R v Khoalenyane (Rev. Case No. 129/02 CR 223/02 Rev. Order No. 1/03 )

Media Neutral Citation: 
[2003] LSHC 62
Judgment Date: 
28 May, 2003

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IN THE HIGH COURT OF LESOTHO


In the matter of: -


REX

vs

MAKOAE KHOALENYANE


Review Case No. 129/02 CR 223/02

Review Order No. 1/03 In the Thaba-Tseka District


REVIEW ORDER


After perusing the record of these proceedings I asked the Director of Public Prosecutions to also peruse the same and make submissions regarding the propriety of convictions therein (See Section 8 (3) of the Subordinate Courts Order No. 9 of 1988). I have since received the written submissions of the crown in which they state that they do not support the convictions.


The applicant, along with one Mojapela Mojapela, had originally been jointly charged before the Thaba-Tseka Subordinate Court with the crime of housebreaking with intent to steal and theft it being alleged that


"upon or about or during the month of July 2002 and at or near Paray Hospital in the Thaba-Tseka district the said accused one or other or both of them did break and enter the office there situate of Paray Hospital and steal money to wit MB, 200. 00 property of or in the lawful possession of one Matela Thamae and did thereby commit an aforesaid crime. "


Second count similarly alleged housebreaking and theft of M3, 500. 00.


Many aspects of the evidence led and conclusions arrived at by the court caused me great concern. The accused pleaded had not guilty and hence it was incumbent upon the crown to prove each element of the offences beyond reasonable doubt.


Firstly, there was no evidence of breaking in; in fact the crown witness P. W. 1 admitted that at all times she had kept the keys of the safe in which the money was usually kept; she says there was no breaking in.


"Question: Did you find any breaking at the Hospital?


Answer: No. "


The search that was conducted by P. W. 2 - Matela Thamae - who happens also to be the complainant in both counts - resulted with the discovery of some money in the ceiling above the bed of the applicant in the dormitory. Firstly, the search conducted by P. W. 2 was illegal in that it was not conducted by a police officer in accordance with the provisions under Part VI of the Criminal Procedure and Evidence Act 1981. Apparently he had been given "power to investigate and search" by the police. This novel way of investigate is completely alien to our law if not unconstitutional (see Section 10 of the Constitution).


The money was found in the ceiling manhole above the bed used by the accused.


In the circumstances, there was no conclusive evidence that proved beyond reasonable doubt that the accused was guilty on both counts. Strong suspicion is not enough to have founded the inferences drawn by the learned magistrate.


The crown does not support the convictions and for the reasons stated above, the convictions and sentences are hereby set aside.


S. N. PEETE

JUDGE

28th MAY, 2003


CC: The Magistrate - Thaba-Tseka

O/C Police - Thaba-Tseka

O/C Prison - Thaba-Tseka

O/C Central Prison

CID Headquarters - Maseru

Director of Prisons

Director of Public Prosecutions

Chief Magistrate