R v Toloane (CRI/T/12/97)

Case No: 
Media Neutral Citation: 
[2004] LSHC 142
Judgment Date: 
15 November, 2004




In the matter between:-





(Application for discharge)


DATE : 15th NOVEMBER 2004


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.


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.


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.


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.


For Crown : Ms Dlangamandla

For Accused: Mr Teele