C.of A
(CRI) No.6 of 1984

IN THE
LESOTHO COURT OF APPEAL

In the
matters of:

BOTHATA
THAKELI

SEMANKI
MAJORO

versus

DIRECTOR
OF PUBLIC PROSECUTIONS

HELD AT
MASERU

CORAM:

SCHUTZ P.

AARON
J.A.

WENTZEL
J.A.

JUDGMENT

SCHUTZ P.

Two
matters have come before this Court as a result of Cotran C.J's
having reserved certain quetions of law for the consideration
of this
Court in terms of s 15 of the Court of Appeal Act 10 of 1978.

The
questions are stated in the following form:-

2

"Is
there anything in any law or in the texts of

1. The
   Women and Girls' Protection Proclamation Mo. 14/1949. and

   
   

2. The
   Internal Security (General) Act 1982

   
   

that empowers magistrates of the various classes presiding over
Subordinate Courts to pass a sentence in excess of the juris­diction

conferred upon them s 62(1) of the Subordinate Courts Proclamation,
namely, four years imprisonment in the case of Semanki Majoro
which
was presided over by a Resident Magistrate and two years
imprison­ment in the case of Bothata Thakeli which was presided

over by the first class magistrate."

Bothata
Thakeli was tried by a magistrate of the first class and was
convicted of having had unlawful carnal connection with a girl
under
the age of 16 contrary to s 3(1) of the Women & Girls' Protection
Proclamation 14 of 1949, The maximum period of imprison­ment
laid
down by this section is six years. The magistrate sentenced the
accused to 3½ years imprisonment.

Semanki
Majoro was tried by a Resident Magistrate on a charge of having
contravened s 15(1) (a) of the Internal Security (General)
Act 6 of
1982. Broadly speaking this subsection is concerned with the causing
of explosions which may endanger human life or cause
injury to person
or property. The accused was convicted. The maximum period of
imprisonment laid down in this section is ten years.

These
matters came before Cotran C.J. by way of review. In both instances
he was of the view that the magistrates had exceeded their

jurisdiction. In the case of Majoro, he reduced the period of
imprisonment to four years. In the case of Thakeli the conviction
and
sentence were set aside on the ground

3

that the
Crown had failed to prove an essential element of the crime.

The
magistrates, in exceeding their ordinary juris­dictions, placed
reliance upon certain review judgments in the High Court.
The
judgments in question are those of & v Daniel Hae (Review Order
19/83 dated 21st July 1983), R v Peter Mbayeka & others
(Review
Order 27/83 dated 23rd November 1933), and R v Lekona Mahloane
(Review Order 30/83 dated 21st December 1983), It is unnecessary
to
set out the facts of these three cases or the views expressed in the
judgments. Suffice it to say that there is a conflict between
the
views expressed by Cotran C.J . In the present two cases and the
views expressed by other judges of the High Court in the other
three
cases.

I address
myself to the questions of law reserved. Section 4 of the Criminal
Procedure and Evidence Act 9 of 1981 provides in part
:-

"The Jurisdiction of a subordinate court in respect of the trial
of the person charged with an offence (whether as to the
nature of
the offence, the area within which it is alleged to have been
committed; and the maximum punish­ment that may be
imposed
therefor, .....) is as prescribed in the law relating to the powers
end jurisdiction of that court and in this Act and
in any other law
or rule of law relating to the powers and jurisdiction of that
court."'

Section
62(1) of the Subordinate Courts Proclama­tion 58 of 1938, as
amended, provides in part:-

4

"Subject
to the provisions of this Proclamation and of any other law in force
in the territory. Subordinate Courts may punish
any person con­victed
of any offence in the follow­ing manner and (save as is specially
provided by this Proclamation or
any other law) in no other or more
severe manner, that is to say:

(b) A Resident Magistrate's Courts:-

(i) imprisonment for a period not exceeding four years provided
that......

