CRI/APN/186/92

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

EDWIN
PHUROE........................ 1st Applicant

LEBOHANG
MOSOEU ...................... 2nd Applicant

and

DIRECTOR
OF PUBLIC PROSECUTIONS...... Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 3rd day of August. 1992.

The
applicants herein have moved the court for an order releasing them on
bail pending trial. The Respondent opposes the granting
of the order
and affidavits have been duly filed by the parties.

Briefly
stated, the facts disclosed by affidavits are that on 29th April,
1992, the 1st Applicant was staying at Ha Lejone where
he rented a
room whilst looking for employment with Harmon Solbenco which is part
of the Lesotho Highlands Water Project. The 2nd
applicant was at the
time already an employee of Harmon Solbenco. The 1st and the 2nd
applicants

2

were
arrested and taken by the police for interrogations on 29th April,
1992 and 30th April, 1992, respectively, in connection with
a charge
of robbery, it being alleged that on or about 29th April, 1992 and at
or near Ha Lejone in the district of Leribe they
each or both
unlawfully assaulted the pay master of Harmon Solbenco viz Mr. Don,
and by intentionally using force and violence
to induce submission by
the said Mr. Don did take and steal from him or his immediate care
and protection the sum of M180,000,
his property or in his lawful
possession.

On behalf
of the Respondent, the opposing affidavits are deposed to by
Ntebaleng Maseela and Tper Likoti who are the Crown Counsel
in the
office of the Respondent and the police investigating officer,
respectively. In her affidavit, Ntebaleng Maseela deposed
that she
had interviewed Tper Likoti and read his affidavit. She associated
herself with the averments of Tper Likoti who, in his
affidavit,
deposed, inter alia, that during their interrogations the applicants
tried to run away and escape from police custody.
The 1st applicant
was, however, chased and caught hold of by the police. The 2nd
applicant was re-apprehended with the help of
his fellow employees at
Harmon Solbenco, a fact which he, however, denied.

After
they had been brought back to the police custody

3

the
applicants gave explanations in which they conceded that they and two
other men, who had since absconded to the Republic of
Namibia, did
rob the complainant of the M180,000 on 29th April, 1992. Were it not
for their arrest they too would have absconded
to the Republic of
Namibia.

When a
search was conducted on them the two applicants were, indeed, found
to be in possession of half of the amount of M180,000
i.e. each had,
in his possession, a quarter of the M180,000. The deponent is
convinced that if they were released on bail, the
applicants would
certainly abscond to the Republic of Namibia and, therefore, out of
the jurisdiction of the court. They would
consequently fail to stand
their trial with the inevitable frustration of proper administration
of justice in this country. He
accordingly prayed the court to refuse
the application for bail.

According
to them, the applicants were, following their arrest, severely
assaulted and tortured by Tper Likoti and other police
officers in an
attempt to force an admission from them (applicants). Because of the
assault and torture which were perpetrated
on them by the police
officers, the applicants admitted to have committed the offence as
alleged in the charge sheet. They denied,
however, that they were
each found in possession of a quarter of the M180,000. According to
the 1st applicant, the quarter of the
M180,000

4

allegedly
found in his possession was in fact found buried in the yard of his
landlord who had pointed out the spot where it had
been buried.
Likewise the 2nd applicant averred that the quarter of M180,000
allegedly found in his possession had in fact been
found hidden in a
calvet during a search which was carried out in the vicinity of
Harmon Solbenco project by many people including
himself, his fellow
employees and the police officers.

The
applicants denied, therefore, to have committed the offence against
which they stood charged. They averred that they were citizens
of
Lesotho and in possession of valid local passports which they were
prepared to surrender as proof that they would stand their
trial and
not abscond out of the jurisdiction of the court. Wherefor the
applicants prayed for an order as aforesaid.

It is
significant that following their arrest in April, 1992, the
applicants have been in custody awaiting their trial. If, in the

course of their interrogations, they have been assaulted and tortured
as severely as they wish the court to believe, the applicants
would,
no doubt, have sustained serious injuries, reported to the
authorities on arrival at the prison and received medical treatment

for the injuries. There is no suggestion that the applicants ever
sought or received any medical treatment for the alleged injuries.
I
am

5

of the
opinion that the applicants' averments of severe assault and torture
are but exaggerations calculated to mislead the court
into believing
that there is no cause for their absconding and failing to stand
trial.

Notwithstanding
the applicants' implications that portions of the M180,000 were found
not in their possession but in the possession
of the landlord and one
of the people who were carrying out a search in the vicinity of
Harmon Solbenco project at Ha Lejone neither
the landlord nor any of
the people who had been conducting the search was called upon to
depose to an affidavit in support of the
implications.

