CRI/T/66/90

IN
THE HIGH COURT OF LESOTHO

In the matter of :

REX

v

LEFA MAKHETHA HELD ATQUTHING

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
13th day of December, 1990

The accused was charged with the crime of Murder in that
on 30th day of April 1989 at a place called Ha Thaba Bosiu in the
Mohale's
Hoek district he had unlawfully and intentionally killed one
Limakatso Matsoso.

The Crown dispensed here with the evidence of two
witnesses namely P.W.4 Matseliso Leeba and that of P.W.5
'Manthahiseng Ramaili.
The accepted admissions on behalf of the
accused were P.W.6 Matlere Matsoso and that of P.W.7 Dr. Shaikh.

The Crown led the first and only evidence of P.M.3
Trooper Lethoko who told the Court that on the 1st of May 1989 while
still at
his station at Mohale's Hoek he had cause to proceed to
the scene after receiving a report of the dead body of a female. The
body
was lying between the houses of one 'Manthahiseng Ramaili. This
witness observed one wound on the head of the deceased. In the
cause
of his

/investigations

-2-

investigations he had cause to introduce and identify
himself to the accused. And he told me that he gave the accused
caution. Asked
to elaborate on the caution that he gave, he told the
Court that he produced an Identity Card and warned the accused that
he was
investigating the death of the deceased. Whereupon the
accused gave him some explanations and the explanations led to the
accused
leading him to the accused's residence where a stick was
pointed out, and from there the dead body was collected and the
accused
was conveyed in the same vehicle as the deceased. The body
was deposited at the mortuary and the accused was led to the police
station.
It is at this juncture that P.W.I told me that he warned
the accused that he was not obliged to make any statement and that
should
it he make it he should know that it would he used in the case
against him.

From the evidence given, it doesn't appear that any more
thing was revealed which might incriminate the accused after this
warning
that was given at the Charge Office. At this juncture one
wonders what now was the use of this caution that was given at the
Charge
Office.

The exhibit is before Court, it was retrieved before the
caution was given that the accused was made to remain silent. It
would seem
therefore logical that the

accused was taken advantage of,his rights were
trampled.on.

Caution caution constitutes what are termed the
Judges'

rules and these are administrative rules of procedure


which have to he observed during investigations. Indeed


there is a body of that authority to the effect/these rules


are mere administrative rules of procedure and don't
have

the essential force of law. But their basis is towards


achieving fairness in a trial between the two parties
which

appear before Court. It is indeed on account of the
body

of the authority that I have referred to that time and


again Judges bend backward to ensure that justice
is

nonetheless achieved even at the expense, or sometimes, of


some of these procedural rules. But in this particular


case it appears that the extent to which the

/accused's

-3-

accused's rights have been trampled on no Court can
connive at it.

Through questions put to P.W.3 it was suggested that the
accused was molested while in custody. That has got no substance
whatsoever
and I reject it. There would he no reason why, after the
accused had already produced the most essential part of the evidence
in
the Crown case he could afterwards he molested. This would, if
the case were to go on strengthen the case for the Crown if this
particular line that was being proposed was followed. For indeed if
the accused were to he proved a liar beyond reasonable doubt
an
inference of guilt would follow. It is on this technical ground of
police faulty investigation therefore and not because the
accused is
not liable for the killing of the deceased that he is acquitted and
discharged.

JUDGE
13th December, 1990

For Crown: Mr. Mokhoho
For Defence: Mr. Fosa