CRI/APN/259/2006

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between

MOJALEFA
NTOI Applicant

AND

DIRECTOR
OF PUBLIC PROSECUTIONS First Respondent

THE CLERK
OF COURT Second Respondent

THE
LEARNED MAGISTRATE Third Respondent

Judgment

Delivered
the by Honourable Mr Justice T Monapathi on 3rd day of August 2006

This
matter was filed on the 27th June 2006 on a notice of motion. It was
being, primarily, that the matter or the proceedings in
CR 207/06 of
Berea Magistrate's Court be reviewed/corrected and set aside.
Fortunately we have a record of proceedings which was
typed written
and dispatched to this court as annexure "MM 1."

2

The
record of appearances showed that Applicant's counsel appeared
together with Mrs Makholela for the Crown on the 3rd of July
when
then before Moiloa AJ the matter was postponed to the 10th of July
2006 by consent The learned Judge ordered then that Respondents

should file answering affidavit not later than Friday the 7th of
July, 2006.

The court
further emphasized that that there appealed to be no need to file
replying affidavits in order to obviate any delay. That
the matter
would then be heard on the 10th July 2006 when then Heads of Argument
should have been filed. And the record of proceedings
should have
been paginated. Regrettably none of these have been done.

This
brings home to all concerned the extent to which orders by Judges of
this court can be disobeyed with impunity, and with lack
of
seriousness. This matter is an example. This is to be regretted.

3

I take
the attitude exemplified by Counsel very seriously. My approach will
be firstly to confront Counsel informally in a matter
like this.
Indeed there is only one matter and one occasions where I have had to
refer the counsel concerned (Crown Counsel) to
her superiors for
necessary warning and action. I made it a matter of record. On this
occasion I consoled myself because the Counsel
concerned was a
junior. But I have to show my displeasure.

On the
10th July, 2006 I gave yet another order postponing the matter to the
13th July, 2006. I further ordered that the Applicant
could file a
supplementary affidavit and that the Crown can accordingly file an
answering affidavit or further affidavit in which
grounds for
opposition would stated. Mr Nthontho for Applicant informs me that he
has filed the supplementary affidavit Still the
Crown has not filed
any paper's except the Notice of Intention to Oppose. The reason
given by the Crown is that the learned Magistrate
was not available.
I wondered why the Clerk of Court

4

would not
have filed an affidavit nor the Public Prosecutor in the court a quo.

In the
circumstances of this matter I found it unnecessary comment about the
applicants' complaints. It was clear that the Crown
stubbornly
intended not to oppose the matter or to comply with orders given by
the court. The matter is therefore still not opposed.

The
application is accordingly granted.

T
Monapathi

Judge