The onus
to prove, on a balance of probabilities, that if released on bail
they would stand their trial and not abscond vests squarely
on the
applicants, I am not, in the circumstances, of this case, convinced
that the applicants have satisfactorily discharged that
onus. Regard
being had to the allegations that two of the suspects have already
absconded out of the jurisdiction of the court
and the applicants
themselves attemped to escape from the police custody, I consider it
unsafe to release them on bail.

From the
foregoing, it is obvious that the view that I take is that the order
for the release of the applicants on bail pending
their trial ought
to be refused. It is

6

accordingly ordered.

B.K.
MOLAI

JUDGE.

3rd
August,1992.

For
Applicant: Mr. Semoko

For
Respondent: Mr. Phoofolo.

CRI\T\1\92

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

R E X

v

MASUPHA
SEEISO

RULING

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 3rd day of August, 1992

At the
close of the Crown case which took no less than

twenty
eight days Mr. Phafane assisted by Mr. Nthethe for the defence moved
an application for the discharge of the accused.

The
defence in moving this application relied on the Criminal Procedure
and Evidence Act 1981 section 175(3) reading:

"If, at the close of the case for the prosecution, the Court
considers that there is no evidence that the accused committed
the
offence charged in the charge, or any other offence of which he might
be convicted thereon, the Court may return a verdict
of not guilty".

The
accused faces two charges; namely, murder and attempted murder.

2

In very
well set out heads of argument the defence sought to illustrate by
liberal reference to the record that there is no prima
facie case
against the accused on both counts mentioned above.

The
defence submitted that the test to be applied in applications of this
nature is whether or not there is evidence of the commission
of the
offence or offences charged whereupon a reasonable man might convict
the accused.

To arrive
at its decision the Court has a discretion which has to be exercised
judicially as pointed out in S. vs Heller and Another
1964(1) SA 524
at 541.

As a
general rule, the accused should be discharged if at the close of its
case the prosecution has failed to present evidence upon
which he
might be convicted.

The Court
was referred to R. vs Mall and Others 1960(2) SA 340 at 342 where
Caney J. said :-

"There is much to be said for the proposition that if the Crown
fails to make a case, the accused is entitled to be discharged
and
not to be put on his defence to face the risk of being convicted out
of his own mouth or out of the mouth of a co-accused"

3

The Court
was further referred to R. vs Dladla and Others 1961(3) SA 921 where
it was held that the credibility of witnesses is
not a matter to
which a Judge may pay regard when considering an application for
discharge at the close of the Crown case. It was
contended that the
situation here in Lesotho is different for the Court is the sole
trier of facts. Thus, it was submitted, if
all or any of the evidence
presented up to this point is demonstrably unreliable, then as the
trier of fact the Judge is entitled
to discount it and treat it as
amounting to no evidence for purposes of an application of this
nature as was the case in CRI\T\35\79
R. vs Daniel Lehloenya and
Others (unreported) at 2.

Indeed in
Rex vs Ramokatsana 1978(1) LLR 70 at 73-4 Cotran

CJ (as he
then was) said :

"Furthermore, the Courts, it has been held, should not at this
stage embark upon a final assessment of credibility and should
leave
that matter in abeyance until the defence have closed their case and
then weigh the two together. In Lesotho, however, our
system is such
that the Judge (though he sits with assessors is not bound to accept
their opinion) is the final arbiter on law
and fact so that he is
justified, if he feels that the credibility of the Crown witnesses
has been irretrievably shattered, in
saying to himself that he is
bound to acquit no matter what the accused might say in his defence
short of admitting the offence".

The words
of Jacobs C.J. (as he then was) in CRI\T\51\69

4

Rex v.
Sabilone Nalana at p.2 are to the same effect; namely:

"Now it has been said in many cases that when considering an
application at the close of the Crown case the Judge should not
pay
regard to the credibility of the witnesses and that his sole duty is
to consider whether the evidence advanced by the Crown,
if believed,
might be sufficient to satisfy reasonable men that the accused are
guilty of the crime charged.

This is undoubtedly so where a Judge sits with assessors who are
joint triers of fact; but I am of the opinion that where the
assessors are merely sitting in an advisory capacity the Judge is
allowed a little more latitude and need not completely divorce
his
mind from the question of credibility".

Mr.
Phafane thus submitted that the evidence of eye witnesses has singly
and cumulatively been irretrievably shattered therefore
the Court is
justified in feeling that it is bound to acquit irrespective of what
the accused might say short of admitting the
offence.

