HIGH COURT OF LESOTHO
matter between :
OF PUBLIC PROSECUTIONS RESPONDENT
by the Honourable Mr. Justice T. Monapathi on the 8th March 1999
were good reasons why I allowed the application for late noting of
appeal in the above matter. The Applicant/Appellant will
to as the Accused in this judgment.
Accused pleaded guilty to the charges levelled against him in terms
of section 240(b) of the Criminal Procedure and Evidence
Act of 1981.
He however appealed to this Court on the grounds filed of record
against the entire judgment.
helpful firstly, to look at the outline of the facts led by the
"In count I would disclose that accused was on the 9th December
1998 driving a taxi registration no. C1132 at Maputsoe area.
a taxi the accused parked the said vehicle at no park area along the
yellow sign. The traffic police who were nearby went
to accused and
they warned him that he should not park thereat. They attempted to
arrest him however the accused resisted the arrest.
He went out of
his car and he went to the two police officers. He then took hold of
one Trooper Seepheephe Matete by his uniform.
He cut off some buttons
of his uniform and he then removed the epaulettes of his uniform and
he threw them down. He then felt the
said policeman down and part of
the said policeman's uniform was torn. The other police officer
rushed to the scene of the crime
and they intervened. The said
uniform of the said Trooper Matete are before Court and I hand them
in as an exhibit herein. The
police warned accused and he was asked
for an explanation which he gave them. He then cautioned them and was
given charges accordingly.
This would be all of the Crown's evidence
herein. The accused says that he agrees with the facts outlined
also noted something that appears on page 3 where the sentence was
recorded. The learned magistrate said:
"I have outlined my reasons for judgment and what I have said
thereat applies in my reasons for sentence equally. This kind
offences must be discouraged and that can be achieved by imposing
sentences which will deter other people in accused's position
committing this offences. I sentence the accused as follows: Count
1 M100.00 or one month's imprisonment in default of payment. Count 2
two years' imprisonment without an option of a fine. Sentences
consecutively". (My underlining)
noted the aspect of the sentence in count 1 I contrasted this with
what appears on the face of the charge sheet where the
normally recorded. It is said respecting count 1:
"M100 or 1 year imprisonment."
be clear that the aspect of one year is different from that of one
month which is recorded in the part of the proceedings
which I have
just spoken about. It is clear that these two sentences are
different. In this regard I was referred to section 56
of the Road
Traffic Act of 1981 which speaks about failure to obey a traffic
sign. It is provided therein that any person who is
guilty of the
offence that is the offence of not complying with any direction
conveyed by traffic sign is played in the manner
prescribed is guilty
of an offence and liable to One Hundred Maloti and one month
imprisonment. This makes it clear that there
was surely a mistake or
misdirection on the part of the learned magistrate.
the submissions by Mr. Teele was that the outline not only failed to
disclose an offence but in a way that will be shown
later in this
judgment, it provided a defence to almost all the charges or the
counts in this proceedings.. It is useful once again
to quote the
charges as shown in annexure A of the charge sheet:
"Count 1: That the said accused is charged with the crime of
contravening section 56 of Act No. 8 of 1981 or Road Traffic Act. In
that upon or about the 9th day of December of 1998 and at
Maputsoe public road in Leribe district the said accused did
unlawfully drive a motor vehicle No. C1132 along the said
and failed to obey traffic signs to wit, by parking the said motor .
vehicle at no parking area which was shown by
Count 2: That the said accused is charged with an offence of assault
common. In that upon or about the 9th day of December 1998
and at or
near Maputsoe in the district of Leribe. The said accused did
unlawfully one Seepheephe Matete by throwing him on the
would note that there is a reference to yellow sign in the outline.
Here (in the charge sheet) the reference is only to
which has not been specified except as shown by a yellow line. I
noted further that in the charge respecting count
2 there was nothing
to suggest that the offence was an offence connected with evading or
resisting arrest much as has been elucidated
in much detail in the
Mr. Teele has submitted that there was also an offence connected with
resisting arrest that is to be found in the
Police Act. He said it
seemed that, consistent with what was contained in the outline, there
would have been much wisdom in having
charged this accused with the
offence in the Police Act. This should not take much further in this
judgment, except that something
will be shown towards this aspect
which Mr. Teele has submitted was a defence that was disclosed in the
Public Prosecutor's outline
in favour of his client.
