CRI\T\2\92

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

(NKALIMSNG
MOTHOBI)(ABSCONDED)

1. SAMUEL
MONONTSI MALIEHE

2. TEBOHO
MICHAEL CHAKA

3.
REMAKETSE SEHLABAKA

RULING

Delivered
by the Hon. Mr. Justice M,L. Lehohla on the 8th day of February, 1993

At this
stage of proceedings the Court is called upon to determine two
things: first if the Crown is entitled to address the Court
and make
submissions the purport of which was to urge the Court to reverse an
interlocutory order it had made regarding inadmissibility
of what on
the face of it was hearsay tendered earlier during PW7 'Mabasiea
Phomane's evidence; secondly whether the Crown could
be allowed, at
the stage when it had virtually completed leading the evidence of PW8
Fusi Koetje (an accomplice witness), to make
submissions geared at
having what appears to be hearsay evidence led and admitted on the
ground that such

2

evidence
is an essential element in proving the existence of a conspiracy and
part of the common purpose in carrying out the offences
charged. A
subsidiary part of this second question is whether even though the
defence had not started cross-examining, the crown
could without
applying for reopening of its evidence, lead evidence even if such
evidence though hearsay is in terms of the law
admissible (being acts
or declarations of co-conspirators, which are executive in nature as
opposed to acts or declarations which
amount to no more than a mere
narrative ascribed by one co-conspirator to another).

It is
necessary to refer to words appearing in the ruling made by. this
Court on 12th November 1992 at the time when hearsay evidence
was
objected to by Mr. Sooknanan. The following were the words :

"At this stage Mr.Sooknanan raised an objection on the ground
that this was hearsay and ought not to be admitted in evidence.

Mr.Mdhluli for the Crown opposed this application and stated that due
to the unexpectedness of this objection he would in due course
back
his objections with authorities which for the moment he was not armed
with. However he later decided that he would abandon
his objection as
he felt he would pursue an alternative option to achieve his end".

The
upshot of the crown's attitude regarding its opposition to the
objection raised in regard to PW7's evidence was the withdrawal
of
such opposition and a request that the offending phrase in that
witness's evidence be struck off and it was so

3

ordered.

The
question arises whether in respect of PW8's evidence the crown was
not entitled to raise a similar objection. I think it was.
However
the question remains at what stage? It should be borne in mind that
mindful of the foregoing order the crown fought shy
of leading
hearsay evidence of PW8 till it had virtually completed it, However
when the court resumed and before the defence could
cross-examine the
crown made its submissions supporting the view that there are
exceptions to hearsay rules.

Mr.Maqutu's
observations and submissions were very much to the point when he
pointed out that the court never overruled the crown
on the sort of
evidence it intended leading from a witness who sought to prove
statements relating to execution of the plan. It
overruled the crown
on hearsay. Mr. Maqutu accurately observed that there hadn't been any
suggestion by the crown that the statements
it sought to lead in
evidence were of executive nature or that such evidence would revolve
on conspiracy.

Mr. Naqutu further stated

'My learned friend claimed that the court overruled him on something
he didn't say he had intended leading. If the court had; then
the
court would have been functus officio. He was not overruled on that
one. After he has laid a proper basis for conspiracy then
if there
are executive statements he seeks to lead he would be entitled to do
so at an appropriate moment. He hasn't

4

been overruled on the point he seeks to address the court on. The
conspiracy he seeks and has in mind has to be relevant, I submit
that
executive statements are admitted provisionally because at the end of
the day the court has to decide the point of admissibility
for it is
never straightforward".

On the
other hand Mr. Govender with whom Mr. Sooknanan associated himself
submitted that

"The issue is whether the crown can lead evidence amounting to
hearsay. The crown led the witness identified as an accomplice,

During the course of leading the evidence of this witness the defence
objected to the evidence of Mothobi (who has absconded) being
led as
hearsay. The court made a ruling in so far as that amounted to
hearsay. The crown proceeded to lead and completed the evidence
of
PW8. It was then for the defence to cross-examine. But the crown
sought to address the court on an interlocutory order without

application to reopen and without leading Mothobi's evidence. In such
circumstances I submit the court is functus officio."

