistrate failed to properly record the evidence. That is a fatal irregularity."


  1. That also reflects the common law position. There is a lot of jurisprudence behind both the Criminal Procedure and Evidence Act and the common law tailored to meet the requirements of a fair trial. All this jurisprudence is not available to the Central and Local Courts.


  1. Now, in conferring upon the Central and Local Courts the power to deal with the Stock Theft Act despite its far reaching consequences to


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the liberty of the individual, the legislature has tailed to take into account these inherent institutional features of the Basotho Courts which make such courts, sui generis. The sentences that were prescribed for the Basotho Courts in the Proclamation leave me with no doubt that these courts were intended to deal with minor offences.

.

  1. Besides, the very Proclamation establishing the Basotho Courts enshrines the principle of proportionality that is so central to the sentencing process. Section 11 provides that these courts may inflict punishment:


".. provided that such punishment is not repugnant to natural justice and humanity; and the fine or other punishment shall in no case be excessive but shall always be proportionate to the nature and circumstances of the offence and the circumstances of the offender."


  1. It is these humane, proportionate sentences that compensate for lack of legal training and clothe these courts with the necessary institutional legitimacy. The ordinary Mosotho, knowing these courts and their personnel, is more likely than not to be outraged should these courts impose sentences that are spelt out in the Stock Theft Act. Rather than enhancing their image, these penalties are likely to evoke public scorn, anger and bring the administration of justice in these courts into disrepute.


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  1. In 1995 the then Minister of Justice increased the penal jurisdiction of the Basotho Courts without the concurrence of the then Chief Justice. That incident has been a subject of judicial comment in this court. In the matter of The Law Society of Lesotho v The Prime Minister Pakalitha Mosisili NO and 2 Others, constitutional case No.2/2004, (unreported) this court made the following comment, at p.9:


".........it seems that the Minister of Justice did not act lawfully when he increased the criminal jurisdiction of the Local and Central Courts in 1995 without the written concurrence of the Chief Justice as required by Section 10......... The jurisdiction was increased over the objections of the Chief Justice contrary to Section 10 of the Local and Central Courts Proclamation 62 of 1938."


  1. While it is not strictly necessary, nor desirable, for the present purposes to decide the effect of the warrant by the Minister in 1995 as this is not before us, it appears to me that the Central and Local Courts' increased penal jurisdiction is itself not supportable and may be open to challenge.


  1. The fact that the increased jurisdiction of the Basotho Courts is introduced by statute (Stock Theft Act) does not insulate the said increase from attack both under the Proclamation which clearly circumscribes how the increase should be effected, and under the Constitution. The prerequisite circumstances under which the Proclamation permits an increase in the jurisdiction of the Basotho


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REVERSAL OF ONUS: S.3(l)


58) Mr. Mohau submitted that S.3(l) of the Act (as amended) fully set out earlier, violates the right to be presumed innocent in terms of S.12 (2)(a) of the Constitution that reads:


"Every person who is charged with a criminal offence (a) shall be presumed to be innocent until he is proved or has pleaded guilty."


He submitted that it could not be said that the reversal of onus was reasonably necessary to assist the prosecution in prosecuting offenders. He submitted that the present provision goes beyond merely shifting the evidential burden, and amounts to requiring the accused to prove his innocence as the section requires the accused to prove the most significant element of the offence. He referred us to Attorney General Hong Kong v Lee Kwong- KUT 1993 (3) ALL ER 939 at 940.


  1. The Director of Public Prosecutions conceded Mr. Mohau's argument.


  1. What I found to be a more compelling and profound ground of objection to the S.3(l), however, rested on a different basis raised by the court with both counsel during oral argument. It is this, that S.3(i) appears to criminalize any acquisition of" stock made otherwise than at the public auction, irrespective of whether there is proof, or reasonable suspicion that such stock has been stolen. The only element of the offence under Section 3(1) is the absence of reasonable belief of the


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acquirer or receiver that the stock or produce or both are the property of a person from whom he receives them.


