CRI/APN/720/03
IN THE HIGH COURT OF LESOTHO
In the matter of:
KHASU MAKULA 1st APPLICANT
MOLIBO MOEKO 2nd APPLICANT
AND
MAGISTRATE MOTINYANE RESPONDENT
REVIEW ORDER
Delivered by The Honourable Mr. Justice W.C.M. Maqutu on the 23rd April, 2004.
In this matter applicants who are policemen have been convicted and sentenced to ten years imprisonment for culpable homicide by a magistrate of Maseru.
The victim was a rape suspect Jacob Mabone who died in police custody on the 1st March 1991.
Applicants applied for an order in the following terms:
Reviewing and setting aside the conviction and sentence of the applicants in CR 1783/02
Further and/or alternative relief. accused pleaded not guilty. The accused were convicted and sentenced on the 21st January 2003.
Accused instituted the review proceedings before me. Although review proceedings have no time limit, delays of this nature are not an ideal manner of ventilating grievances in any judicial proceedings.
When the matter first came before me on the 16th February 2004, it had to be postponed to the 1st March 2004. The matter was again before me on the 29th March 2004. On that day, I was informed that the Crown no more opposed the setting aside of the conviction and sentence. Miss. Motinyane appeared for the Crown while Mr. Hoeane appeared for the applicants.
I was not satisfied with this change, because I was of the view that I could only set aside a conviction and sentence on weighty grounds. All Miss. Motinyane could say for the Crown was that she had been told not to oppose this application. I consequently directed both parties to come and address me on the merits on the 2nd April 2004 -and to submit written heads of argument.
On the 2nd April 2004, I asked the Crown to begin - and to say why they no more support the conviction and sentence. Mr. Mojaje for the Crown argued and made the following points.
The court had called committed a gross irregularity by allowing the prosecution to call Pw 7 Trooper Selepe Selele after the Crown had closed its case and both the prosecution
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and the defence had closed their cases and addressed the court.
(ii) The accused were not represented consequently the magistrate should have helped the accused put their defence rather than
prejudice them as he did.
(iii) The accused were not given an opportunity to make a plea in mitigation of sentence. The court sentenced them to ten years
imprisonment. After sentencing them the court then allowed them to make a plea in mitigation and then sentenced them the second time to ten years imprisonment. There was in Mr. Mojaje's view great prejudice because in the circumstances of the case, the plea in mitigation became nonsensical.
8. Mr. Hoeane for applicant made the following points:
(i) He reiterated the Crown's point about the irregularity of
calling Pw 7 just before judgment. Both parties had closed their cases and had addressed the court on the merits of the case. They
were not even given an opportunity to be heard further after Pw 7 had given evidence.
(ii) While emphasizing the duties of a Magistrate to the accused who are not represented Mr. Hoeane emphasized that the Magistrate should have explained to the accused that they have a right to be represented as their case is a
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very serious one. Mr. Hoeane referred me to three cases to which I shall return. These are:
Pulumo V Rex CRI/A/28 (unreported)
P. Khutlisi VRex 1993 - 94 LLR & LB 18
S. Motsoene V Rex 1999 LLR 331
(iii) Mr. Hoeane also noted that the Magistrate had failed to recognize what was hearsay when he relied in his judgment on what
Ntapa said to accused about accused 1 and 2. Mr. Hoeane added that the Magistrate's even failed to recognize that it is not clear what Accused 3 heard about the struggle in the shack and what he heard from Ntapa.
Whether delay had not been excessive
It worried me that the delay in applying for review might have been excessive. In turning this in my mind I was mindful of the broad discretionary powers this court has. Even so any discretion this court has must be exercise judicially. Consequently the following words of De Villiers J P in Kader v Assistant Magistrate Cape Town & Another 1954 (3) SA 648 at 656 to 657 came to mind:
"Although there is no fixed time limit, review proceedings must, having regard to circumstances of each particular case, be taken within a reasonable time. If a delay, unreasonable in point of the time ensures before the initiation of such proceedings, it is incumbent upon applicant to provide a satisfactory explanation."
