HIGH COURT OF LESOTHO
- BEREA 1ST RESPONDENT
CLERK OF COURT 2nd RESPONDENT
OF PUBLIC PROSECUTIONS 3RD RESPONDENT
by the Honourable Judge M. Mahase On the 17th November 2006
an application for review of the criminal proceedings in CR53/2006 of
the Berea Magistrates' Court. The applicant has applied
review, correction and setting aside of the said proceedings in
CR53/2006; as being irregular and as having resulted in
grounds upon which this application is based have been spelt out in
the applicant's founding affidavit to wit paragraphs 4,5,6,7
they can be summarized as follows:-
the proceedings were conducted in English Court without engaging a
the applicant/accused was not advised of his rights;
the learned magistrate failed to assist and explain to applicant as
to how to conduct cross-examination;
the learned magistrate failed to give reasons for her judgment and
applicant appeared before the Berea Magistrates' Court charged with
having contravened the Protnsions of Section 8(1) of the
Offences Act No.3 of 2003.
accused is alleged to have wrongfully, unlawfully and intentionally
committed the said acts upon two complainants, to wit a
Nthabeleng Macheli, a girl aged 11 years by having inserted his penis
into her vagina. This is count I.
count2, the accused is said to have committed the same offence as in
count 1 upon one Nthole Mopeli a give also aged 1 l years
- and in
the same manner as in Count 1.
incident is alleged to have occurred at or near Litsiling Lekokoaneng
in the Berea district, on or about the 11th January 2006.
evidence is that on the day in question, the complainants were
playing together at Litsiling Lekokoaneng when the accused
them to his house and asked them to go and collect water for him.
They obliged, went to his house to collect the buckets
with which to
on arrival at his house, the accused who stays alone thereat, dragged
the two girls forcefully into his house. He did not
give them buckets
with which to collect water. He then locked his door to his house. He
then first took Nthole, put her on his
bed, undressed her and
himself. He then took a bottle of Vaseline, took out some Vaseline
and rubbed it onto his penis. He then
had sexual intercourse and or
committed an unlawful sexual act upon her while Nthabeleng looked on.
ejaculated upon her even though he failed to penetrate her. He then
go off Nthole who told the court that as he did so, she realized
she had sperms on her thighs. Having ejaculated upon Nthole did the
same with Nthabeleng whilst Nthole
them. At that moment, Nthole went to the door and tried to open it so
that she could run away from the accused's home. She
that the said door had been locked and she could not go out of that
told the court that the accused who had repeated his Vaseline therapy
on his penis before he tried to penetrate her vagina,
penetrate her as she felt pains. The accused then put his penis
between her legs and ejaculated upon her. She too saw
that she had
sperms after the accused had ejaculated upon her. Both witnesses told
the court that the accused had put the Vaseline
bottle on his table.
finished with the complainants, the accused asked them to leave his
house. This he did after he had threatened to kill them
report about this incident to anybody. He then opened his door to his
house and let them go away. The two girls each
went to their
respective homes where they washed themselves and went back to play.
however both reported the incident to their parents, and other
relatives on the next day. The matter was subsequently reported
the chief and later to the police. The latter then investigated the
matter, had the accused cautioned arrested and later send
complainant to the medical doctor.
complainants were then examined by the medical doctor who then
compiled medical reports for each one of them. It is however
that even though the said medical reports were handed to the court a
quo as exhibits A and B, there is no original hand written
the proceedings herein. Only a typed copy of same has been send to
the High Court. As a result there are no copies of the
reports attached to the typed proceedings. Neither is there a copy of
the HIV/AIDS test carried out upon the accused attached
it is shown on the typed record that the HIV/AIDS test results for
the accused were found to be negative. The crown closed
after having handed to court exhibits A and B. Subsequent to that,
the court made a ruling that there was a case for the
learned magistrate is on record as having explained the accused's
rights to him at this stage. It is also on record that the
chose/elected to give evidence in his defence. He was then sworn in
and he testified in his own defence. It is this far
very clear and
this is a matter of common cause that the rights of the accused were
explained to him. There is nothing ex facie
the record indicating
accused has not denied that he indeed saw, met and spoke to the
complainants on the day in question. It is his
that actually it was the complainants who freely volunteered to fetch
water for him. He however declined that offer. It is
that on the night of that Friday, he attended a night vigil and that
he was only surprised when on the next day he
was called to the
chiefs place where he met with the complainants and their parents.
