IN THE HIGH COURT OF LESOTHO
In the matter of:
REX
V
SEMPE MANKOE
Review Case No 172/2004 CR 323/003
Review Order No 22/2004 In Qacha's Nek District
REVIEW ORDER 13th OCTOBER, 2004
This case comes before me on review after accused had been convicted and sentenced to the following:
Count 1 Ml000.00 or 1 year imprisonment.
Count 2 M5000.00 or two years imprisonment
Count 3 M14 000.00 or seven years imprisonment
All these sentence were to run concurrently.
The accused had been charged with the following three counts:
Count 1
The said accused contravened Section 3 (2) (a) of the Arms and Ammunition Act No 17 of 1966 (as amended by Act No 4 of 1999 Section 8 (c). In that upon or about the 11th October 2003 and at or near Melikane Ha Mankoe in the district of Qacha's Nek the said accused did unlawfully and intentionally purchase, acquire or have in his possession a 9 mm Auto Pistol S/No 206919 with three rounds of ammunition without a licience in force - thus contravened the provision of the said Act.
Count 2.
That the said accused contravened Section 3 (2) (a) Arms and Ammunition Act No 17 of 1966 (as amended by Act No 4 of 1999 Section 8 (c)). In that upon or about the 11th day of October 2003 and at or near Melikane in the district of Qacha's Nek - the said accused did unlawfully purchase, acquire or have in his possession or control a .303 rifle S/NO 108247 with 25 rounds of ammunition without a licience in force - thus contravened the provision of the said Act
Count 3.
That the said accused is guilty of contravening the provision of Section 4.3(1) of the stock theft (Amended) Act No 5 of 2003. In that upon or about the month of August 2003 and at or near Ha Mak'hoba in the district of Mataliele in the Republic of south Africa - the said accused who in any manner, otherwise than at a pubic sale acquired or received into his possession from any other person a herd of 5 cattle without being duly authorized by the owner thereof to dial with or dispose of them being the property of or in the lawful possession of Mzozoyane
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Martin and brought the same stock to Melikane Ha Mankoe in the district of Qachas Nek where this court has jurisdiction. This contravened the provisions of the said Act.
There is another Count 3 in another charge sheet on which the other counts remain the same. This Counts 3 is the following:
"That the said accused contravened Section 7 (c) (a) of the Stock Theft Amendment Act No.5 of 2000. In that upon or about the 11th October 2003 and at or near Melikane Ha Mankoe in the district of Qacha 's Nek possessed 3 sheep and failed to produce bebeisi on demand by a policeman. "
The effect of the second count 3 is that the accused if found guilty could be sentenced to a minimum sentence of three years or a fine of M7000.00. The first count 3 would attract a minimum sentence of 25 years imprisonment or a fine of M25 000.00. This would make a great difference. In the judgment it is clear that the accused was charged under the first count 3 whose convection would attract 25 years imprisonment or a fine of M25 000.00.
The record of he Magistrate Court discloses that on the 21st June 2004 the accused was before Court. The charge was read, accused was read his rights. He pleaded not guilty to all three counts.
After the accused had pleaded the Magistrate recorded the following:
"Court: Accused knew long time ago that the matter will be proceeding today. He was informed of this date on 6/05/04 that the matter will proceed today. The matter proceeds in the absence of his counsel. He alleges to have a counsel but he is not before court."
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It seems to me the Magistrate ought to have found out who the accused was the accused's counsel because the accused was charged with an offence whose minimum sentence (if accused was convicted) was 25 years imprisonment. The record does confirm that the trial date was chosen on the 6th May 2004. However, the case had been postponed at the instance of the prosecution several times when the trial date of the 29th March 2004 had been chosen on the 3rd March 2004. Among reasons for postponements had been absence of witnesses. On the 4th May 2004 the matter had been postponed because the prosecutor seized with the matter was not available together with witnesses. It does not seen the accused was treated fairly.
In K. Mackula & Another v The Magistrate CRI/APN/720/2003 (unreported) this court noted what Ramodibedi J (as he then was) said about the rights of the unrepresented accused. In S. Motsoene v Rex 1999 -2001 LLR 331 at page 335. Ramodibedi J said the interests of fair trial as contemplated by Section 12 (1) 92) (d) of the constitution are involved. This court in K. Mackula v The Magistrate then added.
