C. OF A.
(CRI) NO.8 OF 1997

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

REX

v

SEHLOHO
JOSEPH MAPHERI

Held at:

MASERU

Coram:
Steyn P.

Browde AJA.

Kheola CJ.

JUDGMENT

STEYN P:

This is
an appeal by the Crown against a decision by the High Court (Mofolo J
presiding) in which it found the Respondent (hereinafter
referred to
as the accused) not guilty on a charge of murder and acquitted him.
The crown has appealed against this decision on
the ground that "the
prosecution had proved the guilt of the Respondent beyond a
reasonable doubt...."

2

It is
common cause that the deceased died as a result of a stab wound in
the chest. The principal issue before the High Court was
whether it
was proved that the accused was the person who stabbed the deceased
and, if so, whether he was guilty of murder or of
any lesser offence.

For this
purpose the crown introduced evidence via two routes. The first was
by virtue of a reliance on certain admissions made
on behalf of the
accused at his trial. The second was via certain viva voce evidence
recorded at the hearing before the High Court.

The crown
called a W.O. Lelala who gave the viva voce evidence which is set out
below.

A
preparatory examination had been held. After Lelala's evidence had
been adduced, the evidence of two witnesses, being PW1 and
PW4 at the
preparatory examination, was read into the record pursuant to an
admission made by counsel for the accused on his behalf.
Neither of
these two witnesses implicated the accused as the person who stabbed
the deceased. The court also recorded that counsel
for the accused
admitted "the post-mortem report and the medical report"
both of which were read into the record.

The
hearing was then postponed to a later date. The trial Judge says in
his judgment that on this latter date "Mr Lesuthu (counsel
for
the accused) admitted

3

the
evidence of PW2, PW3 and 5 and the depositions having been read into
the record were admitted as evidence". This procedure
was
adopted with the objective of "converting" these
depositions into admissions in terms of Sec. 273(1) of the Criminal

Procedure
and Evidence Act (the Act).

P.W.2 in
his deposition described a drunken brawl which had taken place on and
outside a bus during which the deceased had been
stabbed. However the
witness does not in his deposition identify the deceased's assailant.
P.W.3's evidence at the preparatory
examination also purported to
describe the events (I say purported, because the evidence like that
of P.W.I was poorly recorded,
confusing and contradictory). The
witness does however state clearly and unequivocally that she saw the
accused stab the deceased
"on the chest with the knife".
She (the witness) had seen the deceased carrying the knife at the
entrance of the vehicle,
and she described the knife as one with
"blades on either side".

In his
deposition P.W.4 also describes the events. Concerning the assault on
the deceased, the witness says the following: "When
deceased was
straightening from Violet" (a woman who had been involved in the
brawl that took place), "accused stabbed
him into the chest".
However his description of the events differs in material respects
from that of P.W.3. The narrative
of each one of the witnesses is
full of contradictions and the details in their respective versions
of the events are not only
confusing but in conflict with one
another.

4

It is
clear from the evidence above that many people were armed, with
knives, a knob kierrie and a "pick shaft".

However
on an acceptance of the depositions as proof of the facts alleged
therein, it would have been established that it was the
accused who
had stabbed the deceased on the chest with a knife. The admitted
medical evidence was to the effect that the deceased
had died as a
result of such a stab wound.

The oral
evidence referred to above was given by the witness W.O. Lelala
referred to above. He said that he saw the accused only
after the
events described above. He had been assaulted and the police officer
interviewed him upon his discharge from hospital.
He cautioned him
and asked him for an explanation about the knife Exh.l. The accused
responded by saying that the knife was the
one "he had used to
stab the deceased".

In
cross-examination counsel for the accused asked the witness: "Did
you ask the accused why he stabbed/killed deceased".
The answer
was the following: "Yes. He said he didn't know since he was
drunk".

The
record then reads as follows:

Counsel: "Accused will deny giving you such an explanation".

Answer: "He will be wrong".

Counsel: "He will deny that the knife is his."

5

Reply : "He said it was his".

Counsel: "He will deny stabbing deceased."

Answer: "He will be wrong because he told me it was the knife he
used to stab deceased." (emphasis added)

This was
the crown case. The accused testified. He admitted having been on the
bus. He was seriously assaulted on the bus and "found"

himself in hospital. He denied ever stabbing anyone neither did he
have any knowledge of the knife. He alleged that he was falsely

implicated.

