Mofokeng v Director of Public Prosecutions (CRI/APN/1058/2002 (CR 665/2002 – LERIBE))

Case No: 
Media Neutral Citation: 
[2003] LSHC 21
Judgment Date: 
6 February, 2003


CRI/APN/1058/2002 (CR 665/2002 - LERIBE)


In the matter between:




For Applicant : Miss Machai

For Crown : No appearance


Delivered by the Honourable Mr. Justice T. Monapathi on the 6th day of February 2003

This is a review application filed in early December last year. The Applicant claimed that the decision of the learned magistrate Mrs Nthunya of the 9th September 2002 be reviewed and set aside.

The magistrate's decision had resulted in a conviction and sentence on this Applicant. Incidentally Applicant was charged with two others and all of them had pleaded guilty on their own charge. They had been charged with housebreaking with intent to steal and theft.


They ended up being sentenced to a term of three (3) years imprisonment.

It is on record that since about the 10th December 2002 Miss Machai for the Applicant had first appeared before Court. It was on about five, six or seven occasions when she appeared including today when she appeared before me and sought for a final decision on this matter. She had to be coming to my Court to seek my decision because she was entitled to. She must have gone out of her patience inasmuch as I did. I cautioned her to be more patient. She will agree with me that the history of this matter had become very disappointing.

It is said, correctly, that there had been no attempt by the Crown to seek to oppose this matter. I record that on the 13th and 15th of January 2003 Mr. Mokuku for the Crown had appeared and he was unable to file any opposing papers. He was not interested as I concluded. I repeat Mr. Mokuku was just not interested to get the matter to seek to oppose it. Not only that on the 21st January Miss Machai was once before me. She still indicated that Crown Counsel agreed with her that no opposing papers up to that time have been filed.


There was however one hitch which made the matter not easy to dispose of with speed. It was that the learned magistrate has not been cited and she had not been served with the motion papers. I advised Miss Machai to take steps to see that the learned magistrate was served. In the presence of Miss Machai I spoke to the magistrate over the phone. The magistrate made promise that by the end of the following day she would be in my office to pick up the papers. Indeed she turned up and in the presence of the Assistant Registrar, Miss Ntobane, the magistrate attended to the papers. After that I spoke to that magistrate again to find what her their attitude was. She indicated that she had only looked at the typed proceedings and not the record itself. I insisted that she must come and look at the record because the record might have been taken from her possession by mistake before being remitted to the High Court.

The learned magistrate did come and perused the proceedings. I advised her that despite the fact that the Director of Public Prosecutions was not interested to oppose I wanted to find her side of the story and that she may file an affidavit so that I know her side of the story. Miss Machai attended after a few days and then I had to phone that magistrate as to what the state of her affidavit was. I was told that she was in Qacha's Nek or Thaba Tseka. I told Miss Machai to be once more


patient. She became patient up to this morning. The magistrate had still not brought her affidavit. She told me that the affidavit had been prepared and it was not typed out because "in the districts there are no typewriters" or something like that. I again asked Miss Machai to attend at 2.30pm.

There is something more that the magistrate told me. She said she was prepared to make the affidavit and had even spoken to Mr. Molokoane from the Director of Public Prosecutions' office who is apparently seized with this application. And when I asked her whether she had spoken to Mr. Molokoane personally, she said she had heard from the Public Prosecutor. This morning I asked Mr. Molokoane if he knows anything about this application. He said he did not. I ask myself what the problem is with this application. Supposing the application was unfounded why did I not hear from the prosecution? And why was it difficult to hear from the learned magistrate if the allegations were not valid? That would be of more the reason why they should have opposed and then magistrate should in the interest of justice inform and put that in an affidavit to say whether the story given by the Applicant is untrue.

This is the Applicant's story. Two young men (Co-Accused) had left their clothes with the Applicant saying that they would collect them.


Later when the two came to fetch their property they were accompanied by a policeman. The Applicant told the policeman that the goods in question had been left with him by those two young men. They told the Applicant to accompany them to Court saying that although they were satisfied that Applicant was innocent they could not leave the Applicant behind and only the Court would acquit him.

The Applicant says he was then taken to Court where there was no interpreter and this proceedings were in English language. The Applicant does not tell us whether he understands English. May be he does not. He says as a result he ended up admitting the facts outlined by the prosecutor without understanding their implication. At least the facts contained in paragraph 8 of the Applicant's founding affidavit should have been opposed or explained by the Director of Public Prosecutions or the learned magistrate herself. And these facts, if true, are devastating.

There is this question whether the Applicant understood the proceedings and whether they were in Sesotho or in English. This is what the magistrate should have explained. Although the Applicant did not fully explain in his story the Court does not have duty to tax a deponent when there is no query or suggestion that there is something


wrong with the facts from the other side. We can only accept the Applicant's story as being uncontroverted. I was tempted to call this Applicant from Leribe. But why would I under the circumstances where the Crown was not interested and the learned magistrate was not interested. Only Miss Machai was moving around, up and down for a whole month.

At paragraph 9 of his affidavit the Applicant goes further to say that despite the fact that in his mitigation of sentence he told the Court he knew nothing about the property in question. The fact that he said he did not know anything about the property should have caused the magistrate to enter a plea of not guilty. Even at this stage when he was denying knowledge of the property. He says he explained before Court that his co-accused have left the property with me but he don't anything about the property. The Court went on and convicted him of housebreaking with intent to steal along with his co-accused. This is the factual situation. In effect the Applicant challenges the Crown or that magistrate to dispute this.

repeat that even if at the stage of mitigation the Applicant denied guilt his plea could have been changed. And the story itself was such that it they should have been challenged. Then there was Mr. Mokuku


Crown Counsel who appeared before Court on about two occasions who did not take any step. Not only did my patience ran out I went out of my way and consulted the learned magistrate who attended in my office and I spoke to her about the problem I did not understand why the Crown could not contest the facts. It may be that this Applicant is a liar but who says he is a liar? Nobody is saying so. Here I was with Miss Machai and we were very patient. I even called the learned magistrate to my office on two occasions.

I think there is prejudice enough against this Applicant and in the interest of justice I cannot let this conviction and sentence to stand because there is more than a serious of doubt. The proceedings cannot be said to have been in accordance with real and substantial justice.

I think this review should be allowed. The Applicant's conviction and the sentence is set aside. He must be set free. We have done the best we can to pursue things in the interest of justice and to the extent that Court rules allow.

T. Monapathi


6th February, 2003