CRI/T/2/2002

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

vs

ACRES
INTERNATIONAL LIMITED RULING AT CLOSE OF CROWN CASE

Delivered
by the Hon. Mr Justice M L Lehohla on the 18 day of April, 2002

The
accused an International Company contracted with LHDA as a
consultant/ contractor is charged in two counts with bribery details
of which are set out in the

2

indictment. The accused pleaded not guilty to both counts.

At the
close of the Crown Case spanning no less than one thousand two
hundred and sixty pages of typed pages of evidence Mr Alkema SC
learned counsel for the accused moved an application for the
discharge of the accused on grounds mainly that the prosecution has
failed to adduce evidence on the basis of which the accused should be
called upon to answer.

Mr
Penzhorn SC learned counsel for the Crown vigorously opposed this
application.

In my
ruling I will seek only to highlight the law applicable for making a
ruling one way or the other in applications of this nature. Reference
to local decisions based in part on decisions mainly from South
Africa would hopefully prove fruitful in this endeavour.

It is
important to note that this court is sitting with expert assessors.
Both counsel in their addresses made reference to their role in a
proceeding such as the instant one.

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Broadly
speaking the function of assessors in this Kingdom differs to some
extent from that of assessors in South Africa in that while in South
Africa Assessors can veto a judge on facts, in Lesotho such is not
the position.

The
position of assessors in Lesotho is governed by section 9(1) and (2)
of the High Court Act 5 of 1978 as follows:-

"9(1) The High Court may call to its assistance at any civil or
criminal trial or appeal not more than four assessors, whose duty it
shall be to give either in open court or otherwise, such assistance
and advice as the judge may require, but the decision shall be vested
exclusively in the judge.

(2) The agreement or disagreement of the assessor or assessors with
the decision of the judge shall be noted on the record."

Before
dealing in greater detail with the application in case law of
principles relevant to situations where the applications of this
nature are made, I wish to deal with a peripheral matter which might
be important since counsel urged the court from opposite directions
to deal with it, namely that the court need not give reasons for its
ruling on the one hand while on the other that it should do so.

Reference
to CRI/T/22/88 Rex vs Motamo Sehlabaka (unreported) at pag

4

shows
that this court when faced with the decision whether to make a ruling
without giving reasons or not resolved the issue by dismissing the
application and later at the final judgement phase incorporated in
that judgment the two grounds on which the application had been
refused. Those two grounds were extracted from Rex vs Herholdt and 3
others 1956 (2) S.A. where it was held that the test to be applied in
deciding either to grant or refuse such an application consists in
the view that if attendant circumstances

" might be such that a failure of justice could possibly result
if the accused person were to be discharged at the close of the
prosecution case even though (the prosecution) has failed to present
a necessary degree of evidence"

the
application should be refused; further that

" .....the test to be applied.... is not, whether there is
evidence upon which a reasonable man should convict, but, whether the
evidence presented by the prosecution is such that a reasonable man,
acting carefully, might properly convict"

Needless
to say I derived greater comfort from the last ground than the first
which in my view represents the Crown case at its barest minimum of
dependability.

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Before
harking back to previous decisions of the High Court I wish to
indicate that

in terms
of our CP and E Act 1981 section 175 (3):

"If, at the close of the case for the prosecution, the court
considers that there is no evidence that the accused committed the
offence charged in the charge, or any offence of which he might be
convicted thereon, the court may return a verdict of not guilty"

In
CRI/T/1/92 Rex vs Masupha Seeiso (unreported) at p2 this court cited
with approval the dictum of Caney J extracted form Rex vs Mall &
ors 1960 (2) S A 340 at 342 to this effect:

"There is much to be said for the proposition that if the Crown
fails to make a case, the accused is entitled to be discharged and
not be put on his defence to face the risk of being convicted out of
his own mouth or out of the mouth of a co-accused"

I am in
respectful agreement with this dictum.

I have
also had regard to the decisions where judges of this court sat with
assessors in applications of this nature.

In
CRI/T/51/69 Rex vs Sabilone Nalana (unreported) at P.2 Jacobs C.J as
he then was said:

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"Now it has been said in many cases that when considering an
application at the close of the Crown case the Judge should not pay
regard to the credibility of the witnesses and that his sole duty is
to consider whether the evidence advanced by the Crown, if believed,
might be sufficient to satisfy reasonable men that the accused are
guilty of the crime charged.

This is undoubtedly so where a Judge sits with assessors who are
joint triers of fact; but I am of the opinion that where the
assessors are merely sitting in an advisory capacity the Judge is
allowed a little more latitude and need not completely divorce his
mind from the question of credibility"

Another
decision which is to the same effect as the Nalana case above is Rex
vs Ramokatsana 1978(1) LLR p.70 at pp 73 - 4 where Cotran CJ, as he
then was, said:

"Furthermore, the Courts, it has been held, should not at this
stage embark upon a final assessment of credibility and should leave
that matter in abeyance until the defence have closed their case and
weigh the two together. In Lesotho, however, our system is such that
the Judge (though he sits with assessors is not bound to accept their
opinion) is the final arbiter on law and fact so that he is
justified, if he feels that the credibility of the Crown witnesses
has been irretrievably shattered, in saying to himself that he is
bound to acquit no matter what the accused might say in his defence
short of admitting the offence."

