Bhali v Director of Public Prosecutions and Another (CRI/APN 155 of 2000) [2000] LSCA 96 (4 May 2000)

1 CRI/APN/155/2000 IN T HE H I GH C O U RT OF L E S O T HO In the Application of: Y U S UF P A T EL B H A LI Applicant vs Respondent D I R E C T OR OF P U B L IC P R O S E C U T I O NS HIS W O R S H IP T HE M A G I S T R A TE MR L E S E N Y E HO 2nd Respondent 1st J U D G M E NT Delivered by the H o n. Mr Justice M . L. Lehohla on the 4th day of M a y, 2000 T he applicant m o v ed on notice : (1) an urgent application against the t wo respondents calling u p on t h em (2) to s h ow cause, if any, w hy the decision of the 2nd respondent delivered on 21st February 2 0 00 shall not be reviewed, corrected and/or set aside, (3) calling u p on the 2nd respondent to dispatch within seven d a ys of his receipt of this notice to the Registrar of this H o n o u r a b le Court, the record of the said proceedings to be reviewed, corrected and/or set aside together with such reasons as the respondent is required or desired to give a nd to notify the applicant that he has d o ne so, (4) an order that respondents should p ay costs of this application (5) granting such further and/or alternative relief as the Court m ay d e em fit. As appears on the applicant's m o t i on papers the n u m b er 3 is repeated in designating paragraph 4 as well. I shall h o w e v er refer to the n u m b e r i ng of paragraphs in the corrected version e m b a r k ed on by the Court m e ro motu. T he Court is in possession of the certified c o py of the original d e m a n d ed and m a de m e n t i on of in paragraph 2 above. T he passport subject matter of the litigation m a r k ed Exhibit 1 eventually reached the Court after the matter w as postponed d ue in part to the incompleteness of the record occasioned by the absence of this important Exhibit. Needless to say the Court granted the applicant bail during the very first time the parties appeared before it to argue this matter w h i ch h ad to be postponed for a variety of reasons including the o ne just m e n t i o n ed above. T he applicant in his founding affidavit sets out that he is an Indian adult m a le residing at Pretoria in the Republic of S o u th Africa. Otherwise his p e r m a n e nt h o me of w h i ch he is a citizen is B h r o da Gujarad in India. He further sets out that on 17th February, 2 0 00 he w as travelling f r om M a s e ru to the R e p u b l ic of S o u th Africa. On passing t h r o u gh the M a s e ru side of the b o r d er he h a n d ed his Indian passport to the I m m i g r a t i on Officer w ho inspected it a nd a l l o w ed the applicant to pass on to the S o u th African side of the border. On reaching the S o u th African side of the border the applicant d u ly h a n d ed his passport to the S o u th African I m m i g r a t i on Officer w ho inspected it a nd said s o m e t h i ng w h i ch created the impression in the applicant's m i nd that the officer t h o u g ht the passport w as not the applicant's. T he applicant says he told the officer to l o ok h im up in the face w h e r e u p on he w o u ld see that the applicant is truly the holder of this passport. S ee p a r a g r a ph 4.2 e nd of line three. T h e r e u p on the applicant without, as he says, understanding w h at w as g o i ng on w as taken by this officer a nd s o me S o u th African police officer to the L e s o t ho side of the border. He w as h a n d ed o v er to the L e s o t ho Police. T he applicant stresses the point that his English is v e ry p o or a nd he understands a nd converses in this l a n g u a ge with e x t r e me difficulty. He says he usually understands w h at is being said to h im if sign l a n g u a ge is used. The record of the case from the Subordinate Court shows that the applicant pleaded guilty to the charge after this had been put to him. The public prosecutor and the court accepted the plea. Thereupon the public prosecutor gave an outline of the case. The outline is as follows : The evidence of Inspector Rannoko of LMPS would show that on 17th instant he was on duty at the Maseru Bridge Police Post. Whilst he was there the accused was forwarded to him together with his passport by RSA police. When he inspected the passport he noticed that the accused was supposed to be in Lesotho till the 13th instant. One 'Mankopane Mothibeli was shown the accused's passport. She would testify that the Immigration Stamp in the accused's passport was not theirs and this would mean that it was a fraudulent stamp. Trooper Molise would show that the accused was forwarded to him on that day. He then introduced himself to the accused and then asked him for an explanation; after which he cautioned him and then gave him a charge which he stands facing. I intend to hand in the passport as an exhibit marked Exhibit 1. Accused: I accept the outline of