Mr. Teele was not prepared to deny that the assault did take place
but he submitted that the assault was done in resisting
said this much let me record that the Accused's grounds of appeal
were as follows:
"Count 1. (a) The outline of facts does not disclose an offence
in terms of section 56 of Road Traffic Act as charged.
nature of the alleged traffic sign is not disclosed and there is no
indication that it was in the prescribed form.
sentence imposed by the Court is ultra vires the provision of
section 56 of the act.
Count 2. (a) The charge was defective in that no intention was
alleged or proved.
outline of the facts show that Appellant show that the Appellant
resisted arrest by the two police officers and it has not
proved that he acted unlawfully inasmuch as the arrest has not been
shown to have been lawful.
outline of the facts does not prove Appellant's guilt beyond a
sentence of two years' imprisonment without an option of a fine was
too harsh in the circumstances and induces a sense of
learned magistrate erred inasmuch as she has already canvassed
aggravating circumstances in delivering her verdict even before
could take mitigating factors into account.
learned magistrate erred in not taking factors in mitigation into
account in imposing sentence.
Court erred and misdirected itself in not placing on record what
was explained to the Appellant as elements of the offence
in total disregard of its duty as a Court of record.
Court erred in failing to explaining the rights of Appellant to
intimated to Mr. Teele that grounds nos 3 and 4 would not have any
place in my judgment inasmuch as I had no doubt that the accused
understood the charge. This being different from the technical
defects which were later demonstrated. Not only that the accused
admitted guilt in full understanding of all what it entailed. I would
not thereby be pre-judging the good aspects that Mr. Teele
spoken about as technical defects in the charges. Those defects
Accused would not fathom but what is important is that he
he was being charged with. He admitted guilt in that knowledge. I do
not see how in the
of the simple requirements of section 240(b) there had to be any
rights that were to be explained to the Accused. So that
as I said my
concern would be the grounds contained in one and two of the
statement of the grounds of appeal.
already underlined the allegations as contained in the Public
Prosecutor's outline that the accused's vehicle was parked
.... at a no park area along the yellow sign." I have also noted
the allegation in Count I that the accused failed
"to obey a
traffic sign to wit by parking the said motor vehicle at no parking
area which was shown by yellow sign".
I lastly had to endorse
the point that in terms of section 56 of R.T.A. an offence is created
which is disobedience "......of
a sign displayed in the
a distinction between road markings and road signs Mr. Teele
submitted that at best a yellow marking on the kerb of the
is not on the carriageway which normally designates a no parking area
car best be described as a road marking. Different
road markings are
provided for in section 70 of the Road Traffic Act No.8 of 1981
(R.T.A.) The incidence of this is mainly that
the markings which are
also road signs are always defined by design, colour and
measurements. So that it was insufficient to say
that a sign or
marking was a yellow line without specifying the provisions of the
law which prescribes parking where there was
such a yellow line. In
particular reference was made to section 70 of the RTA which Mr.
Teele suggested should have been the applicable
law which should be
read with section 56. While section 56 prescribes a penalty it does
not describe the substantive offence itself.
Meaning that, it does
not describe any traffic sign. I tended to agree with Mr. Teele that
the offences connected with parking
are to be found in section 70 of
the R.T.A. and that for purposes of an comprehensive and intelligible
charge section 56 cannot
stand alone in the way it
made to in Count I.
relevance in the section 70 of the R.T.A (standing and parking) are
sub sections (6)(a) and sub section (6)(h). It provides that:
"(6) Except in order to avoid an accident or in compliance with
a traffic sign or with a direction given by a police officer
any cause beyond the control of a driver, no person shall keep his
vehicle standing or parked on a carriage way.
contravention of any traffic sign.
