CRI/T/54/95

IN THE HIGH COURT OF LESOTHO

In
the matter between:

REX

v
LEPHETHESANG MABELE

For Crown : Mr. L B Moqhali

For Accused: Mr J T Molefi
Assisted By: Miss L
Mosisili

Judgment

Delivered by the Honourable Mr. Justice T. Monapathi on
the 16^th day of November 2001

The Accused of Ha Ramarothole, Mafeteng district was
said to have been 38 years old at the completion of the Preparatory
Examination
(PE) held by the magistrate of Mafeteng, in June 1995. He
was indicted on a charge of murder to which he pleaded not guilty. He
pleaded
self defence the particulars whereof

2
which will emerge in Accused's confession which
was admitted by consent and

was marked Exhibit "B". It was alleged that he
killed Khothatso Machaea (Deceased) who was about the same age as the
Accused
on the 8^th May 1993. Accused and Deceased were
co-villagers. It became common cause that the Deceased died from the
injuries inflicted by the
Accused with a putty knobkerrie.

The deposition of seven witnesses given at the PE were
admitted as evidence by consent including the post-mortem examination
report
which was marked Exhibit "A" and the said Accused's
confession which was marked Exhibit "A". Molahlehi Namane
(PW 1) who was PW 6 at the PE testified for the Crown under oath. He
was followed by Manteseng Machaea (PW 2) Deceased's wife who
was PW 1
at the PE (Manteseng). Thereafter the Crown closed its case. Mr.
Molefi then made an application for discharge of the Accused
at the
end of the Crown case. This application I dismissed a few minutes
later after the Crown had indicated that it would oppose.
It was one
of these applications that come before the Courts like a kind of a
ritual ceremony whose absence of merit often shines
oppressively.
Quite impulsive they often are.

I thought, in the discretion that the Court has, on such
on the application for discharge the ruling deserved a speedy
decision in
view of the fact that the facts

3
were not complicated. Furthermore I referred
Counsel to the consideration

whether if an accused is not guilty of the main charge
he may not be guilty of:

" any other offence of which he might be convicted
thereon".

Refer to section 175(3) of the Criminal Procedure and
Evidence Act 1981. I felt that even through the evidence that the
Accused admitted
he would prima facie be convicted of a competent
verdict. He admitted that he administered the fatal wounds. It might
perhaps be
a different thing after the close of the defence case.

Accused then elected to close his case without leading
any evidence in his defence. This situation did not, of course,
despite admission
of a number PE depositions, make the case any
simpler. Nor would the existence of the admitted confession. I will
come to the question
of the confession later in the judgment. But the
case remained a short one indeed.

The post-mortem report revealed that the cause of death
of the Deceased was due to brain damage from increased intracarnial
pressure
from epidural haematoma. The doctor said at "Remarks
(8)" there was multiple occipital scalp lacerations. At other
areas
of the body which he would comment about if it was relevant the
doctor said everything was normal.

4
Indeed PW 1 Molahlehi Namane (who was PW 4 at PE)
confirmed seeing

the wounds one towards the top left middle of the head
(which had a depression) and are towards the back which was also
bleeding.
This witness added that there was pool of blood where the
Deceased was found having fallen prostrate. Importantly his face was
all
covered in blood seeming to come from the nose and the ears. This
is the witness who made a report to Lekarapa Phakalasane whose
evidence was admitted as shown hereinafter.

The number of wounds on the Deceased's body was also
corroborated by Detective Trooper Tšeloa of the
Lesotho Mounted Police Service (LMPS) (PW 9 at the PE). His evidence
was admitted. The latter witness had on the 12^th May 1993
attended at Mafeteng Hospital mortuary. The mortuary workers had
shown him the Deceased's dead body which he examined. He
found that
the Deceased had sustained three (3) open wounds on the head. Two of
the wounds were situated on the left side of head
while the third one
was situated on the occipital area of the head. He had seen no other
wounds on the body of the Deceased.

Phallang Nchakha whose evidence at the PE (where he was
PW 6) was admitted said that the Deceased was the son of his younger
brother.
He also knew the Accused. In May 1993 he attended at a
mortuary in Mafeteng Hospital where

5

he identified the dead body of the Deceased before the
doctor who did a post­mortem examination. After that examination
the family
buried the Deceased at Ha Ramarothole.

