CRI/APN/495/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:
KEKETSO KHAMANE Applicant
and
THE DIRECTOR OF PUBLIC
PROSECUTIONS 1sl Respondent
THE MAGISTRATE MASERU 2nd Respondent
THE ATTORNEY-GENERAL 3rd Respondent
Judgment
Delivered bv the Hon. Mrs Justice A. M. Hlajoane on 12th February, 2007.
This matter is before me on review of the proceedings from the Magistrate's Court -Maseru.
The DPP's office filed their opposing affidavit on behalf of all the Respondents. The grounds for applying for a review being that:-
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(i) There was no interpreter in Court
(ii) He was not informed or advised of his right to legal representation.
(iii) That he was cheated by the Public Prosecutor in admitting guilt and was promised a lenient sentence, when in fact he never committed the offence.
(iv) He was not advised of Legal Aid.
Before we can even start with anything, there has to be a distinction made between how the High Court operates in recording its proceedings, be it civil or criminal, and how the Magistrates' Courts operate. Both these Courts are Courts of record. At the Magistrate's Court it is the Magistrate who produces a record in every case, but at the High Court what is written by a Judge are Judge's notes. The record will be what will be produced from the recording tapes.
So that when a matter is sent for review to this Court the record that is sent to us is what has been written by the Magistrate, which is a Court's record.
The record that has been sent to this Court, the photocopied version, which has been certified as a true copy of the original
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reflects on the charge sheet on space provided for showing an interpreter that one M. Mokoteli was an interpreter. I do not only know why the Crown counsel did not find it fit to attach also an affidavit from either the Public Prosecutor or the interpreter himself. But the record has shown that there was an interpreter in Court. This Court being a Court of record ex facie show that there was an interpreter in Court.
The record also shows that the Magistrate before asking Applicant to plead he informed him of his right to bail and to legal representation. There were four accused persons in all and all elected to appear in person. Some pleaded guilty and others not guilty to the charge. A separation of trials was applied for and was granted.
What the Magistrate had further recorded is that those who pleaded guilty had even intimated that they understood that their pleas might attract a serious punishment. In fact the separation of trials was done after the two that had pleaded guilty had shown they understood the import of having pleaded guilty.
So that the record ex facie show that Accused were advised of their rights including that to legal representation.
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Being advised to Legal Aid, the Respondents in argument and in particular the opposing affidavit show that it was not under the circumstances the duty of the magistrate to have advised Accused on that. It will only be when Accused show that they have no funds to pay such fees for a lawyer of their choice that he could be advised of services of the Legal Aid. There was therefore no irregularity here causing prejudice to anybody.
The Magistrate's Court being a Court of record, nowhere has it been shown on the record that the accused was or had been influenced by the Public Prosecutor. Neither has it been shown that Applicant ever said he had pleaded guilt}7 because he had failed to report when his co-accused raped the victim.
What the record show is that Applicant after the outline of facts was recorded to have said "I fully agree with the outline by the DPP". In mitigation Applicant showed he did not rape intentionally but that he was influence by the other Accused, who pleaded with him that if he did not also rape, he was going to cause his friend to get arrested.
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I therefore find that all the grounds for review are without merit and have to be dismissed. No irregularity has been proven. I therefore dismiss the application.
M. HLAJOANE
JUDGE
For Applicant: Mr Habasisa
For Respondents: Mr Joala
