IN THE HIGH COURT OF LESOTHO
In the matter between:
Before the Honourable the Chief Justice Mr. Justice B.P. Cullinan on the 11th day of April, 1988.
For the Crown : Mr. S. Mdhluli, Crown Attorney
For the Accused: Miss M. Ramafole
Cases referred to:
R v Kumalo (1) (1916) AD 480
R v Mokoeno (2) (1932) OPD 79
H v Abdoorham (3) (1954)3 SA 1G3 (N)
R v Sikumba (4) (1955)3 SA 125
R v Kritjinger (1952)2 SA 401
R v Mkize (1960)1 SA 276
R v Mall & Ors. (1960)2 SA 340
Practice Note (1962)1 All E.R. 448
The learned Counsel for the defence Miss Ramafole submits that the prosecution, at the close of its case, has not established a prima facie case. She points to the fact that the only eye-witness of the alleged assault upon the deceased by the accused has been declared by the Court to be a hostile witness. Further, she submits that even if the evidence of the hostile witness is accepted,it establishes no more than that the accused acted in self-defence.
The latter submission represents but one view which might be taken of the witness' evidence. As to the probative value of
the witness' evidence, the learned Crown Attorney Mr. Mdhluli submits that the cogency of the evidence of a witness declared hostile is a matter of fact, and that the fact that the witness has been discredited in some respects does not preclude the Court from accepting his evidence on a particular point; see R v Kumalo (1).
While I accept this proposition, Miss Ramafole points to the provisions of section 238(1) of the Criminal procedure & Evidence Act 1981 which, generally speaking, enable a Court to convict "on the single evidence of any competent and credible witness". Miss Ramafole stresses the use of the word "credible" in the sub-section. In this respect she refers to the following dicta of De Villiers J.P., concerning similar provisions in section 284 of the Criminal Procedure Act No.31 of 1917 of the Republic of South Africa, on which indeed the provisions of section 238 are based, in the case of R v Mokoena (2)' at p.80:
'Now the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction by sec.284 of Act 31 of 1917, but in my opinion that section should only be relied on where the evidence of the single witness is clear and satisfactory in every material respect. Thus the section ought not to be invoked where, for instance, the witness has an interest or bias adverse to the accused, where he has made a previous inconsistent statement, where he contradicts himself in the witness box, where he has been found guilty of an offence involving dishonesty, where he has not had proper opportunities for observation, etc., etc."
I respectfully observe that that dictum could only be construed in its widest sense. I cannot see that the learned Judge President was seeking to lay down a categorical rule with respect to the different situations enumerated. Indeed Broome J.P. in the case of R v Abdoorham (3),decided
in the Natal Provincial Division, observed at p.165 that:
"This proposition has been followed in many subsequent cases but none of them in this Court. I am very doubtful whether, as a proposition of law, it is correct. And, in any case, I regard it as entirely unhelpful. The Court is entitled to convict on the evidence of a single witness if it is satisfied beyond reasonable doubt that such evidence is true. The Court may be satisfied that a witness is speaking the truth notwithstanding that he is in some respects on unsatisfactory witness."
Mr. Mdhluli submits that in any event the dictum of De Villiers J.P. only refers to the single-witness situation. He submits that apart from the evidence of the hostile witness in the present case, there is evidence aliunde incriminating the accused. 1 agree with that submission. 1 consider it undesirable at this stage to comment on the nature or the probative value of such evidence.
The prosecution is not called upon to prove its case beyond reasonable doubt at this stage, but to make out a prima facie case. The test to be applied is whether on the evidence a reasonable tribunal, acting carefully, might but not necessarily must convict; see R v Sikumba (4) at p.129, and R v Kritjinger & Ors. (5) at p.402.
Section 175(3) of the Criminal procedure & Evidence Act 1981 reads as follows:
"(3) If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the charge, or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty."
All of the South African authorities on the similar . provisions of section 157(3) of the Criminal procedure Act 1955, indicate that the Court has a discretion in the matter, which must be exercised judicially. The balance of such authorities indicate that the Court's discretion arises not from the use of the word "may", but from other sources; see R v Mkize (6), R v Kritjinger (5) and R v Mall & Ors. (7). It will be seen from the provisions of sub-section (3) above that the Court "may" acquit the accused of the offence charged where there is "no" evidence that he committed such offence. It seems to me that this is an instance where the word "may" is used in a mandatory sense, that is, as meaning "shall". The sub-section indicates that where it cannot be said that there is "no" evidence, that is, where there is "some" evidence that the accused committed the offence, he must be put on his defence.
It seems to me therefore that the Court's discretion arises from two sources. First of all, there is the use of the words, "If .......... the court considers .........": the word "consider" in itself imports the aspect of discretion. Where however the court "considers" that there is "no" evidence that the accused committed the offence, then it seems to me that it is incumbent upon the Court to acquit the accused. Secondly, the Court's discretion arises where it considers that there is "some" evidence that the accused committed the offence. All of the South African authorities again indicate that evidence which is manifestly unreliable, . such that no reasonable tribunal, acting carefully, could possibly convict thereon, does not amount to "some"evidence on which the Court can rely. To put it another way, a Judge or Magistrate would not be exercising his discretion judicially if he were to put the accused on his defence on such evidence.
I observe that this view is in accord with that held in England and other Commonwealth countries: see e.g. the Practice Note (8) issued in the Queen's Bench to justices on 9th February, 1962, the contents of which are now of general applicability.
As for the evidence in this case, there is the evidence of a hostile witness: I have already made general comment thereon. There is also evidence aliunde. As I have said earlier, I consider it undesirable to comment on the evidence at this stage. Taking the evidence as a whole, I consider that were the accused at this stage not to give or to adduce any evidence to the contrary, a reasonable tribunal, acting carefully, might but not necessarily must convict the accused. I rule therefore that the prosecution has made out a prima facie case.
Delivered at Maseru this 11th day of April, 1988.
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