HIGH COURT OF LESOTHO
KHOBAI - lST Applicant
MORAISANE - 2nd Applicant
LEFISA - 3RD Applicant
WORSHIP MR MURENZI - 1ST Respondent
COMMANDING LERIBE PRISONS - 2nd Respondent
DIRECTOR OF PUBLIC PROSECUTIONS - 3rd Respondent
by the Honourable Mrs Acting Justice Mahase on the 20th day of June
were charged and convicted before a Magistrate in the Leribe
district. They were sentenced to two years imprisonment
an option of a fine. They had tendered pleas of guilty.
charged with having committed the crime of robbery. They are alleged
to have robbed from the shop of one Lebohang Mothibeli.
facts are as follows:
Mothibeli who owns a shop at Ha Rampai near Lejone in the Leribe
district has hired one Tseliso Machabe as a sales clerk.
said1 clerk stays and sleeps in that shop.
day in question while he was sleeping some people broke into that
shop. Had him covered with a bag on his head and face.
felled him down and tied him with a ..... wire on his hands, thereby
rendering him helpless and was unable to raise
an alarm. The said
people then took away the stock in the shop and left with it. They
left the clerk still tied on his hands. He
tried in vain to free
remained in that position until in the morning when a passerby
realized that the door to the shop had been closed, tied up with
wire so that it was not possible to open it from inside. He raised an
alarm and villagers came to the safety of that Sales Clerk.
incident was reported to the owner of the shop, the chief and the
Lejone Police. One trooper Khanyapa investigated this case.
to the accused who were already in police custody, having been
arrested for different cases. After having cautioned the
they gave explanations. Following that explanation, the police seized
certain items which were found upon the accused
when the police were
investigating other cases against the accused. The items which were
then found upon the accused were a wallet
containing the sum of
M200.00 some cigarette including 10 packets of peterstyvesant, a blue
bag, some 13 packets of peanuts. A
further explanation by the accused
revealed that some items had been utilized.
found items were later identified by the complaint, in the presence
of the police and the accused as being part of the items
the shop of Lebohang Mothibeli.
seized and kept as exhibits. They have been marked exhibit 1
Tseliso had sustained injuries during the robbery at the said shop.
He was treated by a medical doctor at 'Mamohau Hospital.
report, exhibit A was compiled and later handed into Court as an
exhibit. He was treated as an outpatient.
accused have no previous convictions. As has already been indicated
above, they were each sentenced to imprisonment for
a prison of two
(2) years without an option of a fine.
accused have all applied for a review of their case.
application has been filed on urgent basis in terms of the provisions
of Rule 8 (22) of the High Court Rules. This was filed
on behalf of
the accused by Mr Thabo Nteso.
I must at
the outset, indicate that I see no reason why this application was
filed on urgent basis.
no urgency at all in a situation where one has been convicted and
sentenced, correctly in my observation by a properly
that one has been deprived his/her liberty following ones
incarceration in prison after being sentenced by a court of law
not and can never be a matter of urgency.
application was filed five (5) months after the conviction and
sentence of the applicants by the Magistrate's Court in Leribe.
Applicants even had to apply for condonation of the late filing of
the application. How then do they claim that the matter is urgent
when they filed this present application so late since their
conviction and sentence?
constitutes a gross abuse of the court's process. This is going on
unabaded despite numerous warnings and reprimand by this
the Court of Appeal in numerous decisions. This is becoming a matter
for great concern.
should have addressed this issue by strongly opposing same.
Unfortunately it has not seen it fit to do so. In a nutshell
argued on their heads of argument, the applicants argue that the 1st
Respondent denied to give them an option of a fine
had previous convictions."
the public prosecutor had informed the court that the applicants had
no previous convictions. Their concern is that they
wonder where and
how the 1st Respondent got the information that Applicants were "off
record from Prison."
hasten to say that there is nowhere in the reason s for sentence on
this record where the learned Magistrate (1st Respondent)
that he imposed that sentence upon the applicants herein because they
have previous convictions.
words, "off record," would in my view best be interpreted
to mean that the 1st respondent has not taken that fact
consideration, and nothing else.
applicants could have been in prison awaiting trial not necessarily
because they had been convicted. Why then should one feel
said words mean previous convictions and nothing else, especially
after the Public Prosecutor had just informed court
that the accused
have no previous convictions? With respect there is no reason
suggested for the magistrate to have illegally acquired
information prejudicial to the accused. I find indeed that there are
no reasons for the magistrate to have done that, he would
have the time nor the skill to do so.
learned magistrate has clearly written down his reasons for sentence.
