C. of A.
(CRI) No.5 of 1989

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

PHOMOLO
KHUTLISI

Appellant

Vs

REX

Respondent

HELD AT
MASERU

Coram:

Schutz,
P. Aaron,

J.A.
Ackermann,J.A

.

JUDGMENT

Ackermann, J.A.

Appellant,
a 19 year old young man was, on his plea of guilty, convicted of
raping a 78 year old woman by the Subordinate Court
of the First
Class for the Maseru District on the 31st May, 1988 after the
appellant had agreed with an outline of the facts of
the case by the
Public Prosecutor. The trial Magistrate committed the appellant to
the High Court for sentence in terms of s.293
of the Criminal

2

Procedure
and Evidence Act, Act No.9 of 1981. Before doing so the trial
Magistrate allowed the appellant to address him on mitigation
of
sentence and also questioned the appellant concerning his state of
sobriety at the time of committing the offence as well as
his
personal circumstances.

Cullinan,
C.J. heard the matter in the High Court. The record in this case is,
once again, far from satisfactory because it only
contains a copy of
the Chief Justice's judgment but no record of the proceedings before
him. It is clear from the notes in the
original file that both the
appellant as well as Counsel for the Crown addressed him. The Chief
Justice, after satisfying himself
from the record of the appellant's
guilt, sentenced the appellant to six (6) years' imprisonment.

The
appeal was brought on a number of grounds. In dealing with these
grounds it is important to bear in mind that, in terms of ss.294(4)

read with ss294(3)(1) of the aforesaid Act, the appellant must be
deemed to have been tried and convicted for the offence before
the
High Court.

It was
contended that the Magistrate in referring the matter to the High
Court for sentence lost sight of the fact that he was dealing
with a
minor and that both courts overlooked the provision

3

of s.308
of the Criminal Procedure and Evidence Act which gave the court power
to impose a sentence of whipping in lieu of any other
punishment.
There is no merit in this submission. The age of the appellant was
stated to be 19 years in the charge sheet and it
is unconceivable
that the Chief Justice could have overlooked either this fact or the
provisions of s.308 of the Act.

It was
further contended that the court had no guidance as to the personal
circumstances of the appellant. There is likewise no
merit in this
point. The Chief Justice took into account the fact that the
appellant was a first offender and had before him the
record of the
proceedings before the Subordinate Court from which the personal
circumstances of the appellant appear. There is
no evidence or
suggestion that the Chief Justice did not inform himself of these
facts or indeed question the appellant himself
as to his personal
circumstances.

The
argument was advanced that the appellant was a stammerer and that
therefore the provisions of ss. 171(2) which provide that
"any
accused who in the opinion of the court requires the assistance of
another person may, with the permission of the court,
be so assisted"
ought to have been invoked. There is nothing on record to indicate
that the appellant is or was a

4

stammerer
or that in any other respects he was a person such as is envisaged in
the section.

It was
submitted that the Court erred in applying the Minimum Sentences
Order of 1988. This point is groundless for the simple reason
that
the Chief Justice did not apply the aforementioned order.

In
paragraph 5 of the Notice of Appeal reference is made to the
appellant's impediments of speech, his inadequate development and
the
fact that he did not get a fair trial as he pleaded guilty under
duress when he was innocent of the suspected crime. There
is
absolutely nothing on the record to support these contentions which
can therefore not prevail.

In
appellant's heads of argument a point was raised for the first time
that inasmuch as appellant was legally unrepresented both
before the
Subordinate-Court as well as the High Court and had not been
in­formed of his right to legal representation, he
did not have a
fair trial. In the context of and on the facts of the present case
this is a gound which ought to have been raised
in the Notice of
Appeal and, having regard to the absence of a full record of the
proceedings before the Chief Justice, it ought
perhaps more properly
to have been brought by way of review. In any event it seems to me
that, on the present record and on the
facts of this case, the point
cannot succeed.

5

It is,
for reasons which will emerge, not appropriate to deal in any
comprehensive manner in this judgment with either:

(a) the right of an accused to be legally represented at his trial;

(b) the right of an accused, who wishes to be legally represented but
does not have the means to engage a legal representative
: himself,
to free legal representation from the Crown; or

(c) The right of an accused to be informed at the commencement of a
trial of the above rights.

I would emphasise however the importance, in the fair administration
of justice, of an accused being informed at the commencement
of the
trial of his rights in regard to legal representation, a matter which
was referred to by Lehohla J. in L. Pulumo v Rex CRI/A/27/88

(unreported) at p.16, The following remarks of Goldstone J. in S. v
Radebe, S. v Mbonani 1988(1)SA 19(T) at 196 G-J are instructive
and
apposite:

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" If there is a duty upon judicial officers to inform
unrepresented accused of their legal rights, then I can conceive of

no reason why the right to legal representation should not be one of
them. Especially where the charge is a serious one which may
merit a
sentence which could be materially prejudicial to the accused, such
an accused should be informed of the seriousness of
the charge and of
the possible consequences of a conviction. Again, depending upon the
complexity of the charge, or of the legal
rules relating thereto, and
the seriousness thereof, an accused should not only be told of this
right but they should be encouraged
to exercise it. He should also be
informed in appropriate cases that he is entitled to apply to the
Legal Aid Board of assistance.
A failure on the part of the judicial
officer to do this, having regard to the circumstances of a
particular case, may result in
an unfair trial in which there may
will be a complete failure of justice. I should make it clear that 1
am not suggesting that
the

7

absence of legal representation per se or the absence of the
suggested advice to an accused person per se will necessarily result

in such an irregularity or an unfair trial and the failure of
justice. Each case will depend upon its own facts and peculiar
circumstances."

I need
hardly add that the question as to when, or under what circumstances,
an impecunious accused is entitled to free legal representation
might
be answered differently in different countries. The duty to provide
free legal representation in a wider range of cases may,
for a
variety of reasons, be greater in the United State of America than in
the Republic of South Africa and greater in the latter
than in the
Kingdom of Lesotho.

It is
important, for the proper administration of justice, nonetheless,
that an unrepresented accused, at the commencement of his
trial, be
informed of his legal rights, in regard to legal representation, and,
if he is indigent and desirious of legal re­presentation,
what
avenues are open to him in this regard.

The
difficulty facing the appellant in the present case on this issue is
the paucity of facts.. There is no evidence that the appellant's

rights in this regard were not explained to him. There is indeed no
evidence that the appellant was anaware of

8

his
rights concerning legal representation nor, if he had been informed
of, his rights that he would have wanted legal representation.

Consequently I am not satisfied that the appellant has established
any pro cedural irregularity in this regard.

I turn
finally to the submission that, considering all the circumstances of
the appellant, the sentence imposed was so grossly excessive
that it
warrants in­terference with on appeal. The facts of the
offence-appear from the record. Without any provocation, a
young man
of 19 raped an old woman of 78 four times in the most brazen, brutal
and contemptuous manner. Under these circumstances,
and
notwithstanding the fact that the appellant is a 19 year old first
offender the sentence of six years' imprisonment cannot
in any regard
be considered inappropriate.

The appeal is accordingly dismissed.

Signed : .....................

L.W.H. Ackermann

JUDGE OF APPEAL

I agree:

Signed:.....................

W.P. Schutz

PRESIDENT

I agree

Signed:...................

S. Aaron

JUDGE OF APPEAL

Delivered
at MASERU this 26th day of January, 1990.