CRI/APN/758/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:
MATHULA LITSOANE - Applicant
And
THE DIRECTOR OF PROSECUTIONS - 1st Respondent
MAGISTRATE BUTHA-BUTHE - 2nd Respondent
REASONS FOR JUDGMENT
Given by Mr Justice W.C.M. Maqutu on the 20th May 2005
SUMMARY
Review- Sexual Offences Act 2003 - Serious Offences - Principles of State Policy under the section 25 of Constitution read with Legal Aid Act 1978 -Right to be certified of the poor to be entitled to legal aid when charged with serious offences under Sexual Offences Act 2003 - duty of magistrate towards undefended accused.
Review - magistrate acting as his own interpreter - whether proper to record evidence given in Sesotho in English without viva voce interpretation even where magistrate is a sworn interpreter — conducting proceedings in Sesotho where accused, counsel, prosecutor, magistrate and court official are Sesotho speaking - section 3 (!) of the Constitution - use of Sesotho English.
Personalising review applications — citing a magistrate by name not by his official title - whether proper.
I have changed the manner second respondent is cited, because it was wrong to personalize this application. The correct manner of citing second respondent is to cite him as a district magistrate not personally be name.
On the 2nd May 2005, came before me Mr Khauoe for applicant and Miss Makeka for the Director of Public Prosecution. This is an application for a review and an order setting aside the order of the Magistrate convicting and sentencing applicant (the accused) to 8 years
imprisonment. This application was unopposed. Nevertheless I directed that I should be addressed on the merits.
After hearing both parties I made the following order.
That proceeding in this matter be quashed and the case start de novo as it was a mistrial.
As Crown Counsel Miss Makeka and Mr Khauoe for the accused are willing and prepared to go and handle this matter, the Chief Magistrate
Leribe with the Co-operation of the Chief Magistrate Maseru should appoint or assign a Magistrate to go and hear this matter with 30 days.
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The application for the release of the accused on bail - who has served over 14 months of his sentence is refused. However the period he might remain in jail pending judgment will be taken into account in computing his sentence if he should be convicted.
Proceeding may be conducted in Sesotho where parties are all Basotho (including court officers) provided there is no translation into English during the recording of the evidence.
I Promised to file my reasons later.
In the review application applicant was seeking an order in the following terms:-
That the proceedings in CR623/03 of Butha-Buthe Magistrate's Court be reviewed and set-aside.
That Second Respondent be ordered to dispatch the record within fourteen (14) days of the receipt of this order to the Registrar and Applicant's attorneys.
That Applicant be granted further and/or alternative relief.
This application had be filed at the High Court on the 1st December 2004. There had been some delay in bringing the record before this Court. The grounds for review were the following:
1.
There was no interpreter in the proceedings as required by the law and the learned Magistrate acted as both the presiding officer and the interpreter which is irregular.
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2.
On the record it appears that the charge had been read and explained to the Applicant apart from the fact that he had said he understood and he conduct his case. It was not explained to him, and does not appear on the record, his right of Legal representation as required by the law.
3.
The Learned Magistrate overlooked the fact that the Applicant was facing a serious charge of which he should be informed, failing which proceeding would be prejudicial to him. Had he known all the above, Applicant could have asked for legal assistance.
4.
The Applicant reserved his rights to add more grounds in terms of the Rules.
In this case the accused who is 18 years old was unrepresented.
He was charged with the offence of:
Contravening section 4 (1) (a) of the Sexual Offences Act 2003 in that upon or about the 15 December 2003 and at or near Ha Shepheseli Butha-Buthe the said accused did wrongfully and unlawfully and intentionally engaging in a sexual act with one Matseliso Phosisi a Mosotho female aged 17 years without her consent.
The accused pleaded not guilty.
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Evidence was heard. It was only after the accused had been convicted and sentenced to 8 years imprisonment that legal representation was obtained for the accused and an application for review, enumerating the alleged irregularities was instituted.
The accompanying founding affidavit made by and behalf of the accused made the following points:
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I was charged as fully appeared on the charge sheet, as the result of the said trial I was convicted as fully shown in the charge sheet hereunto annexed and marked "ML1".
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When I was told of the charge by the Magistrate, and asked my plea I pleaded not guilty to the charge. I was never asked or told anything about legal representation by the Magistrate.
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I was not informed of the seriousness of the matter nor was I told of the ultimate punishment of the charge, I should not have represented
myself.
-5-
During my trial there was no interpreter regard being had that Magistrate cannot be an interpreter as I am advised and informed by my Attorneys and believe same to be true that it is irregular in law.
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Right to be legally represented.
