C. of A.
(CRI) No.7 of 1984

IN THE
LESOTHO COURT OF APPEAL

In the
Matter between :

TEBOHO
MOHAJANE 1st Appellant

TOKELO
MACHACHAMISE 2nd Appellant

and

REX
Respondent

HELD AT
MASERU

CORAM:

Schutz P

Mahomed
J.A.

Aaron
J.A.

JUDGMENT

Aaron
J.A.

In
seeking to prove that appellant No.1 was one of the two persons who
broke into the home of John Babu on the night of 15th/16th
July 1982,
the Crown relies on a pointing out by a witness at an identification
parade and also upon the fact that the pistol which
was used on that
night by the intruders was the same pistol as was found on the person
of appellant No.1 some three days later.
Evidence was led from a
ballistics expert that a pistol which he examined in Pretoria in
August 1983 and which was accompanied
by a letter from the Lesotho
Mounted Police Headquarters, saying that it had been brought to
Pretoria by Detective Soboka, was
the pistol which had been used to
fire certain cartridges which had been found outside John Babu's
house shortly after 16th July
1982. This pistol had been handed in as
an exhibit, and marked Exhibit 8. Evidence was also led that a gun
was removed from the
person of appellant No.1 on 20th July 1982, and
that it was similar to Exhibit 8. But as will appear from the
judgment on

2

the
merits, the evidence did not relate everything that was done with the
pistol between the time that it was taken from appellant
No.1 on 20th
July 1982, and the time that it was received by the ballistics expert
in August 1983, with the result that there were
a number of gaps in
the chain of evidence by which the Crown sought to link appellant
No.1 with the pistol examined by the ballistics
expert.

When this
became evident during the argument before us, the Crown applied for
leave to adduce further evidence before the Court
of Appeal in order
to close the gaps. This application was made by filing a Notice of
Intention to Lead Further Evidence. It indicated
the nature of the
evidence which the Crown wished to lead, the names of the witnesses
it wished to call, and the "Grounds"
why the evidence was
not led at the trial. Mr. Ramodibedi who appeared for appellants,
objected to the leading of this evidence
at this stage. One of the
grounds upon which he objected was that the application was not
substantiated by an affidavit. He contended
that such an affidavit
was necessary. After hearing argument, the Crown's application was
dismissed. It was indicated that reasons
would be given later. The
following are the reasons.

The power
of the Court of Appeal to allow further evidence to be led before it
derives from s.12 of the Court of Appeal Act, 1978.
The section reads
–

"The
Court may, if it thinks it necessary or expedient in the interests of
justice –

1. .....

   
   

2. order
   any witness who would have been a compellable witness at the trial
   to attend and be examined before the Court, whether he
   was or was
   not called at the trial ...

   
   

3. receive
   the evidence, if tendered, of any witness (including the appellant)
   who is a competent but not compellable witness ..."

   
   

3

It will
be seen that the only criterion expressly laid down is that it be
"necessary or expedient in the interests of justice".
The
South African courts have held in a long series of cases that while
the ultimate objective of the Court in exercising its discretion
by
allowing further evidence to be led might be to further the interests
of justice, nevertheless the attainment of this objective
is subject
to compliance with certain requirements (cf. R v. de la Bat, 1953(3)
SA 67 (C) at 69 C-D). Two require­ments have
frequently been
stressed. In R v. Foley 1926 TPD 168 at 177, GREENBERG, J (as he then
was) stated them in the following terms :

"(1) that the fresh evidence tendered must be material to the
merits of the case; (2) that there must be some possible explanation

based on allegations which may be true, why the evidence was not put
before the court. If these requisites are present the court
may grant
the relief asked for, but the circumstances of each case will have to
be considered".

In R v.
Cohen 1942 TPD 266 the Full Bench of the Transvaal Court followed
this, but changed the word "possible" in the
second
requirement to read "reasonable or reasonably sufficient".
In R v. de Beer 1949(3) SA 740 (AD) at 748, HOEXTER,
JA said (the
judgment was in Afrikaans, but we translate it) :

"The first (requirement) is that the applicant accused must put
forward grounds reasonably capable of standing up, as to why
the
relevant evidence was not led at the trial".

