CRI/APN/80/07

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TUMELO
SEKARESE

VS

HIS
WORSHIP (MR. MONETHI) DIRECTOR OF PUBLIC PROSECUTIONS

RULING ON
REVIEW

Delivered
by the Honourable Judge M. Mahase On the 4th May 2007

This is
an application for review of the proceedings in CR299/2006. The
applicant was convicted and sentenced herein by the Magistrates'

Court for the Thaba Tseka district; on the 14th November 2006. He was
charged with having committed the crime of attempted murder.

He has
been sentenced to imprisonment for a period of three (3) years.

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His
prayers are that the proceedings herein be reviewed, varied and or
set aside as being irregular and improper;

Ordering
that the matter to start de novo;

That the
Clerk of Court at Thaba Tseka be ordered to dispatch the record of
proceedings herein to the Registrar of this honourable
court within
14 days.

Further
and/or alternative relief which this court may deem fit.

The
applicant has been incarcerated at Thaba Tseka prison where he is
serving the said period of three years. The applicant was
convicted
on his own plea. The crown opposes this application.

Briefly
the facts of this case are that on the day in question i.e. the 11th
June 2004, the complainant, the accused and many other
people had
attended a concert at the place called ha Leaooa in the Thaba Tseka
district. That while there, presumably in the hall
where there was
singing, the light which had been lit in there was suddenly put off.
That it was the accused who put that light
on once more. Immediately

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after
doing so, the accused fired a gun and the bullet hit Teboho, the
complainant herein. Teboho was shot on the leg.

A report
about this incident was subsequently made to the accused's mother and
later to the police. The latter then investigated
the case and
ultimately had the accused arrested and charged. The complainant was
taken to Mamohau hospital for medical examination
and treatment,
where he was treated as an out patient.

The
medical doctor who examined the complainant subsequently compiled
exhibit "A" the medical report relating to his observations

and/or findings. The injury upon the complainant's left calf has been
described as being a laceration.

It is
indicated that the degree of force used to inflict same was severe,
that the danger of injury; as well as the degree of immediate

disability are moderate.

It is
apposite to indicate that there is no mention nor any explanation as
to the kind of gun allegedly used in the commission of
the crime in
this case. Neither has it been indicated whether the accused was
licensed to possess that gun, nor has it been indicated
what has
ultimately happened to that gun.

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In other
words, the court record is silent on these issues relating to the
said gun. It was never produced in court as an exhibit.
This court
does not know whether or not the investigating police officer or any
other police officer ever found that gun. The possibility
that this
same gun is now being probably in the hands of somebody else and that
it could be used unlawfully exists.

The crown
and the police as well as the court should have had this issue
seriously attended to. Some sense of seriousness and concern
for the
use of unlawfully possessed guns should have been displayed by all
concerned especially the police officer whose duty it
is to curb the
high incidence of gun related criminal activities.

The court
is also disturbed by the fact that two different languages have been
used in the instant proceedings. Judicial officers
should be
consistent in recording and or conducting cases before them should
such be civil or criminal cases. The reason or assumption
that the
trial court used or preferred to use Sesotho language or English
language in recording proceedings is always an indication
that the
language used was understood by all the concerned parties, including
the unrepresented accused person.

4

Where
there is nothing on the record of proceedings indicating why the
court suddenly changed from Sesotho into English, it becomes

difficult to say whether or not the unrepresented accused person
understood those portions of the proceedings recorded in English
or
Sesotho. This could be prejudicial to such an accused person. Also
where as in the instant case no sworn court interpreter was
engaged,
a sudden change of the use of the language from Sesotho into English
and vice versa is improper since by law magistrates
are not sworn
interpreters.

It is
observed, however that the applicant herein has not raised the issue
of language used by the trial court in conducting this
trial. The
inference to be drawn from this fact is therefore that the applicant
did not feel prejudiced in the conduct of this
trial even were two
different languages were used.

There are
only two issues to be determined by this court.

One such
issue being the one which has been specifically raised and that is
with regard to the fact that the applicant was persuaded
by the
investigating officer to tender a plea of guilty to the charge as
serious as attempted murder. This is the main ground for
review
herein.

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The next
issue relates to that of the harshness of sentence which has been
imposed upon the applicant by the learned magistrate.
It was argued
on behalf of the applicant that the main complaint is about the
method engaged by the trial court in arriving at
the decision in this
case.

The
argument being that it was irregular for the investigating officer to
have exerted influence upon the applicant to tender a
plea of guilty.
This, it was argued should not have happened because it has greatly
prejudiced the accused who was then not represented
by a lawyer in
the court a quo.

It is
argued further that the failure by the trial court to make a
sufficient inquiry as to whether the applicant understood his
plea
and its consequences was also irregular. It was contended that had
the learned magistrate made that inquiry, he would have
realized that
the applicant did not only understand but did also not appreciate the
consequences flowing from such a plea.

It was
argued further on behalf of the applicant that since the applicant
was unrepresented and illiterate, the learned magistrate
was duty
bound to make sure that the applicant understood the proceedings, at
least where he would be adversely affected by his
ignorance.

6

This
court observes that there are two major problems herein. The first
one being that the crown has not filed any opposing affidavit.
The
crown has only filed two notices of their intention to oppose this
application. Those are dated the 19th February and the 8th
March 2007
respectively.