In
cross-examination it was put to him that his evidence was in conflict
with the admissions made on his behalf. He then made it
clear that he
did not admit such evidence and that the admissions were not made on
his instructions. He assented to the proposition
put to him by Crown
Counsel that his legal representative had admitted evidence without
any instructions from him.

It is
clear from the presiding Judge's reasons for judgment that there was
considerably more cross-examination directed at the accused
than
appeared on the court's record before us on appeal. According to the
record as transcribed, the cross-examination was confined
to
questioning him on why he made such admissions. When the accused
persisted in his denial of the evidence admitted by his counsel,
Ms
Nku who appeared for the Crown said that: "I am leaving
everything to the court since you are changing your evidence and
you
are

6

wasting
everybody's time".

According
to the judgment, the following additional evidence was elicited in
cross-examination:

"(In) Cross-examination by Ms. Nku for the Crown the accused
said he did not know how it came that so many people came to
court to
say he had stabbed somebody nor could he say why these people were
picking on him. As for Sgt. Lelala (P.W.I) he could
not say why he
says he gave him a knife for this was untrue. He had not known
deceased. He first heard of the deceased on being
arrested because it
was said he had killed somebody. He reiterates he does not take
liquor to date. It was not true he was drinking
from a quart. He says
it is wrong to drink because it interferes with ones duties. Because
he does not take liquor he was sober
all the time. He was not aware
that 'Mapeete (P.W.2 at the P.E. and P.W.3 herein) had said he had
stabbed the deceased and thereafter
sat at the steering wheel. He had
not seen accused straightening. Nobody had ever said to him why do
you stab me nor did he go
on drinking beer. He says he is not aware
that evidence of 'Mapeete (P.W.2 at the P.E.) was admitted.

The witness further testified under cross-examination that ever since

7

being discharged from hospital he had incessant headaches; he had
also developed falling sickness; his headaches come before or
after
falling. He denies that his headaches are caused by lying. He says
the evidence that he has stabbed has been admitted.

By Assessor Mr. Ramoseme: He had not taken liquor at any time. When
the fighting took place he was in the coaster and he was in
the
coaster when he was assaulted.

By Assessor Mr. Khoboko: He was from Zebedia, boarded the bus at
'Makhoroana bound for Mapoteng where he lives. He was assaulted

whilst in the bus. At Mapoteng he went there to help his uncle with
odd jobs like loading and off-loading sand; they used a tractor
for
the purpose. He was sending messages home to Mapoteng. At Zebedia he
had not had a tiff with anybody and he was surprised when
people fell
upon him and assaulted him. This had taken him much aback. He had no
time to report to his chief for he was in hospital
and from there to
the police station in Teyateyaneng.

By Court: He says he cannot say whether there was any reason to stab
deceased nor does he know why they said he had stabbed deceased.
He
agrees he was see in in the coaster."

8

None of
this evidence appears in the record. However, in view of the
conclusions we have come to as a matter of law, it is not necessary

to decide whether the judge's record of this evidence can be accepted
for the purpose of deciding this matter.

The court
a quo analysed all the evidence adduced before it. Quite rightly it
pointed to the numerous contradictions, inconsistencies
and
unsatisfactory features of the evidence of the witnesses whose
evidence had been read into the record. The court says that
it is
"baffled" by this aspect of the matter and could find no
explanation "why these witnesses are not saying the
same thing".

The
learned Judge then comes to the conclusion that the "Crown
evidence is conflicting in material respects and this Court
is not
prepared to take the risk of believing it in all respects".

The Court
then proceeds to deal with the weight to be attached to the
admissions made on behalf of the accused. It refers to "the

provisions of Section 273(1) of the Act. The presiding Judge analyses
some of the South African cases dealing with a similar provision
in
their Criminal Code. The court then comments as follows:

"S. v. Mjoli and Another, 1981 (3) S.A. 1233 at 1247 A - B per
Viljoen, J.A. is quoted as authority to the effect that 'sufficient

proof has been judicially interpreted not to mean 'conclusive

9

proof thought he same case at 1247 - B - C it is said an admission
formally made by, or on behalf of, an accused, is that an admitted

fact 'virtually becomes conclusive proof against him—and any
effort by him or on his behalf to adduce evidence countervailing
such
fact would be inconsistent with his having made the admission'. With
respect, this would depend on whether the evidence was
admitted 'as
proof of the truth of the contents therein' and whether the defence
had admitted it as such. Moreover, the question
would also arise as
to its uncontantious and unequivocal nature."

