CRI/A/29/85
IN THE HIGH COURT OF LESOTHO
In the appeal of :
REX Appellant
v
'MACHARLES MOKETE Respondent
JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 4th day of December 1985
This purports to be an "appeal" by the Crown on a "case stated" in terms of the procedure laid down in s.73(7-11) of the Subordinate Courts Proclamation (No.58/1938 Vol.I Laws of Lesotho p.594).
What happened was this:- The respondent lady, Mrs. Mokete, was charged with causing grievous bodily harm to another lady, the complainant
Mrs. Hlophe. She appeared before a Senior Resident Magistrate (Mr. Lehohla) who after hearing evidence from a number of witnesses
acquitted her.
Mr. Kabatsi for the Crown says, but not on oath, that the prosecutor in the case reported to the office of the Director of Public
Prosecutions that the Senior Resident Magistrate gave one extempore reason for the acquittal, viz, that the medical evidence adduced by the Crown was contradictory or unsatisfactory and but for that he would have convicted, Mr. Kabatsi says, again not on oath, that he himself went to see the magistrate on this matter ana the magistrate confirmed what he said to the prosecutor in open court.
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Mr. Kabatsi, as a Senior Law Officer, thought, rightly or wrongly it does not matter, that as a matter of law, the Senior Resident Magistrate was wrong to acquit simply because the medical evidence was contradictory or unsatisfactory and requested the magistrate to state a case for the consideration of the High Court setting forth the question of law and his decision thereon and, if evidence has been heard his findings of fact, in so far as they are material to the question of law. The question was:
"whether in the circumstances of the above case the court was in law obliged to acquit solely because medical evidence was irregular or unsatisfactory or even not at all available all the other evidence before the court notwithstanding. In short, is medical evidence in a case like this a mandatory prerequisite before a verdict of guilty can be returned?"
Before the question was actually answered, and simultaneously, the Crown lodged notice of Appeal. Mr. Kabatsi says that he expected the magistrate to say precisely what he said in open Court at the time of the acquittal in the presence of the prosecutor, and what he told him in his Chambers later. In other words Mr. Kabatsi thought that Mr. Lehohla would say that in his opinion if the medical evidence is contraditory and unsatisfactory acquittal must follow. It would have been wiser for the Crown to get the answer to the case from the magistrate first before appealing. Be that as it may the magistrate did not in fact state a case but wrote a long winded judgment dealing, not only with the medical evidence, but with other evidence relating to credibility of the two main contestants. This stance was at variance with what the magistrate allegedly said to the prosecutor at the end of trial when acquitting and to Mr. Kabatsi later.
In my view at that stage it must have become obvious to the Crown that the case cannot be dealt with by way of appeal in
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terms of s.73 because, by implication, the magistrate denied that he said or implied that but for the medical evidence he would have convicted.
A question of law does not therefore arise until the question of fact, viz, whether or not the magistrate said he would have convicted but for the unsatisfactory medical evidence, is resolved first. This cannot be resolved without evidence at least in affidavit form. It will most probably necessitate viva voce evidence.
The "appeal" must accordingly be struck off. It may be, but it is a matter for the Crown to consider, that review could be appropriate proceedings to pursue.
CHIEF JUSTICE
4th December 1985
For Appellant : Mr. Kabatsi
For Respondent : Mr. Ramodibeli