2016

LECTURE NOTES

ON

LAW OF EVIDENCE

Compiled by:

Senior Inspector Sehloho, NC

Aim of the course:

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The aim is to enable recruits to understand law of evidence.

Objectives

At the end of the course participants will be able to define:

 Sources of the law of evidence

 Evidence and the Law of Evidence
 Different types of evidence.
 Relevancy and admissibility
 Similar fact evidence
 Evidence of Character
 Evidence of opinion
 Corroboration.
 Standard of proof
 Explain the difference between competence and compellability of a witness
 competence and compellability of witnesses
 Privilege and its components

SOURCES OF LESOTHO’S LAW OF EVIDENCE

- English law as has been codified in our statutes being Criminal Procedure and
Evidence Act no 9 of 1981 and Ordinance 72 of 1830. See section 241 of CP&E.
- Common law
- Judicial precedent
- Authoritative text books
- Statutes
- Customary law

Nature of the Law of Evidence

Law of evidence is closely linked to criminal and civil procedure hence and is referred to as
procedural and adjectival law.

Definition

Evidence meaning – is defined as any material which tends to persuade the court of the truth
or probability of some fact alleged or asserted before it. There are three types of evidence
namely: oral testimony, documentary evidence, real evidence and circumstantial
evidence.

Types of Evidence

 Real evidence

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This refers to anything or place which may be observed by the magistrate or the judge to
assist him in the decision making. This may include loco inspection (this is a visit of a scene
of crime by the court).

The real evidence can include any tangible thing which may be observed by the court which
has been seized as exhibits by the police which was involved in the commission of crime to
be presented as evidence before the court. for example knife used in assault, car which is
subject of theft, photographs and films and bags of marijuana etc. Real evidence is of no
value unless it is supplemented by the testimony of the witness.1

 Documentary evidence

This is written document or written statement which is intended to be produced or tendered

before the court. That is to say, a police officer will seize as exhibit any documentary material
which has been used for the commission of crime to be tendered before court. For example
bankers books, records and cheques which have been used to proof fraud case.

 Oral Testimony

This is verbal statements made by a witness before the magistrate or the judge. This may be
an eye witness account of what he has seen or has perceived in all of his senses during the
commission of the crime. It is also viva voce or oral evidence given by a witness in person
from the witness box. See: Owori M.A. in his article The Evaluation of Evidence Before
the DDPR.

Circumstantial evidence.

There are certain information which often forms an important components of evidence to be
furnished before courts. eg Where an accused person cannot possibly have not witnessed
commission of a crime to such an extent that, he cannot made direct assertions with
regard to the facts in issue, he can provide an information which can make the court to
be in the position to draw inferences or conclusion. As such circumstantial evidence
provides an indirect proof.2 For example it can be helpful in a murder case that a witness who
have not witnessed one Molise killing Sello can only provide evidence that, Molise told him
that he wants to kill Sello and on the fateful day when Sello was killed , he saw Molise
coming from Sello ‘s house holding knife with some blood stains is relevant .

Definition of the law of evidence

The law of evidence is defined as the body of legal rules that determines whether (and how)
evidence can be adduced.

The law of evidence lays down the rules which govern:

- The admissibility of evidence

- The manner of adducing evidence
1
See Zeffert & 2 others,2003 The South African Law of Evidence , Lexis Nexis Butterworth’s page 703
2
Schwikkard PJ & Others Principles of Evidence , Juta & Co at 19

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 - The evaluation of evidence.

Relevance and admissibility

As a rule, any evidence which is relevant is admissible unless there is some other rules of
evidence that excludes it. The reason why the prosecutor will tender evidence is to persuade
the court of the truth of the facts upon which the success of his case depends. Then any proof
of the facts that has no bearing to the charge laid before the court cannot assist or help the
court in deciding the matter, hence they are regarded as irrelevant and therefore
inadmissible. Insistence to tender irrelevant and inadmissible evidence is likely to cloud
issues, waste time and expenses and lead to examination of collateral issues and may
definitely confuse the court.

