HIGH COURT OF LESOTHO
PATEL BHALI Applicant
OF PUBLIC PROSECUTIONS 1st Respondent
WORSHIP THE MAGISTRATE MR LESENYEHO 2nd Respondent
by the Hon. Mr Justice M.L. Lehohla on the 4th day of May, 2000.
applicant moved on notice :
urgent application against the two respondents calling upon them
show cause, if any, why the decision of the 2nd respondent delivered
on 21st February 2000 shall not be reviewed, corrected and/or set
upon the 2nd respondent to dispatch within seven days of his receipt
of this notice to the Registrar of this Honourable Court, the record
of the said proceedings to be reviewed, corrected and/or set aside
together with such reasons as the respondent is required or desired
to give and to notify the applicant that he has done so,
order that respondents should pay costs of this application
such further and/or alternative relief as the Court may deem fit.
appears on the applicant's motion papers the number 3 is repeated in
designating paragraph 4 as well. I shall however refer to the
numbering of paragraphs in the corrected version embarked on by the
Court mero motu.
is in possession of the certified copy of the original demanded and
made mention of in paragraph 2 above. The passport subject matter of
the litigation marked Exhibit 1 eventually reached the Court after
the matter was postponed due in part to the incompleteness of the
record occasioned by the absence of this important Exhibit. Needless
to say the Court granted the applicant bail during the very first
time the parties appeared before it to argue this matter which had to
be postponed for a variety of reasons including the one just
applicant in his founding affidavit sets out that he is an Indian
adult male residing at Pretoria in the Republic of South Africa.
Otherwise his permanent home of which he is a citizen is Bhroda
Gujarad in India.
further sets out that on 17th February, 2000 he was travelling from
Republic of South Africa. On passing through the Maseru side of the
border he handed his Indian passport to the Immigration Officer who
inspected it and allowed the applicant to pass on to the South
African side of the border.
reaching the South African side of the border the applicant duly
handed his passport to the South African Immigration Officer who
inspected it and said something which created the impression in the
applicant's mind that the officer thought the passport was not the
applicant's. The applicant says he told the officer to look him up in
the face whereupon he would see that the applicant is truly the
holder of this passport. See paragraph 4.2 end of line three.
the applicant without, as he says, understanding what was going on
was taken by this officer and some South African police officer to
the Lesotho side of the border. He was handed over to the Lesotho
applicant stresses the point that his English is very poor and he
understands and converses in this language with extreme difficulty.
He says he usually understands what is being said to him if sign
language is used.
record of the case from the Subordinate Court shows that the
applicant pleaded guilty to the charge after this had been put to
him. The public prosecutor and the court accepted the plea.
the public prosecutor gave an outline of the case.
outline is as follows :
evidence of Inspector Rannoko of LMPS would show that on 17th instant
he was on duty at the Maseru Bridge Police Post. Whilst he was there
the accused was forwarded to him together with his passport by RSA
inspected the passport he noticed that the accused was supposed to be
in Lesotho till the 13th instant.
'Mankopane Mothibeli was shown the accused's passport. She would
testify that the Immigration Stamp in the accused's passport was not
theirs and this would mean that it was a fraudulent stamp.
Molise would show that the accused was forwarded to him on that day.
He then introduced himself to the accused and then asked him for an
explanation; after which he cautioned him and then gave him a charge
which he stands facing. I intend to hand in the passport as an
exhibit marked Exhibit 1.
I accept the outline of facts
Guilty as charged
Prosecutor : No previous permit (sic)
I quite appreciate your request but the thing is you forged the
permit and this is quite serious. I am sure even your own government
would feel ashamed. You will go to jail for 18 months.
above text 1 would infer that 'Mankopane is an employee in the
Immigration Department of Lesotho Government. I would also think the
wordpermit appearing opposite the public prosecutor below the phrase
guilty as charged above was intended to mean convictions. So that the
common sense meaning intended to be conveyed would be "no
previous convictions " instead of "no previous permit"
which makes no sense.
outline of the public prosecutor it appears on the face of it that
the case was properly made out for the conviction that followed.
had occasion to consider a more or less parallel authority in regard
to the effect of a plea of guilty in a Criminal Review in Rex vs Joe
Seipati 1985-1990 LLR p.235 at p.237 where it is reported :
would be worth noting that in Pulumo [CRI/A/37/88 unreported]
the instant matter the unrepresented accused had pleaded not guilty.
Thus similarly in C. of A. (CRI) No. 12 of 1974 Stephen Tsatsane vs
Rex (unreported) where the appellant had pleaded guilty in the
Subordinate Court and for purposes of sentence his matter was
committed to the High Court where he sought to challenge the original
plea Maisels P as he then was found it fitting to extract from
Hoffman on the South African Law of Evidence 2nd Edition p. 305 et
seq the following:-
'A plea of guilty is in effect a formal admission of the essential
elements of the charge. Even after withdrawal, the fact that it was
made is something which the court is entitled to consider'"
this point it is necessary to highlight the fact that although this
matter has been brought to this Court by way of review which would
per se be understood to mean that irregularity of some procedural
matter is in point as opposed to substance or merits of the case, a
question of substantive importance has been raised in the applicant's
papers themselves; namely that "..........if the alleged forgery
or irregular certificate was not used in Lesotho a crime cannot be
alleged to have been committed" see paragraph 188.8.131.52. 1 should
stress that this is a factor which relates to merits and which cannot
properly be entertained in review proceedings which are confined to
irregularity in procedure. Needless to say Miss Thabane for the
applicant did not make any oral submissions regarding this important
matter which I further stress the Court cannot lightly over-look.
