R v Andreas and Others (Review Case No. 36/04CR. No. 43/02 Rev. Order No.4/2004 )

Media Neutral Citation: 
[2004] LSHC 50
Judgment Date: 
19 March, 2004

Downloads

IN THE HIGH COURT OF LESOTHO


In the matter between:

REX

V

TEBOHO ANDREAS

LEBOHANG ANDREAS

LEBOHANG SUPING


Review Case No. 36/04 In Maseru District

CR. No. 43/02 Review Order No.4/2004


REVIEW ORDER

19th March, 2004


These proceedings have been brought to the High Court for automatic review.


The three (3) accused persons appeared before a magistrate with First Class Powers, on a charge of Housebreaking with intent to steal and theft, it being alleged that on or about 15th October, 2002 and at or near Mahlanyeng, in the district of Maseru, they each, other or all unlawfully and intentionally and with intent to steal, break and enter a house there situate of Keketso Mohasi and did unlawfully steal Panasonic mini CD. Hi-fi player and hot plate (electric double hot plate), the property or in the lawful possession of the said Keketso Mohasi.


2


When it was put to them, the accused persons pleaded guilty to the charge. The public prosecutor accepted the plea of guilty tendered by the accused persons and outlined the facts of the evidence he had in his possession.


The facts (these were admitted as correct) disclosed by the evidence were that, had the accused not pleaded guilty, the complainant would have testified, in a nutshell, that at about 12 midnight on 15th October 2002 she was alone in the bedroom of her house when she heard someone trying to open the door leading from outside into the kitchen room of her house. Believing it was her husband, the complainant left the bedroom and went to open the kitchen door. As soon as she did so, three strange people suddenly entered into the house. The complainant ran back into the bedroom and locked herself in there. She then raised an alarm and called for help.


As a result of the alarm raised by the complainant, a neighbour by the name of Thabiso came to her rescue. In the presence of her neighbour, the complainant inspected her belongings in the kitchen room and found that her two burner gas stove, a wrist watch, a CD. player and cassettes were missing. She immediately proceeded to Roma police station and reported the incident.


Tpr. Khuto would have also testified that he was a member of the Lesotho Mounted Police Service stationed at Roma police station. On 18th October 2002 and following the report made by the complainant at Roma police station, on the night of 15th October 2002, he met A3 and identified

3


himself to him. After he had duly cautioned him, A3 took Tpr. Khuto to Al. Tpr. Khuto would have further told the court that he identified himself to, and cautioned Al. The two accused persons then produced and handed to him the gas stove and the CD. player. They told him that they had been in the company of A2 when they took the property from the complainant's house. According to Tpr. Khuto, on 19th October 2002, A2 surrendered himself to him and confirmed that he, Al and A3 had, indeed, taken the property, the subject matter of this case, from the complainant's house.


In his testimony, Tpr. Khuto would have told the court that he took possession of the gas stove and the CD. player which had since been in the custody of the police. They were handed in as exh. "1" collectively.


In the outline of the facts of the evidence, the public prosecutor told the trial court that the complainant would have further testified that on the same day, 19th October 2002, she again went to Roma police station where she identified the gas stove and the CD. player (exh. "1") as some of her property that had gone missing from the kitchen room of her house on the night of 15th October 2002.


The trial magistrate considered the evidence outlined by the public prosecutor and admitted, as correct, by the accused persons and returned a verdict of guilty, as charged, on all the three accused persons. They were each sentenced to two (2) years imprisonment.


It is to be borne in mind that the specific offence against which the accused persons stood charged was Housebreaking with intent to steal and


4


theft one of whose essential elements is "breaking" (into the house). On the evidence outlined by the prosecutor and accepted, as correct, by the accused persons, in the instant case, the accused persons gained entry into the house after the complainant herself had opened the door thereof. That being so, it cannot in my finding, be held that the accused persons had broken into the house. In the absence of any breaking, which is an essential element of the specific offence against which they stood charged, the accused persons could not be said to have committed the offence. They had, in my view, committed the specific offence of theft.


Assuming the correctness of my view, the verdict of "guilty as charged" returned by the trial magistrate is set aside, on review, and substituted by that of "guilty of theft common."


In sentencing them to serve a term of two (2) years imprisonment, the trial magistrate took into account that the accused persons had no record of previous convictions. They were, therefore, first offenders. Moreover, the accused persons had pleaded guilty to the charge, hopefully as a sign of remorse. In mitigation all the accused persons had asked for lenient punishment. On review, I have also found that the accused persons are guilty of theft common which is a lesser offence than Housebreaking with intent to steal and theft.

It is significant to observe that at page 8 of the record of proceedings the trial magistrate has written "Each accused is sentenced to two (2) years imprisonment." However, in completing the charge sheet he wrote: "Each sentenced to three (3) years imprisonment." As a result of this confusion,


5


the clerk of court, in completing the warrant of committal, wrote that each of the accused persons was to serve a term of three (3) years.


In the circumstances, it is, again, ordered, on review, that the sentence imposed by the trial magistrate is set aside and a sentence of a payment of a fine of Ml 80.00 or 18 months imprisonment in default of payment of the fine is substituted therefore.


B.K. MOLAI

JUDGE


19/03/04


Copy: Chief Magistrate

All Magistrates

All Public Prosecutors

O/C Police Maseru

O/C Central Prison

CID headquarters - Maseru

Director of Public Prosecutions