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.

2

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

3

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