Mothusi wins big

Staff Writer | Thursday August 12, 2010 00:00

 

It was celebration time for the lawyer when Justice Michael Leburu overturned and set aside his conviction and sentence. 'Mothusi is back,' an ecstatic Mothusi well-wisher said after judgment was delivered. The lawyer moved to the High Court on a constitutional application, arguing that his attempt to appeal the conviction was being frustrated by the inordinate delay in producing case records. Relying on Section 18 (1) of the Constitution, Mothusi argued that the failure to produce the case record amounted to denial of a fair hearing within a reasonable time, as enshrined in the Constitution under Section 10.

During trial, the court had heard that the delay in producing the case record was caused by the transfer of the then presiding magistrate, Nelson Bopa to Lobatse High Court. The transfer of the officer who typed a substantial part of the proceedings (Semmee Mooketsi) to Maun and the boarding of the computer that was used to type the record also caused a delay. It emerged during trial that while Bopa put the delays to the transfers and the boarding of the computer, Mooketsi contradicted him saying she had done all the typing before she moved to Maun and saved all her work on an electronic disk, which she said she left with Bopa.

In his judgement, Leburu said the reasons given for the delay in availing a complete record are not convincing and satisfactory to justify the unreasonable delay. During trial, there had been an implicit legal argument that the right to a fair trial only go as far as the first trial and does not necessarily cover appeal. But Leburu said that when applying a liberal and purposive prism to the fundamental human rights, he has come to the conclusion that a fair hearing extends to appeal processes.

'I hereby determine that a right to a fair hearing includes a right to an appeal within a reasonable time. A right of appeal is an integral part or an attribute of a fair hearing and as such, it must, as of necessity, be ventilated and exercised within a reasonable time. The same goes to the availing of a record of the proceedings after judgment has been delivered.'

Mothusi had argued that the 22 months he waited for the production of the case record falls outside a reasonable time. What is reasonable time? The court was seized with this question and it could not quite be defined. But the judge observed that 'reasonable time' is dependent on particular circumstances of each case. To the extent that lawsuits ought not to be protracted, Leburu said that over two years delay to produce a case record amounts to unreasonable delay.

After finding that Mothusi's right to a fair hearing had been violated by the non-production of a case record for over two years, the judge said that the matter should not just end here.

The judge made a finding that the state is unable to avail a complete record or even to reconstruct a new one as only an incomplete record was tendered before court. He added that the incomplete record would not be helpful to the court to adjudicate the matter while serving its appellate functions. In the record, testimonies of six witnesses are missing, there are omissions in the pages, documentary exhibits such as cheques and deposit slips are not there, the sentence imposed and orders for compensation are also missing.

Considering the incompleteness of the record before court and that some of the exhibits are critical to the charges preferred against Mothusi, the judge said the court could only set aside conviction and sentence when there is failure of justice. In the absence of such material evidence, he stated that the court is left to do guesswork.

'In conclusion, it is crisp and without doubt that the applicant's procedural right to an appeal within a reasonable time, as enshrined in the constitution and inherently recognised by Section 10(1) of the High Court Act dealing with right of appeals from magistrate court to the High Court, has been impaired and further his constitutional right to be availed a complete record within a reasonable time has been substantially impaired. The incomplete record also makes the hearing of the substantive appeal impossible. This trilogy of deficiencies lie on the state's doorstep and not on the part of the applicant. The applicant has thus suffered immense prejudice as a result and hence a failure of justice has occurred.

Taking into account the outlined circumstances of this case, particularly the trilogy of those deficiencies, the only redress or remedy as enshrined under Section 18 (1) of the Constitution, is to set aside the conviction and sentence of the applicant on all counts, as I hereby do.'

In Mothusi's application he wanted the court to set aside his conviction, release his Mercedes Benz impounded as part of the sentencing and a refund of the fine he paid and a return of his passport. He succeeded in getting all these.

While some of his well-wishers were buoyant, he was a bit circumspect, perhaps knowing that he still has another conviction. Is he moving on to have that one quashed too? 'Well I am just relieved that this one is over. I have to get my car, get my money and pay school fees. It is one thing at a time. I am just relieved,' Mothusi said.