Letsaba v Magistrate, Leribe and Another (C of A (CRI) No 2/2003 )

Media Neutral Citation: 
[2003] LSHC 115
Judgment Date: 
10 October, 2003

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C of A (CRI) No 2/2003

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:

MAHLAKU LETSABA Appellant

and

THE MAGISTRATE, LERIBE 1st Respondent

DIRECTOR OF PUBLIC PROSECUTIONS 2nd Respondent


Coram : GROSSKOPF, JA

SMALBERGER JA

MELUNSKY JA


JUDGMENT


Review - magistrate failing to advise appellant of right to legal representation and failing to assist him in defence -failure of justice.


MELUNSKY, JA


[1] In the magistrate's court at Leribe the appellant pleaded not guilty to a charge of rape and an alternative of contravening S 3(1) of Proclamation 14 of 1949. He was unrepresented at his trial. He was convicted on the main count and sentenced to five years imprisonment. Thereafter he instituted an application in the High Court for an order reviewing and


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setting aside the criminal proceedings. The application was dismissed by Guni J. This is an appeal against her decision.


[2] The application for review was based on the following averments:


  1. That the appellant was not advised of his right to legal representation;


  1. That he was given no guidance by the magistrate in conducting his defence; and


  1. That the magistrate failed to inform the appellant of his right to call witnesses.


It is to be regretted that the magistrate did not respond to the allegations made by the appellant in his affidavit. It is probable that he accepted the correctness of the contentions raised by the appellant, which are indeed borne out by the record of the proceedings, but it would have been courteous and helpful to the reviewing court for the magistrate to have explained why he failed to apply the accepted procedural norms.


[3] The Crown does not oppose the application. It will therefore suffice to deal with the issues as briefly as the facts permit. What must be emphasised/ however, is that this Court, on more than one occasion, has pointed out that an accused person's right to legal representation must be explained to him and that the failure to do so might result in substantial unfairness (See Phomolo Khutlisi v Rex 1993-1994 LLR 18 and Mpho Hlalele and Another (C of A (CRI) 12 of 2000, unreported). In the earlier decision Ackermann [A said the following at 21:


"It is important, for the proper administration of justice........

that an unrepresented accused, at the commencement of his trial, be informed of his legal rights in regard to legal representation, and, if he is indigent and desirous of legal representation, what avenues are open to him in this regard/'


And in Hlalele Steyn P made it clear that the failure to inform an accused of his rights in regard to legal representation might, on its own, justify the setting aside of the proceedings. In the light of these judgments it should be the accepted practice for judicial officers to apply the aforesaid procedural requirements, especially where an accused is charged with a serious crime.


[4] The failure to inform the appellant of his rights relating to legal representation was not the only procedural shortcoming in the magistrate's court. The appellant's defence to the main count was that the complainant had consented to having sexual intercourse with him. This was not put to the complainant during the appellant's cross-examination of the witness and the magistrate's rejection of the appellant's evidence was based, inter alia, on his failure to do so. The nature and importance of cross-examination is not always obvious to an accused and it is quite clear that the appellant did not appreciate what was required. He asked a few perfunctory questions - most of which had no relevance - in his attempt to cross-examine the complainant. He alleged in his affidavit that the magistrate did not explain to him what should be put to the Crown witnesses. This averment was not controverted. The magistrate, in a case such as the present, should have assisted the appellant, at least by advising him of the need to put the nature of his defence to the complainant (cf. S v Maseko 1993(2) SACR 579(A)).


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[5] Mention should also be made of the magistrate's failure to inform the appellant at the close of the Crown case, of his right to call witnesses in his defence. There was a potential witness who might have provided some corroboration for the appellant's version and the appellant claims that he would have called him had he known that he was entitled to do so


[6] The court a quo dismissed the application on the grounds that the appellant, although only 18 years old, was intelligent and a mature Form E student and that he conducted his defence reasonably well. We are, however, not at all satisfied that the appellant was mature enough to appreciate what was required of him. Nor do I agree that he conducted his defence with reasonable ability. I have already referred to his failure to put the essence of his defence to the complainant. What is more, there was no denial of the appellant's statement that he did not know what was expected of him in the trial court.


[7] It was assumed by the court a quo that the magistrate had informed the appellant of his right to legal representation before the commencement of the criminal proceedings. There was no justification for this assumption. It does not appear from the record that the appellant was ever advised of this right and his assertion on affidavit that he was not so informed was not denied. The learned judge went on to hold that the evidence before the trial court established without a doubt that the appellant had sexual intercourse with the complainant without her consent. That, however, is not the test to be applied in proceedings of this nature. The questions are whether the proceedings were substantially fair to the appellant and whether, as a result of the irregularities, there was a failure of justice. The evidence against the appellant may have appeared to be convincing


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precisely because of his inability to defend himself properly.


[8] For the reasons outlined above we are satisfied the irregularities complained of occurred. We are also satisfied that the cumulative effect thereof resulted in prejudice to the appellant and a failure of justice. The Crown conceded that the irregularities were sufficiently gross as to render the trial a nullity. Both counsel were agreed that it is not necessary for this Court to order that the criminal trial should commence de novo. That is a matter which is left to the discretion of the second respondent.


[9] The order that is made is the following:


  1. The appeal is allowed;


  1. The proceedings in CR: 839/01 (in the Leribe magistrate's court) are reviewed and set aside.


Delivered at Maseru this.....10th......day of October 2003.


LS MELUNSKY

F.H.GROSSKOPF JA:


I concur


F. H. GROSSKOPF

J.W.SMALBERGERJA:


I concur


J W SMALBERGER


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For Applicant : Mr M E Teele

For 2nd Respondent: (Law Office) (Ms L Maqutu)