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 14^th
January, 2009

The accused is charged with the
crime of murder in that upon or about the 9^th
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
15^th
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 7^th,
and the evidence of a Resident Magistrate who took the accused’s
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 7^th
September and not October as recorded in the proceedings.

On the 13^th
September 1993 it was recorded that summons had not been served and
the matter was postponed to the 1^st
October 1993. On that date it was postponed to 2^nd
July 1993. No reasons are recorded for the postponement. On that day
it was further remanded to the 18^th
October. Again no reasons are recorded for the postponement. On the
18^th
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 17^th
December to which the case had been further remanded.

On the 17^th
December 1993 it was, alas again remanded to the 19^th
January 1994. No reasons are recorded for the postponement. The
case was from then remanded each month in absentia until the
10^th
June 1994. No reasons were recorded for each postponement.

On the 10^th
June the Preparatory Examination continued and the evidence of some
four witnesses was taken. It was then postponed to the 13^th
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 8^th
July 1994. On that day it was postponed to 8/08/94 in absentia of
the accused.

On the 8^th
August the accused was before court and it is recorded that she
explained that she had arrived late on the 13^th
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 8^th
September 1994. I get the impression that she believed her. My own
impression is that on the 13^th
June when the accused did not arrive on the dot of 8 o’clock 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 8^th
September strangely what is recorded next is the 12^th
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 29^th
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 31^st
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 12^th
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 can’t 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 12^th
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 7^th
July 1992. The accused was arrested a few short days afterwards. He
appeared before a magistrate where he confessed on the 14^th
July. The following day she was remanded in custody. Her trial only
commences to-day the 14^th
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 Ketisi’s 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 Wilde’s
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 accused’s 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
Ketisi’s 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 magistrate’s 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 accused’s 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

14^th
January 2009

For
Crown : Ms. Khoboko

For
Defence : Mr. Ratau