From there he was ordered to report to the
police in Teyateyaneng who
then had him charged and arrested.
accused did not call any further witnesses in his defence. All that
the accused said in his defence was to deny having committed
sexual act upon the said children. He also said that he thought that
the complainants had been taught by their parents to say
that he had
committed the said offences upon them.
accused denied under cross examination that the complainants had been
with him during that day. This he did despite his having
court in his evidence in chief that he had seen and spoken to the
complainants earlier during the day. That was at the
time when he
declined the offer by the complainants to fetch water for him. This
fact does, in itself show that the accused is
an unreliable witness.
He gave two contradictory stories on the issue as to whether or not
he saw the complainants on the day in
applicant has been sentenced to 10 years imprisonment on each count.
Same are to run concurrently. The application is being
opposed by the
now to deal with reasons upon which the applicant has based his
irregularity is based on the fact that the proceedings were allegedly
conducted in English without the court engaging a sworn
as is required by the law.
reason, the applicant applies that the proceedings be set aside.
Reliance in support of this argument has been placed on
in the case of THAMAE LENKA vs REX C OF A (CRI) No.2 OF 2004.
case the court had this to say per Plewman J.A.:-
"It is absolutely mandatory that sworn interpreter be used in
circumstances such as arose in this case whatever practical
difficulties there may be". (My underlining)
learned magistrate who presided over the case and convicted the
applicant has filed an opposing affidavit. She has denied that
was no sworn interpreter during the proceedings in the court a quo.
Vide paragraph 4 sub paragraph 4.1.
further stated in sub paragraph 4.2 that there has been an omission
to state on the court record that there was in fact
interpreter throughout the trial. It is her contention that such an
omission does not amount to an irregularity.
noted here that, while there is no reason to doubt that indeed there
was a sworn interpreter herein throughout the trial such
should have been reflected on the court record. Indeed the learned
magistrate is an officer of this court. There is absolutely
not to belief that indeed, there was a sworn interpreter whose name
she has mentioned in her affidavit, and who interpreted
proceedings throughout the trial.
as it may, there is a problem occasioned by the fact that, there is
no supporting affidavit filed by the said sworn interpreter
weight to the affidavit of the learned magistrate. This court agrees
with the argument that an omission to write down on
the charge sheet
that there was
sworn interpreter herein is and should not be the only ground upon
which the present proceedings should be declared irregular
and be set
however a problem here in that and this has been addressed adequately
and correctly by the applicant in his replying affidavit
paragraph 3 - (3.1 and 3.2) - that the subordinate court, being a
creature of statute is a court of record, and as such
the said court
should have reflected on the record of proceedings and on the charge
sheet that indeed there was a sworn interpreter
during this trial.
this court has not been furnished with a copy of the hand written
original record of proceedings herein for it to see whether
the said fact is reflected on the said court record. There is however
no reason to doubt that, that has not been done. The
fact that the
learned magistrate states under oath in her affidavit that there was
a sworn interpreter throughout this trial does
not cure the
irregularity about which the complainant complains.
that there was an interpreter during the trial where the proceedings
are recorded in a language other than in the language
by the witness and that which the accused understands should, as a
must; be always reflected
court record/charge sheet. Anything to the contrary inflicts a blow
to the case of the crown.
