HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS 1st RESPONDENT
FOR THE DISTRICT OF MASERU 2nd RESPONDENT ATTORNEY GENERAL 3rd
by the Honourable Mr. Justice W.C.M. Maqutu On the 18th December 2006
help a prisoner to secure attendance of a prisoner's counsel on date
of trial - need to set date of trial with counsel if
known - need to
save courts time by avoiding postponements.
Sesotho and English in Magistrate Court proceedings -Translation by
Magistrate of evidence given in Sesotho - Court of Appeal
T. Lenka v Rex C of A (CIV) NO.2 of 2004 -whether magistrate can act
contrary to that decision - Rule 63
the Subordinate Court Rules - whether such a rule could override
Court of Appeal decision in T. Lenka v Rex - limits of delegated
is an application for a review against the judgment of the
Magistrate Maseru delivered on the 5th April 2006. The accused
sentenced to 10 years imprisonment.
said applicant herein after called the accused was charged with
contravening Section (3) (2) of the Sexual Offences Act NO.3
"In that upon or about the 15th day of October 2005, and at or
near Masite in the district of Maseru, the said accused did
unlawfully commit an unlawful sexual act with another person, to wit:
by having sexual intercourse with Paulinah Thejane without
the 23rd November 2005, accused had asked for legal representation
and for bail, but the matter was remanded to 28th November
the 28th November 2005 bail was opposed. The matter was remanded to
12th December 2005 to enable the accused to call
There are no reasons stated by the prosecutor for objecting to bail.
Consequently, I am puzzled as to why accused
had to call witnesses.
From that time nothing was said about the accused's application for
were four other remands - some of which were in abstentia. On the
25th January 2006, accused is recorded as having said,
he is being
represented by Mr. Khauoe, and that they did not meet. Since accused
was still in prison I found it surprising that
the matter could be
set-down for the 13th February 2006 without the public prosecutor
making any attempt to contact Mr. Khauoe.
the 13th February 2006, the magistrate's record discloses the
"On 13/02/06, accused is before court. Charge is read and
explained to him in Sesotho and he says he understands. He is
of his legal rights and he understands.
says he has legal representative Mr. Khauoe or Mr. Matla.
Court: Why did you not inform them of date of hearing?
Accused: Nobody visited me and I could not inform them of date of
Public Prosecutor: This is not the first time the accused claims he
has a legal representative. He does not even produce evidence
has instructed him fully.
Court: The case shall proceed as accused is simply delaying the case.
seems to me that not only must an unrepresented accused be assisted
to put his case - he must be helped to secure the attendance
legal representative, if he is known. This of course must be done
within reason. It would
prisoner whose bail application was not proceeded with although he
asked for bail was in need of assistance. The bulk of
the cases state
that an unrepresented accused must be guided and helped to present
his case. See S v Chikauzi 1974 (1) SA 167,
S v Mdodana 1978 (4) SA
46 and S. Motsoene v Rex 1999-2001 LLR 331 at 335. The rights of the
weak and defenseless who are in prison
should be respected too. If a
prosecutor cannot help to secure the attendance of the prisoner's
counsel - then the right to be
represented by counsel becomes
accused to be legally represented
right of the accused to be afforded an opportunity to be legally
represented is supported by Section 12 (2) (d) of the Constitution.
I am not satisfied the accused who was in prison was afforded the
facility to be legally represented. Even when he sought bail
onus was put on him to bring witnesses - when the crown had not even
specified the nature of its objection to bail. The record
shows the Public
Prosecutor objected. After that there is nothing on record to show
what happened to the accused's bail application.
it is accepted that the state ordinarily does not have to find and
pay counsel for the accused - surely if it knows his
should help the accused who is in prison by setting down the case
for hearing with that counsel. The attitude of
both the magistrate
and the Public Prosecutor was not as helpful as expected in securing
the presence of counsel - as it ought
to have been.
respect of serious crimes such as those in which the accused is
charged under the Sexual Offences Act 2003 - it would appear
accused should be legally represented. The reason being that they
attract minimum sentences of between 8 and 10 years imprisonment.
Ordinarily in terms of Section 26 of the Constitution the right to
legal representation is not enforceable before courts - as
it is a
principle of equality of justice. However, the State has been given
the right to make this right enforceable by legislation.
and 5 of the
Act 1978 seems to entitle the accused in a sexual offence he is
charged with to legal aid. This is so because the offence
serious that in certain circumstances the accused might be sentenced
to death. In saying this I am conscious of what Ackermann
JA said at
page 21 of P. Khutlisi v Rex 1993-94 LLR 18:-
"I need hardly add that the question as to when, or under what
circumstances, an impecunious accused is entitled to legal
be answered differently in different countries. The duty to provide
free legal representation in a wider range of cases
may for 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".
