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C of A
(CRI)10/91

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

TSEHLA
BELEME

v

REX

Held at
Maseru

coram:
Mahomed P

Browde J. A.

Kotze J. A.

JUDGMENT
Kotze.
J.A.

The
appellant was found guilty on a charge of the murder of Makhalema
Sejanamane by Kheola J and assessors and sentenced to death.
Two eye
witnesses Khongoanyana
Khongoanyana and Mofokeng Mpapa directly
implicated the appellant. But they were thoroughly unsatisfactory
witnesses. They both
suggested that the appellant shot the deceased
with a gun - evidence which was manifestly false in as much as the
cause of death
was a head injury viz. a depressed fracture of the
skull caused by a blunt object used with great force. The trial
court's unanimous
finding was that these two witnesses

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were
unreliable, that they did not tell the "court all that happened"
and that they participated in the killing of the
deceased. No
reliance whatsoever can be placed on the evidence of these two
witnesses.

The
testimony of a third witness, Mamontseng Setsomi, who claimed to have
seen the appellant in the vicinity of the spot where the
deceased met
his death, lent some support to the Crown case. But her evidence too
was unsatisfactory and the trial Court rightly
found it "hard to
believe".

In the
result the only remaining evidence in support of the Crown case
consists of a confession allegedly made by the appellant
to
magistrate Jane of Thaba Tseka on 30th January 1990. He testified
that on that day the clerk of the court brought the appellant
to him
and left the two of them together. He duly warned the appellant that
he was in the presence of a magistrate, that he could
speak frankly
without fear, that if he made a statement it would be reduced to
writing, that it "would" be used against
him, that he need
fear nothing and that he could speak frankly. Furthermore the
appellant assured Mr. Jane that he had not been
assaulted, that he
had not even been handcuffed and that he had made an earlier
statement similar to the one which he was about
to make to the
police. He stated he wished to repeat the

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statement
because "that is what I did". In reply to a question
whether he expected any benefit should he make a statement
he replied
"what I expect is to be released so that
I will be called on
the date of trial". The statement which he then made to the
magistrate is a brief one. It reads:

"We waylaid this man Makhalema Sejanamane. I was with other two
people, we assaulted him until he died. We left him when he
was dead.
That is all."

Mr. Jane
testified further that the appellant confirmed the confession by
placing his right thumb print thereon.

The
confession was handed in without a "trial within a trial"
having been conducted as to its admissibility despite counsel
for the
defence having intimated at the commencement of the trial that the
appellant "says he signed this
confession while he was at the
Charge Office. So it necessitates for the calling of the Magistrate
before the confession can be
handed in". Immediately after the
handing
in of the confession counsel for the defence somewhat
belatedly announced that the appellant would "challenge the
admissibility
of the alleged confession." After this
the
magistrate was cross-examined at some length during which
inter alia:

(a) he denied a suggestion put to him that

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the appellant "never went before [him] to make a confession"
nor that he appended his thumb print in his presence';

(b) he explained that he took the thumb print because the appellant
claimed to be illiterate;

(c) he averred that the confession was voluntarily made even though
in answer to the question "do you expect any benefits
should you
make a statement?" he replied that he expected to be released in
order to attend the trial; and

(d) he conceded that possibly the expectation of being released might
have induced him to make the confession.

In
dealing with the question of the admissibility of the confession the
learned trial Judge states "it seems to me that in
the present
case the crucial question to be decided is not whether the confession
was freely and voluntarily made but it
is whether [appellant] ever
appeared before the magistrate and made any confession". In thus
limiting the matter to be

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decided
the learned Judge erred. Two questions called for decision viz. (a)
Did the appellant in fact make the confession and (b)
if he did, did
he do so freely and voluntarily as required by Section 228(1) of the
Criminal Procedure and Evidence Act No.9 of
1981. Question (a)
presents no difficulty since after the close of the defence
case
the court called the evidence of a finger-print expert which
established that the right thumb print on the confession was that
of
the appellant.

Question
(b) supra is not equally clear. It is significant that the appellant
told magistrate Jane that he made an earlier statement
to the police
and that he expected
to be released in the event of making a
statement. It seems to me that this is a feature of the case which
called for deeper investigation.
By taking up the attitude that
"the
crucial question to be decided is not whether the
confession was freely and voluntarily made" the learned trial
Judge closed
his mind to the injunction of sec. 228(1) of
the
Criminal Procedure and Evidence Act which requires proof
beyond reasonable doubt that the admissibility of a confession is
entirely
dependant upon it having been freely and voluntarily made.
In keeping with the traditions of most civilized legal systems the
system
of this Kingdom sets its face against the concept of
convicting a man out of his own

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mouth
unless to do so is without risk of committing an injustice. Once the
appellant told the magistrate that he believed that the
reward for
making a statement would be his release and regard being had to the
magistrate's frank concession that he could not
deny that the
appellant was indeed induced thereby to make the confession it was
incumbent upon the magistrate to enquire whether
this hope did not
spring from suggestion by a member of the police force when he made
his first statement. Likewise the learned
trial Judge should have
enquired into this possibility. In the absence of this having been
done I am of the view that the Crown
has not it discharged the strict
onus which rests upon of proving beyond reasonable doubt that the
confession was made freely and
voluntarily. A statement made in the
hope that it will lead to release from incarceration is not a free
and voluntary statement.
It follows, therefore, that once the
confession is excluded as it should have been, no evidence remains on
which to base a conviction.

In my
view the appeal succeeds.

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the
appellant is at least entitled to the payment of salary after the
dismissal of her appeal. This too appears to be without substance

since there seems to be no ground for a finding that the appellant
should be in a better position vis-a-vis the
respondent after the
dismissal of her appeal (which had the effect of finally confirming
her conviction) than she was when the appeal
was still pending. In
any event there is no evidence on record that she proffered her
services to the respondent after the appeal
was dismissed and she
cannot therefore reasonably expect to be paid for work she not only
did not perform but which she did not
even tender to perform

for the
above reasons I am of the view that the appeal should be dismissed
with costs.

J. BROwDE

JUDGE OF
APPEAL

I agree:

I MAHOMED

PRESIDENT

I agree:

G.P.C.
KOTZE

JUDGE OF
APPEAL