HIGH COURT OF LESOTHO
matter between :
by the Honourable Mr. Justice T. Monapathi on the 1st day of December
close of the prosecution case Mr. Monyako for defence made an
application for discharge of the Accused, The application was made
under section 175(3) of the Criminal Procedure and Evidence Act 1981
(CP&E). That is if at the close of the case for the prosecution,
the Court concedes that there is no evidence that the accused
committed the offence charged in the indictment or any other offence
of which he might be convicted thereon the Court may return a verdict
of not guilty. The application was opposed by Miss Mokitimi for the
of the said section of the CP&E the decision to discharge or not
to discharge is entirely in the discretion of the presiding officer.
Miss Mokitimi said that at the stage of the proceedings at which the
application is made the Court has to satisfy itself that regardless
of credibility, evidence exists on the basis of which the
might convict. In other words there should be evidence on the basis
of which the Crown can be said to have established a case in respect
of which the accused is called to answer.
Mokitimi said that the expression "no evidence" in the
section meant that there should be no evidence upon which a
reasonable man could convict. If the prosecution case does not attain
this level of "a prima facie case" the accused is entitled
to an acquittal at once. See R v SABILONE NALANA CRI/T/51/69
(unreported) by Jacobs CJ.
Monayko referred to the case of R v KRITZINGER AND ANOTHER 1952(2) SA
401 where Roper J, held that even if a judge:
"........considers that there is insufficient evidence he has a
discretion to refuse to discharge----if he thinks that the
prosecution case may be supplemented by the evidence of the defence."
comment is that it is a case in which there is insufficient evidence
that may be supplemented. Where there is sufficient evidence of prima
facie kind there cannot be any fear of the Crown case being boosted.
Mr. Monyako again referred to the work CRIMINAL LAW THROUGH CASES at
page 267 by the late Mofokeng J in which our case law was referred to
by quoting from REX v TEBOHO TAMATI RAMOKATSANA 1978(1) LLR 70 at
"The judge (though he sits with assessors) is the final arbiter
on the law and fact so that he is justified if he feels that the
credibility of the Crown witnesses has been irretrievably shattered,
in say to himself that he is bound to acquit no matter what the
accused must say in his defence, short of admitting the offence in
our High Court the judge is allowed more latitude than in systems
where a judge sits with a jury of if the assessors have a vote."
further at page 303 the learned author quoted as follows:
"Now at this stage of the proceedings the Court is not entitled
to approach the question of credibility on the same basis as when
considering the whole case. The sole concern is the assessment of the
evidence and in this regard there can be no warrant for excluding the
question of credibility."
general approach see R v TUMELO RAMOKHESENG AND ANOTHER CRI/T/36/99,
Molai J, 1/12/2000 pages 4-5. And finally defence Counsel referred to
SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE by Landsdown and Campbell -
Vol. V at page 519-520 where the authors say:
"In S v HELLER AND ANOTHER 1964(1) SA 525 "(W) Trollip J
expressed doubt as to the correctness of the view in KRITZINGER'S
case, that the court is entided to refuse to discharge the accused if
it considers that there is a possibility that the case for the State
may be strengthened by evidence emerging in the course of defence,
and in R v MALL(1) 1960 (2) SA 340(N) it was said that the accused
should not be put on the defence in the expectation that he might
provide the necessary corroboration Caney J said that would not be a
judicial exercise of discretion to refuse to discharge upon the
evidence of an accomplice where corroboration was required."
520 Kumleben J in S v OSTILLY is reported to have referred to the
emphasis in MALL'S case. On the question of discretion which is to be
judicially exercised he said:
"..... where there is no evidence which might reasonably lead to
a conviction, sound reasons must exist for nevertheless not granting
an application for discharge."
agreed that it has to be (for discharge of the accused) a situation a
reasonable man might convict. The whole situation was well
illustrated in the case
of S v
SHUPING 1983(2) SA 119 where Hiemstra CJ said:
" At the close of the State Case, when discharge is considered
the first question is;
there evidence on which a reasonable man might convict? if not
there a reasonable possibility that the defence evidence might
supplement the State case? If the answer to either question is yes
there should be no discharge.
great majority of cases questions of credibility do not play a large
role at this state of a trial. In S v MPHETHA AND ANOTHER 1983(4) it
was said that:
"If a witness gives evidence which is relevant....... then that
evidence can only be ignored if it is of such a poor quality that no
reasonable person could possibly accept it. This would really only be
in most exceptional cases where the credibility of a witness is so
utterly destroyed that no part of his material evidence can possibly
witness testimony has to be outrageous or absurd is one of those
characteristics of very bad evidence that lends itself to the above
to the facts of the case Mr. Monyako contended that the proceedings
showed a kind of a fight that is called "a free- for- all"
as a result of which a prima facie case could not be established.
Also brought under attack was the testimony of one Sankoela Ramphalla
(PW 1). Having warned ourselves that the ".....judge should not
pay regard to the credibility of the witness ...." it was
nevertheless worthwhile to look at the evidence of PW 1. This account
by the witness is very enlightening as to why I adopted the attitude
that the evidence at least of the witness was not one to be thrown
out as absurd or outrageous.
had asked one Maraling why he was assaulting the witness (PW 1).
After an insolent rebuff by Maraling the two engaged in a fight with
sticks. Accused had been standing by aside. Accused then came and
parried a blow (with his left hand) used by deceased intended for the
said Maraling. With his right hand Accused stabbed the deceased with
a knife. The deceased then moved towards the door while exclaiming
that he had already been stabbed. This is a story that on its face
reveals an offence or more. It might be at the end of the whole case
a lot of flaws will be exposed or on its basis a verdict of a lesser
offence might be returned.
obvious that on the principle enunciated above a reasonable man might
return a verdict of guilty if not on the charge but on any other
offence of which he would be liable.
application was accordingly dismissed.
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