CRlA/44/87
IN THE HIGH COURT OF LESOTHO
In the Matter of :
MOKO MOTSOIKHA Appellant
v
REX Respondent
JUDGMENT
Delivered by the Hon. Acting Justice M.L. Lehohla on the 17th day of August, 1987.
Appellant was charged with the offence of malicious injury to property in the Mafeteng Subordinate Court. He pleaded guilty and was accordingly convicted and sentenced to six months' imprisonment.
It is to be noted that Appellant was not represented in the court a quo.
However, he has appealed to this court but it is not clear against what he has done so because his notice of appeal though prepared and signed by counsel does not say what the appeal is against.
Mr. Thetsane for the crown in his heads submits that the appeal is directed against the sentence as does submit appellant's counsel in the heads submitted on behalf of the appellant.
The crown submitted that it is trite law that the appellant must set out clearly and specifically the grounds, whether of fact or law or both fact and law, on which the appeal is based. See The South African Law of Criminal Procedure P.640. I agree that the manner in which the appeal has been lodged is bad in law.
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Mr. Z. Mda for the appellant submitted that the passing of sentence is pre-eminently in the trial court's discretion. But he pointed out that such discretion is to be exercised judically.
He referred me to Criminal Procedure & Evidence Act 1981 wherein under Section 295(2) it is laid down that
"The court may, before passing sentence receive such evidence as it thinks fit in order to inform Itself as to the proper
sentence to be passed."
Projecting the spirit of the above provisions Mofokeng J. in Mojela vs R. 1977 L.L.R. 321 at 324, said :
" A consideration of what sentence to impose on a convicted person is a procedure which has to be carefully followed. It never
follows upon conviction as a matter of course. Different considerations now come ink) play and these must be carefully weighed
both as affecting the person of the accused and the society. It is the duty of the trial court to consider all the relevant factors and not to adopt a passive role."
The dictum expressed in S. v. Fazzie 1964(4) S.A. at 684 is of paramount relevance i.e.
" This court will not readily differ from the court a quo in its assessment either of the factors to be had regard of or as to the value to be attached to them. Where, however, the dictates of justice are such as clearly to make it appear to this court that the trial court ought to have regard to certain factors and that it failed to do so, or that it ought to have assessed the value of these factors differently from what it did, then such action by the trial court will be regarded as a misdirection on its part entitling this court to consider the sentence afresh."
In Moeketsi Motsoari vs Rex (unreported) Kheola A.J. as he then was said at 3
"There is no doubt that many magistrates fail to make any investigation into personal circumstances of the accused before
passing sentence".
These words were re-echoed in Gerard Phohlo v. Rex CRI/A/22/86 (unreported)at pages 8 and 9 to 10 where it was stated :
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"In the present appeal, ..... the crown conceded that at least some personal circumstances of the appellant were not taken into account. Surely the logical effect of such concession should redound to appellant's advantage."
I have indicated that the appellant was not represented in the court a quo. I may just refer to Mosoeunyane Mothakathi vs Rex CRI/A/48/86
(unreported) at 8 where the importance of legal representation was emphasised by the Swaziland Court of Appeal in case No. 46/84 Caiphas Dlamini vs Regina (unreported) at 11 where Welsh J.A. quoting from S.vs Baloyi 1978(3) S.A. 290 (T) at 293 said "
" .......Margo, J. referred to a number of cases dealing with the right of an accused to legal representation where he wishes it ....... the mere fact of being denied legal representation can by itself be fatal to the validity of the trial".
Failure to appreciate the predicament of an unrepresented accused person and forging ahead with matters which affect him adversely without . affording him an apportunity to give his version of them may amount to denial of legal representation.
Mr. Thetsane submitted that the learned magistrate misdirected himself by not eliciting as many;questions as possible from the appellant
regarding his personal circumstances as required by the law and submitted that he thereby adopted a passive role. See S. vs
Shirindi 1974(1) S.A. at 482.
He further indicated that nowhere in the record has it been shown whether or not the appellant was a first offender a factor which
should have been gone into by the trial court before passing sentence.
Mr. Mda submitted that no weight was given by the trial court to the fact that appellant is a first offender and thereby that court failed to observe the dictum in Mojela v.R. supra p.324 that
"whenever possible, however, a first offender should not be sent to prison. Ordinarily a suspended sentence will be beneficial to the accused."
The value of the property damaged has not been ascertained. It is therefore not clear how serious the damage is. Nevertheless the complainant has a civil remedy against the appellant with regard to such damage.
