HIGH COURT OF LESOTHO
LITSOANE - Applicant
DIRECTOR OF PROSECUTIONS - 1st Respondent
BUTHA-BUTHE - 2nd Respondent
Mr Justice W.C.M. Maqutu on the 20th May 2005
Sexual Offences Act 2003 - Serious Offences - Principles of State
Policy under the section 25 of Constitution read with
Legal Aid Act
1978 -Right to be certified of the poor to be entitled to legal aid
when charged with serious offences under Sexual
Offences Act 2003 -
duty of magistrate towards undefended accused.
magistrate acting as his own interpreter - whether proper to record
evidence given in Sesotho in English without viva voce
even where magistrate is a sworn interpreter — conducting
proceedings in Sesotho where accused, counsel, prosecutor,
and court official are Sesotho speaking - section 3 (!) of the
Constitution - use of Sesotho English.
review applications — citing a magistrate by name not by his
official title - whether proper.
changed the manner second respondent is cited, because it was wrong
to personalize this application. The correct manner of
respondent is to cite him as a district magistrate not personally be
2nd May 2005, came before me Mr Khauoe for applicant and Miss Makeka
for the Director of Public Prosecution. This is an application
review and an order setting aside the order of the Magistrate
convicting and sentencing applicant (the accused) to 8 years
imprisonment. This application was unopposed. Nevertheless I directed
that I should be addressed on the merits.
hearing both parties I made the following order.
proceeding in this matter be quashed and the case start de novo as
it was a mistrial.
Crown Counsel Miss Makeka and Mr Khauoe for the accused are willing
and prepared to go and handle this matter, the Chief Magistrate
Leribe with the Co-operation of the Chief Magistrate Maseru should
appoint or assign a Magistrate to go and hear this matter
application for the release of the accused on bail - who has served
over 14 months of his sentence is refused. However the
might remain in jail pending judgment will be taken into account in
computing his sentence if he should be convicted.
may be conducted in Sesotho where parties are all Basotho (including
court officers) provided there is no translation
into English during
the recording of the evidence.
Promised to file my reasons later.
review application applicant was seeking an order in the following
the proceedings in CR623/03 of Butha-Buthe Magistrate's Court be
reviewed and set-aside.
Second Respondent be ordered to dispatch the record within fourteen
(14) days of the receipt of this order to the Registrar
Applicant be granted further and/or alternative relief.
application had be filed at the High Court on the 1st December 2004.
There had been some delay in bringing the record before
The grounds for review were the following:
no interpreter in the proceedings as required by the law and the
learned Magistrate acted as both the presiding officer
interpreter which is irregular.
record it appears that the charge had been read and explained to the
Applicant apart from the fact that he had said he understood
conduct his case. It was not explained to him, and does not appear on
the record, his right of Legal representation as required
by the law.
Learned Magistrate overlooked the fact that the Applicant was facing
a serious charge of which he should be informed, failing
proceeding would be prejudicial to him. Had he known all the above,
Applicant could have asked for legal assistance.
Applicant reserved his rights to add more grounds in terms of the
case the accused who is 18 years old was unrepresented.
charged with the offence of:
section 4 (1) (a) of the Sexual Offences Act 2003 in that upon or
about the 15 December 2003 and at or near Ha Shepheseli
the said accused did wrongfully and unlawfully and intentionally
engaging in a sexual act with one Matseliso Phosisi
a Mosotho female
aged 17 years without her consent.
accused pleaded not guilty.
was heard. It was only after the accused had been convicted and
sentenced to 8 years imprisonment that legal representation
obtained for the accused and an application for review, enumerating
the alleged irregularities was instituted.
accompanying founding affidavit made by and behalf of the accused
made the following points:
charged as fully appeared on the charge sheet, as the result of the
said trial I was convicted as fully shown in the charge
hereunto annexed and marked "ML1".
was told of the charge by the Magistrate, and asked my plea I pleaded
not guilty to the charge. I was never asked or told
legal representation by the Magistrate.
I was not
informed of the seriousness of the matter nor was I told of the
ultimate punishment of the charge, I should not have represented
trial there was no interpreter regard being had that Magistrate
cannot be an interpreter as I am advised and informed
by my Attorneys
and believe same to be true that it is irregular in law.
be legally represented.
it unfortunate that what this court has said about the right to legal
representation is still open to misunderstanding.
The constitution of
Lesotho has been drawn in a practical manner. Nowhere has it given an
individual a right to legal representation.
It merely says an
individual should be permitted to have legal representation. This
court has only said magistrates should advise
and urge all the
accused (charged with serious crimes) to get the services of legal
practitioner. Failure to advice an accused
to get legal
representation is not per se an irregularity if viewed in isolation.
It is important to do so because this facilitates
the work of the
court, and ensures that the accused's case is properly put. It also
balances the scales between the accused and
this court clarified this issue as follows in K. Makula & Another
v Magistrate Motinyane CR1/APN 720/03 (unreported)
at page 21 to 24:
Constitution of Lesotho Section 12 (d) merely says "Every person
shall be permitted to defend himself in court in
person or by a 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
obliged to pay for legal representation in all criminal proceedings
something it does not invariably have to.
mindful of the State's attempt in 1978 to have as many needy people
as possible to have legal aid when charged of serious crimes.
