CRI/T/77/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

vs

MOHOLOBELA
THEKO & 7 OTHERS

RULING

Delivered
by the Honourable Justice G.N. Mofolo. ActinG Judge, on the 30th day
of August. 1995

This
trial came before me on 29th Auqust, 1995. When the court was about
to start. the Assistant Reqistrar informed me that all
the parties to
the trial were present save counsel for the Crown.

I caused
an inquiry to be made why the Crown was not in attendance and was
informed Crown Counsels had been engaged in other matters.
I
nevertheless stood down the matter.

When the
court reconvened, there was no appearance by the Crown,

Now, if
crown counsels were engaged in other matters. I would have expected,
as a matter of courtesy, to have been so informed but
no such
information was forthcoming.

2

In the
event. Counsels for the defence submitted that in the absence of
appearance by the Crown this meant that the crown had no
interest in
prosecuting their case and that I was to accordingly in accordance
with section 278 of the Criminal Procedure and Evidence
Act, 1981 to
allow accused persons to plead and in default of evidence against
them to find them not guilty and to accruit and
discharge them.

Now,
section 278 of the Criminal Procedure and Evidence Act. 1981 reads :
sub-section (1)

if a
prosecutor

1. in
   the case of a trial by the Hiqh Court having given notice of trial.
   does not appear to prosecute the indictment aqainst the
   accused
   before the close of session of the Court; (X have underlined) or

   
   

2. in
   the case of a trial by a subordinate court, does not appear on the
   court day appointed for the trial {I have underlined) the
   accused
   may move the court to discharge him and the charge may be dismissed,
   and where the accused or any other person on his
   behalf has been
   bound by recognizance for appearance of the accused to take his
   trial the accused may further move the court
   to discharge the
   recognizance.

   
   

Both
counsel for the defence have urged the court to find that
Bub-sections (a) and (b) of section 278 are one and that (b) flowinq,

as it were, from (a), are to be read together for determininq whether
the requisite for dismissinq the Crown case rested on 'the
court day
appointed for the trial.' I couldn't disagree more. As far as this
court is concerned. there is a

3

clear and
distinct dichotocemy between the procedure to be followed where the
crown does not make an appearance in the High Court
and in a
subordinate court. In the High Court a court can only dismiss the
Crown's case 'if a prosecutor does not appear to prosecute
the
indictment aqainst the accused before the close of the session of the
court' (X have underlined). On the other hand, in a subordinate
court
'if a prosecutor does not appear on the court day appointed for the
trial' (I have underlined) such an accused person may
be discharged
and the charge dismissed. In my view. these provisions cannot be read
or construed as having the same result in point
of time when a court
may decide to dismiss the charge for non-appearance of the Crown.

The
question arises as to what the legislature means by 'the session of
the court.'

According
to Rule 2 of the Hiqh Court Rules, Legal Notice No,9 of 1980,
sessions of the court are described as Sub-rule (1)

Notice of
the dates and times of sessions of the High Court as determined by
the Chief Justice in terms of section 11 of the Act
shell be
published by notice which shall be affixed to a board in a
conspicuous place within the court precincts.

Sub-rule
(3)

The
periods between the said terms or sessions shall be periods of
vacation during which, subject to the provisions of sub-rule
(4) the
ordinary business of the Court shall be suspended but at least one
judge shall be available on such days to perform such
duties as the
Chief Justice shall direct.

4

The true
construction to 'session of the court' and the one to which this
court subscribes is an extended period between the period
immediately
after the vacation of the High Court and immediately before the
vacation of the High Court: in other words, a period
between the 1st
day of the sitting of the court and the last day of its sitting
before vacation and of course a period published
by notice affixed to
a board in a conspicuous place within the court precincts.

From the
foreqoinq, I rule that the period sketched above is not a period
within which, should the prosecutor not appear to prosecute
the
indictment aqainst the accused, the court has no option but to
discharqe accused persons and to dismiss the charge against
them.

But there
is another matter which is of concern to the court. It is that in
civil cases if a party does not appear the court may
either proceed
regardless or postpone the matter on payment of wasted costs to the
defaulting party ostensibly to place the innocent
party in the same
position he would have been but for the postponement.

I am
informed that this rule does not extend to criminal trials apparently
because the legislature has always assumed that while
private persons
can and do go wrong this is not expected of public servants.

5

Defence
counsels reported themselves timeously in this trial and by about
11.00 a.m. when the court went into session they were
in attendance.
An application was then made for the dismissal of the prosecution
case on the ground of non-attendance of the crown.
The court decided
to proceed with the case at 2.00 p.m. whether or not the prosecution
was in attendance. At 2.30p.m. when the
court reconvened the
prosecution had not attended and an application for the dismissal of
the crown's case was renewed and reserved
to 9.30 a.m. on 30th
August, 1995 and hence this ruling.

If this
had been a civil trial, failing appearance costs would have been
awarded. For inexplicable reasons, such costs are not exigrible
in a
criminal trial and those who attend have to lump it while those who
don't go scott free.

With the
present furore on human rights. the time is about to dawn in our
daily lives when servants of the state in protection of
their
so-called basic rights will not submit easily to superior orders or
instructions. We are reaching an unhappy syndrome and
one in which
while courts of law being largely creations of statute are only able
to function within the purview of legislative
enactments, it will be
increasingly incumbent on the legislature itself being the be all and
end all of our rights, privileges
and immunities to take the
initiative in ensuring that sections of its body politic are not
unnecessarily disadvantaged or embarrassed.

6

In this
particular case though it cannot be said that the prosecutor did not
appear to prosecute the indictment aqainst the accused
before the
close of the session of the court, and this court is unable to accede
to the application either that the accused plead
and having done so
to discharge accused persons and to have the charge against them
dismissed.

The
result is that the application is refused

G.N.
MOFOLO

ACTING
JUDGE

30th
August, 1995

For the
Crown: No appearance

For
Accused: 1, 3. 4. 5. 6. 7 & 8: Mr. Khauoe and 6th

Accused
on behalf of Mr, Fosa,

For
Accused 2: Mr. Nathane for Jobodwana, Pheko & Co.