IN THE HIGH COURT OF LESOTHO
CRI/APN/580/2007
CR 59/2005
In the matter between:
SOOKO PHITANE APPLICANT
VS
D. P. P. 1ST RESPONDENT
MOHALES HOEK MAGISTRATE COURT 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
JUDGEMENT
Delivered by the Honourable Judge M. Mahase
On the 14th March 2008
This matter has been brought before this court for review. The notice of motion in this regard having been filed in the High Court on the 23rd October 2007; same had been served upon the offices of the Senior Crown Counsel on the 22nd October 2007.
The present applicant and two others who have not noted an application for a review have been convicted in the Mohales hoek court of the Chief Magistrate.
In the notice of motion, dated the 15th October 2007 the applicant, Sooko Phitane has applied for the following orders to be granted:-
That judgment in CR59/05, CR153/04 and CR208/05 of the Mohales hoek Magistrates Court be reviewed, corrected and set aside;
The matter(s) be heard de novo before a different magistrate;
Accused be released from prison.
The Clerk of Court be directed to transmit the record of proceedings
That applicant be granted further and alternative relief.
The Clerk of Court was by order issued by my sister Chaka-Makhooane AJ ordered to dispatch to the Registrar of this Court the above shown records on or before the 24th December 2007, failing which to file an affidavit to the effect of what happened to the records.
It was further ordered that the matter should proceed on the 28th December 2007.
There is a long history showing that this review application has been pending before this court since the 19th November 2007 according to the first court minute on the file herein.
However the Clerk of Court of the Mohales hoek Magistrates Court wrote a covering letter dated the 28th/31st December 2007 by which she was dispatching only CR59/05 to the office of the Registrar of this Court.
There is, and contrary to the order of Court this court dated the 18th December 2008, no affidavit as to what has happened to the other records of proceedings, to wit CR153/04 and CR208/05.
In fact it is apposite to mention that the said order of court dated the 18th December 2008 was not the first one to be issued by this court to the same effect.
The same or a very similar order was issued by my brother Peete J on the 29th October 2007. In that order, the Clerk of Court had been ordered to dispatch the said records to the Registrar of this court within
fourteen (14) days for the purpose of review by the High Court.
That was never done and there is nothing on record indicating why this order was not complied with.
Be that as it may, bottom line is that as of now, only CR59/05 has been dispatched to the office of the Registrar. This court does not know if the other records were subsequently so dispatched and what their fate is. It would however have been correct and fair that all of the above-indicated records were simultaneously dispatched to this court as having been ordered because they are all subject-matter in this application 580/2007.
Having perused the record of proceedings herein CR59/05 earlier, this court had ordered that the said record be returned to the Clerk of Court for Mohales hoek district for it to be typed because the hand writing is illegible.
Also there is a portion of proceedings in CR65/05 which is not subject matter in the present application but which has formed part of the record of proceedings to wit CR59/05. Not only that, the said piece of the court record is incomplete because it does not show the names of the accused person, the charge he was facing and last but not lease, it was written by a different magistrate from the Chief Magistrate who had presided over CR59/05. This court does not know why that piece of paper was attached to the record in CR59/05.
The court was however persuaded successfully by Mr. Habasisa to concentrate and deal with the proceedings in CR59/05 wherein he appeared on behalf of the applicant, Sooko Phitane. There being no objection and both counsel having already filed their submissions, the matter was argued on that 18th February 2008.
This is however not to be interpreted nor to be understood to mean that this court is happy at the way the Clerk of Court of the Mohales hoek Magistrates Court has with impunity disregarded the orders of this court. That kind of behaviour is greatly frowned upon by this court.
It is only fair and just that the matter regarding the dispatch of the remaining records of proceedings to the office of the Registrar of this Court should have been pursued. Failing which counsel for applicant should set the law in motion so as to ensure that in future the wheels of justice are not grounded to a halt because of total disregard of orders of this court.
There has to be an explanation as to why those records have not been so dispatched to this court as had been twice ordered. It is the wish of this court that matters such as this one be brought to the attention of the Clerk of Court in Mohales hoek. He/she should explain to this court as ordered as to why those records have not been dispatched to this court. This total disregard of orders of court is detrimental to the proper administration of justice.
Facts in this CR59/2005 are briefly that:-
The applicant appeared before the court of the Mohales hoek Chief Magistrate. It was alleged that the said accused (there were three of them, the present applicant being A1) is charged with the crime of house breaking with intent to steal and theft.
In that upon or about the 20th day of January 2005, and at or near Motse-mocha in the Mohales hoek district the said accused did unlawfully and intentionally and with intend to steal, break and enter the house there situate of Manti Perekisi and unlawfully steal the following:-
Television set
Video Machine
Hi-Fi (Radio)
Compact Disc Player
12 Compact Discs (CDs)
2 x Remote Controls
Duvet Set
5 Blankets
The property or in the lawful possession of the said Manti Perekisi (see annexure A to the charge in CR59/2005).
