HIGH COURT OF LESOTHO
by Honourable Acting Justice M. Mahase On 27th February, 2006
accused has been committed to the High Court for sentence. The
accused appeared before a second class magistrate in the Subordinate
Court for the district of Quthing. He was charged with having
contravened the Provisions of Section 3(2) of the Sexual offences
No. 3 of 2003.
to the charge have been clearly set out on the charge sheet. The
complainant is alleged to be one Lesang Seliane who
is described as
being 31 years of age.
alleged criminal offence is said to have occurred upon or about the
2nd day of October 2004; and at or near Mphaki; Ha Tsenki
district of Quthing.
trial first commenced before the said court in Quthing, the accused
pleaded not guilty to the charge. The plea was duly
so entered. The
record of proceedings does however reflect that the Public Prosecutor
declined to accept the plea of not guilty
and he indicated that he
wished to lead evidence.
remark that it is not clear why the Public Prosecutor indicated that
he did not accept the plea of not guilty as tendered
by the accused.
Procedurally once an accused person pleads not guilty to the charge,
the public prosecutor must and should lead
evidence to proof the
crown's case against the accused.
only where the accused tenders a plea of guilty to a lessor offence
than that preferred against him by the crown that the
elect not to accept such a plea and then lead evidence. The Public
Prosecutor is in such circumstances at large
to accept or not to
accept the plea so tendered by the accused.
as it may, three crown witnesses were called by the crown to proof
its case against the accused (I note however that the
3rd witness has
been erroneously numbered Pw4).
history of this case is a disturbing one to say the least. Firstly
the record of proceedings in the Judge's file is an uncertified
copy of the original record. There is no original hand written copy
of the said proceedings enclosed herein. The said photo
of proceedings was received in the High Court on the 10th June 2005.
was probably send to the Law Office and or a copy of it was filed or
uplifted by the Law Office on the 2nd January 2006.
There is no
explanatory minute as to why there is affixed a date stamp of the Law
Office bearing the above date on the Judge's
was allocated to this court on the 6th February 2006, according to
the minute on this file. This was the day when the crown
appeared before this court to argue this matter. In other words, some
eight (8) months elapsed since the record was received
by the High
Court registry before the case was allocated a date for sentencing by
a Judge of this court.
mean time, the accused was in jail awaiting to be sentenced. The
accused had been formally remanded on this charge in the
Magistrate's Court on the 27th October 2004 where he remained in
custody while the case was pending prosecution to finality.
against the accused was finalized on the 18th January 2005 when
accused was then committed to the High Court for sentencing.
nothing on the record showing when the accused was ultimately removed
from Quthing prison to the Maseru Central Prison
for him to appear
before this court for sentencing.
accused appeared before this court for sentencing on the 6th February
2006. That is a period of about one year, four months
ever since he
was incarcerated on this charge. Even then, this court could not
proceed with the sentencing process because contrary
to what was
written on the photocopied record of proceedings, no copy of the
HIV/AIDS test results was annexed to the said proceedings.
necessitated three more postponements of the case in an effort by
this court to at least secure the said HIV/AIDS results.
court then heard arguments on this issue on the 27th February 2006.
One may only comment that the above demonstrated delay
in sending and
placing this case before a Judge of this court within a reasonable
time for sentencing is a disturbing feature of
the administration or
dispensation of justice to the prejudice of the accused persons.
moreso because the record of proceedings is photocopied and no
excuses that there were no typing facilities exist. Be that
may, on the day of the hearing of this case, Messrs M. Mapetla and
Lekokoto for the crown and the accused respectively ably
Lekokoto argued on behalf of the accused that in the first place, the
learned magistrate who convicted the accused did so irregularly
because she did not have the appropriate penal jurisdiction.
submitted, and that is a matter of common cause that being a
magistrate of the second class, her penal jurisdiction is limited
eight (8) years only; so that she should not in the first place have
tried the case in question.
therefore submitted on behalf of the accused that the best which
could have been done in the circumstances of this case was
to have it
placed before a magistrate who has
jurisdiction with regard to punishment to have tried the case. It was
further argued that the Section 31 (2) of the
Sexual Offences Act No.
