C OF A
(CRI) 14/06

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:-

MOHLOMI
SEUTLOALI APPELLANT

and

DIRECTOR
OF PUBLIC

PROSECUTIONS
RESPONDENT

CORAM:
STEYN, P

RAMODIBEDI, J.A

MOILOA, A.J.A.

HEARD:
15 OCTOBER 2007

DELIVERED:
24 OCTOBER 2007

SUMMARY

Review -
Principles thereof discussed - Inordinate delay - The appellant
instituting review proceedings almost six years after his
conviction
and sentence - the High Court dismissing the review application on
the grounds of undue delay - Court's discretion whether
or not to
condone delay - No miscarriage of justice established - Appeal
dismissed.

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JUDGMENT

RAMODIBEDI,
J.A.

[1] This
appeal arises from a judgment of Monapathi J in the High Court
dismissing the appellant's review application. The story
in this
matter begins with the appellant's conviction by the Chief Magistrate
in the Maseru Magistrate's Court on 10 April 2000,
on a charge
containing one count of robbery, two counts of rape and one count of
assault with intent to do grievous bodily harm.
The appellant had
been sentenced to an effective period of 15 years' imprisonment.
Hence his review application to the High Court
on a notice of motion
filed on 5 April 2006. As can readily be seen, this was a delay of
almost six years. I shall return to this
aspect of the case shortly
in this judgment.

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[2] The
appellant's grounds of review are recorded in paragraph 13 of his
founding affidavit in the following terms:-

"I am not satisfied with the conduct of proceedings in CR 408/97
on the following grounds,

13 1 The Learned Magistrate did not secure the services of a sworn
interpreter thereby rendering the whole evidence a nullity by

interpreting the Sesotho testimony into English

13 2 The Learned Magistrate has not, to date, furnished me with
reasons for both conviction and sentence

13 3 1 have not, to date, been furnished with any report or proof
that the matter ever went to the High Court for automatic review

[3] On 15
August 2006, the learned Judge a quo dismissed the appellant's review
application as indicated above. The learned Judge's
decision is
contained in what he terms a "Ruling", comprising three
short paragraphs which are hereby reproduced verbatim
for
convenience:-

"There
has been undue delay in filling (sic) of the review application, that
is, between the conviction, the sentence and the
actual date when the
review proceedings were filed On this ground alone I would decide
that the review application must fail 1
am mindful about my exercise
of discretion which 1 said I am entitled to exercise despite the fact
that the crown has been non-suited

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Whether
the point about absence of interpreter or absence of reasons for
sentence would have been valid, which are essentially grounds
of
appeal, or even if I would have been inclined to consider, I refuse
to do so against the background of the reason in I above.

As I find
this review application is not bona fide and it is opportunistic
where it makes reference to decision of the court given
after the
verdict and sentence were pronounced against the above background
there is no proof that the proceedings were tainted
with
irregularities. In any event it would be contrary to principles that
the decisions of the court a quo are quashed merely because
there is
a challenge to the same brought about after such a length of time. It
would set a bad precedence (sic) and militate against
good
administration of justice and it is abuse of court process. "

[4] It is
necessary to point out at the outset that, unlike an appeal, there is
no specific time limit laid down for a review. A
court seized with a
review application, however, is fully entitled to refuse to entertain
such proceedings if it considers that
there has been unreasonable
delay. Each case must nevertheless be considered in the light of its
own peculiar circumstances, including,
but not limited to, prejudice.

[5] I
should be prepared to emphasize at this stage that, as a matter of
general principle, courts are loath to hear review

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applications
which are brought after unreasonable delay. In this regard I am
mainly attracted by the remarks of Gregorowski J expressed
some 111
years ago in Louw v Mining Commissioner (1896) 3 OR 190, 200, namely,
that courts are reluctant to hear an applicant who
"now wishes
to drag a cow long dead out of a ditch." This, I am afraid, is
exactly what the appellant seeks to do in
this case.

[6] It is
important to recognise that the concerns about undue delay of the
institution of review proceedings are, in my view, mainly
motivated
by four factors, namely, (1) finality to litigation, (2) prejudice to
the party which has obtained judgment in having
to await execution
thereof, (3) the need to hear maters while they are still fresh in
the minds of the parties and witnesses and
(4) by the consideration
of the impact a ready recourse to the re-institution of proceedings
has on the efficient administration
of justice. The Criminal

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Courts
are already over-burdened and should not be unnecessarily placed
under greater stress than they already are.

