IN THE HIGH COURT OF
LESOTHO In the matter between:
v THABISO TSOAUOA
Before the Honourable the Chief Justice Mr. Justice B.P.
Cullinan on the 26th day of May, 1989.
For the Crown : Mr. S.P. Sakoane, Crown Counsel For
the Accused : In Person
Cases referred to: (1) S v
Magao (1959)1 S.A. 489 (AD)
(2) Smithy Desmond (1945)1 All
(3) Rv Tebbie & Anor. (1945)3
The accused was convicted by the Subordinate Court of
the First Class for Thaba Tseka district of robbery.
The appellant pleaded guilty. He agreed with a
statement of facts and was duly convicted. 'After the accused had
spoken 1n mitigation
the record reads:
Committed for sentence by High Court."
The offence was committed on 15th January, 1989* so that
I presume the learned trial. Magistrate committed the accused for
under section 293(1) of the Criminal Procedure &
Evidence Act, 1981, in view of the minimum sentence of 10 years'
provided by the Revision of Penalties Order 1988.
Section 293(1) reads as follows:
"293. (1) Where on the trial by a subordinate
court a person whose apparent age exceeds 18 years is convicted of an
the court may, if it is of opinion that greater punishment
ought to be inflicted for the offence than it has power to inflict,
reasons to be recorded in writing (of) on the record of the case,
instead of dealing with him in any other manner, commit him in
custody to the High Court for sentence."
It will be seen that a Magistrate must record his
reasons for committing an accused for sentence. In the present case
no reasons at
all were given. More importantly, it will be seen that
(i) The use of the words "opinion" and "may"
indicate that the court's power in the matter is discretionary and
(ii) the court may commit the accused
"instead of dealing with him in any
-3-other manner", but that such discretion may
only be exercised if the court
(iii) "1s of opinion that greater punishment
ought to be inflicted for the offence than it has power to inflict."
In the present case the learned trial Magistrate
no power to deal with the accused "1n any other manner",
nor, as will be seen, 1n any manner at all. The matter of sentence
not discretionary in the present case, that is, any sentence less
than 10 years' imprisonment: the statutory minimum sentence
of 10 years' imprisonment. Further, there is no question that
"greater punishment ought to be inflicted" than the
Magistrate had power to inflict: the position was that it was
statutorily mandatory that greater punishment had to be imposed than
the Magistrate had power to impose.
Quite clearly the provisions of section 293(1)
embrace the situation where the Magistrate has the power
to impose a punishment, up to the maximum of his particular
but considers that in the circumstances of the case, a
greater punishment should be imposed. In the case of a statutory
sentence which exceeds the Magistrate's jurisdiction, the
Magistrate's opinion in the matter as to an appropriate sentence
than the statutory minimum) is irrelevant. In brief I consider
has no application to the present case.
Further, the learned trial Magistrate ventured
a trial when 1t was quite clear to him that 1f the accused were
convicted of the offence charged he would have no power to punish
him. Section 293(1) provided no answer to the situation. The object
of trial is surely to convict and to appropriately punish the
and also of course to acquit the innocent. If there is no power to
punish, then I cannot see that there is any power to
try and convict.
In brief, in my judgment the learned trial Magistrate had no power
to enter a conviction in the present case.
In the circumstances, the learned trial Magistrate
should not have embarked upon the trial. Having done so
however, I do not say that he would have lacked for jurisdiction if
example, had found a lesser offence to have been proved and
had entered a conviction in respect of such lesser offence. Such, I
consider, was the situation here.
The statement of offence did not reveal the identity of
either of two persons who broke and entered the female complainant's
at night. The statement indicated that one of the two stabbed
her 1n the hand, whereupon she fled to the house of a neighbour
Thereafter property was stolen from her house. It was not
stolen 1n her presence,
but it was in her presence when violence was exercised:
see S v Magao (1) and Smithy Desmond (2). Hunt
in his work South African Criminal Law & Procedure Vol.11 at
p.646 is critical of the decision 1n the review caseR v Tebbie
& Anor. (3) and comments thus:
"It 1s accordingly submitted: first, that
'presence' is a matter of degree very much bound up with the
particular circumstances. Secondly, that it 1s inaccurate to
say that the taking must be in Y's presence: it is the property which
must be in Y's presence when X puts
his plan of violence into
execution. Any other conclusion would be ludicrous. It would involve
holding that X is not guilty of robbery
if by violence he makes Y run
miles away so that X can ransack his house when Y has gone. Thirdly,
that the thing 1s outside the limits of Y's perception when Y is
assaulted and/or the thing is taken is indecisive, though 1n an
appropriate case 1t may be a circumstance relevant to deciding
whether 1t is 1n his 'presence'."
In my view a robbery was committed, but the identity of
the robbers was not established. The only aspect to incriminate the
was that he led the police to where the stolen items were
hidden in a field, indicating guilty knowledge. The inference of
may certainly be drawn, but on the facts before the learned
trial Magistrate that was not the only reasonable inference. There
no evidence in particular as to when the appellant led the police
to the field: it could have been as much as 3 days after the crime.
Another, the only other reasonable inference, was that the accused
received the stolen goods
knowing them to have been stolen. In such circumstances
the Court should not have drawn the inference which had graver
for the accused, as it was clearly unsafe to do so.
Under the circumstances the conviction of the Court
below 1s set aside and there is substituted therefor . a conviction
stolen goods knowing them to have been stolen. As to
sentence, the accused is a first offender, who pleaded guilty. He
1n prison for four months, that is, the equivalent of a
sentence of six months' imprisonment with remission. The value of
stolen was clearly negligible. In all the circumstances I
sentence the accused to one year's imprisonment with effect from
Delivered at Maseru This 26th day of May, 1989.
(B.P. CULLINAN) CHIEF JUSTICE
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