CRI/S/1/82
CRI/S/5/82

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

PUSETSO
RAMOSITLI KHABO PHOKA

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 6th day of August, 1982.

These two
cases have been treated together because exactly the same principle
of law is involved.

In the
first case, the accused is charged with the offence of housebreaking
with intent to steal and theft (and one other offence
which is not
clear on the face of the charge sheet). The accused pleaded not
guilty but was eventually found guilty on both such
offences. There
is reflected, on the typewritten record, what purports to be the list
of the accused's previous convictions with
no signature or
thumb-print of the accused. ( A practice which this Court can hardly
recommend in any circumstances whatever).
The accused, after
addressing the court in mitigation, was committed to the High Court
for sentence presumably in terms of s. 293
of the Criminal Procedure
& Evidence Act 1981.

In the
second case, the accused is charged with the crime of rape. He
pleaded guilty but notwithstanding the prosecution elected
to lead
evidence. Accused elected to remain silent. After addresses by the
prosecution and the

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accused
(who was given an opportunity to do so but elected to say nothing) a
verdict of guilty was returned. Accused did not say
anything in
mitigation of sentence. However, he was committed to this Court for
sentence again presumably (this is not stated in
the record) in terms
of s. 293 of the Criminal Procedure and Evidence Act (supra).

Firstly,
the practice laid down by the Court of Appeal in the case of
Manaphalla and Another v Rex, 1971-73 L.L.R. 39 at 40, has
not been
followed. In that case Maisels J.A, (as he then was) said :

"We think therefore that the practice should be laid down that,
when a magistrate acts under section 288A, (now s.293(1) of
the
Criminal Procedure and Evidence Act 8 of 1981) he should give reasons
for convicting the accused and these reasons should form
part of the
record in the case," (My underlining).

The
reasons for this being that"it is clearly in the interests of
justice that

this
should be done ....... and assistance that

it would
be rendered to the High Court, and in appropriate cases to the Court
of Appeal, it should be borne in mind that the accused
ought, for his
own purposes, to have these reasons available to him." (at
40E),In both cases before me the reasons why the
accused have been
convicted have not been given.S.293(1) permits a subordinate court to
commit a person, who was tried by it, to
the High Court for sentence.
S.294(4) stipulated that any sentence passed by the High Court when
the matter has been referred to
it in terms of s.293(1) that the
person so sentenced shall be deemed to have been tried and convicted
by the High Court, Now an
accused person can be tried in the High
Court for a Criminal offence when he has been so committed to that
court by a subordinate
court. The only exception is in terms of
s.144. However, the committal must be valid. (Rex v Mahooana, 1979
L.L.R.; Rex v Rampine

3

and
Another, 1979 L.L.R.). It is one of the requirements of the s, 293(1)
that the reasons why the subordinate court is of the opinion
that
greater punishment ought to be inflicted than it has power itself to
do so, shall be "recorded in writing of the record
of the case."
It is, therefore, in my view, obligatory for the said reasons to be
in writing and also form part of the record.
If that requirement of
the law is not complied with then the committal of the accused cannot
be lawful and is invalid. If, therefore,
the committal is not valid,
the High Court is not seized of the matter and it ought to be
returned whence it originates.

To sum up
then, in these two cases, two things have happened: Firstly, the
practice laid down by the Court of Appeal in Maqaphalla
and Another's
case, viz, that reasons for conviction should be given, has been
totally ignored. Secondly, an important provision
of the law
governing the committal of an accused for sentence by the High Court
has not been complied with i.e. reasons have not
been given in
writing as to why the subordinate court was of the opinion that a
greater punishment ought to be inflicted on the
accused. For these
reasons I hold that the committal is not lawful nor regular. (Rex v
Matete, 1979 L.L.R.; Rex v Mahooana (supra)).

JUDGE.

For the
Crown : Kamalanathan