HIGH COURT OF LESOTHO
by the Hon Mr. Justice J L. Kheola on the 5th day of March, 1986.
appellant was charged before the Subordinate Court of First Class at
Mafeteng with the offence of theft. It was alleged that
he stole two
bottles of brandy, the property or in the lawful possession of Thabo
Mohale. To this charge he pleaded not guilty.
In the end he was found
guilty as charged and sentenced to six (6) months' imprisonment.
appellant is now appealing to this Court on the ground that he was
prejudiced in his defence because the learned magistrate
explain his rights properly after the close of the Crown case. Mr.
Mda, for the appellant, submitted that the learned magistrate
committed a gross irregularity by explaining the rights of the
appellant in terms of section 74 (1) (2) of the Criminal Procedure
and Evidence Act 1981. In his reasons for judgment the magistrate
states that he explained the rights of the accused in terms of
abovementioned section. The section reads as follows
"(1) After the examination of the witnesses in support of the
charge in the presence of the accused the magistrate shall ask
accused what, if anything, he desires to say in answer to the charge
against him and at the same time caution him that he is
to make any statement but that what he says may be used in evidence
at his trial.
(2) The accused may, then or at any later stage of the proceedings,
make a statement or give evidence on oath and the statement
evidence shall be taken down in writing in so far as it is relevant
to the charge and after being read over to him shall be
him if he will subscribe it, and also by the magistrate."
learned magistrate misled the appellant into believing that the trial
he was facing was not a trial and that if he made a statement
would be used as evidence at his trial. The warning he gave to the
appellant is applicable at the end of a preparatory examination
not at a trial. In a trial the rights of the accused are explained to
him in terms of section 217 (3) of the Criminal Procedure
Evidence Act 1981. It may be that the learned magistrate merely
quoted the wrong section and that in court he gave the right
explanation of accused's rights. I cannot be sure because he filed
his reasons for judgment after he had seen the appellant's grounds
appeal and it was very clear that the appellant was accusing him of a
failure to explain his rights correctly
is of the opinion that where the accused elects to remain silent, it
is improper to allow him to call witnesses in his defence.
He has not
supported his submission on this point with any authority. The duty
of the magistrate is to enquire of the accused whether
he has any
witnesses to call (R.v. Sibia, 1947 (2) S.A. 50 (A D.), R. v. Simon,
1948 (2) S.A. 925 (S R ), R. v Read, 1924 T.P.D
718). I am of the
opinion that there is nothing wrong with the procedure whereby
accused elects to remain silent but is allowed
to call witnesses.
to me that the irregularity was of such a serious nature that there
has been a failure of justice and that the appeal must
appeal against sentence was abondoned because the accused has already
served his sentence.
appeal against conviction is allowed and the appeal fee must be
refunded to the appellant.
Appellant - Mr Mda
- Mr. Seholoholo.
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