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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