HIGH COURT OF LESOTHO
MAKULA 1st APPLICANT
MOEKO 2nd APPLICANT
by The Honourable Mr. Justice W.C.M. Maqutu on the 23rd April, 2004.
this matter applicants who are policemen have been convicted and
sentenced to ten years imprisonment for culpable homicide
magistrate of Maseru.
The victim was a rape suspect Jacob Mabone who died in police custody
on the 1st March 1991.
applied for an order in the following terms:
and setting aside the conviction and sentence of the applicants in
and/or alternative relief. accused pleaded not guilty. The accused
were convicted and sentenced on the 21st January
instituted the review proceedings before me. Although review
proceedings have no time limit, delays of this nature are
ideal manner of ventilating grievances in any judicial proceedings.
the matter first came before me on the 16th February 2004, it had to
be postponed to the 1st March 2004. The matter was again
on the 29th March 2004. On that day, I was informed that the Crown
no more opposed the setting aside of the conviction
Miss. Motinyane appeared for the Crown while Mr. Hoeane appeared for
was not satisfied with this change, because I was of the view that I
could only set aside a conviction and sentence on weighty
All Miss. Motinyane could say for the Crown was that she had been
told not to oppose this application. I consequently
parties to come and address me on the merits on the 2nd April 2004
-and to submit written heads of argument.
the 2nd April 2004, I asked the Crown to begin - and to say why they
no more support the conviction and sentence. Mr. Mojaje
Crown argued and made the following points.
court had called committed a gross irregularity by allowing the
prosecution to call Pw 7 Trooper Selepe Selele after the Crown
closed its case and both the prosecution
defence had closed their cases and addressed the court.
(ii) The accused were not represented consequently the magistrate
should have helped the accused put their defence rather than
prejudice them as he did.
(iii) The accused were not given an opportunity to make a plea in
mitigation of sentence. The court sentenced them to ten years
imprisonment. After sentencing them the court then allowed them to
make a plea in mitigation and then sentenced them the second
ten years imprisonment. There was in Mr. Mojaje's view great
prejudice because in the circumstances of the case, the plea
mitigation became nonsensical.
Mr. Hoeane for applicant made the following points:
(i) He reiterated the Crown's point about the irregularity of
calling Pw 7 just before judgment. Both parties had closed their
cases and had addressed the court on the merits of the case. They
were not even given an opportunity to be heard further after Pw 7 had
(ii) While emphasizing the duties of a Magistrate to the accused who
are not represented Mr. Hoeane emphasized that the Magistrate
have explained to the accused that they have a right to be
represented as their case is a
serious one. Mr. Hoeane referred me to three cases to which I shall
return. These are:
Pulumo V Rex CRI/A/28 (unreported)
P. Khutlisi VRex 1993 - 94 LLR & LB 18
S. Motsoene V Rex 1999 LLR 331
(iii) Mr. Hoeane also noted that the Magistrate had failed to
recognize what was hearsay when he relied in his judgment on what
Ntapa said to accused about accused 1 and 2. Mr. Hoeane added that
the Magistrate's even failed to recognize that it is not clear
Accused 3 heard about the struggle in the shack and what he heard
delay had not been excessive
worried me that the delay in applying for review might have been
excessive. In turning this in my mind I was mindful of the
discretionary powers this court has. Even so any discretion this
court has must be exercise judicially. Consequently the
words of De Villiers J P in Kader v Assistant Magistrate Cape Town &
Another 1954 (3) SA 648 at 656 to 657 came
"Although there is no fixed time limit, review proceedings must,
having regard to circumstances of each particular case, be
within a reasonable time. If a delay, unreasonable in point of the
time ensures before the initiation of such proceedings,
incumbent upon applicant to provide a satisfactory explanation."