For example, Moliehi is to testify that she has been assaulted by Thabang in 2016, the
inclusion of the fact that Thabang stolen his clothes sometime in 2015 do not have direct
bearing to prove the case of assault and is therefore irrelevant and therefore inadmissible and
its tendering in court is likely to confuse the court or waste court’s time.

There are four categories of relevance and any evidence which falls outside these categories
must be excluded.

(a) Facts in issue: they are the facts which one or other of the parties must prove or
disprove in order to succeed in his case3. Therefore section 224 of the Criminal
Procedure and Evidence Act 1981 states that ”, no evidence , as to any fact , matter
or thing, which is irrelevant or immaterial and cannot adduce prove or disprove any
point or fact at issue in the case which is being tried , shall be admissible.” For
example, in a prosecution for murder, the issue will be whether an accused unlawfully
and intentionally killed the deceased. Facts to be tendered that tend to prove or
disprove these are facts relevant to an issue. Facts in issue are determined by the
substantive law.
(b) Evidence relevant to a fact in issue: Facts are not directly in issue yet they are
relevant because they help to facilitate prove or disprove facts in issue. The way to
establish that these facts are relevant is to look at the logic and common experience.

For example, assuming the issue before the court is whether Molomo is deemed a
biological father of the child so that he can contribute towards his maintenance? Then,
the evidence of DNA test is tendered to serve as indirect evidence that in fact Molomo
can be held a biological father of the child. It is important to mention that, in that case,
DNA test is not the issue before the court but it is there to facilitate prove of the fact
in issue being whether Molomo is a biological father of the child.

(c) Evidence of the facts relevant to credibility

These are the facts which are intended to persuade the court whether to believe or
disbelief a particular witness. For example , any evidence which shows that a witness

3
Zeffert and others , 2003 , Principles of Law of Evidence lexis nexis Butterworth page 224

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 should not be believed because he is likely to be bias or he is bribed or has a faulty
memory are factors which are relevant to the issue as to whether he can be trusted or
be relied by the court as fair and honest witness .
(d) Evidence of facts relevant to admissibility
There are some evidence which on the face of it can be deemed relevant but due to the
fact that they are excluded by the rules of evidence, they are inadmissible. This simply
means that, the fact that evidence is relevant does not mean that it is admissible. For
example, statements forming part and parcel of lawyer client relationship even if they
can appear to be helpful they cannot be admissible .Wife cannot testify against
husband before the court of law where the husband is charged.

Admissibility

The evidence that pass the relevance test as shown above are said to be admissible evidence
unless in certain circumstances they are excluded by rules of evidence regardless of whether
they are facts in issue, evidence of facts relevant to facts in issue , evidence of facts relevant
to admissibility and credibility.

Inadmissible and Admissible evidence.

Similar fact evidence

Evidence of Similar fact is that evidence which refer to peculiar immoral, improper or
illegal conduct of a party on prior occasions other than the occasion in dispute which is
logically connected with the conduct in dispute. And it must be substantially similar to the
conduct in dispute.

In the case of Makin v. Attorney General of New South Wales 4the court had the following
to say: it is undoubtedly not competent for the crown to adduce evidence tending to show that
the accused had been guilty of criminal act other than those covered by the charge for the
purpose of leading to the conclusion that the accused is the person likely from his criminal
conduct or character to have committed the offence for which he has been tried.

As a general rule ,evidence of similar fact is irrelevant and inadmissible. As the fact that,
an accused person has committed crime previous to the one in dispute does not necessarily
mean that he committed the one in dispute. The reception of similar fact evidence can lead to
copy cats committing crimes as they will not be regarded perpetrators rather attention will be
put to the person who had previously committed the crime.

Similar fact evidence will be accepted if it avoids prohibited reasoning. That is to say , the
similarity between previous misconduct and the one in dispute must not depend on mere
repetitiveness that an accused has a tendency of committing a certain crime, but it must go
beyond propensity if there is established causas nexus or causal link between previous
misconduct and the one in dispute over and above mere repetitiveness. The evidence of
4
1991-94 ALLER 24

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similar fact is admissible where the probative value exceeds the prejudicial value on the
accused.5This may be where there is Striking similarity and where the accused‘s act disclose
his design or system.