"It is this duty to guide the accused and help them present their defence that the Magistrate neglected."
The accused inter alia has to understand that he "is under no obligation whatsoever to assist the state in establishing the case against her the precise admission she is prepared to make should be recorded." SvD 1967 (2) SA 537at 538.
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When the Magistrate has to proceed in a case in which the accused is unrepresented, he is obliged to help the accused put his case. In cross-examination the Magistrate is obliged to put to witnesses questions that are in line with the accused's defence which the accused ought to put to witnesses - but might not through ignorance put to witnesses.
In other words the magistrate has to see to it that the scales of justice are kept evenly balanced between the prosecution and the accused so that prejudice (due to absence of counsel) is as much as possible avoided. See S v Chigadzi 1074 (1) SA 167.
I noted that the magistrate accepted hearsay evidence that a woman told the complainant that accused and two other persons passed them driving the animals the complainant was looking for and that accused was carrying a rifle. If the accused had counsel - counsel would have objected to this evidence. It was a serious irregularity that the magistrate admitted this hearsay evidence and included it in his judgment. It also forms the basis of the accused's conviction.
Pw2 the policeman told the court that he and other policemen went to the accused's home at Malikane Ha-Mankoe accompanied by members of the Lesotho Defence Force. He does not mention the time of the day got there. However, the constitution and the Section 46 (2) of the Criminal Procedure and Evidence Act protects individuals from arbitrary searches especially at night. The accused put it to all the police witnesses that the search was conducted at midnight. This issue was not taken seriously by the magistrate. Evidence on it has not been evaluated by the magistrate in his
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judgment. Pw2 and Pw3 do not mention the time in their evidence in chief. Pw4 vaguely says the police and members of the Lesotho Defence Force got to the accused home in the morning hours. Morning hours could mean anything from Midnight to dawn or from dawn to midday. If it was between midnight and dawn then it should been authorized by the Magistrate.
Evidence of an illegal search is inadmissible. See Rex v Maleleke 1925 TPD491. Stratford JA in Rex v Clarke 1931 AD 455 at 458 said. "The object of a search warrant is to get the right to do acts you would have no right to do." It was the duty of the magistrate to protect the rights of an unrepresented accused, to help the accused pursue that defence and at the end evaluate it with the rest of the evidence. In this case he ignored it completely. We have police evidence of the search whose admissibility has been put into question.
The evidence Pw2, Pw3 and Pw4 is to the effect that they went to Melikane Ha Mankoe following a report of stock theft and illegal firearms which let them to the accused. The two witnesses say they introduced themselves caution accused who took them to where he had hidden a 9mm pistol and a .303 rifle and the ammunition of these firearms for which he had no licience. They also found three sheep which the accused said he got from Matatiele and failed to produce evidence for those. The impression that this evidence gives is that the accused willingly incriminated himself and conveniently established his guilt.
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In the case Rex V M Ntsoane & another Review case No 11 of 2004 and Review order No2 of 2004, I have expressed dissatisfaction with the way a magistrate from Qacha's Nek had conducted proceedings. In that case the unrepresented accused had behaved in the same way as this one is said to have behaved. They had just produced firearms and incriminated themselves like this accused. After discussing Section 229 on pointing out of exhibits this court said;
"This portion of Pw5's evidence makes the pointing out part and parcel of the inadmissible confession within the meaning of Section 228 of the Criminal Procedure and Evidence Act of 1981. As De Villiers A CJ said in R V Becker 1929 AD 167 at 171, a confession is "an unequivocal admission of admission by the accused of his guilt, the equivalent of a plea of guilt in a court of law."
In this case the accused simply produced the firearms and said he had no licience. Accused claims he was assaulted. Accused is said to have said he brought the animals from Matatiele which is where they were stolen. If accused had confessed in this manner - why was he not taken before a magistrate to make an admissible confession. The accused denied producing the weapons as alleged. The policemen Pw2, Pw3 and Pw4 should have brought admissible evidence against the accused on this point.
