CRI/7/3/86

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

v

MAFOLE
SEMATLANE

RULING

At the
close of the Crown case in the above matter, Mr. Pheko Counsel for
defence, acting in terms of Section 175(3) of the Criminal
Procedure
and Evidence Act 1981, applied for the discharge of the accused, This
application was opposed by the Crown.

The
relevant Section of the aforesaid Act reads:

"If, at the close of the case for the prosecution, the Court
considers that there is no evidence that the accused committed
the
offence charged in the charge, or any other offence of which he might
be convicted thereon, the Court may return a verdict
of not guilty."

The
Defence Counsel, on behalf of the accused, admitted the evidence of
the following witnesses at the Preparatory examination:

P.W.1 2nd
Lt. Mokhele

P.W.7
Nthakoana Leballo

P.W.8
Masakale

P.W.9
Hoohlo

P.W.10
Ntsiuoa Leballo

P.W.11
Tlali

P.W.12
Lt. Col. Mots'oari

P.W.13
Makatse Lebusa

2

Consequently,
their depositions including the gun and ammunition Exhibits 1 and 2
respectively at P.E. and post moterm report, Exhibit
"A" in
this Court, formed part of the evidence in this Court. The balance of
the evidence was of oral nature given by:

P.W.1
Sgnt. Lerotholi

P.W.2 Lt.
Letsie

P.W.3 Lt.
Matela

P.W.4 Lt.
'Neko

and P.W.5
W/O Polanka.

In
support of his application for the discharge of the accused at close
of the crown case, Mr. Pheko referred me to a passage in
Mofokeng J's
Criminal Law and Procedure Through Cases at Page 267 under the title:
What considerations must the Court have when
an Application is made
in terms of Section 172(3) (now 175(3).

The
passage was enunciated by Cotran C.J. in Rex vs Ramokatsana 1978(1)
LLR 70 at 73-4. I have had a look at the unreported copy
and at Page
3 the passage

"Furthermore, the Courts, it has been held, should not at this
stage embark upon a final assess­ment of credibility and
should
leave that matter in abeyance until the defence have closed their
case and then weigh the two together. In Lesotho, however,
our system
is such that the Judge (though he sits with assessors is not bound to
accept their opinion) is the final arbiter on
law and fact so that he
is justified, if he feels that the credibility of the Crown witnesses
has been irretrievably shattered,
in saying to himself that he is
bound to acquit no matter what the accused might say in his defence
short of admitting the offence."

3

Adopting
a similar attitude in CRI/T/51/69 Sabilone Nalana and 25 Ors.
(unreported) Jacobs C.J. as he then was. said at Page 2:

"Now it has been said in many cases that when considering an
application at the close of the Crown case the Judge should not
pay
regard to the credibility of the witnesses and that his sole duty is
to consider whether the evidence advanced by the Crown,
if believed,
might be sufficient to satisfy reasonable men that the accused are
guilty of the crime charged.

This is undoubtedly so where a Judge sits with assessors who are
joint triers of fact but I am of the opinion that where the assessors

are merely sitting in an advisory capacity the Judge is allowed a
little more latitude and need not completely divorce his mind
from
the question of credibility."

With this
opinion I agree.

Since in
Lesotho a Judge is a trier of law and fact, he is entitled to embark
on credibility at this stage on the authorities stated
above. Mr,
Pheko submitted though that the test to be applied is whether there
is on record evidence on which a reasonable man
acting carefully
might , convict the accused and alerted the Court to the fact that
the Court retains a discretion to refuse the
application for the
discharge even in the absence of such evidence and referred to
Matsobane Putsoa and Others vs Rex 1974-75 LUR
201 at Page 203 where
Mapetla C.J. as he then was, in subscribing to this view and casting
his lot with Bekker J. in R vs. Herholdt
and Others 3 (1956(2)S.A.
722 said:

"the exercise of the discretion vested in the Judge must be
founded upon proper and relevant

4

considerations
and unless such considerations exist the discretion should ordinarily
be exercised in favour of the accused."

