IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

V

TEBOHO
ANDREAS

LEBOHANG
ANDREAS

LEBOHANG
SUPING

Review
Case No. 36/04 In Maseru District

CR. No.
43/02 Review Order No.4/2004

REVIEW
ORDER

19th
March, 2004

These
proceedings have been brought to the High Court for automatic review.

The three
(3) accused persons appeared before a magistrate with First Class
Powers, on a charge of Housebreaking with intent to
steal and theft,
it being alleged that on or about 15th October, 2002 and at or near
Mahlanyeng, in the district of Maseru, they
each, other or all
unlawfully and intentionally and with intent to steal, break and
enter a house there situate of Keketso Mohasi
and did unlawfully
steal Panasonic mini CD. Hi-fi player and hot plate (electric double
hot plate), the property or in the lawful
possession of the said
Keketso Mohasi.

2

When it
was put to them, the accused persons pleaded guilty to the charge.
The public prosecutor accepted the plea of guilty tendered
by the
accused persons and outlined the facts of the evidence he had in his
possession.

The facts
(these were admitted as correct) disclosed by the evidence were that,
had the accused not pleaded guilty, the complainant
would have
testified, in a nutshell, that at about 12 midnight on 15th October
2002 she was alone in the bedroom of her house when
she heard someone
trying to open the door leading from outside into the kitchen room of
her house. Believing it was her husband,
the complainant left the
bedroom and went to open the kitchen door. As soon as she did so,
three strange people suddenly entered
into the house. The complainant
ran back into the bedroom and locked herself in there. She then
raised an alarm and called for
help.

As a
result of the alarm raised by the complainant, a neighbour by the
name of Thabiso came to her rescue. In the presence of her
neighbour,
the complainant inspected her belongings in the kitchen room and
found that her two burner gas stove, a wrist watch,
a CD. player and
cassettes were missing. She immediately proceeded to Roma police
station and reported the incident.

Tpr.
Khuto would have also testified that he was a member of the Lesotho
Mounted Police Service stationed at Roma police station.
On 18th
October 2002 and following the report made by the complainant at Roma
police station, on the night of 15th October 2002,
he met A3 and
identified

3

himself
to him. After he had duly cautioned him, A3 took Tpr. Khuto to Al.
Tpr. Khuto would have further told the court that he
identified
himself to, and cautioned Al. The two accused persons then produced
and handed to him the gas stove and the CD. player.
They told him
that they had been in the company of A2 when they took the property
from the complainant's house. According to Tpr.
Khuto, on 19th
October 2002, A2 surrendered himself to him and confirmed that he, Al
and A3 had, indeed, taken the property, the
subject matter of this
case, from the complainant's house.

In his
testimony, Tpr. Khuto would have told the court that he took
possession of the gas stove and the CD. player which had since
been
in the custody of the police. They were handed in as exh. "1"
collectively.

In the
outline of the facts of the evidence, the public prosecutor told the
trial court that the complainant would have further
testified that on
the same day, 19th October 2002, she again went to Roma police
station where she identified the gas stove and
the CD. player (exh.
"1") as some of her property that had gone missing from the
kitchen room of her house on the night
of 15th October 2002.

The trial
magistrate considered the evidence outlined by the public prosecutor
and admitted, as correct, by the accused persons
and returned a
verdict of guilty, as charged, on all the three accused persons. They
were each sentenced to two (2) years imprisonment.

It is to
be borne in mind that the specific offence against which the accused
persons stood charged was Housebreaking with intent
to steal and

4

theft one
of whose essential elements is "breaking" (into the house).
On the evidence outlined by the prosecutor and accepted,
as correct,
by the accused persons, in the instant case, the accused persons
gained entry into the house after the complainant
herself had opened
the door thereof. That being so, it cannot in my finding, be held
that the accused persons had broken into the
house. In the absence of
any breaking, which is an essential element of the specific offence
against which they stood charged,
the accused persons could not be
said to have committed the offence. They had, in my view, committed
the specific offence of theft.

Assuming
the correctness of my view, the verdict of "guilty as charged"
returned by the trial magistrate is set aside,
on review, and
substituted by that of "guilty of theft common."

In
sentencing them to serve a term of two (2) years imprisonment, the
trial magistrate took into account that the accused persons
had no
record of previous convictions. They were, therefore, first
offenders. Moreover, the accused persons had pleaded guilty
to the
charge, hopefully as a sign of remorse. In mitigation all the accused
persons had asked for lenient punishment. On review,
I have also
found that the accused persons are guilty of theft common which is a
lesser offence than Housebreaking with intent
to steal and theft.

It is
significant to observe that at page 8 of the record of proceedings
the trial magistrate has written "Each accused is
sentenced to
two (2) years imprisonment." However, in completing the charge
sheet he wrote: "Each sentenced to three
(3) years
imprisonment." As a result of this confusion,

5

the clerk
of court, in completing the warrant of committal, wrote that each of
the accused persons was to serve a term of three
(3) years.

In the
circumstances, it is, again, ordered, on review, that the sentence
imposed by the trial magistrate is set aside and a sentence
of a
payment of a fine of Ml 80.00 or 18 months imprisonment in default of
payment of the fine is substituted therefore.

B.K.
MOLAI

JUDGE

19/03/04

Copy:
Chief Magistrate

All Magistrates

All Public Prosecutors

O/C Police Maseru

O/C Central Prison

CID headquarters - Maseru

Director of Public Prosecutions