Rex V Sebilo & 6 Others (CRI/T/0205/2017) [2023] LSHC 254 (19 October 2023)

# Rex V Sebilo & 6 Others (CRI/T/0205/2017) [2023] LSHC 254 (19 October 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/254/eng@2023-10-19) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/254/eng@2023-10-19) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/254/eng@2023-10-19) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/254/eng@2023-10-19) [ __](mailto:?subject=Take a look at this document from LesLII: Rex V Sebilo & 6 Others \(CRI/T/0205/2017\) …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/254/eng@2023-10-19) [ Download PDF (240.1 KB) ](/akn/ls/judgment/lshc/2023/254/eng@2023-10-19/source) Report a problem __ * Share * [ Download PDF (240.1 KB) ](/akn/ls/judgment/lshc/2023/254/eng@2023-10-19/source) * * * * * Report a problem __ ##### Rex V Sebilo & 6 Others (CRI/T/0205/2017) [2023] LSHC 254 (19 October 2023) Copy citation * __Document detail * __Related documents Citation Rex V Sebilo & 6 Others (CRI/T/0205/2017) [2023] LSHC 254 (19 October 2023) Copy Media Neutral Citation [2023] LSHC 254 Copy Hearing date 17 October 2023 Court [High Court](/judgments/LSHC/) Case number CRI/T/0205/2017 Judges [Ralebese J](/judgments/all/?judges=Ralebese%20J) Judgment date 19 October 2023 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Criminal law](/taxonomy/case-indexes/case-indexes-commercial-criminal-law) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **_CRI/T/0205/2017_** **HELD AT MASERU** **In the matter between:** **REX** **and** **SEBILO SEBILO 1 ST ACCUSED** **NKOTO TEKO 2 ND ACCUSED** **MOLIKENG MORURI 3 RD ACCUSED** **TELLO MAKHATHA 4 TH ACCUSED** **NTSAU MOSOTHOANE 5 TH ACCUSED** **SEHLOMATHISO MAKHASANE 6 TH ACCUSED** **MOSOEU BUSA 7 TH ACCUSED** **CORAM : M.P. RALEBESE J.** **HEARING : 16 & 17 October 2023** **JUDGMENT : 19 October 2023** **_SUMMARY_** _Criminal Law – Application for discharge at the close of the Crown's case – Contradictory evidence of the Crown amounting to no evidence on which the court can rely – No proof that the accused persons committed the actus reus – Actus reus the basis of criminal liability - No prima facie evidence on which the court might convict – The accused persons discharged and acquitted.._ **_ANNOTATION_** **_CITED CASES_** **_LESOTHO_** R v Nala Capital Advisors (Pty) Ltd and Another CRI/A/0002/2018) R v Manyeli C of A (CRI) 14 of 2007 **_SOUTH AFRICA_** Masondo :In re S v Mthembu 2011 (2) SACR 286 S v Lubaxa, 2001 (2) SACR 703 (SCA) S v Thabethe and Others (08/2022) [[2023] ZAFSHC 87](/akn/za-fs/judgment/zafshc/2023/87) (21 April 2023) **_STATUTES_** Criminal Procedure and Evidence [Act No.9 of 1981](/akn/ls/act/1981/9) Penal Code [Act no.6 of 2010](/akn/ls/act/2010/6) **_BOOKS_** Schwikkard, Principles of Evidence, 4th Edition, Juta. **_JUDGMENT_** **Ralebese J.** [1] The accused persons have been charged with murder in contravention of section 40 (1) read with see 40 (22 and 26 (1)) of the **Penal Code Act**[1]. They have applied for their discharge at the close of the Prosecution’s case in terms of section 175(3) of the **Criminal Procedure and Evidence Act**[2]. [2] Before dealing with the merits of the application, it is apposite to summarise the Crown evidence which the defence alleges does not disclose a prima facie case against them. The evidence is to the effect that on the night of the 11th of April 2015 one Nkholiseng Kolobe, a female pastor residing at Ha Sekake raised an alarm and sought assistance as someone was attacking her at her place of residence. Members of the community including the accused persons rushed to Nkholiseng’s place, and they found the deceased outside. The deceased told the members of the community that he was the one who had attacked Nkholiseng. The community members tried to arrest the deceased, but he fled. They chased after him while raising an alarm until they got to Sekhutlong where the deceased locked himself up in a shack of one Sello. The deceased refused to come out of the shack until the police arrived. The police asked the deceased to come out of the shack but all in vain. They shot into the shack, but he still refused to come out. The police ultimately broke into the shack and they brought the deceased out. [3] A lot more multitudes from the neighbouring villages had gathered at Sello’s place at that time. When the police brought the deceased out of the shack, these multitudes were furious, and they tried to attack the deceased, but the police stopped them. The police fastened the deceased and left with him in the vehicle of one of the Crown witnesses. [4] The test applicable in the application of this nature is whether there is prima facie evidence upon which a reasonable court, acting carefully might convict the accused persons of the offence charged or any other competent charge. The evidence under consideration at this stage is the crown's evidence being the only one on record (**R v Nala Capital Advisors (Pty) Ltd and Another** and **R v Manyeli**[3]). It is no longer constitutionally appropriate for the court to decline the application for discharge on the premise that there is a reasonable possibility that the accused persons might supplement the Crown’s case and thereby