  1. In my humble opinion, the section as it stands would violate the individuals' rights contained in SAG (1) of the Constitution, which provides that:


    1. "every person shall be entitled to and (except with his own consent) shall not be hindered in his enjoyment of freedom to associate freely with other persons for ideological religious, political, economic, labour social, cultural and similar purposes." (My emphasis)


  1. Criminalizing possibly innocent activities has the potential to interfere with trade in stock as an economic activity and undermine the democratic dispensation. I do not think that a provision such as S.3(l) is necessary for any purpose at all in a democratic society.


  1. Assuming this court was to find that there was an omission, in that event I would have to investigate the propriety of reading in the words such as "stolen stock or stock in respect of which there is reasonable suspicion that it was stolen" after the words:


    1. "any person who in any manner, otherwise than at a public sale acquires or receives into his possession from any other person......"


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See: S v Manamela and Another, Director General intervening 2000 (5) BCLR 491 (CC.)


  1. The difficulty in the way of reading in the words referred to in the preceding paragraph of this judgment is that the result would be that I would he duplicating an offence already created in terms of S. 13(3)(d) of the Act which reads:-


A person who


    1. steals;


    1. attempts to steal;


    1. receives, knowing to have been stolen


d) is in unlawful possession without a satisfactory account

of such possession of,


e) conceals or procures the theft of;


f) illicity acquires or fails to show lawful means of acquisition of; stock or produce or both, as the case may be commits an offence."


  1. Other than that, Section 3(1) would exempt public auction, it is substantially similar to Section 13(3) above. This section fortifies my view that legitimate trade was being criminalized in section 3(1). That is not permissible.


ARK SENTENCES DECREED BY SECTION 13 OF THE ACT IN


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CONFLICT WITH S. 8 OF THE CONSTITUTION.


  1. Stock in general plays a very important role in the lives of the Basotho. Cattle, For example, are not just of economic value, but they also play a vital role in the ceremonies and in social institutions of the Basotho. At burials cattle are slaughtered for ceremonial purposes. Cattle are paid as bohali and their payment is, in customary law, regarded as an essential for the validity of customary marriages.


  1. The majority of Basotho men have lor many years been reliant, for their source of income, on employment in the mines of the Republic of South Africa. The number of Basotho employed in these mines has significantly decreased in the past few years. Farming has become their only viable option. Cattle play a crucial role in that regard.


  1. The high incidence of stock theft, however, threatens this only hope to legitimate stock farmers. The legislature, no doubt with the above stated matters in mind, was impelled to device means that would stem the tide. This is both legitimate and understandable. Something indeed needed to be done.


  1. What remains, however, is that Lesotho is now a constitutional democracy. She has adopted a Constitution enshrining a bill of rights in Chapter II. All activity, executive, legislative and judicial has to be measured against the norms and values articulated in the Constitution. The Constitution represents the national consensus of the way the


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nation has elected to be governed. In the words of Mahomed AJ in Acheson's case supra, it reflects the national soul.


  1. The question here arising is whether the legislature by enacting S.13 penalties violated the principles articulated in S. 8(1). The national consensus expressed in S. 8(1) is that


    1. "No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."


The very section clearly demonstrates in subsection (2) that a break with the past was contemplated. Conduct that was lawful immediately before the coming into effect of the Constitution, even though it might have offended vS.8(l), is excused and insulated from the rigours of S.8(l)


Section 8(2) reads:


    1. "nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in Lesotho immediately before the coming into operation of this constitution."


  1. The break with the past requires, therefore, that in the enactment of laws by the legislature; the treatment of individuals by the executive; and in the conduct of proceedings and imposition of sentences by the


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judiciary, the proscription under S. 8(1) shall henceforth pervasively govern and become a yardstick against which these activities are measured.


  1. In enacting this Constitution and building into it the provisions of S. 8(1), the framers of this Constitution were aware that it was intended to serve the society which by no means had become perfect. That within such society crimes would be committed was a real possibility. Appropriate consideration was given to this fact in the Constitution. But section 8(1) was to apply to all and sundry; the law abiding citizens and the criminal element within the society. The latter were as much part of this nation as the rest of us.


