IN THE HIGH COURT OF LESOTHO
In the matter of :
VS LETSIE MOLAPO
J U D G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
11th day of September, 1990.
In this matter the accused has been committed by the
court below for sentence to the High Court. He was tried by the
of Leribe, where he pleaded guilty and
accordingly a plea of guilty was entered by that court.
The outline of the case having been presented to the
court by the prosecutor of that court, and the accused having
admitted the facts
as being in keeping with his knowledge of events,
I have been told today in an alternative argument by the defence
counsel that the
plea of guilty that was entered was not truly or
necessarily a plea of guilty. The argument advanced being that he was
In a counter argument the crown has submitted that on
the record there is nothing to reveal that the accused was at all
in the court where he appeared. It was
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on the score of further arguments submitted that the
defence urged the court to postpone this matter so that material can
perhaps to persuade the court, that there was in fact
intimidation or at least that the plea that was tendered by the
not accurate. Meantime the defence urges further that
the accused should be released on bail pending the hearing.
The crown objects to this application and these
submissions. As stated in the case or Review Order No. 4 of 1990 Rex
vs Tsolo Motholo - the accused in that case had appeared before
the magistrate of first class powers charged with the crime of
robbery. He was found
guilty by the magistrate in that case and
committed for sentence by this court in terms of section 293 of the
C.P. & E. 1981.
learned Judge dealing with that review focussed his attention on the
question of the jurisdiction in the matter of punishment
classes of magistrates as set out in section 61 of the Subordinate
Court's order 1988. Suffice it to say the crime of
robbery carries a
minimum of ten years' imprisonment.
The accused was tried by a Resident Magistrate. He does
not have the jurisdiction. He hasn't got sentencing powers extending
ten years' imprisonment. Those powers in the Subordinate Court
are confined to the Chief Magistrate alone. It was for this reason
that the learned Judge in Tsolo Motholo (above) decided that
because the magistrate who had tried the accused in that case had no
jurisdiction, the matter should be remitted
- to the Subordinate
court -rather to the Chief Magistrate to be tried de novo.
In that respect that Judge differed in his approach
from the Judge who had dealt with the previous case. The previous
case was that
of Rex vs Lekhotla Ramotso & Another.
That was Review Order No. 12 of 1989. In that
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case the accused were convicted of robbery by the
magistrate of first class. She sentenced them each to six years'
The matter was brought on review, and it does appear
that the Judge before whom the matter came did not consider whether
the Subordinate Court had jurisdiction at all to deal with the
matter. In his remarks he stated that the accused ought to have been
committed for sentence by the High Court. He accordingly set aside
the illegal sentence and substituted therefore the mandatory
sentences of ten years' imprisonment on each of those accused.
The result in Motholo is in disagreement with
the result and the approach adopted in Lekhotla Ramotso.
I,personally, am inclined to the view expressed inMotholo's matter. I find that the magistrate who tried this
matter had no jurisdiction, and ought not to have tried it at all. A
is committed for sentence by the High Court, should fall
within the jurisdiction of the magistrate in question. By that
we mean the power not only to convict, but also to
impose sentence, and in that case if the magistrate finds that with
powers that he or she has he or she is of the opinion
that the offence warrants greater sentence than he or she has then
then can he or she commit the matter to a court which has
got higher sentencing powers.
To come to this view I have had regard to the wisdom
entailed in the legal adage that the order of things is confounded if
preserve not his jurisdiction.
It is for these reasons therefore that I order that the
proceedings in the court below should be set aside. I also order
case be tried de novo by the Chief Magistrate who is
the magistrate who has got sufficient powers to try this matter. It
would be a different thing if
he feels that the jurisdiction that he
has warrants higher sentence than the minimum prescribed. In that
event he would be entitled
and at large to have the matter committed
to this Court for sentence.
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I wish also to make an additional order, namely that, in
view of the time that the accused has spent in jail, and the fact
had pleaded guilty, if the learned magistrate is going to
convict him at all, he should take the length of time spent in jail
account. I would accordingly urge the crown to do all in its
power to ensure that the bringing of the accused to court is
J U D G E. 11th September, 1990.
For Crown : Mr. Qhomane For Defence : Mr. Ngakane.
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