Trooper Molelle whose evidence at the PE (where he had
been PW 7) was admitted was a member of LMPS. He said he knew the
Accused.
At the material time he had been stationed at Mafeteng
charge office. While at his post he saw Accused arrive in his office.
He surrendered
himself. Thereafter he gave an explanation "how
deceased met his actual death." The witness had cautioned
Accused and ended
up giving him a charge of murder. He was placed
under arrest.

Defence Trooper Mpojane whose evidence at the PE (where
he was PW 8) was admitted was a member of LMPS at the Criminal
Investigation
Division. He said he took initial steps in the
investigations. In that regard he met the Accused at Mafeteng charge
office where
he was already under arrest reportedly on the 15^th
May 1993. As a result of his interrogation "a positive
explanation" was given by the Accused in connection with the
death
in question.

The witness and Detective Rabolinyane followed up the
Accused's explanation whereupon they, accompanied by the Accused,
attended at
the latter's

6
village at Ha Ramarothole. On their arrival the
village chief sent a messenger by the name of Maqhubu Ramarothole to
accompany them
to the Accused's house. That chief's messenger became
PW 5 at the PE.

At the Accused's house the witness said after entering
inside the Accused came out carrying a timber (lebetlela) stick and a
putty
(pody) knob-kerrie which he handed over to the two police
officers. He then gave an explanation about the two items. The
witness
thereafter took the two items into his custody and then went
back to the charge office. On their arrival the witness filled up a
form LMP 12 (for keeping of intended exhibits) and brought the form
to the clerk of court. The latter instructed the witness to keep
the
intended exhibits in police custody for use later in trial. It is
recorded that at the PE the two items were handed in as exhibits
and
marked EX 1 collectively.

Maqhubu Ramarothole was the chief's messenger as said
earlier in the judgment. He testified at the PE that he had known
both the Accused
and the Deceased who were his co-villagers. The
latter he knew during his lifetime. In May 1993 he saw two police
officers arrived
accompanying the Accused. He went together with the
three-some to the Accused's house. On arriving thereat the Accused
surrendered
in the witness' presence a stick and a knob-kerrie to the

7 policemen. He said the stick belonged to the Deceased
then the knob-kerrie

belonged to him the Accused following his explanation.
At the PE the witness pointed at the two items which were before the
Court.

Tšeliso Monoto whose evidence at the PE (where he was
PW 1) was admitted stated that he had been at his parental home on
the day
in question when Accused arrived and made a report about his
assault on the Deceased. He had not known whether the Deceased had
died
as a result of the assault. Accused asked the witness to
accompany him to a grazing place outside village called Mohlakeng.
The report
made by the Accused was made in the company of the
Accused's herd boy. At the same time the witness noticed that the
Accused was
in possession of a stick which the witness pointed out
which was exhibited before the Court. At that time the witness did
not see
the putty (pody) knob-kerrie that was also exhibited.

The witness proceeded with Accused's herd boy to
Mohlakeng where he found one Lekarapa Phakalasane who was PW 3 at the
PE. PW 3 was
accompanied by his own herd boy. The witness noticed the
Deceased who lay prostrate on his face and appeared to have sustained
a
bleeding wound behind the head. He was bleeding through the ears
and nostrils. His whole head was covered

8
with blood. PW 3 tried to help Deceased to sit up.
It was in vain.

One Mantena Mabele (Accused's wife) arrived and saw the
Deceased. She was instructed to look for a motor vehicle to carry the
Deceased
to hospital. She did not succeed. The witness then went to
one Rahlabaki Thatho who made his vehicle available. When the witness
arrived the Deceased had already been taken to the road. From there
he was taken to hospital where he was admitted. Along the way
the
Deceased did not receive any further injuries. The witness learned on
the following day that the Deceased had died.

Lekarapa Phakalasane whose evidence was admitted
attended on the Deceased where he had fallen, following a report. He
was bleeding
through the ears and nostrils. He was unable to speak.
On trying to remove Deceased away from the pool of blood in which he
was he
observed three lacerations on the head. One wound was
bleeding.

The witness said he sent Molahlehi Namane and PW 4 at
the PE (PW 1 in these proceedings) his heard boy who had made the
report to
him to fetch some bandages from his house. At that stage PW
2 and Accused's herd boy arrived. Later on Lira and others arrived.
Deceased
was bleeding profusely

9 notwithstanding attempts to bandage his wounds.
Deceased was loaded on to

tractor trailer towards the road where a vehicle later
arrived which took him to hospital. Along the way the Deceased had
received
no further injuries.