this case applicants seem not to have been aware that some
explanation for the nine months delay in bringing this application
was called for. "Unreasonable delay" has no definition -
each case depends on its own circumstances. Nevertheless the
of the application and the legitimacy of an applicant's grievance
are a factor to be considered in determining whether
or not the
court after a delay will exercise its powers of review to review a
this ought to be an appeal or review
review procedure can be open to abuse by litigants. Ordinarily when
the accused is not satisfied with the way a subordinate
dealt with facts and law, the accused should appeal. There is a time
limit within which to appeal. It is wrong to use
procedure as a method of bringing before a superior court matters
that should have been the subject of an appeal but
which are time
appeal is brought as of right, while an application for a review is
a application for a superior court to exercise at its discretion
power to revise the proceedings of an inferior court, and if
necessary to set them aside or correct them because of
and illegalities that have led to a failure of
justice. In other words a person is free to appeal, he does not ask
for the indulgence
of the superior court.
practice once the superior court is seized with an appeal as Innez
CJ said in R v Keeves 1926 AD 410 at page 412:
"The appeal, in a wider sense may well include such review
(under Rule 190 [Cape], though the difference between the two forms
of procedure is in other respects important and well marked."
review applications (since a case has to be made for the court to
exercise its powers of review) it is not unusual to exaggerate
is being complained against. An irregularity will be called gross
even if it might be a minor irregularity. Consequently
in Vawda v
Rasool 1947 (1) SA 724 at 727 Broome J said of this tendency: "This
strikes me as more a forensic exaggeration
than a misstatement of
fact." Consequently Broome J insisted that the matter in
question should be ventilated in an appeal
rather than a review. He
consequently directed the applicant to appeal out of time and
dismissed the application for a review.
specifically asked Mr. Hoeane for applicant's whether in the light
of the irregularities that are common cause, there has been
mistrial. Mr. Hoeane said that is not what the accused are saying -
because such a finding about their trial would result in
a new trial
in terms of Section 8 (!) (a) of the High Court Act 1978 which
logically applies to both appeal and reviews. As Holmes
of such cases that they are "exceptional cases where the
irregularity is per se of such a nature and degree
as de jure to
vitiate the whole trial. - S v Tuge 1966 (4) SA 565 at 568 FG.
Hoeane said the order that the applicants are seeking is that in
terms of Section 7 of the High Court Act 1978 this court
reviewing this case set aside or correct whatever it is persuaded
wrongly by the magistrate, without necessarily going as far as
ordering a new trial.
difference between an appeal and a review (in practice) sometimes is
not clear. The easiest formulation is that in an appeal
attacked is the result while in a review the applicant attacks the
method. See Jones and Buckle. The Civil Practice
of the Magistrate
Courts in South Africa 7th Edition Volume I at pages 324 and 325. In
an appeal the aggrieved party is limited
to the record of
proceedings - while in a review facts that are not in the record
might sometimes be brought to the attention
of a superior court by
way of affidavit.
XI of the Subordinate Court Order of 1988 gives the High Court
extensive review and revisionary powers over the proceedings
magistrate courts. Consequently in the pursuit of justice the
distinction between a review cannot be refined. Therefore
in Johannesburg Consolidated Investments Co. v Johannesburg Town
Council TS 111 at page 114 said:
"If we examine the scope of this word as it occurs in our
Statutes and has been interpreted by our practice, ... In its first
and most usual signification it denotes the process by which apart
from appeal, the proceedings of inferior courts of justice,
civil and criminal are brought before this court in respect of grave
irregularities or illegalities occurring during the course
these remedies of review and appeal overlap a great deal. A superior
court will not turn a blind eye to a manifest injustice
the form in which the grievance was brought. As Herbstein & Van
Winsen The Civil Practice of the Superior Courts
of South Africa 4
Edition at page 931 have put it, the basis of interference by the
Supreme Court is not its inherent jurisdiction
but the "allegation
of injustice or irregularity."
errors in law might lead to an erroneous method of trial and a
person who seeks a review often wants a change in the result
trial, the distinction between review and appeal sometimes becomes
blurred by overlappings. I will endeavour to correct what
corrected and set aside what should be set-aside. Where there are
this case I am mindful that in, an appeal Section 8 (2) of the High
Court Act 1978 provides:
"... Notwithstanding that a point raised might be decided in
favour of the accused no conviction or sentence shall be set
altered by reason of any irregularity or defect in proceedings,
unless it appears to the High Court that a failure of
This as I
have already stated applies to a review as well.
