CIV/APN/363/06

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

THIBELLO
SEKAJANE APPLICANT

and

CLERK
OF COURT

MASERU
MAGISTRATE COURT 1^ST
RESPONDENT

CLERK
OF COURT THABA-TSEKA

MAGISTRATE
COURT 2^ND
RESPONDENT

THE
CROWN 3^RD
RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 21^st
December 2007

This is an opposed application
for an order to have the record of proceedings in CR
433/97 dispatched to
the Registrar of the High Court failing which applicant should be
released from prison.

The brief facts that brought
about this application are per the averments of the applicant in his
founding affidavit that he was
the accused in CR
433/97 wherein he
was charged with and convicted for culpable homicide and consequently
sentenced to eighteen (18) years imprisonment.
That it has been more
than one and half years since the judgment was delivered without him
being given access to the record for
purposes of filing an appeal.

He adds that numerous efforts
on the part of his attorneys of record to locate the record have been
futile in that they have been
sent from pillar to post by the 1^st
and 2^nd
respondents with the one claiming that the record is in the
possession of the other and vice versa hence the present application.

This is common cause.

On their part, after filing
their notice of intention to oppose, respondents filed a notice in
terms of High Court
Rule 8 (10)(c)
wherein they raised questions of law on the basis of which they
contend that this application ought to be dismissed.

The Rule provides as follows:-

“Any person opposing
the grant of any order sought in the applicant’s notice of
motion shall:

if he intends to raise any
question of law without any answering affidavit, he shall deliver
notice of his intention to do so, within
the time aforesaid, setting
forth such question.”

In casu,
the said questions of law are couched in the following terms:-

1. 
   The sentence and conviction of
   18 years is justified, as the sentence was passed by a Senior
   Resident Magistrate having discretionary
   powers to do the same.

   
   

2. 
   When the record cannot be
   found the court on appeal or review ought not to set the proceedings
   and sentence aside thereby releasing
   the accused person from prison
   if the adjudication of the appeal can be settled in some other
   manner.

   
   

In terms of the decision of
Ebrahim & Another
v Georgoulas & Another 1992 (2) SA 151
where a respondent, in motion proceedings, chooses not to file
opposing affidavits answering applicant’s allegations but
to
take a legal point only, the applicant’s allegations in his
founding affidavit have to be accepted. Needless to mention
the same
position applies herein.

On the date of hearing, by
consent and with the leave of this Court, both Ms
Kanono and Ms
Khaketla who were
representing the applicant and respondents respectively submitted
their written heads of argument without making any verbal

submissions.

On behalf of the respondents,
Ms. Kanono
submitted that when a record of proceedings cannot be found the
adjudication of such appeal can be settled in some other manner.
She
further contended that in
casu, the record is
not needed as the question of sentencing can be dealt with right
away. To this end she referred the Court to the
case of S
v Collier 1976 (2) SA 378.

In her submissions, Ms
Khaketla made
reference to Rule
52(4) (a) of the High Court Rules of 1980.
I should mention from the onset that this Rule is specifically
applicable to civil appeals from the Subordinate Courts and not

criminal appeals. It is therefore of no relevance in this matter.
Instead, the Rule which this Court ought to have been referred
to is
Rule 62 of the
Subordinate Court Rules of 1996.

In addition, most of her
submissions were on the issue of the propriety of the sentence that
was meted against the applicant by
the Court a quo. I find it
apposite to mention that in light of the questions of law raised by
the respondents, I will not consider
the submissions regarding the
position of the law on sentencing but will confine myself to the said
points of law.

However, even before I
determine the correctness of otherwise of the submission that Counsel
for the respondents made in that regard,
I should mention that it is
apparent that the
said submission is limited to cases where an appeal has only been
lodged against sentence. In the present case,
applicant has averred
at paragraph 10 of his founding affidavit that he wants to file an
appeal against both the sentence and the
conviction. This in turn
leads me to the question whether the issue of conviction can properly
be determined in the absence of
the record of proceedings of the
court a quo. I am of the view that this cannot be so.

At any rate, the Collier
case (supra)
quoted to this Court by respondents’ Counsel does not really
support her argument. For instance, in his judgment therein,
Burger
J stated as follows:-

“I am in respectful
agreement with the practice that where the whole record or a very
material part thereof has been lost prior to
review or to the appeal
being concluded, the proceedings and sentence should be set aside.
In such cases the Court of appeal or
review is clearly unable to
consider the case.”

The only distinction that the
learned Judge drew was in relation to cases where only some aspects
of the record, such as where some
of the answers of a witness on
matters which are not vitally important, are not recorded. To that
extent, he stated as follows
at p 379:-

“… the Court of
appeal should deal with the case on the best available record unless
it appears that evidence placed before a lower
court does not appear
on the record, that such evidence is material to the adjudication of
the appeal and that the issue as to
the missing evidence cannot be
settled by way of admissions or in some other manner. Where material
evidence is not on record
and the defect cannot be cured, the appeal
should succeed.”

I entirely agree with these
sentiments and hasten to add that in the present application, it is
not only certain aspects thereof,
but the whole record that is
missing so that it cannot be possible for the Court to decide any of
the issues raised in this application,
especially that of conviction
in its absence. In addition, the correct position of the law is that
if a record has been lost or
is incomplete it is the duty of the
presiding officer to reconstruct it from whatever source may be
available to him. In such circumstances
it is not permissible to
refer the matter back to the trial court for a trial de
novo. See in this
regard the decision of S
v Fredericks 1992 (1) SACR 561 (C).

In casu,
the Court takes judicial notice of the fact that the Magistrate who
presided over that trial has since been appointed as a Judge
of this
Court. Therefore, it would be absurd to expect him to be able to
reconstruct a record which is more or less a replica
of the lost one
especially regard being had to the time that has passed since his
judgment was delivered which was in September
2002.

Over and above this, it is
trite law that an accused is entitled to an appeal as a matter of
right. He/she is also entitled to
challenge the propriety of his
conviction and sentence but in the absence of the record of the
proceedings this cannot be realised.
Thus in the decision of S
v Marais 1966 (2) SA 514 the
learned Judge held that if something happens affecting the appeal,
which makes a just hearing thereof impossible through no
fault on the
part of the appellant, then the appellant is prejudiced and there may
be a failure of justice. He added that if this
failure cannot be
rectified it would seem that the conviction cannot stand because it
cannot be said that there has not been a
failure of justice.

It
has further been stated that:-

“Where it is
impossible to reconstruct a missing record and the lost portion
contains evidence which is of material importance to
the adjudication
of an appeal, the appeal ought to succeed and the conviction and
sentence set aside”.

[Du Toit et al. 1993. A
Commentary on the Criminal Procedure Act].

In the present case I am of the
view that the applicant has been seriously frustrated in his efforts
to exercise his right to appeal
and consequently prejudiced through
no fault of his but that of the 1^st
and 2^nd
respondents. This is clearly an unfairness that amounts to a serious
miscarriage of justice. As a result, it is my opinion that
it would
be unjust and unreasonable for this Court to sanction his being kept
in prison when it is clear that he is effectively
unable to challenge
the correctness of his conviction and sentence.

In the light of all the above
reasons, I order that the conviction and sentence be set aside and
the applicant be released from
prison forthwith with costs.

N.
MAJARA

JUDGE

For applicant : Ms Khaketla

For respondents : Ms Kanono