CIV/APN/477/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:-
LEJAHA JANE APPLICANT
and
THE LEARNED MAGISTRATE (L. NTHAB1) 1st RESPONDENT THE CLERK OF COURT 2nd RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS 3rd RESPONDENT ATTORNEY-GENERAL 4TH RESPONDENT
JUDGMENT
Delivered by the Honourable Mrs Justice A.M. Hlajoane
on 26th August. 2004.
The Applicant moved the Court to have proceedings in CR55/2004 R v Lejaha Jane, reviewed, corrected and set aside. The Applicant had appeared before the Magistrate's Court Berea, charged and convicted of Culpable Homicide. He was sentenced to a period of six years, two of which were suspended conditionally for a year. The Applicant was not legally represented.
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The Applicant has advanced the following, as his grounds for asking for a review.
- he was not informed of his rights to legal representation at the commencement of the trial.
- the nature, importance and purpose of cross examination were never explained to him.
- he was not advised of his right to call witnesses in his defence at the close of prosecution's case.
there is no indication on the record that the services of a sworn interpreter were ever enlisted.
This Application was not opposed by the Respondents and therefore did not file any heads of argument. Instead, counsel for the Respondents
conceded that the Application should proceed unopposed. The Court made the following ruling, setting aside the decision by the first Respondent and ordering that the case should start de novo before a different magistrate, and that the Accused/Applicant be released from prison immediately. I had also indicated that my reasons would follow.
Numerous decisions of this Court and the Court of Appeal have dealt with this aspect of informing the accused of their rights, and when all that has been done the record must clearly show what those rights were. It would not be enough to just say that the rights of the Accused
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were explained to him, but such rights have to be clearly stated.
It was the duty of the magistrate at the commencement of the trial, before the accused pleaded, to inform the accused about his right to legal representation and also to encourage him to exercise such right in view of the seriousness of the charge he was facing, Hlalele & Another v Rex C of A (CRI) No 12 of 2000, and Senate Motsoene v Rex 1999 LLR 331.
Even at the cross-examination stage, the importance and purpose of cross-examination has to be fully explained to the accused so that the unrepresented accused could then put his defence to all the crown witnesses; S v Maseko 1993 (2) SACR 579 at 580, quoted with approval in Letsaba v the Magistrate Leribe and Another C of A (CRI) No2 of 2003.
Also at the close of prosecution's case, the accused's right to call witnesses in his defence has to be explained to an unrepresented
accused like the Applicant in this case. As a result of that omission, the Applicant had remained silent and closed his case. He
was not made to understand the importance of calling witnesses in defence and the consequences thereof, see R v Moalosi Review Case No3 of 2004, Order 1 of 2004 and R v Lerole & Another Review Case No82 of
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2004 Order No6 of 2004.
On the record, there is no indication that services of a sworn Interpreter were enlisted. A Judicial Officer, as a general rule must not act as an Interpreter as he is not a sworn Interpreter. Magistrate's function is to adjudicate and not to interpret, R v Moleleki 1982 LLR 87. The evidence of an unsworn Interpreter is considered by the Courts as hearsay and as such inadmissible, R v Naidoo 1962 (2) SA 625 and R v Mafeka CRI/T70/95.
Decisions of the Court of Appeal have shown that magistrates are not sworn Interpreters and where they conduct proceedings without the assistance of sworn Interpreter, it would be a fatal irregularity which vitiates the whole proceedings.
These are the reasons why the proceedings of the Magistrate in this case were set aside and a re-trial ordered.
A. M. HLAJOANE JUDGE
For Applicant: Mr Makholela
For Respondents: Ms Makoko
