IN THE HIGH COURT OF LESOTHO
In the matter between:
THABO KHABO Applicant
DIRECTOR OF PUBLIC PROSECUTIONS 1st Respondent
LEARNED MAGISTRATE (Mr. Masiphole) 2nd Respondent
For the Applicant: Mr. Molapo
For the Crown: Miss Ntelane
Delivered by the Honourable Mr. Justice T. Monapathi On the 30th day of December 2003
This is a very rare occasion when a magistrate against whose judgment is sought to be reviewed sets out to settle an opposing affidavit. This ended up, in my view, as having been very helpful. I am not suggesting that the learned magistrate, Respondent in this case must have told the whole truth nor that he must necessarily be believed.
The review of the proceedings, which had been concluded, in which the Applicant was convicted and sentenced on two counts, was sought on the following grounds, all of which I was not able to determine on the papers except the first one. First, irregular and erroneous sentence. Second procedural irregularities and lastly bias of the Second Respondent's on the Applicant. In my opinion no substantial prejudice was proved in respect of any of the complaints.
The Applicant had been charged on two counts under POLICE SERVICE ACT NO.7 OF 1998 more specifically under section 58(e) (obstruction) and under section 26 of INTERNAL SECURITY (GENERAL) ACT NO. 24/1984 (......obscene, threatening or insulting words or behaviours, or swears, shouts ......) for which Applicant was sentenced to Eight and Twelve months respectively without option of a fine. It was to be noted that the sentences provided for both counts in the two ACTS were 2 years or Ml,000.00 and M400.00 or 1 year respectively.
Applicant had complained ( which is not part of the present claim) that having been granted bail he was re-arrested by police. No explanation was given for this conduct. Much as it was in character with the conduct of the proceedings by learned magistrate, as it was repeatedly alleged, none of these events were recorded. The following other events were not recorded or this was inaccurately done with "disastrous effect" to the Applicant's case as the Applicant contended.
On the 7th May, 2003 Mr. Molapo who was Applicant's representative together with the Public Prosecutor Mr. Makebe agreed, as Mr. Molapo contended, over a postponement of the matter to the 16th of
that month. This was after Mr. Molapo, Applicant's Counsel, had succeeded to have the detention of the Applicant set aside as said before. What was not recorded was that it was agreed by both parties that the trial would start around midday in as much as Mr. Molapo already had a matter set before the High Court in Maseru.
What was not recorded, furthermore, was that Applicant had in fact intimated to the learned magistrate that, as per agreement, that Mr. Molapo would be delayed. This agreement, as it is deposed by the Applicant, was disregarded by Mr. Sesoai another Prosecutor who stood in for the original Prosecutor Mr. Makebe. Which means that it was a different Prosecutor who later appeared when the matter reconvened on the 16th' in the absence of Mr. Molapo. A lot more things are stated by the Applicant as forming the part of his complaint about irregularity and bias. These were denied by the learned magistrate who responded that he put in extra effort to assist the Applicant in conducting his defence.
Despite that, as it is found in most cases, no specific recordings were made about particular events as outlined above, I was unable to decide on the papers for the Applicant in the face of the opposing affidavits of Mr. Makebe the original Prosecutor and the affidavit of the learned magistrate. Mr. Molapo ended up conceding that there would therefore be no basis for disturbing the conviction judging from the problems posed by lack of evidence or the resulting inability of the Court to decide the matter on the papers.
I however would warn that, if vital statements in the proceedings were not recorded, as I strongly suspected in this case, that is not only unwholesome but it would conduce to grave injustice. It was just
fortunate that this Court was wisely advised not to probe further into the matter. The worst case scenario would have been quite unpleasant. I repeat that learned magistrates must record all vital statements and events in their proceedings.
I found no reason therefore why the convictions ought to be disturbed. I however varied the sentences. This was on the ground that there was no reason why options of a fine were not on both imposed counts in and the light of a "heavy sentence" in respect of the other and in the light of the allegedly provocative conduct of the other driver against the Applicant which resulted in those swear words and obstruction against the complaints as Applicant conceded could have been the effect of his actions. The learned magistrate did not comment on this in connection with the sentence he ultimately gave. Neither did he comment on the view he took in connection with mitigating factors put forward by the Applicant.
The learned magistrate ordered that reasons for sentence would follow later. They never followed. At any rate they should have been delivered immediately on pronouncing the sentence. This was a misdirection which caused this Court to interfere with the sentence.
On the 15 December 2003 I altered the sentences to read as follows:
Count 1: Twelve months imprisonment or M600.00 fine. Count 2: Eight months imprisonment or M400.00 fine.
Maloti on or before the 31st December 2003 or to serve the remaining eight months term of imprisonment.
30th December 2003