CRI/A/84-85/83

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

1. MAKOAE
MOLAPO

2. NTALA
LELEKA Appellants

3.
MONESAPULA SELAHLA

4. RAMPHO
PHALATSI

V

REX
Respondent

JUDGMENT

Delivered
by the Hon. the Chief Justice Mr. Justice T.S. Cotran on the 17th day
of April 1984

Four
accused persons whose names appear above were convicted by a
magistrate at Mokhotlong (Mr. Nomngcongo) of assault with intent
to
do grievous bodily harm. They were modestly fined and the fine has
been paid. The learned magistrate took into account that
the
complainant was the initial aggressor. This was a family fight in
which brother was pitted against brother, the mother of both,
who
gave evidence, watching helplessly in horror.

All four
accused appealed but only three paid the appeal fees, viz, Molapo,
Selahla and Phalatsi. I shall refer to these three
as the appellants.

Mr. G.N.
Mofolo argued that the Crown evidence was not only unsatisfactory but
that when he submitted that there was no case to
answer at the end of
the case for the Crown, the Public Prosecutor agreed and said words
to the effect that the "stand"
(presumably taken by the
mother of the complainant) was "incredible".

The
magistrate, however, disagreed and held that there was

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indeed a
case. Mr. Mofolo did not call upon the appellants (and the fourth
accused) to testify. The magistrate, as I said, convicted,
and Mr.
Mofolo now submits that the magistrate was bound to acquit.

Mr. Peete
for the Crown who was unaware of the new legislation, initially
agreed and submitted, on the strength of Tsematsi Mosolo
v Rex (Court
of Appeal CR/A/1/1979 dated 7th September 1979 - unreported) that
what the prosecutor had said tantamounts to the
withdrawal of the
charge by the Director of Public Prosecutions. That appeal however
was decided on the strength of s.7(2)(c) of
Criminal Procedure and
Evidence Proclamation (as amended by Act No.4 of 1975) and on some,
though by now means all, precedents
in the Republic of South Africa,
but the law has since changed. I had occasion in R. v Setai (1980(2)
LLR p.359 at 361-375) to
voice some apprehension about the matter in
the circumstances prevailing in Lesotho. The legislature was then
debating the consolidation
of, and amendments to, the above
Proclamation which culminated in the Criminal Procedure and Evidence
Act 1981 (No.7 of 1981) by
s.5(c) whereof the words "in
writing", which did not appear before, were inserted. Some
meaning must be attached to the
use of these words as one must assume
the legislators were cognizant of the issue and the only meaning I
can think of is that the
Director of Public Prosecutions must give
his written consent to the withdrawal or discontinuance of a
prosecution or there must
be factual proof either a quo or here that
his subordinate was acting in accordance with his general or special
instructions (s.6(1)).
There is no such proof and mere words uttered
by a public prosecutor are no longer sufficient to Inevitably result
in an acquittal,
if the judicial officer has before him evidence upon

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which he
might convict In this case there was such evidence The appeal must be
dismissed but if Mr Mofolo wishes to take the matter
further leave to
appeal is granted and if Mr Peete requests me to state a case in
terms of s 15 of the Court of Appeal Act 1978,
I shall be happy to do
so

CHIEF
JUSTICE

17th
April 1984

For
Appellants Mr. Mofolo

For Crown
Mr. Peete