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In this case applicants seem not to have been aware that some explanation for the nine months delay in bringing this application
was called for. "Unreasonable delay" has no definition - each case depends on its own circumstances. Nevertheless the merits of the application and the legitimacy of an applicant's grievance are a factor to be considered in determining whether or not the court after a delay will exercise its powers of review to review a matter.
Whether this ought to be an appeal or review
The review procedure can be open to abuse by litigants. Ordinarily when the accused is not satisfied with the way a subordinate court has dealt with facts and law, the accused should appeal. There is a time limit within which to appeal. It is wrong to use the review procedure as a method of bringing before a superior court matters that should have been the subject of an appeal but which are time barred.
An appeal is brought as of right, while an application for a review is a application for a superior court to exercise at its discretion the power to revise the proceedings of an inferior court, and if necessary to set them aside or correct them because of irregularities and illegalities that have led to a failure of justice. In other words a person is free to appeal, he does not ask for the indulgence of the superior court.
In practice once the superior court is seized with an appeal as Innez CJ said in R v Keeves 1926 AD 410 at page 412:
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"The appeal, in a wider sense may well include such review (under Rule 190 [Cape], though the difference between the two forms
of procedure is in other respects important and well marked."
In review applications (since a case has to be made for the court to exercise its powers of review) it is not unusual to exaggerate what is being complained against. An irregularity will be called gross even if it might be a minor irregularity. Consequently in Vawda v Rasool 1947 (1) SA 724 at 727 Broome J said of this tendency: "This strikes me as more a forensic exaggeration than a misstatement of fact." Consequently Broome J insisted that the matter in question should be ventilated in an appeal rather than a review. He consequently directed the applicant to appeal out of time and dismissed the application for a review.
I specifically asked Mr. Hoeane for applicant's whether in the light of the irregularities that are common cause, there has been a mistrial. Mr. Hoeane said that is not what the accused are saying - because such a finding about their trial would result in a new trial in terms of Section 8 (!) (a) of the High Court Act 1978 which logically applies to both appeal and reviews. As Holmes JA observed of such cases that they are "exceptional cases where the irregularity is per se of such a nature and degree as de jure to vitiate the whole trial. - S v Tuge 1966 (4) SA 565 at 568 FG.
Mr. Hoeane said the order that the applicants are seeking is that in terms of Section 7 of the High Court Act 1978 this court should in reviewing this case set aside or correct whatever it is persuaded was
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done wrongly by the magistrate, without necessarily going as far as ordering a new trial.
The difference between an appeal and a review (in practice) sometimes is not clear. The easiest formulation is that in an appeal -what is attacked is the result while in a review the applicant attacks the method. See Jones and Buckle. The Civil Practice of the Magistrate Courts in South Africa 7th Edition Volume I at pages 324 and 325. In an appeal the aggrieved party is limited to the record of proceedings - while in a review facts that are not in the record might sometimes be brought to the attention of a superior court by way of affidavit.
Part XI of the Subordinate Court Order of 1988 gives the High Court extensive review and revisionary powers over the proceedings of the magistrate courts. Consequently in the pursuit of justice the distinction between a review cannot be refined. Therefore Innes CJ in Johannesburg Consolidated Investments Co. v Johannesburg Town Council TS 111 at page 114 said:
"If we examine the scope of this word as it occurs in our Statutes and has been interpreted by our practice, ... In its first
and most usual signification it denotes the process by which apart from appeal, the proceedings of inferior courts of justice, both civil and criminal are brought before this court in respect of grave irregularities or illegalities occurring during the course of such proceedings ..."
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Indeed, these remedies of review and appeal overlap a great deal. A superior court will not turn a blind eye to a manifest injustice because of the form in which the grievance was brought. As Herbstein & Van Winsen The Civil Practice of the Superior Courts of South Africa 4 Edition at page 931 have put it, the basis of interference by the Supreme Court is not its inherent jurisdiction but the "allegation of injustice or irregularity."
Since errors in law might lead to an erroneous method of trial and a person who seeks a review often wants a change in the result of trial, the distinction between review and appeal sometimes becomes blurred by overlappings. I will endeavour to correct what can be corrected and set aside what should be set-aside. Where there are gave irregularities.
