CRI/A/22/2004

IN THE HIGH COURT OF LESOTHO

In the matter between:

MOSHOESHOE LECHESA 1st APPELLANT

NTHAKHA MAIKETSO 2nd APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

REASONS FOR JUDGMENT

Delivered on the 15th December 2005 By the Honourable Mr. Justice W.C.M. Maqutu

On the 9th December 2005, this appeal was argued before me. Mr. Makholela was for the appellants while Miss Mofilikoane was for the respondent.

This court made the following order:-Appeal is upheld. The appeal deposits

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of the respondent should be refunded. Reasons will be filed later.

The appellants appealed against conviction and sentence in CR/95/04 dated 25th August 2004. They were before Court on two charges of house breaking with intent to commit a robbery and the contravention of Section 3 (2) of the Sexual Offences Act N0.3 of 2003.

The grounds of appeal were the following: -

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The learned Magistrate erred and misdirected himself by failing to support his conviction and sentence by reasons. Such reasons must have been recorded, delivered and read to the Appellants at the time of them being convicted and sentenced.

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2

The learned Magistrate erred and/or misdirected himself by failing to give his reasons for refusal of application for discharge under Section 175(3) of the CP & E of 1981. Such reasons were only recorded and/or reduced into writing after the case had already been postponed and as such Appellants knew nothing about those reasons.

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The learned Magistrate erred and/or misdirected himself by failing to properly address his mind on the law regarding evidence of identification and the defense of alibi despite there being evidence by crown witnesses that such identification was illegal and prejudiced Appellants in their defense.

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4

The learned Magistrate erred and/or misdirected himself on the law by taking the wrong approach of believing that the evidence of crown witnesses was tendered bona fide and honestly, as opposed to assessing it basing his conclusions on whether the identifications sought was reliable and trustworthy in all material respects.

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The learned Magistrate erred and/or misdirected himself by imposing a penalty provided for under Section 32 of the Sexual Offenses Act of 2003 and yet Section 3(2) which Appellants have been charged and convicted of had not been read with the penalty Section (s32). The learned Magistrate wrongfully invoked a sentence of eight years without an option of fine as contemplated in Section 32(a) (ii) for sentence.

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6

The learned Magistrate erred and/or misdirected himself both on the law and facts by wrongfully concluding that the particular circumstances of the case justified a conclusion that Appellants guilt had been proved beyond reasonable doubt despite contrary evidence having been presented in court.

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The learned Magistrate erred and misdirected himself by failing and/or ignoring evidence favourable to the Appellants that none of the crown witnesses were able to positively identify their attackers on the day in question as they did know who their attackers were.

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The learned Magistrate erred and misdirected himself by failing to make a definite finding and/or a cumulative effect of prosecution witnesses having collectively assembled together with the prosecutor discussing their statements, the identity, height, voice and clothes allegedly worn by the attackers before the case started.

9

The learned Magistrate erred and/or misdirected himself by allowing the case to proceed without first seeking and obtaining the services of a sworn interpreter while the law prohibited him from doing the same. What he interpreted is no evidence at all as his duty is to adjudicate as he is not a sworn interpreter. Evidence of unsworn interpreter is hearsay and inadmissible.

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The Appellant reserve the right to amend, add and/or correct the grounds of Appeal.

DATED AT MASERU ON THIS 1st DAY OF SEPTEMBER 2004.

These grounds of appeal were unnecessarily long and repetitive and in many respects not based on reality. A court cannot adjourn and file a detailed written judgment for any ruling and interlocutory orders it makes during trial. Sometimes it can adjourn and file full written reasons - but it does have to do so all the time. This does not detract from the fact that the Magistrate is a court of record and must do whatever he does for a good reason and record it.

The record of proceedings was badly compiled. The Court would not postpone the matter, but gave appellants7 Counsel time to sort it out.

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At the outset Appellants' Counsel abandoned the ninth ground of appeal. In that ground Counsel had complained about the absence of a sworn interpreter. The reason for taking this step was that Mr. Makholela, Counsel of Appellants had said to the trial court on behalf of the accused:-

"In the interests of time and justice it be put on record that an interpreter is by consent not needed - and the issue will never at any time be a ground of review or appeal."

Sesotho is an official language in terms of the Constitution. Its use in the courts must however be in a realistic manner. This Court has in the past dealt with the issue of interpreters in circumstances such as Mr. Makholela and the trial Court found them. See the case of Mathula v Litsoane CRI/APN/758/2004 (unreported). It is now possible for proceedings to be conducted in Sesotho where the parties, the court and all its officers are Basotho. If this happens evidence must be recorded in Sesotho not in English. In other

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words the Magistrate must not hear evidence in Sesotho and record it in English.

The Court was puzzled by the second ground appeal. In that ground of appeal Counsel challenged the practice of refusing to discharge the accused at the end of the Crown case and promising to file reasons later. This ground was also not pursued.

The first ground of appeal however created problems. In it appellants had said:-

"The learned Magistrate erred and misdirected himself in failing to support his conviction and sentence by reasons. Such reasons must have been recorded, delivered and read to appellants at the time of being convicted and sentenced."

There can be no doubt that this ground of appeal summarises what should happen in every Court of record.

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However, this does not happen as it should in practice. The Magistrates handwritten record is a rendition of the evidence as understood by the Magistrate. Nevertheless what is expected is that what is written should reflect all that happened in Court. To put this in the words of De Villiers J in R v Sikumba 1955 (3) SA 125 at page 128 F:

"It is essential that Magistrates should record everything that happened during a trial that is of any material bearing on the conduct of proceedings or the merits of the case."