Striking similarity

The similar fact evidence is admissible if there is a striking similarity. Similarity is said to be
striking if it eliminates all possible coincidence and there is uniqueness. Lord Wilberforce
stated requirement of similarity in the following terms In S v. Wilmot6 a whiteman from
Grahamstown who speak Xhosa, whose nickname was Thuti driving Isuzu bakkie
conveying cabbage was charged with a rape of young girl. It appears that he used
accomplice called Nohesi to convince small girls to get into the bakkie and he will then
drive his bakkie to the bush to rape them and pay them R10.00. During the trial the
Prosecutor raised evidence of two children who were raped by a man speaking Xhosa ,
selling cabbage in Grahamstown ,who use Nohesi to convince small girls to enter the
bakkie and his name is Thuti. The court held that it may be a coincidence that there can
be many Xhosa man selling cabbage in Grahamstown whose nicknames are Thuti
driving Isuzu, however there is a striking similarity which is so unique that they cannot
all use accomplice Nohesi and pay the victims who are small girls R10.00. As such
similar fact evidence was admitted as there was striking similarity which was so unique.
The accused was accordingly convicted.

Design or system

Where the similar fact suggest that the accused had a general plan or system such that ,such a
plan or system establish modus operandi or mode of operation showing the design or pattern
the accused used to commit offence on number of previous occasions than the one in dispute,
then such evidence will serve as the signature of the accused or how we identify his criminal
acts in that circumstances similar fact will be admissible.

In R v. Smith 7, The accused was having a system or design which he used in three
occasions. He married women through civil rites marriage and he opened life cover in
insurance company for the lady and then the lady was found dead in his bath in similar
circumstances as in the other two occasions and then he will go to the Insurance Company to
claim. Prosecution gave evidence of two other occasions where the accused ‘s wife died in
the similar fashion , which was admitted as tending to show that , the act by an accused was
committed with design or showing his modus operandi .

Evidence of Character

The word character refer to general reputation of the person or the person‘s tendency to
behave in a particular manner. The evidence of character refers to evidence which tends to
show that a particular witness is of a good or bad character.

5
Schwikkard PJ & Others 1997 , Principles of Evidence Juta and Co. at p 68
6
S v Wilmot 2001(1) SACR362
7
1914 -15 ALLER 262

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Then in criminal proceedings we are looking at the character of the parties who are concerned
being it the accused or witnesses.

Evidence of Character of the accused

Good character of the accused is always admissible in the criminal proceedings.

As a general rule bad character of the accused is inadmissible. This is echoed by section
231 8 which provides that, no evidence as to the character of the accused can be admissible.

However there are exceptions to the general rule being:

 Bail application

The accused can be brought before court by the Police and on his application he tell the court
that he will not flee and he will stand his trial. Then police officer can avail to the prosecutor
the evidence of bad character of the accused like accused being the flight risk which cannot
stand the trial and possibility of interfering with the state witnesses.

 For sentencing

After verdict of guilty or after an accused has been found guilty as charged the evidence of
his previous conviction which in a way show his bad character is normally tendered if it is
available. 9 This is supported by section 28310which provides that, it shall not be alleged in
any charge against any person for any offence that such person has been previously convicted
of any offence, whether in Lesotho or elsewhere. However in terms of section 285(1) (b)
previous conviction of an accused person can be tendered where the accused has pleaded
guilty to or been found guilty.

In Senameli Tuke v. R, 11 in this case a magistrate received the evidence of the previous
conviction before the accused person can be found guilty as charged. That was held to be an
irregularity which can nullify the whole proceedings.

 Similar fact evidence

If the evidence of similar fact goes beyond propensity it amounts to signature and it is
admissible irrespective of whether it is including evidence of bad character.

Evidence of good character being elicited by the accused himself.

Where the accused testify on his own behalf then he will have a shield as protection not to be
cross examined to reveal his bad character. This is echoed by section 249 12 which provides
that: an accused person called as witness upon his own application shall not be asked if asked
and if asked he shall not be required to answer, any question tending to show that he has
8
CP& E
9
See section 285(b) and 287(4) of Criminal Procedure and Evidence Act 1981
10
CP&E
11
1963-66 HCTLR 21
12
CP&E

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committed, or has been convicted of, or has been charged with any offence other than that he
is charged, or is of bad character unless he testified to his own good character.

