CRI/A/89/91 IN THE HIGH COURT OF LESOTHO
In the matter between:
POTSO CHAKELA 1ST APPELLANT
MAKHERANE LEMAKO 2ND APPELLANT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 16th day of April, 1992.
For the First Appellant : Mr. S. Mphutlane
For the Second Appellant : Mr. M.E. Teele
For the Respondent : Miss N. Nku, Crown Counsel
JUDGMENT Case referred to:
R v Turnbull & Ors. (1976)1 All E.R. 549;
Bereng & Ors. CRI/T/23/87, Unreported.
The two appellants were convicted with a co-accused (the
first accused) by the Resident Magistrate at Leribe, of assault with
to do grievous bodily harm, and were each sentenced to six
years' imprisonment. For convenience I shall refer to the first and
appellant as the second and third accused respectively. On
the 10th April I allowed the appeals and set
aside the convictions and sentences in respect of the
second and third accused; in the exercise of my revisional
jurisdiction I ordered
likewise in respect of the first accused. I
did so for reasons which now follow.
Mr. Mphutlane submits that the record does not indicate
whether the three accused pleaded to the charge. The charge sheet
that they did so, however, and that they all pleaded not
guilty. Mr. Mphutlane submits that such charge sheet is invariably
at the end of the trial. Quite clearly the entries for
"Judgment" and "Sentence" are completed at the
the trial, but there is nothing before me to indicate that the
plea was not entered on the particular date recorded on the charge
sheet. There is the presumption of regularity and prima facie the
record indicates that all three accused pleaded not guilty at the
commencement of the trial. That record has not been challenged.
Nonetheless I pause here to observe that the charge
sheet contains, apart from the charge itself, a summary of other
of which are dealt with more fully in the record as
such, namely the plea, judgment and sentence. It is customary to
record the plea
in the body of the record. I take this opportunity of
observing that it is a salutary practice for all Magistrates to
record as accurately
as possible, the actual words used by an accused
in pleading to the charge. This of course is particularly important
where the words
used amount to a plea of
guilty. As to the present case, while the body of the
record contains no entry regarding the plea, a plea of not guilty is
on the charge sheet and while I am not to be taken as saying
that such would suffice in all cases, I do not see that any
There is further difficulty however. On the date the
trial commenced, Mr. Mphutlane is not recorded as appearing - though
and that of the prosecutor is endorsed on the charge sheet.
That the charge sheet contains but a summary of the record, is
from the fact that Mr. Mphutlane's name is inscribed in the
space on the charge sheet under the heading "For Defence".
Quite clearly the space on the charge sheet is inadequate where there
is more than one accused, or indeed more than one legal
In such cases it is necessary, and in all cases it is
customary, and again a salutary practice, for Magistrates to make an
in the body of the record as to the names of the legal
representative and prosecutor. The importance of this aspect will
In the present case it was necessary to record Mr.
Mphutlane's appearance in the body of the record, and in particular
or accuseds he represented. That was not done. When the
first witness, the complainant, had given his evidence in chief, the
reads, "Cross-Examination by Mr. Mphutlane". Apart
from the entry on the charge sheet, that was the first reference in
the body of the record to the presence of
The complainant was cross-examined at length by Mr.
Mphutlane. When the cross-examination was concluded the witness was
by the prosecutor. Then followed a number of
At the adjourned hearing the record reads:
"Mr. Mphutlane: I am asking the court to start with
a civil application. I am moving now we will proceed with this case
Court: Mr. Mphutlane I understand your application is
urgent, but this has been long pending. I prefer to dispose of it
any case we have already called the accused in.
Mr. Mphutlane: If the court does not accede to my
request I will not proceed with this case.
Court: But the court will proceed. Mr. Mphutlane moves
Accused 1: We ask that this case be postponed until such
time when our attorney will be available.
Court:- We will proceed.
Public Prosecutor:- We ask the court to proceed because
the Attorney for the defence knew this date long time ago. I don't
Mphutlane has any reasonable grounds not to be before court
Court:- Do you want any other attorney accused or do you
want this attorney.
Accused answering together:- We will want the same
attorney not any other one.
Court;- We will proceed."
The second witness then gave his evidence. All three
accused declined to cross-examine him. The Court asked him three
third Crown witness also gave evidence. Again the
three accused declined to cross-examine him. There followed another
At the adjourned hearing there is again no record of any
appearance by a legal representative or the prosecutor. The fourth
witness, a doctor, was examined in chief -presumably by
the prosecutor. The record then contains a submission made by Mr.
the first indication that he was present in court. When
the doctor concluded his examination in chief, he was cross-examined
Mphutlane. He was not apparently re-examined and then the
Crown closed its case. The record then reads:
"There is a case for accused to answer.
