LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CRI) 09/2024
In the matter between:
RETŠELISITSOE THOAHLANE 1ST APPELLANT
TUMO THOAHLANE 2ND APPELLANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
CORAM: MOSITO P
SAKOANE CJ
MUSONDA AJA
HEARD: 17 OCTOBER 2024
DELIVERED: 1 NOVEMBER 2024
SUMMARY
Criminal law – Appellants charged and convicted in Children’s Court despite being adults – Appeal to the High Court dismissed – second appellant noted on basis of certified questions of law on competence of trial court to try – whether the trial is a nullity – Criminal Procedure and Evidence Act, 1981 sections 146 and 162.
JUDGMENT
SAKOANE CJ:
I INTRODUCTION
[1] The appellants (the father and son) were charged, convicted and sentenced after the offence of persistent sexual abuse of a girl child aged ten (10) years. The child was an orphan under their care. Each of them was sentenced to fifteen (15) years by the Subordinate Court sitting as a Children’s Court.
[2] They appealed both their conviction and sentences to the High Court (Banyane J presiding). The learned judge dismissed their appeal and confirmed the conviction and sentences.
[3] This being a second appeal in terms of section 8 of the Court of Appeal Act No.10 of 1978, the learned judge has certified the following questions of law to be answered by this Court:
“a) whether failure to plead lack of jurisdiction under section 162 of the CPEA or failure to apply for transfer of the matter to a court having jurisdiction affects validity of the judgment of the Children’s Court.
b) Whether section 146(3) of CPEA overrides the common law rule that a judgment issued by a court having no jurisdiction is void where the accused failed to apply for transfer of his case before commencement of trial.
c) Whether an accused person is entitled to an acquittal where charged under section 9 of the Sexual Offences Act, 2003 but the evidence established a single act of sexual intercourse.”
II DISCUSSION
[4] Mr Molapo for the appellants and Mr Rafoneke for the respondent are ad idem that since the issue of jurisdiction straddles both questions (a) they should be treated as one. But they part company when it comes to what the correct answer should be.
[5] Mr Molapo submitted that the offence for which the appellants were tried, convicted and sentenced is not triable in the Children’s Court. The reason is that the statutory offence of persistent sexual abuse under section 9 of the Sexual Offences Act No.3 of 2003 does not fall under the offences triable by the Children’s Court in terms of the Children’s Protection and Welfare Act No.7 of 2011 (hereinafter referred to as CPWA). He also urged that the charges were incompetent for want of personal jurisdiction over adults.
[6] Mr Rafoneke’s submission went in the opposite direction. He submitted that since the victim was a child under the care of the appellants, the Children’s Court had jurisdiction to try the offences because the appellants had betrayed the trust put in them to take care of her. The learned counsel put much store in Schedule I and II of the CPWA.
[7] The validity of the rival submissions should be tested on the anvil of the jurisdiction of the Children’s Court which is defined in section 133(1) of the CPWA as follows:
“Every Subordinate Court shall be a Children’s Court within its area of jurisdiction and shall have jurisdiction to hear and determine cases of children in need of care, protection and rehabilitation and charges as appear in Schedules I and II” (emphasis added)
[8] The offences in Schedule I are the following:
“Schedule I
Assault where grievous bodily harm has not been inflicted.
Malicious injury to property where the damage does not exceed M1000.00.
Any offence under any law relating to the illicit possession of dependence producing drugs where the quantity involved does not exceed 25 grams.
Theft, where the value of the property involved does not exceed M100.00
Any statutory offence where the maximum penalty determined by that statute is a fine of less than M300.00 or three months imprisonment.
Conspiracy, incitement or attempt to commit any offence referred to in this schedule.”
[9] The offences in Schedule II are these:
“Schedule II
Public violence.
Culpable homicide.
Assault, including assault involving the infliction of grievous bodily harm.
Arson.
House breaking, whether under common law or a statutory provision, with intent to commit an offence, if the amount involved in the offence does not exceed M20,000.00.
Robbery, other than robbery with aggravating circumstances, if the amount involved in the offence does not exceed M20,000.00.
Theft where the amount involved does not exceed M20,000.00.
Any other offence under any law relating to the illicit possession of dependence producing drugs.
Forgery, uttering or fraud, where the amount concerned does not exceed M20,000.00.
Any conspiracy, incitement or attempt to commit any offence referred to under this schedule”.
[10] On a plain reading of both Schedules, there is no reference to sexual offences. Punishment for sexual offences against children are provided for under Parts III and IV of Sexual Offences Act, 2003.
[11] Section 134(1) – (4) of CPWA provides for jurisdiction in proceedings involving a child in conflict with the law where same do not fall in Schedule I and II. It reads thus:
“134.(1) A court, other than a Children’s Court, has jurisdiction to try the case of an accused child where such child is charged with murder, treason or sedition or where he is charged with any other offence and –
- the likely sentence will exceed the jurisdiction of the Children’s Court;
- there are multiple charges in respect of the child concerned and any other court other than a Children’s Court has jurisdiction in respect of one or more of those charges; or
- a decision has been made under section 140 that there will be a joinder of trials.
- Where the Director of Public Prosecutions is satisfied that the circumstances referred to under subsection (1)(a) or (b) exist in respect of the matter involving a particular child, he may, prior to the commencement of the trial, refer the matter to the appropriate court for plea and trial.
- A Subordinate Court and a Children’s Court have concurrent jurisdiction in respect of matters in which a child is charged together with an adult and a successful application for joinder of the trials has been made under section 140.
- A court hearing the matter under this section must conduct the proceedings in accordance with the provisions of this Act and with due regard to the best interests of a child.”
