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

-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 -

(a) ..

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

-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 -

(b) 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

-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

   
   

(c) 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..