R v Kalela (CRI/T/61A/2000 )

Media Neutral Citation: 
[2003] LSHC 75
Judgment Date: 
6 July, 2003




In the matter between:





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

I have hard the explanation made by this Accused to show why he was not able to attend during trial of his erstwhile Co-Accused. They were Phephelaphe Ntabene, Qenkane Ntabene, Lefalankoase Kalela, Khohlane Kalela and Maeza Ntabene. All were convicted to nine (9) years imprisonment except Khohlane who was sentenced to twelve (12) years imprisonment.

This gentleman (Accused) makes a simple explanation. It is that he did appear before a lady, a functionary of the High Court some time a year or so ago perhaps one of the Assistant Registrars. It turned out to have been Miss Russel, Assistant Registrar. One is inclined to believe that Accused must have appeared


before the lady for a clear purpose. And the clear purpose must have been that Accused should be informed of the date of trial. This includes that he may indicate if he already has legal representation and who his Counsel is, if any. This is the purpose of such interview.

I suspect that Miss Russel did all the above. But what confounds me is the way this process appears on the papers (pro-forma minute) on which it is recorded. That on a date on the 30th of July 2001 that the gentleman did appear before Ms Russel and that the date of hearing is appointed as the 5th to the 7th of March 2001. And this in itself is clearly an anomaly.

When one looks at the minute form Ms Russel has written on top of a "typexed" cancellation particulars or writings and yet she disowns the cancellation. She suggests that somebody else could have made those cancellations. I would understand if she had said she had cancelled and made the writing on top of the cancellations. And in that way to have spoken outrightly that she made a mistake.

One has to read this against the attitude of the Accused when he was in the witness box. Here we speak of an illiterate man who contends that he could not have been told of the date of hearing. Difficult as it is to believe that, that is


so, it could be that he made a mistake. This is against the background of the chequered minute form.

And here is a man (Accused) who explains that at the time that attempts were made to serve warrant of arrest on him, he was absent from his village and was engaged in some employment elsewhere. He came after sometime when certain problem arose at his workplace. And he says he was informed by someone or his father that someone was at his father someone who was a co-accused with him had come to the High Court. He thought he should also report himself because it was being said his attendance was necessary. And he did attend and there is no dispute that he surrendered himself.

The question is: if he intended not to avail himself of the Court jurisdiction why couldn't he abscond and not come to Court and continue with ways of escaping if that was his intention. Much as there has been these lot of inconvenience it is compelling and borne out by evidence that I should find that this Accused had no intention to abscond. Even if as a result there may be inconveniences here and there it does not give any right to punish this man for absenteeism. The facts are not consistent with behaviour of a man who intended not to come to Court. In addition it appears that it is correct that he was not told to attend on remands. And he says he had stopped. He has been told to stop.


That is why he never attended on remands.

On the balance of probabilities it should be that this man was innocent of intention to abscond.

The second factor that I take into consideration is that this man has not been indicted despite my warning to Crown Counsel. That is as after the separation. I thought the most natural thing to have done was that as soon as there was intention to separate the Accused would be served with a different indictment. Just now he is not committed for trial. And if he remains in prison the question will be why is he in prison? This man ought to be released, much as it will cause another hardship to have him indicted and brought him here again. But I will do my best to make him available.

Accused should report himself every month at the police office at Phamong which is near that Mohale's Hoek police station. You should start reporting yourself on the 8th September, on the 6, of October, 2003, on the 10th November, 2003, on the 8th December 2003, on the 5th January, and on the 3rd February, 2004 you should be here. Do you understand?

And I will ensure that within 30 days an indictment is prepared. I will see


if the Crown does that. If they fail within this 30 days to have the indictment prepared I will see what to do. I will give a message to the Phamong Police that they must stop you from reporting if they don't prepare the indictment. But I am sure that your intention had been to attend here. You must have been confused. It was a mistake I suspect and in the interest of justice I must release you.

Go back to your home Sir. Do you understand? But I have my eyes on you should it be that you intended to flee the law you will regret that. I only suspect that it was genuine that you got confused and you did not attend here at Court when you should have attended. Do you understand Sir? And we regret that you had to be put in prison for such a long time since you reported yourself. But if the Crown had been speedy enough you should have been released much earlier.

T. Monapathi