Download CRI/S/7/81 IN THE HIGH COURT OF LESOTHO In the Matter of

CRI/S/7/81
IN THE HIGH COURT OF LESOTHO
In the Matter of :
REX
V
BOSOFO RAMALEFANE
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice F.X. Rooney on the 16th day of September, 1981
Mr. Mda for the Defendant Mr. Lenono for the Crown.
On the 9th August, 1981, when the accused in this case came up for sentence, I made an order
remitting the case back to the trial magistrate Mrs. A.M. Hlajoane with a direction that she pass
upon the accused an appropriate sentence. In the meantime I ordered that the accused be released
into the custody of his father pending sentence. He may be warned or summoned to attend before
the Subordinate Court for sentence on such date as the trial magistrate may appoint. I now give my
reasons for making that order.
The accused appeared before the Subordinate Court on the 5th May charged with an assault with
intent to do grievous bodily harm. He was described in the charge sheet as being "about 17 years of
age". He pleaded guilty to the charge.
On the 16th November, 1980 a dispute arose between two groups of boys who were herding cattle.
Fighting broke out between the accused on the one hand and the complainant and his friends on the
other. The Accused took a knife and stabbed the complainant twice, once on the body and once in
the right eye. The second wound was
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so serious that the complainant's eye had to be surgically removed.
The magistrate committed the accused to this Court for sentence under the Provisions of Sec. 288 A
of the Criminal Procedure and Evidence Proclamation. At the time she gave no reasons why she
adopted this course. On the following day the magistrate wrote a statement as to the facts found to
be proved. In the course of this she said and I quote
"It is an established fact that accused is still very young and if I were to pass sentence on him
it would only be a corporal punishment under section 302 of Criminal Procedure and
Evidence Proclamation 59/1938, but at the time of passing sentence I felt that it had to be
more that my jurisdiction allows.
I only realised today, which is a day following the one of passing sentence on accused that
section 288 A of Criminal Procedure and Evidence Proclamation 59/38 applies particularly
to accused persons above the age of seventeen which does not affect the accused in this case
since he is on the border line of seventeen years. I thus forward the proceedings to you to
give instructions since at this stage I cannot change the sentence or the provisions of section
288 A which I have imposed on accused. Accused is still in Mafeteng Prison."
The magistrate could not have invoked the provisions of section 288 A of the Criminal Procedure
and Evidence Proclamation before she was first satisfied that the accused is a person who is not less
than the apparent age of 17 years. She had no evidence before her upon which she could make such
a finding and she did not apply the provision of section 334 of the Proclamation.
Furthermore the section requires the committing court to be of the opinion that greater punishment
should be inflicted for the offence than it has power to inflict. The trial magistrate is further required
to record her reasons in writing on the record of the case. In the case of R. v. Tseliso Mahooana
(CRI/S/5/79, unreported) I considered the proper application of section 288 A and said as follows :
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"A similar provision (also inserted as section 288A) appears in the Criminal Procedure and
Evidence Proclamation (Cap 15) of Botswana. In the State v. Molaodl 1973 B.L.R. 54 the
Botswana High Court held that the power of a subordinate court to commit persons for
sentence should only be exercised in the clearest cases where the alternative would not serve
the interests of justice.
One of the consequences of a committal under section 288A is that the accused shall be
deemed to have been tried and convicted in the High Court. (Section 288B (4)). Thus his
right of appeal is shifted from the High Court to the Court of Appeal under section 7(3) of
the Court of Appeal Act 1978. The Court of Appeal does not hold regular sessions and it
follows that an accused person may be prejudiced by delays which may occur in the hearing
of any appeal he may wish to file against his conviction or sentence. It is therefore most
important that not only must a magistrate be of the opinion that it is the right course to send
the accused to the High Court for sentence, but he must record his reasons in writing on the
record of the case.
The failure of the magistrate to comply with the statutory direction to record his reasons
renders the validity of the committal doubtful. A committal to the High Court for trial or
sentence to be valid must be lawful and regular (R. v. Gee 1936(2) All E.R. which was
applied in Rex v. Matete (CRI/T/16/79-unreported)-see also Rex v. Tsumane Ntoi and
Others 1971-73 L.L.R. 111. Magistrates are not invested with an unrestricted power to send
persons to this Court for sentence. The reasons for committal must be recorded so that the
High Court may be satisfied that in making the order the magistrate has acted within the
circumstances envisaged by section 288A of the Proclamation".
JUDGE
16th September, 1981
For Crown: Mr. Lenono
For Defence: Mr. Mda