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

/Procedure ...

- 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

/of ...

- 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

/stammerer ...

-- 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.

/It is, ...

5

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

1. 
   the right of an accused to be
   legally represented at
   his trial;

   
   

2. 
   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

   
   

3. 
   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:

/"If there ...

- 6 -

" 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

/absence ...

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.