CRI/APN/134/2003
IN THE HIGH COURT OF LESOTHO
In the matter between:-
MAQHENA TSOEU APPLICANT
and
THE DIRECTOR OF PUBLIC
PROSECUTIONS 1ST RESPONDENT
MAGISTRATE FOR MOKHOTLONG DISTRICT
MR THAMAE 2nd RESPONDENT
ATTORNEY-GENERAL 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Mrs Justice A.M. Hlajoane on 9th May. 2005.
The Applicant in this case has applied to this Court for review of the judgment in CR 134/2003 by the Mokhotlong Magistrate's Court. The only ground for review being that there was no interpreter at the hearing of that case and that this amounted to a gross irregularity.
There are two issues for determination in this review, being:
2
Whether in fact there was an interpreter,
If there was none, whether that amounted to a gross irregularity.
Applicant submitted that throughout the entire record of magistrate's proceedings nowhere has it been stated or indicated that there was an interpreter. But conceded that it has merely been written on the charge sheet.
One might be tempted to ask if the charge sheet according to the Applicant should not be taken as part of the proceedings? The Respondent has only filed the intention to oppose without any opposing affidavit. And in answer to that he pointed out that there was no need for any affidavit since this was just a review. He went further to show that he could have filed opposing affidavits if this was a bail being opposed.
The Respondent further argued that even if there was no interpreter, the fact that the accused was legally represented at the trial it could not therefore be said there was any miscarriage of justice and cited the case of S v Mashiyana 1989 (1) S.A 592. This decision could never be followed because it suggested that it was not the duty of the Court to explain to the accused about his rights to legal representation.
3
The decision in Mashiyana suggested that it should have been the accused himself who informed Court that he wanted to be legally represented without the Court itself having explained to him about such aright. The relevant part reads:
"A Court is not obliged to enquire from an accused whether he wishes to have legal representation. The unexpressed desire of an accused to engage a legal representative cannot afford him a cause for complaint after his conviction and sentence."
The ruling above could have been followed in the past centuries but not recently when accused persons' rights have to be fully explained to them and failure to explain them considered as a gross irregularity that would render proceedings a nullity.
I tend to disagree with the proposition by the Respondent that since this matter was a review there was no need to have filed any opposing affidavit. There has been an allegation of fact advanced by the Applicant that there was no interpreter and Respondent ought to have refuted that on affidavit. Numerous decisions by the Court of Appeal have shown that once there has been no interpreter the proceedings that follow would be a nullity. It would not even matter whether or not the accused had been legally represented or was even a lawyer himself, Lenka v R C of A (CIV) No.2 of 2004 (unreported).
4
If one looks at Rule 50 of the High Court Rules on reviews, subrule 5 (b) thereof, there is a need for the Respondent to deliver affidavits in answer to allegations made by the Applicant. It was not enough to have just said that because there was a name of an interpreter on the face of the charge sheet was enough proof that there has been an interpreter during the proceedings. An affidavit by either Presiding Officer, Public Prosecutor and / or by the interpreter himself would suffice.
The absence of an affidavit in answer to the allegations by the Applicant in terms of Rule 50 (5) (b) rendered the proceedings a nullity. On review therefore the proceedings of the Mokhotlong Magistrate's Court in CR134/2003 are set aside, the case to start de novo before a different magistrate. An order was also made that the accused should be released from prison forthwith.
M. HLAJOANE
JUDGE
For Applicant: Mr Mosotho
For Respondent: Mr Habasisa
