R v Nkoe (Rev. Case No. 10/04 CR 190/2004 Rev. Order No. 1/04 )

Media Neutral Citation: 
[2004] LSHC 27
Judgment Date: 
13 February, 2004

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IN THE HIGH COURT OF LESOTHO

In the matter between:

REX

vs

MOTLALENTOA NKOE

Review Case No. 10/04 CR 190/2004

Review Order No. 1/04 In the District of Maseru

REVIEW ORDER

13th February. 2004

This review came before me today, the 13th February 2004 in terms of Section 66 (b) of the Subordinate Courts Act 1988.

The accused was charged before the magistrate of first class powers of stealing twelve (12) sheep. The charge as framed by the Public Prosecutor

reads as follows:

"That the said accused is charged with contravening section 13 (b) (3) (a) read with Section 13 of Act No.5 of 2003 of Stock Theft."

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One would realize that from the reading of the charge, it is not clear what section 13 (b) (3) (a) to be read with section 13 is. I looked at section 13 (b) of Act 4 of 2000 only to find that it relates to tempering with bewys. The section has no (3) (a). It would have made sense if the charge was only made under section 13 (b) (3) (a) of Act 5 of 2003.

Section 2 of Act 5 reads:-

"The Stock Theft Act 2000 (hereinafter referred to as 'the Principal Law' is amended."

This means therefore that stock theft Act of 2000 as the Principal Law has been amended in most parts by Act 5 of 2003.

When the charge was put to him, the accused pleaded guilty and after an outline of facts a verdict of guilty as charged was returned. The accused was sentenced to M3000.00 or three years imprisonment of which half was suspended for three years conditionally.

On looking at the Act under which the accused was charged, it is clear that the Act also prescribed the penalties under section 14 of the Act (Stock Theft Act 2000). It reads thus:-

"Unless otherwise provided in this Act, a person who contravenes a provision of this Act commits an offence and is liable to -(a) in the case a first conviction

(i) a fine not less than M7000.00 and not

exceeding Ml4,000.00

(ii) imprisonment for a term not less than three years and not exceeding seven years."

We have been told that the accused was a first offender, that means therefore that section 14 (a) (i) is the relevant part when it comes to sentence. The proper section to have been read together with the section under which the accused was charged is section 14 (a) (i).

The anomaly of having drafted a defective charge can be cured by the provisions of section 158 of the Criminal Procedure and Evidence Act

9 of 1981, which reads:-

" Whenever a charge in respect of any offence is defective for want of the averment of any matter which is an essential ingredient of the offence, the defect shall be cured by evidence at the trial in respect of the offence proving the presence of such matter which should have been averred, unless the want of averment was brought to court before judgment."

Though this matter is before me on automatic review I would still have

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dealt with any irregularities on the verdict if any. But because there are no such irregularities, I am only going to deal with the sentence.

The Courts are there to interpret the law and give effect to such laws. I do not therefore think that there is a cure for acting outside the statute. The penalty has been prescribed under the Act and acting contrary to it would be a grave mistake.

The sentence therefore is varied to read M7,000.00 or three years imprisonment.

The magistrate will therefore have to call the accused before her and explain to him the change in respect of the sentence.

A. M. HLAJOANE JUDGE

CC: The Magistrate - Maseru Chief Magistrate O/C Police - Maseru O/C Prisons - Maseru

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CID Headquarters - Maseru

Director of Prisons

Director of Public Prosecutions