CRI/T/213/2002
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
vs
TOMO MAPHETHEKATSI
MOTEBANG LETSENG
'MUSO MAPHETHEKATSI
TSIETSITHATJANE
MOHAU MOKOMA
RULING ON THE ISSUE OF USE OF SESOTHO IN HIGH COURT PROCEEDINGS
This ruling was made on the 22nd November 2004 and I promised to furnish reasons later.
The language issue for Lesotho should not be a problem. The country is Lesotho which means the land of the Basotho. The English colonial name of the country is Basutoland which in no uncertain terms calls this country the land of the Basotho. Consequently Section 3 (1) of the Constitution provides.
"The official languages of Lesotho shall be Sesotho and English and, accordingly, no instrument shall be invalid by reason only that it is expressed or conducted in one of those languages.”
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It remains a fact that ninety per cent of the people are no fluent in English although they have learned the language at differing levels at school. English is not their first language or mother tongue. Nevertheless English remains the sole medium of instruction at secondary and university level. English is in fact the language of government in which government business is transacted.
When Lesotho got its independence almost all magistrates and all judges were English speaking. Consequently proceedings in the magistrate
courts had to be in English. Seventy per cent of all legal practitioners were English or Afrikaans speaking. There was therefore
no way court proceedings could be conducted in Sesotho.
In the 21st century all judges of the High Court and ninety five percent of legal practitioners are Basotho whose first language and mother tongue is Sesotho. The entire magistracy is except for one ex patriate magistrate are entirely Sesotho speaking. Only the Court of Appeal is almost entirely English speaking. All the court staff has been localized and is Sesotho speaking.
The level of English of judicial officers is far higher than that of interpreters. Consequently legal practitioners, Magistrates and judges have to correct interpreters time and again. Almost all interpreters do not have university education. Government has failed to employ adequately qualified interpreters. It is time to make an adjustment on the language issue, because many of the interpreters are bad. It is torture to judges and Magistrates to listen
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to bad interpretation and be the erotically bound by it when they have already heard the correct thing.
In the Judicial Commissioner's court which is a senior magistrate court for hearing appeals from the Basotho customary courts isalready being conducted in Sesotho. Records are translated into English if a legal practitioner that has been employed is English speaking. Records are only translated into English if cases are going on appeal in the belief that judges of the High Court do not know Sesotho.
On this occasion the issue of the use of Sesotho in Court proceedings arose in the above matter in unexpected circumstances. The Chief Justice had told me earlier that there was already a precedent in which the High Court of Lesotho had conducted proceedings in Sesotho which is like English an official language in this country. This had happened when the current Chief Justice was still a registrar of the High Court under the late Mr Justice J.T. Mapetla who was chief Justice of Lesotho. Unfortunately no written judgment was made when Mapetla CJ decided to proceed in Sesotho.
There has been a shortage of qualified interpreters in Lesotho for many years. The majority of the existing interpreters are very unsatisfactory. Their English is very poor because of their background and the fact that they do not have university education. A Sesotho speaking judge together with the Sesotho speaking counsels have to intervene far too often to correct inaccurate interpretations.
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In this case the issue of the use of Sesotho in court proceedings came when the preparatory examination record was querried because a Sesotho speaking Magistrate had acted as an interpreter, recorder and Magistrate. To avoid problems after hearing both counsels I made the following ruling:
"Proceedings will be conducted in Sesotho in this case to avoid any suggestion that proceeding are hearsay and consequent
misinterpretation. The reason for this ruling is that I as a presiding judge, Crown Counsel, the accused, defence counsel the registrar, witnesses and the public in the public gallery are Basotho whose first language is Sesotho. The interpreter will be used to translate from English to Sesotho and vice versa whenever a witness in this case or counsel is English speaking. Sesotho is an official language and this court wishes to avoid any suggestion that these proceedings contain hearsay where the court records directly what the witness has actually said and ignores what it considers to be an inaccurate interpretation that is currently prevalent in this court."
Both Crown counsel and defence counsel had no objection. There was nothing to stop them in addressing me in English on issues of law. There was also nothing to stop me writing the judgment in English.
The accused first appeared before me on 3rd August 2004. There was no return of service showing that Crown witnesses had been served with subpoenas. The case had therefore to be postponed. Among the orders this court made was that the record of the Preparatory Examination be made available. It had been Mr Mosito who had applied that the record of the Preparatory Examination be made available. The court was surprised that there could have been a preparatory examination which could just be ignored. Consequently the court had ordered that the Preparatory Examination be made available to the defence.
