R v Masheane (CRJ/S/5/2003)

Case No: 
Media Neutral Citation: 
[2003] LSHC 140
Judgment Date: 
21 November, 2003




In the matter of:





Delivered by the Honourable Mr. Justice B.K. Molai on 21st Day of November, 2003

The accused person herein appeared before a Magistrate with First Class powers charged with a statutory offence of contravening section 18 (1) and (2) of the Children's Protection Act, 1980, it being alleged that between December 1998 and 30th March 2003 and at or near Mohalalitoe, in the district of Maseru, she abandoned her three (3) minor children.

When it was put and explained to her, the accused pleaded not guilty to the charge. A plea of not guilty was accordingly entered. Four witnesses


were called to testify in support of the crown case. The accused called one (1) witness and she herself gave evidence in her defence.

In as far as it is relevant, the facts disclosed by the evidence were that the accused was an unmarried girl of about twenty six (26) years of age who lived at a place called ha Ngoatonyana in the area of Mazenod, in the district of Maseru. She gave birth to three (3) children, namely Peete, Moshe and "Kangaroo". The accused abandoned the minor children who had to be taken to the orphanage at Mohalalitoe by some other people. After the minor children had been taken to the orphanage, the accused went there, to verify that they were, indeed, at the orphanage.

When she found that the accused was the real parent of the three (3) minor children, the administrator of the orphanage offered the accused a job of working in the tuck shop at the orphanage so that she (accused) could earn a living for herself and the minor children. After working in the tuck shop for some time, the accused stole the tuck shop money and, again, abandoned her minor children at Mohalalitoe orphanage. Eventually the accused was traced and brought back to the orphanage whose administrator handed her over to the police. She was charged as aforesaid.

The trial court considered the evidence, found the accused guilty as charged and rightly so, in my view. As it has been stated, earlier in the judgment, the case was presided over by a Magistrate with First Class powers who had jurisdiction to impose a penalty not exceeding a fine of M20,000 or a term of imprisonment not exceeding ten (10) years, in default of payment of the fine. In terms of the Children's Protection Act 1980, a


person convicted of contravening section 18 (1) thereof, is liable to a fine not exceeding M500 or a term of imprisonment not exceeding 5 months, in default of payment of the fine. The penalty prescribed by Parliament for contravention of section 18 (1) of the Children's Protection Act, 1980 was, therefore, well within the jurisdiction of the trial magistrate.

Following the conviction of the accused person, the trial magistrate did not, however, sentence her. Instead, she committed the accused for sentence by the High Court. Her reasons therefor were:

"........I hold a feeling, that the penalty prescribed in section 18 (1) is inadequate. I therefore, feel that a sentence which is in accords with real and substantial justice can come from the inherent powers which it has."

The feelings of the trial magistrate had nothing to do in this matter. It was a question of law. The accused was convicted of a statutory offence for which Parliament had, in its Wisdom, prescribed a penalty. It was not for the magistrate to criticize the law passed by Parliament and say the prescribed penalty is inadequate. Her duty was to interpret the law and apply it. The trial magistrate had more than enough jurisdiction to impose the penalty prescribed by Parliament. Instead of sentencing the accused she passed the buck and committed the accused for sentence by the High Court. This cannot be allowed.


The matter is remitted to the trial magistrate who should call the accused before her, take into account all the factors, to which the court was invited to consider in mitigation and give her a sentence which is within the limits of the penalty prescribed by Parliament.




Miss Dlangamandla : Crown

Miss B. Masheane : In person