It is the
duty of both the court and the crown to have all the relevant
information filled in the charge sheet which is a standard
in all the Magistrates' Court. Such forms have been designed for a
specific purpose even though they are often ignored.
wonders why that is so when it can not take even two minutes for
anybody to fill in the charge sheet in this regard. The benefits
properly filling in this form far out weigh whatever inconvenience
one may feel that it is occasioned by filling in same. It
is a really
sad situation that proceedings in serious cases such as this one are
jeopardized and or are set aside merely because
has not filled in the charge sheet to reflect the true composition of
the court. This is a regrettable state
court urges all Magistrates and Public Prosecutors to always bear in
mind and indeed to act according to the directives issued
in the case
of THAMAE LENKA vs REX C. OF A. (CRI) No,2 OF 2004. This is a good
authority which should always remind all those concerned
prosecuting and presiding over criminal trials of their duties. This
court is however aware of the fact that the applicant has
particular way he was prejudiced. The proper reading of the
proceedings in the court a quo does not at all reflect that the
applicant was so prejudiced as to have not comprehended nor followed
what was being said in court.
applicant has not told this court in his papers in what way he has
been prejudiced in the conduct of this trial. He should have
To only state that the proceedings be set aside as being irregular
merely because it is not specifically written on the
court record who
the interpreter was is not enough.
learned magistrate has clearly and under oath in her affidavit said
that there was a sworn interpreter who was interpreting
as it was adduced in court. There is no reason for this court not to
belief what the learned magistrate has said therein.
court also takes judicial notice of the fact that there is a sworn
interpreter stationed at the Berea Magistrates' Court of
as indicated by the learned magistrate in her opposing affidavit. The
applicant has not gain said the learned magistrate
on the issued that
a sworn interpreter by the name of Nthakoana Mahase was interpreting
the proceedings/evidence throughout the
fact that this fact is not reflected on the court record of the court
a quo, on its own and in total disregard of all other
circumstances is not enough for the setting aside of the said
proceedings. In any case, the Subordinate's Court (Amendment)
2006 as published in Legal Notice Nor76 of 2006 enable or empowers
the presiding officer to record evidence in English without
assistance of a court interpreter where all parties know and
understand Sesotho and the services of the interpreter cannot
secured without undue delay, expense or inconvenience. Vide - Section
2 of this Legal Notice 76 of 2006 dated the 29/05/2006.
above said reasons, this court has come to the conclusion that there
is no merit in this argument. This is said with respect
counsel and applicant herein. The applicant has advanced as another
reason for which he applies that the proceedings in
the court a quo
be set aside as being irregular, as being the fact that the court has
failed to advise him of his right to secure
services of a legal
contrary to what appears in the minute of the court a quo of the
09/02/2006. There the record clearly indicates that the
not only read but that it was also explained to him. Immediately
thereafter, the next minute is that the applicant's
right to legal
representation was explained
This is enough and in the absence of anything to the contrary, it can
not be seriously argued that the applicant's right
representation was not explained to him.
enough that the fact that such rights were explained to the applicant
has been reflected on the court record. If the applicant
that he was prejudiced by that short minute reflected thereat on the
record of proceedings, he should have specifically
what it is that he did not understand and say in what way that had
prejudiced him in his defence in this trial.
It is not the
applicant's story that he did not understand what was meant by the
court a quo that he had a right to legal representation.
Which is not
the true reflection of what appears on court record. On the contrary
he only says that the learned magistrate failed
to advise him of his
right to legal representation.
devoid of any truth since the record of proceedings -Vide page 9 of
the typed record of the court a quo indicates that in
rights were explained to the applicant. This I say with the greatest
issue about which the applicant complains is that the learned
magistrate failed to make inquiries about mitigating factors
she imposed a sentence upon him. It
contention that the learned magistrate did not put any questions to
him to find out about his (applicant's) personal circumstances.
noted that this contention is not supported by what appears on the
court record. It is clear from page 20 of the typed record
learned magistrate gave the applicant an opportunity to say something
in mitigation of sentence before she imposed a sentence
no way in which the learned magistrate could have known about the
personal circumstances therein shown on the record of
she had not inquired about same from the applicant. It is not the
applicant's argument that what is written thereat
as his personal
circumstances is not correct or true.
case, the applicant was at large to inform the court about any other
factors other than those therein shown; if he was of
the view that
the court a quo would have been influenced otherwise in imposing a
sentence upon him.
that it is further recorded that the applicant has no previous
convictions is an additional mitigating factor which the
court a quo
took into account. What more did the court a quo have to record and
or inquire about?
appear thereat is proper and in order as it clearly highlights the
personal circumstances of the applicant.
reason, this point is also dismissed.
