CRI/APN/227/05

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LEBAJOA
MOKHOBO APPLICANT

AND

MAGISTRATE
BEREA MARISTRATE'S

COURT
1st RESPONDENT

SENIOR
CLERK OF COURT - BEREA 2nd RESPONDENT

DIRECTOR
OF PUBLIC PROSECUIONS 3rd RESPONDENT

ORDER ON
REVIEW

Delivered
by the Hon. Mr, Justice G. N. Mofolo On the 29th day of April. 2005

The
matter came before this court on review.

According
to the Applicant, after the accused pleaded guilty to the charge, the
Public Prosecutor outlined facts of the case which
were admitted by
the accused and the Court instead of convicting or acquitting accused
asked if there were previous convictions
and it turned out there were
none. The accused had then been asked to mitigate sentence and having
done so the Court had sentenced
accused to seven (7) years
imprisonment.

This
Court has perused the record of proceedings in this matter and finds
above facts true.

Mr.
Mokoko for the applicant has submitted that although there is a
conviction on the body of the charge sheet this is erroneous
for the
reason that a conviction cannot materialise out of the blue in that
it must be borne out of the record before Court, the
record and hence
evidence in the case being what the Public Prosecutor submitted to
Court as a result of which the court could
either convict or acquit
accused. Since the court had not convicted after hearing evidence, it
follows that there was no conviction.
I couldn't agree more.

Since
after both the Crown and Defence case is closed an accused is
entitled to a verdict of guilty or not guilty, and in the instant

case there is no such verdict, the sentence of the Court a quo is set
aside and it is ordered that the case be remitted to the
Magistrate
who handled the case, to either convict or acquit accused and in the
event of convicting accused to impose a fresh sentence
since the
sentence imposed by the learned Magistrate has been set aside.

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G.N.MOFOLO

JUDGE

For the
Applicant: Mr. Mokoko

For the
Respondents: Mr. Mapetla

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