C of A
(CRI)N0.2 OF 2007

IN THE
COURT OF APPEAL OF LESOTHO

IN THE EX
PARTE APPLICATION OF:

THE
DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT

CORAM:

STEYN, P

GROSSKOPF,
JA

SMALBERGER,
JA

HEARD :
26 MARCH, 2007

DELIVERED
: 4 APRIL, 2007

JUDGMENT

SUMMARY

Application
by the Director of Public Prosecutions relating to the proper
interpretation of section 294(1) of the Criminal Procedure
and
Evidence Act 7 of 1981 ("the Act") This Court has
jurisdiction to entertain application having regard to the provisions

of section 123(4) of the Constitution read with section 2(1) (b) of
the High Court Act 5 of 1978. Held that the reference in section

294(1) of the Act to "[section] 79" does not correctly
reflect the legislature's intention probably due to a typographical

error, and should be construed as a reference to section 293.
Declaratory order in those terms granted.

2

SMALBERGER,
JA:

1. This
   is an application by the Director of Public Prosecutions ("the
   DPP") for an order declaring "that in the interpretation

   of section 294 of the Criminal Procedure and Evidence Act 1981 (Act
   No.7 of 1981) ['the Act'] the reference to [section]79 in

   sub-section 294(1) shall be construed as a reference to section
   293". (In the text of section 294(1) the word "section"

   does not appear before the numeral "79". This is an
   obvious omission. For convenience we shall refer to the text as
   if
   it reads "section 79".)

   
   

2. The
   question of whether, on a proper interpretation of section 294(1) of
   the Act, the reference to section 79 should be read as
   a reference
   to section 293, was first raised by this Court in THULOANE MOHOSOA v
   REX C of A (CRI) 7 of 2004 (unreported). The
   Court stated (in
   paragraph 21) that, having regard to the problems of interpretation
   occasioned by the

   
   

3

reference to section 79 in section 294(1), a definitive
interpretation of sections 164, 293 and 294 of the Act was called for
in the interests of the administration of justice. The Court went on
to request the DPP "to consider taking such steps as the
law
permits to bring the question of the interpretation of these sections
before this Court."

3. The
   DPP now seeks to bring the matter before this Court by way of the
   present application. In his application the DPP acknowledges
   that
   "the statute law of the Kingdom of Lesotho does not expressly
   provide for this Court to deal with questions of law
   in the absence
   of an appeal before it", but nevertheless contends that "this
   Court has the inherent jurisdiction to
   decide such questions of law
   in the interests of the administration of justice."

   
   

4. The
   first issue to be considered is whether this Court has jurisdiction
   to entertain the present application and issue the

   
   

4

declaratory order sought, a matter dealt with fully by Mr Suhr (who
appeared for the DPP) in his helpful heads of argument. (In
passing
it should be mentioned that the application was served on the Law
Society of Lesotho but it has not entered an appearance
or favoured
us with its views.)

5. The
   Court of Appeal is a creature of statute. It does not have any
   inherent jurisdiction. Its powers are circumscribed by statute,
   more
   particularly by the Constitution of Lesotho (sections 123 and 129)
   and the Court of Appeal Act 10 of 1978 (sections 7 to
   19). The
   latter Act does not contain an express provision authorising this
   Court to entertain, and make, a declaratory order
   of the kind
   sought. Nevertheless, as Mr Suhr has pointed out, section 123(4) of
   the Constitution provides that:

   
   

"The Court of Appeal shall be a superior court of record and,
save as otherwise provided by Parliament, shall have all the
powers
of such a court."'

5

In terms
of section 2(1) of the High Court Act 5 of 1978, the High Court is a
superior court of record and, as provided for in section
2(1) (b), it
has

"in its discretion and at the instance of any interested person,
power to inquire into and determine any existing, future
or
contingent right or obligation, notwithstanding that such person
cannot claim any relief consequential upon the determination."

