Director of Public Prosecutions V Jobere Kelane (C of A (CRI REV) 01/2025) [2025] LSCA 74 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD IN MASERU In the matter between: C OF A CRI/REV/01/2025 DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT AND JOBERE KELANE RESPONDENT CORAM: MOSITO P SAKOANE CJ DAMASEB AJA HEARD: 15 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Criminal law — Murder — Sentence — Power of Court of Appeal to enhance sentence — Review of Court’s own order — Patent error — Suspension of sentence for murder — Section 314(2) of the Criminal Procedure and Evidence Act 1981 — Duty of counsel to assist the court — Exceptional jurisdiction to correct error. The Director of Public Prosecutions applied to review a previous order of the Court of Appeal enhancing a sentence for murder from thirteen to eighteen years’ imprisonment, three years thereof suspended. Section 314(2) of the Criminal Procedure and Evidence Act 1981 prohibits the suspension of any part of a sentence imposed for murder. It was contended that the suspension constituted a patent and fundamental error warranting correction. The respondent argued inter alia that (i) the application amounted to an impermissible collateral challenge undermining finality; (ii) the Crown had waived its rights by failing to draw the statutory bar to the Court’s attention at the hearing; and (iii) lifting the suspension would result in injustice. Held, granting the application, that: The Court possesses a limited inherent jurisdiction to review and correct its own orders in exceptional circumstances, notably where a patent error or grave injustice has occurred. That jurisdiction is not a disguised rehearing but is exercised to uphold the integrity of the administration of justice. Section 314(2) expressly prohibits the suspension of any part of a sentence for murder. The suspension imposed in the earlier appeal was therefore contrary to statute and constituted a patent error falling squarely within the exceptional category. The principle of finality does not preclude correction of an error of this nature; indeed, it is in the public interest that such an error be cured. The Crown’s failure to draw the relevant statutory provision to the Court’s attention, though regrettable, could not validate an unlawful sentence nor estop the Court from rectifying it. Counsel have a duty to assist the Court by directing it to material legislative provisions; neglect of that duty underscores, rather than negates, the necessity for correction. Order: Application granted. Suspension of three years set aside. Sentence restored to eighteen years’ imprisonment. No order as to costs. JUDGMENT SAKOANE CJ: Introduction [1] This is an application by the Director of Public Prosecutions by which the Crown seeks a review of this Court’s decision to suspend three of the eighteen years' imprisonment for murder it imposed on the respondent in Kelane v. Director of Public Prosecutions C of A (CRI) No.4/2024. [2] The respondent was convicted for murder with extenuating circumstances by the High Court and sentenced to thirteen years’ imprisonment together with M10,000.00 compensation to the deceased’s family. In C of A (CRI) No.4/2024, this Court found the sentence inadequate and, in the exercise of its power under section 9(4) of the Court of Appeal Act No.10 of 1978, it enhanced the sentence to eighteen years’ imprisonment with three years thereof suspended. That meant that the respondent was to serve fifteen years in prison. [3] The section 9(4) power is provided for as follows: “On an appeal against sentence the Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution thereof at it thinks ought to have been passed, and in any other case shall dismiss the appeal.” [4] That this Court has in the past exercised the power is attested to by Lefu v. Rex1 where it said: “[10] It is further worth noting that in terms of s 9(4) of the Court of Appeal Act 1978, this Court has additional power to impose an appropriate sentence if it thinks fit that a different sentence should have been passed. See for example such cases as R v. Lebina and Another LAC (2000-2004) 464; Ramaema v. R LAC (2000-2004)710; R v. Shoaepane LAC (2005-2006) 530; Ranthithi and Another v. R; R v. Ranthithi and Others LAC (2007-2008) 245; R v. Thejane LAC (2007- 2008) 420.” The Application [5] In the notice of motion, the DPP seeks the following reliefs: “1. That the decision of this Honourable Court relating to the sentence meted out to the respondent in C of A (CRI) No.4/2024 be reviewed, corrected and or set aside. 2. Further and or alternative relief as the Court may deem fit under the circumstances.” [6] In the founding affidavit, the Chief Attorney in the DPP’s chambers says: “ -6- In the result, the Court of Appeal having dismissed the appeal against conviction, it accordingly altered sentence imposed by the High Court to the extent that the sentence of 13 years’ imprisonment was set aside and replaced by the following: “The accused is sentenced to 18 years’ imprisonment of which 3 years imprisonment is suspended for 5 years on condition that the accused does not commit any offence occasioning grievous bodily harm to the person of another.” -7- It is this sentence by the Court of Appeal that prompted this current application for a review of its own previous decision. It is my genuine understanding that the court inadvertently 1 LAC (2011-2012)266 committed a fundamental and basic error by including a suspension in the sentence that it passed. I aver that in my humble submission, such suspension is contrary to the specific provision of the law that specifically