The
learned Judge goes on to say:

"Admissions (made in) evidence can be seen as a two-wedged (sic)
sword likely to slash the homologator or the crown. Ms Nku
has
bitterly complained that by admitting the evidence and turning
midstream to deny it or as was said above countervailing the

admission, this has placed the crown in an invidious position for the
crown is incapacitated to react to accused's stance and therefore
the
crown was prejudiced. I could not disagree more for in its best
interest and mindful of the fact that it behoved the crown
to prove
its case beyond reasonable doubt, the crown could have preferred
leading evidence other than timidly succumbing to the
dictates of the
defence."

The Court
then concludes as follows:

"There was considerable melee at the bus stop and there were too
many flaws in the Crown evidence resulting in too many 'buts'
and
'ifs' making it dangerous and unsafe to convict quite apart from the
fact that the admitted evidence is in no way conducive
to a verdict
of guilty.

This court finds it as a fact that it cannot be said that having
regard

10

to the circumstances of this case it can be said that the Crown has
proved its case beyond reasonable doubt. Accordingly, the accused
is
found not guilty, he is acquitted and discharged."

Ms Nku in
her argument before us, challenged the correctness of this finding.
She contended that the Court a quo erred in its approach
to the
evaluation of the weight to be attached to admissions made by the
accused and its questioning of such evidence being proof
of the truth
of the contents thereof. She was particularly concerned that
admissions deliberately made could unilaterally be withdrawn
and that
an accused could with impunity contradict such an admission when
testifying.

She also
contended that the evidence was clear in material respects
-particularly the evidence that sought to establish that the
accused
stabbed the deceased.

Mr
Lesuthu submitted that by admitting the evidence the accused did no
more than admitting "that (the) witnesses who were to
be called
were going to say exactly what they said at the preparatory
examination. By such an admission we did not admit to the
truth of
the depositions".

If what
counsel admitted on behalf of his client were "admissions"
this contention cannot be sustained. If an admission
is made freely
and voluntarily any fact so admitted is in terms of Sec. 273
"sufficient evidence of such fact".

11

However
the procedure adopted by the crown, facilitated by defence counsel
and accepted by the court, in reading the evidence into
the record in
an attempt to convert such evidence into admissions in terms of
Sec.273( 1) appears to be not only inappropriate
and ill-advised but
may also not have achieved the desired objective. I say this for the
following reasons:

Sec.
173(1) of the Act provides as follows:

"Every criminal trial shall take place, and the witnesses shall,
save as is otherwise expressly provided by this Act or any
other law,
give their evidence viva voce, in open court in the presence of the
accused unless he so conducts himself as to render
the continuance of
the proceedings in his presence impracticable, in which event the
court may order him to be removed and may
direct the trial to proceed
in his absence."

This
section is identical to the provisions of Sec. 156(1) of the then
(prior to 1977) operational Criminal Code in South Africa.
The Court
of Appeal in South Africa in S v Nzuza 1963(3) 631 (A) specifically
held that the provisions of this section are peremptory.
The court
says that the "...section decrees that witnesses shall give
their evidence viva voce and (that) the only exceptions
made are
those expressly allowed by statute. It follows that the appellant
could not by his consent validate the invalid procedure
adopted by
counsel for the prosecution in the present case". (By reading
the depositions at the preparatory examination into
the record).

12

This
approach was subsequently endorsed by the Appeal Court in South
Africa in S. v. Mokgeledi 1968(4) 335 (A). At p.337 [H], Botha
JA
says the following in this regard:

"Though the admission of a fact made by or on behalf of an
accused person is in terms of sec. 284 (1) of Act 56 of 1955
sufficient
proof (see R. v V., 1958 (3) S.A. 474 (G.W.) At p. 479) of
that fact in criminal proceedings, it can never in such proceedings
be evidence, which in terms of sec. 156(1) of the Act is required to
be given viva voce by th witnesses in open court in the presence
of
the accused. (S. V. Nzuza, 1963 (3) S.A. 631 (A.D.) At pp. 634,
635)."