  1. It is against this background therefore that we need to examine the sentences decreed by section 13, and I proceed to do so.


THE TEST


  1. Counsel on both sides agreed on the following:


    1. that minimum sentences are not per se unconstitutional;

    2. that the minimum sentences will only be unconstitutional if they are so grossly disproportionate regard being had to what would objectively have been a fair and just sentence.


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  1. In the Canadian case of Smith v The Queen 1988 LRC (const) to which Mr. Mohau referred us, Lamer J puts the matter in the following manner:


"the test for review under section 12 of the Charter is one of gross disproportionality because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unlit having regard to the offence and the offender as to be grossly disproportionate."


  1. In the matter of S v Vries 1996 (12) BCLR 1996 (Nm) Frank J, approving the approach in the Canadian cases, said the following at pp.1675- 1676:


"The Canadians have evolved a set of principles which in my view is the only sensible approach once it is accepted that a sentence may in general be acceptable and constitutional but in a particular case be unacceptable and unconstitutional. From a reading of the Canadian cases of Smith v The Queen, R v Coltz, and R v Kumar mentioned above; the following may be said to be their approach.....................................


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      1. A statutory minimum sentence of imprisonment is not perse unconstitutional.


      1. It will be unconstitutional if it prescribes imprisonment: as punishment, which is grossly disproportionate to circumstances of the offender and the offence.


      1. The section 12 test for "gross dispropotionality" is to be applied first with respect to the offence and the offender before court, and then with respect to hypothetical cases which.........can be foreseen as likely to arise commonly (R v Kumar 180. see also Smith and Goltz cases)."


1 am in respectful agreement with Frank J that this is the correct approach and that it is eminently sensible.


  1. In the South African case of S v Dodo 2001 (5) RCLR 423 (CO, to which the Director of Public Prosecutions referred us, the approach in Smith's case was quoted with apparent approval. Ackermann J went on to state in relation to the case before him that "..........it is sufficient to hold that the legislature is not empowered to compel any court to pass a sentence which is inconsistent with the constitution."


  1. In Zimbabwe, the Supreme Court also applied the same test, namely whether the sentences are grossly disproportionate. In the matter of S v Arab 1990 (I) ZLR 253 (SC) Dumbutshana CJ, dealing with the


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mandatory 3 years imprisonment sentence under the Precious Stones Trade Act 1978, had the following to say:-


"The minimum penalty prescribed by S. 3 (2) can only be found degrading punishment if it is grossly disproportionate...........of course if a sentence is grossly disproportionate it offends against society's standards of" decency and infringes S. 15(1) of the Constitution."


Provisions of section 1.5(1) of the Constitution of Zimbabwe are identical with the provisions of S. 8(1) of the Constitution of Lesotho.


  1. I have found it necessary to refer to cases decided in other jurisdictions only to dispel any misconception that might develop that our decision has been influenced by our personal prejudices, and that we have turned those into legal principles.


Fatane and Nkalai's Reviews


  1. It appears to me that the cases of the accused in these reviews are representative of the typical cases that are likely to arise frequently in this Kingdom. It becomes necessary therefore to investigate whether in such circumstances it will be constitutional to impose the statutory minimum sentences imposed under S13.


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  1. Mr. Mohau submitted that the sentences are so grossly disproportionate that they should be struck down as offending against the provisions of S.8(l) of the Constitution.


  1. The Director of Public Prosecutions, however, approached the matter from a different angle. He submitted that the reference in S.3 of the Act as amended, to penalties prescribed under Section 13 was made erroneously. He submitted that a receiver under S. 3 of the Act is exposed to the same sentences that are prescribed for robbery, which is a more serious offence. He submitted that this is absurd and the absurdity becomes even more glaring when one considers that the definition of theft includes a receiver. Theft is punished under S. 14. Section 14 reads as follows:-


"unless otherwise provided in this Act, a person who contravenes a provision of this Act commits an offence and is liable to


in a case of first conviction


    1. a fine not less than M7,000 and not exceeding M14,000

    2. imprisonment for a term not less than three years and not exceeding seven years

(i) in the case of second or subsequent conviction -

a fine not less than M15.00.00 and not exceeding M30.000.00


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ii) imprisonment for a term not less than seven years and not exceeding 14 years; or

iii) both.