[7] The
appellant's explanation for the delay in bringing his review
application, as gleaned from his founding affidavit, is three-fold,

namely:-

1. That
   he awaited an "automatic review" to the High Court in the
   matter. In my view this is a lame excuse since the decision
   of the
   Chief Magistrate is not liable to "automatic" review to
   the High Court. In fairness to him, Mr. Thulo for the
   appellant
   abandoned this point both in the court a quo and in this Court.

   
   

2. That
   he could not launch review application for financial constraints on
   the part of his "parents" regarding legal representation.

   It is interesting to note that he pitches his alleged financial
   difficulty at the

   
   

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level of
his parents. No attempt is made to explain why he could not
personally afford the proposed review, if any. It should be

remembered for that matter that there is legal aid in this country as
provided for in Legal Aid Act 1978. In any event, there is
not an
explanation proffered why the appellant could not launch the
application in person. In this regard Rule 17 of the High Court
Rules
1980 provides:-

"17.
(!) The following persons are entitled to an audience in the High
Court

1. a
   litigant in person;

   
   

2. an
   attorney;

   
   

3. an
   advocate, only when duly instructed by an attorney. "

   
   

(3) That
when funds were finally available in 2005, he instructed his legal
representative, Mr. Rats'olo Thulo, who was allegedly
unable to
obtain a copy of the record of proceedings in the matter. It was

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finally
decided, on appellant's version, to file an affidavit of the
magistrate responsible over both the civil and criminal registry
to
the effect that the record was untraceable. But again it will be seen
that, unlike an appeal, the launching of a review does
not
necessarily depend on the record of proceedings. In fact the
procedure for review as laid down under Rule 50 of the High Court

Rules 1980 is such that the applicant simply files a notice of motion
with the High Court calling upon the presiding magistrate
to dispatch
to the Registrar, within fourteen days of the receipt of the notice,
the record of the proceedings sought to be reviewed.
Otherwise an
applicant's case is contained in a founding affidavit. It follows
that the story about the missing record of proceedings
cannot avail
the applicant in the circumstances.

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[8] It
would seem from paragraph [2] above that the appellant's real
complaint is that the learned Chief Magistrate did not secure
the
services of a sworn interpreter at the trial but that he allegedly
acted as his own interpreter from Sesotho to English. It
should be
noted, however, that the appellant has made no attempt to
substantiate this allegation. Apart from this factor, it seems
highly
unlikely that such an experienced judicial officer as the late Chief
Magistrate in question could have committed the irregularity
imputed
to him. It is thus difficult to resist the conclusion that the
appellant brought a limping case on this score alone. In
view of the
lengthy delay it may well be impossible to determine the reliability
of the appellant's bald averment that the alleged
irregularity
occurred. To do so would mean that in any review application where
the record is no longer available, the ipse dixit
of an accused would
have to be accepted. This is clearly unacceptable.

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[9] It
must be stressed that the learned Judge a quo had a discretion
whether or not to condone the appellant's admitted long delay
of
almost six years in launching a review application in the matter. It
is well-established that an appellate court will not lightly

interfere with the exercise of a lower court's discretion. Generally
speaking, it will do so only when the lower court has failed
to
exercise its discretion judicially or where it is shown to have acted
mala fide or for improper reasons. This is not such a
case.
Furthermore, it must always be borne in mind that in exercising its
discretionary function a court has a wide discretion
in deciding
which relevant factors should be allowed to influence it. See for
example Lehlohonolo Tsehlana v National Executive
Committee of the
Lesotho Congress for Democracy and Another C of A (Civ) No.18 of
2005. Viewed in this way, I am not disposed to
find fault with the
learned Judge a quo's discretion in the matter. On any account, a
delay of almost six years before instituting
review

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proceedings
was both inordinate and inexcusable in the circumstances. In this
regard it is further instructive to note that this
is not a case
where a miscarriage of justice has been shown to exist. There is not
the slightest suggestion in the appellant's
founding affidavit that
his conviction was insupportable.

[10] The
result is that there is no merit in this appeal and it is accordingly
dismissed.

M.M. RAMODiBEDI

Justice of Appeal

I agree:

J.H. STEYN

President of the Court of Appeal

I agree:

J.T.M. Moiloa

Acting Justice of Appeal

For
Appellant: Mr. P.R. Thulo

For
Respondent: Mr. T. Mokuku