CRI/APN/117/07

IN THE
HIGH COURT OF LESOTHO

In the
matter between: -

LEBAJOA
MASIA APPLICANT

and

DIRECTOR
OF PUBLIC

PROSECUTIONS
1st RESPONDENT

HIS
WORSHIP - MR. NTHABI 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 18th July 2007

This is
an application for review of criminal proceedings wherein applicant
was charged with and convicted for armed robbery by
the Maseru
Magistrate Court. He is alleged to have unlawfully assaulted P.W. 1
and with intention used force and violence did take
from him the
amount of M600.00. He was sentenced to ten (10) years imprisonment
without an option of a fine. He also seeks condonation
for late
filing of the application.

1

The
grounds advanced for this application are that the learned magistrate
did not advance his reasons for conviction nor sentence
as evidenced
by the record. Secondly, that the sentence imposed is too harsh
especially when considering the amount involved and
the fact that his
co-accused was sentenced to imprisonment for a period of two years
for the same offence. There being no objection
to the application for
condonation, the Court duly granted it and proceeded to hear the
matter.

In her
submissions on behalf of applicant, Ms Sello-Mafatle pointed out that
absence of a reasoned judgment is not only procedurally
flawed but
prejudicial to the applicant as well since the latter does not know
the reasoning behind the guilty verdict and the
resultant sentence
imposed.

In
support of her submissions, Ms Sello-Mafatle made reference to the
provisions of Rule 61 {1) of the Subordinate Court Rules of
1996. The
said rule provides in part and

insofar
as is irrelevant in casu as follows :-

"Where a shorthand writer on the facilities for taking a record
by mechanical means are not available, the judicial officer
presiding
over any criminal proceedings shall forthwith keep a manuscript
record of.

(g) the reasoned judgment given by the court; and

(h) any sentence order, with reasons therefore, imposed by

the court.

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All matters so recorded shall constitute the record of the Court."

Counsel
for applicant made the further submission that facts are to be
evaluated before judgment is given and failure to do so inhibit
the
pursuit of justice as it would turn criminal proceedings into a
technical exercise.

I might
also add at this stage that it was further suggested on behalf of
applicant that the crown failed to prove its case beyond
a reasonable
doubt and that complainant contradicted himself in his evidence for
the reasons that follow immediately. Firstly,
that P.W. 1 said he can
read and write but his eyesight is poor and that when he arrived at
the bar it was dusk and he sat down
and drank. In addition, that when
he tried to disentangle his jacket from the barbed wire which had
been caught therein when he
was felled down and robbed, P.W.I could
not see the direction that the accused and the other person took.

In turn,
Mr. Rammina submitted on behalf of the respondents that although
there are no reasons given for conviction, there is overwhelming

evidence against the applicant that he committed the offence. Further
that even under cross-examination applicant did not deny
ever robbing
the complainant.

3

Regarding
sentence, Counsel for respondents made the submission that it is
evident from the record that the trial Court took into
account and
recorded in writing several factors when passing sentence. These
included that applicant is a first offender, is a
relatively young
person, his personal circumstances, the seriousness of the offence
and the fact that the money was not recovered.
He added that in light
of these factors, the court exercised its discretion judiciously.

Before
considering the issues that have been raised herein, I find it
apposite to start by showing that the process of review is
aimed at
mainly examining proceedings of a lower Court with the intention to
correct or set aside, any irregularities that might
have occurred
during the course of proceedings at the trial stage and that might
have resulted in a miscarriage of justice. Thus,
as has been stated
by Isaacs in his work Beck's theory and Principles of Pleading in
Civil Actions p326:-

"The grounds upon which it is competent to bring proceedings of
inferior courts under the review of a superior court are as
follows:

1. Incompetency
   of the court in respect of the cause of action such as absence of
   jurisdiction.

   
   

2. Incompetency
   of the court in respect of the judicial officer such that he or a
   near relative had an interest in the cause.

   
   

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3. Malice
   or corruption on the part of the judicial officer.

   
   

4. Gross
   irregularity in the proceedings.

   
   

5. The
   admission of evidence which should have not been admitted or the
   rejection of evidence which should have been admitted."

   
   

The
learned author adds at p 327 (supra) that 'before a decision will be
set aside on the ground of gross irregularity, the irregularity
must
be of such a nature that it is calculated to prejudice the party who
complains.' (my underlining)

Coming
back to the case at point, although not stated in so many words in
the pleadings, the ground upon which the applicant has
approached
this Court for review is that failure by the court a quo keep the
reasons for his judgment as required by the rules
constituted an
irregularity the result of which his decision should be set aside.

I have
already shown that Rule 61 as quoted above requires presiding
officers to keep inter alia, a manuscript of their reasoned
judgment.
It is common cause that in casu, such reasons were not given as
evidenced by the record of proceedings. In my opinion,
the next
question to decide is therefore whether the said irregularity is of a
gross nature and whether it can be said to have
been calculated to
prejudice the applicant.

5

Although
the last mentioned grounds for review would properly constitute
grounds for appeal since they challenge the evidence, in
my view
considering them will assist me in making a proper determination on
whether or not applicant was prejudiced by the magistrate's
failure
to record his reasons for conviction per se. Further, there was no
objection on the part of the respondents.

It is
common ground that applicant pleaded not guilty in the court a quo
and after his rights were read to him, he proceeded to
cross-examine
the crown witnesses who were called to testify against him. At the
close of the crown's case, applicant elected to
remain silent whereby
the magistrate proceeded to find him guilty as charged.

