R v Mpakoba (Rev. Case No. 106/03 CR 1365/03 Rev. Order No. 9/03 )

Media Neutral Citation: 
[2003] LSHC 78
Judgment Date: 
18 July, 2003

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IN THE HIGH COURT OF LESOTHO


In the Matter Between:


REX

vs

PAUL MPAKOBA


Review Case No. 106/03 CR 1365/03

Review Order No. 9/03 In the District of Maseru


ORDER ON REVIEW


18th July, 2003.


The case was placed before me on Automatic Review. The accused having been charged and convicted of two counts of reckless/negligent driving in contravention of section 90 (I) of the Road Traffic Act 9 of 1981 and failing to notify the police and remain on the scene of the accident in contravention of section 88 (1) (e) of the said Act.


The charges had been duly read to the accused and the accused pleaded guilty to both of them. The charge in count one showed that the accused on the 11th day of


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June, 2003 whilst being a driver of a motor vehicle with registration No. A7404 knocked down a pedestrian by the name of Matseliso Thobatha. The accident occurred as the accused was reversing his vehicle, and it was alleged , he was either reckless or negligent as he did not keep a proper look out before reversing.


The outline of facts which were later admitted by the accused, were to the effect that a Police Officer by the name of Tpr Lebelo was the one to whom the accident was reported. The outline further showed that the vehicle concerned was driven by the accused and bore Registration No. A8704. Tpr Lebelo was the one who referred the complainant to Queen II Hospital and continued with the investigations.


As can be noticed, the charge under count one related to vehicle A7404, but the outline of facts related to vehicle A8704. Can we then say we are still talking about the same vehicle? We have not been told that it was a vehicle with a trailer behind, because the two different registration numbers could be for the vehicle and the trailer respectively. But the outline of facts talked about a vehicle with completely different registration number from that given in count one.


The magistrate had correctly followed the procedure as laid down under section 240 (1) (b) of the Criminal Procedure and Evidence Act 9 of 1981, which reads: "If a person charged with any offence before any Court pleads guilty to that offence or to an offence of which he might be found guilty on that charge, and the prosecutor accepts that plea the court may -


  1. …………………………………


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  1. if it is a Subordinate Court, and the prosecutor states the facts disclosed by the evidence in his possession, the Court shall, after recording such facts, ask the person whether he admits them, and if he does, bring a verdict without hearing any evidence. "


It must be clear that even in instances of this nature, there are some five essential elements which must be present before a verdict of guilty could be returned. They are: -


  1. Acceptance of the plea by the public prosecutor.


  1. Statement by the public prosecutor, of the evidence in his possession must disclose an offence.


  1. the Judicial Officer must record the statement recited by the public prosecutor.


  1. The Judicial Officer, after (b) above, must ask the accused if he accepts the facts as recited by the public prosecutor; and


  1. If the accused admits the facts contained in (b) above only then can the Court bring a verdict without hearing any evidence.


See the case of R v Solomon Monyane and Others 1980 (2) LLR 309.


I have already shown the disparity between the registration numbers of the vehicles as shown in the charge in count one on one hand, and that which appeared in the outline of facts on the other. Can we then say that the outline of facts disclosed an offence under such circumstances? No.


It was stated in R v Khalema and Another, 1981 (1) LLR 97, that "the outline of facts by the public prosecutor should disclose the commission of the offence with


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which an accused stands charged or could be found guilty. " The outline of facts is purely to confirm the commission of the offence.


One other important aspect of this case is that the accused had been charged of either negligent or reckless driving under the Road Traffic Act. In giving her verdict in count 1, the magistrate only found the accused guilty as charged. The Court in Appell v R 1981 (1) LLR 49 showed that, "a verdict returned by a Judicial Officer is defective if it does not specify the offence with which the accused is found guilty. "


As was the case in Appell's case above, the verdict recorded by the magistrate in this case is defective in that it did not specify or indicate whether the conduct of the accused amounted to recklessness or negligence.


The force number for Tpr Lebelo in the outline of facts has been given as No. 8740 or 5470 as the first number looks like an 8 or a 5. Assuming that the magistrate confused the force number or the public prosecutor, with the registration number of the vehicle, but the two numbers also are quite different from each other. It is not the duty of this Court, be it on review or appeal, to correct the mistakes in proceedings from the magistrate court. The magistrate must have read her record before it was sent for review and if the difference in numbers was a mistake, she ought to have spotted that.

For the reasons given above, it cannot therefore be said that the outline of facts though admitted by the accused, disclosed the offence under count I. In the same vein, if the conviction in count I fails, the conviction under count II also falls away.


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In the result, convictions in both counts and sentences are set aside.


A. M. HLAJOANE

JUDGE


CC: The Magistrate - Maseru

O/C Police - Maseru

O/C Prisons - Maseru

O/C Central Prisons - Maseru

CID Headquarters - Maseru

Director of Prisons

Director of Public Prosecutions

Chief Magistrate