IN THE HIGH COURT OF LESOTHO
In the matter of.
NKUPANE MOTSIRE 1st Applicant
MOEKETSI RAMONATSI 2nd Applicant
RESIDENT MAGISTRATE MOHALE'S HOEK 1st Respondent
DIRECTOR OF PUBLIC PROSECUTIONS 2nd Respondent
Delivered by the Hon Mr. Justice Sir Peter Allen on the 18th day of March, 1988
This is an application for review of a decision by the Resident Magistrate of Mohale's Hoek, sitting at Mafeteng on 25 November 1987.
The trial commenced on 15 September 1987 with Mr Z. Mda appearing for the first applicant and Mr. T. Mda for the second applicant. Two prosecution witnesses (PW1 and PE2) testified and they were cross-examined at length by both counsel.
The trial continued on 16 September (the next day) when five more prosecution witnesses testifeied (PW3 to PW7) and all were cross-examined except PW7 (the complainant). The record does not explain why, but it may have been due to lateness in the day. The trial was postponed for a month until 15 October 1987, though there was no explanation given on the record for such a long adjournment.
On 15 October the two accused were present but nothing appears to have happened. For no explained reason there was a further long postponement, for nearly six weeks, until 25 November The record does not indicate whether counsel were present on 15 October and so informed of the fresh date. Their affidavits are not clear but they would seem to indicate that they were present on 15 October and that they agreed (for some unknown reason) to yet another postponement but to a date to be agreed later. The magistrate's very uninformative record only show that fresh date to be 25 November but it does not indicate whether it was agreed at the time (on 15 October) or later, nor does it reveal who was so informed.
Mr. Z. Mda in his affidavit averred that he was told by the first applicant on the morning of 25 November that the trial was continuing on that day but added that he was unable to attend as he had a case before the High Court. He then telephoned the prosecutor and so informed him, and the prosecutor told him that the case would proceed. As that was a decision for the magistrate to make, it was improper for the prosecutor to pre-empt that decision.
Mr. T. Mda in his affidavit explained that on 15 October it was agreed that a suitable continuation date would be decided upon later, and that he was not aware of the 25 November hearing.
On that day the prosecutor informed the magistrate that the new date had in fact been confirmed with both
defence counsel and he wished to proceed with the prosecution case. Both accused asked for a postponement as their counsel were absent. The magistrate decided to proceed and three more prosecution witnesses (PW7, PW8 and PW9) testifed. PW7, the complainant, completed his testimony by a identifying the two accused as his attackers.
Both accused declined to cross-examine this most vital witness, as well as the remaining two witnesses, on the grounds that their counsel were absent. At the close of the prosecution case they also declined to defend themselves for the same reason The record then reads as follows -
" Verdict Guilty of Robbery Previous convictions none Mitigation We have nothing to say in mitigation in the absence of our lawyers. Sentence. Four years imprisonment."
Thus the evidence of nine prosecution witnesses was recorded at some length but given no apparent consideration at all. No judgment was written in spite of various orders made by this Court to the effect that judgments must always be written before delivering a verdict. These directions were given last year well before the trial of this case was concluded
In any case there was a lot of evidence to be considered, particularly that of identification, and such a serious matter cannot be properly decided by an off-the-cuff decision based on no revealed reasons. Moreover
no reasons were given for the sentences imposed, in spite of the many orders of this Court that such reasons must always be given.
Even without this present application I would have held that the trial was not properly conducted for these last two omissions, concerning the judgment and sentence. In addition, I am not satisfied that the accused were treated altogether fairly with regard to the last part of the trial when their counsel were absent
It looks quite possible that both defence counsel were in fact much to blame for they should at least have appeared in court to apply for a further postponement. Though whether they would have succeeded is a different matter.
Robbery is a very serious charge and it should have been obvious that the main witness, the complainant, ought to have been subjected to cross-examination. Defence counsel should therefore have made very much more effort to attend court. At the same time it would have been better if this particular witness, the complainant, had been called first, or at least much earlier in the prosecution case, since the vital question of identification depended upon him.
Before me Mr. Z. Mda asked for the convictions and sentences to be set aside. He did not ask for a retrial. The Crown did not trouble to make any representations, although this matter was included on the High Court Roll in addition to a date having previously been consented to before me on 7 March 1968.
There is no question of the convictions being quashed and the case left like that. The prosecution have out a prima facie case against the two accused and, whether or not they choose to defend themselves, a judgment must be written. The proper request should be for a re-trial.
Accordingly the convictions of both accused for robbery are quashed and the prison sentences are set aside. It is ordered that both applicants are to be brought before the same trial magistrate for the testimony of the prosecution witnesses heard on 25 November 1987 to be reheard. Both defence counsel are to be given the opportunity to attend and to cross-examine those witnesses. If they fail to attend again without very good reason the trial magistrate should explain the position to the accused and then decide whether or not to proceed in the absence of counsel. Everthing must be recorded in any case. But this situation should be avoided if it is at all possible.
At the completion of the trial a proper judgment must be written and delivered. If the accused are convicted, the time already spent in custody must be taken into account when considering sentences.
The two accused are to remain in custody, but as remand prisoners for the time being so that they can be brought before the trial court as and when required. The previous bail order which lapsed at the end of the earlier trial, is not renewed.
18th March 1988
Mr. Z. Mda for applicants
Nobody for respondents
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