CRI/APN/329/06
IN THE HIGH COURT OF LESOTHO
In the matter between:-
LEKHOTLA TSOSANE PETITIONER
and
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 16th April 2007
This is an application for review. The grounds upon which the petitioner relies are contained in his founding affidavit wherein he avers as follows :-
"After pleading guilty to the charge the PUBLIC PROSECUTOR
outlined the facts in Sesotho in the physical absence of the interpreter of which I was informed the information (sic) I verily believed that in law that was irregular.
So I was further informed that if the presiding officer envisages a heavy sentence, he should not only say legal representation accused is informed about it, he must go further and encourage him to engage a lawyer."
Further down at paragraph 10 the petitioner states:-
"Looking at the outline of the facts on the record at page 4. (sic) The behaviour of the complainant is not that of the person who had sexual intercourse without consent i.e.
That the complainant told the accused to stop having sexual intercourse with her and it is said I accordingly complied.
Having complied, I apologized and asked for pardon and finally I volunteered to accompany her to her home.
She promised to forgive me.
Surely this behaviour does not show that the complainant was raped. A reasonable women (sic) cannot allow a rapist to accompany her. I was only because (sic) she was confronted by her parents as she arrived home late in the night."
The application is opposed and the opposing affidavit is deposed to by one M. P. Mohapinyane. He answered as follows to the averments
contained in paragraph 6 of the founding affidavit:-
"I did outline the facts in Sesotho in the physical presence of the interpreter, and I would like to refer the Honourable Court the (sic) charge sheet, where it is shown that, the interpreter was one L. Chakolane.
The applicant was indeed informed of his right to legal representation; I would like to refer the court to the
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page dated 13/01/05 of the record. First paragraph." (sic)
In reaction to the averments contained in paragraph 10 of the founding affidavit, the deponent had this to say:-
"Contents herein are denied. And I wish to answer as follows;
The record shows that the accused asked for forgiveness after committing such an offence. I therefore like to invite the Honourable
Court to page 4 of the record, which is the corroboration of what the applicant is saying on his founding Affidavit I turn now to consider the grounds for review.
The term review is dealt with in inter alia, Isaacs in his work; Beck's Theory and Principles of Pleading in Civil Actions p325. Therein, the learned author adopts the definition of the word as enunciated by Innes CJ's in the case of Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 11 in the following words:-
"In its first and most usual signification it denotes the process by which, apart from appeal, the proceedings of inferior
courts of justice, both civil and criminal, are brought before this court in repect (sic) of grave irregularities occurring during the course of such proceedings...n
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The learned author continues to list the grounds upon which it is competent to bring such proceedings under review as:-
Incompetency of the court in respect of the cause of action such as absence of jurisdiction.
Incompetency of the court in respect of the judicial officer such as that he or a near relative had an interest in the cause.
Malice or corruption on the part of the judicial officer.
Gross irregularity in the proceedings.
The admission of evidence which should not have been admitted or the rejection of evidence which should have been admitted.
In casu, the first ground upon which the petitioner approached this court is that an irregularity occurred during the proceedings for the reason that the public prosecutor outlined the facts in Sesotho in the physical absence of the interpreter.
The said prosecutor, deponent to the opposing affidavit denied that when he outlined the facts, the interpreter was not physically present. He averred that the latter i.e. L.
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Chakalane was present and went on to refer the Court to the charge sheet for verification of same. Indeed on the charge sheet, the portion in which the name of the interpreter should be filled bears the name of L. Chakalane.
The petitioner did not file any replying affidavit. Usually when this is the case, the Court can proceed on the basis of the credibility of the respondent's version per the principle in Plascon-Evan Paiants v Van Riebeeck 1984 (3) SA 623. In this matter, not only has the petitioner failed to file a reply but ex facie the record, (the charge sheet being part of same) I have no reason not to accept the respondent's version that an interpreter was present during the proceedings. The averment was not challenged, not to mention that I do not think a Magistrate being a Court of record, would reflect it on the record unless it was a fact.
Since this ground was not elucidated any further, I am not going to assume that the petitioner is alleging that the proceedings were conducted in Sesotho and recorded in English without the assistance of a sworn interpreter per the position stated in the case of Thamae Lenka v R C of A (CRI) 2 Of 2004, That is not the job of the Court more especially where the case is handled by legal Counsel. If this was his suggestion, he should have come out clearly and stated so.
