IN THE HIGH COURT OF LESOTHO In the matter
THABANG HABAKA APPELLANT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 6th day of July, 1990.
For the Appellant : Mr. M.M. Ramodibeli
the Crown : Mr. S.P. Sakoane, Crown Counsel
The appellant was convicted by the Subordinate Court for
the Berea District of stock theft and was sentenced to five years'
There is in effect but one ground of appeal. The
appellant has filed an affidavit in which he deposes to the fact that
trial he was severely assaulted by members of a so-called
"Prevention of Theft Association", a form of vigilante
The group of individuals, he claims, also discharged a firearn
at him, some twelve times, apparently not with the intention of
him, but with intent to intimidate him and force him to
plead guilty at his trial.
This he eventually did, an attempt at vacillation on his
being net with glares of anger from the vigilante group,
who were present in court.
The learned trial Magistrate has also filed an
affidavit. He of. course has no knowledge of the appellant's claims
as to the vigilante
group's activities. He denies however that there
was any vacillation on the appellant's part and deposes that he
pleaded guilty from
The general rule as to the admissibility of fresh
evidence (even by way of affidavit) on appeal, is that an appellate
court will decline
to admit such evidence where it was available at
the trial. The contents of the appellant's affidavit were of course
the trial. The appellant has deposed however to the fact
that he was physically intimidated into pleading guilty and in
from revealing such to the court. It seems to me that it
would in the circumstances be a miscarriage of justice not to
contents of the appellant's affidavit therefore.
As to the allegation of assault, the Crown has
endeavoured to obtain an affidavit from the members of the vigilante
group. The learned
Crown Counsel Mr. Sakoane has informed the Court
that apparently no member of the group can be traced.
It may well be that the appellant has embellished the
facts in claiming that he verbally vacillated in court: he may have
so mentally, but both the learned trial Magistrate's
affidavit and the record weighs against the appellant. As to assault
trial however, the appellant's affidavit, as his learned
Attorney Mr. Ramodibeli submits, stands uncontested. While of course
affidavit has not been tested in any way, nonetheless I can see
no good reason for not accepting the particular evidence.
I wish it to be understood that I do not in any way seek
to set a general rule in the matter. Everything must depend on the
of each case, that is, as to whether any evidence, viva voce or
by affidavit, will be admitted on appeal. I say no more than that
the present case I consider that the court should act on the
I accept that the appellant was assaulted and physically
intimidated before the trial, causing him to plead guilty. The
Magistrate could not be expected to be aware of that
fact and quite clearly he would not have accepted the plea of guilty
been so aware.
In all the circumstances the appeal is allowed, the
conviction and sentence are set aside and I order that the appellant
before another magistrate.
Delivered at Maseru This 6th Day of July, 1990.
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