IN THE HIGH COURT OF LESOTHOIn the matter between:-
THABO SEMAYI.... . .. Appellant
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 21st day of July, 1989.
The appellant and one. 'Manthako Mosia (hereinafter
referred to as A1) were jointly charged with the offence of assault
to do grievous bodily harm, it being alleged that on or
about the 30th day of July, 1988 the said accused each or one or both
them did wrongfully and unlawfully assault Molibeli Taetsane by
hitting him on the eye with a bottle with intent to cause him
bodily harm. A1 pleaded guilty and the Appellant pleaded not
No separation of trials was made. At the end od the
trial the appellant was convicted and sentenced to five (5) years'
A1 was acquitted despite the fact that she had pleaded
guilty and had also given evidence that she assulted the complainant.
evidence was corroborated by one Potlako Mosala (D.W.3) who was
in the house at the time of the fight.
The appellant is now appealing to this Court on two
That the learned magistrate misdirectedhimself in
proceeding with the trial ofboth accused number one and
accusednumber two (appellant) while the formerpleaded guilty
and the latter pleaded notguilty, the fact which prejudiced
That the conviction was against the weightof the
evidence and was bad in law.
The complainant testified that on the 30th July, 1988 at
about 7.00 p.m. he went to the home of the appellant where beer was
sold. On arrival there he knocked at the door and the appellant
allowed him to come in. After he had entered he sat down. In the
house the appellant was in the company of A1 and another man he did
not know. They were all drinking beer. All of a sudden the appellant
and the stranger rushed at him and the former struck him on the left
eye with a bottle of beer while
the latter was holding him on the shoulder. At the time
of the attack he had not uttered a single word to the people he found
house. He had not had any quarrel with the appellant and A1 on
any previous occasion. He regularly visited the appellant's home
that is where he used to drink beer. The complainant deposed
that after the attack he bled profusely from the eye. The appellant
ordered him to get out and accused him of looking down upon other
He returned to his home and his mother (P.W.2) made
arrangements for him to be taken to Mapoteng Hospital. His eye was
found to be
completely destroyed. He denied that when he left for his
home the appellant accompanied him.
A1 gave evidence to the effect that on the day in
question she was. at the home of the appellant. She went outside to
pass water and
found the complainant standing at the corner of the
garden. She finished passing water and after she had pulled up her
complainant caught hold of her and tried to throw her to
the ground but she overpowered him and managed to escape She ran
house with the complainant hot on her heels. Even before she
reported to the people in the house what had happened, the
entered; he took off his overcoat and threw it away. He
caught hold of her again and a struggle followed till they both fell
During the struggle she found a bottle under the table and
struck him with it on the left eye. She
got out and reported to Ausi Nurse who came and asked
the complainant what the cause of the fight was. He did not reply.
She (A1) deposed that after the fight she went to the
chief's place but found that he was not there. She did not go to the
because while she was preparing to go there complainant's
brothers came and wanted to fight her.
The version of the appellant is the same with that of
A1. He does not know what happened outside but saw the struggle till
fell down. When they stood up A1 took a bottle and hit
complainant with it. He stood up and separated them.
The evidence of Potlako Mosala (D.W.3) is the same with
that of the appellant and A1.
The learned Resident Magistrate disbelieved the defence
evidence and pointed out a number of discrepancies in the defence
also blamed the defence for having failed to put their case
to the Crown witnesses.
Mr. Teele, counsel for the appellant, has
submitted that although section 170 of the Criminal Procedure and
Evidence Act 1981 gives the court
a discretion to order a separation
of trials when an application is made to that effect by the Crown or
the accused, the judicial
officer is entitled on the interest of
justice to raise the matter. (Swift's Law of Criminal Procedure, 2nd
Edition page 240). He
submitted that it is an established and prudent
practice to order separation of trials where a plea of guilty and
of not guilty are tendered in a joint trial and even
though no statute provides for it. A higher court will find an
prejudice be shown to have been caused by want of
In Swift's (supra) at page 242 the learned authors w
write as follows:
"A failure to follow this course is not per se
irregular (R. v. Matabele and another, 1947 (1) S.A. 710 (0), but it
is so if
prejudice to the accused has ensued as where the evidence
given by the accused pleading guilty is considered in reaching a
in respect of the cases against the other accused (R. v.
Fatshawa and Matluli, 1930 TPD 526."
He submitted that this position should be equally true
to a position where a judicial officer places emphasis on the
conduct of co-accused and the same is used to
convict the appellant. He submitted that in the present case A1 did
the complainant at all and then the learned
Resident Magistrate relies on authorities to the effect that it is
unfair to leave the
evidence of a party unchallenged and then ask
that his evidence be disbelieved (page 20 of the record) and that
failure of A1 seems
to some degree to have been visited upon the
appellant as well (see lines 25 - 29).
I do not agree with the suggestion that in arriving at
its decision the trial court used A1's failure to cross-examine the
to convict the appellant. A proper reading of the
record (page 20 lines 30 - 34) shows that the appellant is accused of
his own failure
to put his case to the Crown witnesses. There
is no doubt that the court a quo placed a very great
emphasis on the fact that the appellant failed to put his case to the
The appellant is not experienced in court procedures
and he is not legally trained. I say he is inexperienced in court
because it was said that he was a first offender. I am of
the opinion that by placing too much emphasis on failure to put the
case to the Crown witnesses the court misdirected itself on a
point of law.
