CRI/APN/602/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:
MOSHE MAELE APPLICANT
AND
THE DIRECTOR OF PUBLIC
PROSECUTIONS 1st RESPONDENT
THE PRESIDING MAGISTRATE 2nd RESPONDENT
(MR. MATHAHA)
THE CHIEF PUBLIC PROSECUTOR 3rd RESPONDENT
(MR. NTSAMAI)
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the 4th July, 2007
The applicant has approached this court in an open session held at the High Court of Lesotho presided over by Mofolo J on 17 December, 2006 in connection with Review Case registered under CRI/APN/602/2005 by Moshe Maele an
l
accused person in the Magistrate Court for the district of Maseru under registered Case NO.CR. 1407/05.
Against
The Director of Public Prosecutions 1st Respondent
The Presiding Magistrate (Mr. Mathaha) 2nd Respondent
Subject
Application moving for the stay of execution and review of application and other ancillary prayers.
Issues to be determined by Court
Whether or not an application for recall of witness Pwl, Pw2 was ever considered by the 2nd respondent and if so whether it was properly considered.
Whether justice has been done in the court a quo taking into account the peculiar circumstances of CR. 1407/2005 namely, whether the proceedings were fair and unbiased.
2
Whether the matter proceeded on dates upon which it had been set for hearing.
Whether counsel for the applicant was through with cross-examination of Pw3.
Whether counsel for the applicant was given a chance to represent the applicant.
Whether or not evidence given in court was interpreted by a sworn interpreter.
Whether or not the witness testified under oath.
Whether or not the 2nd respondent ever assisted the applicant on days CR. 1407/2005 proceeded in the absence of the counsel for the applicant.
Whether or not the 2nd respondent set as an unsworn interpreter and a magistrate in CR. 1407/2005.
3
I prefer dealing with questions raised for determination not necessary in the order in which they came.
According to the record of proceedings, on 13 / 09 / 05 accused was in court and reminded of the charge against him and the accused is recorded as having said he understands the charge and is ready to proceed. The court has also recorded that Mrs Mosase is sworn in as an interpreter and Mr. Monethi "represents the accused in these proceedings". It has also been recorded that while Mr. Ntsamai does not accept accused's plea Mr. Monethi says "the plea is in accordance with instructions".
After Pwl's evidence the court appears to have explained to accused purpose of cross-examination. Pwl and Pw2 then gave evidence and it would seem accused cross-examined the witnesses. On 14/09/05 case proceeded in Mr. Thoahlane's presence representing the accused. Mr. Thoahlane applied for postponement of case and recalling of the two witnesses and Mr. Ntsamai objected the court ruling that the case is to
4
proceed and witness to wait until all the witnesses have been called. The court has also recorded Ms Mohobane is the interpreter. The witness Pw3 was cross-examined by Mr. Thoahlane. To be noted that on 13/09/05 matter was postponed to 14/09/05 when on this date it proceeded in Mr. Thoahlane's presence. On 14/09/05 matter was adjourned to 22/09/05 "for continuation" and on 31/10/05 accused was before court it being claimed accused legal representative was at Thaba-Tseka attending other matters and the court recorded the matter was to be heard then but owing to "sixth absence" it is remanded to Friday the 4th November, 2005 for possible hearing on 21/22/05 more than two weeks after the last remand then accused was before court and his legal representative missing its being claimed by Mr. Maieane that Mr. Thoahlane is appearing before Maqutu J. The court ordered that the matter proceed and both Pw4 and Pw5 were called, Mr. Maieane choosing not to cross-examine Pw4 and reserving his cross-examination of Pw5 "to Wednesday at 8.30 a.m". Wednesday at 8.30 a.m puzzled this court in that 21/11/05 fell on a Monday, Wednesday being 23/11/05 but
5
then reading the learned magistrate's note further, it appears the matter was postponed to 23/11/05 by agreement with Mr. Maieane who did not appear as promised and matter had to be postponed to 05/12/05. Rightly so in my view, the court complained bitterly of the conduct of the case by accused's lawyers saying although the right to legal representation is a fundamental right this cannot be abused as was the case before court. Further, although accused was entitled to legal representation, the right could not be used to obstruct course of justice nor can it be an impediment to end of justice. According to his court, the case was nearing its end and allowing the case to drag on was not helpful. The court has also noted the case is serious though for accused to be given an opportunity to state his defence has seriously been considered by the court. Evidence of Pw5 having been read to accused he elected to cross-examine Pw5. After the Crown case accused had been given an opportunity to defend himself and call witnesses if he so wished and he had been cross-examined by the Public Prosecutor; both the Crown and defence had addressed the court and judgment postponed to
6
09/12/05, 8.30 a.m when, in course of the proceedings, it appeared that Mr. Thoahlane had arrived at 12.15 p.m. (pp.52-57 of the translated record).