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The summary of the case against the appellant was that a quarrel emerged among passengers in a vehicle en route from Mohale's Hoek to Maphutseng. The driver reprimanded the accused and some of the participants in the commotion that broke among the passengers.
At a convenient spot appellant alighted from the vehicle, went to his house bringing along with him a stick with which he struck and broke a window on the vehicle. He was arrested and charged with the instant offence.
The above outline shows that appellant rightly or wrongly had a grievance against the driver of the said vehicle. He was indignant with the manner in which the driver intervened in the quarrel, presumably ascribing the blame to the appellant.
It is important to observe that there is authority for the view that a man who commits an offence secretly deserves greater punishment than the one who commits it openly. Regard should also have been had to the relative youth of the appellant and the accompanying imprudence. The fact that he pleaded guilty shows that given time to reflect on his unlawful act he was quick to acknowledge its reprehensibility and must have been sorry for having caused it
All these considerations taken together along with what is regarded as the true and proper view of the law as outlined in the authorities cited including the numerous orders on review it is clear that a subordinate court errs if it does not bother to find out the personal
circumstances of an accused person. 1 am not, however, unmindful of CRI/A/33-34/87 Noko Makateng & Another vs Rex (unreported)
which has caused me some unease. There is no indication that the type of offence charged is rife in the area of its commission to warrant the view that punishment should increase with the multiplicity of the offence.
The conviction is confirmed. Sentence is set aside and the following substituted therefore: Appellant is sentenced to six months'
imprisonment or M150-00 fine of which half is suspended for two years on condition that appellant be not convicted of a crime involving injury to property committed during the period of the suspension.
M. L. LEHOHLA
ACTING JUDGE.
17th August, 1987.
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CRI/A/44/87
For Appellant : Mr. Z Mda.
For Respondent : Mr. Thetsane.
Though previously apprised of the Crown's heads of argument wherein an issue was made of the fact that appellant did not submit his grounds of appeal Mr. Mda in reply to Crown's address indicated that he had filed the grounds of appeal and he furnished the court with proof of his assertion. It is regrettable that neither the court nor the Crown were furnished with the grounds by the office of the Registrar.
CIV/APN/296/86
IN THE HIGH C 0 U R T OF LESOTHO
In the matter of:
NAPO MAJARA - Applicant
vs
DISCIPLINARY COMMITTEE - 1st Respondent
MINISTER OF INTERIOR - 2nd Respondent
ATTORNEY GENERAL - 3rd Respondent
Delivered by The Hon. Acting Mr. Justice M.L. Lehohla on the 7th day of August, 1987
The matter was argued before me on 6th August 1987.
In his notice of motion applicant seeks orders from this Court in the following form:-
Review of the proceedings of the 22nd August, 1986 before the first Respondent and the setting aside of the decision reached thereat
wherein applicant's powers and duties (as a chief) were suspended.
Granting the applicant such further or alternative relief as may be deemed fit (by this Court)
Directing the Respondents to pay the costs of the application only in the event of them opposing the application.
The application is opposed and the affidavit of 1st respondent's Chairman,Chief Potsane Thabo Letsie has been solely relied upon by respondents in support of their opposition.
In his founding affidavit the applicant Napo Majara avers that he is the Gazetted Chief of Sekamaneng in the District of Berea where he is subordinate to the Principal Chief of Berea Ha Majara. He supported the central point of his averment in this regard by attaching
Annexure "A" to his papers. Annexure "A" is a Lesotho Government Gazette No.49 of 1983 wherein under Notice 113 applicant's name is reflected showing that under the title "Chief" he is in charge of the "Area" Sekamaneng and is "subordinate to" the "Principal Chief of Majara's."
In paragraph 3 applicant avers that during August 1986 he was served with a summons in terms of Section 17(J) of Chieftainship Act No.22 of 1968 hereinafter referred to as the Act. A copy of the translated version of this summons is attached and for convenience I will refer to it as Annexure B1 while the Sesotho version is Annexure B. To these documents is attached Annexure C being a copy of a charge sheet from the Magistrate's Court Berea under Criminal Case No. C.R.183/34 of that court. Annexure "D" is the translated version of the decision by 1st respondent.
