CRI/A/51-52/83

IN THE HIGH COURT OF LESOTHO

In the matter between .

Matsili Lefata - 1st Appellant

Matisetso Boutu - 2nd Appellant

and
REX - Respondent

JUDGMENT

Delivered by the Hon. Judge, Mr.
M. P. Mofokeng on the 31st day of October. 1983

The two appellants were part of
seven accused who were jointly charged before the Subordinate Court
of the Resident Magistrate at
Leribe. It was alleged by the Crown
that they had committed the crime of Housebreaking with intent to
steal and theft. The list
of the stolen articles, and their
estimated value, was attached. One accused pleaded not guilty while
the rest, including the two
appellants, pleaded guilty. The Public
Prosecutor, and quite properly in my view, applied for a separation
of trials. The trial
of all the accused who pleaded guilty
proceeded.

In terms of the provisions of 5.
240(1)(b) of the C.P.&E. Act 1981 the Prosecutor, where the
accused pleads guilty and he accepts
it, is required to outline the
facts as disclosed by the evidence in his possession. The whole
purpose of this section is to speed
up trials in the

/Subordinate ...

-2-

Subordinate Courts by obviating
from the necessity of calling evidence. However, since the learned
Magistrate is not in possession
of any facts which would enable him
to bring in a verdict, he depends entirely on the information
contained in the outline made by
the Prosecutor, All that the outline
must bring out clearly is embodied in the general principle of law
contained concerning S.240(1)(b)
viz. that it is sufficient if the
facts out­lined by the Prosecutor disclose the commission of the
offence. (see Dlamini & Another v Rex. 1978(2) L.L.R. 376
at 379 (in the press)).

The facts were very simple in
this case and can be briefly stated as follows:

There was a conspiracy to break
into the shop of one Abdulla at Maputsoe and when the conspiracy was
formed all the accused were present.
The night watchman who is
employed there lives quite close to the said shop. Accused 3 was
detailed to observe the movements of
the night watchman particularly
when he goes to sleep.

On the night of the 15th May
1983 he gave a signal. The night watchman was asleep. Accused 1 and 2
went to break into the shop. This
they achieved by means of digging
a hole "on the building of the shop." Impliments they used
were handed into Court as
evidence. The other four accused entered
and took out various articles such as blankets, money (cash).

The following morning Abdulla
found articles thrown all over the flour of the shop. There was also
a big hole. The matter was reported
to the police.

/Some ...

-3-

Some of the articles stolen from
the shop such as blankets, part of the money were retrieved from some
of the accused.

All the accused admitted the
facts as outlined by the Prosecutor.

The outline of the facts of the
case by the Prosecutor to the Court, in my view, accorded with the
principle enunciated in Dlamini's
case (supra).

The crime of House breaking with
intent to steal and theft has assumed alarming proportions. The
Courts take a very serious view
of the matter. However, while a first
offender may, where circumstances warrant it, not be sent to prison
but rather be treated leniently,
yet the Courts have repeatedly said
that that as not nor can it be the basis on which all first
offenders ought to be treated. In the case of Makhetha Mphutlane
v Rex, 1980(2) L.L.R. 338 it was stated clearly that the fact
that an accused is a first offender is no guarantee that a
non­custodial
sentence will not bo imposed.

As Counsel for the Crown rightly
put it the passing of sentence is pre-eminetly a matter for the trial
Court and the appellate Court
will interfere if that sentence is, in
the circumstances, unreasonable. (see Tsitso Mohapi v Res.
CRI/A/83/79; Matsoso v R, C. of A. (CRI) No.6 of 1968).
Moreover, the learned Magistrate has not been shown to have
misdirected himself in any manner.

/The appeal, ...

-4-

The appeal, therefore, ought to
be dismissed and it is so ordered.

JUDGE

31st
October, 1983

For
the Appellant : Mr. Mofolo

For the Crown : Miss Nku