83. The Director of Public Prosecutions submitted that it would be absurd to read the Act in such a way that people who have committed the same offence have different minimum penalties prescribed for them. He submits that could never have been the intention of the legislature. He therefore, urged upon us to find that where in Section 3(1) and (2) there is a reference to penalties in Section 13, Section 14 was intended.


He referred us to the case of Venter v Rex 1907 (2) TS 910 at 914 -


915.


84) It is the correctness of this submission that I must determine. It is to be noted that Section 3(1) and (2) were introduced by the 2003 amendment. The original section 3(1) proscribed acquisition of stock, produce or both by a person unless he shall have reasonable belief that the stock or produce was the property of one who disposes of the same. It was not stated in so many words that contravention of the section would be an offence.


85) Section 3 (2) on the other hand was worded in much the same way as it stands presently, except that after the words without a warrant the amendment introduced the words that "........if such person is unable to give a satisfactory explanation of such possession he commits an


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offence and is liable on conviction to the penalties set out in section 13."


86) With the specific reference to the penal provisions in Section 13 made in section 3 of the Amendment, must he contrasted the provisions in respect of which no reference to a penal clause is made. These include Section 4, which deals with registration of stock; Section6, which deals with tampering with marks of stock or with produce; and S 9, which deals with conveyance of stock. These would attract penalties under section 14. (the general penal clause).


87) Sections 4 and 6 were not initially the only provisions the contravention of which attracted the penalties under section 14. There were other less serious offences that attracted sentences under section 14. But with the 2003 amendment this was changed.


They were the following


a) Section 5 that set up a regulatory framework for marking of stock and made it an offence to use certain marks, (section 5)(5)). The 2003 amendment still proscribed those marks but the contravention of the new section now attracts the penalties under section 13.


b) The original section 8 made it an offence to dispose of stock without a beweys. There was no reference to the penal clause and therefore S. 14 applied. But the amendment deleted subsection (9) of section 8 which provided that


"A person who:-


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a) contravenes a provision of this section; or

b) makes a false statement in a beweys commits an offence."


The amendment substituted the following subsection

"A person who:-


a) makes a false statement in a beweys commits an offence

b) .............

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

    2. Contravenes this section,

Commits an offence and is liable on conviction to the penalties set out in Section 13."

Section 9 made it an offence to convey stock without a beweys and made no reference to a penalty. Then S. (14) applied. Hut the amendment changed all that. The "conveyance offences" now attract penalties under Section 13.


88) I have set out this history and contrasted the provisions to highlight the fact that the reference to the penal sections in the amendment appears to be deliberate. It recurs so often that it is difficult to attribute its reference to a slip of the pen. I am satisfied, therefore, that there is no lapsus calami contended for by the Director of Public Prosecutions.


89) It must also be noted that the new section 13 penalties, which are presently under review were introduced by the very 2003 amendment.


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It is inconceivable therefore that when the drafts-man referred to these penalties he could have had section 14 in mind.


90) The Director of Public Prosecutions, however, very fairly conceded that if his argument as to a lapsus calami failed, then the penalties prescribed under S. 13 are undoubtedly grossly disproportionate. I think this concession is a proper one. Not even a person convicted of a murder would be exposed to penalties prescribed in section 13. These sentences are so grossly disproportionate that they are likely to outrage the sensibilities of right thinking members of the community. Even a law abiding citizen would find the law unjust, were a first offender who pleads guilty, and all stolen stock recovered by the owner, to be sentenced to a period of 25 years imprisonment, or to pay a fine of M25,000.00.


91) There is another aspect to the sentences that are prescribed. There is no regard for the ability to pay the fine imposed. The sentences would be affordable only to the rich. The impecunious accused would have no option but to face imprisonment. Such a sentence, rather than improving the image of the administration of justice, brings it into disrepute. It has always been the approach of the common law as applied in this court that before a fine is imposed the means of the accused should be investigated, so that fines were not to be imposed that were beyond the reach of the accused. The approach in England is the same. See Magistrates Courts sentencing guidelines 1st January 2004 based on the Criminal Justice Act 1991.


