HIGH COURT OF LESOTHO
by the Hon. Mr Justice M.L. Lehohla on the 26th Dav of April, 2001
Ntlhakana I have stated that this matter is CRI/A/7/2001 Motsamai
Tsotang vs Rex. My Orderly has announced the name of the appellant
three times on the public address system and he has reported that
there is no response; there also doesn't seem to be any attendance by
grounds of appeal seem to have been prepared by Mr Snyman an attorney
of this Court, but as it is I mean the court has been waiting for
well over 20 minutes now, and the matter has got to be dealt with one
way or the other, and I have given three alternatives, viz, to
proceed with the case as it stands; alternatively to have it
alternatively to have it struck off for non-prosecution by the
Much as I
agree with you that there doesn't seem to be merit in the appeal
whereupon one would have been inclined to proceed with the case, I
nonetheless think that the appellant should be given an opportunity
not by postponement, but rather if the matter is struck off for
non-prosecution, in which case it is almost the same as dismissing
the appeal, but for the fact that should he want to tell the court
why the matter should be proceeded with at his leisure and why he was
not here, then if his reasons are good it can be reinstated and
proceeded with. Otherwise the effect of the order that I am making,
namely of striking the matter for non-prosecution by the appellant is
of letting the highest water-mark hold sway. The highest water-mark
being the Magistrate's order and his findings plus the sentence
imposed. So I opt for that one.
struck off for non-prosecution by the appellant.
Appellant: No Appearance
Respondent: Ms Ntlhakana
matter between :
RAMMONNENG M. MABOLOKA
by the Honourable Mr. Justice T. Monapathi on the 19th day of April
rulings have been made which were harbingers to the instant one when
now we have dealt with and completed the evidence of PW 12 Detective
Police Officer Nkune. The first ruling was that of the 12lh December
1995. The second was the 28th June 2000. The last was that of the 4th
has before this Court been made to the following documents (first
lot) various by witnesses at the Preparatory Examinations: 1.
Original Current Account Credit Slip of 15/07/91 marked exhibit 1 at
Current Account Credit Slip of 17/08/91 marked Exhibit "J"
Copy of bank statement of 29/6/91 marked Exhibit "G" at
Bank Statement of 30/09/91 market "H" at PE.
personal cheque no 209622 marked "E" at PE.
of cheque no. G 1101190 for Ml8,646.63 marked Exhibit "A"
following (second lot) had after the disappearance of original
documents from the PE record been made into photostat copies that
were subject of the inquiry which resulted in the of the 12th
December 1995. They were:
No. 102688 for amount of M14,363.30.
voucher No. 70/102688 for M14,363.30.
No. 102914 for amount of M14,688.96.
voucher No. 70/102914 for amount of M14,688.96
voucher No. 70/101190 for amount of M18,646.63.
be clear therefore that from the first lot only item 8 was not an
original and the evidence born out by the different witnesses was
that even at the PE that document was in a photostat copy state. That
is why the inquiry of the ruling of the 12th December 1995 did not
refer to it because although it was a photostat copy it had not
disappeared and as said before it had all along been in that state.
documents of the second lot have not been admitted as exhibits
although they have only been referred to as IDs (Identified
documents). The primary reason was, if one looked at the last two
rulings, that since they were photostat and they are not
automatically evidence for the purpose of this trial.
ought to be handed by a person who knows about their origins. I have
already ruled that that person in the present Crown Counsel Mr.
Lenono. I forgot the number of times reference was made to this in
this proceedings that the best thing to say is that this is now
beyond doubt. We need to be reminded that the last witness PW 12 (Sgt
Nkune) was disabled from handing in these documents as exhibits
because he was incompetent to do so. Although he was able to recall
and recite the nature of the original documents and their contents
that was all he could do.
last day of hearing but one and after completion of evidence of PW 12
Mr. Lenono the Crown Counsel stood up to say that he was going into
the witness box to be sworn as a witness and to give evidence about
the origins of the documents in the second lot. And that he would
speak about the circumstances that led to their existence within a
view to ultimately handing them in as exhibits and for that purpose
only. That was why the Court ordered Counsel to make submission in
view of the fact that Mr. Mahlakeng had objected to the intention by
Mr, Lenono to testify. This was a question which the Court was
competent to decide in terms of Section 218 of the Criminal Procedure
and Evidence Act 1981 (CP & E).
