SENIOR High Court judge Justice Tšeliso Monaphathi on Tuesday this week lashed out at magistrates and the office of the Director of Public Prosecutions (DPP) for continually failing to respond to review applications.
Justice Monaphathi was remarking on a review application in which Mokhotle Tšepe (18) from Ha-Ramonaheng, Berea, was seeking a review and setting aside of his conviction by the Berea Magistrate’s Court in March this year.
Tšepe’s lawyer, Hopolang Nathane, told the High Court that there were irregularities surrounding his client’s trial and conviction by Resident Magistrate Tšeliso Bale on 19 March 2014.
Tšepe was found guilty of robbing a Ha-Rakoto businessman of M600 and tobacco at his shop on 8 March this year, and sentenced to two years in jail without an option of a fine.
Tšepe’s two co-accused had also been slapped with a similar sentence two days before by the same court.
However, Justice Monaphathi released one of Tšepe’s co-accused, Montšo Oliphant, on 3 November on review after holding that there were irregularities surrounding the trial.
Mr Nathane argued his client,Tšepe, should also be set free because his co-accused had been released.
His client, Mr Nathane added, deserved similar treatment to his co-accused as guaranteed by Section 19 of the Constitution which provides for equality before the law.
The lawyer further argued Mr Bale, the DPP’s office and Berea Magistrate’s Court clerk, were served with a review application but did not respond.
Justice Monaphathi then ordered the release of Tšepe on the basis of irregularities outlined in his affidavit.
Tšepe alleges in the affidavit that he admitted committing the crime after being misled by the police to plead guilty in order to get a lenient sentence.
However, Justice Monaphathi raised concern over the “persistent habit” by the office of the DPP and magistrates of not responding to review applications filed by convicts from subordinate courts.
“The crown doesn’t appear to defend serious cases, and the DPP doesn’t appear where he is supposed to appear.
“There was another review application in which the plaintiff alleged that when he was in a magistrate’s office, a certain policeman peeped through the window and told the magistrate to give him a harsh sentence.
“He alleged that indeed, he was sentenced according to the policeman’s utterances. But again, neither the magistrate involved nor the crown responded to the application.
“The question is: where was the prosecutor when all this happened?” he asked.
Justice Monaphathi further charged: “You know what those magistrates do at conferences they attend? They always complain about the High Court, but look at what is happening.
“The last time I saw an affidavit from a magistrate was ages ago by someone who is now a judge of the High Court. Magistrates no longer respond to cases where they are cited as respondents.”
After the Crown and Mr Bale failed to defend the case, Justice Monaphathi set Tšepe free.