CRI/REV/263/90

IN THE HIGH COURT OF LESOTHO

In the matter of :

REX

V
JOE SEIPATI

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
16th day of November, 1990.

The accused appeared before a class 1 magistrate on 9th
July 1990 and pleaded guilty to a charge of house-breaking with
intent to
steal and theft.

The accused was convicted on his own plea and sentenced
to a prison term of five years in accordance with the minimum
penalties order
prescribed for the offence charged.

Save that the accused denied that the amount stolen was
M350.00 hut that according to his calculations it footed only up to
M230.00
he admitted as accurate the outline of the case presented
before the court by the public prosecutor.

The prosecution's outline of the case indicated that the
accused stays at the stand of a relative Paulina Seipati at

Upper
Thamae.

/On

-2-

On 3rd July 1990 the complainant left her place in the
evening to watch T.V. at a friend's place. She left her seven year
old child
sleeping in the house whose door she had locked and windows
secured.

When she returned the door was still lacked and she
unlocked it to gain entry into the house.

On coming into her bedroom she discovered that the
window thereto was broken . She obtained information relating to the
accused from
the seven year child whom she had left sleeping in the
house, The child knew the accused well.

The complainant realised that her purse containing M350
had gone missing. Thereupon she made a report to the chief who in
turn referred
her to the Thamae police station. The police
discovered that the window had been broken.

The accused was approached by the police the following
day. They cautioned the accused who made an explanation regarding
the offence.
The accused's explanation further related to the pair
of trousers he was seen wearing.

The accused explained that he had bought the pair of
trousers with part of the M230.00 he found in the purse and not
M350.00 claimed
to have been placed in that purse by the complainant.

The complainant's contention according to the prosecutor
was that she had not allowed the accused to break into her house and
steal
money she had kept in her purse.

Further outline of the case showed that children saw the
accused break and enter into the complainant's house through the
window,
and that they later saw him come out through the same window.
(Children saw him open the wardrobe in which the complainant
contended
she had kept her missing purse. The children, it is
stated, were too scared to raise an alarm. The prosecution was also
in possession
of evidence

/that

-3-

that when seen going to the complaiant's house the
accused was drunk.

The prosecution further indicated that the accused's

age is nineteen years.

The accused when asked by the learned magistrate if the
prosecution's outline of the case was in accordance with facts he
accepted,
raised a query in respect of the amount as shown above.
Otherwise he accepted as accurate the facts presented before the
Subordinate
Court b3y the public prosecutor.

This matter is today brought before this court on
automatic review. Both counsel have submitted their written
submissions. I am
grateful to them for that.

Relying on CRI/REV/353/89 Rex vs Saule Saule the
Others (unreported) Mr. Hlaoli asked that this Court
should order a retrial. First, because the accused's age was in
doubt for if indeed he was below eighteen
years of age his matter
fell to he treated under Children's Protection Act 1980. Next,
because the record does not reveal that the
accused was asked if he
required a legal representative, and further that it behoved the
learned magistrate to have warned the unrepresented
accused of the
desirability of securing himself services of a legal practitioner
regard being had to the fact that if convicted he
would face a
sentence of no less than five years' imprisonment. For the last
submission elaborated above the defence reposed its
faith on the
authority, of CRI/A/37/88 Lahlohonolo Pulumo vsRex
(unreported) and other authorities cited therein.

With regard to the first point raised in favour of the
rotrial it appears on the record that not only the charge sheet
reflects the
accused's age as nineteen years but also the outline of
the case reflects this age regarding which when asked whether it is
accurate
he answered in the affirmative

The court can scarcely under-estimate the accused's
level of intelligence and come to the view that he did not realise

/that

-4-

that when he accepted the general outline of the
prosecution case as correct that he also accepted the correctness of
the particular
question of his age to he nineteen years. The
contention that he might not have been aware that by accepting the
outline he was also
accepting particulars in that outline is defeated
by the fact that he was able to query the amount which he contended
was in excess
of the M230.00 that he admitted stealing. If the
argument advanced in respect of his age is to hold then the basis of
his query
that the amount stolen was M230.00 and not M350 is called
in question. Conversely the fact that he was circumspect enough to
differentiate
between these two sums serves as proof that he would
not have confirmed his age as nineteen years if it was below
eighteen.

