IN THE HIGH COURT OF LESOTHO
In the matter between:-
THE MAGISTRATE (MR. MORUTHOANE) 1st Respondent
DIRECTOR OF PUBLIC PROSECUTIONS 2nd Respondent
J U D G M E N T
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 17th day of October, 1990
This is an application for review of the proceedings of
the Magistrate's Court for the district of Maseru in CR 21/90. On the
August, 1989 the applicant appeared before the aforesaid
court charged with two counts of theft of motor cars, alternatively
contravention of section 344 (1) of the Criminal Procedure and
Evidence Act 1981. After the charges were read and explained to him,
he pleaded guilty to the main charge in count 1 and guilty to the
alternative charge in count 2.
The public prosecutor accepted the pleas and gave an
outline of the facts of the case as disclosed by the evidence in his
The applicant was then asked if he admitted the facts
stated by the public prosecutor. His answer was in the affirmative.
convicted and sentenced to five years' imprisonment in count 1
and to four years' imprisonment in count 2.
The summary of facts reads as:
"As regards Count 1
Accused lives in Borokhoaneng in Maseru. There is one
White man by the name of George Alfred Smith who lives in Zaztron in
He owns a motor vehicle with reg. nos OZ 186. 1980 model with
Engine no. Z 2874 chassis no. LXZ N 4402 8717.
On the evening of 28/6/89 Mr Smith parked this
vehicle outside his home he had closed and locked it.
The time was about 5.00 p.m. The following day on 29/6/89 he found
missing from where he had parked it. He had not allowed
anybody to remove it and use it in their own business.
Accused and one Nkule Taoana had no right to remove Mr.
Smith's vehicle from where it was parked.
Mr. Smith reported the matter to the police at Zaztron.
He looked for it but could not find it.
Accused and one Nkule Taoana left Lesotho to Zaztron.
Both of them jointly unlocked Smith's vehicle and drove it from
brought it into Lesotho at Lakeside Hotel in the district
Accused was found driving this vehicle by the police in
Maseru. At this time the plate numbers of this vehicle had been
A 7114 placed for them. Accused was arrested. Particulars
of this vehicle were circulated both in Lesotho and R.S.A. On 30/6/89
was the same day when accused was arrested Mr. George Alfred
Smith received a telephone call from Zaztron Police that his vehicle
had been found in Maseru. He came to Maseru CID Police in Lesotho
where he identified this vehicle as his.
On 1st July accused was released to go home. He
was informed that he would be summoned when the case was
ready to go to the court.
There is a white man by the name of Joachim Jacobus
Cloete who lives in Bloemfontein. On the evening of the 12/7/89 he
and locked all the doors of his vehicle Reg. nos OB 30426.
The following day he found it missing from the place he had parked
Chassis no. of his vehicle was NR 238899. A blue and
white Ford Courier* 1987 Model. He had not allowed anybody to unlock
vehicle away from where he had parked it.
After accused was released by Police on 1/7/89 he went
to Bloemfontein with one Ezaiah Mafisa. On 13/7/89 Mafisa and another
went to same place. The following day he brought this vehicle
in question to accused. Both accused and Mafisa brought this vehicle
to Lesotho. It was driven by accused. Mafisa told accused that this
vehicle had been stolen.
Accused was driving this vehicle at Ha Matala in Maseru
and they suspected it.When they approached accused he drove it away
at a high
speed. He was running away from them and he took
Masianokeng direction the police gave chase. Accused abandoned this
vehicle at some
place at Masianokeng and ran away. He went to hide at
Tsenola in Maseru.
When he received this vehicle from Mafisa, accused had
no reasonable grounds to believe that it belonged to Mafisa nor that
been authorised by its owner to dispose of it or to deal with
it. Accused had not acquired this vehicle from a public sale.
Mr. Cloete, reported the loss of his vehicle to
Bloemfontein Police, the police in Lesotho circulated the particulars
of this vehicle
in Lesotho and R.S.A. Mr. Cloete then came to Maseru
CID where he identified it as his.
Accused was later arrested and was charged with theft of
both vehicles, which are still with Police in Maseru and handed in as
vehicle reg. nos. OZ 168 marked Exh. I vehicle reg. nos OB
30426 marked Exh. '2'."
In his founding affidavit the applicant deposes that he
was arrested on the 9th August, 1989 and charged with car theft. On
August, 1989 he was taken to court and met Prosecutor Mr.
Tlali who told him that the trial was proceeding on that same day. He
Mr. Tlali that due to the seriousness of the charge
preferred against him, he wished to be given chance to engage the
a legal practitioner. Mr. Tlali told him that the
services of a legal practitioner were not necessary because he had
arrangements with the investigators, his mother and the
magistrate that he should plead guilty so as to get a suspended
He wanted to engage a lawyer because he had heard over the
radio that people convicted of car theft were heavily sentenced.
Mr. Tlali called his (aaplicant's) mother into his
office and advised her to talk to him as they had pre-arranged. His
persuaded him to plead guilty. Though he was not guilty
he pleaded guilty. He avers that had it not been because of these
he would not have pleaded guilty and he would have
great prospects of success in the said trial.