Legal Aid Act 1978 in which Resident Magistrates could certify to the
Chief Legal Aid Counsel that certain poor people qualify
aid and their cases are serious enough to merit such aid. This Act
was followed by the Legal Aid Regulations 1979. Although
still exists, it has had such financial constraints that legal aid
cannot be extensively given.
case of Phomolo Khutlisi v Rex 1993 - 1994 LLR & Legal Bulletin
18 an argument was addressed to the Court of Appeal that
charged with a serious crime had a right to legal representation. At
page 21 of Phomolo Khutlisi v Rex, Ackermann JA
in dealing with this
submission - made the following observation:
"I need hardly add and that the question as to when, or under
what circumstances, an impecunious accused is entitled to legal
might be answered directly in different countries. The duty to
provide free legal representation in a wider range of cases
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."
to legal representation falls under Section 26 of the Constitution,
which is under Chapter III of the Constitution - PRINCIPLES
POLICY. In terms of Section 25 principles such as those of equality
of justice to the disadvantaged - are not enforceable
by the courts.
"subject to the limits of the economic capacity and development
of Lesotho, shall guide the authorities and agencies of Lesotho,
and other public authorities, in the performance of their functions
with a view to achieving progressively, by legislation or otherwise,
the full realization of these principles."
seem because of the Principles of State Policy of the Constitution
and the existing Legal Aid of 1978, the State in Lesotho
through legislation towards the right to Legal representation where a
Resident Magistrate has certified that the crime
charged is serious
and the person is poor. With sentences as high as 8 years
imprisonment for offences under the Sexual Offences
Act 2003, it
seems to me that Resident Magistrates will be obliged to certify all
impercunious accused to be entitled to legal
help an accused not legally represented
that is not the end of the matter. Judicial officers have a duty
towards an unrepresented, since not all people can afford
representation. In any event Lesotho has not the capacity to provide
legal representation in a majority of cases.
case before me the magistrate explained the procedure when the
accused went into the witness box. It seems to me that this
done before the crown leads its evidence and guidance should be given
through out the trial.
makes the task of judicial officer handling a case of unrepresented
accused a great responsibility. Consequently it is wise
that when an
accused charged with a serious crime is first brought before a
magistrate, he should be adviced to seek legal representation
this should be recorded including the reminders if the case does not
soon proceed. It often happens after the accused has been
that he unfairly blames the magistrate for not being told he should
seek legal representation. This may be the case here
- although it is
unnecessary to determine whether accused is in fact doing this. I
think magistrates should do their utmost to
against these belated accusations.
case of K. Makula & another v Magistrate Motinyane (supra) at
pages 19 and 20 the court made the following comments -
the authorities as follows:
"In S v Mavundla 1976 (4) SA 731 the court emphasized the need
to guide the accused as to the procedure in court, so that
understand what they admit or do in court and the effect of it.
Consequently a conviction of culpable homicide was reduced
to that of
In S v Ndodana 1978 (4) SA the prosecution had not made a prima-facie
case against the unrepresented accused. The Magistrate did
the unrepresented accused that he had a right to apply for a
discharge, and if his application was refused, close his
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: "cases in which
the accused is undefended, the accused rights should be most
carefully explained to her and she should understand fully well that
she is under no obligation whatsoever to assist the State
establishing the case against her, the precise admission she is
prepared to make should be recorded."
How 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 what is expected
him so as the accused's trial can be fair.
Ramodibeli J (as he then was) in Senate Motsoene v Rex 1999 - 2001
LLR 331 at page 335 in emphasizing the guidance that unrepresented
accused 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 (1) (2) (d) of
case the criticism of the learned magistrate does not imply that
there was a mistrial - however taken with other factor
felt obliged to intervene. This court is merely sounding a note of
issue - magistrates acting as interpreters Lesotho is a former colony
of the British. Consequently Sesotho which is the
language of the
Basotho was not a language of the courts even after Lesotho had
become independent. This has been so despite what
provides. It is time to deal with this issue because it has become a
have over the years been hearing evidence in Sesotho and recording it
in English. The result of this practice is that
the Ministry of
Justice has not provided some districts with interpreters. The Court
of Appeal has said this practice is wrong.
In the case of T. Lenka v
Rex C of A (CRl) No.2 of 2004 went so far as to declare proceeding
before the magistrate a nullity.
many reasons for finding it wrong for a magistrate (even where he is
a sworn interpreter) to hear evidence in Sesotho
and record it in
English. What particularly objectionable is a translation that does
not take place publicly - in open court for
all to hear. An
interpreter in court translates aloud publicly for all people to
hear. But where a magistrate records the
in English evidence - given in Sesotho - this is not done publicly
for all to know what has been recorded. If a magistrate
has made a
wrong translation, the accused or counsel who know both languages
cannot challenge that translation in open court (as
they would) if
there had been a viva voce translation in court.
where a magistrate is a sworn interpreter is would make his task
impossible to interpret aloud what a witness has said aloud
- and then record that in English. That is why the Court of Appeal
has said a magistrate cannot be both a recorder and
the same time. It is therefore not practical and efficacious for a
magistrate to wear three hats at the same time
- that is be a
magistrate presiding over a trial, be an interpreter and a recorder
of proceedings at the same time. It is currently
accepted that a
magistrate should adjudicate and record evidence at the same time.