K. Makula v Magistrate Motinyane CRI/APN/720/2003 (unreported)
paragraph 64, this court noted that there are many serious crimes,
"Although legal aid still exists, it has had such financial
constraints that legal aid cannot be extensively given".
follows therefore that it is the State's wish that people charged
with serious offences should be defended by legal practitioners.
Courts also have said it should be so. It is therefore the
prosecutor's duty where the accused is in prison - to help him to
secure the attendance of his counsel on the day of trial. The
magistrate and the public prosecutor should not lightly say accused
is delaying the hearing of the case unnecessarily if he insists he
Lehohla J (as he then was) said, L. Pulumo v Rex CRI/A/27/1988
(unreported) whenever a person is charged with a crime that
lead to a lengthy period of imprisonment legal representation is
necessary. Lehohla J (as he then was) is well supported
J in S v Mbonani 1988 (1) SA 191 at page 196 D who said:-
"The desirability, if not the necessity, of legal
representation, especially where persons stand to lose their liberty,
become ever more widely appreciated in South Africa in more
prosecutors as Court Officers will not assist the accused to exercise
this right when they are stranded in prison, although they
them who their counsel is - then they are not acting fairly. Lesotho
also wants justice done in as fair a manner as possible.
is no doubt offences under the Sexual Offence Act 2003 are serious -
they also attract long sentences of imprisonment of
the minimum of
between eight and ten years imprisonment. Consequently, Goldstone J
at page 196 of S v Mbonani added:-
"Again, depending upon the complexity of the charge, or of the
legal rules relating thereto, and the seriousness thereof,
should not only be told of this right
but he should be encouraged to exercise it. He should be given a
reasonable time within which to do so. He should also be informed
appropriate cases that he is entitled to apply to the Legal Aid Board
for assistance. A failure on the part of a judicial officer
this, having regard to the circumstances of a particular case may
result in an unfair trial in which there may well be a
failure of justice. I should make it clear that I am not suggesting
that the absence of legal representation per se or
the absence of the
suggested advice to an accused person per se will necessarily result
in such an irregularity or an unfair trial
and the failure of
justice. Each case will depend upon its own facts and peculiar
in Lesotho would find fault with what Goldstone J said above. In L.
Matsela &, Ano v Rex CRI/A/80/94 (unreported) a
showed it approved of S v Mbonani above.
The public prosecutor could not just set-down the case without
contacting counsel whose name he already knew. It is waste
resources to set-down cases merely to be postponed because the
accused attorney or counsel was not contacted. This factor
Method of trial
accused wants a retrial. He is challenging the method of trial.
Therefore I am not called upon to deal with the merits. Even
is so, the court does not normally interfere unless there is
prejudice. See Section 8 (2) of the High Court Act 1978.
Section 7 of the High Court Act 1978 has not spelt out prejudice as
one of the grounds for interference on review, I
Superior Court such as the High Court should not look for perfect
justice. It should rather strive to see that substantial
been done. Where there is a failure of justice, the High Court has
have already said the failure of the prosecutor to check with Mr.
Khauoe whether he would be available on the date of
and whether he was in fact accused's counsel - was prejudicial up to
a point but not decisive. However, accused complaint
"Our right to be tried in a language we understand or
proceedings be interpreted in that language have been violated".
main complaint is that proceedings were conducted in Sesotho, and
evidence given in Sesotho - but the record is entirely
is no dispute that the proceedings and all the evidence including
the evidence of the accused were recorded in English.
There was no
interpretation. Accused has said he is not English speaking and does
not understand English. Even the magistrate
has said he explained
the charge and the rights of the accused to the accused in Sesotho.
The record is not very explicit about
whether witnesses gave their
evidence in English or Sesotho. What is clear is that the magistrate
was his own interpreter. This is apparent from the accused
cross-examination which is in English. It was accepted (before me) by
both the Crown and accused counsel that the magistrate translated
what was said in Sesotho into English.
T. Lenka v Rex C of A NO.2 of 2004 (unreported) the Court of Appeal
said a magistrate should never translate what is said in
into English. The reason for doing so was:-
"She did not record actual evidence of the witnesses who spoke
in vernacular, what she recorded was her own understanding
the witnesses had said".
courts below should respect and apply the judgments of their
superior courts. Such decisions are binding precedents which
be respected and applied unless they can be distinguished or
overruled by the trial court or another court that is superior
JA and Melunsky JA concurred with this judgment Plewman JA in T.