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Before the accused pleaded Mr Mosito for the accused applied that the case proceed as a summary trial because the preparatory Examination was irregular. Mr Mosito in support of his application further said what the Magistrate had written was hearsay because he did not have an interpreter interpreting what the witnesses were saying in Sesotho into English. In support of this submission Mr Mosito referred me to the case of R v T Mafeka 1990 -1996 LLR 1199.
In R v Mafeka the court mero motu before the accused pleaded had asked whether there was a proper committal of the accused to the High Court in terms of Section 92 of the Criminal Procedure and Evidence Act of 1981. It turned out that the Magistrate who like the accused and the prosecutor and other court officials were Basotho and whose mother tongue is Sesotho had listened to evidence that was given in Sesotho without an interpreter, and recorded it in English. The magistrate had then translated that record of the evidence to the witness and also signed that she was the interpreter.
Ramodibedi AJ (as her then was) relying on S v Naidoo 1962 (2) SA 625 AD at 632 came to the conclusion that the interpreter was an expert witness "telling the Court in the language understood by the court (and by any recorder) what it is that the witness is actually saying." Interpreters are therefore sworn like other experts. Ramodibedi AJ (as he the was) at page 1201 of R v Mafeka rounded up this point by saying:
"I have come to the conclusion therefore that the depositions of the preparatory examination in this matter were not taken
satisfactorily and that they amount to unsworn and therefore inadmissible evidence in the circumstances."
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Court interpreters are not sworn in every day. They are sworn in when they are appointed court interpreters. Thereafter they continue as court interpreters until they retire. Many magistrates were court interpreters who were elevated to the bench of the magistrate court. Consequently it was wrong to assume that the particular magistrate in R v Mafeka was not a sworn interpreter without hearing evidence to that effect. This is particularly so because court interpreters are elevated to the magistracy while still in the staff of the magistrate court.
We have four judges on the High Court Bench who were once Clerks of the Court and sworn magistrate court interpreters. Those judges and a number of magistrates are sworn interpreters. They are what Williamson JA in S v Naidoo (supra) at page 632 calls a species of sworn witness telling the court what it does not understand in the language the court understands.
It would be a misuse of the English language for anybody to call a significant number of our current interpreters "a species of an expert witness" because their English is way below what is expected from an interpreter.
What Evans J deplored in J Motloheloa v Rex 1967 -70 LLR 300 at page 301 was the public prosecutor not only conducting the case on behalf of the crown but also acting as interpreter. A magistrate who is a Mosotho whose mother tongue is Sesotho needs no "species of expert" to tell him what a Sesotho speaking person is saying.
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In this country Sesotho and English are official languages. As I have already stated at present all High Court judges and all magistrates except one ex patriate magistrate have Sesotho as their first language. It is only the Court of Appeal that is virtually entirely staffed by judges who are not Basotho and who have to rely on interpreters. To these must be added legal practitioners who also do not have Sesotho as their first language or mother tongue. For these interpreters have to be used. Records of cases that go to the Court of Appeal have to be translated. Otherwise it is a waste of time and resources for evidence to be translated into English. When judges know Sesotho and it is their tongue Sesotho.
The further remarks of Ramodibedi AJ (as he then was) in R v T. Mafeka make sense for the Republic of South Africa where I observed (at a conference I attended in 12th November 2002) that 80% of the senior magistrates do not speak Sesotho, Zulu or Xhosa and other indigenous African Languages. In that country interpretation into English or Afrikaans which the majority of magistrates understand in unavoidable.
In the case of Thamae Lenka v Rex C of A (CRI) No2 of 2004 (unreported) the Court of Appeal followed the case of R v T. Mafeka 1991 - 1996 1199 without fully examining the facts. It was not even aware that many magistrates were sworn interpreters before they were elevated to the magistrate court bench after improving their qualifications in law. Consequently such magistrates were sworn interpreters because interpreters are not sworn on all ad hoc basis. They are sworn once and for all. Plewman JA was not even aware that Sesotho is the first official language of Lesotho in terms of Section 3 (1) of the Constitution, Plewman JA then
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continued on pages 2 and 3 his judgment in Thamae Lenka v Rex and said; "It is absolutely mandatory that sworn interpreters be used in such circumstances such as arose in this case whatever the practical difficulties there may be."