In 5. v
Serobe 1968(4) SA 420 (A) and at p.426 [A] - [F] the same Court held
as follows:

"It is, of course, clear that, save as is otherwise expressly
provided by Act 56 of 1955 (see for example sees. 243 and 284
(1)),
evidence in a criminal trial is, in terms of sec. 156 (1), required
to be given by the witnesses viva voce, and that the
evidence of a
witness taken against an accused person at a preparatory examination
is not admissible in evidence against him at
a subsequent trial, even
with his consent. (S. V. Nzuza, 1963 (3) S.A. 631 (A.D.)). The
evidence given against the appellants at
the preparatory examination
by Robert Tsimane and the other witnesses referred to above, could
not, therefore, have been properly
admitted as evidence against them,
even with their consent, at the subsequent trial before the Court a
quo.

13

There can, however, in my view be no objection to the admission, in
terms of sec. 284 (1) of Act 56 of 1955, of the facts recorded
in the
evidence of a witness given against the accused person at a
preparatory examination, as proof of those facts, though not
as
evidence thereof. There is nothing in Act 56 of 1955 which precludes
such a procedure, nor does the judgment in Nzuza's case,
supra,
disapprove thereof. What that judgment disapproves of, is the
admission of evidence given at a preparatory examination as
evidence
at the subsequent trial, otherwise than in accordance with the
provisions of Act 56 of 1955. (See p. 635 of the report).
Care
should, however, be taken in regard to the form in which the facts
recorded in the evidence of a witness given at a preparatory

examination is admitted at the trial in terms of sec. 284 (1) as
proof of those facts, for if the evidence given at the preparatory

examination is by consent admitted at the trial, albeit for that
purpose only, the procedure would be open to the objection that
the
evidence given at the preparatory examination was in substance simply
admitted as evidence at the trial in conflict with the
provisions of
Act 56 of 1955. In order to prevent confusion and uncertainty as to
he procedure actually adopted, and to obviate
such an objection, it
would be desirable in all such cases to record the facts admitted in
terms of sec. 284 (1) without specific
reference to the evidence
given at the preparatory examination."

See also
S v Thomo and Others, 1969 (1) SA 385 (A) where at 387 [F] -388 [F]
Wessels JA says the following:

"In the preceding paragraph I referred to the fact that certain
facts were "admitted" at the trial. In terms of
sec. 284
(1) of the Criminal Code an accused may "admit any fact relevant
to the issue" and such admission "shall
be sufficient
evidence of that fact". Since the purpose of making admissions
of facts is to dispense with the need

14

to call evidence to prove those facts, the reference to "evidence"
is inappropriate unless it is understood to mean "proof.

The Court then analyses the evidence and concludes as follows:
"Unless care is taken in the precise formulation of admissions

of relevant facts in terms of sec. 284. uncertainty could arise as to
what fact an admission was intended to relate to. The apparently

increasing practice of recording admissions in terms of sec. 284 by
"reading into the record" evidence given at a preparatory

examination and accepting that as "proof of the contents thereof
is to be discouraged (As to this, see S. v. Serobe and Another,
1968
(4) S.A.420(A.D.)Atp.426C-F). (my underlining) However, in the
present case the appeal was argued on the basis that the defence

intended making admissions of the relevant facts to which the
witness's evidence related, and I need, therefore, say no more about

the matter."

Like the
court below I could find no provision in the Act which - unlike in
South Africa - has sought to validate the procedure
of converting
written depositions made at a preparatory examination into "evidence"
at a subsequent trial before a superior
court. Nor has counsel
submitted that there are such legislative provisions on the statute
book.

It
appears therefore, on an acceptance of the correctness of the South
African authorities referred to above, that the only manner
in which
facts recorded as evidence at a preparatory examination can be
admissible at a subsequent trial is, if those facts are
recorded as
facts admitted, without specific

15

reference
to the evidence given at the preparatory examination. (See S. v.
Serobe above at 426).

However
that may be, this case is a prime example of the inadvisability, if
not the illegality, of the procedure adopted.

