CRI/APN/145/2005-
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the Matter Between:-
HLOMELANG MABE APPLICANT
And
DIRECTOR OF PUBLIC PROSECUTIONS 1st RESPONDENT
THE CLERK OF COURT-BEREA 2nd RESPONDENT
THE LEARNED MAGISTRATE BEREA 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 30th September 2005
This is an application for review of proceedings in CR 371/03 of the Berea Magistrate Court for an order as follows:
That the proceedings in CR 371/03 be reviewed and set aside.
That applicant be released from custody pending the finalization of this application.
That the proceedings in CR 371/03 be ordered to start de novo before a different Magistrate.
Further and/or alternative relief.
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The application is premised on alleged irregularities which occurred during the trial in the court a quo. In his Founding Affidavit,
Applicant avers that he was never advised of his right to legal representation even though he pleaded not guilty. He went further to state that the Presiding Officer did not advise him of other avenues available to him if he had difficulties to obtain services of a lawyer.
It is also Applicant's case that there was no sworn interpreter at the proceedings which were conducted in Sesotho, but recorded in English. He added that he was not given a chance to defend himself or to lead evidence in his own defence.
In turn, the Crown is opposing this application on the basis of the following points:
That the application is time barred.
That the Court a quo did inform the Applicant of his right to legal representation ex facie the record of proceedings.
That failure to advise an accused person of his right to legal representation cannot vitiate proceedings.
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That absence of an interpreter does not amount to a miscarriage of justice.
That applicant herein was informed of his right to raise a defence as evidenced by the record of proceedings. I now proceed to deal with the issues raised.
Time Barred
It was Mr Habasisa's contention that considering the time when this matter was heard and finalized (01/09/03), Applicant herein is out of time in filing this present application. In response Ms Rantofi argued that there is no time limit with respect to criminal reviews, not to mention that applicant filed his application on the 28th February 2005 which was in her opinion within a reasonable time. She added that since then applicant had been trying to secure the record from the Magistrate Court hence why the application is only being heard at this stage.
As Ms Rantofi rightly pointed out, there is no time limit prescribed by the Rules of Court within which a party ought to apply for review of
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proceedings of a lower court, board or tribunal. All that is required is for applicant to give notice to all other parties who may be affected by the decision. I accordingly dismiss this point.
Right to Legal Representation
Upon perusal of the court record, on the second page of the annexure to the charge sheet it is recorded as follows:
"On 01/06/03 accused before court The charge is read and explained to him. His right to bail and legal representation explained. The complainant is still admitted in Hospital....1"
On the first page of the typewritten record which was the 1st September 2003 it is again recorded that the accused is before the court and that the charge is read and explained to him whereupon he pleaded not guilty to both counts preferred against him.
It is on the basis of this record that Ms Rantofi, Counsel for Applicant submitted that applicant's right to legal representation was never read to him
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at the start of proceedings. It was Mr Habasisa's counter-argument that as a matter of fact the Magistrate in the Court a quo informed the accused of his right to legal representation as it clearly appears on the charge sheet.
It is a fact that a charge sheet is part of the record and as such I agree with Mr Habasisa that the accused was duly informed of this right as reflected on the charge sheet. In my opinion, the argument that the stage when the charge is read and explained to an accused is not the start of proceedings amounts to splitting of hairs. On the contrary, I believe there is no better time to inform the accused of his rights than at the very onset so that he has all the time to prepare his defence including seeking legal representation. Not only is this logical but it is also practical so that the actual date of hearing is not the day when the matter is postponed because the accused only learns for the first time of this right.
True enough the standard practice seems to be for Presiding Officers to wait until the date of hearing before informing accused persons of same. Unfortunately, this practice is not without problems in that it in turn usually causes numerous, costly and dilatory postponements. It would in fact make more sense if the practice was as happened in casu.
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Mr Rantofi quoted to the Court a number of authorities which state that the court should explain to the accused his rights and hear the election from the accused's "own mouth" what course of action he proposes to take. Her contention was that the operative
words are accused's "own mouth".
