CRI/A/32/81
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
SOLOMON TS'IU Appellant
v
REX      Respondent

Delivered by the Hon. Mr. Justice B.K. Molai
on the 8th day of October, 1981.
The appellant and one Edwin Shale appeared before the
magistrate's Court of Qacha's Nek charged with the Common
Law crime of bribery to which they both pleaded not guilty.
The body of the charge sheet disclosed the following
allegations :
"Upon or about the 30th day of January 1981
to the 2nd February, 1981 and at or near
Qacha's Nek the said accused, each or the
other or both of them, who were at all
material times public prosecutors in the
employment of the Government of Lesotho,
and as such state officials or Civil
Servants did unlawfully, intentionally and
corruptly accept from Rantee Mosotho the
sum of R30 as a consideration for under-
taking to expedite the hearing of the case
of one 'Masechaba who was charged in
connection with the killing of the daughters
of the said Rantee Mosotho and Moleleki
Seoete in July, 1980."
On the 10th April, 1981 and after the Crown had closed
its case against the accused Mr. Makhene who appeared for
the two accused applied for the discharge of the co-accused,
Edwin Thabo Shale, on the ground that the Crown evidence
had failed to establish a prima facie case against him.
2./The

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The application was granted and the co-accused accordingly
acquitted and discharged.
The defence then decided to close its case without
leading any evidence at all, on behalf of the appellant.
The Court proceeded to consider credibility of evidence
and found that the crown witnesses were trustworthy and
had all testified to the truth. Their evidence was
accordingly accepted and the appellant found guilty of
bribery in the amount of R20. He was sentenced to a fine
of R150 or 7 months' imprisonment in default of payment
of the fine. The appeal is against the conviction on the
grounds that:
"1. The Crown failed to prove that the amount
of R20 was intended for the purpose of
expediting any proceedings as alleged in the
indictment.
In fact the principal Crown witnesses
steadfastly denied that the money was intended
as a bribe to expedite any proceedings. In
the circumstances the learned magistrate erred
in convicting because no act or forebearence
in my official capacity was proved against me.
2. There was a gross irregularity in any case
as it transpired that the person who translated
throughout the proceedings was not a sworn
interpreter nor was he sworn in for this
particular case."
Briefly stated the evidence heard and accepted by the
Court was that on the 15th July, 1980 a woman by the name
of 'Majafeta Sechaba had assaulted two children. As a
result of that assault one of the children (P.W.1's grand-
daughter) died. The matter had been reported to the police
at Qacha's Nek but the case against 'Majafeta Sechaba was
never brought before the Court.
On Friday the 30th January, 1981 P.W.1, Rantee Mosotho,
3./representing

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representing the parents of the two children, went to the
police charge office at Qacha's Nek to make inquiries
about the progress of the case. P.W.2, Major Chaka,referred
P.W.1 to the appellant and his co-accused who were the
public prosecutors at Qacha's Nek magistrate's Court and,
therefore responsible for bringing the case before the
Court. On making his inquiried at the public prosecutor's
office P.W.1 was told by appellant's co-accused to go and
tell the parents of the children that they could go to hell
as the Government knew what it was doing about the matter.
P.W.1 found there was nothing he could do and was preparing
to leave the office when the appellant asked him to come
with him into the Court-room. They were two in the Court-
room when the appellant said to him :
"Old man, this is a case, you are now an
adult, how much money do you have in your
possession?.
P.W.1 told the appellant that he had R10 in his
possession. Appellant then said P.W.1 should give him
the R10. P.W.1 asked appellant what he would do for him
if he were to give him the money and appellant said he
would write. P.W.1 did not ask appellant what it was that
he would write but gave him the R10. He denied that the R10
was intended to induce the appellant to expedite the case
of Majafeta. Appellant complaint that the money was too
little and P.W.1 should bring R20 on the following Monday.
They then returned into the office of the public prosecutors
where the co-accused typed the letter, exhibit A, addressed
to P.W.1's chief. P.W.1 was given exhibit A to hand to his
chief. All that exhibit A contained was that the chief
should send certain of his subjects to the office of the
4./public

