IN THE HIGH COURT OF LESOTHO
In the Matter of :
MOKO MOTSOIKHA Appellant
R E X Respondent
Delivered by the Hon. Acting Justice M.L. Lehohla on
the 17th day of August, 1987.
Appellant was charged with the offence of malicious
injury to property in the Mafeteng Subordinate Court. He pleaded
guilty and was
accordingly convicted and sentenced to six months'
It is to be noted that Appellant was not represented in
the court a quo.
However, he has appealed to this court but it is not
clear against what he has done so because his notice of appeal though
and signed by counsel does not say what the appeal is
Mr. Thetsane for the crown in his heads submits
that the appeal is directed against the sentence as does submit
appellant's counsel in the heads
submitted on behalf of the
The crown submitted that it is trite law that the
appellant must set out clearly and specifically the grounds, whether
of fact or
law or both fact and law, on which the appeal is based.
See The South African Law of Criminal Procedure P.640.
I agree that the manner in which the appeal has been lodged is bad in
2/ Mr. Z. Mda .....
Mr. Z. Mda for the appellant submitted that the
passing of sentence is pre-eminently in the trial court's discretion.
But he pointed out that
such discretion is to be exercised judically.
He referred me to Criminal Procedure & Evidence
Act 1981 wherein under Section 295(2) it is laid down that
"The court may, before passing sentence receive
such evidence as it thinks fit in order to inform Itself as to
sentence to be passed."
Projecting the spirit of the above provisions Mofokeng
J. in Mojela vs R. 1977 L.L.R. 321 at 324, said :
" A consideration of what sentence to impose on a
convicted person is a procedure which has to be carefully followed.
follows upon conviction as a matter of course. Different
considerations now come ink) play and these must be carefully weighed
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."
The dictum expressed in S. v. Fazzie 1964(4) S.A.
at 684 is of paramount relevance i.e.
" This court will not readily differ from the court
a quo in its assessment either of the
factors to be had regard of or as to the value to be
attached to them. Where, however, the dictates of justice are such as
to make it appear to this court that the trial court ought to
have regard to certain factors and that it failed to do so, or that
it ought to have assessed the value of these factors differently from
what it did, then such action by the trial court will be regarded
a misdirection on its part entitling this court to consider the
In Moeketsi Motsoari vs Rex (unreported) Kheola
A.J. as he then was said at 3
"There is no doubt that many magistrates fail to
make any investigation into personal circumstances of the accused
These words were re-echoed in Gerard Phohlo v. Rex
CRI/A/22/86 (unreported)at pages 8 and 9 to 10 where it was stated :
3/ "In the present
"In the present appeal, the crown conceded that
at least some personal circumstances of the appellant
were not taken into account. Surely the logical effect of such
should redound to appellant's advantage."
I have indicated that the appellant was not represented
in the court a quo. I may just refer to Mosoeunyane Mothakathi vs
Rex CRI/A/48/86 (unreported) at 8 where the importance of legal
representation was emphasised by the Swaziland Court of Appeal in
case No. 46/84 Caiphas Dlamini vs Regina (unreported)
at 11 where Welsh J.A. quoting from S.vs Baloyi 1978(3)
S.A. 290 (T) at 293 said "
" Margo, J. referred to a number of cases
dealing with the right of an accused to legal
representation where he wishes it ....... the
mere fact of being denied legal representation can by
itself be fatal to the validity of the trial".
Failure to appreciate the predicament of an
unrepresented accused person and forging ahead with matters which
affect him adversely
without . affording him an apportunity to give
his version of them may amount to denial of legal representation.
Mr. Thetsane submitted that the learned
magistrate misdirectedhimself by not eliciting as many;questions
as possible from the appellantregarding his personal
circumstances as required by the law and submitted that he
thereby adopted a passive role. See S. vs Shirindi
1974(1)S.A. at 482.
He further indicated that nowhere in the record has it
been shown whether or not the appellant was a first offender a factor
should have been gone into by the trial court before passing
Mr. Mda submitted that no weight was given by the
trial court to the fact that appellant is a first offender and
thereby that court failed
to observe the dictum in Mojela v.R.
supra p.324 that
"whenever possible, however, a first offender
should not be sent to prison. Ordinarily a suspended sentence will be
to the accused."
The value of the property damaged has not been
ascertained. It is therefore not clear how serious the damage is.
complainant has a civil remedy against the appellant with regard to
4/ The summary
The summary of the case against the appellant was that a
quarrel emerged among passengers in a vehicle en route from Mohale's
to Maphutseng. The driver reprimanded the accused and some of
the participants in the commotion that broke among the passengers.
