HIGH COURT OF LESOTHO
matter between: -
DIRECTOR OF PUBLIC PROSECUTIONS Applicant and
MOLIEHI NTHUNYA 1st Respondent
LITHEMPA MOKOLATSIE 2nd "
BERNARD LECHESA MAHAO 3rd "
BERNARD MOTLATSI MAPOLA 4th "
JUSTICE RASOBATE SENGOARA 5th "
RANTSOTI MABITLE 6th "
MAFEREKA 7th " 8. MICHAEL RAHAKA 8th "
RAMOHAU 9th "
MPOPO 10th "
TSOLO 11th "
MAMELLO MEMELA 12th "
SEMAPO MAKAFANE 13th "
LEFU KOTA 14th "
TEBOHO MOROENG 15th "
NGATANE 16th "
SEOTLO 17th "
KEKETSO MOAHLOLI 18th "
SECHABA KHOELE 19th "
MOHAHLOE NTLOTSOEU 20th "
LEHLOHONOLO MATLHOLE 21st "
THABANG TSEHLA 22nd "
PHILLIP MASOABI 23rd "
MOHLABI HLABI MOTIA 24th "
LAWRENCE SELLOKEMISO 25th "
SEKOAI CHALALE 26th "
MAFEFETHA NATHNAEL MATLOTLO 27th "
by the Honourable Mrs Justice A. M. Hlajoane
matter came before me by way of an application to review the ruling
by the Magistrate in a certain CR536/02 R v Mokolatsie and
The proceedings before the magistrate were at a stage where the Crown
was still leading his witness and the witness
had forgotten a
particular date. The witness could only remember the year, but not
the exact date.
then sought to refresh the witnesses's memory by showing him a
statement written by him. The defence then objected to
this kind of
procedure advancing the following reasons:
the Crown was attempting to prove a previous consistent
Crown was attempting to contradict its witness.
procedure sought to be employed by the Crown was
allowing such a procedure would create a precedent
all Crown witnesses would be entitled to read their
whilst in the witness box.
application by the Crown to allow his witness to refresh his memory
was made after the witness had indicated that he could not
the time exactly when his brother had passed away in 1995 and the
time at which the witness took possession of a certain
belonging to his late brother into his own possession.
the magistrate made his ruling on the matter, both counsel were given
the opportunity to address court after filing their
argument. According to the Applicant/Crown the decision by the
magistrate refusing the witness to refresh his memory was
made. The Applicant could have been allowed the lay a foundation for
his basis for adopting that kind of procedure.
This would be by
putting questions first leading to the establishment of whether or
not the four requirements as shown in the South
African Law of
Evidence by Zeffer, Paizes and Skeen Ist Ed. June 2003 at 741 were
the Respondents were saying that the procedure sought to be employed
by the Crown was improper and not permissible, they
were ad idem with
the decision in R v Elijah 1963 (3) SA 86, where the refreshment of
the witnesses' memory was because the witness
had some recollection
of the facts that required refreshing so as to enhance the accuracy
of his memory. This indicating that the
refreshing of a witnesses'
memory could still be allowed depending on the particular
circumstances of the case, and the nature
of statement sought to be
produced for refreshing the witnesses' memory.
therefore not be correct to just make a general statement that such a
procedure is not permissible. The two scenarios where
a witness may
require refreshing of his memory were clearly spelled out in the case
of R v Elijah supra. Both counsel were agreed
that the Applicant's
request fell into the scenario where the witness had some
recollection that required refreshing so as to improve
of his memory.
African Law of Evidence by Zeffer Paizes and Skeen supra sets out the
four requirements which have to be satisfied before
a witness could
be allowed to refresh his memory from his statement to be the
statement must be authentic and must be the witnesses'
statement must have been made contemporaneously with the facts sought
to be proved.
statement must be original.
witness must be able to produce such statement to the Court and to
the other party.
seem that much reliance on this aspect was placed on the common law
position as our Criminal Procedure and Evidence Act
9 of 1981 has no
specific provisions for it. My brother Cullinan AJ dealt extensively
with this aspect in CRI/T/111/99 R v Masupha
Sole pages 825 to 832 of
seen the four requirements which first had to be satisfied. In casu,
it is common cause that the Crown had only just made
an attempt to
show the witness his statement when there was an objection from the
Respondents. As I have already shown earlier
on, the witness was not
even allowed any chance to have a look at his statement in order for
the Applicant to satisfy the four
requirements. Applicant was not
even afforded the opportunity of leading evidence which would have
assisted the court in making
it known as to when the statement was
witness could not have been able to state as to whether or not the
was his statement without having looked at it, or whether or not It
was an original document, which would also include
statement S v Van Tonder 1971 (1) S.A 313. It came from the
Respondents that the magistrate after the objection was
requested counsel to both prepare written submissions in the next
sitting of the court.