The
irregularity of the proceedings was compounded by the fact that
counsel for the defence must have intended, when admitting the

evidence of witnesses who had testified at the preparatory
examination that the accused had stabbed the deceased, to convey to

his colleague and to the court that this fact was not in dispute. It
was of course open to the accused to give evidence that the
stabbing
took place in e.g. self-defence or in the defence of the life of
another passenger on the bus. It was however quite improper
to admit
the depositions knowing that your client would contradict a key
element common to both statements involved.

Therefore,
once it appeared that there was no intention to admit this vital
fact, the trial Court should in my view have enquired
as to whether
the decision to admit the evidence at the preparatory examination was
indeed made voluntarily by the accused and
was made in accordance
with his instruction to his Counsel. To have proceeded with the trial
without any such enquiry was in my
view irregular.

16

Mr
Lesuthu in the course of his oral argument refered us to a decision
of the High Court in R v Foromane (unreported), reference
CRI/T/73/88
dated the 26th of June, 1989.

In that
case, as in the present case, all the depositions made at the
preparatory examination were admitted by the defence. These

admissions were then accepted by the Crown. The Court said that in
terms of Section 273(1) of the Act these "depositions became

evidence..,.". The Court then went on to say the following:

"It will be remembered that according to the crown witnesses'
depositions, which were admitted by the accused, at the time
the
accused stabbed the deceased, the latter was just sitting on his
stool and not in any way attacking him. It was contended in
argument
that once they had been accepted by the crown, the accused's
admissions formed part of evidence and become binding on
the accused
person who could not be allowed to resile from them."

"I am unable to agree with this contention which is dangerously
too wide in its implications. The depositions admitted by
an accused
person may include statements which are contradictory of one another.
As it was pointed out by the Court of Appeal in
Bernard Sepanya vs
Rex - C. of A. (CRI) No. 3 of 1977 (unreported) at p.6:

"It is, of course, quite clear that statements which are
contradictory of one another cannot both be true...in the
circumstances.
The appellant's counsel...intended to admit...the
truth of all the evidence........other than any statements made
thereat which
were contradictory to one another."

17

The
learned Judge then says:

"True enough, in the present case there is no question of
contradictory statements in the depositions initially admitted by
the
accused. What happened is that after he had admitted all the
depositions made at the Preparatory Examination proceedings, the

accused went into the witness box and testified on oath that at the
time he stabbed the deceased, the latter was attacking him
with a
stick. He was, so to speak, withdrawing that portion of the
admissions which stated that at the time he stabbed the deceased
the
latter was sitting in his stool and not in any way attacking him."

The
learned Judge then referred to a sentence from the 2nd Ed. of
Hoffmann and Zeffert The South African Law of Evidence in which
the
learned authors say:

"There is no authority dealing with the circumstances in which
formal admissions made in Criminal proceedings may be withdrawn.
In
principle there seems no reason why this should not be allowed at any
time before verdict...."

The
conclusion which the court came to is the following:

"It seems to me, therefore, where the accused, having admitted
the depositions made at the Preparatory Examination, goes into
the

18

witness box and, so to speak, withdraws part of the admissions he has
made by denying the correctness thereof he is, on principle,
entitled
to do so and the court cannot simply dismiss him on the ground that
he initially admitted all the depositions made at
the Preparatory
Examination."

With
respect, I am constrained to disagree with this conclusion.

In the
first place the Court of Appeal in the Sepanya case was clearly
dealing with a situation where contradictory statements are
made and
it is not clear which one of the statements had been admitted. That
was not the case in R v Foromane above. The same is
true in the
present case. The statement that the deceased was stabbed in the
chest by the accused is not contradicted by any of
the witnesses
whose depositions were read into the record.

In the
latest Edition of their work The South African Law of Evidence (4th
ed.),the authors say the following at p.173:

"Formal admissions are made in order to dispense with the need
for evidence on the matters which they cover and are binding
on their
maker."

At p.433
the learned authors refer to S v Nzuza (supra) and point to the

19

introduction
of Sec. 141(3)(b) in the Criminal Code in south Africa the effect of
which was to neutralize the impact of the Nzuza
decision.

