CRI/A/171/90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THABANG
HABAKA APPELLANT

AND

REX
RESPONDENT

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 6th day
of July, 1990.

For the
Appellant : Mr. M.M. Ramodibeli

For the
Crown : Mr. S.P. Sakoane, Crown Counsel

JUDGMENT

The
appellant was convicted by the Subordinate Court for the Berea
District of stock theft and was sentenced to five years'
imprisonment.

There is
in effect but one ground of appeal. The appellant has filed an
affidavit in which he deposes to the fact that before his
trial he
was severely assaulted by members of a so-called "Prevention of
Theft Association", a form of vigilante group.
The group of
individuals, he claims, also discharged a firearn at him, some twelve
times, apparently not with the intention of
injuring him, but with
intent to intimidate him and force him to plead guilty at his trial.

This he
eventually did, an attempt at vacillation on his part

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being net
with glares of anger from the vigilante group, who were present in
court.

The
learned trial Magistrate has also filed an affidavit. He of. course
has no knowledge of the appellant's claims as to the vigilante

group's activities. He denies however that there was any vacillation
on the appellant's part and deposes that he pleaded guilty
from the
start.

The
general rule as to the admissibility of fresh evidence (even by way
of affidavit) on appeal, is that an appellate court will
decline to
admit such evidence where it was available at the trial. The contents
of the appellant's affidavit were of course available
at the trial.
The appellant has deposed however to the fact that he was physically
intimidated into pleading guilty and in particular
from revealing
such to the court. It seems to me that it would in the circumstances
be a miscarriage of justice not to consider
the contents of the
appellant's affidavit therefore.

As to the
allegation of assault, the Crown has endeavoured to obtain an
affidavit from the members of the vigilante group. The learned
Crown
Counsel Mr. Sakoane has informed the Court that apparently no member
of the group can be traced.

It may
well be that the appellant has embellished the facts in claiming that
he verbally vacillated in court: he may have done

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so
mentally, but both the learned trial Magistrate's affidavit and the
record weighs against the appellant. As to assault before
the trial
however, the appellant's affidavit, as his learned Attorney Mr.
Ramodibeli submits, stands uncontested. While of course
the affidavit
has not been tested in any way, nonetheless I can see no good reason
for not accepting the particular evidence.

I wish it
to be understood that I do not in any way seek to set a general rule
in the matter. Everything must depend on the facts
of each case, that
is, as to whether any evidence, viva voce or by affidavit, will be
admitted on appeal. I say no more than that
in the present case I
consider that the court should act on the appellant's affidavit.

I accept
that the appellant was assaulted and physically intimidated before
the trial, causing him to plead guilty. The learned
trial Magistrate
could not be expected to be aware of that fact and quite clearly he
would not have accepted the plea of guilty
had he been so aware.

In all
the circumstances the appeal is allowed, the conviction and sentence
are set aside and I order that the appellant be retried
before
another magistrate.

Delivered
at Maseru This 6th Day of July, 1990.

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B.P.
CULLINAN

CHIEF
JUSTICE