R v Mosothoane and Another (CRI/APN 242 of 86) [1986] LSCA 140 (27 October 1986)

CRI/APN/242/86 IN THE HIGH COURT OF LESOTHO In the Application of :- PHATELA MOSOTHOANE LEKENA MATHIBELA 1st Applicant 2nd Applicant vs. R EX Respondent J U D G M E NT Delivered by the Honourable Acting Chief Justice M r. Justice J. L. Kheola on the 27th day of October, 1986. This is an application for the discharge of the applicants from their imprisonment in terms of section 141 read with section 279 of the Criminal Procedure and Evidence Act 1981. On the 25th September, 1986 I dismissed a similar application on the ground that it was made prematurely because section 141 (2) provides that if the person committed for trial before the High Court is not brought to trial at the first session of that court held after the expiry of 6 months from the date of his commitment, and has not been previously removed for trial elsewhere, he shall be discharged from his imprisonment for the offence in respect of which he has been committed. I then erroneously held that the first session of the /......... -2- High Court held six months after the applicants had been "committed" for trial was due to come to an end on the 30th September, 1986. The correct position is that it was the third term and not the second session that was due to expire on the 30th September, 1986; the second session will expire on the i5th December, 1986. Even if the applicants were properly committed for trial in the normal way this application would still fail on the ground that it was prematurely brought before this Court. They would be entitled to bring this application only after the 15th day of December, 1986, In CRI/APN/206/86 I worked on the assumption that the appli- cants had been committed for trial and declined to make a specific finding whether a summary trial before this Court in terms of Section 144 of the Criminal Procedure and Evidence Act 1981 may be regarded as committal for trial. I now have to make a specific finding on the subject so as to stop any further speculation on the subject. The first point that has to be properly determined is what is "committal for trial". The answer is to be found in section 78 of the Criminal Procedure and Evidence Act 1981 (C. P. E.) reads as follows: "(1) Whenever there appears to a magistrate sufficient reason for putting on trial for any offence any accused person brought before him, the magistrate shall grant a warrant to commit the accused to gaol, to be detained there until he is brought to trial for the offence or until he is admitted to bail or liberated in due course of law, and the warrant shall express clearly the offence with which the accused is charged". (My underlining). The words I have underlined clearly show that when a magistrate commits an accused person for trial, he must sign a warrant committing the accused to prison. The provisions of this section are peremptory /....... -3- and leave no discretion to a m a g i s t r a t e. Because the procedure for committal for trial requires that the accused person be committed to prison, t he law also protects the liberty of t he individual by providing that he m u st be brought to trial as soon as p o s s i b l e. This is where section 141 of the C. P.& E. comes into t he picture and makes sure that an accused person w ho is committed for trial must be brought before the High Court for . trial within a y e ar after committal for t r i a l. Let us now look at t he procedure under section 144 of the C. P. & E. It provides as f o l l o w s: "Whenever - (a) in the opinion of the Director of Public Prosecutions any danger of interference with or intimidation of witnesses e x i s t s; OR (b) the Director of Public Prosecutions considers it to be in t he interest of the safety of the State or in the public interest, he may direct that any person accused of having committed any offence be tried summarily in the High Court without a prepa- ratory examination having been instituted against him." It seems to me that under section 144 the law does not automatically commit to prison the person who has to be summarily tried. All what t he Director of Public Prosecutions does is to service him with a notice that he is to be summarily tried before the High Court and also give him a charge sheet showing t he offences with which he is charged. If t he accused person is already in gaol when the Director of Public Prosecutions decides to have him tried / -4- summarily before the High C o u r t, he cannot be heard to say that he was committed to gaol to await his trial like a person who was committed for trial by a magistrate after t he completion of a preparatory examination. The applicants in the present case are in t he same position as many other accused persons who a re awaiting trial and are in gaol because their applications for bail w e re refused by the courts of law. The procedure under section 144 is different from t he procedure under section 141. The procedure under t he latter deprives the accused person of the benefits flowing from t he preparatory examination. See Swift's Law of Criminal Procedure, Second Edition, p. 2 3 7. M r. Ramodibedi, for t he applicants submitted that t he L e g i s- lature would not have intended that people brought to t he High Court for summary trial and the people committed for trial by a magistrate should be treated differently. I take the view that as the intention of the Legislature is expressed in clear and certain terms the procedure under the two sections w e re intended to be different. I come to the conclusion that t he procedure under section 144 of t he C. P.& E. is not the same thing as committal for trial under section 7 8. The applicants are not entitled to the benefits flowing section 141. The application is dismissed J. L. KHEOLA ACTING CHIEF JUSTICE. For Applicants - M r. Ramodibedi October. 1986, For Crown - M r s. Bosiu.