THE HIGH COURT OF LESOTHO
the matter between:
MAGISTRATE (BEREA) 1ST
OF PUBLIC PROSECUTIONS 2ND
Delivered by the Honourable
Judge M. Mahase
On the 3rd
The notice of
motion herein was filed in this court and served upon the 2nd
respondent on the 15th
appears as the following:-
the matter of application for bail pending review
prayers herein sort by the applicant nowhere relate to the
application pending review. This heading is therefore confusing
say the least.
This is not the
end of the story regarding this application which has been filed on
urgent basis. The citation of this application
is very strange and
most confusing. It is styled CRI/APN/REV/318/2008.
This is not how in the normal cause of things cases are cited in
this court; that is not unless this court is not aware of some
charges/trend in this regard.
Be that as it may,
the applicant prayers herein are the following:-
1. That ordinary
Rules relating to service of process be dispensed with on account of
2. That a Rule
Nisi be issued returnable on the date and time to be determined by
this Honourable court calling upon Respondents
to show cause if any,
why the following orders shall not be made final.
a) The sentence
imposed by the 1st
respondent shall not be reviewed and corrected or set aside and
applicant be set free from prison forthwith.
b) That applicant
shall not be granted further and/or alternative relief.
It is noted that
there has not been filed any certificate of urgency describing or
setting out reasons relied upon by the applicant
for the urgency.
The crown is
opposing this application but it has nowhere dealt with the issue of
urgency. I however, must venture to say, and
with respect, that this
court does not consider this matter urgent. We are here dealing with
an applicant who has, ex facie the
court record been tried, convicted
and is now serving a jail sentence imposed upon him by the 1st
Teliso Ralekoala and another one, who is not a party to this
present application, one Lehlohonolo Sesoane were
charged before the
Berea Magistrates court and their case was prosecuted on various
dates before this court. They were ultimately
sentenced by the 1st
respondent on the 21st
January 2008. The trial against them having commenced on the 26th
day of November 2008.
It is a matter of
common cause that the applicant and his then co-accused were charged
with two counts; viz armed robbery in count
1 and malicious damage of
property in count 2. The charges relate to some incidence which
allegedly occurred upon or about the
day of May 2007, and at or near Ha Ntjabane in the district of Berea.
ultimately sentenced on the above-shown date as follows:-
Count 1 10
years imprisonment without an option of a fine
Count 2 5
years without an option of a fine
Count 1 8
years without an option of a fine
Count 2 5
hand-written record of proceedings has not been availed to this
court, but it is undisputed that the applicant and
commenced to serve sentences/punishments imposed upon them on that
day of the 21st
January 2008 where they probably remain to this day.
This court has in
previous other cases urged that the original-hand written record of
proceedings should always be availed to it.
This is procedural but
very unfortunately this has been repeatedly ignored.
problems, as were in the instant case, there are either missing
portions of the proceedings in the typed record availed
to court and
or where the typed record is not legible either partly of not at all.
For instance at page 5 of the typed record,
a portion of Pw1s
(complainants) evidence is clearly missing.
The court minute
dated the 26/11/07 is incomplete. This relates to the response of
the accused as to whether or not they would
like to brief or be
availed an opportunity to brief a lawyer to defend them.
The minutes of
court of the 27/08/07 shows that the accused moved an application for
their release from custody in terms of theProvisions
of the Speedy Courts Trial Act.
was postponed to the 3rd
September 2007 so as to enable the crown, which opposed the
application, to advance compelling reasons why the accused may not
However, and most
regrettably and to the prejudice of the accused, there is no
indication on the court record of proceedings reflecting
ultimately became of that application. There is absolutely nothing
indicating what transpired in court with that application
day. There then follows some irrelevant undated minute.
This court has had
time to go over this record of proceedings, and one can go on and on
to illustrate the many irregularities herein
observed at various
stages from the remand stages up to the actual prosecution stage of
this case. I am somewhat surprised that
many such issues have not
been attended to by counsel for applicant in this application. These
are matters which this court could
not just ignore even if they are
not raise in the instant proceedings now before it.
To illustrate, the
unsatisfactory way in which the proceedings in the court a quo were
handled, one may lastly refer to page 3 of
this copy of the record of
proceedings. There immediately is indicated that a warrant of arrest
be issued against the suspect
forthwith. We do not know who that is,
because the last minute on this record dated the 03/09/07 pertains to
a postponement regarding
the application which was moved by the
applicants/accused referred to above but all of a sudden a warrant of
apprehension is issued
against somebody who this person is, has not
been disclosed. What is clear is that the accused were still in jail
and their application referred to above was never
This record is not
clear and it is burdened with some irrelevant unnecessary material;
some of which is prejudicial to the accused.