In this case I am mindful that in, an appeal Section 8 (2) of the High Court Act 1978 provides:
"... Notwithstanding that a point raised might be decided in favour of the accused no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in proceedings, unless it appears to the High Court that a failure of justice has resulted therefrom."
This as I have already stated applies to a review as well.
In S v Majola 1971 (3) SA 804 Henning J at 807 A, noted on review that the accused had not been properly tried where "the magistrate called a witness after the close of the defence case without affording the accused an opportunity of leading rebutting evidence." In the case
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before the record does not show where the magistrate gave the unrepresented accused an opportunity to lead rebutting evidence.
It is clear nevertheless that no trial is ever run perfectly. As Davis AJA said in Rex v Dhlumanyo 1948 (2) SA 677 at page 706 paragraph 12 a superior court "should not seek anxiously to discover reasons adverse to the conclusions of the trial judge. No judgment is ever perfect and all embracing" with these preliminary observation I shall now review these proceedings.
Introduction of Pw 7 Trooper Selepe by Court.
I think the evidence of Pw 7, which was irregularly and unprocedurally admitted, should be entirely ignored. The reason as already stated being that the unpresented accused was not given an opportunity to rebut it. See S v Majola (Supra) referred to above.
At the outset I have to comment on the very illegible writing of the magistrate who took the record long hand. There are many mistakes such as not adding the word NOT when the witness answers in the negative. Yet this fact emerges from subsequent cross-examination.
Even so, this did not present an insurmountable in understanding what happened. It was only in the judgment that I discovered that Pw 7 was in fact a court witness. The record was not clear on this issue.
On page 30 of the hand written record there is a very important entry in the record which both Mr. Hoeane for the applicant and Mr. Mojaje for the Crown did not notice. The trial Magistrate after he had been
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addressed by both the prosecution and the three accused in the case -wrote the following:
"Rem to 31.12.02 Delivery of judgment" Thereafter the Magistrate signed his name and the date 23.12.02
On the 31st December 2002, Pw 7 Trooper Selepe Selele was called by the court when the court was supposed to deliver judgment. It does not mean the court may not reopen proceedings and call a witness -giving all sides full rights of cross-examination - bringing evidence in rebuttal and addressing it afresh. This power should be exercised sparingly - because of the potential prejudice that might result.
Pw 7 Trooper Selepe showed that he and Accused 3 had arrested the deceased from deceased's home. The applicants who were Accused 1 and 2 only joined them at Ntapa Leboela's shop. He saw first applicant kicking deceased repeatedly. Pw 7 Trooper Selele went out for 30 minutes leaving deceased with Accused 3 and the two applicants. When he came back he found the second applicant also assaulting deceased. Accused 3 had been with the two applicants all that time watching the applicants assault the deceased.
Accused 3 had told the court when he gave evidence that it was him that left the applicants and Pw 7 Trooper Selepe with the deceased. When Accused 3 returned he found Pw 7 watching deceased being assaulted. Consequently it should have been clear for the Magistrate that Pw 7 was at best an accomplice witness.
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The magistrate had reached the conclusion that the accused had not been properly identified by the witnesses although Accused 1 was known to Pwl and Pw 1 had seen him assault the deceased. That was the reason he called Pw 7 out of the blue.
There were other reasons that the Magistrate reached this conclusion. Pw 1 had said all three accused (two of whom are applicants) had come with the deceased to Ntapa Leboela's cafe where she worked. Pw 2 the mother of deceased claimed Accused 1 (first applicant) had arrested the deceased when all evidence showed he was not there. Pw 3 had said he as the Chiefs messenger had handed the deceased to accused 2 and Accused 3 (both of whom were in uniform) without injuries. The Magistrate noted Accused 2 (second applicant) could have been there or in uniform as he was off duty.
What is significant about Pw 7 and the Magistrate's approach to the evidence are the following remarks in the Magistrate's judgment:
"Pw 7 Selepe Selele has been a star witness that clarified questions of identity raised by Pw 1 Elizabeth Khoase and Pw 2
Maseeiso Mabone who were too frightened and could not identify the accused clearly. Perusal of the four corners of the record reveals a clear case of murder and the accused are lucky not to have been charged with culpable homicide."
