HIGH COURT OF LESOTHO
LECHESA 1st APPELLANT
MAIKETSO 2nd APPELLANT
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
on the 15th December 2005 By the Honourable Mr. Justice W.C.M. Maqutu
9th December 2005, this appeal was argued before me. Mr. Makholela
was for the appellants while Miss Mofilikoane was for
court made the following order:-Appeal is upheld. The appeal deposits
respondent should be refunded. Reasons will be filed later.
appellants appealed against conviction and sentence in CR/95/04 dated
25th August 2004. They were before Court on two charges
breaking with intent to commit a robbery and the contravention of
Section 3 (2) of the Sexual Offences Act N0.3 of 2003.
grounds of appeal were the following: -
learned Magistrate erred and misdirected himself by failing to
support his conviction and sentence by reasons. Such reasons
have been recorded, delivered and read to the Appellants at the time
of them being convicted and sentenced.
learned Magistrate erred and/or misdirected himself by failing to
give his reasons for refusal of application for discharge
Section 175(3) of the CP & E of 1981. Such reasons were only
recorded and/or reduced into writing after the case had
postponed and as such Appellants knew nothing about those reasons.
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.
learned Magistrate erred and/or misdirected himself on the law by
taking the wrong approach of believing that the evidence of
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.
learned Magistrate erred and/or misdirected himself by imposing a
penalty provided for under Section 32 of the Sexual Offenses
2003 and yet Section 3(2) which Appellants have been charged and
convicted of had not been read with the penalty Section
learned Magistrate wrongfully invoked a sentence of eight years
without an option of fine as contemplated in Section
32(a) (ii) for
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
presented in court.
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
learned Magistrate erred and misdirected himself by failing to make a
definite finding and/or a cumulative effect of prosecution
having collectively assembled together with the prosecutor discussing
their statements, the identity, height, voice and
worn by the attackers before the case started.
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.
Appellant reserve the right to amend, add and/or correct the grounds
MASERU ON THIS 1st DAY OF SEPTEMBER 2004.
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.
record of proceedings was badly compiled. The Court would not
postpone the matter, but gave appellants7 Counsel time to sort
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
"In the interests of time and justice it be put on record that
an interpreter is by consent not needed - and the issue will
any time be a ground of review or appeal."
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.
Magistrate must not hear evidence in Sesotho and record it in
was puzzled by the second ground appeal. In that ground of appeal
Counsel challenged the practice of refusing to discharge
at the end of the Crown case and promising to file reasons later.
This ground was also not pursued.
ground of appeal however created problems. In it appellants had
"The learned Magistrate erred and misdirected himself in failing
to support his conviction and sentence by reasons. Such reasons
have been recorded, delivered and read to appellants at the time of
being convicted and sentenced."
be no doubt that this ground of appeal summarises what should happen
in every Court of record.
this does not happen as it should in practice. The Magistrates
handwritten record is a rendition of the evidence as understood
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
conduct of proceedings or the merits of the case."
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
in the light of questions which probably elicited the recorded
the above quotation shows is that while our courts do not have
electronic devices and short-hand evidence recorders - we
rely on narrative records of evidence made by the Magistrates. We
have to accept the limitations under which our courts
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.
XXXV of the Subordinate Court Rules merely requires in Rule 1 (3) of
Order XXXV a written statement from the Magistrate following
filing of the grounds of appeal. It will be observed that Rule 1(5)
of Order XXXV allows the Magistrate to file a "further
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.
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
appeal revolves on one issue namely whether the Crown witnesses gave
credible evidence on whether they were able to identify
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.
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
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 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.
blamed for not writing what the witnesses had said to them.
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
the necessity of dissipating any danger of error in such evidence."
accused must have a fair trial; factors in the investigation of the
case that are highly prejudicial to the accused must not
witness claims she told the police that a neighbour she knows robbed
and sexually molested her, but the police have not written
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
undertaken if the court is convinced witnesses are truthful.
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.
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:-
"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
value of such a test become problematic. The whole purpose as I have
said, of any test is to discover whether the witness's
Mofilikoane for the Crown did not support the conviction of the
I made the following order:-Appeal is upheld. The appeal deposits of
the respondent should be refunded.
Appellants - Mr. Makholela
Respondent - Miss Mofilikoane
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