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The Koatake's Review


92) The Director of Public Prosecutions insisted that as far as robbery is concerned there is nothing wrong with the sentences. He submitted that robbery is a serious offence and the sentences are an appropriate reflection of the gravity of the offence.


93) Undoubtedly, robbery is a serious offence and the sentences imposed should necessarily be severe. The question, however, is whether all robberies are the same. Experience teaches us that there are different kinds of violence and different consequences that attach thereto. A robbery committed by a threat of violence and one sheep stolen, is not the same as a robbery committed with guns and victims having been hurt in the process.


94) We do not live in a perfect society. Even those who commit robberies at times are rehabilitated. A punishment that fails to recognize these facts is not realistic. In a case where a robbery is committed this court is most likely than not to impose a prison term of no more than \5 years imprisonment. A period of 25 years, in my humble opinion, is too grossly disproportionate even for the offence involving violence. It must be borne in mind that given the state of the economy and low or non existent income for some households in Lesotho, M25,000.00 is not a realistic option.


95) On being asked what he would consider the appropriate sentence, but for the existence of the S. 13 penalties, the Director of Public


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Prosecutions stated that 10 years would be what he would ask for in respect of a robbery. That is a reasonable view, contrasted with the twenty-five years sentence in section 13.


96) I therefore conclude that the minimum penalties decreed by Section 13 engage the provision of Section 8(1) of the Lesotho Constitution.


AN ANALYSIS AS TO APPROPRIATE ORDERS


97) Section 2 of the Constitution provides that:-


"This constitution is the supreme law of Lesotho and if any other law is inconsistent with the constitution, that other law shall to the extent of the inconsistency be void."


Section 4(1) provides that the Chapter II rights:


"..........shall have effect for the purpose of affording protection to

those rights and freedoms subject to such limitations of the protection as are contained in those provisions..............."


98) It would have been apparent that S.8 of the Constitution does not contain any limitation of the rights conferred. But even so, we need to recall the proper approach where a statutory provision is being reviewed in the light of the Constitution. In Van Rooyen and Others vs S and Others 2002(8) BCLR 810 (CC) at 837 para 88 the following is stated:


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"that the legislation must be construed consistently with the Constitution and thus where possible, interpreted so as to exclude a construction that would be inconsistent with judicial independence. If held to be unconstitutional, the appropriate remedy ought, if possible, to be in the form of a notional or actual severance, or reading in so as to bring the law within acceptable constitutional standards. Only if this is not possible, must a declaration of complete invalidity of the section or subsection be made."


I respectfully adopt this approach.


ORDER: SECTION 3(1) AMENDMENT


99) None of the options are available to me as I have tried to set out in some detail in the analysis of this provision. I therefore find that it cannot be saved and the order I make is that it is struck down as invalid in its entirety.


ORDER: SECTION 13 AMENDMENT


100)In S v Vries supra the following approach was adopted. At page 1676 -1677 the following appears


(3) "where a statutory minimum sentence results in a shocking sentence there are four options namely;


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a) to declare the provision of no force or effect for all purposes;

b) to declare the provision to be of no force or effect only in a particular class of cases i.e. to down-read it;

c) to decide the provision to be of no force and effect only in a particular case before the court. The court must then enquire whether it will be shocking; with respect to hypothetical cases which..........can be foreseen as likely to arise commonly. If the answer to the second enquiry is in the affirmative the court must act in one of the respects set out in 3(a) (b) or d)above. If the answer to the second enquiry is in the negative the court must act as set out in 3 (c) above."


101) I have already said the sort of cases that we are dealing with are likely to arise commonly in Lesotho. However, I propose to deal with the matter in such a way that the section is preserved and sever the bad from the good so as to bring the section in conformity with the Constitution.

