Director of Public Prosecutions v Nthunya and Others (CRI/APN/122/2004)

Case No: 
CRI/APN/122/2004
Media Neutral Citation: 
[2004] LSHC 76
Judgment Date: 
8 June, 2004

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CRI/APN/122/2004

IN THE HIGH COURT OF LESOTHO

In the matter between: -

THE DIRECTOR OF PUBLIC PROSECUTIONS Applicant and

1. MOLIEHI NTHUNYA 1st Respondent

2. JAMES LITHEMPA MOKOLATSIE 2nd "

3. BERNARD LECHESA MAHAO 3rd "

4. BERNARD MOTLATSI MAPOLA 4th "

5. JUSTICE RASOBATE SENGOARA 5th "

6. RANTSOTI MABITLE 6th "

7. DANIEL MAFEREKA 7th " 8. MICHAEL RAHAKA 8th "

9. DORA RAMOHAU 9th "

10. MOETI MPOPO 10th "

11. TSOLO TSOLO 11th "

12. MAMELLO MEMELA 12th "

13. SEMAPO MAKAFANE 13th "

14. DAVIT LEFU KOTA 14th "

15. TEBOHO MOROENG 15th "

16. TSABO NGATANE 16th "

17. MAKAU SEOTLO 17th "

18. KEKETSO MOAHLOLI 18th "

19. SECHABA KHOELE 19th "

20. MOHAHLOE NTLOTSOEU 20th "

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21. LEHLOHONOLO MATLHOLE 21st "

22. THABANG TSEHLA 22nd "

23. PHILLIP MASOABI 23rd "

24. MOHLABI HLABI MOTIA 24th "

25. LAWRENCE SELLOKEMISO 25th "

26. PETER SEKOAI CHALALE 26th "

27. MAFEFETHA NATHNAEL MATLOTLO 27th "

JUDGMENT

delivered by the Honourable Mrs Justice A. M. Hlajoane

on 8th June, 2004.

The matter came before me by way of an application to review the ruling by the Magistrate in a certain CR536/02 R v Mokolatsie and 24 Others. The proceedings before the magistrate were at a stage where the Crown was still leading his witness and the witness had forgotten a particular date. The witness could only remember the year, but not the exact date.

The Crown then sought to refresh the witnesses's memory by showing him a statement written by him. The defence then objected to this kind of procedure advancing the following reasons:

- That the Crown was attempting to prove a previous consistent

statement.

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that the Crown was attempting to contradict its witness.

the procedure sought to be employed by the Crown was

improper and impermissible.

that allowing such a procedure would create a precedent

whereby all Crown witnesses would be entitled to read their

statements whilst in the witness box.

The application by the Crown to allow his witness to refresh his memory was made after the witness had indicated that he could not remember the time exactly when his brother had passed away in 1995 and the time at which the witness took possession of a certain vehicle belonging to his late brother into his own possession.

Before the magistrate made his ruling on the matter, both counsel were given the opportunity to address court after filing their heads of argument. According to the Applicant/Crown the decision by the magistrate refusing the witness to refresh his memory was prematurely made. The Applicant could have been allowed the lay a foundation for his basis for adopting that kind of procedure. This would be by putting questions first leading to the establishment of whether or not the four requirements as shown in the South African Law of Evidence by Zeffer, Paizes and Skeen Ist Ed. June 2003 at 741 were satisfied.

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Though the Respondents were saying that the procedure sought to be employed by the Crown was improper and not permissible, they were ad idem with the decision in R v Elijah 1963 (3) SA 86, where the refreshment of the witnesses' memory was because the witness had some recollection of the facts that required refreshing so as to enhance the accuracy of his memory. This indicating that the refreshing of a witnesses' memory could still be allowed depending on the particular circumstances of the case, and the nature of statement sought to be produced for refreshing the witnesses' memory.

It would therefore not be correct to just make a general statement that such a procedure is not permissible. The two scenarios where a witness may require refreshing of his memory were clearly spelled out in the case of R v Elijah supra. Both counsel were agreed that the Applicant's request fell into the scenario where the witness had some recollection that required refreshing so as to improve the accuracy of his memory.

The South African Law of Evidence by Zeffer Paizes and Skeen supra sets out the four requirements which have to be satisfied before a witness could be allowed to refresh his memory from his statement to be the

following:

The statement must be authentic and must be the witnesses'

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- The statement must have been made contemporaneously with the facts sought to be proved.

The statement must be original.

- The witness must be able to produce such statement to the Court and to the other party.

It would seem that much reliance on this aspect was placed on the common law position as our Criminal Procedure and Evidence Act 9 of 1981 has no specific provisions for it. My brother Cullinan AJ dealt extensively with this aspect in CRI/T/111/99 R v Masupha Sole pages 825 to 832 of that record.

