Sekonyela and Others v Kopo and Another (CRI/APN/225/2004)

Case No: 
CRI/APN/225/2004
Media Neutral Citation: 
[2004] LSHC 72
Judgment Date: 
24 May, 2004

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CRI/APN/225/2004

IN THE HIGH COURT OF LESOTHO


In the matter between:


LESHOTA SEKONYELA 1ST APPLICANT

REENTSENG TUMELO 2Nd APPLICANT

PITSO JAFETA 3RD APPLICANT

AND

HIS WORSHIP MR. KOPO 1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS 2ND RESPONDENT


JUDGMENT


Delivered by the Honourable Mr. Justice WCM Maqutu on the 24th May 2004.


  1. The Thaba-Tseka Central Court convicted and sentenced the applicants (who were charged with "provoking bloodshed") to the following fines and periods of imprisonment:


First applicant:


Count I : A fine of M2500.00 or 2 years imprisonment.


Count II : A fine of M4000.00 or 4 years imprisonment.


Second applicant:.


Count II : A fine of M800.00 or 8 months imprisonment Third applicant:


Count II : A fine of M800.00 or 8 months imprisonment.


  1. There was also another accused Lefu Maqholo who was Accused 2 and has not applied for a review. He was sentenced to M600.00. There was no alternative terms of imprisonment for this accused -except the following words "a bile a fuoa monyetla oa ho tla itefella". Translated these words mean he is given an opportunity to pay the fine.

  2. The matter went before the Magistrate of Thaba-Tseka on review. The Magistrate's first remark was that the accused should have been charged with malicious damage to property. Nevertheless the Magistrate confirmed convictions as he felt proceedings were in accordance with real and substantial justice.

  3. About the sentences imposed by the President of the Thaba-Tseka Central Court - the Magistrate said; "However one cannot say the same about sentence as to sentences awarded to the four different accused are alarming to say the least."

  4. The Magistrate reduced the sentence of M4000.00 or 4 years imprisonment in respect of Count I of first applicant to M2500.00 or two years imprisonment. This sentence was to run concurrently with an identical sentence imposed on Count II by the Thaba-Tseka Central

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Court. The sentences of second and third applicants were left undisturbed. The sentence imposed on Lefu Maqholo who is not a party to these proceedings was enhanced from M600.00 to M2600.00 or 2 years imprisonment.


  1. This matter came before me on the 29th March 2004 as application for bail pending a review. Mr. Mabulu appeared for the applicants while Miss. Motinyane was for the Crown. The matter was postponed to the 30th March 2004 to enable the Crown to respond. On the 30th March 2004, after hearing both counsel I noted that the applicants had been convicted and were no more suspects. I directed that the application for review be heard urgently on the 1st April 2004 and that the application for bail should await the outcome of review proceedings.

  2. The matter was further postponed to the 1st April 2004. On that day the matter had to be postponed to the 7th April 2004 to enable counsel to prepare. On the day of hearing Crown Counsel was not present, when it was essential that he be present. The matter had to be postponed to the 23rd April 2004. I directed that the particular Crown Counsel should show cause why he should not be committed to prison for contempt of Court.

  3. The view I take is that the liberty of the subject and the dignity of the court process should be treated with seriousness and. maintained. When accused are in prison, their right to liberty should not be forgotten. Consequently the counsel should not absent themselves from court without good reason - if they have to be absent the court, the court has to be informed. Discourtesy of this kind to the court can


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amount to contempt of court if the judicial process is frustrated by counsel's unjustified absence.


  1. Crown Counsel explained to me in Chambers how a mix up came about in the prosecution office. He also filed an affidavit. I was satisfied with that explanation and let the matter rest. When on the date of hearing Mr. Mabulu was absent I proceeded with the matter, Mr. Khauoe appeared for applicants pro amico or amicus curiae


The Procedure followed:


  1. The three applicants were convicted and sentenced by the President of the Thaba-Tseka Central Court on the following charges:


Count I: "Provoking bloodshed by ploughing under the mealies of Joseph Malepa in his land at Senqu which is called Malingoaneng on 6-12-02"


Count II: "Provoking bloodshed by ploughing under the mealies of Joseph Malepa in his land at Senqu which was ploughed under when the mealie crop had leaves (lekhaba).

