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CRI/APN/617/04

Ref: CR
178/04 (Maseru)

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:-

MALUPE
THAI Applicant

AND

THE
DIRECTOR OF PUBLIC PROSECUTION Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice Monapathi On the 8th day of November.
2004

I made
the following decision in this application for review and application
for bail pending appeal. Counsel had been ready to
argue this review
matter. I accordingly decided to deal with the application for review
straight away. It is primarily about the
right to "the
fundamental common-law right to legal representation" and
specifically whether such a right was explained
to the Applicant
(Accused) before the court aquo.

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Miss
Rantofi complained, and this ultimately turned out to be the sole
ground argued by herself and Miss Kanono for the Crown, that
the
rights of the Applicant (Accused) the legal representation were not
explained to him because:

"it is important for the proper administration of justice that
an unrepresented accused at the commencement of his trial be
informed
of his rights in regard to legal representation and if he is indigent
and desirous of legal representation what avenues
are opened to him
in this......"

as stated
in PHOMOLO KHUTUSI VS REX 1993-1994 LLR 21 per Ackerman JA. Miss
Rantofi felt that the record of proceedings did not disclose
that
such a right was explained and hence an irregularity had occurred.

The
learned authors of CONSTITUTION LAW OF SOUTH AFRICA, A. Chaskalson et
al, (Juta) 1998, on commenting about the rights of an
accused to be
informed of the right to counsel, as entrenched in the South African
Constitution concluded at 27-78 that ...."Failure
to inform the
accused accordingly has been held to amount to an irregularity
rendering the trial unfair" S v GOUIWE (8) 1995
& BLCR (B).

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The
statement, on page one (1) of the record of the Court aquo, which
reads: "...the charge is read and explained to the Accused
they
elect to appear unrepresented ..." It is contended that the
statement does not disclose much of a background as to whether
the
learned Magistrate did question the Accused, as to whether he needed
to be represented and, what his choice of counsel would
be. That may
be so. In my mind, it nevertheless disclosed, which is most
important, that the Accused did appreciate the fact that
he had a
right to be represented by counsel, as a matter of choice.

Although
a verbatim statement ideal, I do not think in all cases much more
precision will be achieved. Each case will depend on
its own wording.
What is important is for as accused to appreciate that he will be
represented if it is his wish. Incidentally
it is ideal, again, that
a form be designed as a guideline to introduce most of these
preliminaries which are fundamental to all
the rights of any accused.
For example does an accused understand the charge (after its having
been explained) and does he desire
to have legal representation, if
so which counsel? And so forth.

The
application therefore fails.

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T.
MONAPATHI

JUDGE