CRI/APN/522/07

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

TSEHLA
RAMANTSANYANE THAKHOLI APPLICANT

and

MOHALE’S
HOEK MAGISTRATE 1^ST
RESPONDENT

THE
DIRECTOR OF PUBLIC PROSECUTIONS 2^ND
RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 12^th
December 2007

Applicant herein approached
this Court for an order to have the proceedings in CR
128/04 wherein he
was found guilty by the court a quo of the offence of theft and
sentenced to six years imprisonment without an option
of a fine
reviewed and set aside. The application is opposed.

It is applicant’s case
that on the 30^th
June 2004 he appeared before the 1^st
respondent on a charge of theft to which he pleaded not guilty but
was convicted and sentenced as shown above.

He further states in his
founding affidavit:-

“I had informed the
first respondent that I had brieved (sic)
a lawyer to represent me, despite my constitutional right to be
represented by a lawyer the first respondent made a ruling that
the
trial should proceed in the absence of my lawyer.

The first Respondent did not
give me an opportunity to seek the assistance of another lawyer if my
lawyer had not showed up.

The proceedings were written
in English yet the trial was conduct (sic)
in Sesotho, I (sic)
know that there was no interpreter in Court when the trail was been
(sic)
conducted.”

In the opposing affidavit
deposed to by 1^st
respondent, he avers as follows in answer to the above assertions:-

“The applicant alleged
to be represented by Advocate Thulo Hoeane who never arrived at the
court premises despite hours of being
waited for. The alleged
Advocate had never been present before court to confirm his
representation for the applicant, for over
fifteen months the
applicant case was proceeding the said advocate had never been
present before court to confirm the alleged representation.

The applicant allegation
(sic)
of being represented by Advocate Hoeane was just a delaying tactic
not to stand trial Moreso because on the 02/07/2004 when the
case was
suppose (sic)
to proceed the applicant was not present before court despite his
knowledge of the date of hearing. The applicant did not appear
in
court for about 10 months until arrested pursuant to an application
to the same.

The applicant was not given
that opportunity to seek a lawyer as he had had ample time to do so
before the trial commenced. He
further did not inform the court that
he wanted to seek further assistance of a lawyer.”

In response to the averments
regarding the absence of an interpreter 1^st
respondent states:-

“Contents herein are
noted save to deny that any mistrial occurred which warrants the
proceedings to be reviewed and set aside.
Before succeeding to have
proceedings set aside, the applicant must show how the irregularity
alleged (sic) amounted to a miscarriage
of justice especially since
he does not allege that what is recorded is not what was said during
the proceedings.”

In his verbal submissions on
behalf of applicant Mr.
Pitso stated that
the fact of his being denied the opportunity to be represented or to
find new counsel and that the proceedings were
written in English yet
they were conducted in Sesotho resulted in a miscarriage of justice
on the strength of the decision of the
Court of Appeal in Lephoso
Kobile v DPP & Others C of A C.

In turn, Ms
Kanono counsel for
respondents made the submission that applicant’s allegations in
the court a quo that he had a legal representative
was simply a
delaying tactic for the reason that such a lawyer never arrived at
the Court nor did he attend the case after numerous
postponements
even after applicant had absconded for a period of ten (10) months.

With regard to the recording of
proceeding in the English language, counsel for respondents contended
that applicant understood
the proceedings as he does not allege that
what was recorded is not the true version of the proceedings. To
this end, she made
the submission that applicant had to show how the
alleged irregularity amounted to a miscarriage of justice warranting
the proceedings
to be set aside. She referred this Court to the case
of S v Moshiyana 1989
(1) SA 592 CPD.

Ms Kanono
also added that applicant approached this court after about two and
half years since the matter was completed in the trial court
and that
this application is just a tactic on his part not to finish his
sentence. In response to this submission, Mr.
Pitso made the
contention that review proceedings have no time limit and can be
instituted at any time.

I proceed to consider the
issues and will start with the one regarding the time factor.

Indeed High Court Rule 50 which
provides for review and the procedure to be followed does not specify
the time within which such
proceedings may be brought before the
Court. However, it is trite that this should be done within a
reasonable time. See Isaac’s
Beck’s
Theory and Principles of Pleadings in Civil Action p 326.

In the present case it is
common cause that these proceedings were brought before this Court
after a period of about two and a half
years since applicant was
convicted and sentenced. In my opinion, this is an unreasonable
delay especially in the absence of any
explanation from applicant on
why it took him this long to take this step. It is my view that the
Court will not be satisfied
with the simple submission that review
proceedings have no fixed or specific time period for indeed such an
approach would result
in an absurdity for obvious reasons I need not
even go into. It was therefore incumbent upon the applicant herein
to satisfy this
Court why he took such an unreasonably long period of
time before approaching it for relief.

The case in point is that of
Kader v Assistant
Magistrate, Cape Town, & Ano. 1954 (3) SA 648 at 656 where
De Villiers J.P. had this to say with regard to review proceedings
which had been instituted after a lapse of eighteen (18)
months:-

“Although there is no
fixed time limit, review proceedings must, having regard to the
circumstances of each particular case, be taken
within a reasonable
time. If a delay, unreasonable in point of time ensues before the
initiation of such proceedings, it is incumbent
upon the applicant to
provide a satisfactory explanation. If there is either no
explanation or an unsatisfactory explanation-having
regard to the
circumstances, the Court will not exercise its discretion if favour
of an applicant for review.”

Needless to mention, review is
not just there for the taking, the Court always has a discretion
whether to exercise it in favour
of an applicant or not. For this
reason, it has to be satisfied in the pleadings why this should be
the case.

I have already shown that in
casu, no explanation
was proffered by applicant despite the delay of two and half years.
I accordingly find that I have no reason to
exercise my discretion in
his favour and accordingly dismiss this application on this point
alone.

N.
MAJARA

JUDGE

For
applicant : Mr. Pitso

For
respondents : Ms Kanono