Accused had been seen by the witnesses driving his
cattle home. It was before the witness arrived at the scene. The
witness had known
Accused and Deceased to be friendly and herded
their cattle together. According to the witness the report given to
him by Manteseng
was to the effect that the Accused and the Deceased
were fighting or assaulting each other. This evidence that there was
fighting
was corroborated by evidence of Tšeliso Monoto to whom a
report was given by the Accused. This was further corroborated by
Manteseng
in her evidence-in-chief before this Court. Manteseng's
testimony differed from others in the following respect. That while
others
said the Accused was all along standing when delivering blows
with the knobkerrie, that is he did not himself fall to the ground
or
lie on top of the Deceased, Manteseng said she saw the Accused on top
of the Deceased on the ground. That is when and where the
Accused was
delivering the blows on the Deceased.

I now introduce the question of the Accused's confession
by saying that the Crown accepted that the statement (purported
confession)
was not a confession

10
legally speaking. It was because while a
confession is an unequivocal admission of guilt the statement is
Exhibit "B" was
not one. It established a defence on
Accused's part or that it was intended so. It could not be said that
the Accused admitted to
having killed the deceased with intent nor
that that was unequivocal. In some respects the statement actually
tallied with the Crown's
story the obvious one being on the number of
wounds found on the Deceased and that it was the Deceased who set out
and approached
the Accused where Accused was tending his animals at
Mohlakeng pasture. Deceased intended to recover a sum of M15 which
was owed
to him by the Accused. It arose out of a loan for payment
for release of impounded cattle. This and the circumstances (of the
loan)
were not disputed by the Accused. This was corroborated by the
Deceased's (Manteseng) wife who ended up admitting that the Deceased
was in an unhappy or unpleasant mood. This can only mean that he was
angry when he approached the Accused

A short statement of the contents of confession shows
that on the day on which the money owed to the Deceased was to be
paid accused
had received a message that he was to attend at the
initiation school. He arrived on a Friday. Early next morning he
drove his cattle
for grazing as aforesaid.

It was moments later when Accused saw Deceased coming
down from the

11

village to where Accused was. Accused had originally
formed an impression that the Deceased was hurrying to another place
after collecting
the debt money. When he arrived he was in an
extremely angry and fighting mood. Deceased asked Accused where the
latter had been
the previous day. Accused explained that he duly
arrived from Mafeteng but had received a message that he had been
summoned to an
initiation school. He had then travelled to the
initiation school with "speed".

On receiving the above explanation Deceased asked
Accused whether he had thought that his being required at the
initiation school
was more important than paying over the amount owed
to Deceased. Accused replied that he still thought the need to pay
Deceased was
still weighty but Deceased had been absent during the
day when he could have been given the money by Accused.

Without a warning the Deceased had hit out at Accused
with a stick. This the Accused warded off with a putty knobkerrie
which he had
in his possession. At that time it appeared that
Deceased was unstoppable. Accused could not, as he said, run off and
escape because
he had a bad leg. This (that he had a bad leg) was
confirmed by most witnesses. Accused was forced to fight back. He
said he hit
out at Deceased causing two wounds. This third blow
caused the Deceased to fall

12
down. Accused realized that the Deceased was
bleeding through the ears and

nostrils. He thereafter thought the Deceased had died or
would die from the way he looked.

I attached significance to the fact that in no way was
the Accused injured or actually assaulted as against the fatal
injuries found
on the Deceased on the other hand. Not that there
should be evenness of any kind. It is because in the nature of things
the victim
is overcome and vanquished. I concluded that the fact that
the Deceased was the initial aggressor and carried a timber
(lebetlela)
still could not counterpose the fact that the Accused
used quite great force to overcome the Deceased. From any account it
was excessive
as the evidence of the two Crown witnesses whose
evidence despite certain imperfections was wholly credible, reliable
and compelling
on the aspect of the passion of the assault. While the
most credible of witnesses may be unreliable or plainly wrong the
converse
may also be true on certain aspects of their testimony.

The statement (of the purported confession) went further
to show that Accused absconded and unsuccessfully sought work in the
mines
of South Africa. He was advised to come back home and he did.
He discovered that the Deceased had in fact died.

