HIGH COURT OF LESOTHO
B. MAHOOANA 1st RESPONDENT
MOKOROANE 2nd RESPONDENT
the Honourable Mrs Acting Justice Hlajoane on the 5th Day of
an application for review in terms of Rule 50 of the High Court Rules
. The first Respondent is the Magistrate who presided over the case
in a certain CR. 230/01 at Mafeteng Subordinate Court, and the Second
Respondent was the Accused in that case.
Accused (2nd Respondent) was charged at the Magistrate's Court
-Mafeteng for contravening Section 3(1) of the Motor Vehicle Act No.
13 of 2000;
alleged that he was found in possession of a motor vehicle knowing it
to be stolen . The second Responded who was the accused was found not
guilty acquitted and discharged after he had pleaded not guilty to
the charge. The discharge, it is alleged, was pronounced without the
participation of the Prosecution in the proceedings. The vehicle,
subject matter therein was released to the accused.
be interesting to state the reasons that prompted the verdict that
was passed, being the manner that the proceeding of that case were
to the copy of the proceedings at the Lower Court, which proceedings
were made an annexure to the answering affidavit, the alleged offence
was committed on the 6th December, 2000 and the Accused made his
first appearance on the 16th May, 2001 when the charge was read to
Public Prosecutor informed the Court on that day that the
investigations were complete. Though the defence complained that
police sat on their laurels, I must at this juncture not hesitate to
commend the investigating officers in that case who conducted their
investigations within such a reasonable time. Five to six months
could not be considered to be an unreasonable delay, as there are
cases which go up to five years before accused makes his first
appearance in Court for
first appearance a date of hearing was agreed as the 6th June, 2001.
The case did not proceed on that agreed date as witnesses did not
turn up and defence counsel engaged in another Court. It was again
postponed to two more dates during the month of June, 2001 and on
both those dates it was postponed. And on both occasions the Crown
witnesses had not shown up. The matter was thus postponed to July,
same year as a last postponement.
16th July, 2001 both sides were represented and the Crown applied for
a further postponement, as he said (Mr Posholi) that the matter had
not been properly set down. I failed to understand what the Public
Prosecutor meant by saying the case was improperly set down as the
postponement according to the record was done in Court in the
presence of two parties. The improper setting down is explained by
Crown as their wish to have the matter heard by a different
magistrate of first class powers or above not the first Respondent
whom they considered not to have competent jurisdiction as 2nd class
magistrate. The Crown went further to show that they had made their
own arrangements with another magistrate, Mr Montši to come
and preside over the matter on a date yet to be arranged with the
been the Defence contention that it was not for the Prosecutor to
determine before whom the case was to proceed, and that the kind of
behaviour of the said Prosecutor bordered on contempt in the absence
of good reason why the magistrate had to recuse himself. To me the
Defence Counsel had put things mildly, and I will explain later why I
am saying this.
already been stated that when the matter was postponed to the 16th
July all sides were present. The other reason advanced by Crown for
asking for a further postponement was that the vehicle could not be
brought to Court due to technical problems. The Court had made a
special request when the matter was postponed to that day that the
vehicle "must" be brought to Court on the date of hearing.
on I had shown that I was going to explain why I said the Defence had
put mildly the behaviour of the Public Prosecutor by saying it
bordered on contempt. There was no bordering on contempt but a clear
case of contempt of Court.
to the copy of the record of proceedings and also as deposed to by
the two prosecutors, one Mr Raselabe was in Court as the Public
on the 16th July when the case proceeded after the application for
further postponement was refused by the Court. In fact the Prosecutor
conveyed to the Court the messages from the Principal Public
Prosecutor, Mr Posholi, for the postponement. The wishes of Mr
Posholi were that the matter be placed before a Resident Magistrate.
