CRI/APN/174/2008

IN THE HIGH COURT OF LESOTHO

In the matter between:

THABISO MOTOLO Applicant

and



MAGISTRATE – BEREA
MAGISTRATE’S
COURT 1^st Respondent

SENIOR CLERK OF COURT 2^nd
Respondent

THE DIRECTOR OF PUBLIC 3^rd
Respondent
PROSECUTIONS

Judgment

Delivered by the Hon. Mrs Justice A. M. Hlajoane on
2^nd June, 2008.

The Applicant approached Court seeking for review of the
proceedings by the Senior Magistrate – Berea in CR217/07. He wanted
the
Court to review, correct and set aside those proceedings as being
irregular.

The Application was opposed but the Crown however never filed
any opposing affidavit and the matter proceeded on the Applicant’s
papers.
The Applicant advanced three grounds for review, namely:

Failure by the Court to make enquiries as to the mitigating factors. Effect
of such a failure.

-	Proof of existence of previous convictions.
-	Failure to give reasons for sentence and the effect thereof.

Applicant
argued that the Court a quo failed to make the necessary enquiries about
the existence of the mitigating factors in favour of the accused. He said the
Court
was duty bound to have made such inquiries by putting the relevant
questions to the accused who was not legally represented. But
my reading of the
proceedings by the trial Court showed that in fact the accused had something to
say in mitigation of sentence.
He prayed the Court to consider that he had
pleaded guilty to the charge and that he was a married man with a minor child
aged 1
year 2 months, and that he and his wife were not employed. He even
expressed how sorry he was for his actions.

According to the record, what
the magistrate failed to do was to reflect on the record that in passing
sentence he in fact did consider
the mitigating factors advanced by the accused.
The fact that the accused did plead guilty to the charge proved how remorseful
he
was and he even said he was sorry for his actions. He never wasted the
Court’s time in calling Crown witnesses to prove the
case. That procedure
for mitigating factors has not been introduced for fun but for a reason. The
Magistrate has to consider the
mitigating factors in deciding on the appropriate
sentence to be imposed. So that if the Court on review discovered that such
factors
were not considered as in the present case, has to order a re-trial or
remitting case to the trial Court for consideration of those
factors and
thereafter imposing a fresh sentence.

The record also reflected that the
Public Prosecutor stated that the accused had a previous conviction relating to
a firearm. Whether
or not he had stolen a firearm or used it without licence
was not clear. The question that one would ask would be, what of the firearm?

Section 233 of the Criminal Procedure and Evidence Act 7 of 1981
contemplated tendering in Court proof of previous convictions. This would be
done by calling of the Clerk of Court by the Prosecutor
to come and produce
documentary proof of such convictions from the Court’s records in his
custody. In casu, this was never done, but the magistrate seemed to have
taken the Prosecutor’s word on the previous convictions and sentenced
the
accused. This was irregular and had prejudiced the accused.

The Court
therefore on the 7^th April, 2008 considered that ordering a re-trial
in a case of housebreaking where a lot of items were stolen and that which was
recovered
having been returned to the complainant, would not be a practical
exercise. The accused in the re-trial may choose to plead not
guilty and once
that is the position there would no longer be any exhibits to produce before
Court. Even the damage to the building
where accused gained entry may have
already been repaired. So that the prosecution would not have it easy to prove
its case.

I therefore ordered that since the procedure up till the stage
of the verdict had been proper, that the case be remitted to the Magistrate
to
consider the mitigating factors in his judgment. Also that the Public
Prosecutor should show proof of previous conviction which
he said related to a
firearm by handing in by the Clerk of Court, a certificate as proof of such
previous conviction and show in
his judgment that it had an impact in passing
sentence. Thus the sentence had to be passed afresh after having considered
both the
mitigating factors and the previous conviction.
A time limit was
given within which to pass sentence afresh, but when the time came the
Magistrate had yet not complied. This raised
a great concern to this Court.
The concerned Magistrate was called by this Court to come and explain, only to
find that the order
after it had been served on the Clerk of Court was never
taken before the trial Magistrate.

The Court on review confirmed the
conviction but set aside the sentence of M7000.00 or seven years imprisonment
and was substituted
by one of four years imprisonment, half of which is
suspended for a period of two years on condition that the accused during the
period of suspension is not found guilty of a similar offence. The sentence to
start running from the date that the accused was
sentenced, which was the
13^th June, 2007.

A. M. HLAJOANE
JUDGE

For Applicant: Mr Mokoko

For Respondents: Ms Makholela