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

5^th
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 1^st
September 2008. The accused had tendered a plea of not guilty to the
charge. Only A4’s (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
6^th
May 2008 advised that the case will be prosecuted whether or not all
of their lawyers were in attendance on the 6^th
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 6^th
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 6^th
May 2008.

However and due to
the absence of A1’s lawyer, Mr. Mphalane the case could not be
prosecuted. Subsequently it was postponed for
prosecution on the 1^st
and 2^nd
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
6^th
May 2008.

Indeed on the 1^st
September 2008, the case was prosecuted in the absence of Mr.
Mphalane who was defending A1.

The case was
prosecuted again on the 2^nd
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. Mphalane’s 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. Mosotho’s view, because prior to Mr. Mphalane’s
  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. Mphalane’s 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
1^st
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 6^th
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 2^nd
  September 2008 and not on the 1^st
  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 one’s
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, the
Provisions
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 enable
flexibility
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