IN THE HIGH COURT OF LESOTHO
In the matter between:
DAVID MAKOETLANE Applicant
DIRECTOR OF PUBLIC PROSECUTIONS 1st Respondent
LEARNED MAGISTRATE FOR LERIBE 2nd Respondent
For Applicant: Mr. L. D. Molapo
For Respondent: Mr. K L Kotele
Delivered by the Honourable Mr. Justice T, Monapathi on the 8th day of August 2001
These reasons follow my ruling of the 7th June 2001. That ruling deals with several factors that arose in this matter. This matter was for review of the Second Respondent's decision. I ordered Counsel to file supplementary heads of argument. The setting aside of the learned magistrate's order was not opposed by the Crown. The claim in the Court a quo had been that the Applicant should maintain his wife in terms of Deserted Wives and Children Proclamation 60/1959.
In my ruling of the 7th June, 2001 I had asked Counsel to address the issues shown hereunder, amongst others. I had sought guidance as to whether if those issues were demonstrably highly irregular and prejudicial to the Applicant they called for the setting aside of the learned magistrate's order.
First it was the question whether, as it was said by the Applicant the public prosecutor allegedly having conducted a love affair with the Complainant, the case could not have been conducted fairly. Secondly, that the proceedings ought to be vitiated by reason of the fact that a proper directive from the Director of Public Prosecutor had not been timeously filed. Thirdly, that the Applicant having, on numerous occasions, sought legal representation he was nevertheless compelled to conduct his own case. In my ruling of the 7th June 2001 I had posed a question as to whether this alleged irregularities were of a serious nature. Counsel referred this Court to Ndabe Khoarai v Director of Public Prosecutions 1993-94 LLR1.
Applicant's Counsel submitted that it was clearly evident that the net effect had been that there were no proceedings or at all thus the Applicant had no duty to pay such maintenance or to continue to do so. He referred to the work THE CIVIL PRACTICE OF SUPERIOR COURTS IN SOUTH AFRICA 3rd Edition at page 766.
In addition to his above submission the Court was referred to what had at all times been the Applicant's defence as borne out by the record. It was that he was not legally married to the complainant and moreover the said child of the complainant had not even been fathered by the Applicant. In this respect therefore one essential of the crime with which the Applicant was
charged, namely that he was not legally liable to maintain the child who was not his dependent, was not proved. To sum it up there was no obligation on the part of the Applicant to support the child. The Court was referred to Thabo Mosiuoa v R 1991-1996(2) LLR 296 and Deserted Wives and Children Proclamation No 60/1959.
It was further submitted that the section with which the Applicant was charged clearly provided that the person claiming maintenance should be (as a proved fact) destitute. A destitute person meant "totally" impoverished. As it had been evident from the record the complainant was a police officer hence she could not be said to be destitute in terms of Deserted Wives and Children Proclamation No. 60/1959. See Concise Oxford Dictionary: "Destitute without food, shelter etc completely impoverished." I wondered whether the high standard set by this dictionary definition was always practical to go by. But I agreed with Counsel that my reading of the record did not demonstrate that anything at all went towards proving that the complainant's child was in need of support. See also Kalebe Makhaola v Rex 1967-70 LLR 61 at page 64 where it was held that the word destitute meant that a wife or child or both had no substance at all unless supplied by well wishers or relatives. The latter, the facts of the case do not prove. Nor was anything nearing that.
Counsel pointed out that a fair decision by this Court, as upper guardian of all minor children, and in order to ensure that the child did not suffer due to lack of maintenance over a long period should exercise one of the three options. The three options were that, firstly, send the matter back to the magistrate who heard the matter for hearing de novo. Secondly, should this Court feel that it may be inconvenient and not practical the Court may order any magistrate who
is available to hear the matter as soon as possible within a specified time. Lastly, as it was put in Counsel's own words
"Alternatively that this court being the body charged with the duty of examining or considering a matter already dealt with in the inferior Court(s). These are no limitation imposed upon it. Thus it may enter and decide the matter de novo. It posses not only the powers of a Court of Appeal with the additional privilege of being able after setting aside the decision arrived at by the lower Court to deal with the whole matter upon fresh evidence as a Court of first instance."
The following cases were cited as examples Tseko Ntlaloe v Rex 1991-1996 at p.845 and
Johannesburg City Council 1903 (TS) 111 at 117.
It was submitted that despite the anxiety of the Court a quo to continue with the case notwithstanding the absence of Applicant's Counsel (on the 19th January 2001) the Court by conduct underrated the importance of the Accused's right to legal representation. See Mosoeunyane Mothakathi v Rex CRI/A/48/86 (unreported) Counsel cited the case as support for the trite statement that it was a matter of considerable importance, in the interest of justice and the administration of justice that every accused person should be afforded every opportunity of putting his case clearly or succinctly to the Court and this can best be done when it is put by a person of legal training.
That furthermore denial of legal representation itself can be fatal to the validity of a trial. See S v Ngula 1974(1) SA 801 at 804, S v Baloyi 1978(3) SA 290 at 293, Human Rights Act 24/1983 at section 2 ,. Lehlohonolo Pulumo v R CRI/APN/37/88 (unreported). These
authorities, as submitted, put it beyond doubt that it was a fundamental right of an accused person to be legally represented at his trial. That right was not only recognized by common law but by our Criminal Procedure and Evidence Act 1981 section 171. The Court was also referred in that regard to S v Khayile and Another 1988(3) SA 795 at 796.
Counsel added that in this respect it was a universal rule of practice that an accused was entitled to legal representation "at all costs" especially when the Court realized that an accused person was in need of legal representation. S v Radebe/S v Mbonambi 1988(1) SA 1991. As the learned author WC Steytler in The Undefended Accused (1st Edition) put it at page 68 of his work:
"A refusal to allow an accused such an opportunity would be such a gross departure from established rules of procedure that the accused in such circumstances has not been properly tried and this brings per se failure of justice."
The decision I took in the circumstances was not to allow the conviction to stand. The option I took was to send the matter back to the magistrate's Court of Leribe where it will be tried de novo before a different magistrate.
8th August 2001