CRI\A\9\93

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of ;

LERATO
SKUNDLA Appellant

vs

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 10th day of April, 199S

I have
had a look at the record. Both Counsel have been very helpful in
their arguments and submissions.

The whole
thing seems to revolve, as to conviction, on whether Section 217
should be followed or the remedial Section 329 of the
Criminal
Procedure and Evidence Act 9 of 1981. Mr Mda relying on Section 217
wishes to persuade this Court that the degree of irregularity
that
prevailed in the court below led to failure of justice because that
degree was a very gross one. He went further to indicate
that this
was prejudicial to the accused who was then unrepresented. This
consists in the fact that the learned Magistrate who
was presiding
over the case where the accused was charged with theft at the end of
the day, in explaining the accused's rights
allowed him to give
unsworn

2

statement.
And that used to be the case before 1981. It was in 1984 when the
Magistrate gave the misleading explanation referred
to above. But in
terms of our Criminal Procedure and Evidence the only options that an
accused has are that he can give evidence;
and if he gives it, it
should be a sworn one; or else he just keeps his silence. So indeed
the learned Magistrate misdirected himself
in applying a law which no
longer existed by requiring or advising the accused to give an
unsworn statement.

Now, the
main question facing this Court is whether this procedural
irregularity is so gross as to lead to failure of justice. Section

239 provides a remedial option - some form of remedy to
irregularities. In its broad terms it states that notwithstanding
that
an irregularity has been committed in the procedure or whatever
then this Court i.e. the High Court is at large to correct such

irregularity and the High Court in exercise of its powers under that
section is enjoined to ensure that even if the irregularity
could be
decided in the accused's favour, however if failure of justice would
result thereby then the court is entitled not to
decide the matter in
the accused's favour. The actual words used in Section 329(2) say :

"Notwithstanding that the High Court is of the opinion that any
point raised might be decided in favour of the accused, no
conviction
or sentence shall be set aside or altered by reason of any
irregularity or defect in the record or proceedings unless
it appears
to the court of appeal that a failure of justice has resulted there
from".

I don't
think a failure of justice has resulted from the irregularity pointed
at in these proceedings.

3

Thus
notwithstanding breach of provisions of Section 217(3) that

"an accused may not make an unsworn statement at his trial in
lieu of evidence but shall, if he wishes, do so on oath,"

these
proceedings cannot be set aside on account of the irregularity
pointed out earlier. It is also stimulating to notice that
the
section only says an accused may not make an unsworn statement.
Conversely it perhaps would have been otherwise if it said
he shall
not make an unsworn statement.

Miss
Mokitimi for the Crown having perused the sections that the Court
allowed her to have a look at during the short interval that
the
court allowed, is of the opinion that and duly submitted that the
form of irregularity that exists here can be cured in terms
of
Section 329. I have no doubt in my mind that that view is correct and
in the circumstances therefore the appeal against conviction
is
dismissed.

As for
sentence it was argued on behalf of the accused that it induces a
sense of shock regard being had to the fact that the accused
is a
first offender and the fact that he was a young man at the time of
the commission of the crime. The court below didn't seem
to say
anything about the age of the accused. The age of the accused is not
reflected in the evidence. It only appeared in the
charge-sheet. I
have however learned from arguments that the accused or the appellant
was still in the custody of his parents therefore
was a dependant at
the time. The Crown on the other hand feels that the accused was

4

sufficiently
old having passed the age of majority, to be treated as a major
because the charge-sheet so indicates and therefore
a sentence of 18
months' imprisonment cannot induce a sense of shock. But now the
learned Magistrate doesn't indicate that he took
the question of that
age into account or what age in fact he took into account. What
remains exceedingly puzzling is that then
this eighteen months'
imprisonment is to he served in Juvenile Training Centre. Now, this
is an indication that the learned Magistrate
regarded the accused as
a minor and this is the only thing that can be inferred from
directing that the sentence should be served
at Juvenile Training
Centre. Then the court as far as the question of age is concerned
would have to have this matter either referred
to the Court a quo for
purposes of establishing the question of age of the appellant or rely
on what appears on the charge-sheet.
But because it interests the
State that litigation should come to an end, I propose to rely on
what appears on the charge-sheet.
In that regard therefore I feel
that the court is enjoined to interfere in the question of sentence.
The fact that the appellant
is the first offender and that he was
relatively young and therefore immature and impressionable at the
time though he had gone
past the age of discretion and the fact that
there was some form of peer pressure - he was with another man who
had bad influence
on him and was encouraging him - all warrant
interference by this court on sentence. These are all factors which
this court feels
it should take into account. I am very much indebted
to both Counsel especially Mr. Mda for bringing to the court's
attention cases
which might be of relevance to this matter. I am
referring

5

particularly
to a case which he referred this Court to by Molai J - Malefetsane
Mokolokolo vs Rex CRI\A\15\85 (unreported) and I
wish to state that
with respect I dissociate myself from the dictum of my learned
brother in that case, I thought I should raise
this before I impose
what would in the circumstances of this be an appropriate sentence
regard also being had to the value of the
property stolen - the value
of the property stolen is also a factor that moves me to review the
question of sentence. This property
is said to be a grill. Although I
have heard that it is of little value, I have not been able to
establish what its cost is but
what is paramount is that the grill
has ben restored to the complainant. In these circumstances then I
think a lesser sentence
than the one that was imposed is justified.

The
sentence of 18 months' imprisonment is set aside. In its substitution
is imposed a fine of M120-00 or sentence of six months'
imprisonment
half of which is suspended for twelve months provided the appellant
is not convicted of a crime involving dishonesty
committed during the
period of the suspension.

JUDGE

10th
April, 1995

For
Appellant : Mr. Mda

For
Respondent : Miss Mokitimi