Learned
Counsel referred the court to Feinberg vs. Pietermaritzburg Liquor
Licensing Board 1953(4) SA 415 AD at 419; where it is
stated

"........ that, subject to exceptions in the case where fraud or
perjury have taken place, a Board, once it has definitely
given its
decision for or against a grant or refusal of a licence is functus
officio. Assuming the correctness of this decision,
it is clear that
when a Board is brought into a court of law as a respondent, it is
entitled, in opposing any application that
is made against it, to
raise any legal defence: in such a case it cannot be said to be
functus officio". See also S. vs. Mazibuku
1974(2) SA at 321
reported in Afrikaans.

In reply
to the conflicting versions by Mr. Maqutu on the one hand that in so
far as no ruling was made regarding leading

5

of
hearsay evidence relating to executive statements the court was not
functus officio and by Mr, Govender on the other hand that
the court,
having overruled the crown with regard to leading hearsay evidence,
was functus officio Mr. Mdhluli exploited the difference
and
indicated that the composite counsel for defence do not speak in one
voice with regard to this issue of functus officio. Indeed
I find
these two positions by the defence irreconcilable,

The crown
further submitted, accurately in my view, that our Criminal Procedure
and Evidence makes no provision for what in other
jurisdictions is
provided in the C.P. & E and referred to as "Special Entry",

Harking
back to Mazibuku above, relied on by Mr. Govender in further support
of the proposition made earlier that interlocutory
orders are at
times final Mr. Mdhluli, in response to the suggestion that the court
cannot on the authority of that case reverse
its final decision,
submitted that Mazibuku is not on all fours with the instant case
because in that case the Magistrate had not
only given judgment but
had passed sentence in which event surely it would be trite that the
Magistrate was clearly functus officio.
Thus he could not review his
decision. That decision could only be reversed on Appeal or Review.
Accordingly Mr. Mdhluli submitted
that the order given by the court
in the instant case was not final, I agree with this

6

submission.

With
regard to common purpose Mr. Govender submitted that authorities are
clear that an act or declaration by co-conspirators in
furtherance of
a conspiracy or common purpose is admissible against each other
provided these acts or declarations ate of an executive
nature. He
sought to draw a distinction between executive acts or declarations
and a narrative of a story by a co-conspirator.
In this regard the
court was referred to R. vs Mayet 1957(1) SA 492 at 494 where
Schreiner JA said in reference to the judgments
of Watermeyer JA and
Stratford CJ -

"the difficulty is discussed of avoiding circuitry of reasoning.
Since what A said in B's absence cannot be evidence against
B of the
truth of what was said unless A was B's agent to say those things,
how can one prove that A was B's agent to say them
by showing what A
said? That is one side of the picture. But there is another side,
namely, that

on charges of conspiracy, the acts and declarations of each
conspirator in furtherance of the common object are admissible
against
the rest; and it is immaterial whether the existence of the
conspiracy, or the participation of the defendants be proved first,

though either element is nugatory without the other'.

(Phipson 9th Ed. p.98). Although this principle may have originated
in the English law of criminal conspiracy it applies also where

parties are charged with a crime and the case against them is that
they acted in concert to commit it; it makes no difference whether

the particular trial is of one or some or all of the conspirators.
Words that are said as part of the carrying out of a purpose
stand on
the same footing as arts done; they differ from a mere narrative. All
the evidence of acts, and of words that, being executive,
are
indistinguishable from acts, must be

7

looked at in order to ascertain whether there was a conspiracy, and,
if so, who wore the conspirators. If all the evidence brings
the
court to the conviction that the existence of the conspiracy and the
identity of the conspirators are proved, the law does
not find an
insuperable difficulty in the logical objection that some of the
evidence could only be used if the eventual conclusion
were
established".