I found it unfortunate that what this court has said about the right to legal representation is still open to misunderstanding. The constitution of Lesotho has been drawn in a practical manner. Nowhere has it given an individual a right to legal representation. It merely says an individual should be permitted to have legal representation. This court has only said magistrates should advise and urge all the accused (charged with serious crimes) to get the services of legal practitioner. Failure to advice an accused to get legal representation is not per se an irregularity if viewed in isolation. It is important to do so because this facilitates the work of the court, and ensures that the accused's case is properly put. It also balances the scales between the accused and she prosecution.
Consequently this court clarified this issue as follows in K. Makula & Another v Magistrate Motinyane CR1/APN 720/03 (unreported) at page 21 to 24:
"The Constitution of Lesotho Section 12 (d) merely says "Every person shall be permitted to defend himself in court in person or by a 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
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would be obliged to pay for legal representation in all criminal proceedings something it does not invariably have to.
I am mindful of the State's attempt in 1978 to have as many needy people as possible to have legal aid when charged of serious crimes. See 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 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 and that the question as to when, or under what circumstances, an impecunious accused is entitled to legal aid might be answered directly 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 III 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 these:
"subject to the limits of the economic capacity and development of Lesotho, shall guide the authorities and agencies of Lesotho,
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and other public authorities, in the performance of their functions with a view to achieving progressively, by legislation or otherwise,
the full realization of these principles."
It would seem because of the Principles of State Policy of the Constitution and the existing Legal Aid of 1978, the State in Lesotho has moved through legislation towards the right to Legal representation where a Resident Magistrate has certified that the crime charged is serious and the person is poor. With sentences as high as 8 years imprisonment for offences under the Sexual Offences Act 2003, it seems to me that Resident Magistrates will be obliged to certify all impercunious accused to be entitled to legal aid.
Duty to help an accused not legally represented
However that is not the end of the matter. Judicial officers have a duty towards an unrepresented, since not all people can afford legal representation. In any event Lesotho has not the capacity to provide legal representation in a majority of cases.
In the case before me the magistrate explained the procedure when the accused went into the witness box. It seems to me that this should be done before the crown leads its evidence and guidance should be given through out the trial.
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This makes the task of judicial officer handling a case of unrepresented accused a great responsibility. Consequently it is wise that when an accused charged with a serious crime is first brought before a magistrate, he should be adviced to seek legal representation and this should be recorded including the reminders if the case does not soon proceed. It often happens after the accused has been convicted that he unfairly blames the magistrate for not being told he should seek legal representation. This may be the case here - although it is unnecessary to determine whether accused is in fact doing this. I think magistrates should do their utmost to protect themselves against these belated accusations.
In the case of K. Makula & another v Magistrate Motinyane (supra) at pages 19 and 20 the court made the following comments - and reviewed the authorities as follows:
"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 Ndodana 1978 (4) SA 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
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magistrate had not done his duty of guiding the unrepresented accused as the magistrate was expected to do.
In S v D 1967 (2) SA 537 at 538 AB James J said: "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 establishing the case against her, the precise admission she is prepared to make should be 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.
Ramodibeli 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 (1) (2) (d) of the Constitution."
In this case the criticism of the learned magistrate does not imply that there was a mistrial - however taken with other factor this court felt obliged to intervene. This court is merely sounding a note of caution.
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Language issue - magistrates acting as interpreters Lesotho is a former colony of the British. Consequently Sesotho which is the language of the Basotho was not a language of the courts even after Lesotho had become independent. This has been so despite what the Constitution provides. It is time to deal with this issue because it has become a problem.
Magistrates have over the years been hearing evidence in Sesotho and recording it in English. The result of this practice is that the Ministry of Justice has not provided some districts with interpreters. The Court of Appeal has said this practice is wrong. In the case of T. Lenka v Rex C of A (CRl) No.2 of 2004 went so far as to declare proceeding before the magistrate a nullity.
There are many reasons for finding it wrong for a magistrate (even where he is a sworn interpreter) to hear evidence in Sesotho and record it in English. What particularly objectionable is a translation that does not take place publicly - in open court for all to hear. An interpreter in court translates aloud publicly for all people to hear. But where a magistrate records the
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evidence in English evidence - given in Sesotho - this is not done publicly for all to know what has been recorded. If a magistrate has made a wrong translation, the accused or counsel who know both languages cannot challenge that translation in open court (as they would) if there had been a viva voce translation in court.
Even where a magistrate is a sworn interpreter is would make his task impossible to interpret aloud what a witness has said aloud in Court - and then record that in English. That is why the Court of Appeal has said a magistrate cannot be both a recorder and interpreter at the same time. It is therefore not practical and efficacious for a magistrate to wear three hats at the same time - that is be a magistrate presiding over a trial, be an interpreter and a recorder of proceedings at the same time. It is currently accepted that a magistrate should adjudicate and record evidence at the same time. Being an interpreter also, cannot work.
