CRI'T/40/90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

V

SEKHOBE
LETSIE

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 16th
day of July, 1990.

For the
Crown : Mr. G.S. Mdhluli, Director of

Public Prosecutions :

Mr. N. Qhomane :

Mr. S.P. Sakoane

For the
First Accused : Mr. L. Pheko

For the
Second Accused : Mr. M.T. Matsau

RULING

Case
referred to:

(1) S v Dlamini (1978)4 SA 917 LN.

As I see
it, the wording of section 236(1) of the Criminal Procedure &
Evidence Act, 1981, as compared with that of section
231(1) of the
Criminal Procedure & Evidence Proclamation, 1938, clearly
indicates that an accomplice is a compellable witness,
and further
that he shall be compelled to answer questions tending to incriminate
him in respect of the offence charged at a trial,
or which is the
subject of a preparatory examination. That much is clear

2

I do nob
see that there is any difficulty with sub-section (2), of section
236, other than the use of the words "subject to
sub-section
(3)". The same wording was used in the Criminal Procedure Act,
1977 of the Republic of South Africa. In the 1977
Act the same
wording is used with reference to a subsequent revocation, in a
subsequent proceedings, of a discharge granted in
an earlier
proceedings. The learned Attorney for the second accused, Mr. Matsau,
places some significance on the words, "the
offence concerned".
As I see it, that is an omnibus phrase to cover the words in
sub-section (1), namely, "the offence
alleged in the charge (at
a trial) or the subject of the preparatory examination".

In
sub-section (3) there is specific reference to the deletion from the
record of the discharge of an accomplice witness. Such entry
can only
be made after the witness has finished his evidence: indeed in the
case of S v Dlamini (1) it was held at p.920 that it
should be made
at the end of the trial. Sub-section (3) can therefore only refer to
subsequent proceedings. The reference to a
"re-opening" of
a preparatory examination, indicates this. Further, the words, "the
trial of any person upon a charge
of having committed the offence
concerned or an offence disclosed by the preparatory examination",
suggest a trial, after
a preparatory examination, upon the charge
which formed the subject of the

3

examination,
or which was "disclosed" at such examination. There is no
doubt however that the former part of that phraseology
could refer to
a trial, that is following upon an initial trial.

In any
event, I am satisfied that an accomplice may be

compelled
to be sworn and to answer incriminating questions. Further, all that
sub-section (3) enacts, is that if the witness fails
to be sworn, or
to answer such questions, then any previous immunity granted shall be
taken away. Even if, as the learned Attorney
for the first accused,
Mr. Pheko, submits, sub-section (3) may also refer to initial
proceedings, and I do not agree that it does,
then it means no more
than that the witness cannot, in any event, be granted any immunity.
In my view, however, the wording of
sub-section (1) is quite specific
and the present witness is compellable as to being sworn, and as to
answering incriminating questions.

Delivered
at Maseru this 16th Day of July, 1990.

B.P.
COLLINAN

CHIEF
JUSTICE