If an accused tendered to evidence relating to his good character then he will be said to have
lifted the veil and the prosecution can either cross examine or tender the evidence of his bad
character.

 Facts in issue

Where the previous conviction is in itself an essential requirement for the crime committed,
then previous conviction is admissible because without tendering it will be impossible to
proof the case. For example, in a case where the inmate escaped from the prison then, the
evidence of his bad character as a convict is part and parcel of the case. The defence cannot
invoke section 283 of the Criminal Procedure and Evidence Act 1981.

 Professional fences

Where an accused is charged with an offence of receiving stolen property knowing them to
been stolen then in terms of section 263 of Criminal Procedure and Evidence Act , 13evidence
may be given at any stage of the proceedings that, an accused in the past received stolen
property knowing it to be stolen, such property that was received in the prior occasion shall
have been received within 12 months. However, an accused shall not be taken by surprise, if
the prosecution is intending to tender evidence of prior occasions, he must be given notice in
writing of at least three days before the evidence can be given against him and he must be
advised of the full particulars of the prior charges.14

Note: irrespective of whether police officer who is to tender evidence as an investigation

officer can take cognisance of the fact that it is not his first time to take particular
accused to court, he must not in any how testify to the effect that an accused is a
habitual criminal.

Evidence of character of the witness

Good character of the ordinary witness is inadmissible and irrelevant.

Bad character of the witness in criminal proceedings is always admissible. The rationale is
to allow the defence or accused to discredit the complainant and show that she is not a kind of
a person who can be believed during cross examination.

In the case of S v. Zuma15in that case an accused person was charged with rape and he
tendered evidence to the effect that, the complainant who was crown witness in the matter,
visited his home at Johannesburg on 2 November 2005 and stayed over for the night on her
own volition. Late on that evening, they had had sexual intercourse for some time which was
13
Act no 9 of 1981
14
See section 263(3)
15
Unreported case of High Court of South Africa Witwatersrand and Local Division delivered on the 08/05/2016

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consensual. Complainant failed to say no to any of the actions they performed. At no stage
accused believed that the sexual intercourse was against the will of the complainant who was
at liberty to voice her disapproval. Accused daughter, was in the house and a policeman was
on the premises outside at all relevant times of the incident. Enquiries have revealed that the
complainant has made similar false allegations of rape against number of persons, some of
which have been alluded to in a statement of a witness provided by the prosecution. The court
put more weight on the bad character of the accused in prior occasions where he was
accusing many people for having raped her , showing that an accused person has an abnormal
propensity of saying he was raped and as such the accused was found not guilty and is
discharged.

There is an exception to the general rule, being where the complainant is testifying as crown
or prosecution witness in sexual offences case. Section 26 (1) of the Sexual Offences Act 16
provides that, evidence of a complainant‘s sexual experience, activity or reputation with any
other person other than the accused may not be admissible in criminal proceedings unless:

(a) The identity of the accused is in issue.

(b) The complainant is concealing the identity of the real perpetrator.
(c) The evidence is relevant to explain the presence of semen , virginal fluid, injury or
pregnancy of the complainant; or
(d) The evidence is relevant to show that complainant was not a virgin before the sexual
act in issue.

EVIDENCE OF OPINION

Opinion refers to beliefs, inferences or conclusions drawn by a witness from his observation
of facts.17 As a general rule under common law, beliefs, conclusions and inferences are
inadmissible before the court.

The rationale for exclusion of evidence of opinion is that, the function of the witness is to
place the court to the scene, so that the court can do its conclusions and draw inferences.
That is to say the witness task is only to narrate the events in such a way that he gives the
court the full picture of what happened. Then if the witness makes some conclusions he will
be usurping in the functions of the court. In R v. Van Tonder18 an accused person was
charged with reckless driving which caused an accident. The witness testified to the effect
that an accused person is the one who is responsible for the accident. His evidence was said
to be irrelevant, as it is the court which is vested with the duty of finding as to who can be
guilty of causing an accident. Rather the witness evidence was only expected to narrate the
circumstances in which the accident occurs. For example an accused failed to hoot or he was
travelling in anti direction hence he collided with on coming car.

