CRI/A/22/86 IN THE HIGH COURT OF LESOTHO
In the Appeal of:
GERARD HALEKHETHELOE PHOHLO Appellant
was given by the Honourable Acting Mr. Justice M.L.
Lehohla on the 30th day of June, 1986. He undertook to submit reasons
Here do they now follow:
According to the Weekly Roll this appeal was supposed to
be heard by me on 30th June, 1986.
On Sunday 29th June, I discovered that the file was not
placed before me. I, however, searched for it and studied the record.
hearing date while in Court, I was referred by the Assistant
Registrar to a photocopy of a Notice of Hearing at the bottom of
was scribbled "matter withdrawn".
Needless to relate neither the appellant, his Counsel
nor Counsel for the Crown was present in Court to argue this appeal.
I accordingly ordered that all concerned should come
before this Court to have this appeal dealt with on 3rd July, 1986.
Mr. Pheko appeared for the appellant while Miss Nku
represented the Crown.
I was shown a copy of Notice of Withdrawal dated 3rd
February, 1986, bearing a faint and undecipherable 'proof of
service both on the Crown and on the Registrar of this Court. Service
of this Notice
was effected on unspecified dates.
Mr. Pheko informed the Court that he drew that Notice of
Withdrawal in accordance with his client's instructions but was quick
concede that such a move was not in accordance with the directive
given by this Court in CRI/A/55/83 WILLIAM MABOTE vs REX
(unreported) where Mofokeng J.
resolved the question: "Whether once a criminal
appeal has been set down on the roll of cases for hearing in this
Court it can
unilaterally be withdrawn by the appellant."
As in the MABOTE appeal the appellant has not
given any reasons for the purported withdrawal in this one despite
that he had set it in motion. The
file containing the relevant papers
to the appeal does not bear any indication that the Crown would apply
for an increase of sentence
should the appeal on conviction fail.
Mofokeng J. pointed out that the process of prosecuting
an appeal is a continuing one. It is necessary to quote his analysis
regard in toto:
"A convicted person has the choice whether to note
an appeal against his conviction or not. If he exercises an option in
of noting an appeal there are statutory procedures he has to
follow until a finality is reached in his appeal., Section 73(1) of
the Subordinate Courts
Proclamation 58 of 1933 gives a
right to appeal to a convicted and
sub-section (2) gives a right of appeal to the
Director of Public Prosecutions-in certain circumstances. Sub-section
Any such appeal shall be noted and prosecuted within the
period and in the manner prescribed by the rules: But the High Court
mayin any case extent such period.
Section 73(4) provides
"The High Court shall thereupon have the powers set
out in sub-section (2)(b) of Section Sixty-Nine: Provided
that, notwithstanding that the High Court is of opinion that any
point raised might be decided in favour of the appellant,
conviction or sentence shall be reversed or altered by reason of any
irregularity or defect in the record of proceedings unless it
appears to the High Court that a failure of justice has in fact
resulted therefrom or that the accused has been prejudiced
thereby". (My underlinings).
The Criminal Procedure and Evidence Act 1981 Section
329(1) outlines powers of Court of Appeal i.e. the High
Court in its appellate jurisdiction as follows under (c) (to) "give
such judgment as ought to have been given at the trial,
or impose such punishment (whether more or less severe than or of
a different nature from the punishment imposed at the
or'-" under (d) (to) "make such order as
It seems to me that Mofokeng J. correctly summed up the
position when he stated in the appeal cited above that (see page 7)
would appear that there is no procedure which permits the
appellant to withdraw his appeal at any stage. If he desires to do so
must be with the leave of the court in whose hands the
appeal is". (Hy. underlings)
The remarks are abundant in the above mentioned
judgment, and they seem to show that the conclusion reached by the
Learned Judge that
"The discretion whether or not to allow a
withdrawal of an appeal rests entirely with the appellate court.
It is therefore regrettable that his concluding
directive that "This matter should be considered to affect
future cases only"
was overlooked or given scant attention.
The need for the foregoing to be regarded as binding on
the Office of the Registrar, the litigants and their counsel in
cannot be over-emphasised if proper and ultimate
determination of such appeals is to be reached. It was in deferrence
to the dictum
expressed in that judgment that I called for the record
of this appeal despite the purported withdrawal.