a longitudinal road marking, where paragraph (f) does not apply but
the width of the carriage way between the marking and
the vehicle is
less than 3 metres and the marking is such that the vehicle
approaching it on the same side are forbidden to cross".
being made here is that even if a yellow line is a traffic sign in
terms of section 6(a) there must be a reference in
the law or
regulations where a yellow line is prescribed. If not then it is
either that there was no such traffic sign or it was
described from its legislative source or the charge is insufficient
in its particulars and therefore defective.
in adverting to section 6(h) if a yellow line is a longitudinal road
marking the particulars of the road marking this
must have been
specified in the way provided in the sub-section. That this has not
been done can lead to a variety of interpretations
One could be that the sub-section does not provide for a yellow line,
possibly meaning that it is to be found somewhere
else in the
statute. One other equally safe conclusion or probable is that the
charge was lacking in particularity and therefore
two technical defects to the charge sheet when the above argument is
followed. Firstly, it was not proved that the yellow
with the provision of any regulations. Secondly, it was not pointed
out that the yellow line was prescribed by any
law even section 70 in
the way we thought, at best, the section was the applicable one,
which it was wise to have charged the Accused
with. (See S v AKOO
1968(3) SA 108(H) at 110B-F)
above reasoning I can safely conclude that the evidence was
insufficient to establish the crime charged or an offence. On
the fact or in addition it could not be said that an offence was
disclosed. (See S v AKOO (supra) at 110 F-H and 111 - A)
aspects of the absence of particularly and the failure to spell out
or the inability to indicate fully the failure to
display the sign in
a prescribed manner can only mean that the charge did not contain all
the necessary elements of the offence.
If that was the situation one
cannot speak of the Crown having proved its case beyond a reasonable
doubt which duty it cannot be
relieved of even when the procedure was
that of admission of guilt in terms of section 240(b) of the Criminal
Procedure and Evidence
Act 1981.I was referred to R v MOTJOLA 1977
LLR 1. It could not be said therefore, concluding from the above
findings, that the
Accused pleaded to the charge knowingly and
even if it may have been voluntary.
Counsel Mr. Kotele conceded most wisely in this and others that where
a person was convicted of contravening section 56,
the law provided
that the sentence should be M100.00 or 1 month imprisonment. The
magistrate imposed eleven months in excess of
the statutory limit. In
doing so her sentence was thus ultra-vires and could not be allowed
to stand even if the accused was properly
with the count in respect of the assault of the said Seepheephe
Matete who as the outline disclosed was a policeman who
was on duty.
I had to make an initial observation that (without agreeing to the
facts) it was difficult to understand why the alleged
arrest by the accused was not dealt in terms of the Police Act.
second observation was that the facts in the Public Prosecutor's
outline themselves seem to indicate that there was not only
ordinary assault but that it was an assault committed in order to
resist an arrest. I had to agree that if the facts did not
crime then the arrest could not have been a lawful one inasmuch as
the offence was not an arrestable one.
that on the outline of the facts it had not been shown that the
arrest was lawful. Part of the task herein had been to
and illustrate the elements of the offence in the way the criticism
or the comment made earlier in the judgment has
gone about. The
outline did not say when if ever the Appellant was told of the
offence for which he was arrested the latter which
is a prerequisite
to a lawful arrest without a warrant. The outline suggested that he
not to park at that spot. The matter concerned parking only, when
then they attempted to arrest him which he allegedly resisted.
Counsel conceded that the sketchy account of the goings-on left a
doubt which could only redound to Accused's benefit. That
there could not have been proof beyond a reasonable doubt.
that the magistrate's reference in his sentence to his findings or
conviction gave the impression that he only considered
aggravation. This constituted an approach that both inelegant and
wrong. Demonstrably he did not consider any personal
the accused. Neither did he suggest that he had done so.
already alluded to the differing statements on the charge sheet and
on the record on the other hand about the period of imprisonment
which I found to be mistaken and as such unacceptable. I noted that
if the accused had been charged under the Police Act (for resisting
arrest) he would come out better off than under the common law.
the appeal ought to be allowed and I did so order.
Accused: Mr. Teele
Crown : Mr. Kotele
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