IN THE HIGH COURT OF LESOTHO In the Matter of
SEHLOHO MZINE RULING
Delivered by the Hon. Mr. Justice B.K. Molai on the
19th day of September, 1986.
This is a ruling on whether or not the crown counsel can
be allowed to lead additional evidence at the trial after the
Examination has been taken.
On 4th September, 1986, during the course of this trial
the crown counsel applied for an adjournment to consider the
of making an application to call as a witness the
investigating officer who did not testify at the Preparatory
The application for postponment was not
opposed by the Defence counsel and the hearing was accordingly
postponed to 5th September,
1986, when the crown counsel sought a
further postponment to enable him to further consider the question of
applying for leave to
call the investigating officer who had not
testified at the proceedings of Preparatory Examination. The
application was again not
objected to and the hearing accordingly
postponed to 16th September, 1986.
When the hearing resumed on 16th Septebmer, 1986, the
crown counsel referred the court to page 8 of the typed record of
Examination proceedings, where the magistrate who
presided over the proceedings has noted the following:
"Under Sec. 273 of C.P.& E. the accused has
admitted in court that he has been arrested to the police at Mount
No. 2086 L/Nkholise."
2/ Whatever the
Whatever the magistrate meant, it was the contention
of the crown counsel that that amounted to the investigating
having given evidence at the Preparatory Examination
proceedings. Wherefor he (crown counsel) was entitled to call him as
in this trial.
It may well be correct that the accused did admit before
the magistrate at the Preparatory Examination proceedings that
been arrested by the policeman No. 2086, Nkholise of Mount
Moorosi police post and such admission may rightly be regarded
proven fact in terms of the Criminal Procedure and
Evidence Act, 1981 of which S. 273(2) provides:
"(2) An admission made by an accused or his
representative in his presence at a preparatory examination, which
presiding thereat noted on the record, may be proved
at the subsequent trial of the accused by the production, by any
the document purporting to constitute that record."
However, that does not, by any stretch of imagination,
mean that the admission by the accused person amounts to thy
testifying at the Preparatory Examination and he can,
therefore, be called to give evidence in this trial without much ado.
witnesses who testified at the Preparatory Examination
proceedings have their depositions recorded in the record, and
names are listed in the index, thereof. No. 2086, Nkholise,
features nowhere. If he were to testify in this trial, No.2086,
(assuming he is the investigating officer contemplated
by the crown counsel) would, in my opinion, be an additional witness
called to do so after the Preparatory Examination had been taken.
Now, in Rex v. Phokojoe Rampine and Another CRI/T/ 59/78
(unreported) Mofokeng J. had this to say on the issue:
"A practice has grown up whereby the crown makes
application to lead additional evidence at the trial, but then
are cogent reasons why such evidence was not led during
the preparatory examination. In such circumstances, provided
notice, to which
the intended evidence is annexed, is served on the
defence counsel and he is given sufficient time to consult with
and prepare his defence in view of the altered
circumstances and there is no objection, it is usually granted at the
I entirely agree. In the instant case no cogent reason
have however been advanced why the investigating officer had not been
to testify at the Preparatory Examination. Indeed, as has been
pointed out earlier the crown counsel takes the view that for the
reason he has given there is not even a need to make application for
leave to lead the evidence of the investigating officer. I am
to agree with such view.
From the foregoing it is obvious that in my view the
calling of the investigating officer in the trial will amount to
calling an additional
witness after the Preparatory Examination has
been taken. The crown counsel cannot be allowed to do so unless a
has been made and served upon the defence counsel
in good time to enable him to weigh his next move in the light of the
The question I have earlier posted viz.
whether or not the crown counsel can be allowed to call at the trial,
a witness who did not
testify at the Preparatory Examination must, in
the circumstances of this case be answered in the negative.
B.K. MOLAI, JUDGE.
19th September, 1986.
For Crown : Mr. Mokhobo For Defence : Mr. Kambule.
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