IN THE
HIGH COURT OF LESOTHO

In the
matter of: -

REX

vs

MAKOAE
KHOALENYANE

Review
Case No. 129/02 CR 223/02

Review
Order No. 1/03 In the Thaba-Tseka District

REVIEW
ORDER

After
perusing the record of these proceedings I asked the Director of
Public Prosecutions to also peruse the same and make submissions

regarding the propriety of convictions therein (See Section 8 (3) of
the Subordinate Courts Order No. 9 of 1988). I have since
received
the written submissions of the crown in which they state that they do
not support the convictions.

The
applicant, along with one Mojapela Mojapela, had originally been
jointly charged before the Thaba-Tseka Subordinate Court with
the
crime of housebreaking with intent to steal and theft it being
alleged that

"upon or about or during the month of July 2002 and at or near
Paray Hospital in the Thaba-Tseka district the said accused
one or
other or both of them did break and enter the office there situate of
Paray Hospital and steal money to wit MB, 200. 00
property of or in
the lawful possession of one Matela Thamae and did thereby commit an
aforesaid crime. "

Second
count similarly alleged housebreaking and theft of M3, 500. 00.

Many
aspects of the evidence led and conclusions arrived at by the court
caused me great concern. The accused pleaded had not guilty
and hence
it was incumbent upon the crown to prove each element of the offences
beyond reasonable doubt.

Firstly,
there was no evidence of breaking in; in fact the crown witness P. W.
1 admitted that at all times she had kept the keys
of the safe in
which the money was usually kept; she says there was no breaking in.

"Question: Did you find any breaking at the Hospital?

Answer: No. "

The
search that was conducted by P. W. 2 - Matela Thamae - who happens
also to be the complainant in both counts - resulted with
the
discovery of some money in the ceiling above the bed of the applicant
in the dormitory. Firstly, the search conducted by P.
W. 2 was
illegal in that it was not conducted by a police officer in
accordance with the provisions under Part VI of the Criminal

Procedure and Evidence Act 1981. Apparently he had been given "power
to investigate and search" by the police. This novel
way of
investigate is completely alien to our law if not unconstitutional
(see Section 10 of the Constitution).

The money
was found in the ceiling manhole above the bed used by the accused.

In the
circumstances, there was no conclusive evidence that proved beyond
reasonable doubt that the accused was guilty on both counts.
Strong
suspicion is not enough to have founded the inferences drawn by the
learned magistrate.

The crown
does not support the convictions and for the reasons stated above,
the convictions and sentences are hereby set aside.

S. N.
PEETE

JUDGE

28th MAY,
2003

CC: The
Magistrate - Thaba-Tseka

O/C
Police - Thaba-Tseka

O/C
Prison - Thaba-Tseka

O/C
Central Prison

CID
Headquarters - Maseru

Director
of Prisons

Director
of Public Prosecutions

Chief
Magistrate