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Mabekebeke and Others v The Crown (C of A (CRI) 16/09)
IN THE COURT OF APPEAL OF LESOTHO
C of A (CRI) 16/09
In the matter between:
PAAMO MABEKEBEKE …......................1ST APPELLANT
LEFU SEPAEEA ….................................2ND APPELLANT
MOKHELE TALEJANE ….......................3RD APPELLANT
THEKUOE MOKOMA ….........................4TH APPELLANT
BOLENJEMI MOKOMA …......................5TH APPELLANT
THE CROWN …........................................RESPONDENT
CORAM: MELUNSKY, JA
Heard : 7 October 2010
Delivered: 22 October 2010
Criminal Law – mutually destructive versions on two main issues – court a quo deciding to call witness for purpose of resolving dispute on one issue in terms of section 202 of Criminal Procedure and Evidence Act, 1981 – trial court subsequently deciding not to call such witness on the grounds that his evidence might be inadmissible – witness not called but appellants convicted.
Held on appeal:
That the person’s evidence appeared to be essential to the court a quo to enable it to arrive at a just decision of the issue in question;
That it was therefore imperative for the person to be called;
That there was no justification for the subsequent decision not to call him;
That the trial court must have had a reasonable doubt as to whether the Crown’s version of the disputed issue had been established;
That both main issues to be determined at the trial were closely connected to each other and the versions on both were mutually destructive
That in the circumstances the Crown had failed to establish the appellants’ guilt beyond reasonable doubt. Appeal accordingly allowed.
 The five appellants were arraigned in the High Court on a charge of murdering a young man, Thabang Mokoma (the deceased), on 17 December 2005. They all pleaded not guilty but the court (Teele AJ and assessors) convicted them as charged. After a finding that extenuating circumstances existed the appellants were each sentenced to imprisonment for a period of ten years. This is an appeal against the convictions and sentences.
 The deceased died as a result of a severe head injury which was apparently due to a blow or blows from a blunt object. With the appellants’ consent, part of the post-mortem report was read into the record but the report was not handed in as an exhibit nor was the medical practitioner who performed the post-mortem examination called by the Crown. She was, however, called by the learned judge a quo during the defence case. I will later refer to an aspect of the medical evidence. At this stage it is only necessary to add that, apart from any injuries to the head, there were marks “all over the (deceased’s) body” consistent with his having been beaten with a blunt object.
 For the sake of convenience I will consider the evidence in two sections, one being the circumstances relating to the deceased’s death and the other dealing with admissions allegedly made thereafter. Of course the guilt of the appellants must be decided on the totality of the evidence but for the purposes of this appeal the second aspect seems to me to be of more significance than the first. I add that there is no direct evidence relating to the assault or assaults that led to the deceased’s death but the circumstantial evidence in that regard has been covered in detail in the judgment of the court a quo and in the arguments of both counsel in this Court. In the particular circumstances of this appeal, therefore, there is no need for me to do more than to give a brief outline of the Crown evidence and that of the appellants.
 On 17 December 2005 the deceased was a candidate for initiation at an initiation school (known as a “Mophato”) for the purpose of achieving his rite of passage into adulthood. The Mophato was owned by PW4, PW1 was the senior instructor at the institution and PW2 was his assistant. Apart from the admission of certain statements with the consent of the appellants, the Crown called one other witness, PW3, who, like the deceased, was a prospective initiate. It is neither necessary nor possible to describe the esoteric rituals involved in the initiation process. It suffices to say that during the initiatory process the candidates are taught to sing certain songs. The appellants further contended – a proposition that was disputed by the Crown witnesses – that the instructors are entitled to inflict moderate corporal punishment on those who are being instructed in appropriate circumstances.
 During the night in question the first four appellants, who had all been through the initiation process at some earlier time, arrived at the Mophato. PW1, PW2 and PW3 were present and so was the deceased. The appellants, without objection by PW1, proceeded to instruct the deceased to sing a certain song. The deceased complied with their request and the appellants then left the initiation school. All of the aforegoing is common cause. Shortly after the appellants’ departure, according to the evidence of PW1 and PW2, it was noticed that the deceased was no longer at the school. They organised a search but were unable to find him.
 Later that night all five appellants arrived at the Mophato together with the deceased. PW1 and PW2 testified that on their arrival the deceased was tied to the neck of a horse. There were apparent differences between their evidence as to the manner in which he was positioned on the horse but nothing turns on this as the court a quo did not accept that particular part of their evidence. PW3 told the trial court that when he awoke during the night he saw the deceased walking towards the school with some difficulty and with PW1 holding him.
 What is clear according to the evidence of the Crown witnesses is that the deceased, on his arrival, had obviously sustained severe injuries. Namely a wound to the head and whipping marks all over his body. He was, they testified, in a desperate condition and died shortly thereafter. The Crown witnesses were emphatic in their denial that the deceased sustained any injuries at the school, either before his departure or after his return. In particular PW1 and PW2 denied the defence’s assertion that they had beaten the deceased at any time.