The court of Appeal in Thamae Lenka v Rex C of A No.2 of 2004 (unreported) deplored the practice of magistrate - who are not sworn interpreters acting as interpreters. As already stated I take the view that interpretation in court has to be is done viva voce. In my view therefore –
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what a magistrate who hears evidence in Sesotho and records it in English, is a translation not an interpretation, as court practice requires. If he is a sworn interpreter he is not supposed to make a secret translation from Sesotho into English, he is supposed to interpret aloud for all to hear. Plewman JA therefore observed for that reason in Thamae Lenka v Rex:
"It is absolutely mandatory that sworn interpreters be used in such circumstances - such as arose in this case whatever the
practical difficulties there may be."
The language used by the Court of Appeal in this language issue in cases such as the one that was before it makes the intervention of this court imperative. Consequently this court felt obliged to quash proceedings and order a retrial - because inter alia the accused was not even legally represented in a serious crime which under the Legal Aid Act 1978 qualifies him for legal representation.
There are cases - or there will be cases in which no perceptible prejudice to the accused might be present, despite breaches of court practice, procedure and interpretive hearsay on the issue of language. The cases I have in mind are those in which both the magistrate and counsel without objection allowed proceedings to be conducted in Sesotho and recorded in English because both of them are Sesotho speaking. If counsel had a full record of
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proceedings of his own which corresponds with that of the magistrate - but suddenly, because of the Court of Appeal decision in Thamae Lenka case above, sought the quashing of proceedings - there will be problems. There are many cases of that kind which already exist, but in which all sides were content up to now.
Harcourt and others have observed in Swift's Law of Criminal Procedure 2nd Edition at page 783
"The essential difference between a review and an appeal is that in the former the parties are not restricted to what appears on record and extraneous grounds for review may be proved by affidavit. In appeals the parties are confined to what appears on record. On the other hand, on review it is not generally permissible to challenge a finding of fact unless that finding is so unreasonable as to constitute an irregularity, e.g. where there was no evidence to justify the magistrate's finding (R v Richardson, 1914 CPD 669)."
The intervention of the courts in review cases is conditioned by prejudice to the accused and the avoidance of illegality. Courts do not interfere merely because there is an irregularity - however insignificant. It follows that if this proposition is correct, what has been said in respect of an appeal in the High Court Act of 1978 could with justification apply to a review, that is: Section 8 of the High Court Act 1978
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"(2) When considering a criminal appeal and 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 the record of proceedings, unless it appears to the High Court that a failure of justice has in fact resulted therefrom."
This point of language (in this form) has not come before courts for decision, but it is fitting that that our minds should start
considering it, and preparing for it.
Sesotho is the first official language of Lesotho. Consequently Section 3 (1) of the Constitution provides "The official languages of Lesotho shall be Sesotho and English..." It follows therefore that all the laws and rules that were in force before the constitution came into force must be interpreted in a manner that is consistent with the Constitution. Section 156 (!) of the Constitution in this matter provides:-
"Subject to the provisions of this Constitution, the existing laws shall continue in force and effect on and after the coming into operation of this Constitution and shall then have effect as if they had been made in pursuance of this Constitution, but they shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution."
It was therefore in line with the constitution that this court has conducted proceedings and heard evidence in Sesotho when there were no interpreters. In the case of Rex v Tomo Maphethakatsi & 4 Others CRI/T/213/2003
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(unreported) this court made the following ruling on the issue of use of the Sesotho in High Court:
"In this country Sesotho and English are official languages. As I have already stated at present all High Court judges and all magistrates except one ex patriate magistrate have Sesotho as their first language. It is only the Court of Appeal that is virtually entirely staffed by judges who are not Basotho and who have to rely on interpreters. To these must be added legal practitioners who also do not have Sesotho as their first language or mother tongue. For the benefit of these, interpreters have to be used. Records of cases that go to the Court of Appeal have to be translated. Otherwise it is a waste of time and resources for evidence to be translated into English, when judges know Sesotho and their tongue in Sesotho."
I therefore ordered that proceedings in this case (when it is heard de novo) before another magistrate - be (in the alternative) conducted in Sesotho because as the constitution provides they can be conducted in either English or Sesotho. Because in terms of constitution:
"3. (1) The official languages of Lesotho shall be Sesotho and English and, accordingly, no instrument or transaction shall be invalid by reason only that it is ex
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not bound to use Sesotho which might not be easy - he may use English if there are interpreters. All I am saying is that:
"Consequently it has become feasible, necessary and practical for proceedings to be conducted in the language 99 % of the people who are indigenous Basotho, understand. 1 therefore directed evidence to be given and recorded in Sesotho uninterpreted. I further directed that proceedings be conducted in Sesotho except where that was not possible. English and Latin remain, of cause, the languages used in learning and scholarship which the court expects." Vide page 11 of Rex v Tumo Maphethekatsi
These are the reasons for judgment.
W.C.M MAQUTU
JUDGE
For Applicant: Mr Khauoe
For Respondents : Miss Makeka
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