IN
THE HIGH COURT OF LESOTHO

CRI/APN/580/2007

CR
59/2005

In
the matter between:

SOOKO
PHITŠANE APPLICANT

VS

D.
P. P. 1^ST
RESPONDENT

MOHALE’S
HOEK MAGISTRATE COURT 2^ND
RESPONDENT

ATTORNEY
GENERAL 3^RD
RESPONDENT

JUDGEMENT

Delivered
by the Honourable Judge M. Mahase

On
the 14^th
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 23^rd
October 2007; same had been served upon the offices of the Senior
Crown Counsel on the 22^nd
October 2007.

The present
applicant and two others who have not noted an application for a
review have been convicted in the Mohale’s hoek court
of the Chief
Magistrate.

In the notice of
motion, dated the 15^th
October 2007 the applicant, Sooko Phitšane has applied for the
following orders to be granted:-

• 
  That judgment in
  CR59/05, CR153/04 and CR208/05 of the Mohale’s hoek Magistrate’s
  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 24^th
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 28^th
December 2007.

There is a long
history showing that this review application has been pending before
this court since the 19^th
November 2007 according to the first court minute on the file herein.

However the Clerk
of Court of the Mohale’s hoek Magistrate’s Court wrote a covering
letter dated the 28^th/31^st
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 18^th
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 18^th
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 29^th
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 Mohale’s
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 Phitšane. There being no objection and both
counsel having already filed their submissions,
the matter was argued
on that 18^th
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
Mohale’s hoek
Magistrate’s 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 Mohale’s 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 Mohale’s 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 20^th
day of January 2005, and at or near Motse-mocha in the Mohale’s
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
Phitšane is said to be aged 61 years; while the other accused i.e.
A1’s 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 22^nd
February 2005.

He has after
conviction and sentence on the 1^st
April 2005 been in Mohale’s 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 Mohale’s
hoek district Mr. B.
Tshabalala.

There are two
notices of an intention to oppose this application. They are dated
the 30^th
November 2007. They have both been filed in the registry of this
court on the 31^st
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 Mohale’s
hoek district, who prosecuted CR59/2005, was
filed in the High Court
registry on the 21^st
February 2008. The notice of motion having been filed in this court
on the 23^rd
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
  Mohale’s 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 (Mohale’s 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 crown’s
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 23^rd
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 28^th
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 crown’s 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 Mohale’s 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 applicant’s 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