CRI/S/10/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of

REX

v

NTSANE
PELEHA

SENTENCE

Delivered
by the Eon. Mr. Justice M.P. Mofokeng on the 14th day of December,
1983.

The
accused, was charged before the Subordinate Court at Teyateyaneng
with the crime of Housebreaking with intent to steal and theft.
In
view of the conclusion the Court has arrived at, it is not necessary
to give the details of thereof.

The
accused, at the conclusion of all the evidence, was found guilty "as
charged." The public prosecutor then handed into
Court the
accused's previous convictions who admitted "all previous
convictions as stated." Unfortunately these were
omitted to be
placed before this Court nor are any copies (photocopies or any)
attached to the judge's record. The record further
states:

"Following
a record of previous convictions and more especially similar ones to
the crimes charged namely:

1. Housebreaking
   with intent to steal and theft ( three counts).

   
   

2

2. Theft
   common.

   
   

The accused is committed for sentence by the High Court of Lesotho."

It is not
clear why the accused has been committed to this Court for sentence.
It is not clear whether he had been charged on one
charge sheet with
three (3) different counts of housebreaking with intent to steal and
theft or whether it is meant he had been
charged on three different
occasions with the said crimes. As to what the nature of sentences
passed on the accused were, this
Court is totally in the dark.

In terms
of section 293 (1) of the Criminal Procedure & Evidence Act 1981
it is clearly stated that if a magistrate is of the
opinion that a
greater punishment ought to be inflicted for the offence than he has
the power to do so, he must give his reasons
in writing on the record
of the case. It cannot be a reason of bringing a case to this Court
for sentence under this section solely
because the accused has
previous convictions. If it were so, full information must be
furnished to this Court, including his reasons
for sending the case
here. (See Maqaphalla & Another v Rex. 1971-75 L.L.R. 39 at 40C).
This machinery, if I may call it, was
devised for the simple reason
that there should be no passing of the buck but only well documented
and reasoned cases should be
referred to this Court for sentence.
(See Rex v Motlalepula Letsapo, 1980 (2) L.L.R. 434 at 436).

There has
been no compliance with the provisions of

3

section
295 (1) of C.P. & E. (supra) and what should have formed part of
record has not. The whole record is a clear manifestation
of total
disregard of the decisions of this Court to which I have referred. In
the circumstances I have no alternative but to refuse
to deal with
this matter and return back to whence it came, and it is accordingly
so ordered.

JUDGE.

14th
December, 1983.

For the
Crown : Mr. Pitso

For the
Defence: In. Person.