IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CONSTITUTIONAL CASE NO. 10/2010
In the matter between:
BOFIHLA LETUKA APPLICANT
AND
MINISTER OF JUSTICE AND HUMAN RIGHTS 1ST RESPONDENT
MINISTER OF LAW, CONSTITUTIONAL AND
PARLIAMENTARY AFFAIRS 2ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
CLERK OF THE MAGISTRATE`S COURT,
MASERU 5TH RESPONDENT
JUDGMENT
CORAM: HON. JUSTICE MONAPATHI ACJ
HON. JUSTICE N. MAJARA J
HON. JUSTICE K.E. MOSITO AJ
Date of Hearing: 07 MAY, 2014
Date of Judgment: 19 MAY, 2014
SUMMARY
Constitutional challenge – infringement of the constitutional right to a fair trial - Failure by the Clerk of the Subordinate Court to provide a record of criminal proceedings to a convicted person intending to appeal against his conviction and sentence - Applicant’s conviction and sentence quashed.
Application by Respondent for leave to file a supplementary affidavit in reaction to issues raised in the Applicant’s heads of argument – such application not competent.
Costs – This being a constitutional matter – no order as to costs.
ANNOTATIONS
CASES
MOSITO AJ:
INTRODUCTION
THE FACTS
“IT IS ORDERED THAT:
INTERLOCUTORY APPLICATION
“It is in the interests of the administration of justice that the well-known and well established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly observed: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from the Court: he must both advance his explanation of why the affidavit is out of time and satisfy the Court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received.”
“It was contended in argument that I really have no discretion on the question of the admission of these further affidavits because authority had decided that a further set of affidavits can only be admitted, firstly, if they are necessary to answer new matter raised in the Applicant’s affidavits, or secondly, if the information or evidence was not available to the respondent when the first set of affidavits was filed. No new matter was raised in the answering affidavits of the respondent nor was it sought to answer only alleged new matter. Secondly, it was contended, the information or evidence was at all times available to the respondent in its records. The fact that it was not present to the minds or known to the officials presently dealing with the matter, did not constitute a compliance with the second or alternative requirement to be satisfied before fresh affidavits could be filed. In my view the authorities do not restrict the discretion of the Court in the manner suggested. I think that if there is an explanation which negatives mala fides or culpable remissness as the cause of the facts or information being put before the Court at an earlier stage, the Court should incline towards allowing the affidavits to be filed. As in the analogous cases of the late amendment of pleadings or the leading of further evidence in a trial, the Court tends to that course which will allow a party to put his full case before the Court. But there must be a proper and satisfactory explanation as to why it was not done earlier, and, what is also important, the Court must be satisfied that no prejudice is caused to the opposite party which cannot be remedied by an appropriate order as to costs. In the present instance there is a completely satisfactory explanation as to why the affidavits containing new facts were not filed earlier; there is no suspicion of mala fides and I find no culpable remissness. No prejudice to the applicant which cannot be remedied by wasted costs being awarded it, has been suggested.”
CAN THIS COURT NOW ENTERTAIN A REQUEST TO DIRECT THE 5TH RESPONDENT TO FILE THE RECORD OF THE CRIMINAL PROCEEDINGS IN CR 1066/98?
THE RIGHT TO A FAIR TRIAL
It is possible to imagine circumstances in which failure to create a written record of some parts at least of the proceedings may infringe the general right to a fair trial (including an appeal)... A right of appeal may be incapable of practical exercise without one.... Furthermore, if there was no further appeal from the judgment of the Court of Appeal, it is not easy to see how the appellants have been prejudiced by the absence of a written record of the judgments.
“....a convicted person today is entitled to know the basis upon which a magistrate has arrived at the conclusion that the case against him has been proved and that thereby he should be deprived of his liberty. A convicted person who has been sentenced to a term of peremptory imprisonment cannot, in my view, repose any confidence in or have any respect for a system of justice which today allows a magistrate to deprive him of his liberty without the necessity for a statement of the reasons for this to be given by that magistrate, if that person should later choose to challenge the latter’s decision by way of appeal.”
WHAT RELIF MUST THE COURT NOW GIVE
K.E. MOSITO AJ
I concur________________
T. MONAPATHI ACJ
I concur_______________
N. MAJARA J.
For Applicant:Adv T. Mothibeli & Adv M Rasekoai
For 1st to 5th Respondents:Adv G J Leppan