witness must have had the document in his possession so that it could
be made available to the Court and the other side. As
was said in R v
Elijah supra, the basis of the evidence in that particular instance
is always the recollection of the witness aided
by the document, but
the basis is not the documents itself.
out his case the Applicant pointed out that he had not asked that the
witness be permitted to read from his statement,
but to have a glance
at it for refreshing his memory on a particular date. If the witness
were to be allowed to read from the statement
as he was giving
evidence that would be making that statement the evidence or the
basis of the evidenced. The true position should
always be that of
making the recollection of the witness the basis of the evidence
which could be aided by a statement. Elijah's
case makes a clear
distinction between reading from a statement and referring to a
the objection was raised only at the stage when the Applicant
attempted to hand over the statement to the witness, the Magistrate
denied himself the opportunity of making it known what her approach
was towards the statement after affording the Applicant an
opportunity to explore the necessary requirements.
witness was to be allowed whilst already in the witness box to have a
look at his statement even before commencing his evidence,
surely would be improper and unprocedural. R v Sole above.
the possibility of cross-examination on the statement is diminished
if the witness is virtually (my emphasis) reading
the particular case, he wanted to refresh his memory on a particular
date in 1995. It would not have been a contradiction
as he would have
already given a year but could not remember the exact date in that
very same year.
furtherance of his argument, the Applicant pointed out that as a
basis for his application, he could have lead his witness by
him if he knew the statement or ever remembered making a statement,
the time of making the statement in relation to the
events in issue,
whether he signed or could identify his signature on the document and
whether the document was the
or a copy.
circumstances therefore, it could never be said that the Applicant
was afforded the opportunity of proving the necessary
refresh the witnesses' memory. Parties were agreed that the
proceedings were adjourned immediately pursuant to
are saying that the Applicant was afforded the opportunity to prove
the requirements when they were called to give their
this would not be correct because that would not come from argument
but from the evidence of the witness himself.
It was also correct
that the procedure of requesting to fresh the witnesses' memory was
at the instance of Counsel as he was the
one who was leading his
witness in the case and as such dominis litis.
in casu is also asked to make a clear pronouncement on the
requirement of contemporaneity. The ruling by the Magistrate
presupposes that contemporaneous would be when the statement was made
during the happening of the events. That would not be realistic
because when things do happen, in most cases they would be
unexpected. Some of them would be either frustrating or so
that a period of cooling would be an ideal situation. I
would therefore subscribe to the school of thinking that
would reasonably mean the first opportunity of recording a statement.
Even where a statement was made after some
lapse of time, enquiries
would have to be made as to the causes of such delays.
Applicant further argued that the Crown stood to be prejudiced should
the witness not be allowed to refresh his memory. Prejudiced
sense that the witness would not be allowed to give his full
evidence. The witness had not yet given a date but only a year
search for the truth the procedure was permissible.
decisions of this Court have shown like in Soles's case that the
procedure of allowing a witness to refresh his memory does
only consideration would be when to allow such a procedure. As was
the case in Mabea & Another v Magistrate for
Another 1993-94 LLR LLB 122, "Section 7 of the High Court Act
No.5 of 1978, enables any interlocutory (my
underlining) and final
review of criminal and civil cases so as to prevent an abortive trial
in a Subordinate Court from taking
place in the first case."
be for the Court in similar circumstances as the present, to assess
the witnesses' statement as he was giving evidence
in Court and
compare such evidence with the portion where the witness had been
this Court should be loathe to interfere with interlocutory rulings
by magistrates, but where the Court feels that there
had been a
miscarriage of justice, it is always bound to interfere. Applicant
was thus entitled to have been allowed the opportunity
his witness's memory by referring to the statement but not reading
decision by the magistrate refusing the Crown leave to refresh the
witnesses' memory is set aside and substituted by one allowing
witness to refer to his statement on the particular aspect of the
date as requested.
no order as to costs.
Applicant: Mr Leppan
Respondents: Mr Hoeane
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