33. If we go by the evidence of Pw 7 it is Accused 3 who strangled the deceased on the way because the deceased did not move. This of course is not consistent with the medical evidence. At that time Pw 7 and Accused 3 agree that the two applicants were not there.
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The magistrate did not treat the evidence of Pw 7 and Accused 3 who were clearly accomplices in the case against the applicants with caution. The magistrate did not disclose an awareness that they were accomplices. Hoffmann and Zeffert - The South African Law of Evidence 4th Edition at page 382 say "In all cases, however, the co-accused will ordinarily be an accomplice, and cautionary rules for accomplice will apply."
Peete A J (as he then was) in the case of Rex v Ntsane Lerotholi and Others 1985 - 90 LLR 121 at page 129 said this of accomplices:
"The trial court must always bear in mind that an accomplice is not merely an witness with a possible motive to tell lies about an innocent accused, but is such a witness - peculiarly equipped, by reason of his inside knowledge of the commission of the crime, to convince the unwary that his lies are the truth."
The cautionary rule should not just be paid formal lip service to - by making a pronouncement that it is adhered to. There has to be clear evidence and indications - in the judgment that the magistrate in his treatment of evidence adopted a cautious approach to the evidence of Accused 3 and Pw 7 who are in respect of applicants accomplices.
In this case towards the applicants the method of trial was wrong in not following set procedures. The magistrate was introducing
evidence at will - contrary to procedures. Failing to give accomplice Pw 7 the statutory warning, caused Pw 7 not to give evidence free of the fear of telling the whole truth for fear of prosecution should he implicate himself. When Pw 7 was called, there
was already evidence
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on record that showed Pw 7 had a common purpose in the assaults that led to the death of the deceased, because according to Accused 3, Pw 7 was in the company of the applicants when they assaulted deceased.
Was the magistrate functus officio on sentence
Even before the applicants and Accused 3 were heard after conviction the magistrate said:
"Court has considered the accused's plea in mitigation. It has also put into consideration that crime of this nature is important in Lesotho and as such a robust sentence is called for. Hence 10 years imprisonment each. Signature 21.01.03."
It was definitely incorrect that the magistrate had heard the accused's plea in mitigation when he imposed the first ten years sentence.. The record of proceedings is not complete on how this sentence of ten years came to be disregarded and a second ten years sentence substituted after hearing whether the accused has previous convictions or not. The record should reflect everything that happened in court. In any event, once the sentence of 10 years imprisonment had been imposed on the accused the magistrate was functus officio, he could not reverse what he had done.
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In Rex v Mollison 1947 (4) SA 145 Henochsberg AJ put what I am saying as follows:
"Once a magistrate has convicted an accused and sentenced him he is functus officio in that case and he ought not to amend and amplify a record thereafter. The magistrate's amplification of the record is therefore irregular."
The magistrate should not gloss over mistakes he might make during the trial when he discovers them. If he attempts to remedy them this must show in the record of proceedings.
It was definitely not correct not to hear the accused in rebuttal of Pw 7 and subsequently in mitigation. It was probably only after this first sentence that the prosecutor drew the court's attention to the fact that the applicants were first offenders. If that was so, the magistrate should have recorded this fact. Accused 3 had a previous conviction and was at the time of this conviction in prison serving a sentence a culpable homicide, which he had committed in 1993 but had been brought to trial in 1997.
It was only then that the plea in mitigation of sentence was belatedly heard. Accused 3 said he had nothing to say. The magistrate repeated the words he had written before he heard the accused. This mistake on the part of the magistrate compounds the errors on these proceedings, because the record shows he ignored the subsequent facts that the accused offered in mitigation of sentence.
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Whether before Pw 7 was called culpable homicide had been proved.
There is evidence of Accused number 1 (now first applicant) that he and second applicant (Accused number 2) did in fact get to Ntapa Leboela's shop where they found Accused number 3 and Trooper Selele with a rape suspect under arrest. He does not say much except that he left for Marakabei police post immediately thereafter. The following day he heard that the rape suspect had died. He was not cross-examined by the prosecution.