The Magistrate Court records are often in a narrative form. In such circumstances, it is not easy to recall ipsissima verba what questions were asked. What are recorded are answers. As Miller J said in S v Mavuma 1964 (1) SA 369 at 370 GH:

"It sometimes becomes necessary, in the interests of justice, to interpret evidence recorded in narrative form

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in the light of questions which probably elicited the recorded answers."

All what the above quotation shows is that while our courts do not have electronic devices and short-hand evidence recorders - we have to rely on narrative records of evidence made by the Magistrates. We have to accept the limitations under which our courts operate.

Mr. Makholela had to concede that the Magistrate gave reasons for both conviction and sentence although they were not recorded. Had a tape recorder been available and transcribed a written record would be available. The Practice Direction of the Chief Justice does not and cannot in law be read to permit arbitrary convictions and sentences that are given without reasons. What it requires of Magistrate is to speed up court proceedings in a balanced, fair and convenient manner under the restraints a Magistrate operates.

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Order XXXV of the Subordinate Court Rules merely requires in Rule 1 (3) of Order XXXV a written statement from the Magistrate following upon the filing of the grounds of appeal. It will be observed that Rule 1(5) of Order XXXV allows the Magistrate to file a "further statement of reasons for judgment. In other words a judgment must have been delivered when the accused was convicted. What is required in Rules 1 (3) and (5) of Order XXXV are written statements that buttress the judgment given at the time accused was convicted.

I noted that the Magistrate's statement of reasons for his judgment is undated. It ought to be dated. In S v Mavuma 1964 (1) SA 369 at page 370 Miller J complained:

"The Magistrates reasons for judgment are undated, and it is therefore not possible to say how long after the date of trial they were compiled."

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This appeal revolves on one issue namely whether the Crown witnesses gave credible evidence on whether they were able to identify the accused as the perpetrators of the crimes charged. That is the sole ground of appeal that appellants were making in very many words. It is the one that both counsel addressed me on.

PwlMapalesa Mantsa had not told the Police that had told the Police that he did not identify any of the perpetrators of the crimes. But before the Court, Pwl claimed he identified the Court because of the clothes they wore, their height and voice. When put to task about these inconsistencies, Pwl claimed he told the Police. It was not satisfactorily explained why Pwl told the Police that she had not known Accused 1 before the incident - yet before court Pwl had said she did.

No proper identification parade was made. Witnesses or potential witnesses went and pointed out suspects in the presence of each other. Even when the witnesses were interviewed by the prosecutor, they were interviewed in a

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group and in the presence of each other. Clearly the prosecutor did not know how witnesses are prognosed or interviewed before trial. It is not surprising that not only did witnesses change their statements they also added details that were not in their statements. Police were blamed for not writing what the witnesses had said to them.

Prejudice to the accused by these demonstration of unreliability of Crown witnesses having regard to what they said in court and what they said when they first reported the incident was disregarded by the learned Magistrate. The appearance of honesty and their demeanour in court seems to have been conclusive in the learned Magistrate's assessment of evidence. Williamson JA in S v Mehlape 1963 (2) SA 29 at page 32F has cautioned triers of fact in the following manner:-

"The often patent honesty, sincerity and conviction of an identifying witness remain however, ever a snare to the judicial officer who does not constantly remind himself of

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the necessity of dissipating any danger of error in such evidence."

The accused must have a fair trial; factors in the investigation of the case that are highly prejudicial to the accused must not be ignored.

When a witness claims she told the police that a neighbour she knows robbed and sexually molested her, but the police have not written this - then something is very wrong. When the witness says she also told the Chief of this fact. When the Chief is not called to confirm this, the trial court ought to be even more skeptical. If the police write that the assailants or perpetrators were not identified in those circumstances - when in fact they were told such people ought not to be Policemen. Courts however should not automatically think the worst of the police, because they are sworn officers of the law. It is possible that their character is being falsely disparaged. In that event the accused ought to be given the benefit of the doubt while an enquiry into the conduct of the

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police is undertaken if the court is convinced witnesses are truthful.

Identification by voice is controversial although it can be a mark, characteristic or distinguishing feature - see S v M 1963 (3) SA 183 at 185. There are many factors that should be taken into account - such as the length of time the voice was heard. I may add that when a man intimidates a rape victim the pitch of his voice might be different. In Rex v Gericke 1941 CPD 211 Sulton J went so far as to say a voice identification could only be admitted on certain conditions. In that case voice identification was accepted along with other factors to enable the court to conclude the accused was guilty.

There are no details of how the voice identification on which the learned Magistrate relied was conducted. As Quenet JP observed in Poole N.O. v Currie & Partner 1966 (2) SA 690 at page 692 H:-

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"No attempt, as far as I can see, was made to see that the voices of other persons who took part in the test bore any similarity to that of the appellant. I wish to stress the need for great care in conducting tests of this kind. If care and skill are not used the value of such a test become problematic. The whole purpose as I have said, of any test is to discover whether the witness's conclusion is reliable."

Miss Mofilikoane for the Crown did not support the conviction of the accused.

Consequently, I made the following order:-Appeal is upheld. The appeal deposits of the respondent should be refunded.

W.C.M. MAQUTU

JUDGE

For the Appellants - Mr. Makholela

For the Respondent - Miss Mofilikoane

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