16
Sexual Offences Act no. 3 of 2003
17
Owori , MA The evaluation of Evidence before DDPR. Page 6
18
1929 TPD 365

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However there may be some instances where evidence of opinion can be admissible being
where it is expert opinion and non expert admissible opinion.

a. Expert opinion

Expert opinion is always admissible if it can assist the court. Expert evidence can assist the
court when the witness by virtue of his experience is better compared to the court. There are
certain subjects which are so technical or complicated that only an expert is qualified to
express an opinion this may include: finger prints, tool marks, handwriting, ballistics,
cause of death, itching and insanity etc. See section 223(4) of CP&E.

 Handwriting

A person who is familiar or has personal knowledge over the disputed handwriting may
testify in court of law. A person who frequently receives correspondence from a person whose
handwriting is in dispute can testify to prove knowledge of the signature. Similarly, a person
who through constant touch or contact with the disputed handwriting like personal secretary
can testify to the knowledge of the handwriting genuinely made by the accused. See section
232 of CP&E.

However it is only handwriting expert who is entitled to give evidence on the similarities or
differences between two specimens of handwriting which are not personally known to him or
her , since the opinion of the unskilled person could add nothing to court ‘s observation as it
is the court’s responsibility to make final judgement.19

 Ballistics

A ballistics expert can provide an expert opinion on type of firearm that was used in the
commission of crime. The court took a judicial notice of the fact that ,each make of a firearm
has its special characteristics. For example 9mm will have characteristics that are confined to
9mm’ whilst on the other hand’ AK47 has its peculiar characteristics as well. Then a Scene of
Crime Officer (SOCO) will normally pick a shell from the scene by a tong (to ensure that
finger prints are not erased and that distribution marks are still intact) and place it in the
specimen plastic. Then, take them to an expert who will make a test fired bullet or discharge
specimen shell from the gun which is suspected to have been used in the commission of a
crime. Then the comparison will be made by the expert to see whether there are some similar
features in the shell, cartridges, lead and casings found in the scene of crime and that one
from the specimen. If it can be found that, there are similar markings or features from the
comparison then conclusion is that such firearm is the one used in the commission of a crime.
The conclusion or inferences will be made by ballistic examiner, who can present evidence
before court.

 Finger prints

The court took judicial notice of the fact that, every person in the world has distinctive or
different finger prints. That is to say, no finger print of different people can be the same.
19
Zeffert at page 307 see also S v. Boesak 2000(3) SA 381 (SCA)at 399 D

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When we talk of the characteristics in a finger print reference is made to small lines in the
finger which sometimes are called ridges and grooves . When the police is called to the scene
of crime and then they observe some finger prints that are shown (either on the window,
metal, shell and a wall etc) then Scene of Crime Officer (SOCO) will apply uplifting powder
over that finger prints and then place a finger print uplifting tape or magnetic tape over that
powder and then place it in specimen plastic to be submitted to finger print expert for
examination. Then specimen finger prints of a suspect will be taken for examination if the
results reveal that the finger prints are having similar special characteristics then a person
whose finger prints were taken is the one who might have committed the crime. The
conclusions will be presented to the court by the finger print officer.

 Forensic

Where there are some fluids (eg blood ) that are found in any item found in the scene of
crime ,then that item can be taken for forensic examination to compare that fluid with the one
that can be found from the suspect. Where the fluids are found over the hard object they can
be swabbed and then placed in the specimen plastic to forensic examiner who will provide his
conclusion to the court.

b. Non –Expert Admissible Opinion

There are certain pieces of information that cannot be communicated to the court unless they
are expressed as opinion. These include speed of vehicles, the state of weather, value of
articles or property. The perfect example is to narrate that the car was travelling very fast as a
witness. To state that a car was travelling very fast is to express an opinion but that opinion is
admissible as it would be impossible to convey how fast the car was travelling without using
those words. Or that the property that was maliciously damaged by the accused was very old
that may be admissible even though it is provided by ordinary witness who is not property
valuer, as there is no way to explain that the property was old except for expressing an
opinion.