Accused 2 (the second applicant) in his evidence said he did not get to Ntapa Leboela's shop, he was only told by Accused 1 (first
applicant) that Accused 3 and Trooper Selepe were at Ntapa Leboela's shop with a rape suspect they had arrested. Even Accused 2 (2nd applicant) was not cross-examined.
Accused 3 while distancing himself from the assault on the deceased implicated the two applicants in the assault on the deceased.
Applicants cross-examined Accused 3 at length to establish their innocence. It was then that the prosecution belatedly cross-examined
the applicants. This was no doubt irregular.
Accused 1 (first applicant) and Accused 3 should be treated as accomplices in so far as they both put Accused 2 at Ntapa Leboela's shop where deceased was assaulted. They have both a motive to implicate Accused 2 and exonerate themselves of the crime charged. Nevertheless I find that first applicant did not implicate the second
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accused in the crime charged, but in fact exonerated himself and second applicant together.
The first applicant corroborates the evidence of Pw 1 that second applicant was there at Ntapa Leboela's shop. Pw 1 says she saw
second applicant and Accused 3 doing nothing when first applicant was assaulting deceased. That shows they had common purpose in the assault. Accused 3 said in his evidence second applicant assaulted the deceased. It seems to me that Accused 3 unreliable as he is corroborates Pw 1 that second applicant had a part in the assault -either by actually assaulting deceased or by allowing first applicant to assault deceased on second applicant's behalf. This implicates second applicant on grounds of common purpose. It is clear that second applicant was not a truthful witness. A reasonable court could safely convict him.
What is clear beyond doubt is that first applicant is implicated in the assault by Pw 1 an independent witness who is corroborated by Accused 3 whose evidence has to be treated with caution like that of an accomplice - because of his shifting of blame from himself to the other accused. It is clear to me that the trial court was correct to convict the two applicants on this evidence that was correctly and regularly before it.
Pw 1 who knew Accused 1 (first applicant) shows he was at Ntapa Leboela's shop. First applicant while exonerating second applicant of the assault shows they were together at Ntapa Leboela's shop. Accused 3 an accomplice in respect of the two applicants corroborates
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first applicant that both second applicant and first applicant were at Ntapa Leboela's. While cautious of Accused 3's largely untrustworthy
evidence because of he blames the two applicants alone of the assault - there is no doubt that all accused were at Ntapa Leboela where they were with deceased for a short time.
The issue is - what fractured the deceased's skull and thereby cause his death. The applicants and the third accused were not prepared to say. Even where Accused 3 said the applicants assaulted deceased -the assault was described as being of a relatively light nature when Accused 3 was there. Clearly the truth was being hidden. When first applicant asked accused the question "who said I was hitting deceased with a commando?" Accused 3 replied: "It was said to be hearsay evidence."
It seems to me all the accused (who include the two applicants) and Pw 7 Trooper Selele (whose evidence will not be considered against the applicants) - the accused, are also accessories after the fact. In Rex v Didat 1913 AD 299 at page 304 Innes ACJ relying on Stephen said:
"And an accessory after the fact is defined by the same writer in his Digest of Criminal Law (Art. 46) as one who, knowing that a felony has been committed by another, receives, comforts or assists him in order to escape from punishment."
Pw 1 says the three policemen were just watching at the time first applicant was assaulting deceased. This fact is corroborated by Accused 3 who dishonestly tried to exclude himself - but in cross-
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examination was forced to concede that he was present and should have done something. These facts show that all policemen that were there joined common purpose even if they might not have all personally assaulted deceased. Consequently they are guilty of culpable homicide regardless of who delivered the fatal blow. In the circumstances - because of the accused collusive false behaviour in concealing the truth, the courts task ascertaining the truth is partially aided by this conduct.
I am of the view that the evidence of Pw 7 should be disregarded as it was irregularly brought. In bringing in that manner at that stage the magistrate erred. He also did not even bring it within acceptable accomplice evidence procedure - by promising Pw 7 immunity if he told the truth. It was evidence that lacked the inducement for Pw 7 to speak the truth. Consequently Pw 7 exonerated himself and blames the others exclusively.