This does not go well
with this court which is now burdened with having to read all of such
issues for it to properly and fairly
deal with this application. It
is also filled with typographical errors because it has not been
proof-read before it was annexed
to papers herein filed. This is not
It has already
been shown that contrary to what appears on the notice of motion;
this application is not a bail application pending
is instead complaining about the sentence which has been imposed upon
In a nutshell, the
applicants complaint is that since there are no reasons for
judgment nor for sentence, he has not been afforded
a fair trial and
that the learned magistrate has not acted judiciously.
It is his
submission that failure by the presiding officer to record reasons
for judgment and sentence; as well as his failure to
record why he
has admitted or rejected evidence of either of the parties has
resulted in an unfair trial and consequently a complete
He argues that, as
a result of the above he is entitled to have his conviction and
sentence set aside and he be released from prison
The court has been
referred by applicant in support of his above submissions to the case
MOTHAPELA v REX
(Review Order No.5 of 2003) where the learned Judge my brother
Monapathi J. had stressed the point that magistrates should give
reasons for sentences.
There is a
plethora of authorities to the effect that reasons for sentence must
be given at the time of the passing of sentence
and not thereafter
see Mofokeng, page 256 and authorities therein cited.
See also the case
1974(1) S.A. 481(T) where it was stressed that:
It is the duty
of a court in imposing sentence to make itself acquainted with all
relevant factors and not to adopt a passive role
in this connection.
for sentence must be given when the court imposes sentence upon the
accused person and not later. Such reasons
should be stated and
recorded when the sentence is actually being imposed Mofokeng
The fact that an
appeal or a reviewing court is at large to remit the case back to the
court a quo when an appeal or a review is
or has to be considered
should not be seen as a means by which the trial court/court a quo is
relieved of its important duty; namely
that of giving written reasons
when imposing sentence at the time that it does so and not later.
It is in the
interests of all parties concerned in any litigation that procedural
fairness and transparency should be displayed
clearly for the good
administration of justice.
It is only when
the procedure(s) is followed to the letter that finality to any kind
of litigation shall be achieved.
The now common
practice of some judicial officers in the courts a quo (lower courts)
of ignoring the procedural steps of furnishing
written reasons for
judgment/sentence, is not only improper and unfair. In some
instances it creates/causes untold hardship and
Of course sight
should not be lost of the importance of the duty of the courts to
uphold the rule of law as well as protecting the
victims of crime
against those who violate the law. That onerous duty of
administering justice should be done judicially and not
Having made the
above observations, it is apposite that a reminder be made as to the
procedure to be followed in noting an application
for ones release
on bail pending appeal or review, against the decision or proceedings
of any subordinate/inferior court. Such
an application should be
moved before that court whose decision or proceedings are being
challenged. The High Court is not the
proper forum for such kind of
applications. This is trite law.
Now, dealing with
the application in casu,
it has been submitted by the applicant that failure by the court a
quo to record why it has admitted or rejected evidence of either
party herein has resulted in an unfair trial and consequently a
complete failure of justice.
This, so it is
submitted entitles the applicant to have his conviction and sentence
set aside and for his release from prison forthwith.
The terms of
imprisonment imposed upon the applicant have already been alluded to
above. They range between 10 and 5 years without
an option of a fine
in respect of the present applicant. (A2 has not challenged the
proceedings of the court a quo).
It has ultimately
been argued on behalf of the applicant that in the circumstances of
this case, and with reliance placed upon the
case of FIRESTONE
SOUTH AFRICA (PTY) LTD v GENTIRUCO,
A-G 1977(4) S. A. 298(A) at 306 F-G, this reviewing court can set
aside the sentence herein imposed upon the applicant and order
release from prison forthwith.
The above cited
case has been referred to in extenso in CRI/APN/315/2008
a judgment of this court dated the 4th
September 2008 page 12 thereof.
The crown in
opposing this application has sort to make a distinction between
procedure by way of appeal and by way of a review.
It is its
contention that since the applicant is attacking the result of the
proceedings in question he should have approached
this court by way
of an appeal and not by way of a review.
It submitted that
unlike in an appeal, in a review one attacks the method by which is a
decision is arrived at.