Value of expert opinion

Mere conclusion of the expert is of no value to the court, for the conclusion of the expert to
be of value, the expert must state the facts upon which he base his conclusion. That is to say,
an expert witness may be asked to state his or her opinion either as an inference or conclusion
from facts within his personal knowledge, or upon the basis of facts proved by others. He will
show his assessments and finally show the probabilities which will be reflecting the premises
from which he base the conclusion. Normally expert provides some illustrations showing
comparisons either in the form of pictures backed up by explanations depending on the case
at hand. For example, Pathologist who examined a corpse in a murder case: may provide that,
after examining a corpse he found that the cause of death of the accused is strychnine
poisoning or that the symptoms of a deceased revealed that the cause of death is heart failure.

The Rule in Hollington v. F Hewthorn20

20
1943(2) ALLER 534, see also Owori ,MA Revisiting the Rule in Hollington v. Hewthorn LLJ . VOL 14 2001-2004.

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The facts of the case are that, plaintiff brought a claim for damages for injuries sustained by
his son arising out of an accident which led to the death of his son. The plaintiff had no direct
evidence to prove negligence of the driver. He therefore tendered record of the criminal
proceedings where the accused who was a driver was found guilty as sufficient prove of
negligence. However the court held that, the proceedings of another court are not admissible
in another court as that constitute the opinion of another court.

That is to say an investigator cannot substitute a record of proceedings of civil court to serve
as the sole evidence in his subsequent criminal proceedings, as they serve as opinion of
another court.

Hearsay evidence

This is evidence of statements (written or oral or otherwise) made by a person not called as
witness which is tendered to the court to prove the truth contained in it. A statement is
hearsay if it meets the following three requirements;

- It must be made on a prior occasion not before the court.

- It must have been made by a person not before the court.
- It must have been made to prove the truth contained in the statement.

Hearsay evidence is generally inadmissible.

The reason why hearsay is not admissible is because of its unreliability ,as the witness
testimony cannot be tested by cross examination. For example Thabiso witnessed a robbery
of money at the shop which was perpetrated by Sam and Thabiso told Sello the entire ordeal
when they were at the public bar. Thabiso provided statement to the police and the accused
was accordingly arrested. When the case was to be heard, Thabiso was nowhere to be found
as he was at school in Australia. Then Sam went to court to testify as to what he heard from
Thabiso. The questions will be asked to see whether this is hearsay.

- Whether the statement was made on a prior occasion to present court proceedings.
Then answer is yes as it has been made at the public bar.
- Whether the statement was made by a person not before the court. Yes the statement
was made by Thabiso who is now at school in Australia.
- Whether the statement was made to the court to prove the truth contained in the
statement made by Thabiso. Yes the evidence is made before the court to prove that in
fact the statement made by Thabiso was true that Sam committed robbery.

Since this questions are all answered in affirmative then that is hearsay evidence which is
inadmissible.

However there are exceptions:

1. Res gestae:

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This means a transaction or something which accompanies exclaims transaction. A statement
is said to be res gestae if it forms part of the transaction. For a statement to be admissible as
res gestae despite their hearsay nature, then a person who is involved in an incident or who
witnesses an event makes an uncalculated spontaneous exclamation in the nature of the
outburst in the heat of the moment referring to the event, the statement is admissible as
evidence of the truth. Spontaneous exclamation to be admissible, the following conditions
must be satisfied:

- The event must be struggling enough to produce a stress or nervous excitement eg

collision, assault, explosion like gun shot.
- There must be no reconstruction of the past event in that, the speaker must not have
reconstructed the story.
- A purely narrative matter will be excluded as narration is a strong indication that,
thinking powers of the speaker had not been suspended at the time he made statement.
- Original speaker must be shown to be unavailable as a witness.