In paragraph 5 applicant avers that 1st respondent convicted him and sentenced him in terms of Section 26(1) of the Act to a deprivation
of the exercise of his chiefly powers for five years. A closer look at Section 26(1) shows that this Section is meant to penalise people who pretend or hold themselves as chiefs when in actual fact they are not. It thus appears that after being charged and convicted under Section 17(j) which stipulates that:
" a chief is guilty of a disciplinary offence and liable to the deprivation ....... in Section 19 (amended to read 16 by Section 8(1) of Order 29/72) if he has been found guilty of a criminal offence whether or not the Court has made a recommendation under Section 37(5)"
applicant was warned of consequences that might befall him in terms of Section 26(1) if during the period of the de-privation he purported to act as chief.
In terms of Section 18(1) as amended "when the Disciplinary Committee has made a finding in terms of Section 16(8) or 16(9) ........the Disciplinary Committee may" deal with the matter (under 18(2) as amended by Order 29/72) which provides: "whenever a Disciplinary Committee has deprived a chief of all........... the powers and duties of his office for a specified period, the Minister may from time to time extend that period ........ if during that period the chief concerned has behaved in a manner that is prejudicial to ......the dignity, status and reputation of that office ........"
Applicant further avers that provisions of Section 16 (1) (2) and (3) have not been complied with. Taken Seriatim they read:
whenever a complaint is made to the secretary of the Disciplinary Committee or it otherwise comes to his notice that a Chief may be guilty of an act or omission that constitutes a disciplinary offence under Section 17 of the Act, he shall forthwith investigate the matter and take or cause to be taken statements in' writing from all material witnesses.
During the course of his investigation the Chief against whom an allegation pursuant to the provisions of Section 17 is made, of such allegation and at the same time bring to his notice that he is not obliged to reply thereto but that if he wishes to reply such reply shall be in writing and that it may be used to determine whether disciplinary proceedings shall be instituted against him, and shall be admissible in evidence against him.
The secretary shall, within seven days of completing his investigation, submit all the papers to the Attorney-General, together with a recommendation as to whether disciplinary proceedings should be instituted or not."
Applicant complains that no such investigation as set out above was made and goes further to aver that had such investigation been made it would have been borne out in the decision of 1st respondent given on 22nd August, 1986. It is significant that respondents have made no attempt to gainsay this vehement charge against their case.
In paragraph 6.2 applicant further avers that provisions of Section 16(4) have not been complied with, and lays stress on the fact that the requirement to comply with subsection (4) above is very important in that it is a condition precedent to any contemplated disciplinary proceedings; and charges that had this been done it would have been borne out also in the decision referred to above. Subsection (4) reads
" If the Attorney-General does not decide to institute criminal proceedings against the Chief, he shall return the papers to the secretary of the Disciplinary
Committee."
Subsection (5) sets out procedures which then will follow
to bring the matter to a final hearing once the conditions in the previous subsections of Section 16 have been complied with.
In paragraph 6.3 applicant avers that in as much as Section 17(J) has to be read with 37(5) the Court has not made a recommendation and that the 1st respondent was wrong to have arrogated to itself the right to seize the proceedings and determine the issues to a finality there in. The finding of guilt shall be concommitant with the recommendation and such recommendation shall be conclusive as to further action deemed necessary to be taken by 1st respondent.
The wording of the relevant portion of Section 37(5) is in (b) reading:-
" In addition to imposing a penalty under this Section..... ...... a court convicting ..........may recommend to the person or body having power and authority in that regard, that the person convicted be deprived of his office or of the right to exercise the functions of an office of the Chief ..................."
It would seem therefore that the substition by amendment of the words "whether or not" for the words "and" by operation of Section 8(2) of Order 29/72 in paragraph 17(j) disposes of the need for the Court to make a recommendation hence the submission by 1st respondent in paragraph 6.3 is well founded. It reads ........ "the law as amended, which applicant is presumed to know, disposes of a need by the Court to make a recommendation, and further (it is submitted) in applicant's case the amended law as aforesaid applied." To the extent that applicant's case rests on his contention that a recommendation is necessary it would seem he was labouring under a misapprehension.
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But this is not the end of the matter. In reply to applicant's charge that first respondent proceeded in the matter on the basis of the court having found him guilty of culpable homicide whereas applicant was convicted of assault with intent to do grievous bodily harm 1st respondent contended itself with, according to its chairman's answering affidavit, a bare denial; and proceeds to say that despite an apparent mistake in the charge sheet, the trial was conducted in a fair manner and applicant was afforded a fair hearing. I do not know what apparent mistake is being referred to in the charge sheet. It was never drawn to my attention. However a matter that respondents seem to have overlooked and which applicant legitimately complains of appears clearly in Annexure "B" page two of the Disciplinary Committee's Charge Sheet. It reads:
" You, Chief Napo Majara ........ are charged with contravening Section 17(j) of Chieftainship Act No. 22/68 in that on the 19th July, 1984......... you were found guilty of a criminal offence of having killed one Sealemetse Koloko without intention by the Court of the Magistrate................i. and therefore contravened the provisions of the mentioned law."