Lenono submitted that the general law on competency of witnesses was
that everyone was a competent and compellable witness unless
expressly excluded by the law. He bolstered his argument by making
reference to Section 215 of the CP&E which says that:
"Every person not expressly excluded by this Act from giving
evidence is competent and compellable to give evidence in a criminal
case in any Court in Lesotho or before a magistrate on a preparatory
it was the intension of the legislature to exclude any category it
could have stated so. By implication it permitted that which it has
observed that in other jurisdictions a clear policy is that of
preventing only judges and jurors from testifying in cases they are
trying except in certain specified situation. The Rule 605 of FEDERAL
RULES OF EVIDENCE, proscribed judges and jurors from testifying. This
case of UNITED STATES v FRANKENTHAL 582 F 2nd 1102 (7th ac. 1978) is
quoted for the view that: "The judge acted properly in that case
in admitting the evidence and and instructing the jury that Judge's
testimony was to be used only to assess the defence witness
credibility and not as evidence against the accused. (My emphasis)
find it difficult to argue that one does not led to the other. Again
Mc CORMICK ON EVIDENCE at page 146-146 paragraph 68 "Judges and
Juries" says that:
"----According to the third view to which support in growing,
that a judge is incompetent to testify in a case which he is trying
seems the most expedient."
being is that in none of the jurisdictions of a tradition similar to
our own are public prosecutors prohibited from testifying in the case
which they are involved in.
Lenono argued a fortiori that public prosecutors and Crown Counsel
are not expressly excluded as witnesses in their own cases in terms
of the CP&E. That if such were the intention of the legislature
it could have ben stated in very clear and unequivocal terms. It
stood to reason as submitted that since the procedural statute
contained no hindrance against a prosecuting Counsel to testify in
cases in which he is prosecuting no impediment ought to be assumed.
This was so more especially
matter was not a matter of substance but of a formality. And
therefore strictly speaking such testimony not intended to assist in
assessing the credibility of a defence witnesses nor being evidence
against the accused and therefore not being prejudicial.
sought to persuade the Court that such was the absence of any
hindrance that as long as it was in the interest of justice one would
see no hindrance. This was so even in any of the jurisdiction which
shared the same tradition with onus. Learned authors L H Hoffman and
D Zeffert in SOUTH AFRICAN LAW OF EVIDENCE (4th Ed) when dealing with
competency of: Persons concerned in judicial proceedings at page 378,
and with reference to prosecutors say that: "The prosecutor is
not an incompetent witness." According to the learned authors,
the safeguards should be that such a prosecutor should give his
evidence from the witness box, after having been sworn and subjected
to cross examination if any. In this regard Counsel reference was
made to the cases of: R v BECKER 1929 AD 167, R v MAHOBE 1898 KWLR
50, R v MAKEBE 1942 OPD 162, R v NIGRINI 1948 (4) SA 955 (C), R v
DUNGA 1939 CPD 10, R v KIRSTEN 1950(3) SA 659(C). In addition HJ May
in his book SA CASES AND STATUTES ON EVIDENCE, Juta & Co (4ed)
when dealing with competency as witnesses of public prosecutors as a
"There is no unvariable rule rendering Counsel in a cause
incompetent as a witness in that cause - Middledorp v Zipper 1947(1)
SA 545 (SR) however understandable it may, be when he has to give
evidence on matters involving credibility." (My emphasis)
impression is created as to matters over which it would be improper
to testify. My own reason would be firstly that it would be against
public policy. Secondly it would be prejudicial. I do not see how it
would ever be counter balanced by reason of interest of justice which
to my mind is the most predominant
thereafter made reference Peter Murphy in: A PRACTICAL APPROACH TO
EVIDENCE (3rd Ed Backstone press page 391 where he expresses the
English Legal position as follows on the point in issue.