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public prosecutors on the 2nd February, 1981. Those were
Malebona Rabisi, Seoete Lesole, 'Majafeta Sechaba and
Masimphane Machaba.
In his evidence P.W.1 told the Court that he was worried
about the lawfulness of having to pay a fee to obtain infor-
mation on the progress of a case involving the assault on
his children. He however took exhibit A to his chief and
reported what had happened to him. On the 2nd February, 1981
P.W.1 returned to Qacha's Nek with the R20 which had been
demanded by the appellant. He was then accompanied by P.W.5,
Moleleki Seoete, the father of one of the two children who
had been assaulted by 'Majafeta Sechaba. Before going to
the appellant's office the two men first went to P.W.2 to
verify the lawfulness of paying the R20 as demanded by the
appellant. After "learning what had happened to P.W.1 on the
previous Friday the 30th January, 1981, P.W.2 decided to set
up a trap for the appellant and his co-accused. He noted
down in his diary the serial numbers of the two R10 notes
which P.W.1 was to give to the appellant as requested by
the latter. The notes were handed back to P.W.1 to take
to the appellant.
P.W.1 and P.W.5 went to appellant's office. After
P.W.1 had reminded the appellant that he had brought the
"parcel" about which they had talked on the previous Friday
the appellant ordered P.W.5 out of the office. He then
asked P.W.1 to go with him into the Court-room where the
appellant received the two R10 notes from P.W.1. The appe-
llant then told P.W.1 that the papers of 'Majafeta Sechaba's
case had been sent to Maseru. He assured him that as soon
as they had been returned from Maseru he would let him know
and would personally preside over the case. They then parted.
5./According

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According to the evidence of P.W.2, after about 15
minutes, P.W.1 returned to his office and made a report.
P.W.2 then went to the office of the public prosecutors
and requested the appellant and the co-accused to accompany
him to his office. At his office P.W.2 put the appellant
and the co-accused under guard in two separate offices.
He obtained a search warrant from the local magistrate and
proceeded to search the appellant in the presence of P.W.3,
Lt. Jobo Moshoeshoe. In the course of the search a R10
note was found in one of the pockets of appellant's
trousers. The serial number of the R10 note tallied with
the serial numbers of one of the two R10 notes that had
been carried by P.W.1. A search on the person of the co-
accused did not yield anything. P.W.2 then confronted the
co-accused and the appellant when the latter suddenly
called out: "Shale, take out that money, we have been
arrested:" The co-accused explained that he had borrowed
money from the appellant but did not know that it was tainted.
The co-accused then took P.W.2, P.W.3, the appellant and Sgt.
Teba (P.W.4) to the office of the public prosecutors where
he pulled the drawer of his desk and took out a R10 note.
On checking its serial numbers it was found that they
tallied with those of one of the two R10 notes that had been
carried by P.W.1 and noted down by P.W.2 in his diary.
P.W.2 took possession of the two R10 notes (exhibits B
and C), cautioned and charged the appellant and the co-accused.
Mr. Makhene, for the appellant, argued before the trial
Court and this Court that the Crown had failed to establish
what kind of action the appellant was expected to take in
6./connection

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connection with the case of the two children. His sub-
mission was that P.W.1 did not know why he gave the money
to the appellant. On this issue the trial magistrate had
this to say :
"I entirely agree with Mr. Makhene that the
state of mind of the giver is a very important
aspect of the crime of bribery. If the giver
does not intend the fee or reward to induce
the receiver to act or refrain from acting
there can be no bribery. In Rex v Ndobe 1952(3)
S. A. 562, at 563, H. Ramsbottom J. is reported
to have said: "A man can only receive something
as an inducement to act or refrain from acting
if it was in the mind of the giver to induce
him to act or to refrain from acting, and he
can only receive something "in consideration of"
his acting or forbearing to act if the giver
intended the fee or reward to be in consideration
of an act or forbearance". In the present case
P.W.1 catagorically denied that he gave the
first R10 as a fee to induce accused to expedite
the case of his grand-daughter. But he said he
did not give it as a loan or present but he said
he knew that it was unlawful to give the money
to the accused.
I am of the opinion that Mr. Makhene's
contention must be upheld as far as the giving
of the first R10 on 30th January, 1981 is
concerned".
With respect I do not share the opinion of the learned
trial magistrate. Although P.W.1 did not specifically
ask the appellant to expedite the hearing of the case
against Majafeta Sechaba it was abundantly clear from the
evidence that he had gone to the office of the appellant
and the co-accused to inquire on the progress of the case.
As public prosecutors the appellant and the co-accused had
in their possession the information which P.W.1 was asking
for. Their duty was to render the service requested for by
P.W.1. The reply given by the co-accused was, however,
clearly an arrogant and boastful refusal to give the infor-
mation requested by P.W.1. The appellant's calling of P.W.1
7./aside and

