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CRI/A/38/91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

NYEMBEZI
LEKHOOA Appellant

and

REX
Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi Acting Judge on the 11th
day of May 1994

This is
an appeal from the Subordinate Court of the district of Quthing in
its judgment of the 24th January 1991. The Accused was
convicted and
sentenced to a term of imprisonment of Five Years on a charge of
Assault with Intent to do Grievous Bodily Harm,

The
following grounds of appeal were filed namely:

"1.

The
learned magistrate misdirected himself in allowing the accused to
lead evidence in his defence when he had elected to remain
silent, as
a result there was a gross irregularity which resulted into a failure
of justice.

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2.

The
learned magistrate erred in failing to read the accused rights
properly, in that he told the accused that he could elect to
remain
silent and still be entitled to adduce evidence in his defence, As a
result the accused was prejudiced in his defence consequently
there
was a failure of justice.

3.

The
conviction is not supported by the evidence tendered in the following
respects:

1. The
   learned magistrate did not take into account the fact that PW1 was
   drunk at the material time of the commission of the offence,
   so that
   her evidence warranted a cautions consideration.

   
   

2. The
   learned magistrate erred in dismissing the evidence of PW2 as
   nothing but a pack of lies,

   
   

3. It
   is not all reasonable inferences established by the facts proved
   that are consistent with the accused guilt.

   
   

4.

The
learned magistrate adopted a passive role in the proceedings in that
he did not assist the accused in formulating his questions
properly
and endeavouring to

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assist
the accused to project his defence to the crown witnesses; as a
result there was a failure of justice."

The third
and forth ground of appeal I would reject outright as being devoid of
substance or rather technical in the light of what
transpired in the
proceedings, namely, that on two occasions accused decided to keep
silent. That was after the close of the Crown's
case and defence
case. I did not find fault with the judgment of the magistrate on
merits. The evidence was just overwhelming.

It
appears that after close of the Crown case the following happened (as
at page 9 of the record):

"Rights explained, accused understands and elects to keep
silent. Accused wants to call one Volly as his witness failing which

this case will proceed if there is no reasonable excuse why his
witness does not turn, and bearing in mind that accused knew that
his
case was proceeding to day but left his witness at home and that he
is not in custody. Hearing postponed to the 24/1/91 O/R/

SGD B.S. MAKALIANA - MAGISTRATE

On the 24/1/91 accused before court, case proceeds. Accused calls his
witness, D.W. 1 Volly Livestock a x/man adult aged 28 yrs
s.s.: I
know nothing about this case, when accused arrived at the home of
Matala I was with Mazikisa and nothing happened."

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Section
175(4) of the Criminal Procedure and Evidence Act 1981 reads:

"(4) At the close of the evidence for the prosecution the
judicial officer shall ask the accused, or each of the accused if

more than one, or his legal representative, if any, whether he
intends to adduce evidence in his defence and if he answers in the

affirmative he or his legal representative -

1. may
   address the court for the purpose of opening the evidence intended
   to be adduced for his defence without commenting thereon;

   
   

2. shall
   then examine his witnesses and put in an read any documentary
   evidence which is admissible."

   
   

The above
provision is similar to the repealed section 172(4) of the Criminal
Procedure and Evidence proclamation no. 59 of 1938
and the repealed
section 157(4) of the Criminal procedure Act no. 56 of 1955 of the
Republic of South Africa.

The
requirement is that the Presiding Officer shall explain to an accused
person the course open to him and should be interpreted
to require
that the accused be asked both whether he wishes to give evidence
himself and separately whether he wishes to call any
other witnesses.
A conviction will be set aside if the magistrate is unable to
specifically say whether he has given

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an
explanation of his rights to the accused, for there is a duty on a
magistrate to satisfy himself that the accused has been given
an
explanation of the course open to him at the close of the Crown case,
(see R v NQOBUKA 1950(2) SA 363(T). It is however not
necessary for
the record to set out the explanation verbatim; An indication of the
position will be sufficient in the absence of
specific allegations by
the accused to the contrary (see R v MAHALOA 1953(1) 454 SA (T).

I did not
find that the magistrate went wrong in that regard. But Mr. Mda was
not only concerned with the alleged failure by the
magistrate to
explain the options. He submitted that it was irregular to have
misled the Accused into calling a witness when he
himself has not
given evidence. There is no irregularity in that. I do not accept
that the Accused was misled. The election given
to the accused is
that he may himself give evidence or call "any other witness".
Of course the accused himself is a witness
when he gives evidence. It
is clear from the record that the Accused made an election, and
decided not to give evidence himself.
That is why he spoke of calling
his witness for the following day. It is not without significance
that the magistrate uses the
word "elect". The accused
chose one course of action as against others. He was entitled to do
so.

I would
find that the Appellant's attack on all grounds is unfounded and
without substance. The appeal therefore is dismissed.

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T.
MONAPATHI

Acting
Judge

For the
Appellant : Mr. Mda

For the
Crown : Mr. Sakoane