CRI/APN/43/2007

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

MONGOLI
LEBUSO APPLICANT

and

MAGISTRATE
MASERU 1^ST
RESPONDENT

DIRECTOR
OF PUBLIC

PROSECUTIONS 2^ND
RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 12^th
February 2007

By way of notice
of motion, applicant approached this Court for relief in the form of
review and declarator as follows:-

1. 
   That the
   continued detention in prison of applicant herein be declared
   unlawful.

   
   

2. 
   That the
   proceedings in CR
   1396/06
   dated the 10^th
   November 2006 be reviewed, corrected and set aside as irregular.

   
   

3. 
   That applicant be
   released from prison forthwith.

   
   

4. 
   That applicant be
   granted such further and/or alternative relief as this Honourbale
   Court may deem fit.

   
   

On the 2^nd
February 2007 when the matter was argued before me, respondents had
not filed their papers despite their having been ordered to
do so on
or before the 30^th
January 2007 nor was there any representation on their side. The
application is as such, unopposed.

As a starting
point, Counsel for applicant, Mr.
Thulo
moved the Court to release applicant for the reason that he should
not have been remanded into custody without compelling reasons
being
furnished as it is provided for by the Speedy
Trials Act No 9 of 2002
and the 1993
Constitution.

Applicant was
first remanded into custody on the 10^th
August 2006 after which he fell ill and was hospitalized. He was
later discharged from hospital and on the 10^th
November 2006 he applied to be released from custody in terms of the
provisions of the Speedy Trials Act but his application was
refused
and the Magistrate informed him that his case was ready to be heard.

Applicant averred
in his founding affidavit that the said application and the reasons
for its denial were not recorded and that
to date, his trial has not
yet taken off despite his having been informed that his case was
ready for hearing. It is applicant’s
case that the Magistrate
committed an irregularity in failing to record his application for
release and the compelling reasons
for his being kept in custody
after the prescribed period of sixty (60) days had lapsed.

I turn now to deal
with the arguments made on behalf of applicant.

Attached to the
Court file is a record from the Magistrate Court comprising of the
charge sheet, the annexure thereof and the minutes
of the remands
respectively. From the said record, applicant was first remanded on
the 10^th
August 2006 whereby the charge and his rights were read and explained
to him. This was followed by a series of remands throughout
the
months of September, October, November, December and January.

From the 24^th
November, 2006 up till the 8^th
January, 2007, which made up a total of the last four (4) remands
before this application was filed, the minutes reflect that the
case
was remanded for set down during the said four appearances.
However, it has still not been set down part of the reasons
being
that the prosecutor handling the case was not present during some of
the mentioned remands.

The minutes also
show that as has been averred by applicant in the pleadings, nothing
suggests that he ever moved an application
to be released from
custody per the provisions of the Speedy Court Trials Act 2002, or
that any compelling reasons for refusal
of same were recorded. The
record simply does not reflect such proceedings.

As I have already
shown, this application is unopposed which means that all the
averments deposed to by applicant as supported by
the record, stand
unchallenged i.e. that he moved the application and the Magistrate
refused it but failed to write down compelling
reasons for so
deciding.

Section 4 of
the Speedy Court Trials Act 2002
to which I was referred to by counsel for applicant provides as
follows:-

“A person
shall not be remanded in custody for a period exceeding 60 days
unless there are compelling reasons to the contrary and
such reasons
shall be recorded in writing.”

On the basis of
applicant’s un-controverted averments and from the minutes of
the record as it stands, I can only assume that
absence of compelling
reasons in writing from the record means the provisions of Section 4
were not complied with.

In addition,
Section
6 (1) of the Subordinate Court Act 1998 (as amended)
provides that every subordinate Court shall be a court of record. It
therefore goes without saying that where an application such
as in
casu
is made before a Magistrate, it should be recorded together with the
ruling. Where this has not been done, then the applicant
is entitled
to be given the benefit of doubt as was stated by my brother, the
learned Ramodibedi J in the case of Phakiso
Seate v Rex C OF A (CRI) NO. 4 OF 2000 (unreported) p4.
I may hasten to add that in
casu, I
do not think any doubt exists as far as applicant’s
unchallenged averments are concerned.

I might also add
that, that the principle of affording an accused a fair trial
includes his being tried as speedily as possible
and his liberty
being interfered with as minimally as possible is trite. Whilst
there could be compelling reasons why applicant
should be kept in
custody until his trial is finalized, Section 4 above is clear that
these must be recorded in writing. Where
this has not happened as
in
casu
despite applicant having made such an application before the
magistrate, it clearly runs contrary to the constitutional right of
a
subject to a speedy and fair trial.

Without further
ado, I am satisfied that applicant has made out a case for the relief
sought and I accordingly grant the application
as prayed for in terms
of prayers 1, 2 and 3 as they appear in the notice of motion.

N.MAJARA

JUDGE

For
applicant : Mr. PR Thulo