CRI/A/35/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

'MALERATO
MOTHABENG APPELLANT

v

REX
RESPONDENT

Coram:
COTRAN C.J. MOFOKENG J.

REASONS
FOR JUDGMENT FILED ON

1st day
of July 1982

Mofokeng
J.

On the
22nd June 1982 the Court held that it has no jurisdiction to hear
this appeal which was presumably made under s.73(l) of
the
Subordinate Courts Proclamation No. 58 of 1938. We said reasons will
be filed later and these now follow.

The
appellant was charged in a Subrodinate Court with theft of Government
money (M1875-OO); she pleaded guilty and was duly convicted
and
sentenced to two years imprisonment. The whole of the sentence,
however, was suspended for two years on condition "that
she made
good the amount involved in that period". The learned Resident
Magistrate added: "Accused's attention is drawn
to Criminal
Procedure and Evidence Proclamation s. 315(b)"-in fact he meant
s. 322(1) of the new Criminal Procedure and Evidence
Act 1981 for the
former has been repealed. She was quite happy with the suspended
sentence and did not wish to appeal but under
s.67 of the Subordinate
Courts Proclamation 58 of 1938 the proceedings were sent to the High
Court for automatic review. The section
reads :

"67. All sentences in criminal cases in which the punishment
awarded is imprisonment .... in the case of a Resident Magistrate's

court imprisonment for any period exceeding eighteen months or a fine
exceeding five hundred rands .... shall be subject in the
ordinary
course to review by the High Court: but without prejudice to the
right of appeal against such sentence whether before
or after
confirmation of the sentence by the High Court. (Our underlining)

2

The file
was put before Rooney J who under the provisions of 8.69 (2) of the
Proclamation had vast powers,

which can
be exercised in a variety of ways, including a summary increase in
sentence without calling on anyone to argue (though
this is not very
often resorted to), or by calling upon the party that may be
adversely affected to show cause why the sentence
should not be
increased, or by a fully fledged review hearing in open Court under
s.69(3). The learned Judge (in fact) invoked
the last subsection and
made the following order:

"The order suspending the sentence of imprisonment is set aside.
Accused is committed to prison. This order is made without
prejudice
to the accused's right of appeal".

There is
no doubt that the High Court, on review, acted in terms of
s.69(2)(b)(i) and that the order was within its powers. It
is also
clear that the learned Judge did not wish to deprive the appellant
from challenging the sentence he imposed which, by reason
of the
removal of the suspension order, has become a substantive sentence of
imprisonment and hence more severe than the magistrate
had ever
intended it to be. In fact the appellant noted an appeal and went
back to the magistrate and sought and was granted bail
pending
appeal.

This
appeal is against "sentence in CR 939/81" i.e. against the
order of the High Court on review. It should be noted
that the
suspension of the sentence on the condition the magistrate imposed
was, in view of s. 322(1) of Criminal Procedure and
Evidence Act 1981
perhaps unnecessary, but it was not illegal because it had the effect
of forcing the

appellant
to pay up the amount of money she stole by leaving the sentence of
imprisonment hanging over her head in terrorem in case
she defaulted.
This would not have been the position under s.322(1).

The
question for our determination was whether or not an appeal lies to
the High Court.

The Court
was referred to the case of State v. Maunge (1) and (2) 1971-1973
Botswana Law Reports (p 73 of 1971 and p.6 of 1972)
in which a
similar problem arose. In that case Aguda CJ held that an appeal
still lay to the High Court from a revisional order-however
arrived
at (i.e. even if s.69(3) was invoked)-because both the conviction and
sentence must be regarded as the judgment of the
Subordinate

3

Court for
to hold otherwise (p 12) "would be to prevent an accused from
exercising his right to have his case properly heard
in a competent
court created for that purpose". Prior to the Lesotho Court of
Appeal Act 1978, this High Court always entertained
an appeal when a
Judge thereof enhanced the sentence when seised of the case on review
(on which appeal hearing of course the reviewing
Judge would not sit)
but the matter was unsatisfactory and sometimes perhaps embarassing.
As Maisels P said in the State v. Brill
1976-1978 Botswana Law
Reports at p.36, a case on the same point, endorsing Aguda C.J.'s
opinion:

"It
is of course clear that although the present position of the law is
in my opinion unsatisfactory this Court cannot remedy
what appears to
be a casus omissus on the part of the legislature. In my view it
would be appropriate for the legislature to give
consideration to
granting an accused person an absolute right of appeal to the Court
of Appeal where the High Court acting in its
revisional jurisdiction
increases the sentence imposed by a subordinate court or varies the
sentence so as to make it more severe".

We
understand that in Botswana there was an amendment to their Court of
Appeal Act on the lines suggested by Maisels P but we do
not have
sight of the text. Section 8(2) of the Lesotho Court of Appeal Act is
a new subsection which did not exist under the Court
of Appeal
Proclamation 1954. It provides :

"For the purpose of this section an order made by the High Court
in its revisional jurisdiction or a decision of the High
Court on a
case stated shall be deemed to be a decision of the High Court in its
appellate jurisdiction".

It
follows from this that where a High Court Judge on review simply
certifies that the proceedings were in accordance with real
and
substantial justice in terms of s.69(l) of the Subordinate Courts
Proclamation an appeal lies to the High Court itself in terms
of the
last paragraph of s,67 above quoted, but where the review results in
any other order for example enhancing the sentence
(or indeed
reducing the sentence) 8.8(2) of the Court of Appeal Act 1978 comes
into operation.

4

There is
however an apparent anomaly: Is s.8(2) an independent and integral
subsection that gives an accused, in such plight as
in the present
case, an absolute right to appeal against severity of sentence, or is
the subsection to be read in conjunction with
and subject to the
requirements of s.8(l)? The marginal note to the section speaks of
"second appeals" but an occurrence
under s.8(2) is not a
"second appeal" properly so called. The subsections are
mutually destructive in our opinion but
it is for the Court of Appeal
to decide on interpretation. If leave to appeal is needed, we are
prepared to grant it,for there
is a point of law involved, but if no
application is made for leave to appeal or if no appeal is noted to
the Court of Appeal within
the time specified by the Rules then the
appellant must be committed to prison to serve her sentence. Time
will start to run from
the date of this Judgment.

Judge

I agree

T.S.
COTRAN Chief Justice

For
Appellant : Adv. Ramodibedl

For
Respondent: Mr. Khauoe