THE HIGH COURT OF LESOTHO
the matter of between:-
by the Honourable Madam Justice N. Majara
This is a case of
murder against the accused. He was initially charged with two others
who have reportedly since disappeared.
In light of this fact and at
the insistence of the defence, the Crown applied for a separation of
trials and I accordingly granted
it after it was satisfactorily shown
that he had been the only one that religiously attended Court since
the three of them were
indictment, on or about the 26th
June 1995 and at or near Sani Top, in the district of Mokhotlong the
accused unlawfully and intentionally killed one Ngabomo Mabandla.
pleaded not guilty to the charge and the defence proceeded to admit
all the depositions contained in the preparatory examination
The depositions were read into the record to form part thereof.
At the close of
the Crown’s case, the defence applied for the discharge of the
accused in terms of the provisions of Section
175 (3) of the Criminal Procedure and Evidence Act of 1981
and the Crown conceded that they had failed to establish a prima
facie case against him. I granted the application without further
and promised that my reasons would follow.
I now proceed to
give them immediately below.
In terms of the
admitted depositions, there is no iota of evidence that linked the
accused with the commission of the offence in
that none of the
witnesses deposed to having seen him at the scene or heard of him
post the shooting of the deceased. All the
exception mentioned having seen only the other two accused persons
that are not before this Court.
The only possible
link between the accused and the offence is that after learning about
the shooting incident he voluntarily went
to report to the police
that he had lent his pistol to accused no.2 and he believed that it
was the one which had been used in
the murder of the deceased. It
was on the basis of this factor alone that he was subsequently
charged together with his two absconding
co-accused, with the said
Needless to say,
it is a well-established principle of law that but for certain
exceptional cases, the general rule in criminal
proceedings is that
the onus of proof lies with the prosecution throughout the trial in
that they have to prove that the accused
did indeed commit the
offence with which he is charged. In
not only was there no such proof against him, but as I have already
mentioned, the accused could not even be called upon to answer
case because there was none to answer.
The meaning and
effect of Section 175 (3) of the CP & E is brilliantly discussed
Hoffmann and DT Zeffertt’s The South African Law of Evidence
Edition p 504, to
effect is that in addition to the onus of proving that on all the
evidence the accused is guilty beyond reasonable doubt, the
prosecution must surmount the preliminary hurdle of adducing evidence
upon which reasonable men, if they believed it, might convict.
they do not satisfy this preliminary burden the accused is discharged
without being called upon to defend himself at all.”
need say no more.
For these reasons,
I accordingly discharged and released the accused.
agreed with me on this decision.
the Crown : Mr. Mokorosi
the Defence : Mr. Fantsi
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