HIGH COURT OF LESOTHO
Application of :
(Mr. Mapeshoane) T.Y. 1st Respondent
OF PUBLIC PROSECUTIONS ; 2nd Respondent
by the Hon. Mr. Justice B.K. Molai on the 26th day of February, 1990.
October, 1989 the applicant herein filed with the Registrar of the
High Court a notice of motion in which he moved the court
order framed in the following terms:
proceedings in C.R. 310/89 be reviewed and corrected or set aside;
magistrate dispatch within fourteen1 (14) days of the receipt of
this notice to the Registrar of the above Honourable Court;
the above applicant that the proceedings in C.R. 310/89 have been
dispatched to the Registrar of the High Court for review;
applicant further and/or alternative relief.
of suit in the event of opposing this application,,"
they were duly served with the notice of motion the Respondents have
intimated no intention to oppose this application.
It may be assumed,
therefore, that they are prepared to abide by
decision will be arrived at by the court.
appears from both the affidavits and the record of proceedings in
C.R. 310/39 that on 25th July, 1989 applicant and another person
appeared before a magistrate with first class powers and pleaded
guilty to a charge of Housebreaking with intent to steal and theft,
it being alleged that on or about 22nd July, 1989 and at or near
Bela-Bela in the district of Berea they both or either of them
unlawfully and intentionally and with intent to steal break and enter
a cafe there situate of Nthoesele Mpo and did unlawfully
articles mentioned in the charge sheet, the property or in the lawful
possession of Nthoesele Mpo.
Public Prosecutor accepted the plea of guilty tendered by the
applicant and his co-accused. The provisions of S.240(1) (b) of
Criminal Procedure and Evidence Act, 1981 were invocked.
facts, and these were admitted as correct by the applicant and his
co-accused, disclosed that on the previous day, 21st July,
windows and the doors of the complainant's cafe were properly closed.
During the night two people were seen outside the
cafe carrying some
property. When they were approached those two people wanted to fight.
On the process one of them was hit with
a stick. They both ran away
leaving the property they had been carrying. The property was found
to be the articles mentioned in
the charge sheet. They were
identified by the complainant as part of his property which had been
kept in the cafe. The complainant
further found that one of the
windows of his cafe had been broken open. He had not allowed the
appellant and his co-accused or
any other person for that matter to
break into the cafe and remove property therefrom.
applicant and his co-accused were subsequently arrested and taken to
Mapoteng police station together with the [articles that
found outside the cafe. They were cautioned and charged as
public prosecutor accepts the plea of guilty and outlines the facts
which are admitted as correct by the accused all what
the court has
to do is to consider the facts to determine whether or not they
establish the commission of the offence against which
stands charged. Once it has found that the facts do establish the
commission of the offence the court is entitled to
accused. There is no need to enquire into the question of who has
committed the offence. By pleading guilty to the
charge the accused
is, in effect, saying if it were proved that the offence against
which he is charged has been committed then
he is the one who has
present case there can be no doubt in my mind that the essential
elements of the offence against which the applicant and
co-accused stood charged had been proved by the facts that were
outlined by the public prosecutor and accepted by the applicant
his co-accused. By their own pleas of guilty the applicant and his
co-accused in effect told the court that if it were found
offence against which they stood charged had been committed, they
were the ones who had committed it. That being so, it
had to be
accepted that the applicant and his co-accused were correctly found
guilty as charged by the trial magistrate.
been argued that the applicant is a minor and ought to have been
charged under the Children's Protection Act, 1980, In support
argument a baptismal certificate was annexed to the-founding
affidavits. It is to be observed, however, that although
applicant's names are Setena Molahloe, the baptismal certificate is
that of Clement Tumo Molahloe. In my view the baptismal
Clement Tumo Molahloe cannot be used as proof of the age of the
applicant who is Setena Molahloe. Moreover, according
to the charge
sheet the age of the applicant is 19 years. He is therefore, not a
child within the meaning of that word in the Children's
although affidavits are filed in support of the application they all
bear no revenuew stamps. They are, therefore.
properly before this court. The applicant cannot hope to be granted
relief on an application which is supported by affidavits
not properly before the court.
significant that the applicant and his co-accused were convicted and
sentenced to 5 years imprisonment by; a magistrate with
powers. Where a magistrate with first class powers convicts and
sentences a person to serve a term of 5 years imprisonment
proceedings are surely automatically reviewable. There is, therefore,
no need to inundate the High Court with applications
of this nature.
large, I am not convinced that this application ought to succeed and
it is accordingly dismissed.
Applicant : Mr.
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