At a convenient spot appellant alighted from the vehicle, went to
his house bringing along with him a stick with which he struck
broke a window on the vehicle. He was arrested and charged with the
The above outline shows that appellant rightly or
wrongly had a grievance against the driver of the said vehicle. He
with the manner in which the driver intervened in the
quarrel, presumably ascribing the blame to the appellant.
It is important to observe that there is authority for
view that a man who commits an offence secretly deserves
greater punishment than the one who commits it openly. Regard should
have been had to the relative youth of the appellant and the
accompanying imprudence. The fact that he pleaded guilty shows
that given time to reflect on his unlawful act he was quick to
acknowledge its reprehensibility and must have been sorry for having
All these considerations taken together along with what
is regarded as the true and proper view of the law as outlined in the
cited including the numerous orders on review it is clear
that a subordinate court errs if it does not bother to find out the
circumstances of an accused person. 1 am not, however,
unmindful of CRI/A/33-34/87 Noko Makateng & Another vs
Rex (unreported) which has caused me some unease. There is no
indication that the type of offence charged is rife in the area of
its commission to
warrant the view that punishment should increase
with the multiplicity of the offence.
The conviction is confirmed. Sentence is set aside and
the following substituted therefore: Appellant is sentenced to six
imprisonment or M150-00 fine of which half is suspended
for two years on condition that appellant be not convicted of a
crime involving injury to property committed during the period of the
M. L. LEHOHLA ACTING JUDGE.
17th August, 1987.4/
For Appellant : Mr. Z Mda. For Respondent : Mr.
Though previously apprised of the Crown's heads of
argument wherein an issue was made of the fact that
appellant did not submit his grounds of appeal
Mr. Mda in reply to Crown's address indicated that
he had filed the grounds of appeal and he furnished the
court with proof of his assertion. It is regrettable
that neither the court nor the Crown were furnished
with the grounds by the office of the Registrar.
CIV/APN/296/86 IN THE HIGH
C 0 U R T OF LESOTHO
In the matter of:
NAPO MAJARA - Applicant
DISCIPLINARY COMMITTEE - 1st Respondent MINISTER OF
INTERIOR - 2nd Respondent ATTORNEY GENERAL - 3rd Respondent
Delivered by The Hon. Acting Mr. Justice M.L. Lehohla on
the 7th day of August, 1987
The matter was argued before me on 6th August 1987.
In his notice of motion applicant seeks orders from this
Court in the following form:-
Review of the proceedings of the 22nd August,
1986before the first Respondent and the setting aside ofthe
decision reached thereat wherein applicant'spowers and duties
(as a chief) were suspended.
Granting the applicant such further or
alternativerelief as may be deemed fit (by this Court)
Directing the Respondents to pay the costs of
theapplication only in the event of them opposing
The application is opposed and the affidavit of 1st
respondent's Chairman,Chief Potsane Thabo Letsie has been solely
relied upon by
respondents in support of their opposition.
/In his ...
In his founding affidavit the applicant Napo Majara
avers that he is the Gazetted Chief of Sekamaneng in the District of
he is subordinate to the Principal Chief of Berea Ha
Majara. He supported the central point of his averment in this regard
Annexure "A" to his papers. Annexure "A"
is a Lesotho Government Gazette No.49 of 1983 wherein under Notice
applicant's name is reflected showing that under the title
"Chief" he is in charge of the "Area" Sekamaneng
is "subordinate to" the "Principal Chief of
In paragraph 3 applicant avers that during August 1986
he was served with a summons in terms of Section 17(J) of
No.22 of 1968 hereinafter referred to as the Act. A
copy of the translated version of this summons is attached and for
I will refer to it as Annexure B1 while the Sesotho
version is Annexure B. To these documents is attached Annexure C
being a copy
of a charge sheet from the Magistrate's Court Berea
under Criminal Case No. C.R.183/34 of that court. Annexure "D"
the translated version of the decision by 1st respondent.
In paragraph 5 applicant avers that 1st respondent
convicted him and sentenced him in terms of Section 26(1) of the Act
to a deprivation
of the exercise of his chiefly powers for five
years. A closer look at Section 26(1) shows that this Section is
meant to penalise
people who pretend or hold themselves as chiefs
when in actual fact they are not. It thus appears that after being
charged and convicted
under Section 17(j) which stipulates that:
/"a chief ...
