CRI/A/1/90

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MABULA
RAMOROBI Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 30th day of March, 1990.

On 18th
September, 1989 the appellant appeared before a Subordinate Court and
was convicted of assault with intent to do grievous
bodily harm, on
the allegations that on or about 19th August, 1989 and at or near ha
Moqathinyane in the district of Leribe he
had unlawfully and
intentionally assaulted Thabo Letsela by hitting him on the head and
body with a stick and iron rod. A sentence
of five (5) years
imprisonment was imposed.

The
appeal is against both the conviction and sentence on a long list of
grounds which may, however, be summed up in that the conviction
was
bad in law and the sentence of five (5) years imprisonment too harsh.

It is
significant to observe that although the appellant is recorded as
having said he pleaded guilty to the charge the record of
proceedings
makes no mention that the charge was ever read or explained to the
appellant. Indeed, one of the appellant's grounds
of appeal is that
the charge was never explained to him. I have also

2

read
through the record of proceedings and found that nowhere did the
trial magistrate write that he had read or explained the charge
to
the appellant who was unrepresented in this case.

The
requirement that the trial magistrate must read the charge to the
person who is charged before him is, in my view, clearly layed
down
in section 123 (2) of the Criminal Procedure and Evidence Act, 1981
which reads as follows:

"123(2) At the trial the charge shall be read out to the person
charged, who shall be called upon to plead thereto, and his
plea
shall be recorded thereon." (My underlining)

Section
150 of the Criminal Procedure and Evidence Act, supra, also provides,
in part

"150.
Subject to section 313 the accused, upon the day appointed for his
trial or sentence upon any charge -

1. .....................................

   
   

2. .....................................

   
   

3. shall
   be informed in open court of the offence with which he is charged as
   set forth in the charge.........." (My underlinings)

   
   

The words
I have underscored in the above cited sections of the Criminal
Procedure and Evidence Act, 1981 fortify my view that it
is
imperative for the trial magistrate to read and explain the charge to
the person who appears before him charged with an offence.

There is
yet another difficulty in the record of proceedings of this appeal.
It appears from the record that after the appellant

3

had
pleaded guilty to the charge the public prosecutor accepted the plea
and outlined the facts he had in his possession. There
is, however,
no indication in the record of proceedings that the appellant
admitted as correct the facts outlined by the public
prosecutor. If
the appellant were to be convicted on the facts outlined by the
public prosecutor .it was essential to show that
he had accepted them
as correct - vide Criminal Procedure and Evidence Act, 1981 of which
S.240 provides in part:

"240(1)
If a person charged with any offence before any court pleads guilty
to that offence or to an offence of which he might
be found guilty on
that charge, and the prosecutor accepts that plea

the court
may –

1. …………….

   
   

2. if
   it is a subordinate court, and the prosecutor states the facts
   disclosed by the evidence in his possession, the court shall,
   after
   recor­ding such facts, ask the person whether he admits them,
   and if he does, bring in a verdict without hearing any
   evidence."
   (My underlining)

   
   

It is to
be observed that the notice of appeal bears the rubber stamp
impression of the Leribe Magistrate court indicating that
it was
filed with the clerk of the court on 27th September, 1989. Rule 1(3)
of the Subordinate Court Rules embodied under Order
No.XXXV of High
Commissioner's Notice 111 of 1943 at page 661 et seq. of Vol.1 of the
Laws of Basutoland (1980 ed.) clearly provides:

"Upon
an appeal being noted the Judicial Officer shall within seven days
deliver to the clerk of

4

the court
a statement in writing showing

1. the
   facts he found to be proved;

   
   

2. the
   grounds upon which he arrived at any finding of fact specified in
   the appellant's statement as appealed against; and

   
   

3. his
   reasons for any ruling of law or as to the admission or rejection of
   evidence so specified as appealed against.

   
   

In the
present case the trial magistrate has, contrary to the provisions of
the above cited Rule, chosen to submit no written reasons
for
judgment at all. There is, therefore, nothing to gain­say the
appellant's ground of appeal that the charge was never read
or
explained to him. Indeed, as it has already been pointed out earlier
there is nothing in the record of proceedings to indicate
that before
the trial magistrate returned a verdict of guilty, the appellant had
admitted, as correct, the facts that were outlined
by the public
prosecutor. In my view, the "cumulative effect of all these
omissions is to constitute a serious irregularity
resulting in a
miscarriage of justice.

In the
circumstances, I have no alternative but to come to the conclusion
that the proceedings ought to be set aside and an order
made that the
trial starts de novo before a different magistrate.

I
accordingly order. The appeal deposit is to be refunded to the
appellant.

B.K.
Molai

JUDGE

30th
March, 1990.

For
Appellant : Ramodibeli

For
Respondant : Miss Nku..