They are good and correct reasons in the view of this
court. All the
matters taken into consideration in imposing this sentence upon the
applicants herein are proper.
applicants also say that the 1st respondent has not advised them
about their constitutional right to bail.
the record of proceedings only indicates that the accused/applicants
were only advised of their light to legal representation.
question here is whether or not the accused/applicants have suffered
prejudice merely because they have not been so advised
constitutional right to bail.
instant case the applicants' case was reported to the Leribe
Magistrate's Court on the 9th September 2004. It was then prosecuted
and disposed off on the same day because the applicants tendered a
plea of guilty.
applicants' case was not postponed at all to another date i.e they
were never remanded to goal to await trial on a future date.
was therefore no need for them to apply for release on bail. They
were tried and sentenced on that very day that their case
reported and registered in court. There was never no need for them to
apply for release on bail. Can it be said that in the
of this case they have suffered any prejudice for not being so
to apply and to actually be granted bail is not there for the taking.
Good reasons must exist why one should so apply.
One does not
automatically apply for release on bail even where ones case is
presented and finally disposed off on the day that
it is first
reported to court. It is equally the accused's constitutional right
that where circumstances permit, ones case should
be disposed off
within a reasonable time. This is also in keeping with the provisions
of the Speedy Courts Trial Act.
Leribe Magistrate's Court should be congratulated for having not
unnecessarily remanded the accused to jail pending trial even
there was no need to do so.
would have suffered prejudice had the court remanded them into
custody to await trial even where police investigations
and the case was ready to be prosecuted. The applicants also pleaded
guilty to the charge. There was therefore no
need to remand them into
custody, in which case they would probably have applied for release
that been the case, then they would rightly claim that they were
prejudiced as they would not have exercised the right
to apply for
release on bail, since they would not have been informed of same. In
the circumstances of this case, the applicants
have not proved that
they have suffered any prejudice. I accordingly decline to uphold
their complaint in this regard.
complainants also allege that the medical report, exhibit A was
irregularly handed in as evidence in the instant proceedings.
its contents were never even read nor explained to them.
not said in what regard the handing of exhibit "A" has
prejudiced them in the said proceedings before the magistrate.
respect, that has not in any way prejudiced them. There is nowhere in
the record where the trial court shows that it has relied
medical report in imposing sentence upon the accused. Neither have
they been charged with having assaulted the complainant
purpose for which that medical report was handed in, was merely to
demonstrate to court that indeed force/assault was used upon
Sales Clerk by the accused while committing that crime of robbery.
That and nothing else. Their complaint in this regard would
hold water, had they also been charged with the offence of assault
upon the complaint in the course of robbing the complainant
would amount to a duplication of charges. That is however, not the
case herein. There is no prejudice suffered by the accused
nothing on the record which indicates that the learned magistrate was
influenced in any way by the words the applicants
record from prison". With the greatest respect, that has no
bearing/effect at all on the sentence imposed upon
the accused herein
and in the circumstances of
case. Neither has this prejudiced the applicants in anyway.
clearly ample, unchallenged evidence that the shop in question was
broken into and some items stolen from it. In order
to do that, the
assailants first incapacitated the salesman who was" sleeping in
that shop. They together assaulted him, fastened
the hands of the
salesman with a wire and covered his face with a bag.
did purely to make it impossible for that salesman to recognize and
stop them from robbing from that shop. They further
unattended having closed the door from outside so that the salesman
could not even be able to open it before they disappeared
that village with the stolen items.
respect, I beg to differ with the learned defence counsel that the
elements of robbery have not been proofed. All such elements
been proofed by the Crown herein.
intentionally and unlawfully used by the applicants upon the
complainant in order to induce submission to the unlawful
stock from that shop.
stolen property was later, and within that month, pointed out by the
applicants to the police. This was later identified,
complainant as part of the property stolen from the shop over which
he was in charge.
evidence has not been challenged at all by the applicants.
of R v Gentleman 1919 CPD at page 247 has been cited in support of
crown's argument on the question of pointing out of
held by Seark J and Kotze J that:
"...It need not be theft at all, but the fact of possession can
be used in evidence as a proof that such person was at a particular
spot where that property was, and therefore that is the man who
committed the offence.71
inference can be drawn by this Court from the pointing out by
applicants of the property in question except that, it was
applicants who robbed from the said shop. This court has therefore
come to the conclusion that the applicants were rightly
sentenced; proceedings are accordingly confirmed as being in
accordance with real and substantial justice.
application is dismissed.
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