HIGH COURT OF LESOTHO
by the Honourable Mrs Acting Justice A. M. Hlajoane on 25th Day of
matter came before me on appeal against conviction only. The
Appellant had been charged of abduction of a minor girl aged but only
14 years in 1999. He was convicted and sentenced to six years
imprisonment. The three grounds of appeal being that;
(i) The magistrate erred in not properly reading the accused his
fundamental rights to legal representation.
(ii) That the plea of guilty was not voluntarily tendered as prior to
his appearance in Court the appellant was tortured and subjected to
degree methods by the police who ordered him to plead guilty,
resulting in a failure of justice.
(iii) That magistrate erred in not terminating the proceedings there
and then and transferring the record for review to the High Court
when the accused in his address in mitigation indicated that he did
not have intention to commit the offence he was charged with.
appeal ought to have proceeded on the 28th February, 2002 but Counsel
showed he had not been properly instructed. It was postponed to the
25th March, 2002 and the Registrar instructed to issue yet another
fresh notice of trial. On the 25th March there was no appearance for
the appellant neither the appellant himself. The notice had been duly
made and sent to the address given. Respondent was represented. I
have dismissed the appeal and these are my reasons.
first ground of appeal, the magistrate not informing the appellant of
his right to legal representation this Court in the case of Rex v Joe
Seipati 1985-90 LLR 235, held that "where the accused does not
himself seek legal representation and where no irregularity occurs
there is no principle or rule of practice which vitiates the
proceedings". The appellant admitted the outline of facts as
true. According to Hoffman - The South African Law of Evidence 4th
Edition at 431, a plea of guilty is in effect a formal admission of
of the charge.
Mashinyana 1989 (1) S.A. 592, it was held that, "A Court is not
obliged to enquire from an accused whether he wishes to have legal
representation. The unexpressed desire of an accused to engage a
legal representative cannot afford him a cause for complaint after
his conviction and sentence." 'Ignorantia iuris non excusat.'
second ground of appeal is still related to the first one. He was
tortured by police who forced or ordered him to plead guilty. He
mentions this for the first time on appeal. He never told the
Magistrate that he had been tortured yet he was no longer in the
hands of the police.
of this appeal can be distinguished from the case of R. v Faku and
Others (1)1979 (1) LLR 199 where the confession of the fourth accused
was excluded by reasons of the fact that it was not freely and
voluntarily made. Accused had been arrested on the 8th February, 1978
and only taken for confession on the 21st of that month. At the trial
he claimed that he had been beaten by police on several occasions
during his interrogation and that words were put into his mouth by
the said police officers who threatened to torture him more should he
the magistrate anything different.
appellant as already stated in this case never uttered a word to the
magistrate at the trial stage about the torture by the police.
Besides he had only spent a day in police custody before he was taken
to Court, unlike in the above case where the magistrate even remarked
as to why the accused who originally denied any involvement in the
act should after 13 days detention suddenly change his mind. The
appellant in our case had only spent one day in custody presumably
because there is no Magistrate's Court at Mount Moorosi but in
last point of the magistrate having failed to terminate the
proceedings and submitting record for review as the accused in
mitigation told the Court that he had had no intention to commit the
offence, this is not borne out by the record. According to the
record, in mitigation of sentence the accused showed that he did not
know that what he did could be that bad. Appellant was a man aged 52
years in 1999 and took away a girl aged only 14 years for marriage.
The intention to marry the girl was there and could clearly see that
the girl was still of tender age fit to be her grand-daughter.
may have not known that in law it is a criminal offence to abduct
a girl of
that age, but ignorance of law is no excuse.
reasons given above I dismissed the appeal.
Appellant: Mr Mda
Respondent: Mr Seitlheko
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