They then
go on to say:

"A formal admission is made for the purposes of particular
proceedings and is only binding in those proceedings. But it is
a
statement made by or on behalf of the accused, and can therefore be
proved against him in other proceedings like any other statement
he
may have made. The difference is that in the proceedings in which it
was made the formal admission is conclusive, but in other
proceedings
it is open to the accused to explain it away. The same is true of a
formal admission which has been withdrawn. The
fact that such a
statement was made remains an item of evidence against the accused
which the court is entitled to consider, although
it may carry little
or no weight if the accused has a satisfactory explanation for why it
was made."

Clearly
an accused can withdraw an admission formally made and can do so if
he can show that it was not freely and voluntarily made
or where e.g.
the admission is equivocal and ambiguous and uncertainty arises as to
what was admitted. However, an admission precisely
formulated and
formally made by an accused or on his instructions, and which is
clear and unambiguous, is binding on such an accused
and cannot - in
the absence of an acceptable explanation - be withdrawn.

20

Insofar
as the judgments in the High Court in this matter and in R v Foromane
are to be read as holding otherwise, they were wrongly
decided.

In S. v.
Nzuza (1) cited above - (and see also S. v. Nzuza(2) 1962(4) 856(A))
- it was held that the proceedings conducted in the
same manner as in
this case, were irregular. In this regard, Hoexter J.A. says the
following p.635 (H) to 636 (B):

"In the result the evidence given at the preparatory examination
was not evidence at the trial and the appellant was, in effect,

convicted on no evidence at all. The appeal must accordingly be
allowed and the conviction and sentence set aside.

Counsel for the State argued strenuously that the matter should be
remitted to the trial Court to be tried afresh. In my opinion
the
present case is similar to that of S. v. Moodie 1961 (4) S.A. 752
(A.D.), in that there has been so gross a departure from
established
rules of procedure that the appellant has not been properly tried.
Indeed, in the present case the appellant was, in
effect, never tried
at all. This is an irregularity of such a nature that it is per se a
failure of justice. It follows from the
decision in S. v. Moodie,
(1962 (1) S.A. 587 (A.D.), that it is open to the State to re-indict
the appellant, and I do not think
that in such a case the Court
ought, assuming that it could, to remit the matter for trial afresh.
It is for the State to decide
whether it will re­indict the
appellant."

21

However
that may be, and in view of the fact that the correctness of this
decision and others to the same effect were - within the
context of
the law and practice in Lesotho - not argued before us, it would be
inappropriate for us to base our decision on a finding
that because
there had been a purported non­compliance with the provisions of
Sec. 173 of the Act (evidence must be given viva
voce in open court),
the proceedings were irregular and that no trial had in fact taken
place.

What we
do find in this regard is the following:

1. In
   view of the nature of the charge (murder), it was inadvisable and
   indeed irregular to attempt to try the accused on the basis
   of
   depositions made by the witnesses at the preparatory examination
   untested by cross-examination. Murder is an offence that
   comprehends
   proof of an intention to kill. Moreover the presence or absence of
   extenuating circumstances often becomes evident
   from an in-depth
   investigation of the circumstances which surround the commission of
   the offence. Justice cannot be done fairly
   pursuant to the adoption
   of such a methodology.

   
   

2. There
   was no attempt to define with any clarity what facts

   
   

23

irregular to proceed with the trial without determining this issue.
The Court had no certainty that the admission made -whatever
their
legal significance may have been - were indeed made on the
instructions of the accused and that the fact that he had stabbed
the
deceased was not common cause.

6. This
   Court is accordingly of the view that:

   
   

1. Because
   of the circumstances set out under points 1 to 5 above there has
   been a gross departure from the established rules of
   procedure and
   that the accused was not properly tried. Indeed Ms Nku conceded that
   the proceedings were irregular.

   
   

2. The
   irregularity was of such a nature that it per se amounted to a
   failure of justice.

   
   

3. The
   appeal accordingly succeeds to the extent that the verdict of not
   guilty and the acquittal of the accused is set aside.

   
   

4. However,
   the Court records that a mistrial occurred and that the accused is
   accordingly discharged.

   
   

24

In view
of the fact that 10 years has elapsed since the commission of the
offence the practicality of the continued prosecution
of the accused
must be open to serious question. The crown will no doubt take this
factor into account when considering its position.

PRESIDENT
OF THE COURT OF APPEAL

J. BROWDE

ACTING
JUDGE OF APPEAL

J.L.
KHEOLA

CHIEF
JUSTICE

Delivered
at MASERU This 15th day of October, 1999.