This court has so far not encountered anything irregular as appears in applicant's issues to be determined by this court. Each time the case was postponed and was due to proceed; the accused has always been in attendance showing he knew the date of hearing in which case he should have caused his counsel to be informed of the date if, in fixing the date, he was for some reason absent.
Not only this, where a lawyer is for some reason not in attendance in a case, to maintain his belief he is to himself inquire from court as to date of hearing. The reason for this is that ordinarily and in accordance with rules of court, a date of hearing is fixed by the Clerk of Court, Registrar of the Court in the presence of parties concerned who must agree or make representation why a particular date cannot suit them but it would appear once a date has been put on the roll it is not
7
susceptible to change but, must proceed except under exceptional circumstances. It is the reason why if counsel fails to attend case on a fixed day it is for him to ascertain the date of hearing. It is to be noted that when the trial commenced, Mr. Thoahlane except when Pwl and Pw2 gave evidence he was present and knew that the case was scheduled to continue on 22/09/05. It is not recorded what happened on 22/09/05 but on 31/10/05 accused and his legal representative (presumably Mr. Thoahlane) were present before court it being reported that Mr. Ntsamai was not present attending some matters in Thaba-Tseka and the matter was postponed to 04/11/05 for possible hearing. It is also not recorded what transpired on 04/11/05 but it is recorded on 21/11/05 accused is before court but his legal representative is not present though Mr. Maieane appeared saying Mr. Thoahlane is before Maqutu J. Mr. Maieane nevertheless proceeding with the case but just disappearing although he does appear to have had a brief to continue with the case. It was, indeed, Mr. Maieane's unceremonious absence that brought matters to a head prompting the learned
8
magistrate to protest bitterly as shown and continue with the case to a finish as she did.
I have taken a hard look to applicant's issues to be determined above and have come to the conclusion that save for the evidence of Pw2 which was in any event unsworn and warned as she was, it has not been stated why she required warning instead of taking an oath with the result that this is evidence to be safely excluded, but otherwise this court finds nothing irregular in the proceedings.
I am also of the view any irregularity in the proceedings does not mean an incorrect judgment for it refers not to the result, but to the method of trial such as for example, some high-handed or mistaken action which has prevented the aggrieved party from having his case fully and fairly determined - see Salisbury Municipality v Psillos N.O and Others, 1953 (3) SA 101 at 102; nor indeed would the fact that an application brought to re-call Pwl and Pw2 which was granted and deferred to end of the case stand as an action
9
which prevented the applicant from having his case fully and fairly determined in that no such application was pressed on the court a quo by reason of the disappearance of applicant's counsel without reason. Note too that it was held in Pretorius v Die Transvaal En 'n Ander, 1987 (2) 261 (NKA) that barring illness non-availability of particular counsel not sufficient for the removal of a case from the roll. In other words, a case properly set down for hearing and appearing on the case roll may not be postponed except for good cause.
This court has gone through the record of proceedings and found largely that at all material times it was as a result of accused's counsel absenting himself that the case was postponed but that the postponements were becoming a flood likely to compromise dispensation
of substantive justice. Moreover, the learned magistrate had afforded the accused an opportunity to be heard and the accused had elected to proceed with the case in the absence of his legal representative. The court a quo had applied its mind to the issues before reaching a decision and in the absence of gross
10
irregularities this court cannot interfere by way of review and accordingly the application is dismissed.
G.N. MOFOLO
JUDGE
For the Applicant : Mr. Thoahlane
For the Respondents : Mr. Tlali
11