facts Verdict: Guilty as charged Public Prosecutor : No previous permit (sic) Sentence: I quite appreciate your request but the thing is you forged the permit and this is quite serious. I am sure even your own government would feel ashamed. You will go to jail for 18 months. From the above text 1 would infer that 'Mankopane is an employee in the Immigration Department of Lesotho Government. I would also think the wordpermit appearing opposite the public prosecutor below the phrase guilty as charged above was intended to mean convictions. So that the common sense meaning intended to be conveyed would be "no previous convictions " instead of "no previous permit" which makes no sense. From the outline of the public prosecutor it appears on the face of it that the case was properly made out for the conviction that followed. I have had occasion to consider a more or less parallel authority in regard to the effect of a plea of guilty in a Criminal Review in Rex vs Joe Seipati 1985-1990 L LR p.235 at p.237 where it is reported : "It would be worth noting that in Pulumo [CRI/A/37/88 unreported] unlike in the instant matter the unrepresented accused had pleaded not guilty. Thus similarly in C. of A. (CRI) No. 12 of 1974 Stephen Tsatsane vs Rex (unreported) where the appellant had pleaded guilty in the Subordinate Court and for purposes of sentence his matter was committed to the High Court where he sought to challenge the original plea Maisels P as he then was found it fitting to extract from Hoffman on the South African L aw of Evidence 2nd Edition p. 305 et seq the following:- 'A plea of guilty is in effect a formal admission of the essential elements of the charge. Even after withdrawal, the fact that it was made is something which the court is entitled to consider'" While on this point it is necessary to highlight the fact that although this matter has been brought to this Court by way of review which would per se be understood to mean that irregularity of some procedural matter is in point as opposed to substance or merits of the case, a question of substantive importance has been raised in the applicant's papers themselves; namely that " if the alleged forgery or irregular certificate was not used in Lesotho a crime cannot be alleged to have been committed" see paragraph 8.2.5.1. 1 should stress that this is a factor which relates to merits and which cannot properly be entertained in review proceedings which are confined to irregularity in procedure. Needless to say Miss Thabane for the applicant did not make any oral submissions regarding this important matter which I further stress the Court cannot lightly over-look. Miss Thabane emphasised the fact that the accused was not represented and was labouring under great disadvantage of being unable to communicate with the court as there was no one to interpret for him what was being said. It would seem to me that the question raised here is two-fold. First it relates to legal representation or lack thereof. Here Miss Thabane charges that the Magistrate was wrong not to have warned the accused at the start of the desirability of having a legal representation. Next it relates to the constitutional right that the accused is entitled to follow the case preferred against him by means of a language that he can understand properly. With regard to the first leg of the above argument in Seipati above reference is made to S vs Mashinyana 1989(1) SA 592 where it was held that - "A court is not obliged to enquire from an accused whether he wishes to have legal representation. The unexpressed desire of an accused to engage a legal representative cannot afford him a cause for complaint after his conviction and sentence". The instant matter insofar as relates to legal representation is concerned fits in well with the above phrase with which I agree entirely. Buttressing the above view the Swazi Court of Appeal in Caiphus Dlamini vs Regina Case No. 46/84 per Welsh J. A. said : "However, where he (the accused) does not seek it, (legal representation) and where no irregularity occurs by which he is deprived of it, there is no principle or rule of practice of which I am aware which vitiates the proceedings". Further an additional reference to section 240(1) of our Criminal Procedure and Evidence Act No. 7 of 1981 reflects that : "If a person charged with any offence before any court pleads guilty to that offence or to an offence of which he might be found guilty on that charge, and the prosecutor accepts that plea the court may (a) (b) if it is a Subordinate Court, and the prosecutor states the facts disclosed by the evidence in his possession, he shall, after recording such facts, ask the person whether he admits them, and if he does, bring in a verdict without hearing any evidence". C/F Tsatsane above (unreported) at p.2. Needless to say in