v Majola 1971 (3) SA 804 Henning J at 807 A, noted on review that
the accused had not been properly tried where "the
called a witness after the close of the defence case without
affording the accused an opportunity of leading rebutting
In the case
the record does not show where the magistrate gave the unrepresented
accused an opportunity to lead rebutting evidence.
is clear nevertheless that no trial is ever run perfectly. As Davis
AJA said in Rex v Dhlumanyo 1948 (2) SA 677 at page 706
a superior court "should not seek anxiously to discover reasons
adverse to the conclusions of the trial judge.
No judgment is ever
perfect and all embracing" with these preliminary observation I
shall now review these proceedings.
of Pw 7 Trooper Selepe by Court.
I think the evidence of Pw 7, which was irregularly and
unprocedurally admitted, should be entirely ignored. The reason as
stated being that the unpresented accused was not given an
opportunity to rebut it. See S v Majola (Supra) referred to above.
the outset I have to comment on the very illegible writing of the
magistrate who took the record long hand. There are many
such as not adding the word NOT when the witness answers in the
negative. Yet this fact emerges from subsequent cross-examination.
Even so, this did not present an insurmountable in understanding
what happened. It was only in the judgment that I discovered
7 was in fact a court witness. The record was not clear on this
page 30 of the hand written record there is a very important entry
in the record which both Mr. Hoeane for the applicant and
for the Crown did not notice. The trial Magistrate after he had been
by both the prosecution and the three accused in the case -wrote the
to 31.12.02 Delivery of judgment" Thereafter the Magistrate
signed his name and the date 23.12.02
the 31st December 2002, Pw 7 Trooper Selepe Selele was called by the
court when the court was supposed to deliver judgment.
It does not
mean the court may not reopen proceedings and call a witness -giving
all sides full rights of cross-examination -
bringing evidence in
rebuttal and addressing it afresh. This power should be exercised
sparingly - because of the potential prejudice
that might result.
Trooper Selepe showed that he and Accused 3 had arrested the
deceased from deceased's home. The applicants who were Accused
2 only joined them at Ntapa Leboela's shop. He saw first applicant
kicking deceased repeatedly. Pw 7 Trooper Selele went
out for 30
minutes leaving deceased with Accused 3 and the two applicants. When
he came back he found the second applicant also
Accused 3 had been with the two applicants all that time watching
the applicants assault the deceased.
3 had told the court when he gave evidence that it was him that left
the applicants and Pw 7 Trooper Selepe with the deceased.
Accused 3 returned he found Pw 7 watching deceased being assaulted.
Consequently it should have been clear for the Magistrate
that Pw 7
was at best an accomplice witness.
magistrate had reached the conclusion that the accused had not been
properly identified by the witnesses although Accused
1 was known to
Pwl and Pw 1 had seen him assault the deceased. That was the reason
he called Pw 7 out of the blue.
were other reasons that the Magistrate reached this conclusion. Pw 1
had said all three accused (two of whom are applicants)
with the deceased to Ntapa Leboela's cafe where she worked. Pw 2 the
mother of deceased claimed Accused 1 (first applicant)
the deceased when all evidence showed he was not there. Pw 3 had
said he as the Chiefs messenger had handed the
deceased to accused 2
and Accused 3 (both of whom were in uniform) without injuries. The
Magistrate noted Accused 2 (second applicant)
could have been there
or in uniform as he was off duty.
is significant about Pw 7 and the Magistrate's approach to the
evidence are the following remarks in the Magistrate's judgment:
"Pw 7 Selepe Selele has been a star witness that clarified
questions of identity raised by Pw 1 Elizabeth Khoase and Pw 2
Maseeiso Mabone who were too frightened and could not identify the
accused clearly. Perusal of the four corners of the record reveals
clear case of murder and the accused are lucky not to have been
charged with culpable homicide."
