CRI/REV/1/89

IN THE HIGH COURT OF LESOTHO

In the matter between:-

THEESE PHOOKO Applicant

and

THE MAGISTRATE (MRS. M. MOKUENA ) 1st Respondent

THE
DIRECTOR OF PUBLIC PROSECUTIONS 2nd Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 22nd day of May, 1989

The applicant is applying for an order that the
judgement of the first respondent delivered on the 25th November,
1988 in the case
referred to as Rex v. Theese Phooko, Criminal Case
No. 278 of 1988 of the Subordinate Court for the district of Maseru
should be
reviewed, corrected or set aside.

Alternatively that applicant's failure to lodge his
appeal against the said conviction and sentence within the time
stipulated by
the Rules should be condoned and applicant be granted
leave to lodge such appeal out of time.

/2.

-2-

A rule nisi was issued on the 17th March, 1989 and made
returnable on the 7th April, 1989. It was served upon the respondents
on the
17th March, 1989. The respondents have not filed any opposing
papers, but on the return day Mr. Thetsane appeared for the
second respondent.

On the 25th November, 1988 the applicant appeared before
the first respondent charged with contraventions of section 344 of
the Criminal
Procedure and Evidence Act 1981 and section 10 (2) of
the Road Traffic Act 1981 as amended by section 3 (a) of Order No.15
of 1987.
He pleaded guilty to both charges. The public prosecutor
gave a summary of the facts disclosed by the evidence in his
possession
as follows:

Trooper Moshoeshoe of R.L.M.P. met the applicant driving
a red Toyota Corolla motor car with registration number A7471. He
asked the
applicant how he acquired the vehicle. The appli­cant
said he bought it from someone who is now late. The police officer
carried
out some investigations and found that the vehicle was stolen
though not stolen by the applicant. He had no registration
certificate
for the vehicle.

The person who sold the vehicle to the applicant was not
its lawful owner. Applicant failed to prove that he had satisfied
himself
that the vehicle was that person's property. The lawful owner
of the vehicle had reported its theft to the South African Police.

-3-

The applicant admitted the facts stated by the public
prosecutor in terms of section 240(1) (b) of the Criminal Procedure
and Evidence
Act 1981. Thereafter he was convicted and sentenced to
five years' imprisonment.

in his founding affidavit the applicant deposes that
after his arrest he was asked to make a written statement in which he
Stated
that he bought the car from one Lehana Lebopo who died during
July or August, 1988 for M10,000-00; that he paid a deposit of M4
000-00
whereupon the said Lehana Lebopo delivered the car to him;
that he did not transfer the car into his name promising to do so
once
he had completed the purchase price which he had to pay in
monthly instalment; and that up to the date of the death of the said
Lebana
Lebopo he had paid the sum of M8,000-00.

The applicant alleges that he made the written statement
on 24th November. 1988. On the following day he was taken to
Parliament Building
where he met a certain Mr. Tlali who explained
that there was insufficient evidence that he (applicant) had stolen
the car from the
Republic of South Africa where it was alleged to
have been stolen and that, therefore, he would face a charge of being
in possession
of stolen property. He went on to explain that there
was no way he (applicant) could contest this charge because it was
common cause
that he had been found in possession of the car. He
advised him to plead to this charge which would result in the matter
being disposed
of quickly and that at the most he would be sentenced
to pay a fine. He agreed to this as he felt that he indeed could not
deny that
the car was found in his possession.

/4....

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Mr. Tlali further informed him that the registration

numbers on the car were not genuine. He informed Mr.
Tlali that he needed the services of a lawyer whereupon he replied
that if he
had a lawyer the case would be prolonged indefinitely
whilst he is kept in custody and that by advising him to plead guilty
he was
offering him the easiest way but as the whole matter would be
disposed of in' la day. Mr. Tlali told him that he would not be
granted
bail because he would oppose the application. He says that he
was then taken back to the cell after he had agreed to plead guilty
as advised by the said Mr. Tlali.

The applicant says that he was taken to court at
2.00p.m. on the 25th November, 1988. He discovered that Mr. Tlali was
the public
prosecutor and was prosecuting the case. The first
respondent read the charge in English after which she translated it
into Sesotho
with difficulty. He understood the charge against him to
be that he was found in possession of a stolen car and that it bore
registration
numbers which did not belong to it.

He avers that at the time he received the said motor car
from the-late Lehana Lebopo he had reasonable cause for believing
that the
said Lehana Lebopo

was the lawful owner of the vehicle because he showed
him a registra­tion certificate on which appeared the names of
the said
Lehana Lebopo. The engine and chassis numbers of the car
corresponded with those appearing on the registration certificate.

