HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS Respondent
Applicant : Miss Liphoto
Respondent : Miss Lesupi
by the Honourable Mr. Justice T. Monapathi on the 23rd day of
an application for condonation of a late noting of appeal against the
sentence of the magistrate of Maseru. The charge sheet
proceedings indicate that the conviction was entered on the own plea
of the Accused.
was sentenced to a term of imprisonment for two years without option
of the fine. This was followed by Notice of Motion
of late noting of
appeal filed on the 14 th October 2003 two months and 2 days after
conviction and sentence.
which is about four months from the date of application this matter
finalized. In between date of the service of the notice on the Crown,
there was intention to oppose filed 20th October 2003.
To date there
has been filed no answering affidavit despite the latitude allowed by
Judges of this Court on three occasions nor
is there a notice
indicating the grounds upon which this simple application would be
opposed. What appears in the record is Respondent's
heads of argument
Counsel for Applicant did not file heads of argument I did not
necessarily follow that Crown Counsel would be
denied audience nor
that the Order sought must be confirmed automatically. This Court
still reserved its discretion in any event
If, as in
the present circumstances, there is no answering affidavit nor notice
in which points of law are raised, I would accept
that mere is no
basis upon which in terms of the rules, the Crown can stand up to
oppose. I would however in my discretion ask
Miss Lesupi to comment
on certain point as indulgence.
that there are no reasons in the record for the sentence imposed by
the magistrate which is in itself a misdirection.
I would not
normally, in the circumstances therefore, be in the position to judge
as to the harshness or otherwise of the sentence.
This is also in the
circumstance mat nowhere in the record is it stated as to the minimum
or the maximum sentence attracted by
contravention of section 3(2) of
the INTERNAL SECURITY (Amendment) ACT No. 17 of 1966. Moreover it
remains in any of those events
a misdirection where a presiding
officer will not state a basis or reasons for a sentence imposed.
for this intended appeal is interesting. It is that a simple charge
such as unlawful possession of a firearm (powerful
9 mm pistol)
requires legal representation when the substance of the charge is
that the firearm is possessed unlawfully i.e. without
a licence by
test for all these legal requirements, despite the ever creeping
technicalities is whether an accused understands the charge
him. If he understands the charge and the charge is not complex mere
is no need for legal representation as a binding requirement.
attendant investigation will LAO be whether there is prejudice and if
no prejudice is demonstrated then there is no serious
basis for these
myriad of complaints that are only utilized to frustrate real and
substantial justice in criminal proceedings.
in this proceedings this Accused was asked whether he understood the
charge, and he said he did. Indeed there is no minute
magistrate may have asked the Accused whether he was in need of legal
representation. However on the basis of the
comments already made
about the nature of the charge this, in my opinion, is not a serious
present I note that on the basis of the intended grounds for appeal
one can surely observe mat there are no prospects of
they are amended. When such application was made, which I allowed, I
applied my mind to the amended sought as I
said I would. It was that
the sentence did not comply with section 43 of INTERNAL SECURITY
(ARMS AND AMMUNITIONS) ACT NO. 22/1966
as amended. That
material misdirection as submitted later. I consequently agreed.
the charge sheet has not stated the penalty section which the offence
section has to be read. This is a faulty approach
Prosecutor. This Court is however bound to investigate the proper
penalty section to find out if the learned magistrate
complied with that section. Indeed this would be indication as to the
extent to which a proper attitude has been applied
by the magistrate
as to sentence.
discovered that proper penalty section is section 43(1) for persons
convicted under the instant offence. Accordingly a person
conviction be liable to a fine not exceeding R400.00 or to
imprisonment not exceeding one year or such find and imprisonment
Counsel convinced me that the penalty clause has existed unamended
therefore clear that the answer to the submission whether a material
misdirection by the trial Court's sentence has occurred
has to be
answered in the affirmative. See also NKELELE v REX 1963 - 66 HTCLR
269 PHALOANE v REX LLR(2) 246. It is that there has
misdirection to the extent that the magistrate could not competently
impose a two years prison term without option of the
fine which is in
disregard of the said section 43(1).
observe that no indication was made as to where the exhibit i.e. 9 mm
pistol is. Presumably it has been exhibited. If so
it had to be
forfeited to the State which is the
that I would make.
interest of justice I will treat this matter as a review matter. This
discretion I adopted in view of the length of time
the Accused has
been in custody, while he could have availed himself a speedy
resolution of this matter and good advise by Counsel.
All of these
Applicant was unfairly denied. The roundabout of filing a proper
appeal and payment of fees would surely spell injustice
circumstances of this matter.
spoken to two Counsel Miss Liphoto and Miss Lesupi I also emphasized
to them that the responsibility on the shoulders of
they are is a heavy one. One should staunchly guard the interests of
client and to other the interests of justice.
So that their attitude
should accordingly reflect that I was there referring to the fact
that most of the problems besetting this
matter could be layed at
their doors. Like professionals they happily accepted the blame.
is that the matter of sentence is reviewed and set aside. As a
substitute the Applicant is sentenced to One (1) Year imprisonment
with option of a fine of Four Hundred Maloti (M400.00). The exhibit
is to be forfeited to the State.
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