refusing the application the Court had these to say,
"An application for a recusal of a presiding officer cannot be
substantiated by the whims of a Public Prosecutor. There must be
grounds for such an Application. Further, the Court is not even sure
whether by stating the wishes of Mr Posholi Mr Raselabe is applying
for my recusal. In fact, the Court will not waste time deliberating
on that issue as if this is an application for recusal of a presiding
officer (myself). It is not couched properly. In fact, the Court is
inclined that what Mr Raselabe has conveyed to this Court borders on
contempt of Court."
refusing the postponement the Public Prosecutor asked for a 1½
hours adjournment. When the Court resumed the Principal Public
Prosecutor was in Court assisted by Mr Raselabe. Mr Posholi addressed
Court on the issue of postponement giving same reasons which had been
earlier on advanced by his colleague.
in giving its ruling gave a sequence of dates on three occasions, for
the postponements when the matter was set for hearing. On the issue
of jurisdiction the Court ruled that it in fact had jurisdiction
otherwise the legislature in its wisdom would have clearly stipulated
otherwise. I wouldn't agree with him more and in case of doubt the
Prosecutor ought to have sought directive from Director of Public
Prosecutions. The other ground for postponement was the inexperience
of Mr Raselabe yet he had all along been allowed to deal with the
charge was then read to the Accused who pleaded to it. It was at this
point that Mr Posholi then realized that in fact the case was
proceeding that he applied to Court to recuse itself as a grave
irregularity had occurred according to him.
addressed the Court using these words;
"The Court cannot compel us to place this matter before it. If
the Court does not recuse itself I I will not be part of these
interjected and tried to warn him that it has already made a ruling,
but Mr Posholi replied that the ruling was "misdirected and ill
informed". He then asked to be excused and was excused amidst
the defence making an
and the defence withdrew the objection.
It was at
this point in time that Mr Raselabe asked the Court to proceed with
the case. He called the first witness to testify. The case went on to
a stage where the Court had to go out to see the vehicle. Since it
was already dark the case had to be postponed to another date for
purposes of agreeing on a date of hearing.
out by the record the matter was then postponed to the 30th July,
2001, 30th August, 2001,6th September, 2001, 28th September, 2001. On
all these occasions the Crown showed some reluctance to proceed with
the case. There were finally three prosecutors involved , one
authorizing the other to proceed presumably as his superior, and the
one authorized adamant that he was not willing to co- operate. The
third having been asked to recuse himself and as the most junior
prosecutor torn between two forces, one of respecting the Court and
the other of disassociating himself with his boss who even accused
him of insubordination and forcing him to submit his report.
already been told that Mr Posholi was the Principal Public Prosecutor
and one would expect that with the experience he had would instill in
other prosecutors below him some respect to the Court no matter what.
decent ways open to him to follow in situations where he thought he
was justified, and showing disrespect to the Court would not be one
of those. I consider the Court to have been too lenient to have
allowed the Prosecutor to behave in the manner that Mr Posholi did
without taking him on serious contempt.
own words in his affidavit Mr Posholi showed that he made an open
remark in Court that the proceedings were irregular. As if that was
not enough he then deposed that,
"I then invited the other prosecutor to walk out, he hesitated
and I stood up and walked out of Court."
still a Court of Law or a circus? Would the members of Public still
be expected to respect the Court and take any of its decisions
serious if officers of Court behave in that fashion? Though the
defence commented the magistrate for his patience, this I considered
to have been an outright insult to the bench and ought to have been
treated with similar degree of contempt it deserved.
things happened in this case. Realising that the prosecution was
sitting back and playing marbles, the Accused had the matter set down
for hearing with notice to the Crown. Mr Posholi did not make his
appearance still yet he had
the notice. The Junior prosecutor came to Court but since he had been
ordered to recuse himself from the case by his administrative boss,
Mr Posholi, he made known to the Court the instruction from his boss.
things stood thus, the defence counsel, by invoking the provisions of
Section 278 of the Criminal Procedure and Evidence Act, applied for
the discharge of the Accused which was granted and an order made for
the release of the vehicle to the Accused. It is against that order
and ruling that the present Application for review was filed.