The general rule of English Law is that all witnesses are both:
"Competent and compellable, a rule justified by the need to make
available to the Court, as far as possible, all relevant and
admissible evidence which may assist in determination of the issues.
At common law, this consideration was counter balanced, and probably
more counterbalanced, by the emergence of an important body of
exceptional cases in which various witnesses were held not to be
Lenono asked the Court to note that the exceptions alluded to by the
learned authors are the same as those found in Part XII of the CP&E.
Mahlakeng for the two Accused submitted that in the special
circumstances of the present case it may not be proper for the Crown
Counsel who is prosecuting to give evidence. With this he towed an
incongruent reference to the Crown having "led evidence of a
witness who purported to hand in photocopies." I thought the
attempt by Mr. Lenono was a logical step following on the Defence's
success of their objection on PW 12's attempt to put in the photostat
copies. Without prejudging the attempt by Mr. Lenono this was
dictated by the circumstance that had disabled PW 12 from putting in
the photostat copies namely the disputed documents, were not those he
dealt with at the PE. In addition they had never been in PW12's
possession and custody. That is why more by reason of necessity, by
way of speak the Crown Counsel sought to enter into the fray.
Mofokeng J as author of HANDBOOK FOR JUDICIAL OFFICERS at page 7 made
an apt reference to a public prosecutors as a minister to the truth.
In this he emphasised the duty and obligation of a public prosecutor
to search for and promote the truth in a case which he is handling
even if the truth favours the Accused which facts he must not
divulge. I agreed with Mr. Mahlakeng that, as he submitted as a
matter of truth it is highly undesirable for him to give evidence in
the case he is prosecuting.
it was dangerous and unwise to give the meaning of "undesirable"
other than to mean: "what is not advisable". That is to
remove an impression that there is a sweeping or wholesale
prohibition of a prosecutor giving evidence in cases he is
prosecuting. I have already referred to two aspects that should
circumscribe this seeming or apparent embargo. Firstly, it should not
be in matter of substance and credibility of witness in which event
there would clearly be prejudice against the accused person.
Secondly, it must be in the interest of justice. Thirdly there must
be special over exceptional circumstances.
sentiment that expresses the high duty and responsibility of the
public prosecutor is to be found as expressed by the learned authors
Gardner and Landsdown in their work: CRIMINAL PROCEDURE VOL. 1 (6th
ED.) At page 400 where they say:
"It is his function (the public prosecutor) to present the
matter to Court fully and fairly to conduct the case with judicial
discretion and a sense of responsibility not merely as desiring a
conviction but an officer of the Court charged with the serious duty
of assisting the Court to arrive at the truth."
once again the accurate assessment of the duty of a public prosecutor
that the authors of THE SOUTH AFRICAN LAW OF EVIDENCE (supra) state,
"The prosecution has a duty to the Court to present its case
with fairness to the accused, and this will be difficult where the
prosecutor is a witness particular if he is also a complainant."
harps back to the question of what is undesirable. From above
quotation the authors are prepared to give a rider that "particularly
if he is a complainant" and not more. I observe that it cannot
be said in the instant case that the prosecutor is a complainant.
Mahlakeng answered that the issue was not the competence or the
incompetence of the Crown Counsel to testify. The issue what was
proper and desirable for the proper administration. It went back to
the question of whether what is undesirable is what is prohibited or
whether it is not advisable in certain circumstances not to do a
thing that is in issue. Proper administration of justice is a broad
concept in meaning and otherwise. I thought the real test was what
was in the interest of justice.
have been was useful however to illustrate cases which have decided
that the competence of the prosecutor as a witness notwithstanding,
the Court have frequently said that it is highly undesirable that he
should give evidence. First of all I thought the defence was on
unsteady ground once it admitted that a prosecutor was a competent
witness. What is it that remained? While accepting as a general
proposition that for Counsel to testify in the case he is prosecuting
is undesirable is it the end of the story that in all cases any
prosecutor will not testify because that it is undesirable.