Another matter of grave concern which is ancillary to
the foregoing is the question of postponement of criminal appeals, A
has arisen where criminal appeals are postponed to a date to
be arranged with the Registrar. While this practice is in order with
regard to civil matters, it is not so with criminal matters. In as
much as Hofokeng J. has properly pointed out that a criminal appeal
is a continuation of a criminal
it stands to reason that in much the same way that an
accused in a criminal trial is required to attend remands and know
such remands, the appellant in a criminal matter is required
to know the date of hearing of his appeal and prosecute it. Conceding
that practical difficulties
occur in the sense that the Registrar keeps only one
master diary and therefore cannot be in all courts at the same time
appeals are postponed yet these difficulties can be
overcome by providing tentative dates beforehand to which each such
be postponed in full hearing of the appellant or his
counsel. This would obviate the irksome practice of issuing one
notice of hearing
of appeal after another occasioning the necessity
of limited state resources and manpower being required to serve one
and the same
appellant each time a criminal appeal has been
The unwholesome result of this practice is that
ultimately neither the appeal is prosecuted nor is the subordinate
from which such appeal emanated satisfied as was the
case in TSIETSI MOLAPO vs. REX CRI/A/20769
But the salutary effect of following what is advocated
in the foregoing remarks is that once there is proof of service of
hearing of an appeal on the appellant and subsequent
notification to him in court of dates to which the appeal has been
or "remanded" and he fails to attend, then the
Court would be at large to strike the matter off the roll consequent
which the subordinate court judgment will take immediate effect.
Otherwise the court becomes hamstrung by criminal
appeals which fail to proceed either because the appellant on
has not been served with notice of hearing, or
if he has, then a return of service has not been
filed. thus depriving the court of the knowledge of the
true state of affairs until too late.
To return to the charge, I would summarise the facts of
the present appeal as follows:-
The appellant Gerard Phohlo was charged with the crime
of theft. He appeared before the subordinate court in Maseru.
The charge sheet sets out that "on or about 8th
May, 1985, and at or near L.N.D.C. Development House in the District
the said accused did wrongfully, unlawfully and
intentionally snatch and steal a black bag containing a sum of
M6076-05 the property
of Gain Store which was in the lawful
possession of one Mots'oari Mots'oari".
The case for the Crown rested mainly on the evidence of
P.W.2 Mots'oari Mots'oari who testified that he was sent to the bank
money collected from his employer - the Gain Store. as he
walked past the old Lesotho Bank the appellant * pulled the bag from
his armpit and ran across the road carrying the bag and its
contents. P.W.2 shouted "stop thief" and people gave chase.
The appellant was ultimately run to earth and arrested near the
tennis ground on the other side of the statue of Moshoeshoe I. He
handcuffed by police volunteer reservists who gave him in
charge. The bag and all its contents were handed over to
Mr, Pheko for the appellant very properly
confined himself to arguing the appeal on sentence only." He
the trial magistrate did not give any consideration to
the personal circumstances of the appellant and also that scant
given to the fact that he was a first offender and that
although he is a member of the disciplined forces he was a mere
the time of the commission of the offence, further that
because of his conviction he had lost his job and all attendant
Finally regard being had
to all the personal circumstances of the appellant the
of five years'imprisonment of which only one year was
suspended was rather
on the high side and thus induced a sense of shock by
Miss Nku for the Crown in reply readily conceded
that the learned magistrate omitted to consider some personal
circumstances of the appellant
and argued that the sentence imposed
did not evoke in her a sense of shock. She, however, did not state
which among the personal
circumstances implied in her submission were
given consideration to.
My perusal of the record did not reveal any either. The
Crown relying on SOPENG vs REX CRI/A/58/83 and 'MOTA
PHALOANE vs REX C of A(CRI)7 of 1980 argued that both appellants
were members of the disciplined forces and because of their
despicable acts the
appellate courts increased their sentences on
appeal, therefore by virtue of the fact that the present appellant is
also a member
of the disciplined forces his sentence should not be
In reply Mr. Pheko argued that although both appellants
in the above cited appeals were members of the
disciplined forces their positions and rank differed
drastically from that of the present appellant. They
Captain and head of the C.I.D.respectively as opposed to
who was a mere trooper. Their actions involved a common
element of violence to a person resulting in assault in one victim
in the other.