If we go by the evidence of Pw 7 it is Accused 3 who strangled the
deceased on the way because the deceased did not move.
course is not consistent with the medical evidence. At that time Pw
7 and Accused 3 agree that the two applicants were
magistrate did not treat the evidence of Pw 7 and Accused 3 who were
clearly accomplices in the case against the applicants
The magistrate did not disclose an awareness that they were
accomplices. Hoffmann and Zeffert - The South African
Evidence 4th Edition at page 382 say "In all cases, however,
the co-accused will ordinarily be an accomplice, and
rules for accomplice will apply."
A J (as he then was) in the case of Rex v Ntsane Lerotholi and
Others 1985 - 90 LLR 121 at page 129 said this of accomplices:
"The trial court must always bear in mind that an accomplice is
not merely an witness with a possible motive to tell lies
innocent accused, but is such a witness - peculiarly equipped, by
reason of his inside knowledge of the commission of
the crime, to
convince the unwary that his lies are the truth."
cautionary rule should not just be paid formal lip service to - by
making a pronouncement that it is adhered to. There has
to be clear
evidence and indications - in the judgment that the magistrate in
his treatment of evidence adopted a cautious approach
evidence of Accused 3 and Pw 7 who are in respect of applicants
this case towards the applicants the method of trial was wrong in
not following set procedures. The magistrate was introducing
evidence at will - contrary to procedures. Failing to give
accomplice Pw 7 the statutory warning, caused Pw 7 not to give
free of the fear of telling the whole truth for fear of
prosecution should he implicate himself. When Pw 7 was called, there
was already evidence
that showed Pw 7 had a common purpose in the assaults that led to the
death of the deceased, because according to Accused
3, Pw 7 was in
the company of the applicants when they assaulted deceased.
magistrate functus officio on sentence
before the applicants and Accused 3 were heard after conviction the
"Court has considered the accused's plea in mitigation. It has
also put into consideration that crime of this nature is important
Lesotho and as such a robust sentence is called for. Hence 10 years
imprisonment each. Signature 21.01.03."
was definitely incorrect that the magistrate had heard the accused's
plea in mitigation when he imposed the first ten years
The record of proceedings is not complete on how this sentence of
ten years came to be disregarded and a second ten
substituted after hearing whether the accused has previous
convictions or not. The record should reflect everything
happened in court. In any event, once the sentence of 10 years
imprisonment had been imposed on the accused the magistrate
functus officio, he could not reverse what he had done.
Rex v Mollison 1947 (4) SA 145 Henochsberg AJ put what I am saying
"Once a magistrate has convicted an accused and sentenced him he
is functus officio in that case and he ought not to amend
a record thereafter. The magistrate's amplification of the record is
magistrate should not gloss over mistakes he might make during the
trial when he discovers them. If he attempts to remedy them
show in the record of proceedings.
was definitely not correct not to hear the accused in rebuttal of Pw
7 and subsequently in mitigation. It was probably only
first sentence that the prosecutor drew the court's attention to the
fact that the applicants were first offenders.
If that was so, the
magistrate should have recorded this fact. Accused 3 had a previous
conviction and was at the time of this
conviction in prison serving
a sentence a culpable homicide, which he had committed in 1993 but
had been brought to trial in
was only then that the plea in mitigation of sentence was belatedly
heard. Accused 3 said he had nothing to say. The magistrate
the words he had written before he heard the accused. This mistake
on the part of the magistrate compounds the errors
proceedings, because the record shows he ignored the subsequent
facts that the accused offered in mitigation of sentence.
before Pw 7 was called culpable homicide had been proved.
is evidence of Accused number 1 (now first applicant) that he and
second applicant (Accused number 2) did in fact get to
Leboela's shop where they found Accused number 3 and Trooper Selele
with a rape suspect under arrest. He does not say much
he left for Marakabei police post immediately thereafter. The
following day he heard that the rape suspect had died.
He was not
cross-examined by the prosecution.