Being an interpreter also, cannot work.
of Appeal in Thamae Lenka v Rex C of A No.2 of 2004 (unreported)
deplored the practice of magistrate - who are not sworn
acting as interpreters. As already stated I take the view that
interpretation in court has to be is done viva voce.
In my view
magistrate who hears evidence in Sesotho and records it in English,
is a translation not an interpretation, as court practice
If he is a sworn interpreter he is not supposed to make a secret
translation from Sesotho into English, he is supposed
aloud for all to hear. Plewman JA therefore observed for that reason
in Thamae Lenka v Rex:
"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."
language used by the Court of Appeal in this language issue in cases
such as the one that was before it makes the intervention
court imperative. Consequently this court felt obliged to quash
proceedings and order a retrial - because inter alia the
not even legally represented in a serious crime which under the Legal
Aid Act 1978 qualifies him for legal representation.
cases - or there will be cases in which no perceptible prejudice to
the accused might be present, despite breaches of
procedure and interpretive hearsay on the issue of language. The
cases I have in mind are those in which both the
counsel without objection allowed proceedings to be conducted in
Sesotho and recorded in English because both of
them are Sesotho
speaking. If counsel had a full record of
of his own which corresponds with that of the magistrate - but
suddenly, because of the Court of Appeal decision in
case above, sought the quashing of proceedings - there will be
problems. There are many cases of that kind which already
in which all sides were content up to now.
and others have observed in Swift's Law of Criminal Procedure 2nd
Edition at page 783
"The essential difference between a review and an appeal is that
in the former the parties are not restricted to what appears
record and extraneous grounds for review may be proved by affidavit.
In appeals the parties are confined to what appears on
record. On the
other hand, on review it is not generally permissible to challenge a
finding of fact unless that finding is so unreasonable
constitute an irregularity, e.g. where there was no evidence to
justify the magistrate's finding (R v Richardson, 1914 CPD
intervention of the courts in review cases is conditioned by
prejudice to the accused and the avoidance of illegality. Courts
not interfere merely because there is an irregularity - however
insignificant. It follows that if this proposition is correct,
has been said in respect of an appeal in the High Court Act of 1978
could with justification apply to a review, that is: Section
8 of the
High Court Act 1978
"(2) When considering a criminal appeal and notwithstanding that
a point raised might be decided in favour of the accused,
conviction or sentence shall be set aside or altered by reason of any
irregularity or defect in the record of proceedings, unless
appears to the High Court that a failure of justice has in fact
point of language (in this form) has not come before courts for
decision, but it is fitting that that our minds should start
considering it, and preparing for it.
is the first official language of Lesotho. Consequently Section 3 (1)
of the Constitution provides "The official languages
shall be Sesotho and English..." It follows therefore that all
the laws and rules that were in force before the
into force must be interpreted in a manner that is consistent with
the Constitution. Section 156 (!) of the Constitution
in this matter
"Subject to the provisions of this Constitution, the existing
laws shall continue in force and effect on and after the coming
operation of this Constitution and shall then have effect as if they
had been made in pursuance of this Constitution, but
they shall be
construed with such modifications, adaptations, qualifications and
exceptions as may be necessary to bring them into
therefore in line with the constitution that this court has conducted
proceedings and heard evidence in Sesotho when there
interpreters. In the case of Rex v Tomo Maphethakatsi & 4 Others
this court made the following ruling on the issue of use of the
Sesotho in High Court:
"In this country Sesotho and English are official languages. As
I have already stated at present all High Court judges and
magistrates except one ex patriate magistrate have Sesotho as their
first language. It is only the Court of Appeal that is
entirely staffed by judges who are not Basotho and who have to rely
on interpreters. To these must be added legal practitioners
do not have Sesotho as their first language or mother tongue. For the
benefit of 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 their tongue in Sesotho."
therefore ordered that proceedings in this case (when it is heard de
novo) before another magistrate - be (in the alternative)
in Sesotho because as the constitution provides they can be conducted
in either English or Sesotho. Because in terms
(1) The official languages of Lesotho shall be Sesotho and English
and, accordingly, no instrument or transaction shall
be invalid by
reason only that it is ex
to use Sesotho which might not be easy - he may use English if there
are interpreters. All I am saying is that:
"Consequently it has become feasible, necessary and practical
for proceedings to be conducted in the language 99 % of the
who are indigenous Basotho, understand. 1 therefore 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 cause,
the languages used in
learning and scholarship which the court expects." Vide page 11
of Rex v Tumo Maphethekatsi
the reasons for judgment.
Applicant: Mr Khauoe
Respondents : Miss Makeka
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law