CRI/A/32/81IN THE HIGH COURT OF LESOTHO In the Appeal of :SOLOMON TS'IU Appellantv REX Respondent
Delivered by the Hon. Mr. Justice B.K. Molaion 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 theother 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
-2-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 caseas 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
-3-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 hischief. All that exhibit A contained was that the chief should send certain of his subjects to the office of the4./public
-4-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
-5-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 in6./connection
-6-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.17./aside and
-7-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 of8./practice
-8-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, either9./civil or
-9-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 his10./understanding
-10-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's11,/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
-12-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 unsworninterpreter 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.