2 (the second applicant) in his evidence said he did not get to
Ntapa Leboela's shop, he was only told by Accused 1 (first
applicant) that Accused 3 and Trooper Selepe were at Ntapa Leboela's
shop with a rape suspect they had arrested. Even Accused
applicant) was not cross-examined.
3 while distancing himself from the assault on the deceased
implicated the two applicants in the assault on the deceased.
Applicants cross-examined Accused 3 at length to establish their
innocence. It was then that the prosecution belatedly cross-examined
the applicants. This was no doubt irregular.
1 (first applicant) and Accused 3 should be treated as accomplices
in so far as they both put Accused 2 at Ntapa Leboela's
deceased was assaulted. They have both a motive to implicate Accused
2 and exonerate themselves of the crime charged.
Nevertheless I find
that first applicant did not implicate the second
in the crime charged, but in fact exonerated himself and second
first applicant corroborates the evidence of Pw 1 that second
applicant was there at Ntapa Leboela's shop. Pw 1 says she saw
second applicant and Accused 3 doing nothing when first applicant
was assaulting deceased. That shows they had common purpose
assault. Accused 3 said in his evidence second applicant assaulted
the deceased. It seems to me that Accused 3 unreliable
as he is
corroborates Pw 1 that second applicant had a part in the assault
-either by actually assaulting deceased or by allowing
applicant to assault deceased on second applicant's behalf. This
implicates second applicant on grounds of common purpose.
clear that second applicant was not a truthful witness. A reasonable
court could safely convict him.
is clear beyond doubt is that first applicant is implicated in the
assault by Pw 1 an independent witness who is corroborated
Accused 3 whose evidence has to be treated with caution like that of
an accomplice - because of his shifting of blame from
himself to the
other accused. It is clear to me that the trial court was correct to
convict the two applicants on this evidence
that was correctly and
regularly before it.
who knew Accused 1 (first applicant) shows he was at Ntapa Leboela's
shop. First applicant while exonerating second applicant
assault shows they were together at Ntapa Leboela's shop. Accused 3
an accomplice in respect of the two applicants corroborates
applicant that both second applicant and first applicant were at
Ntapa Leboela's. While cautious of Accused 3's largely untrustworthy
evidence because of he blames the two applicants alone of the assault
- there is no doubt that all accused were at Ntapa Leboela
were with deceased for a short time.
issue is - what fractured the deceased's skull and thereby cause his
death. The applicants and the third accused were not
say. Even where Accused 3 said the applicants assaulted deceased
-the assault was described as being of a relatively
when Accused 3 was there. Clearly the truth was being hidden. When
first applicant asked accused the question "who
said I was
hitting deceased with a commando?" Accused 3 replied: "It
was said to be hearsay evidence."
seems to me all the accused (who include the two applicants) and Pw
7 Trooper Selele (whose evidence will not be considered
applicants) - the accused, are also accessories after the fact. In
Rex v Didat 1913 AD 299 at page 304 Innes ACJ
relying on Stephen
"And an accessory after the fact is defined by the same writer
in his Digest of Criminal Law (Art. 46) as one who, knowing
felony has been committed by another, receives, comforts or assists
him in order to escape from punishment."
says the three policemen were just watching at the time first
applicant was assaulting deceased. This fact is corroborated
Accused 3 who dishonestly tried to exclude himself - but in cross-
was forced to concede that he was present and should have done
something. These facts show that all policemen that were
common purpose even if they might not have all personally assaulted
deceased. Consequently they are guilty of culpable
regardless of who delivered the fatal blow. In the circumstances -
because of the accused collusive false behaviour in
truth, the courts task ascertaining the truth is partially aided by
of the view that the evidence of Pw 7 should be disregarded as it
was irregularly brought. In bringing in that manner at
the magistrate erred. He also did not even bring it within
acceptable accomplice evidence procedure - by promising
immunity if he told the truth. It was evidence that lacked the
inducement for Pw 7 to speak the truth. Consequently Pw 7
himself and blames the others exclusively.
conduct of the case
The way this case was conducted leaves a lot to be desired.
