HIGH COURT OF LESOTHO
THE ISSUE OF USE OF SESOTHO IN HIGH COURT PROCEEDINGS
ruling was made on the 22nd November 2004 and I promised to furnish
language issue for Lesotho should not be a problem. The country is
Lesotho which means the land of the Basotho. The English
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
it is expressed or conducted in one of those languages.”
remains a fact that ninety per cent of the people are no fluent in
English although they have learned the language at differing
at school. English is not their first language or mother tongue.
Nevertheless English remains the sole medium of instruction
secondary and university level. English is in fact the language of
government in which government business is transacted.
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.
21st century all judges of the High Court and ninety five percent of
legal practitioners are Basotho whose first language
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.
of English of judicial officers is far higher than that of
interpreters. Consequently legal practitioners, Magistrates
judges have to correct interpreters time and again. Almost all
interpreters do not have university education. Government has
to employ adequately qualified interpreters. It is time to make an
adjustment on the language issue, because many of the
are bad. It is torture to judges and Magistrates to listen
interpretation and be the erotically bound by it when they have
already heard the correct thing.
Judicial Commissioner's court which is a senior magistrate court for
hearing appeals from the Basotho customary courts isalready
conducted in Sesotho. Records are translated into English if a legal
practitioner that has been employed is English speaking.
only translated into English if cases are going on appeal in the
belief that judges of the High Court do not know Sesotho.
occasion the issue of the use of Sesotho in Court proceedings arose
in the above matter in unexpected circumstances. The
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.
been a shortage of qualified interpreters in Lesotho for many years.
The majority of the existing interpreters are very
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.
case the issue of the use of Sesotho in court proceedings came when
the preparatory examination record was querried because
speaking Magistrate had acted as an interpreter, recorder and
Magistrate. To avoid problems after hearing both counsels
I made the
"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
translate from English to Sesotho and vice versa whenever a witness
in this case or counsel is English speaking. Sesotho is
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."
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.
accused first appeared before me on 3rd August 2004. There was no
return of service showing that Crown witnesses had been served
subpoenas. The case had therefore to be postponed. Among the orders
this court made was that the record of the Preparatory
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.
the accused pleaded Mr Mosito for the accused applied that the case
proceed as a summary trial because the preparatory Examination
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
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.
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
"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."
interpreters are not sworn in every day. They are sworn in when they
are appointed court interpreters. Thereafter they continue
interpreters until they retire. Many magistrates were court
interpreters who were elevated to the bench of the magistrate
Consequently it was wrong to assume that the particular magistrate in
R v Mafeka was not a sworn interpreter without hearing
that effect. This is particularly so because court interpreters are
elevated to the magistracy while still in the staff
of the magistrate
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
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.
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
expert" to tell him what a Sesotho speaking person is saying.
country Sesotho and English are official languages. As I have already
stated at present all High Court judges and all magistrates
one ex patriate magistrate have Sesotho as their first language. It
is only the Court of Appeal that is virtually entirely
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.
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
conference I attended in 12th November 2002) that 80% of the senior
magistrates do not speak Sesotho, Zulu or Xhosa and other
African Languages. In that country interpretation into English or
Afrikaans which the majority of magistrates understand
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 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
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
tongue is Sesotho, there is no need to use interpreters from Sesotho
into English. Interpreters should be used if the
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.
makes the situation in the Thamae Lenka case a bit perplexing is that
even counsel was a mosotho. The question arises - why
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
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
the extent of that inconsistency be void."
This Section 2 must be read with Section 3 (I) of the Constitution
that provides that "
official languages of Lesotho shall be Sesotho and English and,
accordingly no instrument or transaction shall be invalid only
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.
Plewman JA been aware that Sesotho was an official language in terms
of the Constitution, (a fact he does not spell out in his
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.
case it had been "given in Afrikaans but was recorded in
English. There was no evidence as to how this had occurred."
Court of Appeal refused to interfere and saw no prejudice to the
accused and dismissed the appeal. In Thamae Lenka's case there
assumption that the magistrate was not a sworn interpreter. The fact
that all parties including counsels were Sesotho speaking
ignored. There is no need to carry the debate
since the constitution clearly says " no instrument or
transaction shall be invalidated by reason that it is expressed
conducted in one of those languages."
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.
conclusion I came to was that to avoid these artificial problems.
Where everybody in court speak the language of Lesotho there
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
position has radically changed. The High Court bench is entirely
Sesotho speaking. Only the Court of Appeal remains English
As I have already said records of proceedings could be translated if
the matter goes on appeal.
it has become feasibly necessary and practical for proceedings to be
conducted in the language 99 % of the people who
Basotho understand. I there fore directed evidence to be given and
recorded in Sesotho uninterpreted. I further
proceedings be conducted in Sesotho except where that was not
possible. English and Latin remain of course the languages
learning and scholarship which the court expects.
THE HIGH COURT
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