HIGH COURT OF LESOTHO
by the Honourable The Chief Justice Mr. Justice B.P. Cullinan on the
8th day of June, 1987.
accused persons were convicted by the Subordinate Court for the
Maseru district of theft of a motor vehicle windscreen.
trial magistrate committed them to the High Court for sentence. He
gave no reasons for doing so.
293(1) of the Criminal Procedure and Evidence Act 1981 (hereinafter
referred to as "the Act") reads as follows:
"(1) Where on the trial by a subordinate court a person whose
apparent age exceeds 18 years is convicted of an offence,the
may, if it is of opinion that greater punishment ought to be
inflicted for the offence than it has power to inflict, for
to be recorded in writing of the record of the case, instead of
dealing with him in any other manner, commit him in custody
High Court for sentence."
that the first word "of" in the seventh line above is a
typographical error and should read "on".
A study of the
above provisions indicates that a magistrate may only commit an
accused for sentence if he is "of opinion that
punishment ought to be inflicted for the offence than (he) has power
to inflict". The provisions also indicate that
magistrate most have some underlying reasons for the formulation of
such opinion and, more importantly, that such reasons must
recorded in writing (on) the record of the case". The learned
trial magistrate in the present case did not even record
that he had formed the necessary opinion in the matter, much less
record any reasons therefor. As I see it therefore,
the accused is
not properly before me.
there are defects in the trial itself. The stolen windscreen was
found in the possession of the second prosecution witness,
that evidence alone must be regarded as an accomplice. The learned
trial magistrate made no such finding, however. He then
consider the provisions of section 239 of the Act, but more
particularly, the cautionary rule as set out in Rex v Ncanana
4 SA 399 (AD), and considered in Jobere Motsie & Ors v Regina
(1959) HCTLR 3 at pp. 6/7.
corroboration to be found in the evidence of a police officer who
said that he was taken to the house of the receiver
by the first
accused. He changed that evidence however, saying that it was the
second accused who had taken him there. The receiver
contradicted himself. The learned trial magistrate made no reference
to the latter contradiction. As to the contradiction
in the police
officer's evidence, he referred to it as a change in "a little
piece of his version of events of the day".
I would regard the
particular evidence as vital to the Crown's case, and such
contradiction must have gone to the root of the police
evidence and rendered it unreliable.
evidence by the complainant that the first and second accused had
admitted the offence to the police in her presence.
could only have been admitted as corroboraticn of evidence of any
such confession. The police however never adduced
any evidence of any
confession, not that it was confirmed and reduced to writing in the
presence of a magistrate, as required by
section 228(2) of the Act.
evidence aliunde of any such confession was then entirely
I am not
satisfied that had the learned trial magistrate directed his
attention to the above matters he would inevitably have convicted
accused persons. Under the circumstances it would be unsafe to allow
the convictions to stand. In the exercise of my revisional
jurisdiction, I order that the convictions and sentences be set aside
and that the accused persons be hereby acquitted.
Appellants : Mr. T. Seholoholo
Accused Persons : In Person
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