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CRI/T/80/94

IN THE HIGH COURT OF LESOTHO

In
the matter between :

REX

V

MOLAHLEHI MAQALIKA
RULING

Delivered by the Honourable Mr. Justice T. Monapathi on
the 1st day of December 2000

After close of the prosecution case Mr. Monyako for
defence made an application for discharge of the Accused, The
application was
made under section 175(3) of the Criminal Procedure
and Evidence Act 1981 (CP&E). That is if at the close of the case
for the
prosecution, the Court concedes that there is no evidence
that the accused committed the offence charged in the indictment or
any
other offence of which he might be convicted thereon the Court
may return a verdict of not guilty. The application was opposed by
Miss Mokitimi for the Crown.

In terms of the said section of the CP&E the
decision to discharge or not to

discharge is entirely in the discretion of the presiding
officer. Miss Mokitimi said that at the stage of the proceedings at
which
the application is made the Court has to satisfy itself that
regardless of credibility, evidence exists on the basis of which the

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Court might convict. In other words there should be
evidence on the basis of which the Crown can be said to have
established a case
in respect of which the accused is called to
answer.

Miss Mokitimi said that the expression "no
evidence" in the section meant that there should be no evidence
upon which a
reasonable man could convict. If the prosecution case
does not attain this level of "a prima facie case" the
accused is
entitled to an acquittal at once. See R v SABILONE NALANA
CRI/T/51/69 (unreported) by Jacobs CJ.

Mr. Monayko referred to the case of R v KRITZINGER AND
ANOTHER 1952(2) SA 401 where Roper J, held that even if a judge:

" considers that there is insufficient evidence he
has a discretion to refuse to discharge if he thinks that the
prosecution
case may be supplemented by the evidence of the defence."

My comment is that it is a case in which there is
insufficient evidence that may be supplemented. Where there is
sufficient evidence
of prima facie kind there cannot be any fear of
the Crown case being boosted. Mr. Monyako again referred to the work
CRIMINAL LAW
THROUGH CASES at page 267 by the late Mofokeng J in
which our case law was referred to by quoting from REX v TEBOHO
TAMATI RAMOKATSANA
1978(1) LLR 70 at 73-4, that:

"The judge (though he sits with assessors) is the
final arbiter on the law and fact so that he is justified if he feels
that
the credibility of the Crown witnesses has been irretrievably
shattered, in say to himself that he is bound to acquit no matter
what
the accused must say in his defence, short of admitting the
offence in our High Court the judge is allowed more latitude than in
systems where a judge sits with a jury of if the assessors have a
vote."

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And further at page 303 the learned author quoted as
follows:

"Now at this stage of the proceedings the Court is
not entitled to approach the question of credibility on the same
basis as
when considering the whole case. The sole concern is the
assessment of the evidence and in this regard there can be no warrant
for
excluding the question of credibility."

For the general approach see R v TUMELO RAMOKHESENG AND

ANOTHER CRI/T/36/99, Molai J, 1/12/2000 pages 4-5. And
finally defence

Counsel referred to SOUTH AFRICAN CRIMINAL LAW AND
PROCEDURE

by Landsdown and Campbell - Vol. V at page 519-520 where
the authors say:

"In S v HELLER AND ANOTHER 1964(1) SA 525 "(W)
Trollip J

expressed doubt as to the correctness of the view in
KRITZINGER'S

case, that the court is entided to refuse to discharge
the accused if it

considers that there is a possibility that the case for
the State may be

strengthened by evidence emerging in the course of
defence, and in R

v MALL(1) 1960 (2) SA 340(N) it was said that the
accused should not

be put on the defence in the expectation that he might
provide the

necessary corroboration Caney J said that would not be a
judicial

exercise of discretion to refuse to discharge upon the
evidence of an

accomplice where corroboration was required."

At page 520 Kumleben J in S v OSTILLY is reported to
have referred to the emphasis in MALL'S case. On the question of
discretion which
is to be judicially exercised he said:

" where there is no evidence which might
reasonably lead to a

conviction, sound reasons must exist for nevertheless
not granting an application for discharge."

Counsel agreed that it has to be (for discharge of the
accused) a situation a reasonable man might convict. The whole
situation was
well illustrated in the case

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of S v SHUPING 1983(2) SA 119 where Hiemstra CJ said:

" At the close of the State Case, when discharge is
considered the first question is;

(i) Is there evidence on which a reasonable man might
convict? if not

(ii) Is there a reasonable possibility that the defence
evidence might supplement the State case? If the answer to either
question
is yes there should be no discharge.

In a great majority of cases questions of credibility do
not play a large role at this state of a trial. In S v MPHETHA AND
ANOTHER
1983(4) it was said that:

"If a witness gives evidence which is relevant
then that evidence

can only be ignored if it is of such a poor quality that
no reasonable person could possibly accept it. This would really only
be
in most exceptional cases where the credibility of a witness is so
utterly destroyed that no part of his material evidence can possibly
be believed."

That a witness testimony has to be outrageous or absurd
is one of those characteristics of very bad evidence that lends
itself to
the above description.

Referring to the facts of the case Mr. Monyako contended
that the proceedings showed a kind of a fight that is called "a
free-
for- all" as a result of which a prima facie case could
not be established. Also brought under attack was the testimony of
one
Sankoela Ramphalla (PW 1). Having warned ourselves that the"
judge should not pay regard to the credibility of the witness ...."
it was nevertheless worthwhile to look at the evidence of PW 1. This
account by the witness is very enlightening as to why I adopted
the
attitude that the evidence at least of the witness was not one to be
thrown out as absurd or outrageous.

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Deceased had asked one Maraling why he was assaulting
the witness (PW 1). After an insolent rebuff by Maraling the two
engaged in
a fight with sticks. Accused had been standing by aside.
Accused then came and parried a blow (with his left hand) used by
deceased
intended for the said Maraling. With his right hand Accused
stabbed the deceased with a knife. The deceased then moved towards
the
door while exclaiming that he had already been stabbed. This is a
story that on its face reveals an offence or more. It might be
at the
end of the whole case a lot of flaws will be exposed or on its basis
a verdict of a lesser offence might be returned.

It is obvious that on the principle enunciated above a
reasonable man might return a verdict of guilty if not on the charge
but on
any other offence of which he would be liable.

The application was accordingly dismissed.

T.MONAPATHI
JUDGE