13 According to the evidence of Manteseng Machaea (PW 2)
when Accused

went to Mohlakeng he passed near Deceased's home.
However neither the Accused nor Deceased said anything to each other
about repayment
of that sum of money owed by Accused to Deceased. It
was only when the Accused was already at Mohlakeng that the Deceased
armed himself
with a stick and told Manteseng that he was going to
demand his money from the Accused. He left his home taking the
direction of
Mohlakeng. However Mantseng did not see when the
Deceased arrived at Mohlakeng where the Accused was.

The testimony of Manteseng goes further to say that she
was at Thoteng on the way to the shop at Makeneng where "she
looked back"
at Mohlakeng. She then saw fighting by both Accused
and Deceased who were already on the ground. They were standing. She
saw the
Accused "on top" of the Deceased belabouring him
with an object. She said she was about 1.5 kilometres from where the
fight
was going on. She looked at the scene for about two (2)
minutes. For that period Accused was belabouring the Deceased as
stated above.

I found it difficult to believe that Manteseng could
have seen the fighting in the way she described. She could not be so
accurate
in seeing exactly how the proceedings took place. To the
extent I would not rely on her account of things.

14
The brevity of the fighting is much more towards
the account given by the

Accused. Two minutes is quite a long time. The witness
must have inclined towards exaggerating or recreating the events at
the scene.

It was PW 1 (Molahlehi Namane) who said he saw the
Deceased approaching the Accused at Mohlakeng. He did not, however
see what happened
when the Deceased got to where the Accused was as
he was busy going about his business. He saw something later.

The witness further testified that when he looked at
where the Accused and Deceased were, he saw the Accused belabouring
the Deceased
with a knobkerrie. The incident happened at a distance
of about 1.5 kilometres away from him. He then ran to the place and
that took
more than five (5) minutes to get there. He say that for
this time, the Accused was continuously belabouring the Deceased with
the
said knobkerrie as said before.

On his arrival at the scene the witness testified that
he asked the Accused why he was killing the Deceased. Accused replied
issuing
out a swear word and asking the witness whether he was
joining the fight for the Deceased or words to that effect. The
witness then
rushed home and gave a report to Lekarapa

15 Phakalasane (PW 5 at PE) whom he met on the way to
the scene of the crime.

They went together to the scene. They found Deceased
lying prostrate face downwards. The witness observed three (3) wounds
on the
Deceased's head. He said that the Deceased was bleeding from
the ears and nostrils.

I have found certain problems with the testimony of the
witness in connection with whether he saw what he said he saw
accurately enough.
In the first place a distance of 1.5 kilometres
that along the way he travelled for five (5) minutes observing all
along what was
happening at Mohlakeng. Secondly, that for that length
of time he could have been focussed at what was happening. Thirdly,
that the
fight itself could have taken that long. This is belied by
the number of injuries. In all probability the fight could not have
taken
that long even if the time of five (5) minutes is reconcilable
with the distance for which the witness travelled.

My conclusion was that it was for a shorter time that
the witness saw what he said he did. What he said he saw mostly
amounted to
a recreation of the events. At the original distance from
which he saw the fight he could not even see the object that was
used.
There could be no doubt however that he arrived at the scene
and could have been attracted by what he originally saw, to have had
to attend as

16
he did. I thought his evidence merely
corroborated the aspect of the fight having occurred, the wounds, the
condition in which the
Deceased was found.

I would recapitulate the conclusion which I have already
reached that the statement made by the Accused was not a confession.
This
I say having looked at its statement in its entirety. As the
learned authors of South African Law of Evidence 4^th
edition say at page 210 about such a statement; that:

" this does not signify the bare words in it, but
extends to what

the words necessarily imply."

Having commented about certain illustrative cases the
learned authors state, at page 211 of the last mentioned book, that:

"The logical conclusion from these cases is that in
crimes which require mens rea, an account by the accused of his
actions,
however detailed and damning, will hardly ever amount to a
confession (unless there be something in the summary circumstances to
indicate that what was said amounted to an unequivocal admission of
guilt, and unless, taking the statement as a whole, the necessary
implication

17
is that he confessed) because it would almost
always be possible to

give some further explanation which would negative
necessary
mental intent "

This is in connection with contention that the Accused
could not have intended to kill (directly or indirectly) but had
merely been
negligent by having used excessive or immoderate force. I
agreed with the submission in page 212 of South African Law of
Evidence
(supra) that an exculpatory statement is not a confession.
And finally on page 213 and 214 of the said work it is concluded in
the
affirmative that those statements which are exculpatory with
regard to major crimes charged: for example murder, can be
incriminating
as to a lesser offence such as culpable homicide or
assault. This provides an answer as the Crown submitted in the
circumstance of
the present case where the Crown has contended that
the Accused ought not to be found guilty of murder but of a lesser
offence. The
Crown did not however show anything that pointed to an
irresistible inference that the Accused's story was improbable and
could not
be said to be reasonably possible. See Lehoqo v Rex 1981(1)
163 at pages 168-169.