[12] Section 140 addresses the issues of separation, joinder and transfer of cases in which a child is charged with an adult. It reads:
“Separation and joinder of trials involving children and adults
140. (1) If a child appearing in a Children’s Court is co-accused with an adult, the case of the adult concerned shall be separated from that of the child and is not subject to the provisions of this Act unless any person involved in the proceedings, including the child, his parent, such child’s legal representative and the prosecutor, before the commencement of the trial, may make an application to the court in which the adult is due to appear for a joinder of the trials concerned.
(2) A person making an application for joinder of trials to the court in which the adult concerned is to appear shall give notice to all parties concerned.
(3) The rules of the court to which an application as referred to in subsection (1) is made, relating to applications, time periods for applications and opposition of applications, apply to the provisions of this section.
(4) If a person making an application under this section has shown, on a balance of probabilities, that a miscarriage of justice or prejudice to the victim or victims of the alleged offence would otherwise occur, the court to which the application is directed, may order a joinder of the trial of a child and adult concerned, provided that the best interests of the child are duly considered.
(5) If a court makes a finding under subsection (4), the
matter before a Children’s Court shall be transferred to the court in which the adult is to appear.
(6) A court to which the matter has been transferred under subsection (5), shall act in accordance with the provisions of this Act in relation to the proceedings involving a child.”
[13] The scheme of the CPWA that appears from section 133 (on jurisdiction) and section on separation, joinder and transfer of trials in which a child is charged with an adult is that the criminal jurisdiction of the Children’s Court is confined to offences listed in the Schedules I and II. Where a child is charged for those offences together with an adult, the trials should be separated so that the adult can be transferred to another court for trial.
[14] The Children’s Court may order joint trials if: (a) no miscarriage of justice or prejudice to the victim of the alleged offence would not occur and (b) subject to due consideration of the best interests of the child.
[15] This means that the overriding consideration in the determination of the application for joinder of trials is the best interests of the accused child and not the prejudice to the victim(s) of the offence. This interpretation resonates well with the principle of the best interests of the child stated in section 4 as follows:
“(1) All actions concerning a child take full account of his best interests.
(2) The best interests of a child shall be the primary consideration for all courts ….in any matter, concerning a child.”
[16] Part XVI of the CPWA provides the manner in which a court should conduct proceedings in respect of a child in conflict with the law.
[17] In casu the appellants are adults. The first appellant was 56 years old and the second appellant was 21 years old when they were arraigned. None of them was a child at the time the alleged offence was committed. There was, therefore, no basis at all in law to arraign them before a Children’s Court. The Children’s Court lacked jurisdiction on two bases:
(a) the appellants are not children and
(b) the offence for which they were charged does not appear in Schedules I and II of the Sexual Offences Act, 2003.
DISPOSITION
[18] The result is that the trial is a nullity and no conviction and sentence can follow therefrom.[1] The question is whether the failure by the appellants to plead lack of jurisdiction in terms of section 162 or apply for transfer of the trial to a court of competent jurisdiction in terms of section 146 of the Criminal Procedure and Evidence Act, 1981 negate the finding that the trial was a nullity ab initio.
[19] In my respectful opinion, the two sections do not save the trial for two reasons. First, jurisdiction is a live issue throughout proceedings in the court of first instance and appellate court. The appellants as well as this Court can raise the points of jurisdiction. Secondly, section 146 covers the situation where the trial court has competence to try the offence. It does not confer upon the trial court a jurisdiction where it manifestly does not have it. Therefore, the sections do not help the case of the Crown. It is analogous to section 110(1) of South Africa’s Criminal Procedure Act 51 of 1977 which the Appellate Division[2] has interpreted to mean:
“Section 110 of the Criminal Procedure Act 51 of 1977 is mainly intended to provide for the situation where a particular court does have jurisdiction to try the offence but is the wrong court by virtue of some or other jurisdictional fact such as for example that the crime was committed outside the court’s jurisdiction. The section does not create substantive jurisdiction and cannot give a magistrate greater jurisdiction than what he has by law. It does grant territorial jurisdiction to a court which does not otherwise have it, purely on the grounds of the accused’s tacit acceptance thereof, in that he allows the trial to proceed without raising the point when he pleads.”
[20] Our view that the trial is a nullity was formed at the end of oral submissions by Counsel. Hence, we ordered that the appellants must be released immediately to go home. There was no warrant to delay their release to the end of the session.
[21] In view of the conclusion reached that the Children’s Court manifestly lacked personal and subject-matter jurisdiction over the appellants.
[22] I would therefore allow the appeals and answer the certified questions as follows:
a) Whether failure to plead lack of jurisdiction under section 162 of the CPEA or failure to apply for transfer of the matter to a court having jurisdiction affects validity of the judgment of the Children’s Court?
Answer: Yes.
b) Whether section 146(3) of CPEA overrides the common law rule that a judgment issued by a court having no jurisdiction is void where the accused failed to apply for transfer of his case before commencement of trial?
Answer: No.
c) Whether an accused person is entitled to an acquittal where charged under section 9 of the Sexual Offences Act, 2003 but the evidence established a single act of sexual intercourse.”
Answer: This question need not be answered.
Order
[22] In the result, the following order is made:
1. The appeals are allowed.
2. The convictions and sentences are set aside.
____________________________
S. P. SAKOANE
CHIEF JUSTICE
I agree
__________________________
K. E. MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree
_________________________
P. MUSONDA
ACTING JUSTICE OF APPEAL
For the Appellants: Adv. L.D. Molapo
For the Respondents: Adv. M. Rafoneke
Cited documents 2
Act 2
| 1. | Court of Appeal Act, 1978 | 50 citations |
| 2. | Children's Protection and Welfare Act, 2011 | 15 citations |