It would perhaps he worth noting that in Pulumo
unlike in the instant matter the unrepresented accused had pleaded
not guilty. Thus similarly in C of A (CRI) No. 12 of 1974 Stephen
Tsatsane vs Rex (unreported) where the appellant had pleaded
guilty in the Subordinate Court and for purposes of sentence his
matter was committed
to the High Court where he sought to challenge
the original plea Maisels P. as he then was found it fitting
to extract from Hoffman on the South African Law of Evidence
2nd Edition p. 305 et seq the following:-

"A plea of guilty is in effect a formal admission
of the essential elements of the charge. Ever after withdrawal, the
fact
that it was made is something which the court is entitled to
consider."

In S vs.Mashinyana 1989(1) SA. 592 it was held
that:-

"A court is not obliged to enquire from an accused
whether he wishes to have legal representation. The unexpressed
desire of
an accused to engage a legal representative cannot afford
him a cause for complaint after his conviction and sentence."

In Caiphas Dlamini vs Regina case No. 46/84 a
Swaziland Court of Appeal decision)Welsh J.A. referring to S vs
Maloyi 1978(3) SA. 290 at 293 said:

/"However

-5-

"However, where he (the accused) dees not seek it,
(legal representation) and where no irregularity occurs by which he
is deprived
of it, there is no principle or rule of practice of which
I am aware which vitiates the proceedings."

I may further add that section 240(1) of our C.P. &
E. provides that:-

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

(a)

(h) 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."

C/F Tsatsane above (unreported) at p. 2.

The record shows that the accused was asked if he
admitted the facts disclosed by the evidence in the prosecutor's
possession.

In Rex vs Sibia 1947(2) SA. 50 AD Schreiner
J.A. is recorded at page 54 et seq as having said:

"I do not wish to he understood as suggesting that
it is an irregularity, of which the accused could take advantage, if
no record
is made. Speaking only from my own experience. I do not
think that it could he inferred from the absence of any reference
thereto
in the judge's notes or in the shorthand record that the
accused was not asked ...."

In CRI/A/48/86 Mosoeunyane Mothakathi vs Rex
(unrepnrtcd) at p. 7 this Court made the following observation:

"Section 162(1) of the C.P. & E provides that
where provisions of section 159 of the Act have not been invoked the
accused
shall either plead to the charge or except to it on the
ground that it does not disclose any offence cognisable by the court.
In
the instant case the charge and outline of the Crown case clearly
disclosed an offence committed.

/Subsection

-6-

Subsection (2) provides that if he (the accused) pleads
he may plead

'(a) that he is guilty of the offence charged or (b)
that he is not guilty; or

3. 
   that he has already been convicted or acquitted
   of
   the offence with which he is charged; or

   
   

4. 
   that he has received the Royal pardon for the
   offence
   charged; or

   
   

5. 
   that the Court has no jurisdiction to try him
   for
   the offence; or

   
   

6. 
   that the prosecutor has no title to prosecute".

   
   

In the instant case the accused in exercise of his
unfettered right to opt for any one of the alternatives listed above
opted for
that listed under (a).

This being a matter brought before this Court on
automatic review albeit that the court had the benefit of hearing
oral arguments
and of observing the accused who was present in court
it is of the firm view that proceedings in the court below were in
accordance
with substantial justice. Thus the court declines to make
an order for retrial on grounds advanced on behalf of the accused by
his
counsel.

The proceedings before the court below are confirmed.

J U D G E.
16th November, 1990.

For Crown : Mr. Lenono For Defence : Mr. Hlaoli