As the accused was unrepresented the magistrate should have helped the accused who was unrerepresente in order to find out precisely in what circumstances the firearm were produced. The accused denied ever saying he brought the animals form Matatiele. The magistrate should have helped the accused through questions as to how the animals were said to come from Matatiele. When an accused is cautioned, he is warned he is not
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obliged to make a statement - but if he does, it will be reduced to writing and might be used in evidence against him. This caution was never spelt out nor was it found out if it was reduced to writing.
It would be very dangerous in the administration of justice if the practice were to develop whereby the police were to support each other by saying the accused made incriminating statements like the ones accused is alleged to have said. Accused claims he was searched without special authorization by the magistrate at midnight contrary to Section 46 (2) of the Criminal Procedure and Evidence Act 1981. This was not followed up by the magistrate nor does the magistrate comment about it. This is improper where the accused is unrepresented.
I find it strange that the chief was not called to come and confirm that he did not know about the sheep as Pw2 claims he said. This hearsay evidence adduced from Pw2 a policeman about what the chief said was crucial to the conviction of the accused and was in fact relied up by the court when the court reached its verdict. We are not told why the chief was not called as a witness.
The record of proceedings and the judgment do not tally about what Nkoebe Mankoe Dw2 said about the sheep. In page 15 of the record the magistrate has recorded the following as part of the evidence of Dw2 in respect of the sheep:
"I said I do not know about the sheep which were impounded."
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In the judgment of page 6 of the judgment the magistrate summarized the evidence of Dw2 (Nkoebe Mankoe) on the issue of sheep as follows:
"He said (meaning Dw2) the sheep were impounded. This concluded the defence case. However, the evidence of accused and Dw2 cannot be relied upon."
On the face of the record it would seem it is the magistrate's record of the evidence that cannot be relied upon, if what the magistrate had recorded as having been said by Dw2. Cross-examination would not have sought to discredit Dw2 because his evidence would have been deemed to support the crown case. Indeed Cross- examination shows that the witness had said the sheep had been impounded. It was in July 2003. The sheep got to the accused because Dw2 Nkoebe Mankoe had no pound. It then emergences that Dw2 was in fact the chief Malikane Ha-Mankoe.
If the magistrate could not even record the evidence accurately. How could the proceedings be in accordance with substantial justice? There can be minor mistakes in the recording of evidence, but this mistake strikes me as a major mistake. It is significant that Nkuebe Mankoe who appears to be the Chief of Malikane supports the accused that the police came at midnight. The magistrate does not in his judgment deal with this evidence. The magistrate was obliged to say whether he believes this evidence.
It is not right and proper for the magistrate to flippantly dismiss the evidence given by the defense by saying it "cannot be relied upon" without analyzing it and giving reasons. That is not what fair trial is about. If it cannot be relied upon, the magistrate should give reasons. It is on the basis of those reasons that it can be determined whether " the reasons are either
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on their face unsatisfactory or where the record shows them to be such..." See Rex v Dhlumayo 1948 (2) SA 675 at page 706. It is through the furnishing of reasons that justice can be seen to be done openly and transparently.
The need to take particular care in the handling of this matter arises because of the unusually heavy sentences. Under the Stock Theft Act of 2000 (as amended by the Stock Theft Act of 2003). There was some inelegance in the way the sections of the Stock Theft Act of 2000 (as amended) were quoted. However this does not alter what exactly the accused is charged of. It was a bit puzzled whey the accused was sentenced to 7 years imprisonment or M14 000.00. Both of the charges under the old indictment attracted a minimum sentence of 25 years imprisonment or payment of a fine of M25 000.00. I can only assume the magistrate felt such a sentence was unconscionable when only three sheep were involved. These sentences have been the subject of review in the High Court in Constitutional Case NO 3 of 2004 in the case of Sankele Fatane & 2 others V The Crown. Constitutional case No 3 of 2004. Sentences in Section 13 of the Stock Theft Act 2000 (amended) were found to be unconstitutional.