The question as to what the value of the statement of
the Accused was where it has not been objected to was answered as
follows. That
it could not be

18
equated to a statement made by the Accused in his
defence (in the witness box) because technically it could not belong
to the procedural
stage of an accused's testimony as after close of
Crown's case. It remained a statement from the Crown that favoured
the Accused
(in its effect or testimonial value) and was on the same
level as other pieces of evidence intended to be in support of the
Crown
case. The statement cannot therefor be dismissed simply as mere
hearsay. There is truth in its contents even if it is not in the
whole of the statement. See South African Law of Evidence (supra)
page 232-233,229 and 231. Also A Kean The Modern Law of Evidence
5^th
Ed. Page 312 and 344. The statement can be admitted as informal
admission being an exception to the hear say rule. See De Toit et
al,
Commentary on the Criminal Procedure Act (1993) S 217 at 24-66D-C
14-66E: Criminal Procedure and Evidence Act 1981 S.228(4) and
S.273.
WKL Kasozi et al Introduction to the Law of Lesotho (1999) 194-195,
204. And Peter Murphy, A Practical Approach to Evidence,
4^th
Ed, 218-219.

The next question that flows from above is this one.
What is the effect of the purported confession where it is in
conflict with other
admitted depositions? The answer would simply be
that the evidence is evaluated on the basis of credibility of
witnesses taking into
account their demeanour, observation,
recollection, variation, contradictions, reliability, probability and
so forth. The

19
remarks of Mr. Justice H C Nichol as quoted in
South African Law of Evidence

(supra) are to be borne in mind. Therein at page 611 the
learned judge is said to have said:

"For the assessment of credibility of witnesses
(whether it relates to their veracity or their reliability) there are
no formulas
no rules of the thumb. The evaluation is essentially a
subjective judgment, and is a resultant of number of factors whose
varying
weight depends on the circumstances,"

This would sums it all. So has followed the necessary
approval of the above statement by the learned authors. See however
the remarks
of Steyn P in Rex v Sehloho Joseph Maphiri 1999-2000
LLR-LB 198 at pp 203-213 in relation to regularity or otherwise of
deposition
made at preparatory examination untested by cross
examination.

The next and most crucial question should surely be what
the is position where witnesses PE depositions have been admitted
(whose
demeanour could not be tested) on the one hand and testimony
of witnesses who have testified by word of mouth before the trial
Court
on the other hand where there is conflict. This is

20 precisely the same position in the instant matter
where the greater part of evidence has been admitted by both the
Crown and the
defence. It was submitted by Mr. Molefi that the latter
overrides the former. This he based on Rex v Lejaka Lebona 1991-1996
LLR
989 where Kheola CJ had this to say:

"The most important deposition admitted by the
defence is that of PW 8 Trooper Monyau. It is important because it
gives a detailed
account of what happened before the deceased was
stabbed and how the stabbing actually took place. It is the evidence
adduced by
the Crown to prove or disprove its case by admitting that
piece of evidence the Crown accepts that it is true. In other words
the
evidence of PW 8 is not disputed by the Crown and the defence. It
will not be acceptable when the Crown turns around and says that
the
evidence of PW 8 should be rejected because it conflicts with the
evidence of other Crown witnesses." (My underlining)

Excepting for the criticisms that I have advanced in the
valuation of the Accused's statement, which might be valid as far as
they
went I was not persuaded by the Crown that it was possible to
defeat the above principle. This meant that in principle one would
have no way of attempting to rely, in the circumstances, on

21
the evidence of the two witnesses, to the extent
that it seeks to contradict that of the contents of Accused's
statement. Alternatively
the conflict between the two is such that
there remains a doubt on to what actually took place. That doubt
should redound to the
Accused.

