Thai v Director of Public Prosecution (CRI/APN/617/04)

Case No: 
CRI/APN/617/04
Media Neutral Citation: 
[2004] LSHC 138
Judgment Date: 
8 November, 2004

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CRI/APN/617/04

Ref: CR 178/04 (Maseru)

IN THE HIGH COURT OF LESOTHO


HELD AT MASERU


In the matter between:-

MALUPE THAI Applicant

AND

THE DIRECTOR OF PUBLIC PROSECUTION Respondent


JUDGMENT


Delivered by the Honourable Mr. Justice Monapathi On the 8th day of November. 2004


I made the following decision in this application for review and application for bail pending appeal. Counsel had been ready to argue this review matter. I accordingly decided to deal with the application for review straight away. It is primarily about the right to "the fundamental common-law right to legal representation" and specifically whether such a right was explained to the Applicant (Accused) before the court aquo.


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Miss Rantofi complained, and this ultimately turned out to be the sole ground argued by herself and Miss Kanono for the Crown, that the rights of the Applicant (Accused) the legal representation were not explained to him because:


"it is important for the proper administration of justice that an unrepresented accused at the commencement of his trial be informed of his rights in regard to legal representation and if he is indigent and desirous of legal representation what avenues are opened to him in this......"


as stated in PHOMOLO KHUTUSI VS REX 1993-1994 LLR 21 per Ackerman JA. Miss Rantofi felt that the record of proceedings did not disclose that such a right was explained and hence an irregularity had occurred.


The learned authors of CONSTITUTION LAW OF SOUTH AFRICA, A. Chaskalson et al, (Juta) 1998, on commenting about the rights of an accused to be informed of the right to counsel, as entrenched in the South African Constitution concluded at 27-78 that ...."Failure to inform the accused accordingly has been held to amount to an irregularity rendering the trial unfair" S v GOUIWE (8) 1995 & BLCR (B).


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The statement, on page one (1) of the record of the Court aquo, which reads: "...the charge is read and explained to the Accused they elect to appear unrepresented ..." It is contended that the statement does not disclose much of a background as to whether the learned Magistrate did question the Accused, as to whether he needed to be represented and, what his choice of counsel would be. That may be so. In my mind, it nevertheless disclosed, which is most important, that the Accused did appreciate the fact that he had a right to be represented by counsel, as a matter of choice.


Although a verbatim statement ideal, I do not think in all cases much more precision will be achieved. Each case will depend on its own wording. What is important is for as accused to appreciate that he will be represented if it is his wish. Incidentally it is ideal, again, that a form be designed as a guideline to introduce most of these preliminaries which are fundamental to all the rights of any accused. For example does an accused understand the charge (after its having been explained) and does he desire to have legal representation, if so which counsel? And so forth.

The application therefore fails.


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T. MONAPATHI

JUDGE