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Kebinye v Clerk of Court (Maseru) Magistrate's Court and Others (C OF A (CRI) N0.6/2010 )
IN THE COURT OF APPEAL OF LESOTHO
C OF A (CRI) N0.6/2010
In the matter between:
TŠELISO KEBINYE ….............................................APPELLANT
CLERK OF COURT (MASERU)
MAGISTRATE’S COURT ….........................FIRST RESPONDENT
THE MAGISTRATE MASERU …...............SECOND RESPONDENT
DIRECTOR OF PUBLIC
PROSECUTIONS …....................................THIRD RESPONDENT
CORAM: RAMODIBEDI, P
HEARD: 6 OCTOBER 2010
DELIVERED: 22 OCTOBER 2010
Criminal Law – Review of criminal proceedings – the allegations by the appellant and another that they were assaulted by the police in order to plead guilty not refuted – Appeal upheld – proceedings of the court a quo set aside – A trial de novo ordered against both the appellant and his co-accused who did not appeal.
 This appeal challenges a decision of the High Court (L.Chaka-Makhooane J) dismissing an appeal by the appellant and another arising from their application for a review of a decision of the Magistrate’s Court. The appeal has been brought by the appellant only.
 The background facts show that the appellant and his co-accused were charged before the Maseru Magistrate’s court on two counts, namely, (1) robbery and (2) contravention of s 3 (2) of the Sexual Offences Act 2003.
 When the charge was put to them, the appellant and his co-accused pleaded guilty on both counts. Thereafter, the public prosecutor accepted the plea and made a brief outline of the facts. In a nutshell, the outline of facts disclosed that on 25 January 2009 and at or near Mazenod in Maseru District the appellant and his co-accused met the complainant at a local garage. Thereafter, they walked with her in the direction of Ha Malefane. Somewhere along the way, one of them asked her whether she was married and offered to marry her. She turned down the offer on the ground that she was already married. Thereupon the two men cut maize stalks which they used to assault her with. One of them took her cellphone and golden earrings. Cash amounting to M450.00 was also stolen from her. As can be seen, the outline of these facts was directed towards establishing the offence of robbery on count 1.
 Insofar as count 2 is concerned, the outline of facts show that the appellant and his co-accused enquired from the complaint whether she would prefer to have sexual intercourse with them in return for the stolen goods. Quite understandably, she declined to have sexual intercourse. They then grabbed her and raped her, taking turns.
 The record shows that the appellant and his co-accused “fully” agreed with the outline of facts as recorded above. The learned trial Magistrate then found both of them guilty as charged on both counts. They were each sentenced to 3 years imprisonment or a fine of M3000.00 each on count 1. On count II they were each sentenced to 8 years imprisonment without an option of a fine. The sentences were ordered to run concurrently.
 Aggrieved by the abovementioned decision of the Maseru Magistrate’s Court, the appellant and his co-accused subsequently launched an application in the High Court for review. Essentially, they relied on one ground of review, namely, that the plea of guilty was induced by police threats and assaults on them. It was alleged on oath that “the same police officers” were present in court at the trial, obviously to ensure that the appellant and his co-accused did not deviate from a plea of guilty as instructed.
 In dismissing the application for review the learned Judge a quo said the following in paragraph  of her judgment:-
“ One final leg of the argument by the Applicants’ Counsel is that the accused were assaulted and intimidated by the police to admit guilt. He further argued that being ordinary illiterate Basotho men who were not aware of court procedures they pleaded guilty for fear of the police. According to Mr. Nthabi that should render the proceedings irregular. I must show that unfortunately no where in the papers are we informed what actually hindered the applicants from informing the learned magistrate that the applicants felt intimidated by the court. There is no evidence that the environment in court was not conducive enough for them to exercise their rights. This is a mere allegation which is totally unsubstantiated. I therefore, hold that the proceedings were not irregular.”
 I have not the slightest doubt that the learned Judge a quo’s criticism to the effect that nothing hindered the appellant and his co-accused from disclosing the alleged assaults to the trial court is wholly unjustified in the particular circumstances of the case. Such criticism loses sight of the appellant’s sworn averment that the police who had threatened and assaulted him and his co-accused were actually present in court to ensure that the accused pleaded guilty.
 This brings me to the respondents’ conduct of the review case in the court a quo. It will be necessary to determine whether the appellant’s allegations of intimidation and assault were controverted. At the outset it will be observed that the respondents did not file any opposing affidavit from a member of the police force who was present during the detention of the appellant and his co-accused. Such an affidavit would have been able to deal issuably and sensibly with the appellant’s allegations. Instead, the respondents strangely relied on the answering affidavit of Mr Tšeliso Bale who was none other than the presiding Magistrate himself. As could well be imagined he had no personal knowledge of what transpired during the detention of the appellant and his co-accused. He was not in a position to deny the allegations of threats and assaults in question. Regrettably, the learned Judge a quo failed to pick up this lacuna in the respondents’ case. She thus misdirected herself.
 In the light of these considerations, I am driven to the inescapable conclusion that the appellant’s allegations of threats and assault remained uncontroverted. As such they had to be admitted as correct for the purpose of the review application. Once this conclusion is reached, it follows that the appeal must succeed. The proceedings at the trial were vitiated by the threats and assaults in question. It follows that the plea of guilty in question was not unequivocal. Doing the best I can to balance the triad consisting of the serious nature of the offence alleged, the interests of the appellant and his co-accused as well as the interests of society in the matter, I consider that a trial de novo is appropriate in these circumstances.
 Before concluding this judgment it is regrettably necessary once again to comment on the persistent problem of some High Court Judges in this jurisdiction delaying inordinately to deliver judgments, a problem which this Court has repeatedly drawn to the attention of the Chief Justice in vain, so it seems. See for example Lesotho Teachers Trade Union v Director of The Teaching Service Department And Others 2000 – 2004 LAC 803 at 804-806; Otubanjo v Director of Immigration And Another 2005 – 2006 LAC 336 at paragraph  – ; Paul Mosa Mosuoe v Law Society of Lesotho C of A (CIV) N0. 23/09.
 In the present matter it is common cause that the Learned Judge a quo took 9 months to deliver a judgment in a simple matter such as this. As this Court was informed, the review application was argued on 11 May 2009. Judgment was only delivered on 19 February 2010, an unconscionable delay of 9 months. This is a deplorable state of affairs. The prejudice caused to the appellant and his co-accused by this inordinate delay is self-evident. Such delay can only bring the justice system in this country into disrepute. Once again we are constrained to refer this judgment to the attention of the Chief Justice. I hope it will suffice, by way of emphasis, to recall the apposite remarks of Lord Hailsham of St. Marylebone, the Lord Chancellor, expressed some twenty eight years ago in Broome v Cassell & Co.  AC 1027 (HL) at 1054, namely:-
“The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of the courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal [here read High Court], to accept loyally the decisions of the higher tiers.”
 In the result the appeal succeeds. The following order is hereby made:-
The appeal is upheld.
The proceedings of the Maseru Magistrate’s Court in Case No. CR228/09 are reviewed, corrected and set aside in respect of both the appellant and his co-accused Setaka Kebinyane.
The case is remitted to the Maseru Magistrate’s Court for trial de novo before a different Magistrate.
PRESIDENT OF THE COURT OF APPEAL
I agree: ____________________
JUSTICE OF APPEAL
I agree: ____________________
JUSTICE OF APPEAL
For the Appellant: Adv. L.P. Nthabi
For the Respondent: Adv. L. Mokorosi