Undesirable may mean that it is
"unwanted, unwelcome, unwished for, unasked, uninvited,
the legislature dealt fully with the problem by not saying that other
spelt out others are not incompetent? That a thing is undesirable is
not always a complete answer.
same way that a Registrar of Companies is "authorized to reject
a name which in his opinion is undesirable and that he can order a
company to change its name for that reason that he has a wide
discretion in deciding whether or not a particular name is
unacceptable. (See KREDIET BAND VAN SUID AFRIKA BPK v REGISTRAREUR
VAN MATSKAAPY EN ANDNRE 1978(2) SA 644(W) at 651 D-N. See DEUTSCHE
BABCOK SA (PTY) LTD v BABCOK AFRICA (PTY) LTD 1995(1) SA 1016 at 1022
B-C. The Registrar in exercising his discretion will go further and
decide if such similarity has of a name which is undesirable
"has the effect to deceive or mislead the public.........".
I have to
determine whether that the matter of the Counsel's testimony can only
amount to a mere formality and is not a matter of substance and the
Accused will not be prejudiced. Once I had done so I only remained to
consider if it is in the interest of justice to allow Counsel to
testify. It is the same light and against that test that I would not
be persuaded by the following cases from which Counsel for defence
has sought support.
was R v BECKER 1929 AD 167. In that case de Villiers ACJ at
quoting Petterson J in STONE v BYRON said:
"I think when an Attorney appears as an advocate and makes a
speech to the jury and cross examine the witness on the other side
and address the jury in reply and afterwards tender himself as a
witness/or his own client, it is not consistent with the proper
administration of justice that he should be heard. (Counsel's
Mahlakeng made reference to the second case being REX v DUNGA 1939
CPD 7 at
page 10 where Davis J is reported to have said:
"Except in the matter of a mere formality, it is highly
undesirable that a person appearing to conduct a prosecution should
become a witness int hat case."
of R v MAHOBE 1898, 19 WLR was therein quoted with approval. In
R v DUNGA
(above) it was further stated that:
"To attempt to get over this difficulty by allowing the
prosecution to make an unsworn statement from the bar is not very
undesirable but grossly irregular."
reference was made to R v NAKEDIE 1942 OPD 162 when Van den
is reported to have said:
Where the prosecutor in a criminal case functions also as an
investigating officer, delator and principal witness as in the
present case which came on appeal from a magistrate court it is
difficult to see how he can prosecute the accused person with that
detachment and moderation which is in accord with the high tradition
of prosecution at the public instance in this country."
fourth was R v NIGRINI 1948(4) SA 995 per de Villiers AJA at 996 when
"I need no more than endorse those judgments as expressing my
own view of what is a most extremely undesirable practice."
it was R v KIRSTEN 1950(3) SA (3) SA 659 per Ogilvie Thomson the
"In the present case such an additional reason obtained since as
is well known, it is generally recognized to be highly undesirable
that a prosecutor should give evidence in a case wherein he is
himself conducting the Crown case."
basis of these cases Mr. Mahlakeng submitted that this Court may
objection and curb what is generally recognized as an extremely
highly undesirable practice.
when looking at the above case easily observe that on the facts they
all cannot have been on all fours with the instant case. In addition
and alternatively except in R v BECKER (supra) one does not know what
were additional considerations besides the objection which appear to
be a general one and on principle. The reference in R v BECKER to
proper administration of justice is however unhelpful and nebulous.
It could mean the interest or welfare of a witness in a case (See S v
MOTHOPENG 1979(2) SA 180 (TPD)) or the convenience of the Court
presiding officer or general Court administration. In connection with
R v DUNGA (supra) I have already determined that it was not a matter
of substance or credibility or towards assessment of evidence that
Mr. Lenono sought to testify.
in the instant case show that witnesses have testified in reference
to these documents that are sought to be forwarded as exhibits. They
are copies of those original documents which would have regularly
been forwarded but for their disappearance after completion of the
PE. Mr. Lenono is reported to have made copies of those documents
available as PW 1. PW 2 and PW 3 have testified. It can only be in
the interest of justice that Mr. Lenono should testify as to the
circumstances and originals of the documents. I regard this as a mere
formality that is referred to in R v DUNGA (supra).
Defence objection should therefore fail.
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