On the 3rd January, 1989 Sir Peter Allen, J. certified
the proceedings in the present case to be in accordance with real and

substantial justice. The question before me is whether
after a

/5

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Judge of this Court has reviewed the proceedings from a
Subordinate court in terms of section 65 of the Subordinate Courts
Order 1988
another Judge of this Court can review such proceedings
when a formal application for review is made. With regoard to an
appeal after
the proceedings have been automatically reviewed the law
is very clear that an appeal can be lodged.

Regarding a second review by another Judge there is
nothing in the Subordinate Courts Order 1988 that gives guidance as
to how the
matter should be resolved. I have no alternative but to
resort to case law of the Republic of South Africa because I have not
come
across any Lesotho case on this point. In the case of S. V.
Maseko 1971 (4) S.A. 475 a Judge on review cancelled another
Judge's confirmation where the latter was on Circuit and the review
was urgent.

In the present case the Judge who reviewed the
proceedings and confirmed them has left this country permanently and
is no longer a
Judge of this Court. In S. v. Makebe, 1967 (1)
S.A. 464 it was held that where, after a Judge has confirmed a
conviction and sentence on automatic review it appears that
justice
demands that the sentence be altered, it is competent for the Court
to deal with the matter notwithstanding that the reviewing
Judge is
no longer able to withdraw the certificate (see also S. v.
Renhold, 1971 (1) S.A. 317).

I cancel the certificate issued by Sir Peter Allen, J.
on the ground that there were certain irregularities which did not
appear on
the face of the record.

/6

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It was submitted on behalf of the applicant that the
facts stated by the public prosecutor did not disclose an offence
because:

(a) There was no allegation that the applicant

acquired the vehicle otherwise that at a public sale;

2. 
   That the applicant was unable to prove that
   at the
   time he acquired the vehicle he had
   reasonable cause for
   believing that the
   vehicle was the property of the deceased;

   
   

3. 
   That the applicant failed to prove that he had

   
   

reasonable cause for believing that the deceased, if not
the owner, had been duly authorised by the vehicle's owner to deal
with or
to dispose of it.

I do not propose to make any finding as to whether the
facts stated by the public prosecutor disclose an offence or not.
What I propose
to do is to decide the matter on the serious
allegations of misconduct on the part of Mr. Tlali who is alleged .
to be a public prosecutor
who was involved in the prosecution of the
present case. The allegations show that he wrongfully deceived the
applicant that because
he was found in possession of a stolen motor
car he had no defence. He did not tell the applicant that if he did
not know that the
vehicle was stolen he could not be convicted. He
further threatened the applicant with long detention without trial if
he wanted
his attorney to represent him.

/7

- 7 -

I am of the opinion that what Mr. Tlali did amounted to
a very serious misconduct arid sheer oppression of the applicant. He
had
a right to be represented by his attorney if he so wished, but
the public prosecutor who is an officer of the magistrate's court
threatened him with a punishment of long detention without trial. A
public prosecutor may enter into a plea bargaining exercise with
an
accused person provided he explains clearly and honestly what the
charge is all about. However, I must point out that where the
accused
person is not represented by a lawyer plea bargaining is always
fraught with danger and should not be encouraged.

The abovementioned allegations of sheer cheating have
not been denied by the second respondent because Mr. Tlali has not
filed any
opposing papers. This Court is bound to admit the
allegations therein as the truth.

The change faced by the applicant was not a very simple
charge like theft. There is a possibility that the applicant did not
understand
it as well as the procedure under section 240 of the
Criminal Procedure and Evidence Act 1981. The applicant has deposed
that even
the first respondent translated the charge from English to
Sesotho with difficulty. This allegation has not been denied by the
first
respondent and I have no alternative but to accept it as the
truth.

/8

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in Count 2 the proceedings were irregular in that under
section 10 (2A) of the Road Traffic Act 1981 no prosecu­tion for
an offence
under this section shall be instituted with­out the
consent in writing of the Director of Public Prosecutions. There was
no evidence
that such consent had been granted.

I come to the conclusion that there was failure of
justice occasined by the undesirable conduct of the public prosecutor
of cheating
the applicant into pleading guilty to the charge. The
proceedings in Cr 1273/88 Rex v. Theese Phooko are set aside. I order
a re-trial
before another magistrate.

A copy of this judgment shall be sent to the Chief
Magistrate and to the Senior Public Prosecutor, Maseru to enable them
to make arrangements
for a re-trial as soon as possible.

J.L. KHEOLA
JUDGE

22nd May, 1989.

For the Applicant - Mr. Sello
For the
Respondents - Mr. Thetsane.