Rataiane v Director of Public Prosecutions (CRI/APN/738/2003)

Case No: 
CRI/APN/738/2003
Media Neutral Citation: 
[2004] LSHC 33
Judgment Date: 
23 February, 2004

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CRI/APN/738/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

MAKHOMO RATAIANE Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS Respondent


For the Applicant : Miss Liphoto

For the Respondent : Miss Lesupi


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 23rd day of February 2004


This is an application for condonation of a late noting of appeal against the sentence of the magistrate of Maseru. The charge sheet and the proceedings indicate that the conviction was entered on the own plea of the Accused.


Accused was sentenced to a term of imprisonment for two years without option of the fine. This was followed by Notice of Motion of late noting of appeal filed on the 14 th October 2003 two months and 2 days after conviction and sentence.


Today which is about four months from the date of application this matter is still


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not finalized. In between date of the service of the notice on the Crown, there was intention to oppose filed 20th October 2003. To date there has been filed no answering affidavit despite the latitude allowed by Judges of this Court on three occasions nor is there a notice indicating the grounds upon which this simple application would be opposed. What appears in the record is Respondent's heads of argument Counsel for Applicant did not file heads of argument I did not necessarily follow that Crown Counsel would be denied audience nor that the Order sought must be confirmed automatically. This Court still reserved its discretion in any event


If, as in the present circumstances, there is no answering affidavit nor notice in which points of law are raised, I would accept that mere is no basis upon which in terms of the rules, the Crown can stand up to oppose. I would however in my discretion ask Miss Lesupi to comment on certain point as indulgence.


I realize that there are no reasons in the record for the sentence imposed by the magistrate which is in itself a misdirection. I would not normally, in the circumstances therefore, be in the position to judge as to the harshness or otherwise of the sentence. This is also in the circumstance mat nowhere in the record is it stated as to the minimum or the maximum sentence attracted by contravention of section 3(2) of the INTERNAL SECURITY (Amendment) ACT No. 17 of 1966. Moreover it remains in any of those events a misdirection where a presiding officer will not state a basis or reasons for a sentence imposed.


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The basis for this intended appeal is interesting. It is that a simple charge such as unlawful possession of a firearm (powerful 9 mm pistol) requires legal representation when the substance of the charge is that the firearm is possessed unlawfully i.e. without a licence by the Applicant


The real test for all these legal requirements, despite the ever creeping technicalities is whether an accused understands the charge against him. If he understands the charge and the charge is not complex mere is no need for legal representation as a binding requirement. The attendant investigation will LAO be whether there is prejudice and if no prejudice is demonstrated then there is no serious basis for these myriad of complaints that are only utilized to frustrate real and substantial justice in criminal proceedings.


Moreover in this proceedings this Accused was asked whether he understood the charge, and he said he did. Indeed there is no minute indicating the magistrate may have asked the Accused whether he was in need of legal representation. However on the basis of the comments already made about the nature of the charge this, in my opinion, is not a serious irregularity.


For the present I note that on the basis of the intended grounds for appeal one can surely observe mat there are no prospects of success unless they are amended. When such application was made, which I allowed, I applied my mind to the amended sought as I said I would. It was that the sentence did not comply with section 43 of INTERNAL SECURITY (ARMS AND AMMUNITIONS) ACT NO. 22/1966 as amended. That


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was a material misdirection as submitted later. I consequently agreed.


Incidentally the charge sheet has not stated the penalty section which the offence section has to be read. This is a faulty approach by Public Prosecutor. This Court is however bound to investigate the proper penalty section to find out if the learned magistrate could have complied with that section. Indeed this would be indication as to the extent to which a proper attitude has been applied by the magistrate as to sentence.


I discovered that proper penalty section is section 43(1) for persons convicted under the instant offence. Accordingly a person shall upon conviction be liable to a fine not exceeding R400.00 or to imprisonment not exceeding one year or such find and imprisonment Counsel convinced me that the penalty clause has existed unamended since 1966.


It is therefore clear that the answer to the submission whether a material misdirection by the trial Court's sentence has occurred has to be answered in the affirmative. See also NKELELE v REX 1963 - 66 HTCLR 269 PHALOANE v REX LLR(2) 246. It is that there has been a misdirection to the extent that the magistrate could not competently impose a two years prison term without option of the fine which is in disregard of the said section 43(1).


I would observe that no indication was made as to where the exhibit i.e. 9 mm pistol is. Presumably it has been exhibited. If so it had to be forfeited to the State which is the


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order that I would make.


In the interest of justice I will treat this matter as a review matter. This discretion I adopted in view of the length of time the Accused has been in custody, while he could have availed himself a speedy resolution of this matter and good advise by Counsel. All of these Applicant was unfairly denied. The roundabout of filing a proper appeal and payment of fees would surely spell injustice in the circumstances of this matter.


Having spoken to two Counsel Miss Liphoto and Miss Lesupi I also emphasized to them that the responsibility on the shoulders of professionals as they are is a heavy one. One should staunchly guard the interests of client and to other the interests of justice. So that their attitude should accordingly reflect that I was there referring to the fact that most of the problems besetting this matter could be layed at their doors. Like professionals they happily accepted the blame.


My Order is that the matter of sentence is reviewed and set aside. As a substitute the Applicant is sentenced to One (1) Year imprisonment with option of a fine of Four Hundred Maloti (M400.00). The exhibit is to be forfeited to the State.


T. Monapathi

Judge

23rd February 2004