CRI/T/66/90

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

LEFA
MAKHETHA

HELD AT
QUTHING

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 13th day of December,
1990

The
accused was charged with the crime of Murder in that on 30th day of
April 1989 at a place called Ha Thaba Bosiu in the Mohale's
Hoek
district he had unlawfully and intentionally killed one Limakatso
Matsoso.

The Crown
dispensed here with the evidence of two witnesses namely P.W.4
Matseliso Leeba and that of P.W.5 'Manthahiseng Ramaili.
The accepted
admissions on behalf of the accused were P.W.6 Matlere Matsoso and
that of P.W.7 Dr. Shaikh.

The Crown
led the first and only evidence of P.M.3 Trooper Lethoko who told the
Court that on the 1st of May 1989 while still at
his station at
Mohale's Hoek he had cause to proceed to the scene after receiving a
report of the dead body of a female. The body
was lying between the
houses of one 'Manthahiseng Ramaili. This witness observed one wound
on the head of the deceased. In the
cause of his

2

investigations
he had cause to introduce and identify himself to the accused. And he
told me that he gave the accused caution. Asked
to elaborate on the
caution that he gave, he told the Court that he produced an Identity
Card and warned the accused that he was
investigating the death of
the deceased. Whereupon the accused gave him some explanations and
the explanations led to the accused
leading him to the accused's
residence where a stick was pointed out, and from there the dead body
was collected and the accused
was conveyed in the same vehicle as the
deceased. The body was deposited at the mortuary and the accused was
led to the police
station. It is at this juncture that P.W.I told me
that he warned the accused that he was not obliged to make any
statement and
that should it he make it he should know that it would
he used in the case against him.

From the
evidence given, it doesn't appear that any more thing was revealed
which might incriminate the accused after this warning
that was given
at the Charge Office. At this juncture one wonders what now was the
use of this caution that was given at the Charge
Office.

The
exhibit is before Court, it was retrieved before the caution was
given that the accused was made to remain silent. It would
seem
therefore logical that the accused was taken advantage of,his rights
were trampled.on. Caution caution constitutes what are
termed the
Judges' rules and these are administrative rules of procedure which
have to he observed during investigations. Indeed
there is a body of
that authority to the effect/these rules are mere administrative
rules of procedure and don't have the essential
force of law. But
their basis is towards achieving fairness in a trial between the two
parties which appear before Court. It is
indeed on account of the
body of the authority that I have referred to that time and again
Judges bend backward to ensure that
justice is nonetheless achieved
even at the expense, or sometimes, of some of these procedural rules.
But in this particular case
it appears that the extent to which the

3

accused's
rights have been trampled on no Court can connive at it.

Through
questions put to P.W.3 it was suggested that the accused was molested
while in custody. That has got no substance whatsoever
and I reject
it. There would he no reason why, after the accused had already
produced the most essential part of the evidence in
the Crown case he
could afterwards he molested. This would, if the case were to go on
strengthen the case for the Crown if this
particular line that was
being proposed was followed. For indeed if the accused were to he
proved a liar beyond reasonable doubt
an inference of guilt would
follow. It is on this technical ground of police faulty investigation
therefore and not because the
accused is not liable for the killing
of the deceased that he is acquitted and discharged.

JUDGE

13th
December, 1990

For
Crown: Mr. Mokhoho

For
Defence: Mr. Fosa