the instant matter the record shows that the applicant when supposedly asked if he admitted the facts outlined by the public prosecutor he answered in the affirmative. In Rex vs Sibia 1947(2) SA 50 AD Schreiner J. A. is recorded at p.54 et seq as having said : "I do not wish to be understood as suggesting that it is an irregularity, of which the accused could take advantage, if no record is made. Speaking only from my own experience, I do not think that it could be inferred from the absence of any reference thereto in the judge's notes or in the shorthand record that the accused was not asked ". This is a very seasonable word of caution by an eminent jurist and therefore merits special observation; as it may well be pertinent to the case for the applicant in the instant matter. In CRI/A/48/86 Mothakathi vs Rex (unreported) at p.7 this Court made the following observations : "Section 162(1) of the Criminal Procedure and Evidence Act provides that where provisions of section 159 of the Act have not been invoked the accused shall either plead to the charge or except to it on the ground that it does not disclose any offence cognisable by the court. In the instant case the charge and outline of the crown case clearly disclosed an offence committed." Subsection 2 provides that if he pleads; he may plead (a) that he is guilty of the offence charged; or (b) that he is not guilty; or (c) that he has already been convicted or acquitted of the offence with which he is charged; or (d) that he has received the Royal Pardon for the offence charged; or (e) that the court has no jurisdiction to try h im for the offence; or (f) that the prosecutor has no title to prosecute". In the instant matter the accused in exercise of his unfettered right to opt for any o ne of the alternative listed a b o ve opted for that listed u n d er (a). Before reaching finality it w o u ld be fruitful to h a ve reference to the l aw dealing with this Court's p o w e rs on review. T h e se appear in section 68(2) of (Order N o .9 of 1 9 88 w h i ch provides that "If, u p on considering the proceedings aforesaid, it appears j u d ge doubts exist whether or not they are in such accordance : that the s a me are not in accordance with justice or that to the (a) (b) the j u d ge m a y, (i) alter or reverse the conviction or increase or reduce or vary the sentence of the court w h i ch i m p o s ed the p u n i s h m e n t; or (ii) w h e re it appears necessary to do so, remit such case to the court w h i ch i m p o s ed the sentence with such instructions relative to the taking of further evidence a nd generally to the further proceedings to be heard in such case as the j u d ge thinks fit, a nd m ay m a ke such order touching the suspension of the execution of a ny sentence against the p e r s on convicted or the admitting of s u ch p e r s on to bail, or, generally, t o u c h i ng a ny matter or thing c o n n e c t ed with such p e r s on or the p r o c e e d i n gs in regard to h im as to the j u d ge s e e ms calculated to p r o m o te the e n ds of justice". W h i le this C o u rt is of the v i ew that o v e r w h e l m i n g ly there d o es n ot s e em to be m u ch c a u se for the applicant's c o m p l a i nt s a ve that he w as a w a k e n ed to the reality of the seriousness of his offence w h en confronted with jail sentence, an o m i s s i on apparently centred on o v e r - w e e n i ng confidence on the water-tightness of their case, w as c o m m i t t ed by the C r o w n. T he C r o wn failed to counter or qualify the applicant's allegations of his failure to follow the p r o c e e d i n gs in Court. T h is the C r o wn c o u ld h a ve easily a c h i e v ed by submitting an a n s w e r i ng affidavit f r om the Magistrate w ho presided o v er the matter or f r om the public prosecutor in c h a r ge or both. In the circumstances acting in t e r ms of section 6 8 ( 2) (b)(ii) of O r d er 9 of 1 9 81 a b o v e, 1 set aside conviction a nd sentence i m p o s ed by the learned Magistrate a nd order a retrial de n o vo of the accused before a different magistrate. I h a ve o b s e r v ed that the applicant h as p r a y ed for costs of this application in prayer 4 of the notice of m o t i o n. I think that w as uncalled for b e c a u se in a criminal p r o c e e d i ng a party e v en if successful d o es n ot obtain an a w a rd of costs as the l aw m a k es no provision for such. In this w ay the criminal procedure is in sharp contrast with the civil o ne w h e re costs follow the cause. C a re should be taken that an interpreter w ho understands the applicant's language is availed to the court g o i ng to retry his case. Exhibit 1 should be released to the Director of Prosecutions Office for use in the re-trial in d ue course. J U D GE 4th M a y, 2 0 00 For Applicant: Miss Thabane For Respondents : Mr Kotele