Ramothibe v Director of Public Prosecutions (CRI/A/23/04 CRI/258/03)

Case No: 
CRI/A/23/04
Media Neutral Citation: 
[2004] LSHC 143
Judgment Date: 
16 November, 2004

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CRI/A/23/04 CRI/258/03

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


MOTSAMAI RAMOTHIBE APPELLANT

And

DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT


JUDGMENT


Delivered by the Honourable Ms Acting Justice N. Majara on the 16th November 2004


This is an appeal against conviction and sentence of appellant in CRI/258/03. Appellant was charged with and convicted on two counts of assault with intent to do grievous bodily harm. He was sentenced to imprisonment for a period of two years on each count and the presiding Magistrate ordered that both sentences should run consecutively. Having heard counsel for appellant, I varied the sentence to both of them to run concurrently and stated that my reasons would follow. I now proceed to give my reasons.


On the 16th November 2004, Mr Molapo, counsel for appellant was before the court and there was no appearance for the


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crown. Mr Molapo informed the court that there had been no response to the grounds of appeal which he had filed with the crown and that Notice of Set-down had been served on them.


There being no apology tendered on behalf of the crown and no appearance, the court proceeded to hear the appeal. Both the court record and the manuscript had been filed albeit with page two (2) of the record missing. Mr Molapo informed the court that he had tried in vain to locate the missing page until they ran out of time and had to apply for condonation for the late noting of the appeal.


Mr Molapo applied for variation and suspension of the remaining sentence on the grounds that firstly, the Learned Magistrate had admitted appellant's plea of guilty while it did not amount to an unequivocal admission of guilt. Secondly, the Learned Magistrate did not consider appellant's plea of guilty as a mitigating factor in passing the sentence and that as a direct consequence of that the Learned Magistrate passed a harsh sentence.


From the incomplete record, it would appear that in the court a quo, appellant having pleaded guilty on both counts, the public prosecutor accepted the pleas and outlined the summary of the evidence to show that on the 22nd May 2000, accused was found beating one Seepho Tikiso with a stick on


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the head and all over the body until the stick broke into pieces. On the same day, the accused's father and one Mojakhomo Moholoholo tried to arrest the accused for the said assault. Because of the missing page, it is not very clear which of the two tried to beat accused with a stick and the latter warded off the blow and beat the said Moholoholo with a stick on the head and stabbed him with a knife on the left thigh. However, suffice it to say that an attempt was made to beat up the accused at the time of the arrest to which he responded by assaulting Moholoholo in the above described manner.


In his heads of argument, Mr Molapo submitted that the appellant had pleaded guilty to the charge on both counts but was unrepresented and unsophisticated in legal issues and yet the Court a quo admitted that plea without satisfying itself that indeed the plea amounted to an unequivocal admission of guilt. He contended that the accused had indicated that he was attacked by the complainants and was acting in self-defense and as such, the learned magistrate ought to have entered a plea of not guilty.


It is unfortunate that I had to deal with this appeal on the basis of an incomplete record. However, from the available pages, at least as far as count one is concerned, the record reflects the accused to have pleaded guilty and admitted the


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facts as they were outlined by the public prosecutor. It is therefore difficult for me to make up facts which do not appear on the record and make a decision on them. As a result, as far as count one is concerned, I cannot find any justification or basis to agree with Mr Molapo's submission.


On the issue of the appellant being unsophisticated and therefore the magistrate having had to satisfy himself that the plea of guilty was an unequivocal admission of guilt, to a charge of assault with intent to do grievous bodily harm, I do not see what sophistication had to do with a man who is admitting that he has assaulted another with the intent to do him grievous bodily harm. Even a young child understands what it means to hit or hurt another one. I believe sophistication would be in issue where the court was dealing with technical issues of a legal nature which an unrepresented person would not be expected to appreciate.


If this argument is simply based on the fact that the accused was unrepresented and therefore as such he pleaded without appreciating what was going on, then I am afraid it would lead us to a stage where the procedure would have to be changed so that in all matters as long as an accused is unrepresented, of necessity the issues should be considered to be beyond his comprehension. In my opinion, that would amount to an


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absurdity. Whilst I agree that it is the responsibility of the court to assist an unrepresented accused person and to satisfy itself that the accused fully appreciate the proceedings, this responsibility should not be stretched to the limits. Appellant was a grown man of twenty-nine (29) years who should appreciate what is meant by a charge of assaulting someone unless some proof can be placed before the court pointing to the contrary.


As it was stated in S v Nagel 1998 (1) SACR 218;


"The questioning entails two aspects about which the presiding officer must be convinced, namely, firstly, that the accused admits all the allegations in the charge, and, secondly, that he is guilty of the offence."


From the record, nothing suggests that accused did not admit the allegations in count one, nor that he was not guilty of the said offence. The presiding officer was therefore correct in entering the plea of guilty and returning the verdict of guilty.


As far as count 2, appellant pleaded guilty to the charge but it would appear from the incomplete record that it is in relation to this second count that after the facts were outlined by the prosecutor, he explained that he had been attacked first at the time his father and Moholoholo were trying to arrest him. However, from the record, appellant explained that he warded off the blow and then hit complainant several times with a


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stick. This in my opinion is an admission of guilt on accused's part. Nowhere in his explanation does he show that his life was in danger warranting him to beat another person several times and even use a knife. This is more so especially because his father and Moholoholo were trying to arrest him for the earlier assault. Arrest by a private person is sanctioned by the law per Section 30 of the Criminal Procedure and Evidence Act Of 1981. The section provides as follows;


"Any private person may, without a warrant arrest any other person upon a reasonable suspicion that the other person has committed any of the offences specified in Part II of the First Schedule."


Under that schedule, assault in which a dangerous wound is inflicted is one of the prescribed offences. The medical report which was handed in by the prosecutor and marked exhibit 'A' shows that complainant in the first count had suffered multiple lacerations on the head and a swollen left arm. Because of this reason, the arrest was legal as per the provisions of Section 30 as quoted above. Appellant was therefore resisting a lawful arrest and was as such, not acting in self defence, not to mention that he had successfully warded off the blow of one of the arresters and yet proceeded to hit him several times with a stick, as well as stab him with a knife.


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It is therefore incorrect to suggest that his explanation per se, warranted that a plea of not guilty should have been entered by the magistrate. For these reasons, I find that appellant was rightly convicted on both counts.


The Sentence:


Mr Molapo submitted that the order that the sentences of imprisonment of two (2) years for each count should run consecutively was harsh. He argued that the Presiding Officer nowhere indicates to have elicited thoroughly and objectively mitigating circumstances especially because the appellant was unrepresented.


From the record, there is indeed no indication that the presiding officer questioned the accused thoroughly, insightfully and objectively to find possible mitigating factors. This requirement was stated in S v Namseb 1991 (I) 5ACR 224. The record reflects only those mitigating factors that accused himself pleaded without any assistance from the court, yet he was unrepresented.


At the end, accused was sentenced to two terms of imprisonment which were ordered to run consecutively. Taking the circumstances of the case into account, I do agree with Mr Molapo that the cumulative effect was harsh. This is


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because the two counts were closely related, with the one following and being directly connected to the other. See the case of S v Pute 1990 (1) SACR 339.


In addition, the accused was a first offender and the presiding officer should have taken this factor into account. It is in the light of these reasons that I altered the sentence to two (2) years imprisonment on each count and that both sentences should run concurrently.


N. MAJARA

Acting Judge


For Appellant : Mr Molapo

For Respondent : No Appearance


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