CRI/T/40/2006

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THE CROWN

Versus

1.
REATILE THABO MOCHEBELELE

2.
LETLAFUOA T. MOLAPO

Delivered
by the Honourable Mr Justice T. Nomngcongo On the 16th April, 2007

RULING ON
ADMINISSIBILITY OF DOCUMENTS

At the
close of the Crown Case, Mr Semenya for the defence applied to the
court to make a ruling on the admissibility of the documents

contained in Volumes 1 - 8 of the record. At the beginning of the
trial these documents had been admitted by the defence as "what

they purport to be" i.e. authentic documents held by Lahmeyer in
the ordinary course of business. During the proceedings when
Mr White
a forencic expert took the stand to testify on his report which would
amount to an analysis of the admitted documents,
Mr Semenya objected
to the giving of such a report which he said was

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inadmissible
hearsay evidence. After hearing argument I ruled that I shall hear
that report and that if it was objectionable I would
make a ruling
'at the end of the case" I made mention that such a, procedures
was adopted in the Schabir case and that, that
was in the interests
of expedition. Mr Semenya submits that the reference to the Schabir
case meant that I had to make the ruling
at the end of the crown case
as was done in that case.

I must
say at once that my remarks in that regard did not mean I was bound
by the procedure adopted by squires J. in that case;
it was simply an
examply of what may be done in certain circumstances.

Be that
as it may, the first objection that Mr. Penzhorn took was that asking
the court to make a ruling at this stage was premature.
His reason is
that the documents had already been admitted and all that remained in
issue was the evidential weight to be accorded
to them. The
appropriate time for this, he argued was at the end of the case after
all the evidence had been heard. Mr Semenya
did not address this
objection in reply but only went on to address the merits i.e. why
the documents are inadmissible hearsay.

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Now a
distinction has to be made between the mere production of a document
to prove that it has a content and using that content
for probative
purposes i.e. proving the truth of its contents. (See Hoffmann and
Zeffert The South African Law of evidence, 4th
Ed. P. 390) where the
learned author refers to the case of Wenitraub v Oxford Brickworks
(Pty) Ltd. 1948(1) SA 1090). In the case
Price J. says

"A letter is only evidence of the fact that it was written by
the person who wrote it and that that person said what the letter

contains. It is not evidence that what he said is true".

With that
in mind we proceeded with the trial of this case with the initial
understanding that the documents in question were produced
and
admitted for what they are, that they say what they say and proceed
from where they purport to. There is no question that the
documents
were admitted on that basis. Whether what they say is true is
entirely another matter. Mr Semenya has been at pains to
point this
out. Mr Penzhorn has not resisted this point of view; on the contrary
he says he will use the documents not for that
purpose but to prove
something else i.e. common purpose.

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The point
is, as we proceeded with the trial everyone understood the position
of the other. The question is why at a given stage,
in this case the
close of the crown (as I see it, it might have been any other) does
the defence now press for a ruling. When I
made the provisional
ruling that I did, it was prompted by an objection made prior to the
crown witness, Mr White giving evidence
on his report. As it turned
out that report is no more than a commentary on the documents already
admitted and it stands on no
different footing from them. I do not
understand therefore that my ruling then, made any difference to the
normal course that I
am sure the trial would have taken had I not
made it. That course must still take its course. The brilliant
arguments already made
in counsel's heads of arguments will stand
them in good stead at the end of the case, I have no doubt.

T.
NOMNGCONGO

JUDGE

For
Crown: ADV G H PENZHORN SC ADV H H T WOKER

For
Defence: ADV I SEMENYA SC ADV K MOPHETHE

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