  1. The matter went to the magistrate for review in terms of Section 26 (a) of the Central and Local Courts Proclamation 62 of 1938 as (amended). The Magistrate varied sentences (as already stated) after confirming conviction. I will deal with both convictions and sentences later.

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  1. It has to be noted that in terms of Section 26 (a) of the Central Court and Local Court Proclamation of 1938 the applicants should have appealed to the High Court. This procedural oversight is in my view minor. I will consequently deal with the merits as there are reviewable procedural irregularities which entitled the applicants to a review which includes appeal.

  2. .Mr. Khauoe (who appeared for the applicants pro amico in the absence of Mr. Mabulu) argued that under the common law of Lesotho there is no offence called "provoking bloodshed". Yet the President of the Thaba-Tseka Central Court had said Thaba-Tseka Central Court had said the charges of "provoking bloodshed" brought against the applicants had been brought in terms of the Common Law.

  3. We do not have the English common law offence called "breach of the peace". Smith & Hogan Criminal Law 7th Edition at page 437 say of the offence of breach of the peace under English law:


"There is breach of the peace whenever harm is actually done or likely to be done to a person, or in his presence to his property, or a person is in fear of being so harmed through an assault, an affray, a riot or other disturbance".


  1. In the English criminal case of E. Howell Volume 83 1981 Criminal Appeals 31 at page 35 Watkins L J said of breach of the peace:


"A constable may apprehend without a warrant on view of a breach of the peace, but not after the affray is over unless there be grounds for


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apprehending its continuance or immediate renewal".


  1. When Lesotho gained independence Parliament enacted the Internal Security (General) Act of 1967 which has since been repealed and replaced by the Internal Security (General Act of 1984 - Section 31 of which provides:


"A person who uses obscene, abusive, threatening or insulting language .. .or otherwise conducts himself in a manner that gives, or is likely to give such provocation to any person as to cause him to break the peace or commit an offence against the person, is guilty of an offence and liable to a fine of four hundred Maloti or to imprisonment for one year or both".


  1. It is clear that the Basotho customary courts are supposed to enforce customary civil and criminal law. Customary law is not always consistent with the common law. However like the common law custom can be changed or abridged by statute. Section 9 of the Central and Local Courts Proclamation of 1938 (as amended) provides that the Central and Local Courts shall administer:


"(a) the native law and custom prevailing in the territory, so far as it is not repugnant to justice or morality or inconsistent with any law in force in the territory".


Courts can always reinterpret and reconcile custom and the common law with social developments as custom tends to evolve. (Phame Pty Ltd v Paizes 1973 (3) SA 397 at page 419 ~ 20)


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  1. 18. The issue I shall have to return to is whether the customary law offence of "provoking bloodshed" is consistent with Section 31 of the Internal Security (general) Act of 1984. Before I deal with this issue I have to deal with the issue of the jurisdiction of Central and Local Courts and whether they can impose any sentence that a particular President feels like imposing. By the same token I shall revisit the issue of whether a magistrate should leave a conviction that he considers as being for the wrong crime undisturbed.


  1. 19. I feel obliged to comment on whether a magistrate can enhance the sentence of an accused person (unheard) as he did in respect of Lefu Maqholo who is not a party to this review application. The record does not disclose anywhere that Lefu Maqholo was ever invited to address court before his sentence was increase. As Lefu Maqholo's fine was being quadrupled, he should have been fully heard as this was an order that would be highly prejudicial to him.



Whether customary courts take cognizance of the law of the land?


  1. The answer to this question is obviously that the Local and Central Courts like all courts are bound to apply the law of the land. Mr. Khauoe who appeared for the applicants during argument said the Local and Central Courts do not have any legal literature, law reports and the bound volumes of the Laws of Lesotho Miss. Motinyane for the Crown did not dispute this. These courts according to Mr. Khauoe apply the law of the land as they assume it to be. As for Basotho custom they make it up as they go.