Accused rights explained.
Accused 3 elects to remain silent.
Mr. Mphutlane;- I appear for accused 1 and 2.
Mr. Mphutlane;- There are witnesses whose evidence was
taken in my absence.
Court:- The application is not granted.
Court:- May I ask why you should re-appear before me in
this court without any apology.
Mr. Mphutlane:- I cannot apologise. 1 wanted to start
with that case and not this one and as the court told me it was not
take that case but this one I said I was not ready to
proceed with this case.
Court:- May I ask you why I should not ask you to
apologise before I hear you in this case.
Mr. Mphutlane: I cannot apologise.
Court:- Then if you cannot apologise 1 will not allow
you to appear before me in this case.
Mr. Mphutlane: I will not apologise the court can do as
it pleases. I have the right of audience before this court.
Court: But surely it is the presiding officer who runs
the court and not the counsel.
Mr. Mphutlane:- I will not apologise.
Court:- Then 1 will not hear any more in this case of
Accused 1 and 2 you have heard the election I have put
Accused elect to give evidence."
The first and second accused then gave evidence. When
the second accused had completed his evidence the record reads thus;
"Accused 3:- 1 was confused when I took my decision
because I knew Mr. Mphutlane was appearing on my behalf. When he said
was not appearing I was confused. 1 know 1 had not fully paid him
but he had agreed that he would still represent me. Now all of
(sudden) he said he does not appear for me. I would like to give
evidence as well."
The third accused then gave his evidence. Then followed
more adjournments. At the adjourned hearing the accuseds indicated
not wish to call any witnesses. Submissions were then made
by the prosecutor and by all three accused in turn. Judgment was
reserved and delivered on a subsequent
It proves convenient to first deal with a ground of
appeal raised by Mr. Teele, who appears on behalf of the third
accused, Mr. Teele
submits that the record indicates some confusion
as to whether or not the third accused was represented by Mr.
Mphutlane: if it was
the case that he was not represented, then the
third accused was not given an opportunity to cross-examine the main
complainant, which would amount to such an irregularity
as to lead to the quashing of his conviction.
It is unfortunate that the learned Resident Magistrate
did not record the appearance by Mr. Mphutlane in respect of each and
accused. The endorsement on the charge sheet is simply
insufficient. The record indicates throughout, however, a careful
the right of the accuseds to cross-examination of not
alone Crown witnesses but also defence witnesses, that is, the
themselves. I can only say that Mr. Mphutlane
must have initially informed the Court that he appeared for all three
would explain the need for the learned Resident
Magistrate to subsequently record that he was appearing for the first
Furthermore, during the course of the cross-examination
of the complainant, Mr. Mphutlane asked the complainant two
to him that, contrary to his evidence, the
third accused had not been present at all at a drinking place,
before the assault, in the company of the other two
accused. Those questions could only have been put to the witness on
of instructions received from the third accused. When it
came to the close of the cross-examination, I agree with Mr. Teele
the third accused's case was not put to the witness, but only
that of the first and second accused. All of the earlier questions
however were directed at suggesting that the witness simply did not
know who had assaulted him. In any event,the course of the
cross-examination was a matter for Mr. Mphutlane.
The third accused himself was clearly under the
impression that Mr. Mphutlane had represented him, which, combined
with the fact that
the learned Resident Magistrate was apparently
under the same impression, can only confirm the aspect that Mr.
Mphutlane must have
so informed the learned Resident Magistrate. This
is again confirmed by the aspect that the third accused said that Mr.
had "all of a sudden" said in effect that he did
not represent him, indicating a change of mind. While I appreciate
Mr. Mphutlane now represents only the second accused, nothing
has been said by Mr. Mphutlane in the course of this hearing to
that he did not inform the Resident Magistrate of his
representation of the third accused. On the papers before me I can
that Mr.Mphutlane did initially represent the third
accused. There was then no irregularity involved and this ground must
-9-Both Mr. Mphutlane and Mr. Teele then rely on the
Mr. Mphutlane's departure from the courtroom on the
second day of the trial. Mr. Mphutlane in the grounds of appeal for
accused, refers to his "expulsion" from the
Mr. Mphutlane informed this Court from the Bar that he
had been involved in another urgent matter before the learned
on the particular day, in which impounded cattle
were involved. Mr. Mphutlane obviously gave priority in the matter to
case. The matter of priority however rested with the
Court. Mr. Mphutlane was clearly not "expelled" from the
chose to withdraw. In this respect, while withdrawal may be
effected in any case, it is, in my experience, only effected in
cases with leave of the Court. While withdrawal may be
desirable in some criminal cases, e.g. where a clash of interest has
it is clearly undesirable in the vast majority of cases, due
to the grave inconvenience if not unfairness suffered by the accused.