Failure
by the crown to file opposing affidavits where it has indicated that
it opposes an application can not be condoned. It is
unprocedural for
the crown not to have filed opposing affidavits.

The
second problem is that the crown has, raised some points in limine.
This it has done contrary to the Rules of this Court, to
wit Rule 8
because it has not given the other party notice that it intents to
raise such points. By so doing, the crown has not
only flouted the
Rules of this court but it has taken the other side by surprise. This
is not proper legal practice.

It is
trite law that should any parry wish to raise such points, it should
have properly given the other party proper and sufficient
notice of
its intention to do so before the day of the hearing of the
application. This would be so as to enable the other party
to respond
to such points.

In the
circumstances, the averments of the applicant that he was induced by
the investigating officer to tender a plea of

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guilty to
this charge stands unchallenged. Vide THEKO v COMMISSIONER OF POLICE
AND ANOTHER 1991-1992 LLR-LB 239. This being review
proceedings, the
issue complained about is reviewable even if it appears from evidence
outside the record of proceedings.

Vide-
Herbstein and Van Winsen, Civil Procedure in the Supreme Courts page
933 where the learned authors, in dealing with review
and appeal
proceedings had this to say:

"The second main distinction between procedure on appeal and
procedure on review is that in the case of the former, the matter
is
usually a question of argument on the record alone, whereas in a
review the irregularity generally does not appear from the
record. In
an appeal the parties are absolutely bound by the four corners of the
record, whereas in a review it is competent for
the parties to travel
outside the record, and to bring extrinsic evidence to prove the
irregularity or illegality."

The above
shown proposition and or distinction between procedure on appeal and
procedure on review was demonstrated in the case
of SIMAAN v S.A.
PHARMACY BOARD 1982(4) S.A. 62 AT 81H. See Herbstein and Van

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Winsen,
The Civil Practice of the Supreme Court of South Africa (Supra).

"A Court of Appeal may hear oral evidence, whereas no similar
provision is made either by statute or by Rule of court in the
case
of review. There would however seem to be nothing to prevent the
reviewing court, mero motu and in the exercise of its inherent

jurisdiction, from ordering such evidence to be heard in a proper
case if substantial injustice to one of the parties would otherwise

result An application to adduce further evidence on appeal can, in
substance, amount to an application for review."

In the
instant case, the applicant has complained about the conduct of the
investigating officer. The seriousness of this averment
should have
been attended to by the crown. It should have filed the opposing
affidavit of the investigating officer in question.
This has not been
done and so there is no need for this court to even call or order
that evidence be adduced to test the veracity
of this averment.

In the
absence of such an opposing affidavit, this court has no reason to
doubt that indeed the applicant was unduly influenced
by the
investigating officer to tender a plea of guilty to such a serious
charge and to his prejudice.

9

It is
clear from the outlined facts in this case that the applicant had no
requisite intention to commit the crime with which he
has been
convicted. His explanation that the shooting happened accidentally is
reasonably possibly true. Indeed it can be properly
deduced from the
facts that had it not been for the undue influence of the
investigating officer upon the applicant to tender a
plea of guilty,
the applicant had prospects of success.

The
inducement of the investigating officer upon the applicant to tender
a plea of guilty has been most unfair and prejudicial to
the
applicant's case and has resulted into a miscarriage of justice. The
procedure of review which the applicant has adopted is
therefore the
proper procedure as it allows him to bring extrinsic evidence to
prove the irregularity.

Had the
applicant opted to go by way of appeal, he would have to confine
himself only to the four corners of the record alone. It
is to be
highlighted that it is always highly important and imperative that
the crown should file opposing affidavits so as to
enable the
reviewing court to make a well reasoned decision.

In the
instant application, the crown has not done its duty because of its
failure to file the opposing affidavits. This is said
with the
greatest respect to the crown. It is the function

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of the
court, in the case of an unrepresented/undefended accused to engage
in a judicial interrogation so as to ensure

that:-

1. an
   accused who has pleaded guilty understands the legal consequences of
   such a plea;

   
   

2. that
   the accused freely and voluntarily admits all the elements of the
   offence with which he is charged and

   
   

3. the
   accused is not mistaken in making a plea of guilty.

   
   

The above
interrogation would have ensured not only that the factual basis of
the accused's guilty plea is established, but also
that no undue
advantage is taken of the undefended accused's ignorance and
vulnerability in the absence of legal assistance.

For the
foregoing reasons the application is granted as prayed in terms of
prayers 1 and 2 of the applicant's notice of motion except
that
prayer 2 is amended to read that:

The trial
should start de novo before a different magistrate.

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The
applicant should be brought before a magistrate for Thaba Tseka
district and be informed of this ruling:

A fresh
charge sheet should be drawn and a charge be preferred against the
applicant; after which the applicant having been advised
of his
rights should be at large to apply for the release on bail and the
court before which applicant so applies should be at
large/liberty to
make a determination on that bail application.

The above
should be done as soon as the order of this court is served upon the
crown and or the learned magistrate.

M. MAHASE

JUDGE

For
Applicant : Mr. Mabulu

For
Respondent : Ms. Ngcobo

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