Further,
the admitted evidence of one Thabiso Leraka confirmed that applicant
did leave the bar in accompaniment of the complainant
on the night in
question. Against this backdrop and the fact that the applicant chose
to remain silent despite this damning evidence
against him such
circumstances, I have do doubt in my mind that having properly
applied its mind to the evidence as a whole in
casu, any reasonable
Court would have found him guilty as charged

It is
also my opinion, although it was submitted on behalf of applicant
that the evidence against him was not overwhelming

6

contrary
to the suggestion by counsel for respondents, the latter was actually
correct. This is because of the fact that applicant
failed to rebut
the evidence that identified him as the person who accompanied the
complainant and proceeded to rob him with the
assistance of another
person who was unbeknown to complainant.

Having
considered the evidence intoto, I am of the view that the suggestion
made by counsel for applicant with regard to P.W.1's
testimony to the
effect that his eyesight is poor and that it was dark when he arrived
at the bar is a contradiction per se is
incorrect. It should be born
in mind that it was also his testimony that he knows applicant who
happens to be his neighbour's son
and that when he left the bar, the
latter volunteered to accompany him and proceeded to rob him on his
way home. His poor eyesight
had no bearing on his identification of
applicant. I have already shown that this evidence was corroborated
by the admitted statement
of Thabiso Leraka.

I wish to
add that I also find nothing untoward with the testimony that P.W.I
arrived at the bar at dusk and that he sat down and
drank. It is my
view that it has no effect at all on the fact of the robbery. The
same applies with the third ground that P.W.I
testified that he did
not see the direction the two took after robbing him as it was dark.

7

On the
contrary it is my opinion that this evidence seems perfectly logical
especially when P.W.I told the court that he had been
felled to the
ground and that during the whole episode his jacket got caught in the
barbed wire. In my opinion, failure on his
part to see the direction
the two robbers took after robbing him has no effect on his evidence
that at that stage the robbery had
already taken place. I accordingly
find that the conviction was in order.

Authorities
abound that a Court will be satisfied that there has in fact been a
failure of justice if it cannot hold that a reasonable
trial court
would inevitably have convicted if there had been no such
irregularity.

For
instance, in the case of Rex v Sibia 1947 (2) SA 50 at 55 (A.D.)
which was quoted with approval by the learned Lehohla J (as
he then
was), in the case of Lehlohonolo Pulumo v Rex

CRI/A/37/88,
when considering the issue of failure by the trial Court to record
whether certain questions had been put to the accused,
the learned
Schreiner J.A. had this to say:-

"...but} I do not wish to be understood as suggesting that it is
an irregularity, of which the accused could take advantage,
if no
such record was made...,"

Although
the Court found in favour of appellant therein, what I understand the
learned Judge to have been putting across is

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that an
irregularity of that nature can only be taken advantage of in a
situation where it clearly per se prejudiced an applicant.
This is
why the requirement is that the alleged irregularity should be of a
gross nature.

In
addition, it is my view that any other approach would have the
undesired effect of opening the floodgates of matters that are
taken
up on review for every little irregularity that might take place even
where it is of no or little significance. See also
the case of The
State v Moodie 1961 (4) SA 752 AD at p.756.

In light
of the above reasons, I conclude that indeed the evidence against
applicant was so overwhelming that failure by the magistrate
to give
reasons for convicting him did not amount to a gross irregularity
that would vitiate the entire proceedings.

I now
turn to deal with the second ground for review to wit, that the
sentence is too harsh and the magistrate failed to give his
reasons
thereof. Perusal of the record page shows that as reflected on the
last page, the magistrate did give his reasons for sentencing

applicant where he stated as follows:-

"I have considered in mind the following factors;

- accused is a first offender,

- he is a relatively young man,

9

- his personal circumstances,

- however I have noted the seriousness of the offence and further
that the money was not recovered and in the circumstances pass
the
following sentence...."

However,
despite the above stated reasons, bearing in mind that the said
personal circumstances have not been stated and that it
is common
ground that applicant's co-accused was given the sentence of two (2)
years, I do agree with the submission made by Ms
Sello-Mafatle that
the sentence of ten (10) years imprisonment without an option of a
fine is so harsh as to induce a sense of
shock.

Whilst I
am aware of the escalating figures of crime in general, more
especially robbery in its different forms and the urgent need
for the
Courts to deter would be offenders inter alia, I am of the view that
the punishment herein does not fit the crime.

I however
take into account that over and above those factors mentioned by the
court a quo, that the applicant breached the trust
of the complaint
and proceeded to bite the hand that feeds him by turning on him and
robbing him of all his money. The uncontroverted
evidence also showed
that P.W. 1 had just donated about M70.00 to him so that he could
continue running his spaza shop.

10

Secondly
robbery is not a petty offence, regardless of the amount taken. The
incidence is also on the increase and people's lives
are placed in
jeopardy more and more as it usually entails violence that more often
then not involves loss of lives. Considering
all these factors, it is
my opinion that a suspended sentence would be inappropriate in casu.

It is for
the above reasons that I make an order as follows:-The conviction is
confirmed but the sentence is set aside and substituted
with that of
two (2) years imprisonment without the option of a fine.

The
accused is to be called immediately and informed of this

decision.

N. MAJARA

JUDGE

For
applicant : Ms Sello-Mafatle

For
respondents : Mr. Rammina

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