Learned
Counsel highlighted conflicts contradictions and self-contradictions
in the evidence given by the eye witnesses. He urged
the Court to
shun the temptation to speculate as to what version of the Crown
witnesses could be relied on as establishing the
prima facie case. In
this regard the Court was referred to CRI\T\34\83 R. vs Ts'abo Phate
and Others (unreported) at 21.

The
defence submitted further that the next category of

5

witnesses,namely,
the police including investigating officers have not advanced the
Crown case in any manner. The Court is alive
to the fact that this
category of witnesses too contradicted the eye witnesses as to the
accused's conduct when he came to the
charge office. Eye witnesses
painted his conduct as moody and overbearing virtually setting
himself above proper police authority.
But police said he was polite
and cooperative.

Learned
Counsel for defence indicated that the third category of witnesses
too cannot sustain the verdict of guilty in either of
the offences
charged because with regard to PW12 Major Telukhunoana, the firearms
examiner inadmissible evidence was tendered;
the Court having been
misled till very very late in the proceedings and after that witness
had been recalled more than once that
the details in the document to
which he had made reference were attributable solely to him.

With
regard to the witnesses constituting the sub-category of this group
of witnesses i.e. the doctors it was submitted that PW1
Dr. Mbuya
establishes no prima facie case in respect of any of the two counts.
Among other things his sketch contradicted his evidence;
while PW16
Dr. Lerotholi's evidence is no evidence at all regard being had to
his status at the material time, evidence having
illustrated that he
had not yet been registered as a proper medical practitioner in terms
of the law when he

6

performed
the post mortem on the deceased.

It was
submitted that even if this defect could be waived, and his report
regarded as establishing the cause of death yet another

insurmountable hurdle lay in the way in that the Crown has not
excluded the novus actus interveniens.

Thus it
was contended that in the absence of evidence showing what treatment
the deceased received at St. Joseph's Hospital and
the qualifications
of whoever administered to him, the possibility that death may have
been precipitated by wrongful treatment
inadvertently administered by
an unqualified person at that Hospital cannot be left out of
consideration.

The last
category of witnesses namely identifying witnesses

if one
can take the liberty to refer to them as such, were as good as
non-existent for to this day and despite the Court's attempt
to
intervene with a view to finding if anyone of the deceased's
relatives or friends identified the deceased to PW16 the whole

exercise ended in inconclusive waste of time.

Bearing
in mind the considerations which the Court should heed in coming to
its decision, basing itself on the cases cited above
it is important
if only to highlight the tight rope which

7

the Court
faced with an application of this nature has to walk. The above
authorities show that the Court should not embark on the
final
assessment of credibility at this stage. The standard which the Crown
should establish is not named. It is all a matter of
discretion
judicially exercised, or proper considerations. It becomes difficult
to consider the degree to which evidence is irretrievably
shattered
while at the same time leaving the question of credibility in
abeyance till closure of the defence case. It may well
be because of
this nightmarish and dicey hurdle that Roper J in Rex vs Kritzinger
and Others 1952 SA 401 at 406 sought an easy
way out by saying:

"It seems to me that the rule is clear, namely that if at the
end of the case for the Crown the evidence against the accused
is not
such that a reasonable man might convict upon it, the judge has a
discretion whether or not to discharge. He is quite entitled
to
refuse to discharge if he considers that there is a possibility that
the case for the Crown may be strengthened by evidence
emerging
during the course of the defence. The judge has before him the record
of the preparatory examination and knows the compass
of the case, and
he is usually in a position to form an opinion whether a deficiency
in the evidence for the Crown is likely or
not likely to be
supplemented by evidence emerging during the course of the defence.
Where he considers that to continue the trial
would merely put the
accused to further expense or inconvenience or anxiety and is not
likely to result in a conviction, he will
naturally cut the useless
proceedings short at once and discharge the accused. This course is
often taken but the judge is not
obliged to take it even when in his
opinion at the end of the Crown case there is no evidence upon which
a reasonable man could
convict".

8

I hasten
to say that I do not agree with Roper J, with respect, that even
where no evidence exists against an accused person he
should
nonetheless be put to his defence with the hope that he might secure
his conviction out of his own mouth. On the other hand
the existence
of a preparatory examination record on which he advises that the
judge should rely is lacking in the instant proceeding
which by its
nature being a summary trial is not prefaced by any preparatory
examination.