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I turn now to deal with the ground that if a presiding officer envisages a heavy sentence, he should not only advise accused to get legal representation but must go further and encourage him to engage the services of a lawyer. The respondents have not challenged the averment that at the time he was read his rights, the petitioner was not encouraged to get legal representation. The issue for determination is therefore whether failure to do so vitiates proceedings.
The position that has been laid down in the case of S v Baloyi 1978 (3) SA 290 and S v Radebe, Mbonani 1988 (1) SA 196
is that there are cases where because of the gravity of the charge or the complexity of the matter, the accused ought to be represented in the interests of justice and should also be encouraged to exercise such a right and to be given reasonable time to do so. However, this is with the rider that the yard stick is whether at the end of the day there was a miscarriage of justice. As the Court stated in the Radebe, Mbonani case:-
"A failure on the part of a judicial officer to do this, having regard to the circumstances of a particular case, may well be a complete failure of justice. The absence of legal representation per se or the absence of the suggested advice to an accused per se will not necessarily result in such an irregularity or unfair trial and the failure of justice."
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Goldstone J proceeded to consider other cases wherein the right of the accused to legal representation was dealt with. He made reference to inter alia the case of Baloyi (Supra) wherein Margo J stated that:-
"However, where he does not seek it, and where no irregularity occurs by which he is deprived of it, there is no principle or rule of practice of which I am aware which vitiates the proceedings."
Coming back to the case at point, I proceed to consider whether the trail Court's failure to encourage the petitioner to seek legal
representation resulted in an irregularity or unfair trial.
On the first page of the attached record of proceedings the Magistrate has recorded as follows:-
"The accused person is before court. The charge is read and explained to him. He is advised of his legal rights, inter alia,
right to be legally represented and right to apply for bail. He understands and he elects to proceed on his own. He is further
advised of the seriousness of the charge against him. He understands."
The record further shows that after this was done, the petitioner pleaded guilty and the prosecutor proceeded to outline the facts of the case which the petitioner accepted.
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Upon reading the outlined facts, I have no doubt in my mind that the charge of rape was proven beyond any reasonable doubt contrary to what was suggested by counsel for the petitioner. Further, not only did the petitioner plead guilty and accept the facts as outlined by the public prosecutor, he also in his mitigation and of his own volition, showed that he had already asked for forgiveness from the complainant and her parents as well as promised that he would compensate the complainant for what he did to her which further supported the fact that he was aware that he had committed an offence.
When taking all these factors into account, I do not think that the mere failure by the Magistrate to encourage the petitioner to seek legal representation resulted in an irregularity or unfair trial. Though serious, the charge was not complicated and the plea of guilt did not necessitate a protracted trial wherein the accused might have encountered complications and/or technicalities in putting across a defence.
A plea of guilt is permissible in our law and one hardly needs representa tion of a lawyer where one is not denying one's guilt. I am aware that in his averments, the petitioner alleged that he pleaded guilty because the prosecutor had promised him that if he did so, he would be given a lenient sentence. This was however denied by the prosecutor in his opposing affidavit
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and the fact that no reply was filed did not take the petitioner's point any further.
The other grounds which I quoted above as contained in paragraph 10 of the founding affidavit, deal with the evidence. I therefore accept the submission made by Mr. Peete for the respondent that these are grounds of appeal and not of review. I will therefore not consider them for purposes of this application.
It was also suggested by Mr. Pitso on behalf of the petitioner that the words that appear on page 8 of the record to wit, he can also appeal if he so wishes' show some doubts on the part of the presiding officer. Indeed, such words are recorded on the said page however, they are preceded by the following:-
"These proceedings are send (sic) to the High Court of Lesotho for automatic review. The accused shall be advised of the results of the review."
The Magistrate then further informs him that he can appeal if he so wishes.
Upon reading the entire paragraph in its totality, it is my view that the Magistrate was informing the petitioner about the avenues that were available to him even after his conviction and sentence. I do not think that the only inference that this
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Court can draw from these words is that he/she had some doubts. As I have already stated, I am more inclined to believe that the petitioner was being made aware that, though the case was subject to automatic review, this did not preclude his option to appeal.
It is on the basis of these reasons that I do not think that any irregularity occurred during the trial that would vitiate the proceedings of the court a quo. I accordingly dismiss the application.
N. MAJARA
JUDGE
For petitioner : Mr. Pitso
For respondents: Mr. Peete
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