The position therefore was that Mr. Mphutlane withdrew, and did so
without seeking the leave of the Court, and, it must be said,
due regard for the defence of his clients.
As to whether the learned Resident Magistrate should
have proceeded thereafter, it has been said that an accused is
entitled to representation
by a legal representative of his choice.
But, generally speaking, that right of representation can only refer
to a legal representative
who is available. In
the present case the legal representative had withdrawn
from the case, without seeking the leave of the Court, and I cannot
it could be said to be unjust for the Court to refuse an
adjournment to secure the attendance of the same representative.
Mr. Teele submits that in indicating to the accuseds
that they might engage the services of "any other attorney",
not stated that an adjournment would be granted to do so. I
cannot imagine what else could be implied from what the learned
Magistrate said. It amounted to this, that they could have
the services of "any other attorney", and clearly an
would be necessary if the accuseds decided on the latter
course. They declined to do so. Under the circumstances I cannot see
the learned Resident Magistrate had any option but to proceed.
Thereafter the fact that the accuseds declined to cross-examine the
second and third Crown witnesses was a matter of their own choice.
At the adjourned hearing, there is little doubt that the
learned Resident Magistrate displayed some indecision in allowing Mr.
to appear and thereafter cross-examine the fourth witness,
the doctor, before raising the aspect of such appearance. Mr.
submits that he was denied a right of audience. But that
ignores the fact that it was he who had chosen to withdraw from the
To do so without seeking the leave of the Court, in my
opinion, constitutes behaviour, and I wish to put it at its very
for an apology to the
Court. The failure, indeed the refusal to apologise only
served to exacerbate the situation and 1 cannot but see that the
Resident Magistrate was justified in declining to hear Mr.
Mphutlane thereafter. Indeed, it seems to me that the learned
Magistrate could only be criticized for his failure to deal
with such aspects immediately upon the court's sitting and before the
doctor had given his evidence. It might be said that having allowed
Mr. Mphutlane to cross-examine the doctor, he should have allowed
to continue to appear before him and perhaps deliver a suitable
admonishment to Mr. Mphutlane in the matter. That, I think, would
have been the better course. As matters developed however, and in the
face of Mr. Mphutlane's further behaviour, in his refusal to
apologise. I consider, as I have said, that the learned Resident
Magistrate was justified in declining to hear Mr. Mphutlane.
Much has been said about the right to representation by
a legal representative of one's own choice. Again much has been said
the legal representative's right of audience. That again is
trite. But that right is again qualified by the legal
very behaviour. It is said that the resulting trial
in this case was unfair. I do not agree. It is not every case in
which the accused
is represented, and yet justice is done, both in
the Subordinate Courts and in the Local Courts. Undoubtedly the
accuseds in the
present case failed to cross-examine two prosecution
witnesses, but they were given every opportunity to do so and I
see that the trial was
unfair. This ground must therefore fail.
I turn then to the other grounds of appeal. The
complainant testified that after leaving a drinking place, where the
had also drunk, but had left before him, he was
attacked by the three accused, armed with sticks and possibly a
sword, the third
accused being armed with a knife. He fell from his
horse and, while prone on the ground, was belaboured by the three
eventually left when two others approached.
One of those two others turned out to be the
complainant's nephew. They surveyed the prostrate complainant by the
light of a match,
but failed to recognize him due to the blood on his
face. They departed, leaving him on the ground. The injured
to a nearby house and was ultimately taken to the
police and then to hospital. He was admitted to hospital for four
days and was
Two questions arose, one of identification, that is, the
danger of honest mistake as to identification, and secondly the
of credibility. As to the first aspect, the Crown case
depended wholly on the correctness of identification of the accuseds
Crown witnesses, yet at no stage did the learned Resident
Magistrate warn himself of the special need for caution.
The complainant testified that the time of the assault
was about 6.30 p.m. to 7 p.m. His nephew testified that the time was
7.30 p.m. The learned Resident Magistrate observed
"We all know that in Summer 7.30 p.m. does not come
at dusk. There is nothing which wold give the court doubt that PW1
did not have the clear sight to see each of these
I very much doubt if one could take judicial notice of
the proposition advanced by the learned Resident Magistrate. In any
the time of 7.30 p.m. could only have been an approximation.
