IN THE HIGH COURT OF LESOTHO In the matter
V SEKHOBE LETSIE
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 16th day of July, 1990.
For the Crown :Mr. G.S. Mdhluli, Director of
Public Prosecutions : Mr. N. Qhomane : Mr. S.P.
For the First Accused : Mr. L. Pheko For the Second
Accused : Mr. M.T. Matsau
Case referred to:
(1) S v Dlamini (1978)4 SA 917 LN.
As I see it, the wording of section 236(1) of the
Criminal Procedure & Evidence Act, 1981, as compared with that of
of the Criminal Procedure & Evidence Proclamation,
1938, clearly indicates that an accomplice is a compellable witness,
that he shall be compelled to answer questions tending to
incriminate him in respect of the offence charged at a trial, or
is the subject of a preparatory examination. That much is
I do nob see that there is any difficulty with
sub-section (2), of section 236, other than the use of the words
"subject to sub-section
(3)". The same wording was used in
the Criminal Procedure Act, 1977 of the Republic of South Africa. In
the 1977 Act the same
wording is used with reference to a subsequent
revocation, in a subsequent proceedings, of a discharge granted in an
The learned Attorney for the second accused, Mr.
Matsau, places some significance on the words, "the offence
As I see it, that is an omnibus phrase to cover the
words in sub-section (1), namely, "the offence alleged in the
a trial) or the subject of the preparatory examination".
In sub-section (3) there is specific reference to the
deletion from the record of the discharge of an accomplice witness.
can only be made after the witness has finished his
evidence: indeed in the case of S v Dlamini (1)
it was held at p.920 that it should be made at the end of the trial.
Sub-section (3) can therefore only refer to subsequent proceedings.
The reference to a "re-opening" of a preparatory
examination, indicates this. Further, the words, "the trial of
person upon a charge of having committed the offence concerned or
an offence disclosed by the preparatory examination", suggest
trial, after a preparatory examination, upon the charge which formed
the subject of the
examination, or which was "disclosed" at such
examination. There is no doubt however that the former part of that
could refer to a trial, that is following upon an initial
In any event, I am satisfied that an accomplice may be
compelled to be sworn and to answer incriminating
questions. Further, all that sub-section (3) enacts, is that if the
to be sworn, or to answer such questions, then any
previous immunity granted shall be taken away. Even if, as the
for the first accused, Mr. Pheko, submits,
sub-section (3) may also refer to initial proceedings, and I do not
agree that it does,
then it means no more than that the witness
cannot, in any event, be granted any immunity. In my view, however,
the wording of sub-section
(1) is quite specific and the present
witness is compellable as to being sworn, and as to answering
Delivered at Maseru this 16th Day of July, 1990.
B.P. COLLINAN CHIEF JUSTICE
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