" a chief is guilty of a disciplinary offence and
liable to the deprivation in Section 19
(amended to read 16 by Section 8(1) of Order 29/72) if
he has been found guilty of a criminal
offence whether or not the Court has made a recommendation
under Section 37(5)"
applicant was warned of consequences that might befall
him in terms of Section 26(1) if during the period of the
de-privation he purported
to act as chief.
In terms of Section 18(1) as amended "when the
Disciplinary Committee has made a finding in terms of
Section 16(8) or 16(9) the Disciplinary Committee
may" deal with the matter (under 18(2) as amended
by Order 29/72) which provides: "whenever a Disciplinary
has deprived a chief of all the powers and duties
of his office for a specified period, the Minister may
time to time extend that period if during that
period the chief concerned has behaved in a manner that
to the dignity, status and reputation of
Applicant further avers that provisions of Section 16
(1) (2) and (3) have not been complied with. Taken Seriatim they
" (1) whenever a complaint is made to the secretary
of the Disciplinary Committee or it otherwise comes to his notice
Chief may be guilty of an act or omission that constitutes a
disciplinary offence under Section 17 of the Act, he shall forthwith
investigate the matter and take or cause to be taken statements in'
writing from all material witnesses.
/"(2) During ...
(2) During the course of his investigation the
Chiefagainst whom an allegation pursuant to theprovisions of
Section 17 is made, of such allegationand at the same time bring
to his notice that he
is not obliged to reply thereto but that if he wishes to
reply such reply shall be in writing and that it may be used to
whether disciplinary proceedings shall be instituted
against him, and shall be admissible in evidence against him.
(3) The secretary shall, within seven days of
completing his investigation, submit all the papers to
the Attorney-General, together with a recommendation as to whether
proceedings should be instituted or not."
Applicant complains that no such investigation as set
out above was made and goes further to aver that had such
been made it would have been borne out in the
decision of 1st respondent given on 22nd August, 1986. It is
significant that respondents
have made no attempt to gainsay this
vehement charge against their case.
In paragraph 6.2 applicant further avers that provisions
of Section 16(4) have not been complied with, and lays stress on the
that the requirement to comply with subsection (4) above is very
important in that it is a condition precedent to any contemplated
disciplinary proceedings; and charges that had this been done it
would have been borne out also in the decision referred to above.
Subsection (4) reads
" If the Attorney-General does not decide to
institute criminal proceedings against the Chief, he shall return the
the secretary of the Disciplinary
(5) sets out procedures which then will follow
/to bring ....
to bring the matter to a final hearing once the
conditions in the previous subsections of Section 16 have been
In paragraph 6.3 applicant avers that in as much as
Section 17(J) has to be read with 37(5) the Court has not made a
and that the 1st respondent was wrong to have
arrogated to itself the right to seize the proceedings and determine
the issues to
a finality there in. The finding of guilt shall be
concommitant with the recommendation and such recommendation shall be
as to further action deemed necessary to be taken by 1st
The wording of the relevant portion of Section 37(5) is
in (b) reading:-
" In addition to imposing a penalty under this
a court convicting may recommend to
the person or body having power and
authority in thatregard, that the person convicted be
deprived of hisoffice or of the right
to exercise the functions ofan office of the Chief
It would seem therefore that the substition by amendment
of the words "whether or not" for the words "and"
operation of Section 8(2) of Order 29/72 in paragraph 17(j)
disposes of the need for the Court to make a recommendation hence the
submission by 1st respondent in paragraph 6.3 is well
founded. It reads "the law as amended, which
is presumed to know, disposes of a need by the Court to make a
recommendation, and further (it is submitted) in applicant's
amended law as aforesaid applied." To the extent that
applicant's case rests on his contention that a recommendation
necessary it would seem he was labouring under a misapprehension.
But this is not the end of the matter. In reply to
applicant's charge that first respondent proceeded in the matter on
of the court having found him guilty of culpable homicide
whereas applicant was convicted of assault with intent to do grievous
harm 1st respondent contended itself with, according to
its chairman's answering affidavit, a bare denial; and proceeds to
that despite an apparent mistake in the charge sheet, the trial
was conducted in a fair manner and applicant was afforded a
hearing. I do not know what apparent mistake is being referred
to in the charge sheet. It was never drawn to my attention.
a matter that respondents seem to have overlooked and which applicant
legitimately complains of appears clearly in Annexure
page two of the Disciplinary Committee's Charge Sheet. It reads:
" You, Chief Napo Majara ........ are charged with
contravening Section 17(j) of Chieftainship Act No.
