HIGH COURT OF LESOTHO
matter of: -
Case No. 129/02 CR 223/02
Order No. 1/03 In the Thaba-Tseka District
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
the written submissions of the crown in which they state that they do
not support the convictions.
applicant, along with one Mojapela Mojapela, had originally been
jointly charged before the Thaba-Tseka Subordinate Court with
crime of housebreaking with intent to steal and theft it being
"upon or about or during the month of July 2002 and at or near
Paray Hospital in the Thaba-Tseka district the said accused
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. "
count similarly alleged housebreaking and theft of M3, 500. 00.
aspects of the evidence led and conclusions arrived at by the court
caused me great concern. The accused pleaded had not guilty
it was incumbent upon the crown to prove each element of the offences
beyond reasonable doubt.
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. "
search that was conducted by P. W. 2 - Matela Thamae - who happens
also to be the complainant in both counts - resulted with
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
investigate is completely alien to our law if not unconstitutional
(see Section 10 of the Constitution).
was found in the ceiling manhole above the bed used by the accused.
circumstances, there was no conclusive evidence that proved beyond
reasonable doubt that the accused was guilty on both counts.
suspicion is not enough to have founded the inferences drawn by the
does not support the convictions and for the reasons stated above,
the convictions and sentences are hereby set aside.
Magistrate - Thaba-Tseka
Police - Thaba-Tseka
Prison - Thaba-Tseka
Headquarters - Maseru
of Public Prosecutions
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