50(2) of the High Court Rules clearly stipulates what an Application
for review must contain.
"The notice of motion shall set out the decision or proceedings
sought to be reviewed and shall be supported by affidavit setting out
the grounds and the facts and the circumstances upon which the
applicant relies to have decision or proceedings set aside or
notice of motion, the Applicant sought relief from the Court to have
the proceedings reviewed, corrected or set aside by reason of having
and discharged without the participation of the prosecution in the
proceedings. But the allegation of non-participation had not been
born out by the record.
supporting affidavits of Principal Public Prosecutor - Posholi and
his Assistant, Paseka Raselabe clearly showed that they participated
in the proceedings save that, Mr Posholi wanted to dictate to the
Court as to how the proceedings were to be conducted by choosing who
the presiding officer should be. As rightly pointed out by the
defence counsel and the Court, it was not for the Prosecutor to make
a selection, moreso because the Court had already made its ruling on
that point. Arrangements for another Magistrate to visit Mafeteng
where necessary would be handled by the Magistrate in charge of
Mafeteng district not the prosecutor.
prosecutor had other procedural options open to him. Section 278 (3)
of the Criminal Procedure and Evidence Act would have taken care of
"Nothing in this section shall deprive the Director of Public
Prosecutions or the Public Prosecutor with his authority or on his
behalf, of the right of withdrawing any charge at any time before the
accused has pleaded, and framing a fresh charge for hearing before
the same or any other competent Court."
option would have been that, since the Crown knew well that in
criminal cases the Director of Public Prosecutions was the litis
dominus' the procedural way would have been seeking for a directive
from the Director of Public Prosecutions.
that the Crown was playing games the Court was entitled under Section
150 of the Criminal Procedure and Evidence Act, to require the
Accused to plead to the charge and then decline to postpone the
trial; Griffiths vs Compol and Another C of A No. 9 of 1991. There
was no irregularity there.
regards the disposal of the vehicle, this is the good ground for
Appeal not review, I would therefore not allow myself to be dragged
into that area of disguised appeal.
also been the Respondents' case that the Rules of Court have been
flouted, in that there has not been any compliance with Rule 50 (5)
of the High Court Rules. The Application was filed on the 19/11/2001
and served on the
Counsel on 20/11/2001. It was then moved on the 26/11/01, less that
14 days open for the Respondents to file their intention to oppose.
No prayers for dispensation with the Rules of Court in terms of Rule
Applicant on the other hand wants the Court to buy his story that
though the case had a controversial history, the prosecution was in
fact not in wilfull default. This has not unfortunately been borne
out by the record. Clearly the prosecution has been in wilfull
default and did not want to see the case to finality. He was in
contempt from the beginning to the end. He should thank his gods that
he met the kind of magistrate of Mr Mahooane's patience or tolerance.
case of Strong Thabo Makenete vs Major General Lekhanya and Others
1991-92 LLR & LB the court voiced its displeasure on what it
termed "the lamentable lax attitude by many practitioners to the
Rules of Court bordering on contempt."
already shown that in this case there has been non-compliance with
the Rules of Court, Rule 50 (5) and Rule 8 (22) and for that alone
the Application must fail. In fact as already stated this was a
Court would be failing in its duty if the manner at which the Crown
conducted itself at the Court below is left only in the hands of the
Magistrate -Mafeteng. The Court invites the Director of Public
Prosecutions and the Chief Magistrate to join hands and seriously
address that problem before things worsen. Like legal practitioners,
prosecutors as officers of Court must respect the Court even where
according to them they consider the Court to be wrong. We should not
allow anyone to turn our Courts into circus. That would not be
justice but injustice. As the saying goes "justice must not only
be proclaimed to be done but must be seen to be done." The
manner in conducting proceedings in Court must display that justice.
Applicant: Ms L. Ntelane
Respondents: Mr Phafane
Director of Public Prosecutions
Officer Commanding – Mafeteng
Director of Prisons Mafeteng
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law