Magistrate's conduct of the case
54. The way this case was conducted leaves a lot to be desired. Procedure was ignored, the rights of the accused violated. Everything that could be expected of a judicial officer was forgotten. Nevertheless I have already said, I am not prepared to say "that there had been so gross a departure from established rules of procedure that the accused had not been properly tried" - vide S v Naidoo 1962 (4) SA 348 at 353 EF. The magistrate furthermore does not appear to have given the accused the assistance
which is expected where the accused are not represented.
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In S v Chigadzi 1974 (1) SA 167 Beadli C J emphasized the need for magistrates to guide the unrepresented accused as to how they should present their evidence.
In that case of S v Chigadzi the accused had called his witnesses before he could go into the witness box. Consequently the accused
had heard their evidence and after hearing it, he went into the witness box to give evidence. This had diluted and weakened the
corroborative value of evidence of accused witnesses.
In S v Mavundla 1976 (4) SA 731 the court emphasized the need to guide the accused as to the procedure in court, so that they can understand what they admit or do in court and the effect of it. Consequently a conviction of culpable homicide was reduced to that of assault.
In S v Mdodana 1978 (4) SA 46 the prosecution had not made a prima facie case against the unrepresented accused. The Magistrate did not advise the unrepresented accused that he had a right to apply for a discharge, and if his application was refused, close his case. The court on review said the magistrate had not done his duty of guiding the unrepresented accused as the magistrate was expected to do.
59. In S v D 1967 (2) SA 537 at 538 AB James J said: "In cases in which the accused is undefended, the accused rights should be most carefully explained to her and she should understand fully well that she is under no obligation whatsoever to assist the State in
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establishing the case against her, the precise admission she is prepared to make should recorded."
How and to what extent the Magistrate should guide an unrepresented accused in presenting his case, depends on what a particular
situation during the trial requires. No hard and fast statement covering all exigencies of the case can be made. All that is
required of a magistrate is to keep the scales of justice evenly balanced to enable the accused to know what he is doing and what is expected of him so as the accused's trial can be fair.
Ramodibedi J (as he then was) in Senate Motsoene v Rex 1999 - 2001 LLR 331 at page 335 in emphasizing the guidance that unrepresented accused should have said:
"That being the case it follows that a trial judicial officer is in my judgment obliged to explain to an unrepresented accused person the purpose of cross-examination in the interests of fair trial and justice as contemplated by Section 12 (!) (2) (d) of the Constitution."
It is this duty to guide the accused and help them present their defence that the magistrate neglected.
Right of the accused to be legally represented
I have gone at length on what guidance the accused should get from the court because in Lesotho not all accused can afford to be legally represented. Courts should advise them to seek legal representation in serious cases. But the right to be legally represented in criminal
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proceedings depends on the accused financial means. It is not a right that the State can afford to pay for.
I thought Mr. Hoeane was overstating what Ramodibedi J (as he then was) said in Senate Motsoene supra) at 334 to 335. He only said an accused person should be guided and advised of his right to get legal representation. Where he does not have one, the accused is to be helped to understand the procedures and effects of court procedures. The Constitution of Lesotho Section 12 (d) merely says "Every person shall be permitted to defend himself in court in person or by legal representative of his own choice." It does not give any person a right to have legal representation it only says a legal representative of the accused's choice should be allowed to defend the accused. If Constitution so provided the State would be obliged to pay for legal representation in all criminal proceedings - something it does not invariably have to do.
I am mindful of the State's attempt in 1978 to have as many needy people as possible to have legal aid when tried of serious crimes. See the Legal Aid Act 1978 in which Resident Magistrates could certify to the Chief Legal Aid Counsel that certain poor people qualify for legal aid and their cases are serious enough to merit such aid. This Act was followed by the Legal Aid Regulations 1979. Although legal aid still exists, it has had such financial constraints that legal aid cannot be extensively given.
In the case of Phomolo Khutlisi v Rex 1993 - 1994 LLR & legal Bulletin 18 an argument was addressed to the Court of Appeal that the
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accused charged with a serious crime had a right to legal representation. At page 21 of Phomolo Khutlisi v Rex Ackermann JA in dealing with this submission - made the following observation:
"I need hardly add that the question as to when, or under what circumstances, an impecunious accused is entitled to legal aid 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 States of America than in the Republic of South Africa - and greater in the latter than in the Kingdom of Lesotho."