The
cumulative effect of these decisions (and the many others which have
followed them) may be summed up in the following words
which appear
in the judgment of CENLIVRES, CJ in R v. van Heerden and Another
1956(1) SA 366 (A) :

"The mere fact that a miscarriage of justice may have taken
place is not sufficient to justify the admission of fresh evidence

for, in cases where the

4

evidence
was available at the trial

'there must be some possible explanation based on allegations that
may be true why the evidence was not put before the Court' .....

I am drawing attention to this factor because the sole criterion in
an application for leave to lead further evidence on appeal
is not
whether a miscarriage of justice may have taken place. However
strongly the further evidence may indicate that there may
have been a
miscarriage of justice, the Courts will not allow it to be led unless
the appellant satisfies the requirements laid
down in the decided
cases".

The
reason for requiring an explanation why evidence

which was
available at the trial was not led then, is that –

"the investigation of the facts by the tribunal of first
instance ought to be, as a rule, final: and if a suitor is willing
to
close his case and to submit to the finding of the trial Judge upon
the evidence adduced, he should not, save in excep­tional

circumstances, be allowed to bring forward further evidence.
Otherwise there would be no finality in these matters.

(per INNES, ACJ (as he then was) in Stein v Excess Insurance Co. Ltd
1912 AD 418 at 4291

Although
these words were written in a judgment given in a civil case, they
have been applied in criminal cases also, because one
of the ways in
which the interests of justice are to be served, in criminal as well
as in civil cases, is that there should be
finality in litigation. In
R v. Carr, 1949(2) SA 693 (A) at 699, GREENBERG JA said that –

"it must be emphasised that the inadequate presentation of the
defence case at the trial will only in the rarest instances
be
remediable by the adduction of further evidence at the appeal stage.
However serious the consequences may be to the party concerned
of a
refusal to permit such evidence to be led, the due administration of
justice would be greatly prejudiced if such permission
were lightly
granted".

5

That in
criminal appeals too the circumstances must be exceptional before
additional evidence will be allowed to be led on appeal
appears from
R v. Carr, and also from R v. Mhlongo 1935 AD 133; and R v. Kanyite
1944 AD 293.

In
England the Court of Criminal Appeal has displayed a similar caution
about admitting further evidence on appeal. In R v. Parks
1961(3) ALL
E.R. 633, LORD PARKER. CJ said (at 634) –

"It is only rarely that this court allows further evidence to be
called, and it is quite clear that the principles on which
this court
acts must be kept within narrow confines, otherwise in every case
this court would be asked in effect to carry out a
new trial. As the
court understands it, the power under s.9 of the Criminal Appeal Act,
1907, is wide. It is left entirely in the
discretion of the court,
but the court in the course of years has decided the principles on
which it will act in the exercise of
that discretion. Those
principles can be summarised in this way. First, the evidence that it
is sought to call must be evidence
which was not available at the
trial. Secondly and this goes without saying, it must be evidence
relevant to the issues. Thirdly,
it must be evidence which is
credible evidence in the sense that it is well capable of belief; it
is not for this court to decide
whether it is to be believed or not,
but it must be evidence which is capable of belief. Fourthly the
court will after considering
the evidence go on to consider whether
there might have been a reasonable doubt in the minds of the jury as
to the guilt of the
appellant if that evidence had been given
together with the other evidence at the trial".

It will
be noted that in one respect the English courts have imposed a much
more restrictive test than the South African courts:
if the evidence
was available to the applicant at the time of the trial, then it will
not be admitted at a later stage. It may
also be noted that the
wording of s.9 of the English Criminal Appeal Act, 1907, is for all
practical purposes, identical to the
wording of s.12 of the Court of
Appeal Act, 1978, of this country.

In this
country, the Court of Appeal has dealt with the

6

question
on a number of occasions, and has adopted the same approach as the
South African Courts, requiring "exceptional circumstances"

before allowing further evidence to be led (Matsoete Makoetje and
others v. Regina, 1955 HCTLR 64 at 65-6; Mabalekelwa Jim and
others
v. Regina 1959 HCTLR 92 at 97 C - 98 B; Jemina Mofubelu v. Rex
(unreported: C/App (Cri) No.5/1976). In the latter case,
MILNE, JA,
after stating that the Court had allowed certain evidence to be led
on appeal, went on to say:

"The circumstances were very special as an examination of the
complete record will show, and it is not to be taken that the
Court's
decision implies that this Court, in the exercise of its powers under
section 8(b) of the Court of Appeal Proclamation
No.72 of 1974, will
order further evidence to be heard simply in order to fill a gap in
the evidence led at the trial. Such a power
will be most sparingly
exercised and in only exceptional circumstances of the kind present
in this case, ......."

