Misaina Ramananariro V DPP & 4 Others (CRI/REV/0005/2023) [2023] LSHC 205 (23 June 2023)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CRI/REV/0005/2023 In the matter between MISAINA RAMANANARIRO APPLICANT AND DIRECTOR OF PUBLIC PROSECUTIONS 1ST RESPONDENT CLERK OF COURT HER WORSHIP-NTELANE 2ND RESPONDENT 3RD RESPONDENT MASERU CENTRAL CORRECTIONAL SERVICES 4TH RESPONDENT THE ATTORNEY GENERAL 5TH RESPONDENT Neutral Citation: Misaina Ramananariro v DPP and others LSHC 205 CRI/REV (23RD June 2023) CORAM HEARD DELIVERED : : : HLAELE J. 13TH JUNE 2023 23RD JUNE 2023 SUMMARY: The applicant sought a review under section 50 of the High Court Rules. The record of proceedings before the magistrate discloses that contrary to the application, the magistrate adequately informed the applicant of the offence he was charged with. The Applicant admitted the facts outlined by the prosecution. The subsequent application did not comply with Rule 50(4). ANNOTATIONS: CITED CASES: 1. William Mafoso T/A Mafoso Butchery Benjamin Radiopelo Maphathe T/A A Fresh Farm Meat Market v Principal Secretary Ministry of Small Business C. of A. (CIV). No. 59/2018 2. Machacha v Mpheu, LAC (2009-2010)519. 3. Mokhethi v Matlole, LAC(2011-2012)410. 4. 5. Letuka v Abubaker NO and Others [2012] LSCA 42 (19 October 2012). Khali v Khali [2019] LSCA 47 (03 June 2019. STATETUS 1. 2. 3. High Court Rules 1980. Labour Code Order 24 of 1992 Criminal Procedure and Evidence Act 1981. JUDGMENT HLAELE J [1] INTRODUCTION 1.1This review application came before me on the 13th June 2023 and it was unopposed. The following were the prayers sought; 1. That a rule nisi be issued and made returnable on a date and time to be determined by this honourable court, calling upon the Respondents to show cause if any, why the following orders shall not be made a final order of this court: a) That the rules pertaining to periods and modes of service of this honorable court shall be dispensed with on account of urgency of this matter. b) that the Applicant can be released from custody of the correctional services pending finalization hereof. c) Alternatively, to prayer 1(b), Applicant be released by the Honourable court on such terms and conditions as would secure his attendance to trial. d) That the 2nd Respondent deliver the record of proceedings in CRI/T/MSU/0370/23 and any reasons that it wishes to give to the registrar within 14 days. e) That the decision and/or proceedings in CRI/T/MSU/0370/23 reviewed, corrected and or set aside. f) The Applicant be granted costs of suite in the event of opposition of this application. g) The Applicant/ Appellant be granted further and/or alternative relief. 2. That, prayers 1 (a), 1 (b) and/or 1(c) and 1 (d) operate immediately as interim relief. On the 9th June 2023 Adv Maile appeared before Khabo J and sought and was granted a rule nisi the effect of which was to direct the Respondents herein to dispatch the record of proceedings in the court aqou. The rule was returnable on the 13th June 2023. 1.2 On the 13th June, counsel appeared before me and the record of proceedings had still not been dispatched and as a result the matter was stood down to the afternoon to enable the 2nd Respondent to comply with the order to dispatch the record. Indeed, in the afternoon the record was available and I postponed the matter to the following day, being the 14th June 2023 to allow the court to peruse the record which was hand written and not legible. 1.3 On the 14th June, 2023 the Applicant filed a notice of motion, presumably under Rule 50(4) for what he termed leave to file further grounds of review. In the afternoon of the same day, Adv Mohapi for the Applicant argued his case and judgement was reserved. [2] THE LAW GOVERNING REVIEWS. 2.1 All reviews from the subordinate court to the High Court are governed by Rule 50 of the High Court Rules 1980. Of relevance to this review however is Rule 50(4) which governs a case where an application for review is premised on an amendment of the prayers sought. 2.2 Rule 50 (4) of the High Court Rules reads as follows: “The Applicant may within seven days after the Registrar has made the record available to him, by notice and accompanying affidavit amend, add to, or vary the terms of the notice of motion and supplement the supporting affidavit, and shall deliver the said notice and affidavit to the Registrar and all interested parties”. (MY EMPHASIS) In an attempt to comply with this rule, Adv Mohapi filed a notice of motion together with further grounds of review. 