CRI/A/84/89

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

MATHIBELA BOROTHO Appellant

v

R E X Respondent

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
6th day of November, 1989.

The appellant was convicted of contravention of section
51 of the Road Traffic Act No. 8 of 1981 before the Magistrate for
the district
of Leribe. The accused then pleaded not guilty to both
the main and the alterna­tive charges; and after the evidence was
led
the appellant was found guilty as charged and sentenced to five
years' imprisonment.

He appealed to this Court against conviction. There
were also submissions in the proceedings before sentence. The crown
very properly
submitted that the charge sheet was wrongly framed in
that the charges should have consisted of two separate counts and not
alternative
counts since there are two distinct statutory crimes
which were created by the legislature. The crown further considered
that the
magistrate erred in delivering a blanket judgment where it
was not specified on which count the accused was found guilty.

The crown further conceded that the conviction on the
count under section 10, Subsection 2 is improper

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in that P.W.2 gave evidence to the effect that the
number E. 2036 was lawfully allocated by a proper registration
authority to Mphetha
Khitsane P.W.I for a Toyota Hiace. The crown
further drew attention in regard to the charge under section 15(1)
that P.W.4 gave
evidence with regard to a vehicle bearing
regi­stration No. OM 27904 and not E 2036.

The crown observed that: it wasn't cler which vehicle
was actually before court. The crown consequently submitted that
there was
no way that the appellant could have known that the engine
and the Chassis numbers tallied with those on the Blue-Card which
belongs
to P.W.1. As to the sentence, the crown submitted that
even if the conviction was proper, the magistrate clearly exceeded
his
statutory powers by imposing the sentence of five years
imprisonment. The penal provisions under both sections 10 and 14
allow
the magistrate to impose a sentence of M2,000 and 2 years'
imprisonment.

From the charge sheet it is clear that the crimes were
committed around 7th of August 1987 which was before the date of
promulgation
and commencement of the Road Traffic Amendment Order
1987 which was the 8th of December of that year. It was argued on
behalf of
the appellant that the magistrate erred in treating both
the main and alternative charges as if they were one and the same
thing;
and it was argued on behalf of the appellant that this
constituted a gross form of irregularity and misdirection on the part
of the
learned magistrate. It was argued for the appellant that the
court has a few alternatives either to acquit and discharge the
appellant;
or to consider the merits of the conviction in the main
charge and ignore the conviction in the alternative charge. I was
referred
to page 7 line 9 of the record.

If only to compound the confusion that is already
bristling in the record;one finds in line 9 at page 7 that to a
question namely
"To which vehicle does this Blue-Card belong?"

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the answer was "J.P.S. 076T" with the engine
and chassis numbers shown above,. There was 2465 in k.g. Blue-Card.
The vehicle
itself reflected 1465 kg. and seems to belong to D.L.
Motsamai of Soweto and it further shows that it had registration
number E 0053.
It was also argued before me that the magistrate
delivered his judgment and that it was an impromtu one,given, I was
told, immediately
after he had concluded the proceedings and
convicted the appellant. I was told that he post-poned the delivery
of the sentence to
some future date whereupon he glibly outlined the
reasons for the judgment and sentence which he had imposed
previously. Relying
on recent practice of certain branches of this
court, the appellant's counsel told me that that is very irregular
and that when he
did so, the magistrate, that is three or so days
after he had convicted the appellant was functus officio.
And that his judgment was an afterthought.

Attention is invited to CRI/A/37/80 Pulumo vs Rex
wherein at page 4 the following words appear

"The learned counsel for the appellant further
pointed out that because grounds of appeal were filed on the 25 of
August 1987
and judgment only written on 30th August 1987 i.e.
five days after the filing of the grounds; then the judgment is an
afterthought."

But reference to Subordinate courts proclamation 58 of
1938 section 73(3) shows that any person convicted of any offence by
the judgment
of any Subordinate court may appeal against such
conviction and against any sentence to the High Court. This
situation is to be
compared with the Subordinate Courts Order of 1988
section 72(3) that replaces the original proclamation. I need but
point nut
that the contents of both sections are the same, and they
read :-

"Any such appeal shall be noted and prosecuted
within the period and in the manner prescribed by the Rules."

The relevant rules appear in order number XXXV Rule 1(1)
which says

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"an accused person wishing to appeal against any
conviction or any sentence in a criminal case shall note his appeal
within 14
days after such conviction or sentence by lodging with the
Clerk of the Court a written statement setting out clearly and
specifically
the grounds on which the appeal is based."

Section
3 reads:-

"Upon an appeal being noted the Judicial Officer
shall within seven days deliver to the Clerk of the Court the
statement in writing
- showing

1. 
   the facts found proved;

   
   

2. 
   the grounds upon which he arrived at any
   finding of
   fact specified in the appel­
   lant's statement as appealed
   against; and

   
   

3. 
   his reasons for any ruling of law or as to
   the
   admission or rejection of evidence so
   specified and as appealed
   against."

   
   

In Pulumo above this Court had occasion to
observe that, to understand the meaning of the word statement as used
in subsection (3) where the
Judicial Officer is enjoined to deliver
one to the Clerk of the Court sub­section (5) has reference. And
that the word "statement
is rendered in that subsection as
meaning "the statement of reasons for judgment" and that
there is no difference between
judgment and the statement of reasons
for judgment. It would seem therefore that nothing binds the
magistrate to give reasons for
his decision before an appeal is noted
within the period specified in the rules. I also had occasion to
refer to a parallel drawn
by Lord Denning between procedures in the
Tribunal boards and procedures in the Magistrate' Courts. At page 84
of his bonk the Due Process Law, Lord Dennning himself says:-

"Accepting that the board had to do all this when
they come to give their decision, the question arises, are they bound
to give
their reasons? I think not Magistrates are not bound to give
their reasons. See R. vs Northumberland Compensation Appeal
Tribunal, ex parte Shaw (1952) I.K.B. 330 at 352."

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Regard being had to the fact that a Subordinate Court
is a creature of statute, it can hardly be faulted for abiding by
the provisions
of the statute as set out in the proclamation and the
Subordinate Courts Order 1908 section 72(3) referred to above.

It is to he observed that the proclamation on which
this Court has for a long time been relying is a product of British
Laws having
been bequeathed to this country before it attained its
independence and that statute is on all fours with the decision that
was given
in the authority just referred to by the then Master of
the Rolls Lord Denning himself.

I am satisfied therefore that the magistrate is not
obliged to give any reasons for his decision before the prescribed
terms. For
practical purposes it is advisable to give reasons for
judgment as soon as possible after the conclusion of the proceedings.
But
I think that the argument for following the strict letter of the
statute has merit, because, - and here I am fortified by experience
a
good number of cases come before the magistrates and are to be
disposed of as quickly as possible. And if in each and every one
of
those the magistrate is to sit down and write his reasons then by the
end of the year he will have done less than a 1/4 of the
work that
normally would have come before him and been finished. As the crown
has properly submitted, it doesn't seem that there
are any good
grounds for having convicted the appellant on both counts. On that
basis therefore the conviction and sentence are
set aside and the
appeal is upheld.

As to the disposal of the vehicle, the subject matter of
these proceedings, I order that the disposal of the article be
treated under
the provisions of section 53 of the C.P. & E.

J U D G E.
6th November, 1989.

For Appellant : Mr. Monaphathi For Respondent : Mr.
Mokhobo.