As I said since the presiding magistrate, the accused, the clerk of court and the almost all counsel are Basotho whose first language and mother tongue is Sesotho, there is no need to use interpreters from Sesotho into English. Interpreters should be used if the magistrate, counsel and a witness do not have Sesotho as his first language and mother tongue. It is time that the preparatory examinations be in the Sesotho language and proceedings be in the Sesotho language unless there are impediments. What is happening at the moment is to use English as a ritual despite the fact that most of the interpreters interpret so badly that they would prejudice the parties if the judges, magistrates and legal practitioners,did not correct them.
What makes the situation in the Thamae Lenka case a bit perplexing is that even counsel was a mosotho. The question arises - why were proceedings not recorded in Sesotho? The rule that proceedings in the magistrate court be in English is now obsolete in the light of the demographic changes in the personnel of the courts in Lesotho. Only the Court of Appeal is manned by expatriates whose mother tongue is probably English.
It seems to me that Section 2 of the Constitution provides.
"This constitution is the supreme law of Lesotho and if any other law is inconsistent with the constitution, that law shall to the extent of that inconsistency be void."
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This Section 2 must be read with Section 3 (I) of the Constitution that provides that "
the official languages of Lesotho shall be Sesotho and English and, accordingly no instrument or transaction shall be invalid only by reason that it is expressed or conducted in one of those languages." It seems to me therefore a preparatory examination or any trial proceedings conducted in Sesotho cannot be invalid. This to me is the way forward after the Thamae Lenka decision of the Court of Appeal. Recording everything in Sesotho where all those present in court from the magistrate, the accused, counsel and the general public cannot be criticized on the grounds that "there was no procedure followed by which any one present in court could know or was informed as to precisely what was being recorded" as Plewman JA said in the Thamae Lenka case.
Had Plewman JA been aware that Sesotho was an official language in terms of the Constitution, (a fact he does not spell out in his judgment) it is doubtful whether he would have distinguished it from the case of R v Robertson 1958 (1) SA 678. In Robertson 's case evidence had been given in Afrikaans but recorded in English, Brink JA noted that there was a specific rule that evidence be recorded in either of the official languages namely Afrikaans or English.
In that case it had been "given in Afrikaans but was recorded in English. There was no evidence as to how this had occurred." The Court of Appeal refused to interfere and saw no prejudice to the accused and dismissed the appeal. In Thamae Lenka's case there is an assumption that the magistrate was not a sworn interpreter. The fact that all parties including counsels were Sesotho speaking was ignored. There is no need to carry the debate
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further since the constitution clearly says " no instrument or transaction shall be invalidated by reason that it is expressed or conducted in one of those languages."
In the magistrate courts such as the Lesotho ones where there are no tape or electronic recorders, or short hand recorder - the magistrate is the recorder. The magistrate does not record evidence verbatim. He or she records proceedings and evidence in long hand what he has understood them to be. The record that a magistrate renders is definitely not a complete record -word for word. It is rather an abridged record of evidence and events in court that is expected to accurately include and reflect everything that transpired in court. It seems to me therefore that what the magistrate records with or without an interpreter is an honest rendition of the evidence as he understood it. It is not a word for word record of what the interpreter said even where there is an interpreter. It is therefore for Lesotho wrong to put too much emphasis on what an interpreter (whose English is very often much poorer than that of the Magistrate) said. The magistrate more often then not records what he understood the witness to say on account of the relatively lower English education that the interpreter received and the frequent misinterpretations.
The conclusion I came to was that to avoid these artificial problems. Where everybody in court speak the language of Lesotho there is no need to conduct proceedings in English which is a foreign language. In the past English had to be used because, Judges of the High Court, magistrates, clerk of the courts and registrars were entirely English speaking. Only the witnesses and the general public were Sesotho speaking. Over the last 130
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years the position has radically changed. The High Court bench is entirely Sesotho speaking. Only the Court of Appeal remains English Speaking. As I have already said records of proceedings could be translated if the matter goes on appeal.
Consequently it has become feasibly necessary and practical for proceedings to be conducted in the language 99 % of the people who are indigenous Basotho understand. I there fore directed evidence to be given and recorded in Sesotho uninterpreted. I further directed that proceedings be conducted in Sesotho except where that was not possible. English and Latin remain of course the languages used in learning and scholarship which the court expects.
W.C.M' MAQUTU
JUDGE OF THE HIGH COURT
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