Lenka v Rex. Plewman JA had charted the future course
"The correct view of the magistrate's action in the present case
would seem to me, first that by reason of the procedure adopted
did not record actual evidence of the witness who spoke in
vernacular, what she recorded was her own understanding of what
had said. That is not evidence at all." My emphasis.
the aforegoing, it is clear that the accused in the case before me
was convicted on what "is not evidence at all"
to the ruling of Plewman JA in T. Lenka v Rex. It was in order to
follow this judgment that this court in M. Litsoane
v DPP &
Another CRI/APN/758/2004 (unreported) -said that evidence should be
recorded in Sesotho because:-
"Even where a magistrate is a sworn interpreter, it would make
his task impossible to interpret aloud what a
witness has said in court. That is why the Court of Appeal has said a
magistrate cannot be both a recorder and interpreter at the
... It follows therefore that all laws and rules that were in force
before the constitution came into force, must be
interpreted in a
manner that is consistent with the constitution".
M.L. Rampo v Magistrate Berea & 3 Ors CRI/APN/401/2005
(unreported) the High Court said:-
"This court has specifically said if proceedings are to be in
Sesotho there should be no translation or recording of evidence
English - when evidence is given in Sesotho".
magistrate has done in this case goes against what has been said in
this case too.
was no specific need for any change in the Rules of both the High
Court and the Magistrate Court because in
Section 156 of the Constitution these Rules and other legislation:-
"Shall be construed with such modifications, adaptations,
qualification and exceptions as may be necessary to bring them in
conformity with the constitution".
this ground that accused was tried on no evidence as the Court of
Appeal in T. Lenka v Rex has stated, there can be no doubt
mistrial has taken place. The subsequent Rule 63 (5) (b) of the
Subordinate Court Rules has no retrospective effect. It
published in Legal Notice NO. 76 of 9th June 2006, while the
judgment is dated 5th April 2006. Even if it had, it is flawed
reasons that are expressed below. A precedent set by the Court of
Appeal such as T. Lenka v Rex cannot be set aside by a
rule of court
made under delegated powers.
amendment of the Rules of the Subordinate Court Rules by adding Rule
63 Sub-rule (5) (b) was not strictly necessary. However,
if it was
made - it should have followed the law. An interpretation of the
Subordinate Court Rules to align them with the Constitution
of Section 156 of the Constitution was all that needed to be done.
Rule 65 (5) (b) of the Rules of the Subordinate Court Rules was made
by the Chief Justice, it was wrongly made. It was done
our law of evidence and against a specific judgment of the Court of
Appeal in T. Lenka v Rex C of A (CRI) NO.2 of
rule making powers delegated to the Chief Justice are governed by
Section 16 of the High Court Act 1978. This section provides:-
Chief Justice may make rules of court for any one or more of the
following purposes -
regulating and prescribing the procedure (including the method of
pleading) and the practice to be followed in the court in
or matters whatever:
regulating and prescribing the procedure on appeals (other than
criminal appeals) from any court or person to the court.
prescribing the forms to be used in connection with any cause or
matter before the court.
prescribing the fees and percentages to be taken in the court; the
fees of advocates and the costs of attorneys; the costs
proceedings in the court; and the taxation and recovery of the same.
regulating the expenses of parties and witnesses, their amount and
the method and time of payment thereof.
in these rules empowers the Chief Justice to upset or overturn
judgments of the Court of Appeal. When the Court of Appeal
the magistrate writes in English is
evidence. When evidence is rendered in Sesotho - the Chief Justice
may not make it into evidence by a change in the rules of
Court. Similarly the Chief Justice may not alter precedents made by
fellow judges by the powers given to him by Section
16 of the High
Court Act 1978 unless these are procedural only. That being the case
Rule 63 (5) (b) of the Subordinate Courts in
so far as it interferes
with T. Lenka v Rex and other precedents is null and void - being
ultra vires of the Chief Justice. See
Riddell v Reed  ALL ER
161 at 167. In Rex v Padsha 1923 AD 281 at 290 De Villiers JA crisply
"As a general proposition it may be laid down that when a person
travels outside his powers, the Court will set him right".
JA in Rex v Padsha further added:-
"It is a generally accepted rule of universal application that
power must be exercised within the prescribed limitations and
purpose intended and no other".
is for the aforegoing reasons that the Chief Justice erred in making
Rule 63 (5) (b) of the Subordinate Court Rules, changing
the law of
evidence as interpreted by the Court of Appeal and overriding
precedents - which can only be done by the legislature.
being the case, I declare the proceedings before the magistrate a
I make an order that the proceedings before the magistrate to be
accused is to be retried before a different magistrate.
Crown - Mr. Sealiete
Applicant - Mr. Habasisa
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