It, is
important to note the

emphasis
laid on the difference by Bekker J.(supra) where he points out

"that the test to be applied in an application of the present
nature is not, whether there is evidence upon which a reasonable
man
should convict, but, whether the evidence presented by the
prosecution is such that a reasonable man, acting carefully, might

properly convict. If there is such evidence then an application of
this nature is not to be sustained." (My underlinings)

It is
clear therefore that in the light of the authorities quoted above the
correct test to apply is whether there is on record
evidence on which
a reasonable man acting carefully might - not should - convict. The
South African Courts have placed this interpretation
on the words "no
evidence" which also appear in Section 175(3) of our statute.
These decisions in Mapetla C.J.'s words

"correctly reflect the position under our statute"

and in
considering this application I shall apply that test.

What
remains to be decided is whether, in the absence of any evidence upon
which a reasonable man might convict, the Court has nonetheless
a
discretion to grant or refuse the application.

5

In Rex vs
Kritzinger and Others 1950(2)S.A. 401 Roper J. at 406 said:

"It seems to me that the rule is clear, namely, that if at the
close of the case for the Crown the evidence against the accused

.............. is not such that a reasonable man might convict upon
it, the Judge has a discretion whether or not to discharge.
He is
quite entitled to refuse to discharge if he considers that there is a
possibility that the case for the Crown may be strengthened
by
evidence emerging during the course of the defence. The Judge has
before him the record of the Preparatory Examination and knows
the
compass of the case, and he is usually in a position to form an
opinion whether a deficiency in the evidence for the Crown
is likely,
or not likely, to be supplemented by evidence emerging during the
course of the defence. Where he considers that to
continue the trial
would merely put the accused to further expense, or inconvenience, or
anxiety and is not likely to result in
a conviction, he will
naturally cut the useless proceedings short at once, and discharge
the accused. This course is often taken,
but the Judge is not obliged
to take it, even when , in his opinion at the end of the Crown case
there is no evidence upon which
a reasonable man could convict."

While
this passage has caused Bekker J. some considerable difficulty, in
agreeing with him, Mapetla C.J. has evidently distanced
himself from
it by saying ..."....It seems to me indeed unlikely that - to
take an extreme case -where there is altogether
(no evidence that the
accused committed the offence charged in the indictment or summons,
or any other offence of which he might
be convicted thereon.) i.e.
where the prosecution has failed completely to produce any evidence
against the accused person, the
Court would in the exercise of its
discretion nonetheless put the accused to his defence to answer a
case which does not exist
in the hope that if called by his counsel
or if

6

The
himself decides to give evidence, there is a possibility or a
likelihood that he will convict himself." Clearly the above

example represents the ne plus ultra situation and by contrast on the
one hand Roper J's passage does not go quite that far though
somewhat
near it. On the other hand Bekker J. in his reluctance to
circumscribe what he terms attendant circumstances expressed
the view
that they

"might be such that a failure of justice could possibly result
if an accused person were to be discharged at the close of
the case
for the prosecution even though (the prosecution) has failed to
present a necessary degree of evidence."

He goes
on to say, and with that I agree,

"I have no doubt that the discretion which is vested in a Court
is to be exercised judicially and that as a general rule,
but not
apparently without exception, an accused person should be discharged
if at the close of its case, the prosecution has failed
to present
evidence upon which he might be convicted."

Mr, Pheko
laid emphasis on the fact that it is not enough to say

"in exercise of my discretion 1 feel that there are proper and
relevant considerations"

without
indicating what they are and consequently put the accused under the
necessity to give evidence in his defence or thereby
imply that a
prime facie case against him exists.

He
submitted that should the Court, (even though

7

sitting,
as it is, with assessors) feel that the credibility of Crown
witnesses has been irretrievably shattered, then it should
return a
verdict of not arbiter of law and fact. See the guilty as a
final/passage referred to in Mofokeng J's Criminal Law and
Procedure
Through Cases.