I wish to digress at this juncture and make some
remarks. The applicant has not taken the Court into his confidence
and told it what
his prospects of success are based upon. According
to the summary of the facts made by the public prosecutor, which were
admitted by the applicant, the two vehicles in question
were stolen in the Republic of South Africa and were later found in
of the applicant here in Maseru. The applicant had
gone to the Republic of South Africa and had stolen these vehicles
some people whose names are given in the statement of the
facts of the case. I think it was the duty of the applicant to
what his defence is going to be because he is asking this
Court to set aside the proceedings in CR 21/89 and to order a trialde nova before a different magistrate and a different
In Theese Phooko v. Magistrate (Mrs. M.Mokoena) andanother CRI/REV/1/89 dated the 22nd May. 1989 (unreported)
the applicant was found in possession of the stolen vehicle. In his
for review he explained how the vehicle came into his
possession. He had bought it from the late Lehana Lebopo who showed
him a registration
certificate in which the names of the said Lehana
Lebopo appeared. The engine and chassic numbers tallied with those on
certificate. In the instant case the applicant is
not prepared to tell this Court how the two vehicles came into his
Coming back to the evidence on behalf of the applicant,
his mother 'Malerato Motlomelo deposed that on the 10th August, 1989
to the Police Headquarters to make enquiries about her son
who had been arrested; she met one policeman named Nkemele Sehlabaka.
He informed her that the applicant had been arrested in connection
with forty stolen cars but he would be charged with the theft
cars. He went further to say that police were
going to shoot and kill applicant as the law of the
state of emergency empowered them to do so. He said that recently
they shot dead
a number of people suspected of theft of cars in the
districts of Butha Buthe and Quthing. He lastly informed her that in
Court for car theft cases lawyers are not allowed to
appear. She then burst into tears.
Noticing that she was crying Nkemele Sehlabaka told her
that he understood how she felt as a parent and that if she raised
him the sum of M1,500-00, he would see to it that her son's
life was spared. He would negotiate with the public prosecutor and
magistrate that her son be,released. She gave him the required
sum of money. She goes on to aver that at the court she met one Mr.
Tlali who asked her to persuade the applicant to plead guilty so
that he could be released without delay and trouble.
Policeman Setlama Nkemele and Mr. Tlali have filed
affidavits in which they deny all the allegations made against them.
by both the
appellant and his mother. Mr. Tlali deposed that all he
did when the applicant was brought to him by the police was to ask
he was going to plead. If Mr. Tlali is telling the truth then
there was no question of plea-bargaining. The public prosecutor is
entitled to ask an accused person to tell him how he is going to
plead so that he can subpoena the witnesses if the accused person
says that he is going to plead not guilty or dispense with the work
of issuing subpoenae for the witnesses if the accused indicates
he is going to plead guilty.
The explanation of the applicant and his mother that he
was forced by policeman Nkemele and Mr. Tlali to plead guilty to an
he has not committed is totally unworthy of belief. The
applicant is not an ignorant Mosotho person but a fairly
man who often heard over the radio that car theft
was regarded by the courts as a very serious offence for which very
were imposed. It is totally unbelievable that the
applicant and his mother could be happy with a suspended sentence for
he has not committed. An innocent man cannot plead guilty
to a serious offence he has not committed. It is well known that
accused persons make confessions under duress but very
often when the matter comes to trial they reveal to the presiding
officer that the confession was not freely and voluntarily
In the instant case the applicant was allegedly forced
to plead guilty on condition that he gets a suspended sentence. The
judicial officer who was allegedly aware of the
arrangements for a suspended sentence did not stick to the agreement
him to a total of nine years' imprisonment. Why did the
applicant not complain to the presiding judicial officer immediately
sentence was announced? He did not do anything until eight months
later when the present application was launched. I have already
stated above that the story of the applicant and his mother is
totally unworthy of belief. She alleges that she parted with her
on condition that her son got a suspended sentence but when
this was not done she did not do anything. She did not complain to
presiding judicial officer.
Mr. Phafane, counsel for the applicant, submitted
that the presiding judicial officer committed an irregularity by
failing to explain to the
applicant his right to legal .
representation. In Phomolo Khutlisi v. Rex C. of A (CRI) Mo. 5
of 1989 dated 26th January, 1990 (unreported) at page 7 Ackermann,
"I need hardly add that the question as to when, or
under what circumstances an impacunious accused is entitled to free
representation might be answered differently in different
countries. The duty to provide free legal representation in a wider
of cases may, for a variety of reasons, be greater in the
United State of America than in the Republic of South Africa and
in the latter than in the Kingdom of Lesotho.
It is important, for the proper administration of
justice, nonetheless, that an unrepresented accused, at the
cemmencement of his
trial, be informed of his legal rights, in regard
to legal representation, and, if he is indigent and desirious of
what avenues are open to him in this
The difficulty facing the appellant in the present case
on this issue is the paucity of facts. There is no evidence that the
rights in this regard were not explained to him. There is
indeed no evidence that the appellant was unaware of his rights
legal representation nor, if he had been informed of, his
rights that he would have wanted legal representation. Consequently I
not satisfied that the appellant has established any procedural
irregularity in this regard."
In the instant case the applicant was actually aware of
his right to legal representation but failed to exercise his right
of his own. I am of the view that the presiding judicial
officer committed no irregularity because the applicant was aware of
rights. There was no need for her to explain to the applicant
what he already knew. It would have been a different matter if the
applicant was unaware of his right to legal representation.
in the result the application is dismissed.
J.L. KHEOLA JUDGE
17th October 1980.
For the Applicant - Mr. Phafane For the Respondents
- Mr. Sakoane.
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