5. It
   follows from the provisions of section 123(4) of the Constitution
   that this Court, through the exercise of the powers conferred
   upon
   it as a superior court of record, is authorised, either expressly,
   or at the very least by necessary implication, to entertain
   the
   DPPs' application and to make the order sought, if such order is
   justified. In bringing the present application the DPP is
   clearly an
   interested person acting in the public interest and, more
   particularly, in the interests of the proper administration
   of
   justice. What is being sought is the proper interpretation of a
   statutory provision which involves the sentencing of an accused

   person

   
   

6

and the powers and obligations of the High Court in relation to the
procedure to be followed in that regard. The application therefore

falls within the ambit of matters that may be enquired into and
determined under the provisions of section 2(l)(b) of the High
Court
Act, and is one which this Court, in the exercise of its discretion,
should entertain. The above approach is in line with
a purposive
interpretation of the Constitution involving the recognition and
application of constitutional values in order that
the administration
of justice under the Constitution may be advanced - see SEKOATI AND
OTHERS v PRESIDENT OF THE COURT-MARTIAL
AND OTHERS LAC (1995-99) 812
at 821.

5. The
   issue which falls to be resolved in the application is whether, on a
   proper interpretation of section 294(1) of the Act. the
   reference to
   "section 79" should be read as "section 293". It
   would be within the power of this Court to
   grant the

   
   

7

application if it is satisfied that it was clearly the intention of
the legislature to refer to section 293, and that the reference
to
section 79 was an error on its (the legislature's) part. This Court
would then be entitled to substitute "section 293"
for
"section 79" and by so doing give effect to the true
intention of the legislature. See THESE CONSTRUCTION (PTY) LTD
v
FIRST NATIONAL BANK AND ANOTHER C of A (CIV) 13 of 2005 (unreported),
paragraph 16.

5. Sections
   293 and 294 are to be found in Part XV of the Act which deals with
   judgments in criminal trials. They provide as follows:

   
   

"293(1)
Where on the trial by a subordinate court a person whose apparent age
exceeds 18 years is convicted of an offence,
the court may, if it is
of opinion that greater punishment ought to be inflicted for the
offence than it has power to inflict,
for reasons to be recorded in
writing on the record of the case, instead of dealing with him in any
other manner, commit him in
custody to the High Court for sentence.

8

2. For
   the purpose of this section, the aggregate of consecutive sentences
   imposed upon any person in case of convicting for several
   offences
   at one trial, shall be deemed to be a single sentence.

   
   

294(1) If
a subordinate court commits a person for sentence under [section] 79,
the court shall forthwith send a copy of the record
of the case to
the High Court.

2. A
   person committed to the High Court for sentence shall be brought
   before the High Court at the next convenient session thereof
   or
   earlier if so directed by the High Court.

   
   

2. When
   a person is brought before the High Court pursuant to sub-section
   (2), the High Court -

   
   

1. shall
   enquire into the circumstances of the case; and

   
   

2. if
   satisfied from the record of that person's guilt shall thereafter
   proceed as if that person had pleaded guilty before the
   High Court
   in respect of the offence for which he has been so committed or

   
   

3. otherwise
   may decline to proceed and make such orders and give such
   directives as it may consider appropriate for the purpose
   of
   dealing with the question of that person's guilt.

   
   

4. If
   the High Court passes any sentence under this section upon any
   person, that person shall be deemed to have been tried and convicted

   for the offence concerned before the High Court.

   
   

9

4. Section
   293 and this section are in addition to and not in derogation from
   any provisions of this or any other law relating to
   criminal appeals
   and reviews."

   
   

[9]
Section 79 falls within Part VII of the Act which contains
comprehensive provisions (in sections 60 to 98) relating to
preparatory
examinations. As pointed out in MOHOASE v REX (supra) at
paragraph 17, section 70 deals with the situation that pertains at
the
end of a preparatory examination when an accused charged with an
offence other than sedition, treason or murder (in terms of section

74 (1) ) is asked to respond to the charge against him. If he pleads
guilty then after certain prescribed formalities have been
complied
with, the presiding magistrate is obliged ("shall") commit
him for sentence before the High Court (section 79
(3)). The purpose
of a preparatory examination is to establish whether a prima facie
case exists for committal of an accused to
trial. Its function is not
to test or evaluate evidence or to ultimately

10

determine
guilt. A committal in terms of section 79 follows on a plea of guilty
to the charge as formulated. Notwithstanding such
committal, section
90(1 )(f) empowers the DPP to remit the accused for trial in the
subordinate court,

[10] By
contrast a section 293 committal takes place after a trial and
conviction. Sections 79 and 293 therefore apply to significantly

different situations dealt with in separate and distinct parts of the
Act.

