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.

2

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 :

3

"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.

4

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.

5

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

JUDGMENT

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:-

1. 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.

   
   

2. Granting
   the applicant such further or alternative relief as may be deemed
   fit (by this Court)

   
   

3. 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.

2

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:

3

" 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:

1. 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.

   
   

4

2. 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.

   
   

3. 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

5

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.

6

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."

7

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

8

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.

9

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