point raised by the applicant as being a ground which constitutes a
fatal irregularity is that the learned magistrate has
failed to give
reasons for judgment and sentence. He argues that this irregularity
warrants the setting aside of the said proceedings.
indeed is a fatal irregularity. The applicant is entitled to know
reasons for which the sentence is imposed upon him. The court's
to give reasons is so essential to judicial process that it can be
said to define its character, and without reasons for judgment
process is flawed - Vide:- REX v BUSANG HESHEPE - REVIEW ORDER
No.26/2006 per Teele AJ. Page 14 etc.
more than ample authorities in support of this proposition. In fact
this Court and the Court of Appeal of Lesotho have
stated very often
that failure to give such reasons may give the impression that the
decision was arrived at arbitrarily and or
that it brings the justice
Vide PHAMONG MOHALE AND ANOTHER v REX C OF A (CRI) No.2 OF 2005 per
Ramodibedi JA at page 8.
SELIBO SELIBO AND OTHERS C OF A (CRI) No.8 OF 2004 at page 10 per
Steyn P. Where the Honourable Judge President had this to
"It would appear from the record that the learned Judge gave no
reasons for sentence or if he did so, these were not recorded.
court has repeatedly stressed the fact that reasons for sentence must
be given and that failure to do so is an irregularity".
is greatly disturbed by the fact that despite the existence of such
authorities of the two highest courts in this country,
irregularities as failure to give reasons for sentence are being
regularly committed. This is regrettable; moreso because
in most such
cases proceedings have to be set aside. This compromises and
undermines the proper administration of justice to the
the victims against or upon whom such barbaric and heinous criminal
offences are committed.
sends out the wrong message to the public that either courts
deliberately protect and or care for the welfare of the accused
persons only, at the expense of the victims of this brutal sexual
attacks. This inevitably and in some instances results in the
loosing confidence in the courts of law, hence some people resort to
taking the law into their hands. Such omissions should
be avoided at
all costs if public perception and confidence about the courts of law
and the justice system are to be regained.
It is the
duty of the courts to be always alive of the need to balance, at all
times, the interests of the accused person to have
a fair and open
trial, and the constitutional right of the victims to protection and
a dignified treatment. While courts strife
to achieve the above, they
should not, in the process bring the justice system into disrepute.
applicant has also complaint that the learned magistrate did not
assist him nor did she explain to him how to conduct cross
examination. This is denied by the crown and the court a quo. The
learned magistrate has filed a supporting affidavit to the effect
that the applicant did not have any problems with conducting cross
examination; so that there was no need for him to be assisted
court in this regard.
proper reading of the proceedings of the court a quo clearly reflects
what the learned magistrate has deposed to in her
affidavit. There is no iota of evidence that the applicant could not
cross examine any of the crown witnesses or that
he had difficulty
no indication on the court record that the applicant, in cross
examining the crown witnesses did incriminate himself and
or that he
failed to cross examine any crown witness who had implicated him in
the commission of these offences. Neither is there
indicating that he failed to put his defence to the crown witnesses.
Regard being had to the circumstances of this case,
this court is of
the view that the applicant did well for an unrepresented accused
person in the cross examining the crown witnesses.
court has therefore come to the conclusion that there was no need for
the learned magistrate to have intervened where the applicant
conducted cross examination efficiently, properly and without any
difficulty. This point is accordingly dismissed.
made the observations, the only reason for which this court declines
to certify the said proceedings as being in accordance
with real and
substantial is the o omission by the learned magistrate to record
reasons for judgment and
The reasons why this is a total irregularity have been very well
demonstrated and spelt out in the numerous authorities
and others advanced both by the High Court and Court of Appeal of
said reasons the proceedings herein the court a quo are set aside as
and sentences are set aside as being irregular; The prosecutions is
ordered to start this trial de novo before a different
The applicant should be released from prison forthwith; However
applicant should be informed about this order.
also be served with a fresh charge sheet and a date for re-trial
should be allocated and the applicant be informed about
he is released from prison. This is so as to ensure that the case is
prosecuted and that accused will attend court
on the specified dates.
Applicant : Mr. T.J. Mokoko
Respondent : Mr. P. Peete
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