With
regard to evidence either admitted or led before Court it was
submitted for the defence that accused borrowed a gun from a
very
senior officer 2nd Lt.Mokhele and that accused was at the time a
recruit. From this it was submitted it could be deduced that
accused
was still undergoing training in the use of guns. The question that
remained unanswered was why would such a senior officer
entrust a
recruit with a gun. The Court was referred to an inexplicable passage
appearing in P.W.1's testimony at P.E. It appears
at Page 4 of the
P.E. record. It reads: "The witness wishes to amend that the
accused told him what he said to him in response
to his question as
to what happened." sic.

It was
pointed out that accused, in relation to the five Crown witnesses who
gave oral evidence, is a junior while they on the other
hand are high
ranking officers; and that according to the discipline obtaining in
the ranks of the Police Force juniors are not
only expected but are
required to answer questions put to them by their senior officers.
This indeed emanated in evidence given
by P.W.5 W/O Polanka. This
witness implied that this regiment is strictly adhered to by further

8

saying
"as a junior I am supposed to reply, I may complain later."

It was in
this regard that the statement which is at the core of this inquiry
namely, as deposed by P.W.1 that "I put someone
away, one dog
has died from the bullet" became of relevance. In Rex vs Barlin
1926 AD 425 at 462 Innes C.J. said:

"The common law allows no statement made by an accused person to
be given in evidence against himself unless it is shown by
the
prosecution to have been freely and voluntarily made - in the sense
that it has not been induced by any promise or threat proceeding
from
a person in authority."

The
Learned C.J. went on further to say at Page 463:

"Statements which, though not confessions of the commission of
an offence, are prejudicial to the accused fall to be dealt
with
under the common law, and not the statute."

Buttressing
his submission with the preceding but one quotation, Mr. Pheko
referred to Swift's Criminal Procedure 2nd Edition at
Page 520 where
the Learned author relying on Rex vs Van Blerk 1919 C.P.D. 68 said:

"It"(meaning a statement) "is not voluntarily made if
the accused felt he was legally bound to make the statement."

In his
submission Mr. Pheko stated that the Crown

9

didn't
make any attempt to show that the statements alleged to have been
made by the accused to senior police officers were voluntarily
made
and without undue influence, despite the challenge by the defence as
to their admissibility during cross-examination of the
Crown
witnesses.

It is
common cause that these statements are informal admissions. But what
is held in question by the defence is whether they were
given freely
or voluntarily and without undue influence, threat or promise. Stress
was laid on threat regard being had to the relative
positions of the
senior police officers vis-a-vis that of the accused, and consequent
upon that a further fact that in accordance
with the strict regiment
of the police force a junior must answer when questions are put to
him by the senior officers. It was
submitted that in keeping with the
fact that a threat suggests some disadvantage if a junior should not
speak, clearly the Crown
was required even at this stage to prove
that the informal admissions made by the accused did not flow from a
threat. Furthermore
on the authority of R vs Melozani 1952 (3)S.A.
639 it is the Judge's duty to reconsider the matter after proper
investigation "if
circumstances subsequently during trial give
rise to a doubt" whether extra-curial admission alleged to have
been made freely
and voluntarily, was in fact so made. Such doubt

10

should be
to the benefit of the accused. Of relevance in this regard was the
fact that accused while giving his state­ments,
in reply to
questions put to him by his seniors, those seniors regarded him as a
suspect. Moreover evidence showed that even though
they regarded him
as a suspect, they never informed him that they regarded him as one.
As evidence unfolded it became apparent
that police officers, either
because the particular officer expected others to have done so or
that even though he "was saying
dangerous didn't warn him
-things"/the particular officer said "I warned him"
under

cross-examination-and
he went further to say "Even though he was telling me dangerous
things, I deliberately refrained from
warning him".

I have
considered portions referred to me in the submission by learned
Counsel for the accused appearing in S.E. van der Merwe's
valuable
book called Evidence. Of particular interest to me was the Learned
author's treatment of the subject "Person in authority"
at
para.167122 at Page 238 and the unbiased criticism flowing therefrom.
A "person in authority" is defined as "anyone
whom the
prisoner might reasonably suppose to be capable of influencing the
course of the prosecution."

"It must be someone whom accused believed, rightly or wrongly,
able to bring about or influence the threatened disadvantage
or
promised advantage".