In
CRI\T\l\90 R. vs Sekatle (unreported) the Court allowed the discharge
at the end of the Crown case because the crucial

event
having been circumstantial it was unlikely that the accused could be
convicted at the close of the defence case unless he
secured his
conviction out of his own mouth. Thus proper considerations for his
release at the close the Crown case were the undesirability
of
subjecting the accused to unnecessary anxiety, inconvenience and
putting him to unnecessary expense.

I should
think that the position is slightly different in a case resting on
direct evidence for Becker J. in R. vs Herhordt and
3 Others 1956(2)
722 SA said

"I have no doubt that the discretion which is vested in a court
is to be exercised judicially and that as a general rule,
but not
apparently without exception, an accused person should be discharged
if at the close of its case the

9

prosecution has failed to present evidence upon which he might be
convicted".

The
learned judge went further to illustrate that if attendant
circumstances might be such that a failure of justice could possibly

result if an accused person were to be discharged at the close of the
case for the prosecution,

"even though the prosecution has failed to present a necessary
degree of evidence"

the
application should be refused.

In
Sekatle above it was stated that this test referred to earlier is in
keeping with Bekker J's remarks that

"the test to be applied in an application of the present nature
is not, whether there is evidence upon which a reasonable
man should
convict, but, whether the evidence presented by the prosecution is
such that a reasonable man, acting carefully, might
properly convict.
If there is such evidence then an application of this nature is not
to be sustained",

I may
borrow the words of Mofokeng J in CRI\T\32\78 Rex vs Basotho Makhethe
and 2 Others (unreported) at 13 where the learned Judge
said :

"It was argued that at the close of the Crown case there was
prima facie evidence on which a reasonable court might convict
and
that when the defence closed its case without leading any evidence
whatsoever, the prima facie evidence became conclusive evidence.
The
position as I understand it is this : at the close of the Crown case
but before the defence has closed

10

its case the question to be decided is: is there evidence against the
accused on which a reasonable court might find the accused
guilty.
But when the defence has closed its case without leading evidence,
the question to be decided is; has the Crown established
the charge
beyond a reasonable doubt........"

Thus at
this stage of proceedings in order to tell if prima facie evidence
has been established by the Crown the Court has to satisfy
itself
that regardless of credibility, evidence exists on the basis of which
it might convict; in other words there should be evidence
on the
basis of which the Crown can be said to have established a case in
respect of which the accused is called upon to answer.
But at the
close of the defence case in order to secure a conviction the Court
has to be satisfied that the accused's guilt has
been proved beyond
reasonable doubt.

It does
seem possible that generally speaking even though at the end of the
Crown case it is found that an accused person has a
case to answer,
if he in turn closes his case without leading evidence he could be
acquitted if it is found that the Crown has
not discharged the onus
cast on it to furnish proof beyond reasonable doubt that an accused
person is guilty. This might be a risky
step for an accused person to
take for in a majority of cases the prima facie case becomes
conclusive as in such instances other
considerations would have come
into play including the accused's failure to discharge evidential
burden

11

where it
is shown to exist after the totality of the evidence has been
weighed. I am alive to the words of Van der Spuy A.J. with
whom I
agree in S vs Munyai 1986(4) SA 712 at 715 that:

"There is no room for balancing the two versions, i.e. the
State's case against the accused's case and to act on preponderances"

In the
invaluable works of S.E. van der Merwe et al styled Evidence at page
417 the stimulating passage is as follows :

"The State will have established a prima facie case; an
evidential burden (or duty to adduce evidence to combat a prima facie

case made by his opponent......) will have come into existence i.e.
it will have shifted, or been transferred, to the accused.
In other
words, a risk of failure will have been cast upon him. The onus still
rests on the State; but, if the risk of losing is
not to turn into
the actuality of losing, the accused will have the duty to adduce
evidence, if he wishes to be acquitted, so that,
at the end of the
case, the Court is left with a reasonable doubt....."

I may
point out that in a case which depends on the probabilities and
improbabilities of two versions it often benefits an accused
person
if his version is reasonably possibly true. Thus the above statement
enjoys the backing of Van der Spuy A.J.'s phrase at
716 B-C that :

12

"The fact that the Court looks at the probabilities of a case to
determine whether an accused's version is reasonably possibly
true is
something which is permissible....."

Such a
state of affairs cannot be reached without him giving explanations of
factors implicating him in a case. Should such implicating
factors
remain unexplained then they might become

conclusive
of guilt.

On the
basis that possible failure of justice might result if the accused in
the instant case is discharged, in exercise of my discretion
I rule
that the application be refused in respect of both counts charged,
and it is so ordered.

J U D G E
3rd August, 1992

For Crown
: Messrs Lenono and Semoko

For
Defence: Messrs. Phafane and Nthethe