HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS 1st Respondent
MAGISTRATE (Mr. Masiphole) 2nd Respondent
Applicant: Mr. Molapo
Crown: Miss Ntelane
by the Honourable Mr. Justice T. Monapathi On the 30th day of
This is a
very rare occasion when a magistrate against whose judgment is sought
to be reviewed sets out to settle an opposing affidavit.
up, in my view, as having been very helpful. I am not suggesting that
the learned magistrate, Respondent in this case
must have told the
whole truth nor that he must necessarily be believed.
review of the proceedings, which had been concluded, in which the
Applicant was convicted and sentenced on two counts, was sought
the following grounds, all of which I was not able to determine on
the papers except the first one. First, irregular and erroneous
sentence. Second procedural irregularities and lastly bias of the
Second Respondent's on the Applicant. In my opinion no substantial
prejudice was proved in respect of any of the complaints.
Applicant had been charged on two counts under POLICE SERVICE ACT
NO.7 OF 1998 more specifically under section 58(e) (obstruction)
under section 26 of INTERNAL SECURITY (GENERAL) ACT NO. 24/1984
(......obscene, threatening or insulting words or behaviours,
swears, shouts ......) for which Applicant was sentenced to Eight and
Twelve months respectively without option of a fine. It
was to be
noted that the sentences provided for both counts in the two ACTS
were 2 years or Ml,000.00 and M400.00 or 1 year respectively.
had complained ( which is not part of the present claim) that having
been granted bail he was re-arrested by police. No
given for this conduct. Much as it was in character with the conduct
of the proceedings by learned magistrate,
as it was repeatedly
alleged, none of these events were recorded. The following other
events were not recorded or this was inaccurately
"disastrous effect" to the Applicant's case as the
7th May, 2003 Mr. Molapo who was Applicant's representative together
with the Public Prosecutor Mr. Makebe agreed, as Mr.
contended, over a postponement of the matter to the 16th of
month. This was after Mr. Molapo, Applicant's Counsel, had succeeded
to have the detention of the Applicant set aside as said
was not recorded was that it was agreed by both parties that the
trial would start around midday in as much as Mr.
Molapo already had
a matter set before the High Court in Maseru.
not recorded, furthermore, was that Applicant had in fact intimated
to the learned magistrate that, as per agreement, that
would be delayed. This agreement, as it is deposed by the Applicant,
was disregarded by Mr. Sesoai another Prosecutor
who stood in for the
original Prosecutor Mr. Makebe. Which means that it was a different
Prosecutor who later appeared when the
matter reconvened on the 16th'
in the absence of Mr. Molapo. A lot more things are stated by the
Applicant as forming the part
of his complaint about irregularity and
bias. These were denied by the learned magistrate who responded that
he put in extra effort
to assist the Applicant in conducting his
that, as it is found in most cases, no specific recordings were made
about particular events as outlined above, I was unable
to decide on
the papers for the Applicant in the face of the opposing affidavits
of Mr. Makebe the original Prosecutor and the
affidavit of the
learned magistrate. Mr. Molapo ended up conceding that there would
therefore be no basis for disturbing the conviction
judging from the
problems posed by lack of evidence or the resulting inability of the
Court to decide the matter on the papers.
would warn that, if vital statements in the proceedings were not
recorded, as I strongly suspected in this case, that
is not only
unwholesome but it would conduce to grave injustice. It was just
that this Court was wisely advised not to probe further into the
matter. The worst case scenario would have been quite
repeat that learned magistrates must record all vital statements and
events in their proceedings.
no reason therefore why the convictions ought to be disturbed. I
however varied the sentences. This was on the ground that
no reason why options of a fine were not on both imposed counts in
and the light of a "heavy sentence" in respect
of the other
and in the light of the allegedly provocative conduct of the other
driver against the Applicant which resulted in
those swear words and
obstruction against the complaints as Applicant conceded could have
been the effect of his actions. The learned
magistrate did not
comment on this in connection with the sentence he ultimately gave.
Neither did he comment on the view he took
in connection with
mitigating factors put forward by the Applicant.
learned magistrate ordered that reasons for sentence would follow
later. They never followed. At any rate they should have been
delivered immediately on pronouncing the sentence. This was a
misdirection which caused this Court to interfere with the sentence.
On the 15
December 2003 I altered the sentences to read as follows:
Twelve months imprisonment or M600.00 fine. Count 2: Eight months
imprisonment or M400.00 fine.
or before the 31st December 2003 or to serve the remaining eight
months term of imprisonment.
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