Following on the above charge was returned a verdict of guilty as charged; the actual wording is on page 3 of Annexure "D" the Disciplinary Committee's decision and is as follows:-
" Accused is found guilty under the Chieftainship disciplinary laws as charged against him."
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Surely there can be no room for conjecture with regard to what the charge alleged i.e. contravention of Section 17(J) but I am under no misapprehension that the sentence of 5 years without discharging any Chiefly functions flowed from the consideration that applicant had killed a person as against the consideration that he had assaulted him. I came to this conclusion as a result of the Crown's failure to give substantial reasons why the sentence imposed was so severe. Truly there is no gainsaying the fact that culpable homicide is a more serious offence than assault in all its categories.
In contrast to the verdict considered by the Disciplinary Committee is the verdict reached by the subordinate court that the accused was found guilty of "assault with intent to do grievous bodily harm" though charged with culpable-homicide. See Annexure' "C" to applicant's papersi
It is important to note that Section 16(1)(2)(3) lays down the procedure to be followed before the actual hearing by the Disciplinary Committee can be embarked upon. I find nothing in the statute that condones a departure from that procedure set. It may appear superfluous that after a court of law i.e. the subordinate court has reached a decision on the matter the proceedings should once more be referred to the Attorney-General for purposes of complying with 16(4) but as the maxim goes 'superflua non nocent' - superfluties hurt not. Moreover there is merit in the consideration that the best interpreter of the statute is the statute itself. Nothing in the statute as it stands absolves one of the necessity to act in terms of Section 16 once a conviction has been secured in terms of Section 17(J). It would be only where an exception is made authorising a departure from provisions of Section '6 or where interpretation of Section 17(j) when made to accord
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with. Section 16 leads to either illusory judgment or absurd results that such a course should be followed.
As the law stands it seems to me that it is essential in all circumstances to follow provisions of Section 16 as for instance under its subsection 2 is preserved the audi alteram partem rule. Furthermore it appears under subsection (3) and (4) that it is of vital
importance to refer the papers to the Attorney General and await his action for the condition precedent to the Committee exercising its powers seems to reside in the Attorney General, Consequently if the Committee cannot exercise its powers unless the condition residing in the Attorney General is met, then it means the exercise of such power notwithstanding the fact that the condition has not been met lacks the necessary sanction and therefore irregular. Power should follow justice not, precede it. A rule of justice lays down that a condition precedent must be fulfilled before the effect can follow. Co-Litt. 201.
I need hardly emphasise that it is only in doubtful matters that, such an interpretation is to be made that inconvenience and absurdity may be avoided. Otherwise as amply shown under Section 16 the words of the law are very clear therefore there should be no departure from them for / the meaning of the Legislature gathered from those words cannot be so well explained as by its own direct words, since index animi sermo (language conveys the intention of the mind) and maledicta expositlo quae corrumpit textum (an exposition which corrupts the text is bad). Moreover a departure from the law makes one wander and all things become uncertain to everybody. It would be rash to allow one absurdity, because what would follow is an infinity.
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Mr. Mohapi for the respondents in argument raised the issue that the applicant has not supplied the Court with the record of proceedings.
While indeed it would have been beneficial to the Court and at least one of the Counsel to have had the record it serves no useful purpose to raise this matter at this stage when ample time existed when the matter could have properly been held in issue against the applicant. One does not know; perhaps in it might be discovered things favourable to the Crown. If applicant in considering the record decided to leave it out because of the edge it would provide the Crown with against him, so be it, for no one is bound to arm his adversary against himself.
Having considered as many issues raised in this matter as I could I find that proceedings before the Disciplinary Committee were irregular as the role of the Attorney-General was side-stepped in embarking upon them. Hence they are quashed. It is worth being borne in mind as a general rule that the good of a respondent arises from a perfect case; his harm from any defect whatsoever. Only two thirds of applicant's costs are awarded against respondents on account of the latter's partial success indicated earlier in this judgment.
M. L.- LEHOHLA
ACTING JUDGE
7th August, 1987
For the Applicant : Mr. Monaphathi
For the Respondents : Mr. Mohapi