Were I to declare section 13 of no force or effect for all purposes, that would leave the provisions of S. 14 operative in respect of all offences. This is the general penal provision.


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102) I am not entirely satisfied that striking down S.13, thereby bringing S.14 into operation would be a sound option. I say so tor two reasons. First it would appear to me that would be at variance with the intention of the legislature. The legislature appeared to have intended that different penal provisions would apply to different transgressions.


103) But by severing the bad part of the section and leaving the good the intention of the legislature is preserved.


104) The second reason for not making a total declaration of invalidity, triggering the operation of the general penal section, is that the sentences provided under S.14 themselves are open to constitutional objection that they engage the provisions of S.8(l) of the Constitution.


105) The most sensible way to deal with the matter is to sever and strike out the following from the section.


Section 13 (i) the words "not less than M25,000.00 and" together with the words "not less than 25 years and"


Section 13(ii) strike out the following words "not less than M50,000.00 and" together with the words "not less than .50 years and"


ORDER: SECTION 14


106) As will become evident later in this judgment in the matter of Koatake the facts point to the irresistible conclusion that the only proper verdict


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is one of receiving stolen property knowing it to have been stolen. This is an offence created by Section 13(3)(c) of the Act. As the contravention of S. 13 (3) (c) attracts sentences under S. 14, the minimum sentences under S.14 also necessarily have to come under scrutiny.


107) It is not inconceivable that cases will arise, where a person who is a first offender; who pleaded not guilty; who has no previous conviction and who is a minor of say eighteen years of age receives one sheep. Can it legitimately be said that it is not grossly disproportionate to sentence such an offender to minimum sentences set out under Section 14? I do not think so. I do not consider that a minimum sentence prescribed by S.14 can be said to take into account for penological purposes, the gravity of the offence and the personal circumstances of the offender.


108) Section 13 (3)(c) provides that a person who receives knowing to have been stolen, stock or produce or both, as the case may be, commits an offence. In Section 2, produce is said to mean "a whole or part of the skin, hide, horn, carcass, wool, mohair, ostrich egg, ostrich feather. The initial text before the 2003 amendment included milk. I do not agree that it could be said that even theft of an ostrich feather or a horn of a dead ox would justify an infliction of the minimum sentences prescribed under Section 14.


109)I am of the opinion that those minimum sentences are open to the same objection as those raised in respect of Section 13, even in respect of repeat offenders. They are clearly grossly disproportionate when


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one has regard to the nature of the offences that have been created in the Act that attract such minimum sentences. I am not aware that for example a horn of a dead ox has any value at all. Receiving a horn of a dead ox might very well be the sort of case covered by the principle that deminimis causa non curat lex. The same goes for an ostrich feather.


110) The order that I propose to make is along the same lines as that in respect of Section 13. And it is the following


Section 14 (a) (i) by deleting the words "not less than M7,000.00 and" (ii) "not less than 3 years and"


Section 14(b)(i) strike out the following words "not less than M15,000.00 and" (ii) "not less than seven years and"


111) In conclusion one can only hope that in the making of laws the legislature, will consult the relevant stakeholders and affected state institutions before making laws with far reaching consequences. The Director of Public Prosecutions informed us that he was not aware of Stock Theft Act 2000 as amended and its defects until he was confronted with them in court. He was never consulted when it was enacted. That is to be regretted. It is to be hoped that where possible consultations on a broad basis should be undertaken. The courts too in matters of jurisdiction have a pivotal role to play and their contribution would significantly enhance any legislative product that affects this sphere of their activity


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SPECIFIC ORDERS ON THE PARTICULAR REVIEWS


112) A few prefatory remarks are here called for. I have found that the magistrate's court had no jurisdiction to deal with Stock Theft cases under the Act given the severe sentences decreed by Section 13. However, I have also found that those sentences were not constitutional and I have made specific orders to bring the Act in line with the Constitution. It is common cause that the jurisdiction to try Stock Theft cases has always resided in the magistrate court. With the striking down of the minimum sentences the status quo has been restored. That is in line, not just with the previous position, but it also accords with the intention of the legislature.


