IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
VS
BAKOENA MOHALE AND 4 OTHERS
Review Case No. 217/2005 CR 475/2008
Review Order No. 13/2008 In the Mafeteng District
REVIEW ORDER
5th NOVEMBER 2008
Criminal Law Review Proceedings Procedure to be followed.
The accused appeared before the Resident Magistrate of the Mafeteng Magistrates court charged with the crime of having contravened the Provisions of Section 3(1) read with subsection (2) of Act No.13 of 2000 (The Motor Vehicle Theft Act).
After a number of postponements, the case was prosecuted for the first time on the 1st September 2008. The accused had tendered a plea of not guilty to the charge. Only A4s (Khumalo Hlehlethe) lawyer was in court on that day, to wit Mr. Mosotho.
It is on record that all the accused had, prior to this date, been formally on the 6th May 2008 advised that the case will be prosecuted whether or not all of their lawyers were in attendance on the 6th July 08. This ruling was so made due to the fact that the accused had previously been afforded an opportunity to brief lawyers of their own choice to defend them. Suffice it to mention that, it is further on record that Mr. Mphalane represented A1 and that he had on the 6th May 2008 send a message to one of the Prosecutors (Miss Ranthithi) that the case be postponed to an undisclosed date because he (Mr. Mphalane) had another case set down for hearing in the Bloemfontein High Court in the Republic of South Africa.
Of significance is the fact that all crown witnesses even those who came from as far as the Republic of South Africa had attended court on the 6th May 2008.
However and due to the absence of A1s lawyer, Mr. Mphalane the case could not be prosecuted. Subsequently it was postponed for prosecution on the 1st and 2nd September 2008. The accused were formally warned of the said dates and had been ordered to communicate the said dates to their
respective lawyers. This is on record. Also on record is that the learned magistrate had informed the accused and in the presence of Mr. Mosotho who was defending A4 that the case would not be postponed once again for the same reason that a lawyer of any of the accused could not attend court for the same reasons as those advanced on the 6th May 2008.
Indeed on the 1st September 2008, the case was prosecuted in the absence of Mr. Mphalane who was defending A1.
The case was prosecuted again on the 2nd September 2008 and it continued uninterrupted until when Mr. Mphalane arrived in court while Pw2 was being cross-examined.
Mr. Mphalane is recorded to have arrived in court while the case was being prosecuted, while the crown was cross examining Pw2. On arrival, and without as so much bothering to explain himself he informed the court that he observed, just as he came into court, that there is no interpreter in this court. He is recorded to have indicated to the court that, the absence of an interpreter in court meant that the said court was not properly constituted and that the whole exercise up to this stage is a mistrial.
Also on record are the following facts:-
That Mr. Mosotho who was defending A4 responded to Mr. Mphalanes utterances, that he (Mr. Mosotho) is of the same view as Mr. Mphalane.
The Public Prosecutor further observed and retorted that she was surprised by Mr. Mosothos view, because prior to Mr. Mphalanes arrival, Mr. Mosotho had not raised any objection to the conduct of the trial in Sesotho Language.
To this, Mr. Mphalane is on record as having responded by saying that the presence of an interpreter is a requirement and that an interpreter must always be there to enable flexibility should counsel want to express himself in English which captures the legal aspects more easily.
It is noted by this Court now reviewing these proceedings that neither Mr. Mphalane nor Mr. Mosotho supported their submissions in this regard with any authorities whatsoever.
In fact the sudden presence or attendance in court of Mr. Mphalane took everybody by surprise because, as has earlier been alluded to above, it is on record that Mr. Mphalanes client had requested that the case be postponed for prosecution to due to the fact that his lawyer could not attend this court in Mafeteng as he was engaged in some other unnamed courts.
This is so, and nowhere has Mr. Mphalane been recorded to have made any attempt whatsoever to explain his absence or none attendance in court on the 1st September 2008. This date, it should be recalled, had been communicated and suggested to one of the Public Prosecutors of this
court by Mr. Mphalane or by his office way back on the 6th May 2008 as the date in which he would be able to attend court to defend his client, A1 in this case.
With the greatest respect, this kind of behaviour by some defence Counsel is highly questionable and undermines the authority of the court as well as impacting negatively on the proper administration of justice.
The question is, why if defence counsel for A1 knew that he would be able to attend court on the 2nd September 2008 and not on the 1st September 2008, (which date had been suggest by him) was he not candid and open to court about this fact?
It is trite that a postponement of any case, especially such a serious case as the one now subject-matter in this proceedings is not just there for the taking by any of the parties to the proceedings. A party seeking a postponement of any case should always spell out and support ones application with cogent reasons.