[11]
Section 164 of the Act deals with the situation where (1) a person
has been committed to the High Court by a subordinate court
for
sentence or (2) his case has been remitted by the DPP to a
subordinate court for sentence. Viewed in context, the committal

envisaged in (1) can only be to a committal in terms of section 79;
the remittal in (2) occurs in terms of section 90(l)(f) (where

reference is made

11

to
section 79). Thereafter follow provisions in sub-sections (2), (3)
and (4) which broadly approximate those of section 294 (3)
in effect.
Section 79 committals are therefore comprehensively provided for in
section 164.

[12]
Section 294(1) refers specifically to section 79 committals.
Interpreted literally it would apply exclusively to such committals.

There would consequently be no statutory regime provided in the Act
for committals in terms of section 293 as committals under
that
section could not be accommodated and dealt with under the provisions
of section 164, properly interpreted. Furthermore, on
a literal
interpretation section 294 would provide an additional regime for
section 79 committals despite the fact that comprehensive
provision
is made for them in section 164 and no additional or alternative
procedures to those prescribed by section 164 are necessary.
There
would thus appear to be no logical reason why, given the adequate
machinery provided for

12

section
79 committals in section 164, another regime for such committals
should be created in a different part of the Act, while
at the same
time no specific regime is created for committals in terms of section
293 of the Act.

[13] It
is therefore highly unlikely that the legislature could have intended
section 79 committals to be dealt with in both sections
164 and 294.
Section 294 would be superfluous and a literal interpretation of
section 294(1) would accordingly offend against the
rule of statutory
interpretation which eschews superfluous provisions in a statute. See
LEROTHOLI v REGISTRAR, MEDICAL. DENTAL
AND PHARMACY COUNCIL OF
LESOTHO AND OTHERS LAC (1990-94) 75 at 86. It is equally unlikely
that the legislature would have omitted
to make provision for an
appropriate regime to deal with section 293 committals. It is
inconceivable that it would leave the High
Court to its own devices
to contruct procedures for dealing with committals

13

for
sentence in terms of section 293. The problems of both superfluity
and omission can be avoided by the simple expedient of reading

"section 293" for "section 79" in section

294(1).

[14] The
above considerations lead one inevitably to conclude that the
legislature could not have intended a reference to section
79 in
section 294(1), but rather a reference to section 293, and that
section 294(1), as it reads, does not correctly reflect the

legislature's intention. It is very likely that this situation was
brought about by a typographical error - the reference to the
wrong
section (section 79) when what the legislature must have had in mind
was section 293.

[15]
Typographical errors and omissions are not uncommon in the Act. The
omission of the word "section" before the numeral
"79"
in section 294(1) is just one such example. References to sections 90
and 238(2)(b) of the Act provide further

14

examples.
This fortifies the conclusion reached. Furthermore, the fact that
section 294 follows immediately after section 293, and
the reference
in section 294(5) to section 293, suggests a relationship between
them, and that the later section (294) was intended
to apply to
committals under the former (293).

[16] The
fact that the reference to section 79 is probably the result of a
typographical error is further fortified by the fact
that the
marginal note to section 294 refers to : "Procedure on committal
for sentence under section 293." While section
12(2) of the
Interpretation Act 19 of 1977 provides that:

"Marginal notes and headings in the body of an Act form no part
of the Act but shall be deemed to have been inserted for convenience

of reference only"'

there
would appear to no reason in principle why regard cannot be had to a
marginal note in a case such as the present

15

for the
limited purpose of determining whether there has been a typographical
error, in the provision under consideration, which
has resulted in a
distortion of the legislature's obvious intention.

[17] In
the result we are satisfied that the legislature intended the
reference in section 294(1) to "section 79" to be
to
section 293.The application accordingly succeeds and the following
order is made:

It is
declared that in the interpretation of section 294 of the Criminal
Procedure and Evidence Act 1981 (Act No.7 of 1981) the
reference to
"[section] 79" in sub­section 294(1) shall be construed
as a reference to section 293.

J.W.
SMALBERGER

JUDGE OF
APPEAL

I agree

J.H.STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree

F.H.
GROSSKOPF

JUDGE OF
APPAL

For
Applicant : Mr R.A. Suhr