113) I now have to decide the proper course to follow in relation to the present reviews and to give a clear direction in respect of similar cases that have already been decided under that Act before the minimum sentences were declared unconstitutional.


114) The power of the court to make orders is conferred by Section 22(2) of the Constitution, which reads


"(2) The High Court shall have original jurisdiction


a)..................................

b)...................................

and may make such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing the


46


enforcement of any of the provisions of Section 4 to 21 (inclusive) of this Constitution."


115) The Chapter II rights in respect to which S.22 (2) relates are set out in brief in S.4(l) of the Constitution. The said Section concludes with the following proviso


"The provisions of this chapter shall have effect for the purpose of affording protection to those rights and freedoms, subject to the limitations of that protection as are contained in those provisions, being limitations designed to ensure that enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest." (my emphasis).


116) It appears to me, therefore, that in making the orders and giving directions as to what is appropriate for the purposes of enforcing the Chapter II rights I must also be guided by the knowledge that the enjoyment of these rights should not prejudice the rights and freedoms of others or the public interest. Had the S.13 minimum sentences been constitutional the proper order would have been that the trials of the accused were a nullity and the proceedings set aside.


117) But if I give a purposive interpretation to SS.22(2) and 4(1) of the Constitution, I am satisfied that an order nullifying the proceedings would prejudice public interest and /or rights of the innocent victims of the offences committed by these and other accused.


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118) I come to the conclusion therefore, that the proceedings pursuant to which the accused were tried and convicted, should not be nullified. I am fortified in this conclusion by what MAHOMED CJ. said in a Namibian case of S v Shikuga 1997 (9) BCLR 1321. He said at p. 1327 E-H:


"........accused persons who are manifestly and demonstrably guilty should not be allowed to escape punishment simply because some constitutional irregularity was committed in the course of the proceedings, but in circumstances which showed clearly that the conviction of the accused would inevitably have followed even if the constitutional irregularity relied upon had not been committed. There is, however, a competing consideration of public interest involved. It is this: the public interest in the legal system is not confined to the punishment of the guilty persons, it extends to the importance of insisting that the procedures are adopted in securing such punishments are fair and constitutional and that the public interest is prejudiced when they are not."


119) This approach which I respectfully endorse, was approved by my brother Teele AJ in the matter of Rex v Rakoti'and one; Review case No 110/2004 (unreported). I am satisfied that public interest would not require the insistence that the proceedings be set aside for what appeared to be want of jurisdiction before the constitutionality of the sentences decreed by the Act was determined.


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120)Having said this I therefore, make the following orders in respect of each review.


Fatane's Case


121) Taking into account that he pleaded guilty; he was the first offender and all cattle were recovered I am of the view that a sentence of three years imprisonment half of which is suspended for three years on condition that he does not commit an offence involving theft as an element will meet the justice of the case. The proceedings are otherwise confirmed as being in accordance with real and substantial justice. The charge is, however, amended to read S. 13(3)(f) instead of Section 3(1).


Nkalai's Review


122) The two accused in this review were 26 years of age; they pleaded guilty as a sign of remorse and they were first offenders. The two sheep, the possession of which they failed to give a satisfactory account were recovered. In all the circumstances a sentence of a fine of M 1000.00 or one year's imprisonment each in default of payment should meet the justice of this case. The proceedings are otherwise certified to be in accordance with real and substantial justice.


Koatake's Review


123) I need not burden this judgment with the analysis of the facts. I have carefully examined the record and I find that there is no evidence


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pointing to the accused as a person who stole the sheep and used violence. All indications, however, are that he received this stock with guilty knowledge of their theft. In all the circumstances a sentence of three years imprisonment without an option of a fine will meet the justice of this case. The proceedings are otherwise certified to be in accordance with real and substantial justice.


CONCLUSION


124) The conclusion at which I arrive is that Magistrates Court are proper courts with jurisdiction to try Stock Theft cases. The Magistrates in trying these cases should consider all the relevant factors that are customarily taken into account in imposing appropriate sentences. The fact that the legislature views Stock Theft cases in a serious light should no doubt; be taken into account in conjunction with other relevant factors. No factor standing alone can be decisive.