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aside and telling him "old man this is a case, you are now.
an adult, how much money do you have in your possession?",
in my view, speaks volumes as to the conditions he laid
down for P.W.1 if he were to receive the information. He
clearly proposed a fee or reward from P.W.1 in order to
render him the service he was asking for. P.W.1 read the
appellant's message loud and clear for in reply he told
him that he had R10 in his possession and hastened to ask
the appellant what he would do for him if he were to give
him the money. To which the appellant replied that "he
would write". I am of the opinion that on the evidence
accepted by the trial Court the appellant demanded conside-
ration as a condition for giving the information which P.W.1
was asking for and the latter's intention in giving the R10
was clearly to induce the appellant to give that information.
Such consideration was, however, unauthorised and I have no
doubt in my mind that the appellant could have been properly
convicted in respect of the first R10.
As regards the R20 it is clear from the evidence
accepted by the trial Court that when he handed it to the
appellant P.W.1 was being used as a trap by P.W.2. That
being so, I find no substance in the argument that P.W.1
did not know why he gave the money to the appellant.
The important issue raised in this case is that the
person used as interpreter was an employee of the Sub-
accountancy" at Qacha's Nek and was never sworn to inter-
pret in Court. The magistrate who presided over this case
was a visiting magistrate from Leribe. Normally the Ministry
of Justice employs Court interpreters who are attached to
all magistrate Courts in the districts. As a matter of
8./practice

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practice they are sworn in as interpreters when they take
up their employment. For this reason the trial magistrate,
in his reply to the grounds of appeal pointed out that he
was unaware that in Qacha's Nek the Ministry of Justice had
not posted any such interpreter and an employee of the Sub-
Accountancy had therefore to be used to interpret in Court.
In the opinion of the trial magistrate the person used as
the interpreter did his work fairly well. In any event
the fact that the person used as the interpreter in the
present case was not a sworn interpreter could not have
been an Irregularity resulting in a miscarriage of justice
for it was common cause that the witnesses testified
in either Sesotho or English language. The presiding officer,
the accused themselves and the defence counsel were all
Basotho conversant with both official languages. Although
at first he (the magistrate) had thought that the prosecutor
Mr. Mdhluli did not know Sesotho, it became clear during the
proceedings that he understood the Sesotho language "fairly
well". The interpreter was, therefore, merely used for the
benefit of the members of the gallary where the English
language was used.
Mr. Khauoe for the Crown argued that in the circumstances
the accused could not have been prejudiced by the use of an
unsworn interpreter and the appellant was properly convicted.
Mr. Makhene on the other hand contended that the use of an
unsworn interpreter was per se, a gross irregularity which
rendered the conviction bad in law and the appeal should
therefore be allowed.
Section 83(2) of the Subordinate Courts Proclamation
No. 58 of 1938 requires witnesses in any proceedings, either
9./civil or