(c) A Subordinate Court of the first class:-

(1) imprisonment for a period not exceeding two years

(ii) .....". (My underlining)

Also
relevant to the inquiry are certain of the provisions of s 90 of the
Criminal Procedure & Evidence Act. There the Director
of Public
Prosecutions is em­powered in certain instances when remitting a
matter to a magistrate after a preparatory examination
has been held
to direct that the matter will be dealt with by the magi­strate
under his ordinary jurisdiction or "under
any in­creased
jurisdiction conferred upon the court by any law governing
subordinate courts or by any other law".

The basic
question raised in this case, namely whether a provision in a statute
for a punishment exceeding a magistrate's ordinary
jurisdiction
empowers a magistrate to impose the penalty laid down in the statute,
is not a new one. In R v Dhlamini 1952 (4) SA
194 (T), Ramsbottom J
said (at 199 B) s-

5

"The fact that the Laguslature has decreed that a minimum
sentence for a particular kind of punishment shall be imposed on

conviction for a specific offence does not confer upon magis­trates'
courts that power to impose that sentence if it is in
excess of their
ordinary powers unless the power to pass that sentence is
specifically conferred. Persons charged with offences
of that kind
must be committed for trial and tried by a Superior Court."

It is to
be observed that even in the case where a minimum penalty is laid
down (just arguably a case where enhanced jurisdiction
might have
been inferred) Ramsbottom J held that the enhanced jurisdiction could
be found only in a specific provision. Although
the particular point
does not arise directly in this case it is of importance as the
Internal Security (General) Act now in force
(Act 24 of 1964) makes
provision for a minimum penalty in s.12.

In S v
Setole en n ander 1966 (3) SA 33 (T) Steyn J (Jansen J concurring)
held (at 33-4 - I render the judgment which is in Afrikaans
in loose
translation) :-

"Apart from the question as to whether the ordinary jurisdiction
of a magistrates' court can lawfully be increased by the
provisions
of an Ordinance, it virtually speaks for itself that unless extended
or increased jurisdiction is granted to a magistrates'
court by a
specific provision of the relevant legislation, that court does not
have the power to exceed its ordinary jurisdiction
as defined in s 92
of Act 32 of 1944, as amended, (See e.g. Rex v Baartman, 21 SC 200,
and R v Dhlamini 1952 (4) SA 194 (T)at 199).
So, for instance, in
creased jurisdiction is conferred on magistrates' courts by s 13 of
Act 57 of 1959, as also s 170 of Act 30
of 1928, as amended. In the
absence of such specific granting of increased jurisdiction a
magistrates' court is confined to its
ordinary jurisdiction as laid
down in s 92 of Act of 1944, as amended, and consequently the Court
is not empowered to impose any
sentence exceeding its ordi­nary
jurisdiction - notwithstanding the fact that according to the
sentence provisions of the relevant
Act or statute a sentence is
mentioned exceeding that ordinary jurisdiction.

In the
present Ordinance there is no express provi­sion to which
increased jurisdiction is conferred on magistrates' courts
to impose
sentences mentioned

6

in the Ordinance that exceed the ordinary jurisdiction. The mere fact
that certain of the sentences provided for in the Ordinance
clearly
exceed the ordinary jurisdiction of a magistrates' court in no way
necessarily leads to the inference that a magistrates*
court,
consequently and because of that fact, is given the necessary
jurisdiction to impose those sentencec.....".

Section
62(1) of the Subordinate Courts Proclama­tion which I have
quoted, appears to be based on s. 92 of the South African

Magistrates' Courts Act 32 of 1944 (or rather its predecessor). That
s 92 commences:-

"Subject to the provisions of this Act .... the court may punish
any person convicted of an offence in the following manner
and (save
as specially provided by this Act or any other or more severe manner,
that is to say ......"

I agree
with the principles stated in the two cases cited and am of the view
that they have application to the statutes now under
consideration.
The question accordingly is whether the two statutes mentioned
specifically provide for enhanced jurisdiction of
magistrates, or
whether there is any other statutory provision having that effect.

I have
considered the provisions of the Women & Girls' Protection
Proclamation 14 of 1949. There is a general pattern in the
various
sections creating offences, and the relevant wording (taken from s
3(1) is:-

"... shall be guilty of an offence and being convicted thereof
shall be liable, at the discretion of the court, to a fine
not
excee­ding R1.000 or to imprisonment for any term not exceeding
six years."

