CRI/T/12/97

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

vs

THUSO
TOLOANE

JUDGMENT

(Application
for discharge)

CORAM :
THE HON. MR JUSTICE S.N. PEETE

DATE :
15th NOVEMBER 2004

Headnote

Application
for discharge - section 175 (3) of the Criminal Procedure and
Evidence Act No.9 of 1981. Prima facie case not established
by Crown.
Discharge and acquittal of the accused.

2

Where at
the close of its case the Crown has failed to establish a prima facie
case against the accused and has relied upon a single
witness who has
been discredited during cross examination, the accused should be
acquitted and discharged at that stage. It would
be asking too much
to require the accused to be put to his defence.

Mr Teele,
for the accused, has made an application in terms of section 175 (3)
of the Criminal Procedure and Evidence Act No.9 of
1981 for the
discharge of the accused at the close of the Crown case.

The Crown
relied upon the single evidence of P.W.1 Thabo Rajeke who had told
the court that on the 29th September 1994 and at Sir
Seretse Khama
Maputsoe, there occurred an altercation between him and two taxi
passengers over a fare from Maputsoe. During the
fight that ensued
the deceased used a tyre lever or a jack, and the accused - a
policeman - had arrived at the scene and had tried
to stop the fight.
He says he saw the accused then clapping deceased and also saying "I
will shoot you" after fetching
a gun from his van. After this,
he says he heard a gun shot and the deceased fell down. He later
died.

Under
cross examination, this witness blew hot and cold and contradicted
himself on several issues, and conceded that when he shot
the
deceased, the accused was being threatened to be attacked by the
deceased with a tyre lever. P.W.I demonstrated lack of candour
and
sought to embellish his evidence which thereupon became quite
unsatisfactory.

Question: You started the fight?

Answer: Yes. I was shielding my colleague.

3

Answer: Yes

Question: The driver (deceased) was very belligerent ... that is why
accused directed his attentions to him and even used a fist
(no clap)

Answer: Yes, he used a fist.

Question: To police you said driver revenged by slipping him and
held him by the neck tie.

Answer: It is true. Deceased hit the accused.

Question: Accused (already) had his gun on him and deceased was
approaching with a tyre lever ....that is when accused said "let

go of me ...or I shoot"

Answer: Yes."

The
evidence of the crown case has not been satisfactory and comes from a
single witness who has been discredited as unreliable
during cross
examination, and no reasonable court, properly advised, might
convict. The two passengers who started the fiasco were
not called by
the crown.

4

The crown
has failed to show a prima facie case against the accused. The
accused is therefore found not guilty and is discharged.
(See Rex vs
Sechaba Chaole - 1997-98 LLR 270 per Lehohla J. (as he then was)
where he held that in such a case it would be asking
too much to
require the accused to be put to his defence.

JUDGE

For Crown
: Ms Dlangamandla

For
Accused: Mr Teele