Even though it was summer time, it was clearly night time, as
there would be no necessity for the nephew to light a match
to view the prostrate complainant. Secondly, it was the nephew's
that he had gone to a neighbouring place to steal peaches,
when he witnessed the assault. It is hardly likely that he would
to steal peaches, other than in the dark.
The fact is, as I have said, that the nephew had to
light a match to view the face of his uncle. How then can it possibly
that the complainant could view his assailants clearly,
particularly as the encounter was of the "fleeting glance"
and he was under sudden and grave pressure, and indeed was
not fully conscious. He testified that he knew the accuseds well, but
then, as Lord Widgery C.J. observed in the case of Turnbull &
Ors. (1) at p,552 (quoted in R v Bereng & Ors. (2) at p.17
"Recognition may be more reliable than
identification of a stranger; but, even when the witness is
purporting to recognise someone
whom he knows, the Jury should be
reminded that mistakes in recognition of close relatives and friends
are sometimes made."
Again, the nephew was on his own evidence at a distance
of some 50 to 100 metres and I cannot see how his evidence of
lent any support in the circumstances. The quality of
the evidence of identification was poor. Under the circumstances the
Resident Magistrate should have looked for supporting
evidence. He did not do so. He did consider words allegedly spoken
assault by the first accused, which could be said to
betray his identity. But that evidence came from the complainant
not independent evidence and in any event gave rise to
the issue of credibility.
As to the issue of credibility, the learned Resident
Magistrate never addressed himself to that aspect. The complainant
that the third accused stabbed him with a knife, two or
three times, in the back. Yet the medical report indicates "bruises
all over the body", with "several wounds on head that
needed suturing". The particular doctor opined that a 'blunt
instrument' had been used. A second doctor, who admitted the
complainant to hospital, that is, after the wounds had been sutured,
opined in a report that the complainant had been "injured with a
knife on the chest, face and head". A third doctor however,
gave evidence, opined that it would not have
been easy for the second doctor, with the wounds
sutured, to give an opinion as to the nature of the weapon used. The
are therefore that a knife was not used. In any event,
there was no medical evidence of any stab wounds in the back.
testified that he was admitted to hospital for
four weeks. The medical report and the doctor's evidence indicates
that he spent four
days in hospital.
The evidence of the nephew is, to say the least of it,
suspect. His evidence that he was stealing peaches indicates relative
if not childhood. Yet his age, or for that matter that of the
other witnesses, is not stated on the record. The age of a witness
always relevant. In some cases it may prove to be of vital
importance. It is then requisite to record the age of all witnesses,
in all cases. In the present case, it may well be that the second
crown witness was of tender years. It may be indeed that the oath
should not have been administered to him, that is, without a proper
vozr dire. I simply cannot say.
In any event, his evidence that at a distance of 50/100
metres he observed that the first accused was wearing a red blanket
third accused a brown jersey, when he could not recognize his
uncle's face by the light of a match, a few feet, if not inches away,
cannot be true. He testified that he recognized the voices of the
three accused,yet he failed to recognize the voice of "the
horseman", his uncle. Again, I
cannot imagine how he could fail to recognize his
uncle's face, even if covered in blood, not to mention his general
form and appearance
There is the evidence of the complainant that he
recognized his nephew. Considering that the complainant was conscious
enough to crawl
to a nearby house, I find it totally unrealistic that
he was unable to communicate with his nephew and inform him as to who
him. Instead we have the evidence that the nephew and
the other simply left the complainant where he lay, and made no
effort to support
him or assist him to a nearby house. In all the
circumstances, the question arises as to whether or not the nephew
was ever present
at the scene. Indeed, as a young relative of the
complainant, considering the possibility of avuncular influence, he
must be regarded
as a witness with a possible interest to serve and
his evidence should have been regarded with caution.
As to the evidence of the accuseds, they testified that
they simply were not present at the scene. Nowhere in his judgment
does the learned Resident Magistrate recount, much less
assess such evidence, Nowehere does he apply the test as to whether
evidence might be reasonably possibly true.
The learned Resident Magistrate did not consider the
aspects of the Crown evidence to which I have referred. I am in no
that had he done so, he would inevitably have convicted
the accuseds. It would be unsafe to allow the
convictions to stand.
For those reasons I allowed the appeals therefore and
set aside the conviction and sentences in respect of the second and
In the exercise of my revisional jurisdiction I also
set aside the conviction and sentence in respect of the first accused
at Maseru This 16th Day of April, 1992.
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