We have seen the four requirements which first had to be satisfied. In casu, it is common cause that the Crown had only just made an attempt to show the witness his statement when there was an objection from the Respondents. As I have already shown earlier on, the witness was not even allowed any chance to have a look at his statement in order for the Applicant to satisfy the four requirements. Applicant was not even afforded the opportunity of leading evidence which would have assisted the court in making it known as to when the statement was made.

The witness could not have been able to state as to whether or not the

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document was his statement without having looked at it, or whether or not It was an original document, which would also include the police statement S v Van Tonder 1971 (1) S.A 313. It came from the Respondents that the magistrate after the objection was raised had requested counsel to both prepare written submissions in the next sitting of the court.

The witness must have had the document in his possession so that it could be made available to the Court and the other side. As was said in R v Elijah supra, the basis of the evidence in that particular instance is always the recollection of the witness aided by the document, but the basis is not the documents itself.

In making out his case the Applicant pointed out that he had not asked that the witness be permitted to read from his statement, but to have a glance at it for refreshing his memory on a particular date. If the witness were to be allowed to read from the statement as he was giving evidence that would be making that statement the evidence or the basis of the evidenced. The true position should always be that of making the recollection of the witness the basis of the evidence which could be aided by a statement. Elijah's case makes a clear distinction between reading from a statement and referring to a statement.

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Because the objection was raised only at the stage when the Applicant attempted to hand over the statement to the witness, the Magistrate denied himself the opportunity of making it known what her approach was towards the statement after affording the Applicant an opportunity to explore the necessary requirements.

If the witness was to be allowed whilst already in the witness box to have a look at his statement even before commencing his evidence, that surely would be improper and unprocedural. R v Sole above.

"Now, the possibility of cross-examination on the statement is diminished if the witness is virtually (my emphasis) reading from the statement."

But in the particular case, he wanted to refresh his memory on a particular date in 1995. It would not have been a contradiction as he would have already given a year but could not remember the exact date in that very same year.

In furtherance of his argument, the Applicant pointed out that as a basis for his application, he could have lead his witness by asking him if he knew the statement or ever remembered making a statement, the time of making the statement in relation to the events in issue, whether he signed or could identify his signature on the document and whether the document was the

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original or a copy.

Under the circumstances therefore, it could never be said that the Applicant was afforded the opportunity of proving the necessary requirements to refresh the witnesses' memory. Parties were agreed that the proceedings were adjourned immediately pursuant to the objection being raised.

Respondents are saying that the Applicant was afforded the opportunity to prove the requirements when they were called to give their submission, but this would not be correct because that would not come from argument but from the evidence of the witness himself. It was also correct that the procedure of requesting to fresh the witnesses' memory was at the instance of Counsel as he was the one who was leading his witness in the case and as such dominis litis.

The court in casu is also asked to make a clear pronouncement on the requirement of contemporaneity. The ruling by the Magistrate presupposes that contemporaneous would be when the statement was made during the happening of the events. That would not be realistic because when things do happen, in most cases they would be unexpected. Some of them would be either frustrating or so frightening that a period of cooling would be an ideal situation. I would therefore subscribe to the school of thinking that

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contemporaneous would reasonably mean the first opportunity of recording a statement. Even where a statement was made after some lapse of time, enquiries would have to be made as to the causes of such delays.

The Applicant further argued that the Crown stood to be prejudiced should the witness not be allowed to refresh his memory. Prejudiced in the sense that the witness would not be allowed to give his full evidence. The witness had not yet given a date but only a year and in search for the truth the procedure was permissible.

The decisions of this Court have shown like in Soles's case that the procedure of allowing a witness to refresh his memory does exist. The only consideration would be when to allow such a procedure. As was the case in Mabea & Another v Magistrate for Buthat-Buthe and Another 1993-94 LLR LLB 122, "Section 7 of the High Court Act No.5 of 1978, enables any interlocutory (my underlining) and final review of criminal and civil cases so as to prevent an abortive trial in a Subordinate Court from taking place in the first case."

It would be for the Court in similar circumstances as the present, to assess the witnesses' statement as he was giving evidence in Court and compare such evidence with the portion where the witness had been allowed to

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refresh his memory.

Whilst this Court should be loathe to interfere with interlocutory rulings by magistrates, but where the Court feels that there had been a miscarriage of justice, it is always bound to interfere. Applicant was thus entitled to have been allowed the opportunity of refreshing his witness's memory by referring to the statement but not reading from it.

The decision by the magistrate refusing the Crown leave to refresh the witnesses' memory is set aside and substituted by one allowing the witness to refer to his statement on the particular aspect of the date as requested.

There is no order as to costs.

A. M. HLAJOANE JUDGE

For Applicant: Mr Leppan

For Respondents: Mr Hoeane