THE HIGH COURT OF LESOTHO
the matter between:
LEARNED MAGISTRATE - MASERU 1ST
OF COURT - MASERU 2ND
FOR MASERU DISTRICT 3RD
OF PUBLIC PROSECUTION 4TH
Delivered by the Honourable
Judge M. Mahase
On the 23rd
This is a review
application in which the applicant has asked for a review of the
proceedings in the Maseru CR
was filed in this court on the 30th
According to the
papers herein filed the applicant is presently serving a jail
sentence of eight years imprisonment following his
conviction on a
charge of car theft. He is currently incarcerated in the Maseru
There is however
no disclosure as to when the applicant was so convicted and
According to the
applicant he has already served a substantial part of the sentence
herein imposed upon him. However, the wording
of prayer 1(a) of this
application is somewhat misleading because it reads that the said
proceedings are pending before the first
respondent. If indeed he
has been convicted and sentenced as he alleges in his papers, the
said proceedings in CR1930/2004
have been finalized and are not pending before the first respondent.
It is his story
that he has now served ± four years of the eight years sentence
which has been imposed upon him. The only lacking
averment is when
exactly he was so convicted and sentenced. In other words, he has
not disclosed to this court exactly when he
commenced to serve the
sentence herein imposed upon him.
Actually one must
hasten to point out that the applicants papers herein filed are
somewhat confusing because:-
he has not
correctly cited the criminal record numbers and has referred to
to refer to the same case which he now seeks this court to review.
He has referred,
in his heads of argument to proceedings in CR85/2008,
while in fact this is the application number of this application
before this court which is now reviewing the proceedings in
(Maseru Magistrates` court proceedings). Although this was later
corrected from the bar by his Counsel, such mistakes should always
avoided at all times so as not to confuse the court and have a lot of
the courts time wasted while it tries to figure out
corrects citation is.
confusion is with regard to the use of two different names while
referring to the applicant and later to the deponent
to the founding
affidavit to his papers in this application.
It will be readily
observed that the names of the deponent to the founding affidavit
annexed to the notice of motion are of one
Mokhotho Mokhotho; while
the names of the applicant as written on the notice of motion are of
one Nathanael Mokhotho.
There is no
explanation tendered as to why there are two different names used
herein this papers. One must point out that it is
always proper and
important that the description of parties to any proceedings be
consistent, so as to avoid unnecessary confusion.
This is moreso
since in proceedings such as the present one, an affidavit
constitutes evidence. Such matters should not be taken
Be that as it may,
and since this issue was never canvassed nor raised before this
court, it can safely be assumed that the present
applicant herein is
one and the same person as the deponent to the founding affidavit and
the accused in CR1930/2004.
It is a matter of
common cause that the applicant herein was charged, convicted and
sentenced to a period of eight (8) years imprisonment
on the charge
alluded to above.
Also of common
cause, is the fact that the record of proceedings in the court a quo
has not been dispatched to this court as had
been ordered by my
brother Justice Monapathi J on the 4th
February 2008 because it has vanished from the custody of the Clerk
of Court in the Maseru Magistrates Court without trace.
The Clerk of Court
for the Maseru district one K.E. Letuka has filed an affidavit dated
February 2008 to the effect that she has looked for or searched for
the record of proceedings in the Maseru CR
but all in vain.
It is her evidence
in her affidavit that based on the research made on or about the 18th
day of February 2008, the record has not been found any where; and so
it could not be availed to this court.
This court has
recently in CRI/APN/580/2007
dealt with a very similar issue where records of proceedings suddenly
disappeared without any trace in the court a quo, and it
ascribes to the sentiments therein stated; except to add that each
case should be treated on its own peculiar facts and circumstances
since no two cases are exactly alike.
This court has
already observed that in the instant case, there are two different
names with regard to the deponent in the founding
papers and also
with regard to the actual applicant as herein written. Secondly,
there is a confusion as to the correct case numbers
record numbers in the court a quo.
Be that as it may,
the reasons in support of the application now before this court are
The applicant was
ignorant in court (whatever this means) and that he did not
understand the proceedings and the seriousness of
the charge he was
were conducted in Sesotho but there was no interpreter to interpret
for him even though the said proceedings were
recorded in English by
the preciding officer.
Further, so he
says, both Sesotho and English languages were used interchangeably
during the conduct of the said proceedings,
as such, and not being
conversant in the English language he did not understand, nor did he
follow what was being said regarding
the portions of the proceedings
which were not conducted in Sesotho.
therefore that since the proceedings were not wholly conducted in a
language which he understood, that was irregular
and contrary to the
of Section 12 of the Constitution of Lesotho.
Lastly he says
that, he was not legally represented; so that he conducted his own
defence. He argues therefore that it was imperative
proceedings should have been conducted in a language which he
It has therefore
been submitted that the above factors amount to gross irregularity
and renders this matter appropriate for a review
by this court.
The applicant has
basically repeated and or stated the above in his heads of argument.
He has also,
raised another issue in his heads of argument, which is that among
other factors herein complained about, he was never
opportunity to seek legal representation.
It is noted by
this court that nowhere has the applicant alleged prejudice nor any
miscarriage of justice. He has contended himself
only with barely
and generally stating the reasons why he has applied for the review
of this case.
The application is
being strongly opposed by the crown. This is so even though the
crown has not filed any opposing affidavits.