It is the confusion and particularly the lack of clarity
of the evidence of the two witnesses of the Crown that makes it
unsafe to
convict. See the remarks of Steyn P in Lebohang Letlaka v
Crown C of A (CRI) No.3 of 2000, 12^th April 2001 at pp
7-9. In addition there is a reasonable possibility that the story of
the Accused might be true. It may even be improbable.
Nothing
indicated that his version was not a reasonable possible explanation
of the true events. In the circumstances he is entitled
to an
acquittal (See R v Difford 1937 AD 370 R v M 1946 AD 1023 at p 1027).
In that situation it cannot be said that the Crown has
proved its
case beyond a reasonable doubt and the Crown has thus failed to
discharge its onus.

The Court was worried that the criticisms against the
statement of the Accused, even if those criticism were valid, were
based solely
on imperfections of essentially what the Accused ought
reasonably to have done "as a reasonable man". This
indicated, wrongly
in my view, that the test is objective. For
example

22
as Mr. Moqhali contended Accused ought to have
delivered a single blow which,

if he had done, would have prevented any further attack
on him by the Deceased. That the Accused had therefore exceeded the
bounds
of self-defence. (See Pone v DPP 1999-2000 LLR-LB 214 at 226,
and Malefetsane Beleme v Rex 1993-94 LLR 7) This was said bearing in
mind the weapon that the Accused had which was an effective and
lethal weapon. How safe would it be to rely on this as a factor?
It
would, in my view, definitely not be safe to do so without more.

It is correct that that all factors be taken into
account, in dealing with the circumstances of a particular case, in a
case of a
defence of self-defence such as the present one. This is
necessary in:

" deciding whether in the circumstances of the
particular case

the means used by the accused were reasonable and
justified, or whether he exceeded the bounds of reasonable private
defence."

See R v Lejaka Lesoma (supra) at page 994 and cases
cited therein. Such factors must be based on facts that give rise to
inferences
that are irresistible, hence need for proof beyond a
reasonable doubt. According to PW 1 and PW 2 the Accused had
belaboured the
deceased with a knobkerrie for a period of more than
two

23 minutes. I concluded that these witnesses were not
completely credible on this aspect and ought not to be relied on by
this Court,
as was correctly submitted by Mr. Molefi. Moreover Isaacs
AJ in dealing with a case where it was contended by the Crown that
the
accused had exceeded the bounds of self-defence, said in Lehoqo v
Rex (supra) at page 169:

"But in considering whether a person acted
reasonably in self-
defence one must try to imagine oneself into
the position in which the accused was . . .".

This confirms that the test is subjective.

A conviction based the testimony of the witnesses and
alleged imperfections in the evidence of the Accused would be unsafe
for the
main charge nor for any competent verdict as I concluded. I
thought, as was held in The Minister of Railways and Harbours v Bunn
1914 AD 27, that men placed in moment of crisis with a choice of
alternative are not to be judged as if they had both time and
opportunity
to weigh the pros and cons. Allowances must be made for
circumstances in their position. It is noteworthy that Gentlemen
Assessors
Mafatle and Leboela disagreed on the ground that the
Accused had been negligent, had

24
used immoderate and excessive force and ought to
have been convicted of

Culpable Homicide. See R v Lefu Ntobo and Another
CRI/T/69/2000, Ramodibedi J, 26^th September 2001 at p.11
with regard to position of assessors.

That the Accused had not testified in his defence does
not carry the matter any further. The situation is aptly summed up by
the learned
authors of South African Laws of Evidence (supra) at
p.599 where it is said:

"An Accused's failure to testify can be used as a
factor against him, it has been held only when at the end of the case
for the
State the State has prima facie discharged the onus that
rests on it. (In the sense, here, of evidence upon which a reasonable
man
could convict), it cannot therefore, be used to supply the
deficiency in the case for the State, that is to say where there is
no
evidence on which a reasonable man could convict."

There are various cases from this Court which agree with
the above principle. I respectfully agree with the statement from the
learned
authors. In addition the case has to be:

25
" of such nature that the first appellant's
failure to give or call

evidence made the case conclusive." (My emphasis)
See Lerato Mahanye and Another v Rex 1999-2000 LLR-LB 105 at 126

It is clear therefore that the Accused ought to be
acquitted and discharged. As pointed out earlier my assessors did not
agree.

T Monapathi
Judge