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  1. If this is still the position then, it is a serious indictment of our judicial system. There were no written laws that Basotho customary courts applied in the past because custom was initially unwritten. Yet over the years the Judicial Commissioner's court and the High Court have developed and streamlined Basotho custom through their judgments. To find that these judgment are not provided to the Basotho Customary courts is a serious omission by the Kingdom of Lesotho.


  1. The magistrate in reviewing this case does not seem to have referred to Section 31 of the Internal Security (general) Act of 1984 which has the Lesotho statutory version of the English offence of breach of the peace. Had he done so he would have realized that the maximum sentence for breach of the peace is 12 months imprisonment or M400.00 which is a far lighter sentence than the Thaba-Tseka Central Court and the magistrate later imposed or confirmed.


  1. It seems when cases from customary courts come under review - the assumptions among some magistrates is that since Basotho custom is not written, they do not have to check the law of the land despite a specific requirement that in terms of Section 9 of the Local and Central Courts Proclamation of 1938 (as amended) that custom should not be inconsistent with laws of the country. I am unable to understand why the magistrate confirmed the sentence of M2600.00 or 2 years imprisonment in respect of first applicant and enhanced the sentence of M600.00 to M2,600.00 or 2 years imprisonment on Lefu Maqholo. The purpose of giving magistrates powers of review over Local and Central Courts is to enable magistrates to reconcile Basotho


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custom with the law of the land. Magistrates should take note of this responsibility.


Abuse of enhanced monetary jurisdiction by Central and Local Courts.


  1. In Makesi & 85 Others v Attorney General & 3 Others 1999 - 2001 LLR 740 this court commented on the unplanned increase of the Criminal jurisdiction of the Local and Central courts. Up to 1995 the Local Court could only sentence a person to a maximum of Ml00.00 or 3 months imprisonment. The Central Court could only sentence a person to a maximum of Ml000.00 or 12 months imprisonment. But since 1995 the Local Court can sentence a person to a maximum fine of M3000.00 or three years imprisonment - while the Central Court can sentence a person to a maximum fine of M5000.00 or 5 years imprisonment. I criticized this unplanned increase of the jurisdiction of these courts without the written concurrence of the Chief Justice as provided for by law.


  1. Although it is provided that under Section 10 of the Central and Local Courts Proclamation of 1938 (as amended) the Minister (with the concurrence of the Chief Justice) may increase their jurisdiction. The Local and Central courts (except for stock theft) were largely for petty offences and small claims. To this day they cannot commit an offender to prison although they may sentence an offender to a term of imprisonment. A prisoner sentenced to a term of imprisonment has to be sent to a magistrate in terms of Section 12 of the Local and Central Courts Proclamation of 1938 to commit such a person to prison by

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warrant to serve such a sentence. They were intended largely to impose fines.


  1. What is happening is that with their recently increased jurisdiction, where a Local Court used to sentence an accused person to a fine of Ml00 or 3 months imprisonment, it may now feel entitled to sentence a person for the same offence to a fine of M3000.00 or 3 years imprisonment. A Central Court which used to have a maximum jurisdiction of sentencing a person to a fine of M1000.00 or 12 months imprisonment might likewise sentence a person to a fine of M5000.00 or five years imprisonment for the same offence. There has to be reasons for courts to impose a heavy sentence - not just because they have the power.


  1. It is in the abuse of the enhance powers of punishment that the first applicant has been sentenced to a sentence of payment of a fine of M2600.00 or two years imprisonment for the first count, M4000.00 or 4 years imprisonment for the second count. The magistrate was shocked by the four years sentence imposed on first applicant, but fell into the same error of confirming similar, but lower sentences and enhancing the sentence of Lefu Maqholo to a fine of M2600.00 or 2 years imprisonment. This sentence as already stated is higher than the maximum fine of M400.00 or 12 months imprisonment that Lefu Maqholo could have been sentenced to had he been charged under Section 31 of the Internal Security (general) Act of 1984.


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  1. Contravening the law of decency (Common Law)?


