IN THE HIGH COURT OF LESOTHO
HELD IN BUTHA-BUTHE CRI/T/3/1995
In the matter of:
REX
VS
MASELLO SEEKANE
JUDGMENT
Delivered by the Honourable Mr Justice T. Nomngcongo
On the 14th January, 2009
The accused is charged with the crime of murder in that upon or about the 9th July 1992 at or near Matlameng Ha Moshoeshoe in the Leribe District, he unlawfully and intentionally killed Matsepiso Ntlamelle. She was arrested shortly after and appeared before a Magistrate on the 15th July when she was remanded in custody. She was later admitted to bail, it is not clear when. She attended remands until the following
year in October when a preparatory examination commenced on the 7th, and the evidence of a Resident Magistrate who took the accuseds confession was recorded and the case was postponed without hearing further evidence. It was then recorded that the case was remanded to 13/09/1993. This leads me to the conclusion that perhaps the case started on the 7th September and not October as recorded in the proceedings.
On the 13th September 1993 it was recorded that summons had not been served and the matter was postponed to the 1st October 1993. On that date it was postponed to 2nd July 1993. No reasons are recorded for the postponement. On that day it was further remanded to the 18th October. Again no reasons are recorded for the postponement. On the 18th October it is recorded that the court resumed at 3.05 p.m. I do not know when it had first convened and the prosecutor informed the court crown witnesses were on court premises in the morning and were warned to appear again this afternoon but were not to be seen again without any excuse. It is also recorded that Mr. Teele for the defence requested that the matter proceed on that day. The day was 17th December to which the case had been further remanded.
On the 17th December 1993 it was, alas again remanded to the 19th January 1994. No reasons are recorded for the postponement. The case was from then remanded each month in absentia until the 10th June 1994. No reasons were recorded for each postponement.
On the 10th June the Preparatory Examination continued and the evidence of some four witnesses was taken. It was then postponed to the 13th June 1994. On that date it is recorded that accused had been warned to appear at 8.am and was in absentia and no reasons had been
advanced to the court. It was ordered that a warrant of apprehension should issue and the case was postponed to the 8th July 1994. On that day it was postponed to 8/08/94 in absentia of the accused.
On the 8th August the accused was before court and it is recorded that she explained that she had arrived late on the 13th June 1994. It is not recorded what the learned Resident Magistrate of that day made of this but it only further recorded that the matter is remanded to 8th September 1994. I get the impression that she believed her. My own impression is that on the 13th June when the accused did not arrive on the dot of 8 oclock it was not assumed in her favour that she might still be on the way but for some problems such as transport. It appears to me that the decision to issue a warrant of apprehension was over- hasty in the circumstances.
The matter having been remanded to the 8th September strangely what is recorded next is the 12th September 1994 and that the accused was that day remanded in abstantia. That was only to be expected; that was not her remand
date. The matter was then remanded to the 29th September and the accused was in attendance. On that day it is recorded that the matter was supposed to proceed but it turned out that the Resident Magistrate had taken a confession in the matter. It was postponed to 31st November 1994.
On that day the court convened at 11.50 a.m. The evidence of D/Tpr. Chonela was taken and the Preparatory Examination was concluded with the learned magistrate committing the accused to trial on a charge of murder. The indictment finally came on the 12th January 1995.
From that day there is no record whatsoever of what happened until sometime in 2006, so I am informed by Counsel in court to-day. The court file before records in an undated minute:
Court: I am informed that I applied for bail in this case. I cant hear this matter. To be postponed to a date in June 2006. Registrar to give accused witnesses dates in June.
An unfamiliar signature is appended to the minute. But from what I learned from Counsel for the Crown and indeed from the accused it must have been recorded by Teele A.J. (as then was) as there is undisputed evidence that he did represent the accused at the initial stages of this case. There is no further record from that day until the 12th August 2008.
On that day the accused appeared before my sister Mahase J. she recorded that it was impossible for her to hear the matter as she had taken the confession from the accused while she was a resident magistrate. She accordingly recused herself. She ordered that the case be enrolled in the Butha-Buthe criminal session for January 2009 and warned the accused and crown witnesses to attend court on that day. It is the present criminal session and the accused is now before me and the Gentlemen Assessors Messrs. Lejaha and Letete.
Mr Ratau, Counsel for the accused has raised a constitutional point that his client is not going to get a fair trial due to the inordinate delay in the prosecution of this case. The application is made in terms of section 12(1) which provides:
If any person is charged with a criminal offence, then unless the charge is withdrawn the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
Mr Ratau applies for a permanent stay of prosecution.
It is common cause that the events leading to this prosecution started on the 7th July 1992. The accused was arrested a few short days afterwards. He appeared before a magistrate where he confessed on the 14th July. The following day she was remanded in custody. Her trial only commences to-day the 14th of January 2009, almost seventeen years later. In a case on all fours with the present one except for the extent of the delay the Court of Appeal held that a delay of eight and half years was inordinate and to be deprecated. The circumstances of that case,
like the present one were that:
the appellant was arrested the day after the stabbing when he gave himself up to the police, he apparently never denied having inflicted the fatal wound on the deceased; the evidence concerning the events which occurred fell within a very narrow compass; the case was not a complex one which called for extensive and time consuming investigation and all relevant witnesses should have been readily
traceable and available. Per Smalberger JA in NOMORO EDWIN KETISI V DIRECTOR OF PUBLIC PROSECUTIONS C of A No.9/06.