In a
ruling following PW7's evidence this court referred to Huffman 4th
Edition at 632 where in regard to hearsay at common law
it is stated:

"An exact formulation of the rule has never been attempted by
the courts, and there is no agreement among text-book writers.

Phipson, for example, in superceded editions, states the rule as
follows :

'Oral or written statements made by persons who are not parties and
are not called as witnesses are inadmissible to prove the truth
of
the matters stated.....'

There are one or two things about this definition which will call for
further comment, but for the moment it should be noted that
this
definition has been approved by the Appellate Division in S vs
Holashausen, but that it it contrary to more recent authority
in
foreign jurisdictions",

Mr.
Govender strenuously submitted that the difficulty in the instant
case is that the crown will have to establish that there is

conspiracy or that the accused participated in it independently of
hearsay evidence. He further submitted that the double hearsay

evidence in C. of A, (CRT) No. 3 of 1975 Makalo Moletsane &
Others vs Rex (unreported) was not even commented upon by the Lesotho

Court of Appeal where at page 3 Isaacs A.J.A.

8

said :

"In the case of the first appellant Makalo Moletsane, who was
accused No.1 at the trial the main witness against him was one
Ben
Tlali, said to be an accomplice. This witness(PW1) testified that he
was a member of the Basutoland Congress Party, that he
was told by
one Moerane that certain persons would be coming to his house to do
certain things, in order to defend themselves as
he had heard that
the Prime Minister had decided to kill the members of the Basutoland
Congress Party (B.C.P.)".

On the
above basis it seems that although the South African Appellate Court
is in favour of following one direction from the morass
of
conflicting text book writers the direction followed by the Highest
authority in Lesotho is different.

The court
was referred to R. vs. Victor and Another 1965(1) SA 249 at 255 where
Beadle CJ said:

"The trial court clearly has a discretion in deciding on the
order or sequence in which the evidence is given and in the normal

course I would imagine that that discretion would be exercised so as
not to allow evidence of a prejudicial nature, whose admissibility

depends on certain further facts being proved, to be led before those
facts will finally be proved; because if those facts were
not proved
the evidence first led would be inadmissible, and though it may be
possible to order the evidence to be expunged from
the record, it may
not be so easy, particularly in the case of a jury, to expunge it
from the mind of the court. I consider, therefore,
that some evidence
apart from the statements themselves would be required to show that
there is a real possibility of proving that
the parties acted in
concert, before the statement of one would be examined as evidence
against another, but I do not know of any
principle of the law of
evidence which requires more evidence aliunde than that".

9

But Wigmore on Evidence section 1871 says

"The possibility that the other facts may not be made good is a
necessary risk to be taken, and in case of a failure to make
them
good, the subsequent striking cut of the evidence now offered is
regarded as an adequate remedy".

I agree
with this view.

Furthermore
Mr. Mdhluli's submission that the authority of Victor relied on by
Mr. Govender is merely obiter and has no binding
force seems
legitimate to me; being as Ear as I can evaluate it a practical
suggestion as to which is to come first between proof
of conspiracy
and production of evidence aliunde.

In S. vs
Banda 1990(3) SA 466 at 504 to 505 it is specifically indicated that
it does not matter whether evidence is proved before
or after.....in
the following words at p.505

"It is immaterial whether the existence of the common purpose or
the participation of the person therein be proved first......."

At
paragraph D the same authority stresses the position as follows :

"It does not matter whether the evidence is admitted before a
conspiracy is proved, provided, however that a conspiracy is

eventually proved".

On this
score it seems to me that the authority of Victor should go by the
board.

10

It is
interesting to note in the above authority of Banda that reference
was even made to Rex vs Levy 1929 AD 313 at 326-328 where
Curlewis
said -

"Sometimes for the sake of convenience declarations or acts are
admitted before proof......."

In his
invaluable works styled Cross on Evidence 7th Ed. Sir Rupert Cross at
page 589 says

"The admissions of one conspirator are receivable against the
other if they relate to an act done in furtherance of the conspiracy,

but nob otherwise...."