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civil or criminal, to testify on oath or affirmation
administered by the presiding officer or the clerk of Court
or the interpreter in the presiding officer's presence.
This section is however no authority that Court interpreters
must be sworn in. Notwithstanding the common practice in
our Courts to swear in interpreters before they are permitted
to interpret in Court, I have been unable to find any
provision in our law which specifically requires interpreters
to be sworn in.
As authority that failure to use sworn interpreters
is an irregularity resulting in the miscarriage of justice
the Court was referred to the decisions in Motloheloa v.Rex
1967-1970 L.L.R. 300 and S. v. Naidoo 1962(2) S.A. 625.
In the former case there was no interpreter at all and the
public prosecutor not only conducted the case on behalf of
the Crown but also acted as interpreter from the Sesotho
into the English language and vice versa. In the latter
case an ad hoc interpreter was employed to interpret from
the Tamil into the English language and vice versa. Neither
the public prosecutor in Motloheloa's case nor the ad hoc
interpreter in that of Naidoo were sworn in as interpreters.
However, it may be observed that the presiding officers in
both cases were conversant with the English language only
and did not understand either the Sesotho language or 'amil.
Their understanding of what the witnesses were saying
either in Sesotho or Tamil language depended entirely on the
interpretation of the interpreter. In the present case the
presiding officer was conversant with both Lesotho and
English, the languages in which the witnesses were admittedly
testifying before him. It cannot therefore be said that his
10./understanding

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understanding of what the witnesses were saying before
him depended on the interpretation of the interpreter.
In my view, to that extent the cases of Motloheloa and
Naidoo supra are distinguishable from the present case.
As has been pointed out in the instant case the interpreter
was employed merely to enable the members of the public to
follow the proceedings in Court, The magistrate himself,
the accused, the defence and the Crown counsels understood
what the witnesses were saying either in the English or
the Sesotho language.
There are numerous authorities indicating that the
testimony of a witness who testifies through an interpreter
is considered hearsay and inadmissible evidence in the event
of the presiding officer not understanding (except through
an interpreter) the language in which the witness is
testifying and depends entirely on the interpretation of
the interpreter as to what the witness is saying before
him. In Rex v Mutche 1949 A.D. 874 Davis, A.J.A. is
reported to have said this on the issue :
"It seems to me, however, to be axiomatic
that what has been said through an inter-
preter to someone who does not understand
the language Is ordinarily mere "hearsay"
if deposed to only by that person."
(My underlining).
Again in S. v Naidoo supra at p. 631-2 the principle
governing this issue was expressed by Williamson, J.A. in
the following terms:
"If a witness states in Court that a person,
an accused for instance, previously made a
statement to him in a language which the
witness did not understand but which was
interpreted to him, then that witness's
11,/evidence

evidence as to what was said is by itself
hearsay and not admissible."
It is submitted that by analogy if the trial magistrate
says the witness testified before him in a language which he
did not understand but was interpreted to him through an
interpreter such testimony is hearsay and not admissible
unless the interpreter himself was interpreting under oath.
These decisions are, in my view, no authority that
the testimony is hearsay and not admissible where the
presiding officer is conversant with the language in which
the witnesses are testifying and therefore understands,
without the interpretation of an interpreter, what the
witnesses themselves say before him in Court. The use of
unsworn interpreter may well have been a violation of the
commonly accepted practice in our Courts and to that extent
an irregularity. However, the salient question is whether
a failure of justice has in fact resulted from such an
irregularity. The proviso to S. 321(d) of the Criminal
Procedure and Evidence Proclamation No. 59 of 1938 provides :
"Notwithstanding that the Court of Appeal
is of opinion that any point raised might
be decided in favour of the accused no
conviction or sentence shall be set aside
or altered by reason of any irregularity
unless it appears to the Court of Appeal
that a failure of justice has in fact
resulted."
See also the proviso to S. 73(4) of the Subordinate Courts
Proclamation No. 58 of 1938.
As has been pointed out earlier in the present case
the presiding officer, the accused, the defence and the
Crown Counsel were all conversant with Sesotho and English,
12./the

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the languages in which the witnesses were testifying
before the Court, It may be added that, on the record
of proceedings, all the witnesses were properly cross-
examined by Mr. Makhene for the defence. I come to
the conclusion th?.t in the circumstances of the present
case the irregularity occasioned by the use of unsworn
interpreter has not resulted in any miscarriage of justice.
In the premises I have no alternative but to come to
the conclusion that the appeal cannot be allowed to
succeed and is accordingly dismissed.
ACTING JUDGE.
8th October, 1981.
For the Appellant : Mr. Makhene.
For the Crown : Mr. Khauoe.