2.3 The purpose of the rule is to allow a party to amend, add to or vary the terms of the Notice of Motion.1 It is a further requirement of this Rule that the Applicant shall deliver the said notice to the Registrar and all interested parties. 2.4 It appears from the pleadings filed of record that the interested parties in this application, being the Respondents were not served with this application of new grounds of review. This essentially means that the Respondents are unaware of a case that has been made against them. Denying them of the basic right in litigation which is the right to present their case and to be heard. Concerning compliance with this rule the Appeal court has said; “In our view non-compliance with Rule 50 in an application under that Rule is fatal.” The court further added “In a Rule 50, application the judge had no option but follow the Rule to the letter.” 2.5 The rational for this dictum is not obvious. That an interested party can have an opportunity to respond to the allegation set out in the application. In fact, Rule 50 specifically directs that the magistrate who presided over the decision should be served. 2.6 It is the view and conclusion of this court that the failure to serve the interested party contrary to Rule 50(4) is in like manner, fatal to the application for review where a party has sought to amend their application/Notice of Motion. It is for this reason that the amendment is dismissed. 2.7 Having dismissed the amendment, the court is left with the main application to consider. The Applicant therein, sought to set aside the decision of the magistrate on the grounds that; 1 William Mafoso T/A Mafoso Butchery Benjamin Radiopelo Mapahthe T/A Fresh Farm Meat Market v Principal Secretary Ministry of Small Business C. of A. (CIV). No. 59/2018. 1. “The magistrate failed to inform the applicant in adequate detail and particularity, the offence with which the applicant was charged with in the court aquo”. 2.8 This ground of review stands to fail in that on perusal of the record, the learned magistrate has clearly articulated the charge to the Applicant. In fact, the magistrate went an extra mile to explain in layman’s language the charge, probably because the Applicant was not represented. To this end her exact words as appear from the record are; “It is said you accepted (intentionally) employment in Lesotho without a valid work permit”. 2.9 In so doing she had unpacked and deconstructed in the simplest of terms the provisions of Section 165(1) read with (3) of the Labour Code Order 24 of 1992. To state that the magistrate failed in her duty to elaborate the charge to the Appellant who stood accused before her is stretching the meaning of ‘explain adequately’. This ground of review therefore stands to be rejected by the court. 2.10 The second ground of review is that the applicant did not admit the facts outlined by the prosecution to prove the charge laid against him. This claim is premised on the procedure laid down in Section 240(1)(b) of the Criminal Procedure and Evidence Act that provides that where an accused person pleads guilty, the prosecution shall outline evidence which would have been led had the accused pleaded not guilty. 2.11 The record reflects that after the evidence was outlined to the court per the section above, the magistrate explained this narration and summarised the outline by saying; They say they found you working without a work permit, do you agree to the outline of the facts. [sic] To this direct question the Applicant responded: “I admit that I was working without a work permit”. 2.12 This admission as appears on the record is not disputed by the applicants as a misrepresentation or as misleading, or an untrue recording of the proceedings. It therefore falls flat in the face of the obvious truth to allege that the Applicant denied the facts. [3] CONCLUSION 3.1 I find that the Applicant has not made out the case for granting of an order setting aside the decision of the learned magistrate. I therefore make the following order; [4] ORDER 1. The application is dismissed. 2. There being no opposition filed on behalf of Respondents, there is no order as to costs. ------------------------------ M. G. HLAELE JUDGE For Applicant: Adv. Maile and Adv Mohapi 8