Procedure was ignored, the rights of the accused violated.
that could be expected of a judicial officer was
forgotten. Nevertheless I have already said, I am not prepared to
there had been so gross a departure from established
rules of procedure that the accused had not been properly tried"
vide S v Naidoo 1962 (4) SA 348 at 353 EF. The magistrate
furthermore does not appear to have given the accused the assistance
which is expected where the accused are not represented.
v Chigadzi 1974 (1) SA 167 Beadli C J emphasized the need for
magistrates to guide the unrepresented accused as to how they
present their evidence.
that case of S v Chigadzi the accused had called his witnesses
before he could go into the witness box. Consequently the accused
had heard their evidence and after hearing it, he went into the
witness box to give evidence. This had diluted and weakened the
corroborative value of evidence of accused witnesses.
v Mavundla 1976 (4) SA 731 the court emphasized the need to guide
the accused as to the procedure in court, so that they
understand what they admit or do in court and the effect of it.
Consequently a conviction of culpable homicide was reduced
v Mdodana 1978 (4) SA 46 the prosecution had not made a prima facie
case against the unrepresented accused. The Magistrate
advise the unrepresented accused that he had a right to apply for a
discharge, and if his application was refused, close
his case. The
court on review said the magistrate had not done his duty of guiding
the unrepresented accused as the magistrate
was expected to do.
In S v D 1967 (2) SA 537 at 538 AB James J said: "In cases in
which the accused is undefended, the accused rights should
carefully explained to her and she should understand fully well that
she is under no obligation whatsoever to assist
the State in
establishing the case against her, the precise admission she is
prepared to make should recorded."
and to what extent the Magistrate should guide an unrepresented
accused in presenting his case, depends on what a particular
situation during the trial requires. No hard and fast statement
covering all exigencies of the case can be made. All that is
required of a magistrate is to keep the scales of justice evenly
balanced to enable the accused to know what he is doing and
expected of him so as the accused's trial can be fair.
J (as he then was) in Senate Motsoene v Rex 1999 - 2001 LLR 331 at
page 335 in emphasizing the guidance that unrepresented
should have said:
"That being the case it follows that a trial judicial officer is
in my judgment obliged to explain to an unrepresented accused
the purpose of cross-examination in the interests of fair trial and
justice as contemplated by Section 12 (!) (2) (d) of
this duty to guide the accused and help them present their defence
that the magistrate neglected.
the accused to be legally represented
have gone at length on what guidance the accused should get from the
court because in Lesotho not all accused can afford to
represented. Courts should advise them to seek legal representation
in serious cases. But the right to be legally
depends on the accused financial means. It is not a right that the
State can afford to pay for.
thought Mr. Hoeane was overstating what Ramodibedi J (as he then
was) said in Senate Motsoene supra) at 334 to 335. He only
accused person should be guided and advised of his right to get
legal representation. Where he does not have one, the
accused is to
be helped to understand the procedures and effects of court
procedures. The Constitution of Lesotho Section 12
(d) merely says
"Every person shall be permitted to defend himself in court in
person or by legal representative of his
own choice." It does
not give any person a right to have legal representation it only
says a legal representative of the
accused's choice should be
allowed to defend the accused. If Constitution so provided the State
would be obliged to pay for legal
representation in all criminal
proceedings - something it does not invariably have to do.
mindful of the State's attempt in 1978 to have as many needy people
as possible to have legal aid when tried of serious crimes.
