CRI/APN/317/90

IN THE
HIM COURT OF LESOTHO

In the
matter between:-

LIPHAPANG
MOLOI 1st Applicant

ASAEL
LENKA 2nd Applicant

MOHLAOLI
LENKA 3rd Applicant

and

HIS
WORSHIP MR. MOTINYANE 1st Respondent

DIRECTOR
OF PUBLIC PROSECUTIONS 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 3rd day of December.
1990

This is a
criminal application for a review of the criminal proceedings in CR
267/89 of the Subordinate Court for the district of
Butha Buthe in
which the applicants were con­victed of two counts of theft and
sentenced to various terms of imprisonment.
The application is based
on the ground that on the 24th April, 1990 when the matter was
postponed to the 27th April, 1990 the defence
counsel, Mr. Klass was
unable to appear because he was not well. The applicants allege that
they told the learned magistrate that
their attorney was not
available and that it would

2

be unfair
to proceed with the matter in his absence. Instead the learned
magistrate ordered the public prosecutor to address him
and the
applicants were convicted a week later without being given the chance
to be heard.

According
to the record of the proceedings in this matter the trial started on
the 9th August, 1989 and after numerous postponements
the Crown
closed its case on the 28th March, 1990. On the 4th April, 1990 Mr.
Klass applied for the discharge of the applicants
on the ground that
the Crown had failed to establish a prima facie case against his
clients. The case was postponed to the 22nd
April, 1990 but on that
day Mr. Klass did not appear for reasons unknown to the court. The
case was postponed to the 25th April,
1990 especially to give the
applicants a chance to contact Mr. Klass or to employ the services of
another lawyer.

On the
25th April, 1990 Mr. Klass was still absent without any reasons
revealed to the court and the applicants had not instructed
another
lawyer. The learned magistrate exercised his discretion and made an
order that the case would proceed in Mr. Klass's absence.
He was of
the opinion that the applicants! behaviour and that of their lawyer
amounted to nothing but delaying tactics. He dismissed
the
application for their discharge and held that they had a case to
answer. He explained their rights to them and they all elected
to
remain silent and indicated that they had no witnesses to call.

3

I may
mention that on the 3rd November, 1989 and on the 20th February, 1990
Mr. Klass had failed to appear without giving any notice
to the court
about his failure to appear and the case had to be postponed. One can
clearly see what kind of an attorney the court
was dealing with. I
think it is a sign of impoliteness and disrespect by an attorney to
the court to be absent on the day the case
is set down for hearing
and not to tender any apology or explanation as to why he is unable
to appear. The applicants were apparently
unprepared to defend
themselves in the absence of their attorney and adopted hostile
attitude towards the court by electing to
remain silent after their
rights were explained to them. After conviction they decided to say
nothing in mitigation of sentence.
It is not correct that they were
not given a chance to answer the charge.

The
question is whether the learned magistrate exercised his discretion
wrongly by deciding that the case would proceed' in the
absence of
the applicants' attorney. I am of the view that he exercised his
discretion rightly because he had given the applicants
time to
contact their attorney or to instruct another attorney but they did
practically nothing. 1 am of the view that the applicants
were not
denied the right to legal repre­sentation and no irregularity was
comitted. They have only themselves to blame for
having behaved in
the manner they did.

The facts
in S. v. Nongila and another 1970 (3) S.A. 97 (E.C.D.) the facts were
that 'at the resumed hearing on a charge of stock
theft, as by 11.30
a.m. the accused's attorney was still

4

not
present, the magistrate had decided that the case should proceed. The
accused declined to cross-examine the remaining State
witnesses,
stating that they could not say anything with­out their attorney
being present. They were convicted and the case
adjorned until 2 p.m.
The accused's attorney then explained that he had noted the wrong
date for the postponement on his record,
and applied for the recall
of the State witnesses for cross-examination and placing on record
the evidence of the accused and their
witnesses, while both the State
and defence witnesses were present. The magistrate held that he could
not reopen the case. In an
appeal against the conviction on the
ground of irregularity, Held, that the magistrate had rightly held
that he could not reopen
the case. Held, further, that in the light
of all the relevant facts, the Court could not say that the
magistrate had exercised
his discretion wrongly in deciding to
continue the case instead of postponing it. Held, further, that the
mere fact that an accused
had been denied legal representation did
not afford a ground for relief, and that it had not been shown that
this had resulted
from any wrong decision by the magistrate.'

I think
that the facts in Nongila's Case are more or less the same with the
facts in the present case. They cannot be heard to say
that they were
denied the right to legal representa­tion when they stubbornly
refused to say anything in the absence of their
attorney.

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In the
result the application is dismissed

J.L.
KHEOLA

JUDGE

3rd
December, 1990.

For
Applicants - Mr. Klass

For
Respondents - No. Appearance.