case No. 5/2002 Cri. 14/2002
HIGH COURT OF LESOTHO
Moeno Motlalepula Shelile
on 18th Day of February, 2002 by the Honourable Mrs Acting Justice
matter was placed before me on automatic review.
accused had appeared before the magistrate of first class powers
facing two charges; one of housebreaking with intent to steal and
theft and the other of theft common.
pleaded guilty to both charges whilst accused 2 pleaded guilty to
count one and not guilty to count 2. The Public Prosecutor withdrew
charges against accused 2 in count 2 and the Court accordingly found
Accused 2 not guilty and discharged him on that count.
Public Prosecutor them outlined the facts of the case on both counts.
In summing up the facts of the case in count one, the Prosecutor
outlined what the complainant would have told the Court; closing the
cafe the previous day and putting locks on the burglar door and
finding the shooter on the door cut the following day and property
missing in the shop.
then extract the passage that influenced the magistrate into
convicting both Accused on count one.
03/01/2001 she (investigating officer) got information which led him
to this accused. It was during the investigations pertaining to
accused 2 that he had to charge them for Count 1 as well; she had
interrrogated the Accused". Nothing more was said and the
Prosecutor went on to sum up the facts for count two.
could read from that quoted passage from the record, the facts did
not disclose any offence at all. The accused though they had pleaded
guilty were still entitled to be tried fairly by admitting the facts
which proved the intention to break, enter and steal. Worse still
there was nothing that connected the accused to the charge on the
facts as outlined.
C.J. as he then was in the case of Rex vs Motjela 1977 LLR I, clearly
showed that, although the then Section 235 (1) (b) of the Criminal
Procedure and Evidence Proclamation 59 of 1938 now Section 240 of the
Criminal Procedure and Evidence Act 7 of 1981 obviates the necessity
of calling evidence after an accused has pleaded guilty, the outline
of the case must (emphasis added) still disclose the commission of an
offence, for that the conviction was not allowed to stand, both
conviction and sentence were quashed and the accused was released.
now to count 2, theft of 12 x 750 ml Black label empty bottles, the
facts of the case as outlined showed that it was Accused 1 who was
caught red handed with the empty bottles, nothing was said about
Accused 2 that would connect him to that theft. Even besides, Accused
2 had pleaded not guilty to the charge and had been found not guilty
and discharged from the very beginning of
But after the Public Prosecutor had outlined the Facts for count 2,
the magistrate then pronounced a "verdict of both guilty as
charged". This was clearly irregular as accused 2 had already
been acquitted on that count. Pronouncement of guilt or otherwise
ought to have been passed only in respect of accused 1 on that count.
passing sentence, the magistrate gave Accused one 4 years
imprisonment for both counts. He lumped together the two offences for
purposes of sentence. Rooney J, as he then was, in Mohapi and others
vs Rex 1981 (1) LLR 6, had this to say, "It is clearly
inappropriate to lump together different offences for the purposes of
sentence, when the type of punishment or the maximum punishment which
may be imposed for one offence differs from another."
looking at the two counts on which the accused stand charged, one of
of housebreaking where so much stock was involved with the total cost
of R700.00 plus and the other of stealing one case of empty black
label bottles, surely both counts could not attract an equal term of
punishment. Accused 2 has been given 36 months imprisonment.
therefore feel obliged to tidy up the convictions and sentences for
accused on both counts.
in count 1 found not guilty and discharged as the facts did not
disclose the offence.
in count 2: Guilty of theft of empty quarts bottles and sentenced to
M200.00 or six months imprisonment, the whole sentence is suspended
for twelve months on condition that he is not found guilty of a
similar offence during the period of suspension.
2: Is found not guilty and discharged on both counts. There was
nothing that connected him to the two charges, let alone the fact
that he had already been found not guilty and discharged in count 2.
of Public Prosecution
Prosecutor Director of Prisons
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