 A very different version was put forward by the defence. In short their account of the occurrences of the events may be stated as follows: after leaving the Mophato the first appellant (who had temporarily separated from the others) came across the deceased who was running towards him. He called the second and third appellants and after their arrival they asked the deceased what had happened. The deceased claimed that he had run away from the initiation school because he had been assaulted by PW1. The appellants examined him and found that he had a wound on his head and “whip marks” on his body. The first appellant went to call the fourth and fifth appellants, who were related to the deceased. The appellants decided to return to the Mophato with the deceased. This they did. On the return journey some of the appellants were on horseback, while the others and the deceased walked. On their arrival at the initiation school and after a short exchange between the appellants and PW1, the latter tied the deceased’s hands with a rope and he, PW2 and a certain David proceeded to beat the deceased with sticks. The third appellant attempted to intervene while the assault on the deceased was being carried out and the appellants then returned to their respective homes. On the following day they learned that the deceased had died and they went back to the Mophato. The appellants all denied that they had assaulted the deceased.
 This is an appropriate stage to set out the accounts of admissions allegedly made after the death of the deceased. In this regard a statement made by the second appellant to PW1, (according to the latter’s evidence), to the effect that the first appellant had struck the deceased on his head, should be disregarded. The second appellant denied making the statement and it was clearly inadmissible. Of far more importance is the evidence of the school owner, PW4. He testified that on the morning following the death of the deceased, there was a gathering at the school. Present were five members of the initiation committee, PW1 and PW2, all the appellants and a number of other people. PW4 said that he asked the appellants individually who had assaulted the deceased. In response to his questioning each appellant admitted that he had taken part in the assault. The appellants, however, denied in their evidence, that they made the aforesaid admissions: further their contention remained that when they met the deceased during the previous night he had already been injured.
 PW2 said in evidence, presumably on the same occasion referred to by PW4, that the first appellant told the committee that he had inflicted the wound on the deceased’s head and that the third appellant said that “they”, meaning the appellants, had assaulted the deceased with whips. It was put to PW2 in cross-examination that not only would the appellants deny that any of them had assaulted the deceased but that when members of the committee asked what had happened to the deceased PW2 replied that he was responsible for the assault. What is more the first appellant testified that after the committee members questioned the teachers (but not the appellants) about the death of the deceased, PW2 responded that “they”, meaning the teachers, had assaulted him and that PW1 added that he had assaulted the deceased “moderately”. The first appellant also said in evidence that the appellants were not questioned at all; that PW4 was not present when the committee questioned PW1 and PW2; and that PW4, after his arrival, asked no questions of either the appellants or the teachers.
 It is quite apparent from the aforegoing that there are substantial disputes of fact on at least the following matters:
Whether PW4 had questioned the appellants in the presence of members of the initiation committee and, if so, whether the appellants had admitted to PW4 that they had assaulted the deceased;
Whether the committee members had questioned the appellants and, if so, whether the first and third appellants had made the admissions as alleged by PW2; and
Whether the committee members had questioned PW1 and PW2 and, if so, whether the teachers had made the admissions as stated by the first appellant.
 In dealing with this aspect of the case, the learned judge accepted the evidence of PW2 and PW4 to the effect that the appellants had admitted assaulting the deceased. He said that PW1 and PW2 could not have admitted assaulting the deceased as, if this had been the case, there would have been no need to call the appellants to the gathering. What should, perhaps, have been investigated more carefully is whether the appellants were already at the gathering when PW1 and PW2 allegedly admitted having assaulted the deceased. After all this was the evidence of the first appellant. Leaving that aside for the moment, it is quite clear from the record that during the evidence of the fifth appellant the learned judge asked the witness whether the committee members were alive. After he was assured that they were, he said that he “wanted them” in court as there was “much to gain” in obtaining the evidence of independent persons, obviously to resolve the dispute between the Crown witnesses and the appellants. Subsequently the learned judge a quo again referred to the dispute between the Crown and the appellants, whereupon the fifth appellant said that it would be preferable to call the committee members to clear up the disputed issue. To this the learned judge responded:
“I am going to call one or two members of the committee. I am going to do that.”
Shortly thereafter the learned judge obtained the names of two committee members who were not related to the appellants and at least one of whom was said to have been present at the gathering. Surprisingly enough, however, he then considered dropping “the suggestion” that the committee members should be called on the grounds that their evidence might be inadmissible as they might “be said to be persons in authority”. And in the event, no committee members were called despite the fact that they were available.
 At the hearing of the appeal we referred counsel to the provisions of section 202 of the Criminal Procedure and Evidence Act and whether, in the circumstances, the learned judge was obliged to call one or more committee members to testify. The section reads:
“(1) The court may at any stage of the criminal trial subpoena or cause to be subpoenaed any person as a witness or examine any person in attendance though not subpoenaed as a witness, or recall and re-examine any person already examined.
(2) The court shall subpoena and examine or recall and re-examine any person if his evidence appears to it essential to the just decision of the case.”
The section is substantially similar to the corresponding South African provisions (section 186 of the Criminal Procedure Act, 1977 and its predecessors). Both make provision for the court’s discretionary power to call a person and a duty to do so if his evidence appears to it essential to the just decision of the case.
