IN THE
HIGH COURT OF LESOTHO

In the
Matter of:-

Rex

V

Mohale
Molumo

Review
Case No: 43/2006 CR 425/2006

Review
Order No: 9/2006 District: Mohale's Hoek

Review
Order

This
matter came before me on automatic review from the Mohale's Hoek
Magistrate Court. The accused was tried for contravening the

provisions of Section 3 (2) of the Sexual Offences Act of 2003. He
pleaded not guilty to the charge and after hearing the evidence
on
both sides, the court a quo returned a verdict of guilty.

Upon
perusal of the record of proceedings I found that the Magistrate had
correctly convicted and sentenced the accused in accordance
with the
provisions of the law. However, what I found intriguing is the
'directive' (for want of a better word) issued by the Magistrate
at
the end of the record of proceedings. She sentenced the accused
person to imprisonment for a period of eight years where she
had this
to say:-

1

"This case is not sent to the High Court for any enhancement in
the sentence. Accused is hereby sentenced to eight (8) years

imprisonment "(emphasis mine)

While as
the reviewing Judge I have no doubt that the Magistrate herein acted
correctly and within her powers on both conviction
and sentence with
which I am in total agreement, I am a bit worried by the particular
'directive' that she issues to the High Court
which is as a matter of
fact (and not sentiment), superior to the Subordinate Court.

The said
Presiding Officer's 'directive' herein is a non-starter. She has no
right and/or power to issue same when she sends her
cases to the High
Court on automatic review. If upon review, a Judge finds differently
from the Court a quo, he/she has the power
to correct, set aside
and/or make whatever decision he/she deems fit as long as he/she does
so judiciously and we all have to live
with that. It is entirely up
to the reviewing Judge how he/she handles the whole matter.

The
'directive' is therefore downright contemptuous. It is my humble
opinion that for as long as the Courts in Lesotho and I might
add,
the whole wide world, (as is the case with any other institution),
are structured hierarchically, a Magistrate shall not issue
such
directives to the High Court but to conduct himself/herself
professionally either by words and/or conduct, especially when

addressing his/her Superiors.

Professionalism,
calls for any Court Official to draw a line between sentiments and/or
gripes of individuals and what the factual
position and the

2

law is.
It is by the same token that a Judge sitting in a Superior Court is
not expected to use language which might sound derogatory
and or
demeaning to the other Courts/and or Presiding Officers in the
Subordinate Courts, as well as other officers of the Courts
even in
the event that he/she does not agree with their decision.

With the
above words, I want to be heard and understood to be saying that if
after perusal of the said record, I would have deemed
it fit to
enhance and or decrease the said sentence as I have powers so to do,
I would not have hesitated and that is with or without
the concerned
Presiding Officer's 'directive". That is the prevalent position
and unless and until it is reversed by the letter
of the law, I
humbly appeal that in future I do not get such offensive directives
and/or statements.

N. Majara

Judge

3