The
application made in that case was practically on all fours with the
application made in the present case. The Crown had failed
to close
the chain of proof linking three bottles which were handed by the
appellant to a certain chief with two bottles, the contents
of which
were later analysed by an analytical chemist. The Court of Appeal
found that the circumstances were very special, and
allowed evidence
to be admitted which closed the gap.

The
special circumstances which existed in that case were that at the
trial, certain portions of the record of the preparatory examination

had by consent been read into the trial record without the witnesses
being called or cross-examined; that a gap existed in the
evidence;
that nobody had appreciated that there was such a gap; that the point
had not been raised in argument at the trial, nor
in the grounds of
appeal, but was raised only by the Court of Appeal; that there had
been a "confession" by the appellant,
and that the deaths
of the

7

deceased
had followed so closely upon appellant mixing the brew which caused
the death that it was in the interests of justice to
hear the
evidence,

In this
Court, SCHUTZ, P is of the view that the circumstances of this case
are of the same kind as were present in Mofubelu's case
and that the
evidence should be admitted. We are unable to reach the same
conclusion. It is not necessary in this case to decide
whether the
South African approach should be adopted in this country as being the
more suitable where a substantial portion of
the population comes
from rural areas, and is relatively unsophisticated, or whether the
more restrictive approach of the English
courts should be followed,
because even on the more liberal approach adopted by the South
African courts, the evidence should not
in our view be allowed to be
led. Our difficulty concerns the explanation that has been tendered
by the Crown as to why the evidence
which it wishes to lead, and
which was available to it at the time of the trial, was not led then.
In some cases, it may be possible
to see that explanation from the
record itself. In others, an explanation tendered from the Bar by the
appellant's counsel may
be accepted as sufficient by opposing
counsel. But in the present case, Counsel who appears for the Crown
on appeal before us was
not the same Counsel as appeared at the
trial, and she had no personal knowledge as to why the evidence was
not led. The "grounds"
put forward by the Crown to explain
why the evidence was not led at the trial are the following –

1. "The
   defence did not contest that the pistol and used shell examined by
   the Ballistic expert was a different pistol from
   the one ...
   recovered from Appellant 1;

   
   

2. There
   were many counts at the trial in this case so that some of them had
   to be dropped and this may have caused confusion as
   to which

   
   

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evidence to lead resulting in this evidence inadvertently being left
out; (emphasis supplied)

3. The
   evidence sought to be led is evidence of a formal nature, and would
   in no way be prejudicial to the appellants;

   
   

4. In
   the interest of justice it is important that this evidence should be
   led."

   
   

As
already appears from what we have said above, the fourth ground is
not in itself enough. The third ground does not explain why
the
evidence was not led at the trial. The second ground is not an
explanation of what in fact happened, but is only specula­tion.

The first ground is a statement of fact, but is not sufficient to
constitute an explanation. It is not stated that the prosecution
was
misled (as appears to be implicit in the judgment in Mofubelu's
case); if the failure by the defence to contest the point was
in the
course of argument at the end of the trial, it could not be used to
explain a prior failure by the Crown to lead necessary
and
significant evidence. If reliance is placed upon a failure to contest
the point in cross-examination, that must be viewed in
the light of
the evidence led by the Crown. If the evidence was insufficient to
link the gun examined by the ballistics expert
with that taken from
the appellant, then the defence was entitled not to ask any questions
on the point. The explanation given
to the court on the first ground
is thus incomplete.

Having
regard to the fact that Mr Ramodibedi had not accepted the
explanation tendered from the Bar, the Crown was afforded an
opportunity of putting an affidavit before the Court, but we were
advised that it was unable to do so. In these circumstances, I
was of
the view that the Crown had not provided a sufficient explana­tion
as to why the evidence now tendered had not been
led at the trial. I
was accordingly of the view that the application to

9

lead
further evidence should be refused.

(Sgd.) ...S..Aaron

A. AARON

Judge of Appea

I
agree (Sgd.) . Mahomed

I. MAHOMED

Judge of Appeal

I did not
agree with (Sgd.) W.P. Schutz

the
judgment of W.P.SCHUTZ

AARON,
JA, but inasmuch President as it represented the view of the majority
of the Court, the order of the Court was that the application
be
refused.

Delivered
on this 26th day of July 1985