125) The history of sentences in Stock Theft cases will show that there has been a significant shift from severe punishments to more humane and enlightened sentencing policies. In England for example Stock Theft used to be a capital offence. That has since changed. And Lesotho as part of the global community and having inherited a civilization, it should not lag behind and inflict punishments in respect of Stock Theft offences that would make the 21" century resemble the medieval times.


126) One cannot comprehend for example, why the legislature would find it necessary that a person who fails to mark stock timeously should be


50


sent to prison for a period of 25 years or to pay a fine of M25.000.00 as the Stock Theft Act provides. It is not inconceivable that an ordinary Mosotho could fail to mark stock timeously due to over sight. Equally mind boggling is the fact that under the Act people that are suspected of having committed violent crimes are required to pay prohibitive bail deposits of M20,000.00. All this in the face of the presumption of innocence enshrined in the Constitution.


127) There is no doubt in my mind that the legislature needs legal advisors and legal staff who are prepared to give genuine and constructive advice to it to avoid the making of embarrassing legislation. It is not right that a piece of legislation should give the irresistible impression that it was conceived in anger. Not even righteous anger should be allowed to cloud judgment. The good value of such legislation is thereby over shadowed by such detect.


128) The drafting of this legislation also does not inspire confidence. There were many errors; for example the initial text instead of referring to progeny of stock referred to the young of stock. There has been duplication of offences and sections. The Director of Public Prosecutions even had to argue that sections had been mixed up. He argued this in an attempt to persuade court to the view that all that need be done is remove or transfer sections erroneously appearing in the amended Stock Theft Act to the robbery part where they belonged. His conclusion being it could not have been the intention of the legislative that receiving and being in unlawful possession of dairy


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products tor instance should attract exceedingly higher penalty than would the stock theft.


OVERALL ORDERS


129)The orders that I make are as follows:


  1. Section 3(1) of the Stock Theft Act 2000 as amended is hereby declared invalid and as being in conflict with Section 16(1) of the Constitution alternatively as being in conflict with Section 12 (2) (a) of the Constitution.


  1. The minimum sentences are hereby declared unconstitutional as they violate the provisions of Section 8(1) of the Constitution and the minimum sentences are severed from the provisions of Section 13 in the following manner:

(i) in Section 13 (i) by deleting the words "not less than M25.000.00 and" together with the words "not less than 25 years and", and;




ii) in Section 13(ii) by striking out the following words "not less than M50.000.00 and" together with the words "not less than 50 years and"


  1. The minimum sentences under Section 14 are hereby declared unconstitutional as they violate the provisions of Section 8(1) of


52


the Constitution and the minimum sentences are severed from the provisions of Section 14 in the following manner:


Section 14 (a) (i) by deleting the words "not less than M7,000.00 and" (ii) "not less than 3 years and"


Section 14(b)(i) strike out the following words "not less than M 15.000.00 and" (ii) "not less than seven years and"


  1. In respect of all cases that were determined before the 24 of September 2004 in which the minimum sentences that have been declared invalid in para b) and c) above were imposed, those sentences are set aside and the cases should be remitted to the respective magistrates to impose appropriate sentences in accordance with what has been stated in this judgment.


  1. The accused persons who are in custody in cases falling under b) and c) above are to remain in custody until the new sentences have been imposed and in imposing the new sentences the periods spent by the accused persons since their conviction to the date of the new sentences shall be taken into account


  1. The Director of Prisons is hereby directed to supply the Registrar of this court with the number of cases falling under paragraph b) and c) above not later than two months of the making of this order.


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  1. S. 14 A of the Stock Theft Act is declared invalid and in contravention of S. 12 of the Constitution.


M. L. LEHOHLA

CHIEF JUSTICE


I agree


W.C.M. MAQUTU

JUDGE OF THE HIGH COURT


I agree


M. E. TEELE

ACTING JUDGE OF THE HIGH COURT


For the Accused - Adv. K. K. Mohau

For the Crown - Director of Public Prosecutions

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