The
Learned author goes further to say ...... the

"person in authority" requirement is an unjustifiable
yardstick for testing the voluntariness of an admission

11

and
should merely be considered as one of the relevant factors in
determining whether the admission was freely and voluntarily made."

The approach in Robertson 1981(1) S.A. 460 at 469 however has taken
away much of its sting even though this remains part of the
South
African Law.

At Page
240 Van der Merwe states correctly on the, authority of R vs Cele
1965(1) S.A. 82 that as to burden of proof, the onus lies
on the
prosecution to prove beyond a reasonable doubt that an admission was
freely and voluntarily made by the accused" and
goes further
after referring to admissions made in terms of Section 219A(1) to say
"there is" in terms of that Section
"a shift in the
onus of proof. Provided the requirements of the Section are satisfied
the onus will be on the accused to prove
that the admission. was not
made freely and voluntarily." My perusal of the material
available failed to show if we have a
similar provision in our law.

I was referred to Judges' Rules and in his argument Mr. Pheko
conceded that they are not strictly speaking laws but urged that
it
appears that Judges have on a number of occasions exercised their
discretion basing themselves on them to exclude certain informal

admissions.

In
keeping with Mr. Lenono's submission in his reply Van der Merwe supra
says at Page 255:

"They
are, however, purely administrative directives without any force of
law. Non-compliance with their provisions will

12

therefore not necessarily render a confession or admission
inadmissible. See R vs. Holtzhausen 1947(1)S.A. 567 at 570

where
Innes C.J. in Barlin's case was quoted with approval when he said:

"The promulgation and enforcement of such regulations, however,
is a matter of administrative authority. They cannot be laid
down by
the courts as rules of law. Our duty in the case of any departure
from the standard of conduct desirable to be observed
by police
officers is to weigh that departure in connection with all the facts
of the case in arriving at a decision as to the
voluntariness of the
statement thus obtained" ....

But
Hoffman 3rd Edition at 186 says these rules are "administrative
rules of fairness they are not without effect in determining
whether
a confession is made without undue influence." Consequently Mr.
Pheko submitted that it is wrong to say they can be
completely
ignored. Mr. Pheko laid emphasis on the unreliability that
characterised the Crown evidence - the forgetfulness of the
witnesses
and contradictions which

emerged
during proceedings and accordingly submitted that these entitle
accused to benefit of doubt. In reply and relying on R vs.
Mlambo
1957(4)S.A. 727 A.D. at Page 738 Mr. Lenono submitted that .

"An accused's claim to the benefit of a doubt when it may be
said to exist must not derive from speculation but must rest
upon a
reseasonable and solid foundation created either by positive evidence
or gathered from resereasonable inferences which are
not in conflict
with, or outweighed by, the proved facts of the case.

Malan J.A. in Mlambo (supra) expressing his opinion

13

said:

"there is no obligation upon the Crown to close every avenue of
escape which may be said to be open to the accused. It is
sufficient
for the Crown to produce evidence by means of which such a high
degree of probability is raised that the ordinary reasonable
man,
after mature consideration comes to the conclusion that"

enough
has been shown to connect accused with the crime charged.

Another
matter revealed as unsatisfactory in the case for the Crown was the
fact that none of the Crown witnesses seemed to know
who the
investigating officer of the instant case is. None came forward as
the investigating officer. Indeed after denying that
he was the
investigating officer P.W.5 was referred to a criminal application
where he averred that he was the investigating officer
in his
deposition forming the basis of the Crown's opposition to that bail
application. Confronted with this clear evidence that
he was
untruthful in this Court when he said he was not the investigating
officer, he explained that he had been instructed by
his senior
officer to tell that lie to oppose application for bail. That he is
the type of man who is prepared to lie under oath
in obedience to
superior orders puts him outside the pale of witnesses worthy of
appearing in any Court of law to testify on any
issue.