Indeed in Honourable M.P, Mofokeng's excellent book, Criminal Law and Procedure Through Cases P206, quoted to this Court it is so stated. However, I believe it is imperative that authorities are quoted in context. In the book the quotation is extracted from a passage under the heading-
IT IS UNNECESSARY FOR A JUDICIAL OFFICE TO EXPLAIN ACCUSED'S RIGHTS TO HIM WHERE HE IS LEGALLY REPRESENTED AND HIS LAWYER HAS EXPLAINED THEM TO HIM. Thereunder, the Honourable Judge had this to say:
"I am unable to find any section in the Criminal Procedure and Evidence Proclamation or any other law, which enjoins the magistrate or the judge when an accused person is represented to ask him personally what he elects to do at the end of the case for the Crown (my underlining). In East Africa where there is a special provision in the Criminal Procedure Codes, the Court of Appeal decided that it is for the trial court to explain to the accused his or her
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rights and take the election from the accused's "own mouth " whether or not he is or she is represented (my underlining) bu (sic) the practice in Lesotho and in the Republic, as far as I am aware, is for the presiding office to ask the accused's legal representative (see s. 172 (4) 120 (sic) if his or her rights were explained to him or her and if the answer is in the affirmative, to inquire which of the three courses available the accused decided to adopt. If an accused is not represented, the court explains the position to him or her and in such a case the court knows from the accused's own mouth what course he or she proposes to take.... "
In this instance the Honourable Mofokeng was making specific reference to the course of action the accused elects to take at the close of the crown's case. This is where the words accused's "own mouth" are used. The next line in the same passage bears testimony to this my interpretation. It goes on to say:
" Very often an accused who is not represented will ask the presiding officer the difference between taking the oath and making
an unsworn statement (my underlining) and this should be explained carefully... "
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In the light of the above, I do not accept Mr Rantofi 's interpretation of the late Judge's words.
In addition, while I respectfully agree with the late Judge's analysis, I however disagree with the contention by Applicant's Counsel that where a Presiding Officer informs an accused person of his right to legal representation, at the time the charge is preferred against him and records the same on the charge sheet as it happened in this matter, the accused's rights were not explained to him at the start of the proceedings. That would be stretching the position too far and I might add, to a point of absurdity.
I accordingly find that Applicant herein was duly informed of his right to representation in this case as evidenced by the record. In the light of this finding, I am not going to waste time to determine the effect of failure to explain applicant's right to legal
representation herein as I have already found that the right was explained to him.
Absence of a Sworn Interpreter
It was Mr Habasisa's submission that absence of an interpreter did not amount to a miscarriage of justice. He based his argument on the fact that
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Applicant herein has not indicated anywhere in the record as to where he did not understand the proceedings.
Since the decision of the Court of Appeal in the case of Thamae Lenka v Rex C of A (CRI) 2 of 2004, the position has been stated that it is mandatory that during the conduct of trial a sworn interpreter must be used and that magistrates should not record in English evidence given in Sesotho. Where this has not Happened, the Lenka's Case (Supra) states that this is a serious irregularity which vitiates the whole proceedings.
Since it is not respondent's case that there was indeed a sworn interpreter who interpreted the proceedings in court, I take it that they do not dispute this averment by applicant. All they are saying is that applicant did not suffer any prejudice as a result of this factor.
On the basis of the principle as stated in the Lenka's Case (Supra) I find that there was a serious irregularity in the conduct of the proceedings in the court a quo. See also the comments of my brother Maqutu J in the case of Lira Rampo v The Learned Magistrate - Berea and 2 Ors
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CRI/APN/401/2005 p 3-4 wherein he succinctly gives the reasons why it is wrong for a magistrate to hear evidence in Sesotho and record it in English.
It is on the basis of the above point that without even considering the issue of whether or not applicant herein was given the opportunity to present his defence in the court a quo, I accordingly order that the proceedings in CR 371/03 be set aside and to start de novo before a different magistrate.
I also order that applicant be released on bail in the amount of M500. 00 on the following conditions:
He does not interfere with the crown witnesses.
He attends his trial to its finality.
N.MAJARA
JUDGE
For Applicant : Ms Rantofi
For Respondent : Mr Habasisa
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