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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