The applicants and Lefu Maqholo were charged with "Phephetso ea Ts'ollo ea Mali ... Ka hoo le bile khahlanong le molao oa botho (common Law)". Translated the charge against those accused is "provoking bloodshed" and thereby contravening the law of humanity or decency (Common Law). See pages 1 and 2 of the record of the Thaba-Tseka Central Court.


  1. I have already shown that in our common law there is no crime known as "provoking bloodshed". We also do not have the common law crime of breach of the peace. Breaches of the peace are part of the statutory offences grouped under Section 31 of the Internal Security (general) Act of 1984. Consequently the accused were charged of conduct now regulated by statute and no more by custom.


  1. Section 31 of the Internal Security (general) Act of 1984 used to be Section 21 of the Internal Security (general) Act of 1967. In the case of M. Sekake v Rex 1967 - 70 LLR 377 dealing with Section 21 at page 381 B Jacobs C J said:


"It deals with words or conduct directed to or against another person to cause a breach of the peace by retaliating or taking the law into his own hands by means of physical retribution. It would, therefore, in the first place seem for conviction under Section 21 that the words or behaviour should be insulting to some one actually present".

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  1. As Watkins L J in the English Court of Appeal case of Howell Volume 73 (1981) Criminal Appeal Reports 31 at page 36 said the following about breach of the peace:

"It is plain that the law is here concerned not with what has happened but what is reasonably expected to happen .... We entertain no doubt that a constable has power arrest where there is imminent danger of breach of the peace, so far -for that matter - has the ordinary person".


  1. We are not told how the charge of provoking bloodshed came to be - when first applicant had already broken the law by destroying the complaints crop and ought to be dealt with by the law for the crime committed. While there is good reason to suppose a person who has caused trouble before may do so again, that is no enough. He must be threatening or be about to embark on conduct that breaches or is likely to breach the peace for the offence under Section 31 of the Internal Security (general) Act 1984 to stand.


  1. Watkin L J in Howell's case above at page 37 observed:


"There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property ... We are emboldened to say there is breach of the peace whenever harm is actually done to a person or in his presence to his property or a person is in fear of being so harmed through an assault... or any other disturbance".


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  1. In other words the word "provocation" implies the complaint must be present at the scene and be consequently challenged to act or instantly retaliate by the accused's conduct. Provocation that the law recognises occurs in the presence of the person causing him to act instantly without thinking of the consequences. It differs from the smouldering resentment that results from past accomplished acts or conduct of the accused which might trigger a violent reaction from the complainant. There could not therefore be a punishable offence of "provoking bloodshed" for an action that occurred in the absence of the complainant - of which the complainant later hears.


  1. The Thaba-Tseka magistrate was quite right when he said the applicants should have been charged with malicious damage to property. In this case complainant had heard from other people that his mealie crop had been damaged by the applicants and Lefu Maqholo that occurred in his absence. In law he could not be expected to instantly react and help himself claiming he was provoked into breaking the peace by the action of the applicants and Lefu Maqholo. The law expected the complainant to report the malicious damage to his property so that the perpetrators could be punished for the criminal conduct.


  1. Conduct that is likely to cause a breach of the peace is a preventative offence. Consequently legal action is taken to prevent more serious breaches of the law. An offence under Section 31 of the Internal Security (general) Act of 1984 therefore is a relatively minor offence for preventing the Commission of other offences that could be very


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serious. Where malicious damage to property has already taken place, the serious offence that had already been committed had to be charged.


CONCLUSION


  1. It seems to me that exercising the powers of review I should set aside on my own motion proceedings against both the applicants and Lefu Maqholo in terms of Section 26 of the Local and Central Court of 1938 (as amended). There have been too many irregularities and mistakes in law. Among other things the applicants and Lefu Maqholo were charged with the wrong offence.


ORDER:


Conviction and sentence of the applicants and Lefu Maqholo who was Accused 2 in CR 60/2003 before the Thaba-Tseka Central Court are set aside. All four accused (namely applicants and Lefu Maqholo) in that case are to be released and their fines refunded.


W.C.M. MAQUTU

JUDGE OF THE HIGH COURT


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