incriminate themselves. As stated in **S v Lubaxa**[4] “ _Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself_.” [5] The elements of the offence of murder consist of the unlawful and intentional causing of the death of another human being. For the accused persons to be liable for an offence of murder, one of the main requirements is that there must be proof that they committed the _act_ that caused the death of the deceased. This is primarily because in an inquiry of criminal liability, once the Crown fails to establish an act/_actus reus_ on the part of the accused persons, it means the accused person is not guilty of the offence charged and that should be the end of the matter since all the other requirements of liability such as unlawfulness and _mens rea_ depend on the _actus reus_. It would be superfluous for the court to enquire whether the accused persons acted unlawfully or with intention where there is no proof that the act was committed in the first place. [6] The three Crown witnesses who can be classified as eyewitnesses all testified that they did not see any of the accused persons assaulting the deceased. The Crown’s submission was that the evidence of PW4 (Detective Seargent Moloinyane) who effected the arrest was that the accused persons, having been cautioned, voluntarily made informal admissions that they used sticks to whip or assault the deceased, which they thereafter threw away. The question is whether this informal admission qualifies as prima facie evidence that the accused persons committed the act that caused the death of the deceased. The answer to this question is in the adverse as demonstrated hereinafter. [7] In the first place, the evidence (informal admission) does not indicate how and when the accused persons assaulted the deceased and whether the said assaults can be linked to the death of the deceased. Secondly, the evidence of PW4 contradicts that of the other three Crown witnesses who testified that they did not see any of the accused persons assaulting the deceased at any point from the time he was chased from the pastor's place until he was arrested by the police. The Crown, if it felt that the three eyewitnesses disproved its case, was entitled to call PW4 to discredit or impeach those eyewitnesses[5]. However, PW4 should have been confronted with the evidence of those eyewitnesses so that he could explain the contradiction between his evidence and that of the three eyewitnesses. This did not happen, and at the close of the Crown's case the court was confronted with the contradictory evidence of the Crown witnesses on the issue of the assault of the deceased, and the contradiction remained unexplained. It is trite that where the evidence of the Crown witnesses implicating the accused is of such poor quality that the court cannot safely rely upon, and there is accordingly no credible evidence on record upon which a court, acting carefully, might convict, an application for discharge should be granted (**S v Thabethe and Others**[6]). [8] One of the considerations in an application for the discharge of the accused persons is, should the court decline to discharge the accused persons, and they exercise their right to remain silent, would the court convict the accused persons on the evidence of PW4? The answer even to this question is in the adverse. In an inquiry of criminal liability, the first requirement that the Crown should prove is the act _/actus reus_ on the part of the accused persons. Should the Crown fail to establish that the accused persons committed the act that caused the death of the deceased, that should be the end of the matter because all the other requirements of liability depend on the _actus reus_. In the instant case, the evidence of PW4 on its own and viewed in the light of the evidence of the other Crown witnesses does not establish prima facie that the accused persons committed the act that caused the death of the deceased. It follows therefore that this is the proper case for this court to cut the tail off a superfluous process (**Masondo: In re S v Mthembu**[7]). [9] There is no evidence prima facie on which the court may convict the accused persons of the offence charged or any other offence as anticipated in section 175 (3) of the **Criminal Procedure and Evidence Act**. The accused persons are therefore discharged, and they are accordingly acquitted as there is no case, prima facie, to which they can answer. _______________________________ **M. RALEBESE** **JUDGE** **For the Crown:** Adv. Mapesela **For the Defence** : Adv. Kholoanyane for Accused 1, 2, 6 and 7. Adv. Nzuza for Accused 3 and 5 Adv. Mosira for Accused 4 * * * [1] Penal Code [Act no.6 of 2010](/akn/ls/act/2010/6) [2] Criminal Procedure and Evidence [Act No.9 of 1981](/akn/ls/act/1981/9) [3] R v Nala Capital Advisors (Pty) Ltd and Another CRI/A/0002/2018) and R v Manyeli C of A (CRI) 14 of 2007 at para 15. [4] S v Lubaxa, 2001 (2) SACR 703 (SCA) [5] Schwikkard, _Principles of Evidence_ , 4th Edition, Juta. On pages 486-487. [6] S v Thabethe and Others (08/2022) [[2023] ZAFSHC 87](/akn/za-fs/judgment/zafshc/2023/87) (21 April 2023 at para 19. [7] Masondo: In re S v Mthembu 2011 (2) SACR 286 at para 38 #### __Related documents ▲ To the top >