In those
words I find no trace of a provision con­ferring an enhanced
jurisdiction on a magistrate, even

7

less a
specific provision. I do not consider that the reference to the
court's discretion has any bearing upon the question under

consideration. Accordingly, I am of the opinion that when a
magistrate passes sentence for an offence under this Proclamation he

is confined to his ordinary jurisdiction.

The
Internal Security (General) Act 6 of 1982 (which was repealed by s
82(2) of the Internal Security (General) Act 24 of 1984)
creates many
offences* commencing with s 7. Again there is a pattern in the
wording with regard to punishments, I quote the relevant
words from s
15(1), which are :-

".... is guilty of an offence and liable on conviction to a fine
not exceeding 10 000 Maloti or to imprisonment for a period
not
exceeding 10 years or to both such fine and imprisonment."

Again I
find no trace of a provision for enhanced jurisdiction, even less of
en express provision to that effect. Accordingly, again,
I am of the
opinion that a magistrate passing sentence for an offence under this
Act is confined to his ordinary jurisdiction.

Mo other
statute has been quoted which may throw more light on the matter, and
I know of no other. I might mention that the Director
of Public
Prosecutions has filed helpful heads in this natter, in the course of
which he supports the views of Cotran C.J,

There
are, of course, statutes providing expressly for the enhancement of
magistrates' jurisdiction. They have no bearing on the
matter, save
to underline that it

8

is that
sort of statute that was envisaged by the Subor­dinate Courts
Proclamation, I agree with the Chief Justice that there
must be a
stop to magistrates exceeding their jurisdiction. The two cases now
under consideration are by no means the only instances
that have been
brought to our attention. If it is felt that the jurisdiction of
magistrates should be increased in respect of certain
types of case
that is a matter for the Legislature. I make no comment, save to
remark that this is not a thing to be done merely
because there may
be some inconvenience if it is not done, and to remark that care
should be taken to ensure that punishments for
statutory offences do
not effectively become disproportionately heavier than those meted
out for the major common law crimes that
the experience of millennia
shows so greatly disturb the welfare of the citizen and the State.

The two
matters that gave rise to the present proceeding require little
further comment. However, I would make two observations.
It is a
matter of great surprise to me that magistrates and some judges may
have thought that magistrates have a greater jurisdiction
in cases
arising under a 3(1) of the Women & Girls' Pro­tection
Proclamation than in case of common law rape* Admittedly,
and
depending on the circumstances, offences under s 3(1) may be serious.
On the other hand; one might remember that if the Proclamation
had
applied in another country at another time Romeo might have found
himself an accused person and Juliet a reluctant complai­nant.

Common law rape, on the other hand, is in general a serious offence.

9

Turning
to the case under the Internal Security Act, it seems to have been an
extremely serious one. The placing of explosives with
a view to the
murder or mutilation of persons, indiscriminately, is a crime that
must be treated with rigour. I find it surprising
that the accused in
this case was not indicted in the High Court where she could have
been condignly punished.

Magistrates
who consider that they have insufficient jurisdiction to deal with
matters that are brought before then should direct
themselves
specifically to the powers that are given to them by s 63 of the
Subordinate Courts Proclamation and s 293(1) of the
Criminal
Procedure & Evidence Act.

In the
result the questions reserved by the High Court are answered in the
negative.

Section
15(3) of the Court of Appeal Act empowers this Court to confirm or
set aside the decision of the High Court. I consider
it unnecessary
to do anything further in this case other than to express my
agreement with what the Chief Justice has done.

The Chief
Justice directed that a copy of his judgment be sent to every
magistrate in the country. Similarly, I direct the Registrar
to send
a copy of this judgment to every magistrate in the country.

10

Signed:
W.P.Schutz

W.P. SCHUTZ

President

I agree
Signed S. Aaron

S. AARON

Judge of Appeal

I agree
Signed : J.A. Wentzel

J.A. WENTZEL

Delivered
this 24th day of January 1985 at MASERU,

For
Appellant : Mr. Maqutu

For Crown
: Mr. Kabatsi