CRI/APN/83/07

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

ABIEL
SELEKE APPLICANT

and

DIRECTOR
OF PUBLIC

PROSECUTIONS
1st RESPONDENT

MAGISTRATE-MASERU
2nd RESPONDENT

ATTORNEY
GENERAL 3rd RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara On the 7th August 2007

This is
an opposed application wherein the Court is being asked to review and
set aside proceedings in CR 182/07 and to order that
the matter start
de novo before a different magistrate. Although the matter was argued
before me as far back as the 16th April
2007, I could not deliver
judgment within a reasonable time due to the fact that immediately
after it was heard, the record was
erroneously sent back to the
registry and it took some time to locate it.

The
grounds that were canvassed on behalf of the applicant are that there
was no sworn interpreter during the trial in the court
a

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quo. This
is common cause. Mr. Habasisa who represented applicant made the
submission that on the strength of the decision of the
Court of
Appeal in the case of Lenka Thamae v Rex C of A (CRI) No 2 of 2004,
and that of Lephosa Kobile v DPP and Others CRI/APN/472/06,
the
record of the magistrate is not proper because 'where a person
interpreting the evidence for the purposes of record was not
a sworn
interpreter, he does not record the actual evidence of the witnesses
who spoke in vernacular'. Further that what the person
is recording,
is his own understanding of the evidence and that such evidence is
not on oath.

Mr.
Habasisa added that this has been declared a fatal irregularity
warranting such proceedings to be set aside.

In turn,
Ms Ngcobo made the submission that despite the principle that was
laid down in the above cited judgment, the Court must
take into
account the fact that on the strength of the work of M.P. Mofokeng in
Decision of the Court of Appeal and High Court
of Lesotho 1977 LLR p
154 though I have to add that I found this particular passage in the
case of Mofelehetsi v Mohoase &
Ano. 1977 LLR p 154;-

"Review proceedings are available to a person who is able to
show on affidavit evidence that his interests have been or will
be
prejudicially affected, or that he has been or will be injured or
aggrieved by the proceedings of the decision."

2

Counsel
for respondents also referred the Court to the opposing affidavit of
the magistrate wherein he refers applicant to Rule
2(b) of the
Subordinate Court Amendment Rules 2006 (Legal Notice No. 76 of 2006)
which provides as follows:-

“It shall be competent in civil or criminal proceedings for a
presiding officer to record evidence in English without assistance
of
a Court interpreter where all parties know and understand Sesotho and
the service of the interpreter cannot be secured without
undue delay
and expense or inconvenience."

Although
applicant had also raised the issue that he was denied legal
representation by the magistrate in his founding affidavit,
the issue
was not canvassed during submission or in the heads of argument.
However, perusal of the record reveals that applicant
was informed of
his right to legal representation and but he waived it.

I turn
now to consider the issue of the absence of the interpreter during
proceedings in the court a quo. The submission made by
Mr. Habasisa
on the basis of the authorities that he quoted to this Court is
correct. Likewise, the position stated by the 2nd
respondent as has
been laid down by the Subordinate Court Amendment Rules is also
correct.

3

In my
opinion, the above amendment is very crucial in that it addresses the
issue of the floodgates of review proceedings that have
been opened
since the Lenka Thamae case. Whilst I fully appreciate the reasoning
in that case, I am of the opinion that it cannot
be denied that our
magistrates are professionals whose command of the English language
cannot be compared with that of our sworn
albeit untrained
interpreters. The decision has thus in my humble opinion, created a
problem based more on technicalities than
on factual considerations
such as that more often than not, all parties to litigation know and
understand Sesotho.

I am
fully cognizant of this Court's judgment in the Lephoso Kobile v DPP
and Others CRI/APN/472/06 per Maqutu J

wherein
he found that Rule 63 (5) (b) of the Subordinate Courts

is ultra
vires of the Chief Justice. However in light of the reasons that I
have already stated above, it is with the greatest of
respect that I
do not agree that the making of this Rule by the Chief Justice was
ultra vires his powers. This is because I think
the quoted section 16
of the High Court Act 1978 that empowers him to make rules, gives the
Chief Justice a wide latitude especially
paragraph (a) which reads as
follows :-

"For regulating and prescribing the procedure (including the
method of pleading) and the practice to be followed in the court
in
all causes or matters whatever.n (my underlining)

4

However,
my opinion notwithstanding the provisions of the said rule do have a
qualification at the end to wit, a presiding officer
can record
evidence in English without the assistance of a court interpreter
where same cannot be secured without undue delay and
expense or
inconvenience.

It is
trite that Subordinate Courts are courts of record. This means that
if the said services could not be secured without undue
delay,
expense or inconvenience as it is so required, this should appear
clearly on the record otherwise there is no way that the
reviewing
Court can determine with certainty that those were the circumstances.
Alternatively and for the avoidance of any doubt,
the proceedings can
be (and have been) recorded in Sesotho.

Needless
to mention, matters that have to be remitted to the Subordinate Court
especially for reasons such as prevail in casu so
that they can start
de novo are frustrating not only to all parties concerned but also to
investigating officers and the Courts
themselves. I do not understand
why when the (Amendment) rule is so clear, it is difficult for some
of the presiding officers to
simply act in compliance thereof and
duly record such crucial information on record or alternatively
record the proceedings in
the Sesotho language.

5

It is
even worse in a case of rape where due to its very nature (not to
mention that of a young girl of 17 years as in casu), a
complainant
has to go through the whole process again thus having to relive and
recount such unfortunate facts.

In my
opinion, it is not only accused persons who should enjoy rights in
our Courts. We also have a duty to take into account, rights
of
victims. I do not have to state in detail the kind of ordeal that
such complainants have to endure, not to mention issues of
the
likelihood of contracting amongst others, HIV/AIDS and other related
ones. I accordingly find all of this very unfortunate
indeed.

However
despite all these factors and for the reason that the requirements of
the rule have not been met, I have no option but to
grant the order
sought in terms of prayers 1, 2 and 3 as they are stated in the
notice of motion.

It is my
further order that this matter should be set down for hearing on or
before the end of August 2007.

N. MAJARA

JUDGE

For
applicant : Mr. Habasisa

For
respondents : Ms Ngcobo

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