The
learned author having referred to what he terms the advancement of
the common object proceeds as follows :

"In determining whether there is such a common purpose as to
render the acts and extra-judicial statements done or made by
one
party in furtherance of the common purpose evidence against the
others, the Judge may have regard to these matters, although
their
admissibility is in issue, as well as to other evidence. This
doctrine is obviously liable to produce circularity in
argument:.............................
The answer is that the agency
may be proved partly by what A said in the absence of B, and partly
by other evidence of common purpose.
It makes no difference which is
adduced first, but A's statements will have to be excluded if it
transpires that there is no other
evidence of common purpose; it is
another instance of conditional admissibility.

In England this view of the law has been accepted without cavil, or
much elaboration.............. but it is in relation to conspiracy

trial that the rule may operate most oppressively".

11

At page
1076 Clause 4077 of Archbold's Pleading, Evidence and Practice in
Criminal oases 4 0th Ed, it is stated under the heading
furtherance
of the common design:

"The acts and declarations, also, of any of the conspirators in
furtherance of the common design, may be given in evidence
against
any other conspirator.... and this principle applies when the charge
is of a crime committed in pursuance of a conspiracy,
whether the
indictment contains a count for conspiracy or not, and it makes no
difference as to the admissibility of the act or
declaration against
the defendant whether the former he indicted or not, or tried or
not".

It is
trite that acts and declarations made in furtherance of a common
purpose are admissible by a co-conspirator against the rest
but only
if they are relevant and they are relevant when they are executive
and not when they are narrative.

To hark
back to the first question posed in the instant matter whether it is
permissible for the crown without seeking leave for
reopening its
case to seek to lead further evidence, it seems to me that
technically the witness was still the crown's witness,
having not
been cross-examined before the crown stated the position in law
regarding the desirability of leading hearsay evidence
for purposes
of proving acts and declarations indicating conspiracy, to commit the
offences charged. The door could be said to
have been securely shut
to the crown if cross-examination had started. On this score it
appears that there strictly would be no
need for the crown to beg
leave of court to reopen its case

12

though
its act could be criticized as verging on the presumptuous regard
being had to the fact that Mr. Mdhluli as befits a dutiful
officer of
this court readily admitted that he had in fact closed crown evidence
in respect of PW8. I cannot foresee that if the
crown out of sheer
courtesy sought leave of court to reopen its case that this would be
refused. The basis for being inclined to
grant such leave being that
no cross-examination had commenced; thus there couldn't at that stage
have been any prejudice to be
suffered by the accused. Furthermore
the authority of Rex v Hepworth 1928 AD 265 at 277 by Curlewis JA is
relevant that a criminal
trial is not a game where one side is
entitled to claim the benefit of an omission or mistake made by the
other side. A criminal
trial ought to be conducted in such a way that
the interests of justice are preserved. The judge is there to ensure
that this is
done.

It thus
cannot hold that because the crown before the previous ruling said it
was going to try other options in its determined effort
to persuade
the court that, equipped with relevant authorities, it would, but for
the unexpectedness of the objection at the time,
lead hearsay
evidence which is exception to the rule that it cannot be led. should
fail to lead such evidence if it hasn't availed
itself of any such
alternative options despite its clear intention to do so at the
earliest possible opportunity which in this
regard might have been
furnished by the weekend before resumption of this hearing.

13

The other
question whether the crown is entitled to lead hearsay evidence
should be answered in favour of the crown on the basis
of authorities
considered in relation thereto.

The court
further makes a ruling as properly indicated by Mr. Maqutu that it
had not given any ruling on the issue being considered,
further that
in an interlocutory matter such as the present even if it had made a
ruling the court would not be functus officio
the reason being that
such an order is by nature not final.

It stands
to reason finally that the two points raised at the beginning of this
ruling including the subsidiary one should be resolved
in favour of
the crown. It is so ordered

JUDGE

8th
February, 1993

For Crown
: Mr. Mdhluli

For
Defence : Messrs Governder , Maqutu, Sooknanan and Khasipe