3 of 2003 which the learned magistrate relied upon in committing the
accused to the High Court for sentencing
did not support what she has
done, in trying that case.
submitted that only a magistrate who has appropriate penal powers
should have tried this case. Reliance in support of this submission
is placed upon the decision of the High Court in the case of REX vs
MABEA AND ANOTHER 1993 -94 LLRB, PAGE 122 - 123.
case, it was further said that:-
"......that it is trite that if there is no power to punish,
then there is no power to try.
That being so, in the present case the minimum sentence of 10 years
imprisonment is prescribed in respect of the offence alleged
been committed by the applicants. The learned trial magistrate then
lacked jurisdiction to try such offence as the prescribed
was beyond his penal powers." (My emphasis)
further argued that the above-cited case has been quoted with
approval in the case of REX vs JANKIE -CRI/S/10/2005 and that
on the basis of the said authorities that it was argued that the
learned magistrate ought not to have entertained the case
Lekokoto therefore applied that this court should order that due to
the said irregularity, the case should be sent back to start
before another court which has competent jurisdiction in all
issue raised on behalf of the accused was that the learned
magistrate, who has clearly admitted and appreciated that she
jurisdiction to impose sentence upon the accused, had nonetheless,
extensively delved into and given reasons for sentence.
This, it was
submitted is grossly irregular because it is only the High Court
before which the accused has been committed for sentence
give reasons for whatever sentence it would impose upon the accused
argued that the learned magistrate should not and has no power to
have dealt with matters pertaining to sentence in this
case. It was
submitted that it was erroneous for the court aquo to have dealt with
this issue and then later commit the accused
for sentencing by the
Mapetla who represented the crown conceded to the principle that
where there is no power to punish, then there is no power
to try. He
however submitted that Section 31(2) of the Sexual Offences Act No.3
of 2003 creates an exception to
principle. The crown, in supporting its argument relied on what
Tindal CJ. had said in the case of WARBURTON vs LOVELAND
(1832) 2 DCL
480 H.C AT
(which case was cited in the Mabea case Supra), that
language of an Act is clear and explicit, we must give effect to it,
whatever may be the consequences, for in that case
the words of the
statute speak the intention of the legislature.
Mapetla therefore submitted that in the present case, now under
consideration the intention of the legislature in Section 31
clear and that the said intention is that a magistrate of any class
has the power to try cases of this nature and then refer
a case to
the High Court for sentencing if one has no prescribed sentencing
jurisdiction or power.
this issue, the crown sort to distinguish the case of Mabea (Supra)
from the one now under consideration. He argued that
in the Mabea's
case, the relevant statute made no exception to the general rule as
regards sentence; whereas in the present case,
the Act has expressly
made and or provided an exception to the general rule.
submission was disputed by Mr. Lekokoto who appeared on behalf of the
accused. He submitted that it would be an anomaly
to say that Section
31 (2) of this Act has empowered a magistrate who has no jurisdiction
to impose a
from the beginning to try such a case. This, it was argued is highly
irregular. The argument is further that sight should
not be lost of
the fact that the decision in the Mabea's case (Supra) is the
decision of the High Court; which decision has not
been over turned.
question of none availability of the HIV/AIDS test results:-
Mapetla argued that the absence of such results does not prejudice
the accused in any way. In fact he argued that it was favourable
the accused and he asked this court to take it that the accused has
therefore tested negative.
would then mean that this court, in sentencing the accused, would
have to invoke the Proinsions of Section 32 (a) (ii). This
bring this case within the ambit of the penal jurisdiction of the
learned magistrate who has convicted the accused herein.
salient question is whether this court has the power to do so without
creating prejudice and a miscarriage of justice as against
accused person. Mr. Lekokoto has correctly, in the mind of this court
submitted that the Provisions of Section 30 (1) and (2)
and that they have to be complied with to the letter.
case, this court notes, it was said that the HIV/AIDS test results
have been enclosed whereas they have not been so enclosed.