Thabane emphasised the fact that the accused was not represented and
was labouring under great disadvantage of being unable to communicate
with the court as there was no one to interpret for him what was
being said. It would seem to me that the question raised here is
two-fold. First it relates to legal representation or lack thereof.
Here Miss Thabane charges that the Magistrate was wrong not to have
warned the accused at the start of the desirability of having a legal
representation. Next it relates to the constitutional right that the
accused is entitled to follow the case preferred against him by means
of a language that he can understand properly.
regard to the first leg of the above argument in Seipati above
reference is made to S vs Mashinyana 1989(1) SA 592 where it was held
"A court is not obliged to enquire from an accused whether he
wishes to have legal representation. The unexpressed desire of an
accused to engage a legal representative cannot afford him a cause
for complaint after his conviction and sentence".
instant matter insofar as relates to legal representation is
concerned fits in well with the above phrase with which I agree
the above view the Swazi Court of Appeal in Caiphus Dlamini vs Regina
Case No. 46/84 per Welsh J.A. said :
"However, where he (the accused) does not seek it, (legal
representation) and where no irregularity occurs by which he is
deprived of it, there is no principle or rule of practice of which I
am aware which vitiates the proceedings".
an additional reference to section 240(1) of our Criminal Procedure
and Evidence Act No. 7 of 1981 reflects that :
"If a person charged with any offence before any court pleads
guilty to that offence or to an offence of which he might be found
guilty on that charge, and the prosecutor accepts that plea the court
it is a Subordinate Court, and the prosecutor states the facts
disclosed by the evidence in his possession, he shall, after
recording such facts, ask the person whether he admits them, and if
he does, bring in a verdict without hearing any evidence".
Tsatsane above (unreported) at p.2.
to say in the instant matter the record shows that the applicant when
supposedly asked if he admitted the facts outlined by the public
prosecutor he answered in the affirmative.
In Rex vs
Sibia 1947(2) SA 50 AD Schreiner J.A. is recorded at p.54 et seq as
having said :
"I do not wish to be understood as suggesting that it is an
irregularity, of which the accused could take advantage, if no record
is made. Speaking only from my own experience, I do not think that it
could be inferred from the absence of any reference thereto in the
judge's notes or in the shorthand record that the accused was not
This is a
very seasonable word of caution by an eminent jurist and therefore
merits special observation; as it may well be pertinent to the case
for the applicant in the instant matter.
CRI/A/48/86 Mothakathi vs Rex (unreported) at p.7 this Court made the
following observations :
"Section 162(1) of the Criminal Procedure and Evidence Act
provides that where provisions of section 159 of the Act have not
been invoked the accused shall either plead to the charge or except
to it on the ground that it does not disclose any offence cognisable
by the court. In the instant case the charge and outline of the crown
case clearly disclosed an offence committed."
2 provides that if he pleads; he may plead
he is guilty of the offence charged; or
he is not guilty; or
he has already been convicted or acquitted of the offence with which
he is charged; or
he has received the Royal Pardon for the offence charged; or
the court has no jurisdiction to try him for the offence; or
the prosecutor has no title to prosecute".
instant matter the accused in exercise of his unfettered right to opt
for any one of the alternative listed above opted for that listed
reaching finality it would be fruitful to have reference to the law
dealing with this Court's powers on review.
appear in section 68(2) of (Order No.9 of 1988 which provides that
"If, upon considering the proceedings aforesaid, it
appears............to the judge.............that the same are not in
accordance with justice or that doubts exist whether or not they are
in such accordance :
or reverse the conviction or increase or reduce or vary the
sentence of the court which imposed the punishment; or
it appears necessary to do so, remit such case to the court which
imposed the sentence with such instructions relative to the taking
of further evidence and generally to the further proceedings to be
heard in such case as the judge thinks fit, and may make such order
touching the suspension of the execution of
sentence against the person convicted or the admitting of such person
to bail, or, generally, touching any matter or thing connected with
such person or the proceedings in regard to him as to the judge seems
calculated to promote the ends of justice".
this Court is of the view that overwhelmingly there does not seem to
be much cause for the applicant's complaint save that he was awakened
to the reality of the seriousness of his offence when confronted with
jail sentence, an omission apparently centred on over-weening
confidence on the water-tightness of their case, was committed by the
Crown. The Crown failed to counter or qualify the applicant's
allegations of his failure to follow the proceedings in Court. This
the Crown could have easily achieved by submitting an answering
affidavit from the Magistrate who presided over the matter or from
the public prosecutor in charge or both.
circumstances acting in terms of section 68(2) (b)(ii) of Order 9 of
1981 above, I set aside conviction and sentence imposed by the
learned Magistrate and order a retrial de novo of the accused before
a different magistrate.
observed that the applicant has prayed for costs of this application
in prayer 4 of the notice of motion. I think that was uncalled for
because in a criminal proceeding a party even if successful does not
obtain an award of costs as the law
provision for such. In this way the criminal procedure is in sharp
civil one where costs follow the cause. Care should be taken that an
interpreter who understands the applicant's language is availed to
the court going to retry his case.
should be released to the Director of Prosecutions Office for use in
the re-trial in due course.
Applicant: Miss Thabane
Respondents : Mr Kotele
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