CRI/S/12/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

v

1.
KENKESI.-SEKHESA

2. TEBOHO
MAQALIKA

3. RABELE
MOSHABESHA

JUDGMENT

Delivered
by the Honourable The Chief Justice Mr. Justice B.P. Cullinan on the
8th day of June, 1987.

The three
accused persons were convicted by the Subordinate Court for the
Maseru district of theft of a motor vehicle windscreen.
The learned
trial magistrate committed them to the High Court for sentence. He
gave no reasons for doing so.

Section
293(1) of the Criminal Procedure and Evidence Act 1981 (hereinafter
referred to as "the Act") reads as follows:

"(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 of the record of the case, instead of
dealing with him in any other manner, commit him in custody
to the
High Court for sentence."

I presume
that the first word "of" in the seventh line above is a
typographical error and should read "on".
A study of the
above provisions indicates that a magistrate may only commit an
accused for sentence if he is "of opinion that
greater
punishment ought to be inflicted for the offence than (he) has power
to inflict". The provisions also indicate that

2

a
magistrate most have some underlying reasons for the formulation of
such opinion and, more importantly, that such reasons must
"be
recorded in writing (on) the record of the case". The learned
trial magistrate in the present case did not even record
the fact
that he had formed the necessary opinion in the matter, much less
record any reasons therefor. As I see it therefore,
the accused is
not properly before me.

Further,
there are defects in the trial itself. The stolen windscreen was
found in the possession of the second prosecution witness,
who on
that evidence alone must be regarded as an accomplice. The learned
trial magistrate made no such finding, however. He then
failed to
consider the provisions of section 239 of the Act, but more
particularly, the cautionary rule as set out in Rex v Ncanana
(1948)
4 SA 399 (AD), and considered in Jobere Motsie & Ors v Regina
(1959) HCTLR 3 at pp. 6/7.

There was
corroboration to be found in the evidence of a police officer who
said that he was taken to the house of the receiver
by the first
accused. He changed that evidence however, saying that it was the
second accused who had taken him there. The receiver
himself likewise
contradicted himself. The learned trial magistrate made no reference
to the latter contradiction. As to the contradiction
in the police
officer's evidence, he referred to it as a change in "a little
piece of his version of events of the day".
I would regard the
particular evidence as vital to the Crown's case, and such
contradiction must have gone to the root of the police
officer's
evidence and rendered it unreliable.

There was
evidence by the complainant that the first and second accused had
admitted the offence to the police in her presence.
Such evidence
could only have been admitted as corroboraticn of evidence of any
such confession. The police however never adduced
any evidence of any
confession, not that it was confirmed and reduced to writing in the
presence of a magistrate, as required by
section 228(2) of the Act.

3

Any
evidence aliunde of any such confession was then entirely
inadmissible.

I am not
satisfied that had the learned trial magistrate directed his
attention to the above matters he would inevitably have convicted
the
accused persons. Under the circumstances it would be unsafe to allow
the convictions to stand. In the exercise of my revisional

jurisdiction, I order that the convictions and sentences be set aside
and that the accused persons be hereby acquitted.

B.P.
CULLINAN

CHIEF
JUSTICE

8th June.
1987.

For
Appellants : Mr. T. Seholoholo

For
Accused Persons : In Person