 A proper reading of the record shows quite clearly that the learned judge fully appreciated that on the question of the admissions there were irreconcilable differences between the Crown and defence witnesses. It is also clear that the learned judge had expressed his firm intention to call at least one committee member to resolve the disputes. He therefore had a duty to do so in terms of section 202 (2) of the Act.
 In R v Kubeka 1953 (3) SA 691 (T), Ramsbottom J said that a judge’s duty of intervening in a case and of calling a witness himself is an onerous one and a duty that a judge does not lightly assume. He further pointed out that a judge should consider various factors before considering whether to use his discretion (under section 202 (1) of the Act) or whether to decide it is essential for the just decision of the case to call a witness (under section 202 (2)). It seems to me, however, that where a judge does not himself indicate whether, after setting out the important factors, he intends to call a person in terms of section 202 (1) or 202 (2), it is right and proper for a court of appeal to infer what the judge must have intended. It is on that basis that I have arrived at the conclusion referred to in par  above.
 In the leading case of Rex v Hepworth 1928 AD 265 it was stated at 277 that:
“..…if once a Court comes to the conclusion that it is essential to the just decision of the case to call or recall a witness, it becomes imperative on the Court to do so, and no discretion is then left to the Court.”
This proposition may have been too widely stated as there may be situations in which subsequent events during the course of the trial render it unnecessary to call such a witness (cf the obiter dictum in R v Damana 1958 (1) SA 571 (E) at 572 H). But it is not required that a final decision should be made on this point for there were no later events that had any bearing on this case and the learned judge’s change of mind was, in my view, unjustified. It was based, as I have mentioned, on the ground that the evidence of members of the committee might be inadmissible as they might be said “to be persons in authority”. The possibility of the evidence being inadmissible was purely speculative: there was no argument on the point and no objection by either counsel to the evidence being led. Moreover and even if there was the notional possibility of the evidence being inadmissible, this was an aspect that could have been considered when the witness was called, after an examination of the relevant circumstances of his position and a consideration of the submissions of counsel.
 From the aforegoing it follows that the learned judge a quo must have entertained a reasonable doubt on whether the appellants had made the relevant admissions. Furthermore, and as I have already indicated, the finding in the judgment that the appellants did in fact make the admissions was determined without considering the appellants’ own evidence. I only have to add that the conclusion of the court a quo on this aspect of the case was arrived at without the thoroughness that the issue deserved and to emphasise in this regard that the evidence of the appellants’ alleged admissions was the only evidence that directly implicated them in the crime with which they were charged.
 It has been held that where the evidence of a witness is essential to a just decision of the case, the failure to call him could constitute an irregularity (see S v B and Another 1980 (2) SA 946 (A) at 953 C). This appeal can, however, be disposed of without considering whether or not there was an irregularity that has led to a failure of justice. In this regard counsel for the Crown requested this Court to hold that the evidence of the first section, dealt with in pars  to  above established the appellants’ guilt without reference to the alleged admissions. This submission is untenable. It is quite clear that the versions of the Crown and the defence on that aspect are closely connected to the other aspect and are also mutually destructive. In the words of the learned judge, they disclosed a “raging dispute”. He nevertheless rejected the evidence of the appellants mainly on the ground that the seriousness of the head injury would have precluded the deceased from covering the 8 kilometres (from the school to where he encountered the appellants and back) on foot. This would have been a correct finding if the medical evidence was sufficiently clear. The report of the post-mortem, read into the record, seems to me to be ambiguous to say the least. It possibly reflects a diffused head injury consisting of more than one fracture. On the recall by the court the medical practitioner was not asked if the head injuries were widespread or whether they were only consistent with a single blow to the head.
 The appellants’ version was that the deceased had been assaulted at the school on two separate occasions. It is so that when they first encountered the deceased he already had a head injury that might have been serious but was apparently not life-threatening, for, according to their version, the deceased was able to run and to walk. It is reasonably possible, therefore, that the head injury could have been aggravated when PW1, PW2 and David assaulted the deceased after he was returned to the school, as the appellants claim.
 The court a quo also put forward other reasons for rejecting the evidence of the appellants but these were insubstantial and provide no assistance in resolving the dispute. It is only necessary to add that the Crown evidence did not provide a reason for the deceased’s sudden departure from the school, nor did it provide a motive for the deceased to have been assaulted. Of course the Crown was not obliged to establish motive but the absence of motive leaves the version given by the Crown witnesses with no inherent probability (see R v Phiri 1958 (3) SA (A) 161 at 165 A-B), while the appellants’ version that the deceased was assaulted by PW1 and PW2, for not carrying out his instructions as a prospective initiate, provides a motive as well as a reason for his running away from the Mophato.
 The end result is that the Crown evidence falls far short of resolving the disputed issues and in the absence of direct and satisfactory evidence that the appellants assaulted the deceased, they should have been acquitted.
 I make the following order:
1. The appeals of all the appellants succeed;
2. The convictions and sentences of the appellants are set aside.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
For the Appellants: Adv T J Mokoko
For the Crown : Ms H Motinyane