IN THE HIGH COURT OF LESOTHO
In the Appeal of:
'MAMOTLOLI RAKAIBE Appellant
REASONS FOR JUDGMENT
Filed by the Honourable Mr Justice F.X. Rooney on the 25th February 1980
On the 25th February 1980 I set aside the conviction and sentence of 6 months imprisonment in this case. The Crown was unable to support the conviction of the appellant for theft. There were unsatisfactory features in the prosecution evidence, including unlawful pressure brought to bear on the appellant by the chief's committee to induce her to admit she was the culprit. One of the Crown witness behaved in a manner that could lead to the conclusion that she and not the appellant was the thief.
The appellant was represented by Advocate G.N. Mofolo at the trial before the magistrate at Butha-Buthe. She was convicted and sentenced on the 18th September 1979. Mr Mofolo gave notice of appeal on the 21st September 1979. The magistrate granted bail. His note on the record reads "bail granted at R60". This does not indicate whether what was required was a deposit of R60
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of if a recognizance in that sum would be sufficient. However, Mr Mofolo understood that the deposit was necessary in order that the appellant could be released.
When the appeal came up for hearing before me on the 14th December 1979 I was disturbed to find that, notwithstanding the bail order, the appellant was still in custody serving her sentence. Furthermore, she had not been given a copy of the record of the pro-ceedings. I postponed the hearing order to enable Mr Mofolo to explain these matters and at the same time to give the appellant an opportunity of preparing her case.
Mr Mofolo undertook the defence of the appellant at her trial, lodged her appeal and applied and obtained bail pending appeal. He received R20 only from the appellant which was not the full amount of the fee agreed for her defence. He says that he advised the appellant that he would not continue to act for her unless she paid (a) the balance of his fees for the trial, (b) his disbursements in connection with the filing of her appeal and (c) his fees on appeal. As his client did none of these things, he informed the Registrar by letter dated the 12th December 1979 that as the appellant was indigent he was unable to proceed with her appeal, He suggested that the Registrar should either endeavour to procure legal aid for his client or have the matter postponed until the present session of this Court. It is clear from what Mr Mofolo has written and said that up to the last he entertained the hope that the appellant would raise the necessary funds to enable him to continue to represent her.
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While I have some sympathy for Mr Mofolo's predicament I think he should have remembered that having undertaken to act for the appellant, he incurred professional obligations towards her which as an advocate of this Court he should not have abandoned solely on the grounds that his client could not pay him. If the appellant was without funds from the beginning he was not obliged to act on her behalf. However, it is clear that Mr Mofolo agreed to appear for her at the trial without insisting on payment in advance. He thus incurred a professional obligation to her which implied an extension of credit.
At the conclusion of the trial, Mr Mofolo could properly have declined to represent his client further in the absence of satisfactory arrangements about his fees. But, he chose to do additional work on credit. Having obtained for his client the benefit of bail pending appeal, he discovered that she could not pay the R60 which would have secured her release. While I do not suggest that Mr Mofolo was under any duty to pay this amount on his client's behalf, the least he ought to have done was to request the magistrate to vary the terms upon which bail was granted. Instead, he did nothing at all and the appellant remained in prison until this Court released her on bail on her own recognizances on the 14th December 1979.
Mr Mofolo explained that the failure to make the record available to the appellant was on oversight. This explanation was accepted by the appellant. I need
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only add the comment that when an attorney or advocate ceases to act for a client he should, subject to any right of lein over documents, take such steps as may be necessary to see that the former client is not prejudiced by his decision not to act further for him or her.
Mr Mofolo's difficulties and their unfortunate consequences could have been avoided if he had been acting on the instructions of an attorney. I do not wish to pronounce upon the propriety of an advocate acting in a criminal matter upon the instructions of a lay client. That is not an issue here and the matter was not argued before me. In civil matters the position has been placed beyond doubt by the Court of Appeal in Rashid Ahamed Karim v. Law Society of Lesotho (CIV/APP/ 3/79, unreported.).
Advocates who accept direct instruction from clients in criminal matters place themselves at a disadvantage. Their fees are not secured by an attorney. Their independence of action is to some extent circumscribed by considerations which may affect the manner in which they perform their duties. They run the risk of becoming involved in disputes with clients which attorneys are better equipped to deal with. No advocate should be propelled into action and then lulled into inaction by his assessment of the ability of a particular client to renumerate him for his services. As long as the distinction between the two branches of the profession is maintained in Lesotho, an advocate must take care lest he overstep the bounds required of his calling
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and he must at all times maintain the independence and dignity of his profession.
It is some reflection upon Mr Mofolo that the appellant was obliged to spend nearly two months in prison awaiting the hearing of her successful appeal, partly because he was unwilling to extend to her further credit in the matter of his fees, while he at the same time entertained the hope that she might find the means to meet his requirements.
25th February, 1980
For Appellant: Mr Mofolo For Respondent:
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law