The accused 1 Soko Phitane is said to be aged 61 years; while the other accused i.e. A1s co-accused were said to be aged 18 years, 20 years and 21 years respectively.
According to the record of proceedings from the court a quo, the accused thereat were sentenced to five (5) years imprisonment each with the exception of A2 who was committed to the Juvenile Training Centre. This is despite the fact that he (A2) was then aged 18 years A1 was admitted to bail on the 22nd February 2005.
He has after conviction and sentence on the 1st April 2005 been in Mohales hoek jail serving a sentence of 5 years imprisonment imposed upon him by the Chief Magistrate.
Reasons for his (A1) having applied for the review of the said proceedings are that:-
The presiding officer never advised him of his rights to legal representation.
He asked that should this court find that he has been advised of his rights to legal representation, he avers that he never heard or understood same because the proceedings were conducted in English language and he is not conversant in such a language.
He further says that he has been advised, and verily believes same to be true and correct that the proceedings were supposed to be conducted in Sesotho language from the beginning because there was no interpreter for the purpose of interpreting English language into Sesotho language in terms of the Constitution of Lesotho Section 12 thereof. His argument is that:
There was no interpreter throughout the proceedings for the purpose of interpreting Sesotho language for the record.
He was convicted on the basis of insufficient evidence. The applicant has at paragraph 8 of the notice of motion explained why he delayed to institute proceedings for review and has applied for condonation of same.
The application is being opposed by the crown and it has filed an opposing affidavit of the Public Prosecutor in the Mohales hoek district Mr. B. Tshabalala.
There are two notices of an intention to oppose this application. They are dated the 30th November 2007. They have both been filed in the registry of this court on the 31st October 2007.
The notice of intention to oppose, in which the present applicant has been cited, was not accompanied by any opposing affidavit.
The affidavit referred to above, filed by the Public Prosecutor for the Mohales hoek district, who prosecuted CR59/2005, was filed in the High Court registry on the 21st February 2008. The notice of motion having been filed in this court on the 23rd October 2007.
In other words, the opposing affidavit was filed some three or four months after the notice of motion was filed and served upon the respondents, and about one month after the applicants heads of argument were filed.
The other notice of intention to oppose is in relation to some other applicants to wit, Lehlohonolo Morole, Kopano Lephoto, Khethang Moshe and Molantoa Mafatle. This has no relevance to the present application relating to proceedings in CR59/2005.
This explains why it is alleged by the present applicant that the crown had other than the notice of intention to oppose; not filed opposing papers.
Be that as it may and since there has been no objection to the filing of the opposing affidavit after the applicant had filed its heads of argument, this court will now deal with issues raised in this application by the applicant and the crown.
These are:-
Failure to locate records:
It is a matter of common cause that contrary to two orders of this court, only the proceedings in CR59/2005 have been dispatched to this court.
Also and still contrary to the said order of this court, the Clerk of Court for the Mohales hoek district has refused to file any affidavit explaining any reasons why she was unable to dispatch to this court, the other two records of proceedings to wit CR153/2004 and CR208/2005.
It has been submitted on behalf of the applicant that when it is impossible to locate a record the appeal or review must be allowed because it cannot be shown that the accused is guilty. Reliance in support of this submission has been placed on the following cases:
S. v COLLIER 1976 (2) SA page 378(c) where Burger J had this to say: (I quote)
.. .. ..where material evidence is not on record and the defect cannot be cured, the appeal should succeed. (My underlining)
Further at 378 (H) the court had this to say: (I quote)
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 appeal being concluded, the proceedings and sentence should be set aside. (My underlining)
In the instant case, the Clerk of Court has refused and or failed to dispatch the two records of proceedings in CR153/04 and 208/2005. He/she has also refused to file any affidavit explaining what steps he/she has taken to locate same nor has he/she explained why he/she could not dispatch same per orders of this court. This is a regrettable state of affairs about which this court can do nothing, in the absence of an application for contempt. However the fact that orders of this court are disregarded with impunity as in the present case will create absurd results and bring the administration of justice into disrepute. This is so because on the principles laid down herein the cases cited and other authorities, this court has no alternative but to set aside convictions and sentences in both CRs 153/2004 and 208/2005 (Mohales hoek) without it having been afforded opportunity to go over the said records.
This court takes judicial notice of the fact that in this country, it has frequently become a daily and frequent occurrence that almost invariably court records from the magistrates court are for unexplained reasons not located whenever an appeal or a review has been filed to the High Court; nothing seems to be done about this fact and this persists even though the Clerks of Court and or indeed the presiding officers have a duty to guard against such mishaps.
Unless and until such time that something drastic and more serious is done to guard against this frequent and mysterious disappearance of record of proceedings, the justice system will fail a lot of victims who are adversely affected by most serious criminal offences and the public will loose faith in the justice system with dire consequences.
The other case cited herein in support of the above submission on behalf of the applicant is CRI/APN/240/2006:- MBONE MASWANGANYI V D.P.P. AND TWO OTHERS.