In R. v. Jawke and others, 1957 (2) S.A. 187
(E.D.L.) it was held that it is undesirable, especially in criminal
proceeding in the magistrate's court, where
the persons appearing
often have little experience, to draw the conclusion that the
evidence of a witness is accepted as the
truth from a failure to
cross-examine unless this intention is clearly indicated.
In Phipson on Evidence, 7th Edition at page 460 the
learned author, quoting from the case of Browne v. Dunn, 6R.67 (which
is not available
to me) says:
"Failure to cross-examine, however, will not always
amount to an acceptance of the witness's testimony, e.g. if the
had notice to the contrary beforehand, or the story is
itself of an incredible or romancing character......."
In Rex v. Phaloane, 1980 (2) L.L.R. 260 at page
278 Rooney, J. said:
"I think it is unfortunate that the Crown witnesses
and in particular Motlaka were not given an opportunity of dealing
accused's version of the incident. It was certainly not the
duty of Crown Counsel to question the witnesses on the evidence given
by the accused at the inquest, as it could not be assumed that he
would adhere to that version at this trial. But, the failure to
his case does not in this instance imply an acceptance of the
evidence of the Crown witnesses although it may weaken criticism
of these witnesses. The evidence for the accused is entitled to
the same careful consideration as if the elements of the
defence case had been put to the witnesses for the crown."
In the present case the question is whether the trial
court gave a careful consideration to the appellant's evidence as if
of the defence case had been put to the witnesses for
the Crown. On page 21 of the record Lines 19 - 21 the trial court had
"It seems accused 2 agrees so because he merely
asks 'when you arrived you sat down' and the answer is "yes".
not follow that with any negative question."
This is a clear indication that the trial court treated
lack of experience or knowledge of cross-examination as an admission
the appellant accepted as true the evidence of the complainant
that he sat down after entering into the house. It is not correct
that the appellant accepted complainant's version. In his evidence he
explained how the complainant entered with the complainant
hot on her
heels and that immediately they entered they grappled with each other
till they fell down. It is very clear from appellant's story
that the complainant never sat down before the start of the struggle.
In his reasons for judgment the learned Resident
Magistrate has pointed out a number of contradictions in the evidence
of the three
defence witnesses as follows:
That the appellant said that he saw thecomplainant
pass near the window but he doesnot mention that he spent a long
time outsideafter he passed near the window.
That A1 does not mention that she at any stagesaw
the complainant pass near the window whileshe was in the house.
She merely says shefound him outside standing by the corner of
I do not think that the mere fact that A1 did not see
the complainant when he passed near the window indicates a
the evidence of the appellant and At. It is possible
that when complainant passed there, A1 was not looking in that
3. That the appellant says that when A1 enteredshe
sat down for some time before complainantentered. The other
defence witnesses give theimpression that there was no time for
her tosit down.
I agree that this is an obvious contradiction in their
evidence, but such-discrepancies are not unusual in a case in which
took place at night and in a quick succession-
The above three conflicts in the evidence of the defence
seem to be the only ones that made the trial court to reject the
story. In addition to that it came to the conclusion that
the appellant failed to put his case to the witnesses
for the Crown. I am of the opinion that the discrepancies were not
to the issue of appellant's guilt or innocence. The trial
court ought to have given a very careful consideration of the
story whether it was not reasonably possibly true. The
criminal standard of proof was set out by Greenberg, J. in R. v.
Difford, 1914 A.D. 370 at 373 as follows:
"..... no onus rests on the accused to convince the
court of the truth of any explanation which he gives. If he gives an
even if that explanation is improbable, the court is not
entitled to convict unless it is satisfied, not only that the
is improbable, but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of his explanation
true, then he is entitled to his acquittal."
Mr. Sakoane, counsel for the Crown, submitted
that in an appeal purely upon fact, an appellant court will not seek
anxiously to discover reasons
adverse to the conclusions of the trial
court. It matters not that the case against the appellant was a very
weak one or the appellant
court feels some doubt as to the
correctness of the decision. If there was evidence to support the
conviction the appeal will be
dismissed (Marcus Leketanyane v.
Regina 1956 H.C.T.L.R.1 at p.4).
In the present case the appeal was not purely upon fact.
I have said earlier in this judgment that by placing undue emphasis
by the appellant to put his case to the witnesses for the
Crown, the trial court misdirected itself on a point of law. I said
was nothing to show that it gave a careful consideration and
treatment of the appellant's story. So
the decision of the trial court was not based purely
I am of the opinion that the Crown failed to prove
beyond a reasonable doubt that the appellant's story was false. I
think this is
a proper case in which the appellant ought to have been
given a benefit of doubt and acquitted. His version was corroborated
points by two people who were in the house where the
fighting took place. The improbability of the complainant's story had
taken into account, that people with whom he had no quarrel
could attack him in the manner he had described. The possibility that
during the struggle he did not see who struck him had to be taken
In the result the appeal is upheld.
J.L. KHEOLA JUDGE
21st July. 1989.
For the Appellant - Mr. Teele For the Crown -
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law