This issue has
also been dealt with by this court in CRI/APN/315/2008
(supra) pages 7 to 8. The crown has submitted in the same breadth as
in the above-shown application that failure by the learned
to record reasons for judgment and sentence can not entitle the
applicant to the relief(s) he has applied for:- VideTHABISOMOTOLO
v MAGISTRATE BEREA AND OTHER CRI/APN/174/2008
discussed in CRI/APN/315/2008
page 137. Facts therein CRI/APN/315/2008
(supra) are almost similar to those in the instant application but
for the fact that in the instant case the question of an award
by the court a quo and by way of compensation does not arise.
In the instant
case, the crown has informed the trial court about the existence of
the previous convictions in relation to the applicant.
contrary to the principles of the law, there is no certificate of the
said previous convictions handed into court to
form part of the
record of proceedings. Further on this issue, the learned magistrate
has not indicated whether or not he has
considered the said previous
convictions as allegedly existing against the applicant. Put
differently neither has he satisfied
himself that indeed if same
exist; that they are relevant and relate to the present applicant.
233 of the Criminal Procedure and Evidence Act No.9 of 1981.
This is an
important procedural step which should not have been ignored even if
the applicant can be taken to have had knowledge
of same. In fact it
is recorded, at page 24 of the photo copied record of proceedings
that the applicant had replied to this issued
by saying (I quote):
.. .. .. .. Ke
tlolo tseo ke li tsebang
This can be
translated into English as being:
.. .. .. .. I
know of the said offences
Now, can we say,
seriously that the applicant (accused 1) in the court a quo, did by
so responding, admit or deny the existence
of the previous
convictions therein referred to by the Public Prosecutor in the
absence of the relevant certificate proofing the
existence of same?
The meaning of this response is not clear. It can be interpreted in
more than one way. It could be that applicant
denies or admits
having committed the not clear previous convictions.
This being a
criminal trial wherein the applicant is alleged to have committed
such serious criminal offences, it was highly imperative
trial court should have followed the correct procedure.
It is highly
unfair, prejudicial to the accused and indeed unprocedural for the
court a quo not to have attended to this issue,
which in the normal
course of things and if such previous conviction against the
applicant were proofed to exist, especially with
regard to count I,
then one could argue that the sentence herein imposed is justifiable.
As for count II
one wonders if there is enough evidence of whatever nature justifying
the conviction, and sentence therein imposed
upon the applicant.
Can we seriously say that with regard to this count the crown has
proofed its case against applicant beyond
a reasonable doubt.
The charge in
Count II relates to malicious damage of property; to wit the dog
allegedly belonging to the complainant which was
found later on the
next day dead from being hanged on a tree.
While this court
does not in anyway condone the cruelty to animals, there is nothing
on the record of proceedings and taking into
account the absence
there from, of any reasons for judgment and sentence justifying the
imposition of a sentence of five (5) years
without an option of a
fine on this count.
As has been
alluded to above, the complaint of the present application is against
the way in which sentences imposed upon him were
arrived at. It is
therefore correct that he has approached this court by way of a
review. Vide JONES
AND BREKLE AND CIV/APN/315/2008
referred to therein, and to the fact that a certificate relating to
the alleged previous convictions which allegedly exist against
present applicant (A1 in the court a quo) has not been attached to
form part of the record of proceedings in the court a quo.
certificate should have been brought to the notice of the judicial
officer before he gives his verdict. Vide Mofokeng
(supra) pages 134
improprieties and other factors alluded to above by this court
distinguish this case from CRI/APN/174/2008
Very regrettably, the absence of reasons for judgment/sentence,
coupled with the failure by the crown to hand into court the
proofing the existence of previous convictions by the
applicant herein have resulted into a miscarriage of justice.
It is prejudicial
to the applicant that the court a quo blindly accepted that such
previous convictions do exist as against the
applicant. The court a
quo should have been convinced beyond a reasonable doubt that indeed
the applicant has correctly been identified
as the culprit in the
said certificate of previous convictions, which should have formed
part of the evidence before the court
acted upon it.
Clearly, due to
the procedural improprieties herein alluded to, above and which
defects can not be cured in any way, the instant
case constitutes one
of the exceptions to the general principle discussed and referred to
in the case of FIRESTONE
SOUTH AFRICA PTY (LTD) v GENTIRUCO
For the foregoing
reasons, and in the circumstances of this case, the application is
granted as prayed in prayer 2(a) of the notice
imposed upon the applicant are set aside. Applicant should be
released from prison forthwith.
Applicant : Adv. L. P. Nthabi
Respondents : Adv. L. Makholela
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