One need hardly mention that it is highly imperative to bear in mind that there are always other stakeholders in the administration of justice and that it is befitting that the scales of the justice must always been balanced. What this court is saying is that, while the interests and rights of the accused persons should always be considered, it is equally important that the rights of the state/crown; should also not be forgotten by the other all stakeholders in the administration of justice.
Having so observed, it is a matter of common cause that, the learned magistrate before whom this case was being prosecuted, suddenly decided to have the matter/proceedings sent to the High Court for it to give a clear direction regarding which language to use in recording proceedings where there is no interpreter and everyone is Sesotho speaking.
This, it should be realized was made meru moto by the court a quo because there is nowhere on the court record where it is indicated that counsel for the defence ever moved an
application from the bar nor did they file any formal application for the review of this matter.
The court a quo has effectively stopped proceedings herein in midair merely because one of the defence counsels has impromptly and without as so much filing any reasons for his submissions, thereby taking everybody by surprise, deemed it fit to do so in total disregard of the interests of everybody involved in this proceedings.
There are Rules of Court to be followed whenever one feels aggrieved and wishes to have the proceedings about which one is complaining to be reviewed. The relevant Rule for purpose of the present application to have been invoked by the defence is Rule 50 of the High Court Rules. The procedure to have been followed has been clearly laid down thereat. I need not repeat this procedure.
Surely, even if the learned magistrate had been of the view that Counsel had raised a valid point, he/she should have advised him (counsel) to properly apply to this court for it to review the matter following the proper procedure.
The only reason advanced by the learned magistrate as to why he had this case referred to the High Court is that he seeks a clear direction regarding which language to use in recording proceedings where there is no interpreter but everyone understands speaking Sesotho.
Surely, theProvisions of Section 2 of the High Court (Amendment) Rules 2006 are clear and provide guidance to Judicial Officers in situations such as in the present case.
It provides in part; and I wish to only quote the relevant portion of that section for purposes of the present proceedings:-
.. .. .. However, it shall be competent in civil or criminal proceedings for a presiding Judge to record evidence in English without the assistance of a court interpreter
where all parties know and understand Sesotho and the services of the interpreter cannot be secured without undue delay, expense or inconvenience.
(My underlining)
The provisions of this section are mandatory and clear, so that there is strictly speaking nothing wrong committed by the presiding officer in the court a quo in having recorded the proceedings in English since everybody else involved understood Sesotho.
It is not a requirement of the law as I understand the provisions of this Rule that a court interpreter must always be present during the proceedings.
Indeed, this court takes judicial notice of the fact that, this particular Rule(s) was made by the Chief Justice for purpose of avoiding unnecessary delays in the prosecution of cases were as is often the case, there is no court interpreter at all in some jurisdictions.
In any case, Counsel for the accused has not formally applied for the review of this case nor has he at all attempted to show the court in what way, if any, the conduct in Sesotho of the proceedings in question has prejudiced his client, nor has he in anyway alleged that, the procedure adopted herein by the court a quo has resulted in the miscarriage of justice.
Mr. Mphalane has also; ex facie the record of proceedings herein the court a quo not laid down any basis for his submission that the said court was not properly constituted merely because the court interpreter was not physically there in court while the case was being prosecuted.
Lastly on this issue, Mr. Mphalane is recorded to have further submitted that the court interpreter must always be there to enableflexibility should counsel want to express himself in English which captures the legal aspects more easily. (My underlining).
In short, he is blowing, hot and cold, as to the use of either language interchangeably where circumstances so permit. Why then was he complaining about the use of Sesotho language? It is observed that there is nowhere where he says that clients did not know nor understand Sesotho or English.
With respect, and for the foregoing reasons, the learned magistrate is perfectly empowered by the provisions of the above quoted Rule(s) of the High Court as amended to conduct these proceedings as he did.
It should however be emphasized that it is imperative that judicial officers should whenever possible and where circumstances so permit adhere to the use of one language throughout the proceedings.
That, where for any reason, one has to depart from that direction and change languages, the services of a court interpreter should be engaged should any of the parties then not know nor understand Sesotho. This fact should always be recorded on the record of proceedings.
This record is therefore send back to the court a quo for it to proceed with these proceedings to finality. Each party is at large to later after finalization of this trial to exercise the right it has in law to file either a review or note an appeal to the High Court.
M. MAHASE
JUDGE
COPY: All Chief Magistrates
All Magistrates
Magistrate Mafeteng
All Public Prosecutors
O/C Police Mafeteng
O/C Prison Mafeteng
CID Mafeteng
Director of Public Prosecutions