IN THE HIGH COURT OF LESOTHO
In the matter of:
Delivered by the Honourable The Chief Justice Mr.
Justice B.P. Cullinan on the 8th day of June, 1987.
The three accused persons were convicted by the
Subordinate Court for the Maseru district of theft of a motor vehicle
The learned trial magistrate committed them to the High
Court for sentence. He gave no reasons for doing so.
Section 293(1) of the Criminal Procedure and Evidence
Act 1981 (hereinafter referred to as "the Act") reads as
"(1) Where on the trial by a subordinate court a
person whose apparent age exceeds 18 years is convicted of an
may, if it is of opinion that greater punishment
ought to be inflicted for the offence than it has power to inflict,
to be recorded in writing of the record of the case,
instead of dealing with him in any other manner, commit him in
custody to the
High Court for sentence."
I presume that the first word "of" in the
seventh line above is a typographical error and should read "on".
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
a magistrate most have some underlying reasons for the
such opinion and, more importantly, that such reasons
"be recorded in writing (on) the record of the
learned trial magistrate in the present case did not
record the fact that he had formed the necessary opinion
the matter, much less record any reasons therefor. As I
it therefore, the accused is not properly before me.
Further, there are defects in the trial itself. The
stolen windscreen was found in the possession of the second
who on that evidence alone must be regarded as
an accomplice. The learned trial magistrate made no such finding,
however. He then
failed to consider the provisions of section 239 of
the Act, but more particularly, the cautionary rule as set out in Rex
v Ncanana (1948) 4 SA 399 (AD), and considered in Jobere
Motsie & Ors v Regina (1959) HCTLR 3 at pp. 6/7.
There was corroboration to be found in the evidence of a
police officer who said that he was taken to the house of the
the first accused. He changed that evidence however,
saying that it was the second accused who had taken him there. The
himself likewise contradicted himself. The learned trial
magistrate made no reference to the latter contradiction. As to the
in the police officer's evidence, he referred to it as
a change in "a little piece of his version of events of the
I would regard the particular evidence as vital to the
Crown's case, and such contradiction must have gone to the root of
officer's evidence and rendered it unreliable.
There was evidence by the complainant that the first and
second accused had admitted the offence to the police in her
evidence 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.
Any evidence aliunde of any such confession was then
I am not satisfied that had the learned trial magistrate
directed his attention to the above matters he would inevitably have
the accused persons. Under the circumstances it would be
unsafe to allow the convictions to stand. In the exercise of my
jurisdiction, I order that the convictions and sentences
be set aside and that the accused persons be hereby acquitted.
8th June. 1987.
For Appellants : Mr. T. Seholoholo For Accused
Persons : In Person
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