Legal Aid Act 1978 in which Resident Magistrates could certify to
the Chief Legal Aid Counsel that certain poor people
legal aid and their cases are serious enough to merit such aid. This
Act was followed by the Legal Aid Regulations
1979. Although legal
aid still exists, it has had such financial constraints that legal
aid cannot be extensively given.
the case of Phomolo Khutlisi v Rex 1993 - 1994 LLR & legal
Bulletin 18 an argument was addressed to the Court of Appeal
charged with a serious crime had a right to legal representation. At
page 21 of Phomolo Khutlisi v Rex Ackermann JA in dealing
submission - made the following observation:
"I need hardly add that the question as to when, or under what
circumstances, an impecunious accused is entitled to legal
be answered differently in different countries. The duty to provide
free legal representation in a wider range of cases
may, for a
variety of reasons be greater in the United States of America than in
the Republic of South Africa - and greater in
the latter than in the
Kingdom of Lesotho."
right to legal representation falls under Section 26 of the
Constitution, which is under Chapter HI of the Constitution
-PRINCIPLES OF STATE POLICY. In terms of Section 25 principles such
as those of equality of justice to the disadvantaged -are not
enforceable by the courts. But subject to Lesotho's "economic
capacity and development of Lesotho" the authorities
by legislation or otherwise shall progressively strive for their
not agree with what Mr. Hoeane said to the effect that the
magistrate erred by not telling the accused of their right to
representation. The three accused were policemen. They knew how
serious the charge against them was. I would add that failing
warn the accused of the need for legal representation is not a gross
irregularity - although it will attract legitimate criticism.
falls under those irregularities that may not always lead to a
failure of justice vide Section 8 (2) of the High Court Act
the case came before court, it had been in abeyance for over ten
years. Applicants had been charged five years before. I
have not the
slightest hesitation in concluding that they knew they should be
legally represented. They did not ask for an opportunity
to go and
get the services of lawyer. They must have had a good reason not to
get one. I can only surmise that they had no money.
case of Pulumo v Rex CRI/A/27/88 (unreported) and Khutlisi v Rex
1993 - 94 LLR Legal Bulletin 18 should not be read out of
All that was required by these cases is that the accused be asked if
they are legally represented and be advised to
find a lawyer if they
can afford. Failure to advise the accused is not per se an
irregularity every case depends on its particular
facts. As I have
said the finding of a legal practitioner to represent them will be
conditioned by whether they can afford to
is not necessary to go beyond what accused counsel seeks on behalf
of the accused. Consequently since the accused are satisfied
they had a proper trial, I can only say I almost considered whether
there had been a mistrial and order a new trial because
of the many
irregularities. Counsel for the accused firmly and clearly stopped
me from taking that route.
the evidence before me I am satisfied that despite the
irregularities the accused were properly convicted of culpable
I have in
this conclusion entirely treated the evidence of Pw 7 as if it was
the issue of sentence I take the view that the method adopted by the
Magistrate is wrong. He came with a written sentence in
decided without hearing the accused that they should all be
sentenced to ten (10) years imprisonment. It did not help
that the magistrate had already written that he had heard the plea
in mitigation from the accused - when the record and
subsequently happened shows clearly that this was not so.
therefore obliged to set this sentence aside and impose an
appropriate one. The applicants were first offenders and for some
unknown sadistic reason decided to participate in the torture and
assault the deceased unnecessarily. Unfortunately for the applicants
the deceased died. The magistrate on no evidence at all convinced
himself that the applicant's should have been charged with
evidence on record shows that it is the Accused 3 who was in charge
and who with Trooper Selepe left a fatally injured arrested
in the village with the Chief and went to Marakabei police post. I
will not go into the evidence of strangulation - which
supported by medical evidence which the court witness Pw 7 gave
against Accused 3 whose matter is not before me. All that,
from the "star" court witnesses that the magistrate
irregularly and without legal caution allowed to affect his
judgment. Unfortunately for the applicants they were prejudiced by
remains for me to criticize the police for wishing the deceased's
death away and failing to charge all the accused of the crime
committed in 1991. They only charged the applicants for this crime
in 1996. The case was eventually heard in September 2002.
court should not make the applicants a sacrifice (scapegoat) for the
failures of the police and the judicial system.
ought not to have beclouded judgment in the case of applicants.
confirmed the convictions of the two applicants and quashed the
sentences against them. It remains for me to impose an appropriate
applicants (formerly Accused 1 and 2) are each of them sentenced to
three (3) years imprisonment with effect from the 21st
The Magistrate - Maseru
Director of Public Prosecutions
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