prohibits suspension of a sentence on a charge of murder among other charges, to wit, Section 314 (2) of Criminal Procedure and Evidence Act of 1981. -8- I aver that it is my humble submission that this is a patent error that constitutes an exceptional circumstance under which this court not only has power but a duty to correct. I aver that if this error goes uncorrected, it may lead to gross injustice as the lower courts will be bound to follow given the binding nature of the decisions of this Court on lower courts.” [7] The respondent opposes the application by saying, in the answering affidavit, that: “ 4. … The Court has not erred in suspending the three years’ logic delates (sic) that if the Court has power to increase the sentence nothing will deny the said Court (sic) to reduce the sentence. Applicant is put to proof-thereof to convince the Court injustice consequential to the suspended sentence. (sic) Add Para 8 5. This paragraph is denied. The section of Criminal Procedure and Evidence Act cannot interfere with the discretion of the courts to suspend sentences when justice demands.” Submissions [8] The Crown advances two propositions. The first is that this Court has jurisdiction or powers to review its previous decisions. The second is that a patent error was made by suspending three of the eighteen years. This was contrary to section 314(2) of the Criminal Procedure and Evidence Act No.7 of 1981 which prohibits suspension of a part of sentence for murder. Reference is made to two authorities in support of these propositions. The first is Hippo2. The second is Mohale3. Respondent [9] The respondent makes four contentions. The first is that the application constitutes a collateral challenge to the decision to suspend part of the sentence. The second is as the guardian of legality, the Crown failed in its duty to draw the Court’s attention to section 314(2) and, thereby, acquiesced in the error and waived its rights. Thirdly, the suspension causes no injustice to the Crown. On the contrary, lifting it visits injustice to the respondent. Fourthly, it is in the public interest that there be finality in the administration of criminal justice and intolerance of abuse of process. Discussion [10] The DPP’s application is grounded in section 314(2) of the Criminal Procedure and Evidence Act, 1981 which reads: “(2) Whenever a person is convicted before the High Court or any subordinate court of any offence other than an offence specified in Schedule III, the court may pass sentence, but order that the operation of the whole or any part thereof be suspended for a period not exceeding 2 Hippo Transport (Pty) Ltd and another v. The Commissioner of Customs and Excise and Another LAC (2017- 2018)184 3 Mohale v. Minister of Law and Constitution Affairs LSCA 8 (3 May 2024) 3 years, which period of suspension, in the absence of any order to the contrary, shall be computed in accordance with sub-sections (3) and (4) respectively, and the order shall be subject to such conditions (whether as to compensation to be made by that person for damage or pecuniary loss, good conduct or otherwise) as the court may specify therein.” [Emphasis added] [11] The Schedule III offences referenced in section 314(2) are murder, robbery and conspiracy, incitement or attempt to commit same. [12] When this Court suspended three of the eighteen years it imposed in C of A (CRI) |No.4/2024, it went against the legislative injunction that “thou shall not suspend a sentence for murder.” By so doing the Court fell into error, is without doubt. The error is patent. According to Hippo and Mohale, a patent error triggers the Court’s jurisdiction to self-correct. [13] In Hippo the Court said: “[23] This Court can only exercise its review power in exceptional circumstances. This Court will view circumstances as exceptional only when gross injustice and or a patent error occurred in the prior judgment. The power of this Court to review its own decisions should therefore not be a disguised rehearing of the prior appeal. It is therefore not a disguised rehearing of the prior appeal, going over it with a fine comb for the re-determination of aspects of that judgment. It is therefore not done for purposes other than to correct a patent error and or grave injustice, realized only after the judgment had been handed down.” [14] In Mohale the Court said: “[43] An application to review and correct a judgment and order of this Court is not had for the asking. A proper basis must be laid for it and this Court has a discretion in the matter, to be exercised judicially.” [15] The above-referenced dicta open the door for the DPP to come to Court and ask it to have the suspension of the three years reviewed and corrected. The dicta also provide complete answers to the respondent’s first and fourth contentions that the application constitutes a collateral attack of the previous proceedings, is an abuse of court process and defeats the principle of finality in the administration of criminal justice. On the contrary, good administration of justice requires that the patent error should be corrected. [16] As regard the respondent’s second and third contentions that the Crown failed in its duty to bring section 314(2) to the Court’s attention and, thereby, acquiesced in the error and that correcting the error is a visitation of injustice to the respondent, the following dicta of this Court in Lephosa4 are apposite: “[17] The issue of the propriety of the sentence is in issue by virtue of the cross-appeal noted by the Crown. Two issues are raised in this context. First, the Crown submitted that the provisions of the Act clearly preclude the court from suspending any portion of a sentence of imprisonment imposed consequent upon a conviction for murder. Second, so the Crown contended, the sentence is ‘shockingly lenient having regard to the circumstances of the case.’ Section 314(2) of the Act reads as follows: ‘Whenever a person is convicted before the High Court or any subordinate court of any offence other than an offence specified in Schedule III, the court may pass sentence, but order that the operation of the whole or any part thereof be suspended for a period not exceeding 3 years, which period of suspension, in the absence of any order to the contrary, shall be computed in accordance with sub-sections (3) and (4) respectively, and the order shall be subject to such conditions (whether as to compensation to be made by that person for damage or pecuniary loss, good conduct or otherwise) as the court may specify therein.’ 4 Lephosa v Director of Public Prosecutions LAC (2007-2008) 64 Counsel for the appellant was obliged to concede that the sentence imposed by the court a quo, inasmuch as it sought to suspend part thereof, could not stand. He is clearly right in making this concession. Whilst the sentencing discretion of a court is an important component of a fair and effective sentencing framework, the legislature has explicitly ousted the court’s power to use the tool of a partially suspended sentence when determining punishment for an offender convicted of murder. (see the provisions of Schedule III in this regard.) Such sentence as is ultimately imposed on the appellant include any proviso suspending any part of it.” for murder must not Lawyers’ duty to the Court [17] Before closing the judgment, I consider it relevant and necessary to say something in relation to the respondent’s contention that the Crown wants to benefit from its failure to bring section 314(2) to the Court’s attention. Although the contention does not provide a valid reason to resist the application, it nevertheless rightly raises the issue of the duty of lawyers to courts of law. [18] During oral argument, Damaseb AJA bemoaned the fact that counsel did not refer to section 314(2) in the hearing of the respondent’s appeal despite the Court repeatedly asking about the existence of any statutory guidance. It is because of failure by officers of the court to assist that the Court fell into error. [19] Mistakes such as this are not likely to happen if officers of the Court strictly do what the President usually requires of them in circulars issued preparatory to the commencement of sessions, namely, that “Relevant extracts from essential statutory provisions and cases not reported in the Lesotho Appeal Cases or SA Law Reports are to be attached to heads of argument”. This is not idle talk or pious hope but a practice direction that must be obeyed to the letter. Time has come to ensure compliance by imposing punitive costs against rebels. It is in the public interest, the raising of professional standards and making good administration that this be done. [20] That legal practitioners are duty-bound to assist judicial officers to deliver justice by putting at their disposal relevant laws and authorities. It is a duty that entails the following5: “The lawyer’s duty to the court is an incident of the lawyer’s duty to the proper administration of justice. This duty arises as a result of the position of the legal practitioner as an officer of the court and an integral participant in the administration of justice. The practitioner’s role is not merely to push his or her clients’ interests in the adversarial process, rather the practitioner has a duty to assist the court in the doing of justice according to law. The duty requires that lawyers act with honesty, candour and competence, exercise independent judgment in the conduct of the case, and not engage in conduct that is an abuse of process. Importantly, lawyers must not mislead the court and must be frank in their responses and disclosures to it. In short, lawyers must do what they can to ensure that the law is applied correctly to the case. The lawyer’s duty to the administration of justice goes to ensuring the integrity of the rule of law. It is incumbent upon lawyers to bear in mind their role in the legal process and how the role might further the ultimate public interest in that process, that is, the proper administration of justice. As Brennan J states, ‘[t]he purpose of court proceedings is to do justice according to the law. That is the foundation of a civilized society.’ When lawyers fail to ensure their duty to the court is at the forefront of their minds, they do a disservice to their client, the profession and the public as a whole.” 5Seegobin, R. (2022). “Restoring dignity to our Courts: the duties of legal practitioners.” Groundup (online article last accessed 30 October, 2025) Disposition [21] When the Court has committed a patent error, justice demands that it corrects itself. This is a limited but very important jurisdiction exercised in exceptional circumstances. Justice requires of us to lift the suspension of three years and restore the eighteen years’ imprisonment. Order [22] In the result, the following order is made: 1. The application is granted. 2. The suspension of the three years is uplifted. 3. The respondent’s sentence is eighteen years. 4. Each party to pay its own costs. _________________________ S. P. SAKOANE CHIEF JUSTICE ______________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree I agree _________________________ P. T. DAMASEB ACTING JUSTICE OF APPEAL FOR THE APPLICANT: ADV T. FUMA FOR THE RESPONDENT: ADV N. K. LESUTHU (with ADV T A CHALLA) 12