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Maphane v The State (Criminal Appeal No. 12 of 1991) [1991] BWCA 9; [1991] B.L.R. 34 (CA) (4 July 1991)

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IN THE COURT OF APPEAL. OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 12 of 1991
In the matter between:
LAWRENCE MAPHANE         Appellant
versus
THE STATE        Respondent
Coram: A.        N. E. AMISSAH, J.P.,
T.       A. AGUDA, J.A.
B.       A. DOYLE, J.A.
G.       BIZOS, J.A.
W        W.       H. R.SCHREINER, J.A.
Appellant in person
Mr. N. Chadwick for the State
JUDGMENT
AMISSAH, J.P.:
This appeal concerns a person's right to be represented at his trial by a lawyer of his choice. The facts of the case other than a recital of what happened at the Court at the commencement of the trial have no bearing on the subject matter of the appeal.
The appellant was charged before the Senior Magistrate's Court on the 31st of October, 1989 with six counts of stealing by a clerk contrary to section 2 8 2(n o w section 277) of the Penal Code. On that day the appellant informed the Senior Magistrate that he intended to employ an attorney to defend him. After a few adjournments, of which no record appears that they were granted at the instance of the appellant, h e appeared on the day fixed for trial. That was the 31st of January, 1990. On that day the following exchange between the appellant, the
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prosecutor and the Court was recorded by the Court:
"Accused: I have a lawyer Mr. Morotsi but I cannot see him today. I cannot stand on my own. I will need him to come here.
PUBLIC PROSECUTOR: There is no indication that an attorney would appear for the accused. Witnesses have been called and they are all here. They come from the lands. I do not think the accused has any attorney at all otherwise such as an attorney would have informed the Court. In the circumstances I strongly object to the accused's application to have the matter postponed.
COURT: Objection sustained and the trial will proceed as scheduled."
The trial then proceeded and the appellant was convicted or. all the counts. He received as punishment various prison sentences for the counts which were made to run concurrently. The effective custodial sentence was three years.
The appellant thereupon appealed to the High Court. The
main ground argued on his behalf in that Court was the denial by
the learned Senior Magistrate of his constitutional right of
representation by a lawyer of his choice at his trial. The
section of the Constitution in question is section 10 which in
subsection (2)(d) provides as follows:
"10.(2) Every person who is charged with a criminal offence -
(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative o f his own ( ho i c e ;
After considering the history of the case before the Senior

igist. rate, the learned judge a quo
I u ded a s foil ows

"In arguing this ground, counsel on both sides have not drawn my attention to any Court of Appeal decision on the point. But what I make of the above-quoted provisions is that the accused

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has a right to brief and be defended by counsel at his trial and that he must be given reasonable time in which to do so. However, if he does not avail himself of this right and the opportunity within a reasonable time or if he seeks unnecessary or unreasonable adjournments or if his legal representative fails to appear in court without making a reasonable effort to get in touch with the the court to explain his absence and seek an adjournment, then, I think the court is perfectly entitled in the light of section 10(1) of the very Constitution which demands expeditious administration of justice, to proceed with the hearing in the absence of the accused's counsel. There is absolutely no doubt that a trial court has a discretion to grant an adjournment at any stage of the trial. It is equally true that such discretion must be judicially exercised and that the court in the exercise of this discretion in circumstances as there were in this case, must balance the rights of the accused against the interests of the State and to ensure that the judicial process is not stifled by unnecessary adjournments designed to delay the course of justice.
In the instant case, and as noted earlier, the Appellant had three months within which to make the necessary arrangements for legal representation. There was no communication between Mr. Morotsi and the court. Indeed, Mr. Morotsi never appeared throughout the entire proceedings which concluded on 1st March, 1990. Had he done so, it would have been legitimate for him to apply for further cross-examination and to lead the Appellant in his examination in chief. I have read through the record of proceedings and formed the opinion that the Appellant cross-examined those prosecution witnesses who ought to be cross-examined.
It is for the reasons above that T come to
the ultimate conclusion that there was no        breach
of the Appellant's constitutional rights.        He
was offered every opportunity to exercise        and
enjoy the rights bestowed on him by the
Constitution but was lethargic about it.         In
my view, this ground must fail."
I am in whole-hearted agreement with the learned judge when
( he draws attention to the fact that a Court should pay equal j
regard to the protection given by section 10(1) of the
Constitution that a person charged with a criminal offence
• /' "shall be afforded'afair hearing within a reasonable time by
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an independent and impartial court established or recognised by law." The demand for a trial within a reasonable time is another way of expressing the popular tenet that justice delayed is justice denied. But this demand is all too often discussed within the context of the convenience of the court, although, to my mind, the primary objective of the provision is to afford a protection against delayed administration of justic to the accused. The Courts must be able to discharge their undoubtedly onerous duties in accordance with their projected plans as expeditiously as possible. An unreasonable delay by i. ;n proper applications for adjournment, would, in that light, hinder their progress and adversely affects the due administration of justice. But it would be unfortunate if a protection against delayed justice which is conferred by the Constitution on an accused person were to be seen only in terms of the convenience of the courts.
It was also unfortunate that the learned trial judge seemed to have assumed that the previous adjournments in this case were granted at the instance of the appellant.. That assumption would imply negligence on the part of the appellant if it appeared that he had, during the time afforded him by those adjournments, not done anything about or succeeded in engaging a lawyer to appear on his behalf at his trial. On the date of the appellant's first appearance in Court on the charges on the 31st of October, 1989, it was the police prosecutor who asked the Senior Magistrate for a date to be fixed for trial . The order of the Court fixing that date was:

"Order : Trial on 31/1/90 and 1/2/90. Mention on 29/11/89 and 29/12/89. Accused granted bail in the sum of P5 000.00 on his own recognizance without surety."
The dates on which the case was called prior to the date
fixed for trial, namely 29th November and 29th December 1989,
were dates for mention only. Everyone knew that no trial was
intended on those dates, and the appellant had no cause when
the case was called to say anything about the efforts he had
been making to secure the services of a lawyer. It is not
j beyond the realm of possibility that, even if the appellant
; had secured a lawyer by those dates, that lawyer would not
have appeared in court, as nothing more than the further
adjournment of the case was to take place. The first
o p port unity, therefore, that the appellant had to complain to
the Court that he had instructed a lawyer who