As it is
this court does not know what such results are except to assume or
guess that they were positive, hence the committal of
the accused for
sentencing by the High Court.
with the greatest respect, not be proper for this court to make a
guess or an assumption as to the said HIV/AIDS test
should have formed an integral part of the evidence of the crown
against the accused. Neither the learned magistrate
nor the Public
Prosecutor in Quthing have filed any affidavits to at least say that
indeed the said results were positive. This
was despite the efforts
made by this court in seeking clarification as to the whereabouts of
such results. Why should then this
court make a guess on this issue?
would constitute a miscarriage of justice. It is highly imperative
that in circumstances such as this, the following should
case of this magnitude and or a case where one is charged with
having contravened the Provisions of Section 3 and or wherein
prescribed penalties would be beyond the penal jurisdiction of the
magistrate with appropriate powers should try the case so as to avoid
having to commit the accused to the High Court for
that cannot; for any reason, be avoided, proper care should be taken
to secure the record of proceedings to avoid any part
documentary evidence being lost and or misplaced.
ideal situation would however be to have the law amended so as to
empower all magistrates to try and impose appropriate sentences
cases of this nature, and in terms of all the provisions of this Act.
the high rate at which this kind of crime is committed throughout
this country calls for an urgent amendment of the law with
sentencing powers of some magistrates. The above (c) would help
obviate the inordinate delays now being occasioned in
dispatching of records, to the High Court and also transporting
accused persons from districts out of Maseru to
the High Court for
raised by the crown with regard to the intention of the legislature
in enacting the provisions of Section 31(2) of the
only comment and note that the argument advanced herein, is
inconsistent with the decision of the High Court as per Cullinan
J. (as he then was) at page 123 of the Mabea case - LLB 1993 - 1994.
This I say with the greatest respect to the crown counsel.
note reads in this case reads:-
further, that it is trite that if there is no power to punish then
there is no power to try.
being so, in the present case the minimum sentence of 10 years
imprisonment is prescribed in respect of the offence alleged
been committed by the applicants. The learned magistrate then lacked
jurisdiction to try such offence as the prescribed
beyond his penal powers -(my emphasis)
is apposite in this case because the penalty prescribed by Section
32(a) (iii) is that of 10 years imprisonment while
the penal powers
of the second class magistrate is only 8 years imprisonment.
been argued that this court should order that this case be sent back
to the Quthing Magistrate's Court and order that the
start de novo before a different magistrate with appropriate
This is a
sound suggestion but the difficulty here would be that it will not be
possible for the trial court to invoke the mandatory
Section 30 (1) and (2) of this Act. The reason being that the accused
should have his blood substance taken by a
within a week of the preferment of the charge and same should be
tested for the HIV/AIDS virus.
period is long overdue. The court will therefore not be able to
comply with the law in this regard. The loss or misplacement
said HIV/AIDS test results in respect of this accused person is
regrettable and has placed this court in a quandary. However
already been indicated above, this has also created doubt as to the
real HIV/AIDS status of the accused. This coupled with
the fact that
the learned magistrate has irregularly already outlined reasons for
sentence should operate in favour of the accused.
court also is of the view that the identity of the accused as a
culprit is highly doubtful.
proceedings are therefore set aside as being irregular and the
conviction is set aside. This court can therefore not impose
upon the accused due to lack of that piece of evidence, and due to
the doubtful identity of him as being a culprit.
circumstances, the accused is accordingly given a benefit of doubt.
he is discharged and acquitted.
: Mr. M. Mapetla
Defence : Mr. Lekokoto
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