CRI/A/40/89

IN
THE HIGH COURT OF LESOTHO

In the Appeal of :

MPHO KORO Appellant

V
R E X Respondent

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
20th day of 0ctober 1989.

The appellant who was the second accused in a trial for
assault with intent to do grievous bodily harm held before the
magistrate's
court Quthing was convicted as charged and sentenced to
a term of five years' imprison­ment.

The facts of the case are not strictly necessary to
narrate as I am of the view that the learned magistrate who presided
over the
proceedings gave a fair evaluation of those.

The only matter upon which my decision is anchored
relates to the fact that, as reflected in the record and later argued
before me
at the hearing of the appeal though never raised in the
grounds of appeal the appellant seems not to have been given the
opportunity
to cross examine P.M.2 even though P.W.2's evidence
directly implicates the appellant in the commission of the crime
which he was
charged with and ultimately convicted of.

In considering this the court invited the crown to

/say

-2-

say what the effect of such an irregularity is on the
entire proceedings.

The invitation was in view of the fact that the C.P. &
E. under section 329(2) of the 1981 Act says :

"Notwithstanding that the High Court is of the
opinion that any point raised might be decided in favour of the
accused, no conviction
or sentence shall be set aside or altered by
reason of any irregularity or defect in the record or proceedings
unless it appears
to the court of appeal that a failure of justice
has resulted therefrom."

Read with the High Court Act 1978 section 8(2).

The crown conceded that the form of irregularity
committed in these proceedings is not such as can be cured by mere
alteration of
the defect but by setting aside the entire proceedings.

Section 171 of the C.P. & E. is of relevance in this
matter. It reads :

"(1) Subject to sub-section (c) every person
charged with an offence is entitled to make his defence at his trial
and to have

the witnesses examined or cross examined "

I agree
with the learned counsel for the crown that the court is justified in
setting aside the lower court's verdict without hesitation
since no
conviction should ever be allowed to stand which is the product of a
discredited trial.

Among the procedural safeguards that this court drew
attention to some appear on p. 13 of CRI/A/37/88

R
vs Lehlohonolo Pulumo. This court relying on

S
vs Khanyile and Another 1988(3) S.A. 795 at 796

et seg emphasised the importance of the
excercised of a party's right to cross examine witnesses for the
other side.

This has not been observed in the court below,

/perhaps

-3-

perhaps by mistake but the end result is that the
accused's rights were violated.

In the result his appeal is upheld.

J U D G E.
20th October, 1989.

For Appellant : Mr. Nthethe For Crown : Miss
Nku.