The right to legal representation falls under Section 26 of the Constitution, which is under Chapter HI of the Constitution
-PRINCIPLES OF STATE POLICY. In terms of Section 25 principles such as those of equality of justice to the disadvantaged -are not
enforceable by the courts. But subject to Lesotho's "economic capacity and development of Lesotho" the authorities in Lesotho by legislation or otherwise shall progressively strive for their full realization.
I do not agree with what Mr. Hoeane said to the effect that the magistrate erred by not telling the accused of their right to legal representation. The three accused were policemen. They knew how serious the charge against them was. I would add that failing to warn the accused of the need for legal representation is not a gross irregularity - although it will attract legitimate criticism. It falls under those irregularities that may not always lead to a failure of justice vide Section 8 (2) of the High Court Act 1978.
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When the case came before court, it had been in abeyance for over ten years. Applicants had been charged five years before. I have not the slightest hesitation in concluding that they knew they should be legally represented. They did not ask for an opportunity to go and get the services of lawyer. They must have had a good reason not to get one. I can only surmise that they had no money.
The case of Pulumo v Rex CRI/A/27/88 (unreported) and Khutlisi v Rex 1993 - 94 LLR Legal Bulletin 18 should not be read out of context. All that was required by these cases is that the accused be asked if they are legally represented and be advised to find a lawyer if they can afford. Failure to advise the accused is not per se an irregularity every case depends on its particular facts. As I have said the finding of a legal practitioner to represent them will be conditioned by whether they can afford to do so.
Conclusion
It is not necessary to go beyond what accused counsel seeks on behalf of the accused. Consequently since the accused are satisfied that they had a proper trial, I can only say I almost considered whether there had been a mistrial and order a new trial because of the many irregularities. Counsel for the accused firmly and clearly stopped me from taking that route.
On the evidence before me I am satisfied that despite the irregularities the accused were properly convicted of culpable homicide. I have in
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reaching this conclusion entirely treated the evidence of Pw 7 as if it was not given.
On the issue of sentence I take the view that the method adopted by the Magistrate is wrong. He came with a written sentence in which he decided without hearing the accused that they should all be sentenced to ten (10) years imprisonment. It did not help matters that the magistrate had already written that he had heard the plea in mitigation from the accused - when the record and what subsequently happened shows clearly that this was not so.
I am therefore obliged to set this sentence aside and impose an appropriate one. The applicants were first offenders and for some
unknown sadistic reason decided to participate in the torture and assault the deceased unnecessarily. Unfortunately for the applicants
the deceased died. The magistrate on no evidence at all convinced himself that the applicant's should have been charged with murder.
All evidence on record shows that it is the Accused 3 who was in charge and who with Trooper Selepe left a fatally injured arrested person in the village with the Chief and went to Marakabei police post. I will not go into the evidence of strangulation - which is not supported by medical evidence which the court witness Pw 7 gave against Accused 3 whose matter is not before me. All that, comes from the "star" court witnesses that the magistrate irregularly and without legal caution allowed to affect his
judgment. Unfortunately for the applicants they were prejudiced by this evidence.
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It remains for me to criticize the police for wishing the deceased's death away and failing to charge all the accused of the crime
committed in 1991. They only charged the applicants for this crime in 1996. The case was eventually heard in September 2002. But this court should not make the applicants a sacrifice (scapegoat) for the failures of the police and the judicial system. Righteous anger ought not to have beclouded judgment in the case of applicants.
. Sentence
Having confirmed the convictions of the two applicants and quashed the sentences against them. It remains for me to impose an appropriate
sentence.
The two applicants (formerly Accused 1 and 2) are each of them sentenced to three (3) years imprisonment with effect from the 21st January 2003.
W.C.M MAQUTU
JUDGE
Copy: Chief Magistrate
The Magistrate - Maseru
AH Magistrates
Director of Public Prosecutions
O/C Police - Maseru
O/C Prisons – Maseru
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