Those circumstances are identical to the present case. With a period spanning twice the period in Ketisis case I have no, hesitation in coming to the conclusion that, like Smalberger J.A, it was inordinate and to be deprecated. That is not the end of the matter however because there may have been many factors that have contributed to the delay. Those factors may render the delay reasonable in the circumstances of a particular case and the resultant trial fair and not prejudicial to the accused. In considering whether or not the resultant trial is fair or not the following considerations were taken into account in the KEKISI case (supra).
(a) Prejudice to an accused person resulting from an unreasonable delay. In this regard one must distinguish between delay which could prejudice the fairness of the trial itself (for example the death or disappearance of witnesses) and more general delay related prejudice not having a bearing on the trial itself. The latter include liberty, social interests of the kind referred to in Wildes case.
(b) The protection afforded by section 12(1) of the Constitution extents beyond specifically trial related interests and embraces liberty and social interests as well. Those interests have to be taken into account in assessing the fundamental question whether there has been an infringement of the protection afforded by the constitutional imperative of a speedy trial.
(c) The most important consideration throughout the inquiry is whether the lapse of time between the charge and trial is reasonable. It bears on other considerations and in turn in coloured by them. What is required is a flexible evaluation of the time elapsed in the context of and in conjunction with all other relevant features.
(d) The most invasive prejudice suffered by an accused pending trial is obviously pre-trial incarceration which entails not only loss of personal liberty but often loss of livelihood and the ability to maintain dependants .
(e) Due regard must had to the gravity nature and complexity of the case. This is not only a consideration in itself own right but it interacts with the time lapse, and also the prejudice suffered by the accused.
(f) A further feature is the accuseds attitude towards delays and his or her role in prolonging the pre-trial period. Although these need not be any assertion of the right to a speedy on the part of the accused where the accused has been a party to or primary cause of delay he or she cannot be heard to complain of such delay. By the same token fault on the part of the prosecutions which results in delay is an important circumstance. Although the ultimate enquiry is whether the time between the charge and trial is unreasonable, it is obvious relevant that the one or the other party is to blame, in whole or in part, for the delay.
(g) A balance needs to be struck between competing societal and individual interests once a finding has been made that the delay was unreasonable and the inquiry turns to remedies Society demands that those who have committed crimes should be brought to account and appropriately punished for their misdeeds. From that point of view it would be an unsatisfactory result if an accused who may have been guilty of a serious crime is allowed to go free without being tried because of a stay of prosecution.
(h) Consequently a court need not resort to relief as drastic as a stay of prosecution (or, where appropriate an acquittal as the counterpart of a stay where an accused has already pleaded) in order to remedy an infringement of the right to a speedy trial that does not entail trial prejudice. Thus, in the ordinary course and absent irreparable pre-trial prejudice or extraordinary circumstances, a stay would seldom be the appropriate remedy. per Smallberger J.A in Ketisis case at pp. 9 11.
In the present case the accused has testified that and this was not denied, she attended remands from 1992 to year 2000. That in my view amounted to punishment in itself. Attending remands must be stressful on any occasion but doing so over an eleven year period must bring anyone to the brink of a break-down. Of course it also involves expense which unlike in civil matters is not recoverable from the state even though one might ultimately be acquitted of any criminal charges.
The remedy of a stay of execution, as has been pointed out is a drastic one and should not be lightly resorted to if there is no prejudice to the accused. It is also trite that the guilty should be tried and convicted and that it is not in the interests of society that the guilty should go scott free. But they must be tried fairly. Obviously there cannot be a fair trial if through no fault of an accused person he is unable to call his witnesses. The accused in this case has waited for her trial for a period of seventeen, eleven of which she attended remands except on a few occasions when it is simply recorded rem in abstantia but strangely to surface on the date of hearing during the preparatory examination. On other occasions it seems the fault was with the court, in one case in hastily assuming he was not coming to court when in fact she had apparently only been delayed and in another by calling the case on a date other than the one accused had been given. During the period spanning 1995 to 2006 the Crown gives absolutely no reason why it did not proceed with the prosecution of the accused. During most of that period according to the uncontradicted evidence of the accused her witness were still alive; they lived until three or four years ago and the last one in October last year. Strangely the prosecution suggested that the accused herself should have done something about the prosecution and not the Crown who are after all the dominus litis. The accused does not prosecute herself and in nay case she submitted herself for possible prosecution for a period of eleven years. Asked why she did not complain to the remanding magistrate she disarmingly replied that she did not know that she could ask the magistrate anything. I believe her. In know from experience that remand courts in the magistrates court are not the friendliest of courts.
In general the accused has not been at fault in the delay of the prosecution of this case. On the other handed the prosecution sat on its laurels from 1995 to 2006. In the process, the accuseds witnesses have died to her great prejudice. I put the blame for this travesty squarely at the door of the prosecution.
The application for a permanent stay of execution is granted.
NOMNGCONGO
JUDGE
14th January 2009
For Crown : Ms. Khoboko
For Defence : Mr. Ratau