With these submissions in the backdrop, I was referred
to CRI/A/22/84 MQEKETSI MOTS'OARI v REX (unreported where
Kheola A.J. as he then was had this to say at Page 3:
"There is no doubt that many magistrates fail to
make any investigation into personal circumstances of the accused
On Page 5 he went further to say:
"Taking into account the age (21 years) of the
appellant, the fact that he is a first offender, that the vehicle was
only a day after it was stolen and still intact ..... the
sentence of 3 years' imprisonment appeared to me to be too severe and
differed from what I would have imposed".
The Learned Judge then imposed a sentence of fifteen
(15) months' imprisonment.
In CRI/A/n/86 STEPHEN MOKHEHLE MAKHOBALO (unreported)
writing in the same vein as in MOTS'OARI supra Mofokeng 3.
said on Page 2 "As regards sentence, the learned magistrate did
not take into account the personal circumstances
of the appellant
Quoting Mofokeng J. in MOJELA vs REX L L R 321 at
P.324 Kheola J. in Review Order No. 7/86 Rex vs Sefofane
-9-Mohashole (unreported) had "this to say at Page
"Perhaps it is not appreciated that a consideration
of what sentence-to impose on a convicted person is a procedure which
to be carefully followed. It never follows upon conviction
as a matter of course. Different considerations now come into. play
and these must be carefully weighed both
as affecting the person of
the accused and the society. It is the duty of the trial court to
consider all the relevant factors and
not to adopt a passive role".
Kheola J. went further to point out that of the eleven
missing sheep, ten were recovered, "So that the complainant did
a complete financial loss".
In the present case complainant did not suffer any
loss at all-in the South African case S. vs. Giannoulis 1975(4)
SA 867 (A.D) Holmes J.A. had this to say:
"No doubt justice is best seen to be done in the
matter of sentence if participants in an offence (even if tried
who have equal degrees of complicity are. punished
equally, if there are no personal factors warranting
disparity". (My underlining)
He went further to say:
" ......... punishment is pre-eminently a
matter for the discretion of the trial court, and
interference on appeal is warranted only if the discretion
was'not properly and judicially exercised".
In the present appeal, as I have stated above the Crown
conceded that at least some personal circumstances of the appellant
taken into account. Surely the logical
effect of such concession should redound to appellant's
advantage, I have pointed out appellant's personal factors which
in argument. None of them as far as the record reveals
was taken into account. What seems to have been uppermost in the
view was the need to" demonstrate to these
young criminals in the armed forces that their acts will be treated
with all the
severity at our disposal."
The general purport of the expression in the above
quotation clearly shows that the sentence imposed was intended for
of members of the young criminals in the armed forces.
It cannot thus be said the personal circumstances of the particular
individual before Court were properly, considered. It was
submitted in argument that the "trying period of a spate of
to in the judgment related to members of the
armed forces who were engaged in atrocious acts of robberies. As
appellant's act though reprehensible takes him out
of the generality of members of the armed forces in that it was not
by any violence.
He lost his job and benefits both of which factors were
taken into account in the Phaloane case (supra). He is married
with two young children whom he has to find in food and clothing. He
had since lost his father and has
to maintain his sickly mother.
Evidence indicated that he had been assaulted on arrest and was not
referred for medical attention.
The "loot" was all
It should be remembered that dry rot had set in
among the youth of the nation and some gullible members
of. the disciplined forces. It cannot be said that the then
ignorant of this facto Miss Nku for the
Crown conceded this point.
Enough has been submitted to me by way of argument and
my perusal of the record shows that sufficient weight was not given
personal circumstances of the appellant and thus he. .
suffered prejudice in the sentence imposed. Regard being had to all
I find that the sentence induces a sense of shock. -
It would seem therefore that the sentence imposed was
based more on emotional extravagance and need to scare members of the
forces than on personal factors surrounding the
Consequently the conviction is confirmed. Sentence is
set aside and in substitution thereof is imposed the following:
Appellant is sentenced to" eighteen months'
imprisonment or M320 fine , half of which is suspended for 2 years on
appellant be not convicted of a crime involving
dishonesty committed during the period of suspension and sentenced to
a minimum of
six months' imprisonment without an option of a fine.
(M.L. LEHOHLA) ACTING JUDGE
For Appellant - Mr. Pheko For Crown - Miss
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