I decline to comment on it because I personally handled this case while I was a Chief Magistrate but the principle of the law therein enunciated is in support of the above submission advanced on behalf of the applicant.
What is most sad about situations as this present one, is the fact that even if this court orders that the trial should start de novo before a different/another magistrate, whether or not the applicants are resident in Lesotho, such orders are never obeyed.
Once the applicant/appellant is released from jail that is the end of the matter and to the detriment of the proper administration of justice and to the great expense of the victims of crime.
There are no formal, strict mechanisms in place to ensure compliance of such orders, so that perpetrators even of very serious criminal offences get away that easily. This makes the public to loose confidence in the courts of law and brings to disrepute the administration of justice in this country.
Right to legal representation:-
It was further submitted on behalf of the applicant herein that there was no interpreter throughout the proceedings for the purpose of interpreting Sesotho language for the record.
This submission is made despite the fact that, ex facie the court record, it is written that there was one L. Chakalane appearing as being an interpreter.
The applicant says that it is not true that L. Chakalane was interpreting. He says, in fact there was no interpreter.
The often cited case of THAMAE LENKA v REX C OF A (CRI) No2 OF 2004 has been cited in support of the applicant where Plewman J had this to say in a situation wherein this same complaint about there being no interpreter was raised:-
The magistrate was not a sworn interpreter and it is a prerequisite in our procedure that any person acting as an interpreter must be a sworn interpreter. This is an essential measure of security requisite for the fair administration of justice.
The crown has, in opposing this application on this ground, submitted that, first and foremost, the proceedings, in CRs 59/2005; 153/2004 and 208/2005 were conducted fairly with substantial justice and as such they should not be set aside.
It has referred the court to pages 1 and 2 of the record wherein it is clearly shown that there was an interpreter and that it is shown clearly that the rights of the accused persons were explained to them.
It is the crowns submission that ex facie this record of proceedings the presiding magistrate has dutifully advised and explained to the accused their rights to legal
representation and to apply for release on bail.
It has been argued that it is not the duty of the presiding officer to force an accused person to brief a lawyer even if such right has been explained to the accused. Vide S. v MORRISON 1988(4) S.A. 164.
Indeed, it goes without question that with regard to CR59/2005, it is clear from the record of proceedings that the accused/applicant as well as the co-accused have had such rights explained to them not only on one occasion but on two occasions, viz on the 23rd February 2005 when the present applicant was first remanded; and again same was done with regard to the applicant`s then co-accused on the 28th February 2005 when they were joined in this charge.
This court is of a firm view that such rights of the applicant have been sufficiently and reasonably explained to him. The applicant herein did apply for release on bail which application was granted.
Furthermore, when on the 1/4/2005 the applicant had engaged legal services of Mr. Sekake to defend him in this trial, it can safely be assumed that the applicant had understood the explanation referred to above and so he exercised his rights correctly.
The view of this court that the present applicant did exercise his said rights after same were explained to him by the magistrate is limited only to the proceedings in CR59/2005. One can not comment on CRs153/2004 and 208/2005 because same have not been availed to court.
In the premises, the crowns submission that with regard to the proceedings in CR59/2005 that such rights have been sufficiently explained and that the charge was reasonably put to the applicant holds water and is upheld.
There is also, ex facie the record of proceedings no reason for this court to doubt that a sworn interpreter of the court a quo was in court interpreting throughout these proceedings. This is so regard being had to the affidavit of the public prosecutor who was prosecuting this case. No reasons have been advanced why the said Public Prosecutor would lie about this fact. This court is aware that the said court interpreter has not filed a supporting affidavit in support of the Public Prosecutor; but it is trite law that a magistrates court is a court of record, and unless clear justifiable, well founded reasons are advanced as to why this court should disbelief the Public Prosecutor in this regard, this court is inclined to agree that indeed the court interpreter was there throughout the proceedings in the court a quo interpreting for the record.
Last on this point, the applicant has not told this court if he was at all prejudiced, nor has he said in what way that was so, if indeed that was the case.
It is the applicant who should have informed this court if there has also been a miscarriage of justice because of the existence of the irregularities he is complaining about. This he has failed to do.
It is for the foregoing reasons and on the authorities herein cited that this court has come to the conclusion that the proceedings herein CR59/2005 were in accordance with real and substantial justice.
Conviction and sentence in this CR59/2005 are confirmed in respect of the present applicant.
Further for the reasons herein stated and for refusal and failure by the Clerk of Court in Mohales hoek Magistrate Court to dispatch the records in CRs 153/2004 and CR 208/2005, to this court and reliance being placed on the authorities cited at paragraph 2.1 of the applicants heads of argument the reviews therein are allowed.
The applicant is therefore to serve sentence as imposed upon him in CR59/2005, but he should be released from prison with regard to sentences imposed upon him in CRs 153/2004 and 208/2005, and his bail cash deposit if any was paid in both cases should be refunded to him.
M. MAHASE
JUDGE
For Applicant - Mr. Habasisa
For Crown - Mr. P. Peete
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