Moliko v The Learned Magistrate (Mr. Motanyane) (CRI/REV 10 of 13) [2013] LSHC 101 (17 December 2013)

IN THE HIGH COURT OF LESOTHO In the matter between: BOKANG MOLIKO 1ST APPLICANT MOTHOBI TLAILE 2ND APPLICANT CRI/REV/10/2013 And THE LEARNED MAGISTRATE (MR. MOTANYANE) 1ST RESPONDENT THE CLERK OF COURT 2ND RESPONDENT DIRECTOR OF PUBLIC PROSECUTIONS 3RD RESPONDENT REASONS FOR JUDGMENT Coram Dates of Hearing Date of Judgment : : : Honourable Acting Justice E. F. M. Makara 17 December, 2013 17 December, 2013 MAKARA A. J [1] The Court having considered the representations for the applicants and the respondents, respectively, has come to a conclusion that: (a) The Magistrate was at large to base his decision upon the complainant’s evidence if he believed it to be true. The Cautionary Rules do not apply any longer in sexual offences. It has long been considered constitutionally suspect. Side by side with this consideration, the applicant was also at large to have called for a counter evidence against that of the complainant with a view to indicate to the Court that the evidence was, on the balance of probabilities possibly false. (b) There would be no basis ex facie the papers before the Court for it to read or infere malice on the part of the Magistrate. He deserves to be presumed to have acted regularly as a Judicial Officer. (c) The Magistrate could have reached his conclusion on the basis of the complainant’s evidence exclusively. He was judicially at large to have done so. (d) The time taken between the hearing and the writing of the judgment cannot unless, the contrary is clearly shown in the papers, be, indicative of a miscarriage of justice or mala fide on the part of the Magistrate. This cannot be a sound ground for the proceedings and the judgment of the Court a quo to be set aside. [2] In the premises, the application is refused. The Court however, directs the Resident Magistrate and the Prosecution to expedite the hearing least the rights of the applicants are indefinitely placed in jeopardy. E. F. M. MAKARA ACTING JUDGE For the Applicant For the Respondent Adv. L. Ketsi Instructed by : Attorneys V. Mokaloba & Co. : Adv. Tsutsubi instructed by Law Office