22/68 in that on the 19th July, 1984 you were
found guilty of a criminal offence of having killed
one Sealemetse Koloko without intention by the Court
of the Magistrate. i. and therefore
contravened the provisions of the mentioned law."
Following on the above charge was returned a verdict of
guilty as charged; the actual wording is on page 3 of Annexure "D"
the Disciplinary Committee's decision and is as follows:-
" Accused is found guilty under the Chieftainship
disciplinary laws as charged against him."
Surely there can be no room for conjecture with regard
to what the charge alleged i.e. contravention of Section 17(J) but I
no misapprehension that the sentence of 5 years without
discharging any Chiefly functions flowed from the consideration that
had killed a person as against the consideration that he
had assaulted him. I came to this conclusion as a result of the
failure to give substantial reasons why the sentence
imposed was so severe. Truly there is no gainsaying the fact that
homicide is a more serious offence than assault in all its
In contrast to the verdict considered by the
Disciplinary Committee is the verdict reached by the subordinate
court that the accused
was found guilty of "assault with intent
to do grievous bodily harm" though charged with
culpable-homicide. See Annexure'
"C" to applicant's papersi
It is important to note that Section 16(1)(2)(3) lays
down the procedure to be followed before the actual hearing by the
Committee can be embarked upon. I find nothing in the
statute that condones a departure from that procedure set. It may
superfluous that after a court of law i.e. the subordinate
court has reached a decision on the matter the proceedings should
more be referred to the Attorney-General for purposes of
complying with 16(4) but as the maxim goes 'superflua non
nocent' - superfluties hurt not. Moreover there is merit in the
consideration that the best interpreter of the statute is the statute
Nothing in the statute as it stands absolves one of the
necessity to act in terms of Section 16 once a conviction has been
in terms of Section 17(J). It would be only where an
exception is made authorising a departure from provisions of Section
where interpretation of Section 17(j) when made to accord
with. Section 16 leads to either illusory judgment or
absurd results that such a course should be followed.
As the law stands it seems to me that it is essential in
all circumstances to follow provisions of Section 16 as for instance
its subsection 2 is preserved the audi alteram partem
rule. Furthermore it appears under subsection (3) and (4) that it is
of vital importance to refer the papers to the Attorney General
await his action for the condition precedent to the Committee
exercising its powers seems to reside in the Attorney General,
Consequently if the Committee cannot exercise its powers unless the
condition residing in the Attorney General is met, then it means
exercise of such power notwithstanding the fact that the condition
has not been met lacks the necessary sanction and therefore
irregular. Power should follow justice not, precede it. A rule of
justice lays down that a condition precedent must be fulfilled
the effect can follow. Co-Litt. 201.
I need hardly emphasise that it is only in doubtful
matters that, such an interpretation is to be made that inconvenience
may be avoided. Otherwise as amply shown under Section
16 the words of the law are very clear therefore there should be no
from them for / the meaning of the Legislature gathered
from those words cannot be so well explained as by its own direct
since index animi sermo (language conveys
the intention of the mind) and maledicta expositlo quae corrumpit
textum (an exposition which corrupts the text is bad). Moreover a
departure from the law makes one wander and all things become
to everybody. It would be rash to allow one absurdity,
because what would follow is an infinity.
/Mr. Mohapi ...
Mr. Mohapi for the respondents in argument raised
the issue that the applicant has not supplied the Court with the
record of proceedings. While
indeed it would have been beneficial to
the Court and at least one of the Counsel to have had the record it
serves no useful purpose
to raise this matter at this stage when
ample time existed when the matter could have properly been held in
issue against the applicant.
One does not know; perhaps in it might
be discovered things favourable to the Crown. If applicant in
considering the record decided
to leave it out because of the edge it
would provide the Crown with against him, so be it, for no one is
bound to arm his adversary
Having considered as many issues raised in this matter
as I could I find that proceedings before the Disciplinary Committee
as the role of the Attorney-General was side-stepped
in embarking upon them. Hence they are quashed. It is worth being
mind as a general rule that the good of a respondent arises
from a perfect case; his harm from any defect whatsoever. Only two
of applicant's costs are awarded against respondents on
account of the latter's partial success indicated earlier in this
M. L. LEHOHLA ACTING JUDGE
7th August, 1987
For the Applicant : Mr. Monaphathi For the
Respondents : Mr. Mohapi
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