CRI/APN/444/2007

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:-

RETHABILE
KOESHE APPLICANT

AND

THE
MAFETENG MAGISTRATE COURT 1st RESPONDENT

THE
DIRECTOR OF PUBLIC PROSECUTIONS 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 11th October, 2007

This case
has come to this on review. The applicant was charged in the
Magistrate's Court for the District of Mafeteng in Count
I for theft
of a motor vehicle and in Count II under Section 9(1) of Act NO.
13/2000 for displaying fake registration numbers.
Asked to plead
accused had pleaded guilty to both charges and after the Public
Prosecutor outlined his case the accused admitted
facts as outlined
by the Public Prosecutor whereupon the court convicted the accused
sentencing him on

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both
counts to a fine of M7000.00 or 5 years imprisonment. It is against
the conviction that the applicant has approached this court
for an
order that:-

1. The
   judgment of the 1st respondent in CR 31 of 06 be reviewed, corrected
   and set aside and the applicant be released from prison
   forthwith,
   ALTERNATIVELY,

   
   

2. An
   order acquitting the applicant from prison as he had been convicted
   contrary to the principle in LEPHOSO KOBILE V DPP CR/APN
   /472/06
   ALTERNATIVELY.

   
   

3. An
   order invalidating proceedings in 30/06 due to failure to inform the
   accused of his right to legal representation contrary
   to principle
   in Den Andere 1997 (2) SACR 647 (c).

   
   

4. ALTERNATIVELY

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The
declaratory that proceedings in CR 310/06 are nullity in that they
have been conducted in violation of applicant's fair trial.

The
application is opposed.

The
applicant in his Founding Affidavit has alleged at paragraph 5.2 that
charges were read to them and they acknowledged they understood;

further, that they were advised of their right to legal
representation and bail. Paragraph 5.3 is a turnaround to paragraph
5.2
above for the applicant alleges they suffered prejudice "because
even if these rights were explained to us we never heard".
I do
not understand what it is that the applicant did not hear for in
paragraph 5.2 above he claimed "they said they understand"

meaning they understood charges against them and in any event they
were advised of their legal right as to legal representation
and
bail. I am of the view if they did not understand it was for them
when charges were read and their right to legal representation
and
right to bail spelt out, to

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protest
and inform the magistrate that they did not understand. Indeed if
they did not understand it is expected of applicant to
say I did say
that I did not understand and the magistrate did not record me
correctly. The applicant has also alleged at paragraph
5.3 thereof
that the magistrate was "talking in English" and "there
was no interpreter" and I am wondering
how the applicant
acknowledged understanding the charges against him and his right to
legal representation and right to bail unless
these were interpreted
to him. In any event the same day applicant was convicted the charge
sheet shows the interpreter to have
been one M. Mahloko and the
learned magistrate in his Answering Affidavit has affirmed this and I
am of the view it was unnecessary
for the interpreter to have
personally affirmed his/her presence. The magistrate has recorded
proceedings in both Sesotho and English
and I disagree that recording
in English was on account of there being no interpreter for properly,
recording in English is the
result of there being an interpreter.
What courts of law object to is a judicial officer acting as an
interpreter. I disagree that
applicant suffered prejudice.

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At
paragraph 5.4 quite incredibly the applicant has alleged he was in
Count I charged of theft at common law and statutorily for

contravening Section 9(1) of Act 13 of 2000. He says there is in
these charges duplication of charges. I could not disagree more.

Count I is theft at common law and Count II has to do with false
identification numbers. It is indeed duplication of charges where,

for the same offence, one is charged at common law and statutorily.
In this case there are different offences. In Potgieter v Regina

LHCTR at p.292 the appellant was charged statutorily of two offences
but one of the charges lacked specifications making it difficult
for
accused to know which charge he faced. As accused was embarrassed not
knowing which charge to meet, it was said the charge
was bad for
duplicity and it was accordingly quashed on appeal. In the instant
case Count I and Count II are recorded in clear
terms being two
separate and distinct charges and it cannot be said that they are bad
for duplicity.

As for
paragraph 5.5, I disagree because theft is a continuous offence. As
for paragraph 5.6, I am of the view the

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applicant
should have informed the magistrate of this fact for, before the
magistrate, applicant's rights have an element of protection.

Concerning paragraph 5.7, the court is of the view it was sufficient
accused persons told the court they are proceeding unrepresented
for
this is what they told the court and the reason the court proceeded
with the trial. I disagree the proceedings are flawed or
that they
are irregular.

Accordingly,
the application is dismissed.

G.N.
MOFOLO

JUDGE

For the
Applicant : Mr. Habasisa

For the
Crown : Mr. Tlali

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