The Court
asked Mr Alkema as to what happens if it turns out that the accused
was put to his defence though there was not any case to answer, but
nonetheless virtually confesses to his commission of the offence. The
learned counsel, rightly, in

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my view
stated that the accused should be acquitted despite the confession.

Learned
counsel in this regard re-echoed the words of this Court in
CIV/T/260/99 Masupha vs Masupha (unreported) at P.2 to the following
effect:

"Thus then I find it fitting to indicate that at the close of
the plaintiff's case this Court refused to entertain an application
for absolution from the instance made on behalf...... of the
defendants. The Court having indicated that on the evidence before it
there was a strong case made on behalf of the plaintiff requiring the
defence side to answer .... But in exercise of their right and no
doubt through the advice of their counsel the defendants decided to
close their case without finding it necessary to answer the prima
facie case established on behalf of the plaintiff."

It is
thus important to note that unlike in a criminal case where the
existence of a, prima facie case against the accused does not
necessarily always result in a conviction even where the accused has
decided not to give evidence in his defence, in a civil case once a
prima facie case has been established it cannot be dispelled by the
defendant's silence. The rationale being that one of the most
important factors to take into account when refusing an application
for absolution is that there may be something that would strengthen
the case for the plaintiff emanating from the defence side even if
the court was wrong in finding that the plaintiff at the close of his
case had established a prima facie case. But in a criminal case a
prima facie case has to exist at the conclusion of the Crown case
before the accused can be called upon to answer. The importance of
this principle is amply illustrated by the fact that even if, when
called upon to answer where no case existed to require him to do so,
he confesses to the crime charged he would still be entitled to his
acquittal because the Crown would have ex hypothesi failed to
discharge the onus cast on it at the stage when its evidence did not
measure up to the standard required in a criminal case".

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Needless
to say the appeal to the Court of Appeal was turned down in that
court.

The words
of Mofokeng J in CRI/T/32/78 Rex vs Basotho Makhethe and 2 others
(unreported) at P13 are very appropriate. The learned Judge is
recorded as having said the following:

"It was argued that at the close of the Crown case that there
was prima facie evidence on which a reasonable court might convict
and that when the defence closed its case without leading any
evidence whatsoever, the prima facie evidence became conclusive
evidence. The position as I understand it is this: at the close of
the Crown case but before the defence has closed its case the
question to be decided is: is there evidence against the accused on
which a reasonable court might find the accused guilty. But when the
defence has closed its case without leading evidence, the question to
be decided is; has the Crown established the charge beyond a
reasonable doubt...."

It is for
the above considerations that I find to be proper, that I have grave
doubts whether reliance can properly be reposed in Rex vs Blom 1939
AD 188 at 202 - 3 which as the reading of the Judgement clearly shows
considerations pertinent thereto were at the stage where the defence
had closed its case.

The
simple view I take in a case based on circumstantial evidence is that
if

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there
exists evidence on the basis of which a conclusion is reached at the
close of the

Crown
case that a conviction might be secured then the application for the
discharge should be dismissed. The next question to ask at the close
of the defence case would be whether a verdict of guilty is the only
finding to return. If it is the only one to return then the accused
would be convicted. If it is not the only one then on the basis of a
plethora of cases including Blom above a doubt will have been shown
to exist and on that score the accused would stand to be acquitted.

In going
about this exercise the Court has decided not to engage in evaluation
of evidence but only confined itself to the applicable principles
elicited from the authorities supplied to the court by both counsel.
However in doing so, the court has been alive to the fact that it is
not a proper approach in a case based on circumstantial evidence to
treat the evidence on hand piecemeal, and seek to draw inferences of
guilt from each and every piece but rather that inferences should be
drawn from the totality of these separate pieces of evidence taken
together cumulatively at the close of the defence case.

The Court
paid particular attention to the warning given by Alexander and
Nicholson JJ in Case No :AR 627/96 Lawrence Trevlyan - Cresswell and
Another

10

vs The
State (unreported) from Pietermaritzsburg at pp 6 - 7 that:

" In the cause of filing his judgment the magistrate expressly
disbelieved the appellant. In my view this is undesirable. It is not
the practice in this court where an interlocutory ruling is to be
made which may have an adverse effect on an accused's willingness to
give evidence in the main trial to say so."

I would
therefore say that in the view I take of the evidence so far led and
the arguments advanced by learned counsel for both sides the
application for discharge ought to be refused. And it is so ordered.

My
Assessors agree.

M L
LEHOHLA

JUDGE

18 APRIL,
2002

For
Plaintiff/Accused : Mr S Alkema SC

: Mr W Geyser

: Mr T Matsau

For
Respondent/Crown : Mr G H Penzhorn SC

: Mr H T Woker