The Court
went to the scene where the dead body was alleged to have been found.
It had earlier been estimated by P.W.4 and 5 that
the depth of the
donga in which the

14

body was
lying was two feet and three feet respectively. Both these witnesses
were ad idem that this was not the kind of place where
anybody
intending to hide anything could dump it as it was so shallow. The
results of the inspection at the place by the Court
revealed that
this donga was at least 24 feet deep. It is a matter of great
bewilderment that officers of their experience and
rank in the police
force can be so consistent with each other in giving an absolutely
and inexcusably wrong estimate of the place
they allege to have been
to. As effectively shown, both in cross-examination and during
addresses, there were some appalling inconsistencies
and strange
features in the conduct of police investigation of this case. 1 use
the word "investigation" guardedly because
none came
forward saying he either was an investigator of this case nor that he
knew who was except W/O Polanka whose evidence
has been referred to
above and found to be worthless in this regard.

In reply
to submissions made before the Court, Mr. Lenono for the Crown
addressed me on the subject of confession rather than informal

admissions one of which approximated a confession in so far as it
reads "I left Leballo here dead."

Relying
on Putsoa supra and Herholdt supra he urged that discretion should be
exercised judicially even if prosecution has failed
to produce
evidence. He referred me to a statement made by accused to P.W.4 Lt.
'Neko that "I have quarrelled with deceased
near Agricultural

15

College"
and pointed out that those words do not amount to a confession.
Asserting that Judges rules are not rules of law but
administrative
rules intended only for guidance, he referred me to KENNY'S OUTLINES
OF CRIMINAL LAW at Page 494 where it is said:

"when a police officer is endeavouring to discover the author of
a crime, there is no objection to his putting questions in
respect
thereof to any person, whether suspected or not, from whom he thinks
that useful information can be obtained."

This was
in reply to the point made that P.W.4 put questions to the accused
and refrained from warning him even though he felt the
answers
thereto were "dangerous". Crown evidence shows that on
arrival at Police Training Centre accused met P.W.1 and
that the two
were friends. They greeted each other and P.W.1 asked accused where
he had been;to which he replied he was still in
the country. On
further being asked what's happening to him, he said "I have
removed someone from the way, one of the dogs
has died from the
bullet." Mr. Lenono argued that these words were freely and
voluntarily made and that they did not amount
to a confession. R vs
PETLANE 71-73 LLR. 85. He argued that although it had been submitted
that accused was deceased's friend so
he could not kill him, accused
was the last person seen with deceased; further that immediately
thereafter he disappeared for three
weeks and that on surfacing
thereafter he uttered the words referred to above. He also said he
had quarrelled with deceased near
Agricultural College. Then he
afterwards directed the police officers to the spot where earlier the
deceased's body had been collected.

16

Mr. Pheko
argued that the statement alleged to have been made to P.W.I could
not be free and voluntary as P.W.1 was no friend of
the accused and
under cross-examination sought to show two instances where P.W.1
detested seeing accused sitting in the front seat
of a vehicle and
when on 1st March, 1985 accused left in disgust carrying his baggage
because of what P.W.1 had said to him. P.W.I
could remember none of
these occasions and said he knew they were friends because accused
used to go to his house to offer advice
regarding the training course
at P.T.C. Mr. Pheko submitted that the fact that accused was denied
an opportunity to be confronted
with Major Manamolela, who is among
seniors, alleged to have known accused's whereabouts during the three
weeks' period of his
alleged disappearance should result in an
adverse inference being drawn against the Crown for she would confirm
accused's statement.

I have
considered the evidence led so far, I have perused authorities
referred to me during submissions in argument by both Counsel.
I have
given serious consideration to the statements that accused is said to
have uttered and circumstances under which evidence
revealed he
uttered them. In both occasions where they are supposed to have been
uttered one thing sticks out distinctly namely
absence of hostility
on the part of P.W.1 and P.W.4 who received them. Another outstanding
feature that has not escaped my attention
is that P.W.4's testimony
regarding what accused is alleged to have said in connection with the
quarrel, he and deceased had at
the Agricultural College, was not
challenged. This

17

is a
factor that might form a basis for the motive upon which a proper and
relevant consideration can be based in refusing to discharge
the
accused at the end of the Crown case.

Application
is refused.

M.L.
LEHOHLA

ACTING
JUDGE

For
Applicant : Mr. Lenono

For
Defendant : Mr. Pheko