The full bench of the High Court in Sankele Fatane & 2 others V The Crown Constitutional Case No3 of 2004 declared Section 3 (1) of the Stock Theft Act 2000 (as amended) unconstitutional for being in conflict with Section 16 (1) and Section 12 (2 (a) of the constitution. The full bench of the High Court also found the minimum sentences under Section 13 and 14 of the Stock Theft Act of 2000 as amended violate section 8 (!) of the Constitution and severed them from the Stock Theft Act 2000 (as
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amended). Consequently the magistrate court can now impose an appropriate sentence without the fetters of a mimum sentence.
Lesotho has inherited the legal and judicial tradition of Great Britain. In Britain up to 1830 for the housebreaking, pick pocketing and theft of livestock attracted the death penalty - if the accused was convicted.. Yet white-collar workers bank clerks and the gentry who stole millions of pounds in both cash and kind were not called thieves, their offence was called embezzlement and the average sentence was two years imprisonment. See Gordon Criminal Law of Scotland 3rd Edition Volume 16.3 and 17.03 at page 105. There was in fact no distinction between theft and embezzlement - the only distinction was the class of the offender.
Section 18 (3) of the Constitution Provides that there should be no discrimination on grounds of social origin, property... or status."
The rich and relatively wealthy can afford to pay some of those fines - the poor cannot consequently their right to liberty does not receive equal protection before the law under the minimum sentences imposed under the Stock Theft Act 2000 (as amended).
After treating the poor unfairly the English over the years a system of treating the rich and the poor offenders alike. Their method should be relevant to Lesotho as well. Magistrate's Court Sentencing Guidelines of 1 January 2004 based on the Criminal Justice Act 1991 show how the English have balanced the circumstances of the poor offenders with those of the rich offenders - so that the chances of the rich and the poor going to prison can be as equal as possible.
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At page 85 of the Magistrate's Court Sentencing Guidelines where fines may be imposed:
"The aim should be for the fine to have equal impact on rich or poor - and before fixing the amount of the fine, the court must enquire into the offenders financial circumstances, preferable using a standard incant form."
It was not suprising therefore that Lehohla CJ in Selenkane Fatane & 2 others v The Crown Constitutional Case No 2 of 2004 (unreported) at page 38 said:
"I am of the humble opinion that the right to a fair trial provided in Section 12 of the Constitution is not an end in itself.
It is a mean to an end. The end is the protection of the right to personal liberty."
Dealing with sentences prescribed under Section 13 of the Stock Theft Act 2000 (as amended) Lehohla CJ at page 38 continued:
"Not even a person convicted of murder would be exposed to penalties prescribed under section 13. Those sentences are so grossly
disproportionate that they are likely to outrage the sensibilities of right thinking members of the community. Even a law abiding citizen would find the law unjust, were a first offender who pleads guilty, and all stolen stock recovered by the owner to be sentenced to 25 years imprisonment, or to pay a fine of M25 000.00."
The court therefore, found sentences under section 13 and 14 so excessive that they violated Section 8 (1) of the consp-2Xtitutio because they subjected the convicted offenders to " inhuman or degrading punishment or treatment." In this case the accused had only found in possession of only
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three sheep. The view of the magistrate is that "All thieves should spend their lives in incarceration." A view no doubt shared by the legislature, but which is an unconstitutional over-reaction.
In reviewing this case I have come to the following conclusion:
That the magistrate could not distinguish between admissible evidence and inadmissible evidence. Consequently the magistrate based his conviction of the accused on hearsay. Secondly evidence that appears to be of an illegal search and an inadmissible confession was admitted in respect of all counts.
The magistrate failed to give a judgment that gives reasons for rejecting the accused's evidence and accepting the evidence of the Crown.
It is impossible to separate the good from the bad in evaluating whether the proceedings are in accordance with real and substantial
justice.
The magistrate completely failed to give the unrepresented accused the assistance that the accused was entitled to in order to have a fair trial.
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The magistrate recorded the evidence of Dw2 Nkoebe Mankoe given on behalf of the accused wrongly and in a manner prejudicial to the accused.
Consequently I make the following order:
The conviction and sentence of the accused are quashed. The accused is therefore, found not guilty and is discharged.
W.C. M. MAQUTU
JUDGE OF THE HIGH COURT
Copy: Chief Magistrates
The Magistrate - Qacha's nek
Director of Public Prosecutions
O/C Police - Qacha's nek
O/C Prisons - Qacha's nek
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