This is also a very
regrettably and a common occurrence, at the expense of the proper
administration of justice. Suffice it to
mention that when after a
number of postponements this application was argued, both counsel
herein agreed that it be argued only
on the alterative prayer which
is prayer 4 herein; although it is clear from their heads of argument
that they have both canvassed
all of the prayers therein prayed for
by the applicant.
In doing so,
counsel have cited a number of authorities/cases from different
courts and from local as well as outside jurisdictions.
Suffice it to
indicate that in the case CRI/APN/580/2007
SOOKO PHITANE v D.P.P
this court confirmed conviction and sentence only with regard to the
proceedings whose record of proceedings from the court a quo
dispatched to it for review purposes.
with regard to the two other records from the court a quo, to wit
were set aside for reasons therein stated.
Now, the issues
for determination by this court in the instant case are the
What should the
appeal/review court do where the record of proceedings from the
court a quo is not available?
What should the
appeal/review court do in a situation where the respondent has
failed to file the opposing affidavits?
What should the
appeal/review court do in a situation where the applicant has
already served more than half and or a substantial
part of the
sentence imposed upon him by the trial court but where he has unduly
delayed and or has taken an inordinately long
period of time to
launch an application for review/appeal as in the instant case?
It is, in the view
of this court fair and just to deal with the above issues in the
light of the surrounding circumstances of this
of course it should also always be borne in mind that each case has
its own peculiar circumstances.
However before one
does so, it is imperative that the court should outline matters which
are of common cause in this case. They
are the following:-
applicant was charged and convicted before the Maseru Magistrates
Court on a charge relating to theft of a motor vehicle
That he was
ultimately sentenced to imprisonment for a period of eight years
That he has to
date, served ± four years of the sentence which has been imposed
upon him by the court a quo.
That he has not
noted any appeal against such conviction and sentence.
That the record
of proceedings in the court a quo has disappeared without trace.
That the review
proceedings herein filed were filed and served upon the respondents
on the 30th
January 2008. That is after the applicant had served about half of
the sentence which has been imposed upon him and which sentence
continues to serve to date;
That there is no
substantive application for the condonation for the late filing of
the review application herein.
That the crown
did not notify the applicant of its intention to raise the objection
about the late filing of the review herein.
That the crown
has not filed any opposing affidavits to this application.
submissions in support and against the application herein are
contained in their respective heads of argument.
On the issue of
failure to locate the record of proceedings from the court a quo the
submission on behalf of the applicants is that
in such a situation
the review or appeal must be allowed. The reason for this contention
being that, the review/appeal court,
can not in the circumstances say
that the accused has indeed been convicted. In other words, it is
being argued that in the absence
of such a record, it can not be
shown that the accused is guilty.
support of the above proposition is placed on the two unreported
cases which were earlier decided by this court; viz
MBONI MASWANGAYI v D.P.P.
per my brother Mofolo J. and CRI/APN/580/2007
SOOKO PHITANE v D.P.P.
and also the case of S.
v COLLIER 1976(2) S.A. 378 379 H.
One must hasten to
say that indeed this court is clear as to the principle of the law
laid down in the above cited authorities;
but the story of applicant
should not end there because there was, in PHITANEs case only
one record availed to court instead
of three such records. The court
had to decide the matter on the basis of the only available record
since the Clerk of Court had
been silent as to the fate of the other
two records. In other words there was no explanation at all from or
by the Clerk of Court
as to the availability or not of the said two
In the instant
case, the Clerk of Court has filed an affidavit explaining why she is
unable to dispatch the record in question to
The crown is
strongly opposing the instant application and it has in doing so
relied on the recent decision of the Court of Appeal
of Lesotho; C
of A (CRI) 14/2006 MOHLOMI SEUTLOALI v. DIRECTOR OF PUBLIC
which case had not been brought to the attention of this court when
the two cases relied upon by the applicants counsel were
It is a matter of
common cause that in the instant case, there has been a delay of
almost four years in the launching of this application
from the date
of conviction and sentence by the court a quo to the launching of the
review application which application was filed
only on the 30th
There are no
reasons filed by the applicant explaining why he could not file this
application earlier, neither has he filed any
application for the
condonation of the late filing of this proceedings.
This court is
mindful of the fact that this is a review application and that unlike
in an appeal there is no specific time limit
laid down for a review
case (supra) per Ramodibeli J.A. see also the Provisions
of Rule 50 of the Rules of this Court.
Mindful of the
important remarks by the Court of Appeal in the Seutloali case and
those in Phitanes case (supra) and also mindful
of the crowns
averments in its objection of the granting of this application; in
particular see paragraph 4 of the respondents
heads of argument,
this court is not persuaded that in the circumstances of this case
the applicant has made a good case warranting
for the intervention of
this court with the proceedings herein sort to be reviewed.
This court further
and indeed, in the absence of any allegation that there has been a
miscarriage of justice and or prejudice occasioned
by the applicant
in the conduct of the trial by the court a quo not inclined to grant
The application is
In conclusion one
may emphasize that it is imperative, and proper that something
drastic and serious be urgently done so as to remedy
against this frequent, daily and unexplained mysterious disappearance
of records of proceedings mainly in the lower courts
in this country.
Applicant : Adv. T.N. Habasisa
For Crown : Adv.
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