For example, two people are next to a house, A is looking in the direction of a house, whilst B
is facing opposite direction and they heared a gun shot killing one Mookho and A is saying
Hmm!!! Tebello why do you kill Mookho and immediately thereafter he told B that Tebello
killed mookho hence why he exclaimed. It so appear that, during the trial A is not available
but B is at the court to testify. The evidence to the exclamation made by B is admissible even
though it is hearsay as it was made by B by way of spontaneous exclamation without in
anyway having a moment to fabricate a story whilst he was witnessing struggling event that
produce stress being explosion of gunshot.

2. Dying declaration

It could be admitted into evidence provided the following requirements were met. The
declaration was relevant to the course of death. The evidence was adduced on a charge of a
murder or culpable homicide. Witness would be a competent witness. At the time of making
the statement, the declarant was under a settled hopeless expectation of death. In R v. Hine21
the deceased in his dying declaration said ‘, I am going to die Miss Hine is the cause of them
all’. She eventually died and Hine was charged with culpable Homicide. The statement was
admitted as dying declaration even though it appears as hearsay.

In Seiketelo v. R22 an appellant was charged with murder as he shot the deceased. Evidence
revealed that, deceased kept on crying and saying that, ‘Seiketelo why do kill me’ and
‘Seiketelo has finished me’ and he repeatedly uttered those words until he ultimately died.
Then the court accepted evidence of the hear witness as credible and was held admissible as it
was clear that, the deceased was having settled and firm expectations of death. There was no
possibility that he was mistaken as to who injured him and that it was clear that, there was no

21
1910 CPD 371
22
C of A (CRI) NO.8 OF 2003

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possibility that the deceased would have uttered those words to implicate the accused as he
was nearly to see his God.

3. Declaration in the course of duty

Oral or written statement made by the dead person is admissible to prove the truth of that
statement made in pursuance of the duty to record an act which he has performed. The
rationale behind the admission is that the disinterested nature made in the routine of duty ,
where a person was acting like a robot, subject to check by the supervisor for any mistake and
the possible punishment that may be meted by that person should the mistake occur
guarantees the reliability of the record. For example, bank teller when you have gone to take
out the money from the bank act like a robot, when recording his transactions in the computer
and signing withdrawal slip, then that, is done simultaneously that there is no intention to
misrepresent or falsify the record, then that, will be admissible even if the person who was
processing the record is dead.

4. Declarations of the deceased person whether made orally or in writing can be

admissible. Eg on a will or instructions of a deceased.

MIRANDA WARNING OR JUDGES’ RULES

In Miranda v. Arizona23 it was held that, any person in custody must, prior to making any
interrogation or pointing-out of exhibit, or even confession, be clearly informed that he has
the right to remain silent, and that anything he says may be used against him in court of law
as evidence. Failure to observe this cautioning may vitiate any pointing-out or admission.

These rules are intended to protect an accused person against self incrimination. This stems
from a rule that, no person shall be hanged by the words of his own mouth. These rules are
collectively termed the judge’s rules or Miranda warnings.

In the case of Rex v Lefa Makhetha24 Trooper Lethoko who was the only state witness told
the court that he was stationed at Mohale's Hoek, he attended the scene of crime after
receiving a report of murder. He examined the corpse and was told as to who was the suspect
and he proceeded to him. He stated that, he introduced and identify himself to the accused
and said he gave the accused caution. Whilst, asked to elaborate on the caution that he gave,
he told the Court that, he produced an Identity Card and warned the accused that he is
investigating the death of the deceased. Whereupon the accused gave him some explanations
and the explanations led to the accused leading him to the accused's residence where a stick
was pointed out. The exhibit was put before the court. The court found that, exhibits were
retrieved before the caution was given to the accused. It would seem therefore logical that,
the accused was taken advantage of, his rights were trampled. It is on this technical ground of

23
384 US 486 (1966)
24
CRI/T/66/90

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police faulty investigation therefore and not because the accused is not liable for the killing of
the deceased that the accused is acquitted and discharged.

Competence and Compellability

Competence witness a witness is competent if his or her testimony is received in court at his
or her option. He or she may lawfully refuse to give evidence. A witness is competent if he
may lawfully give evidence.

Compellable witness A witness is compellable if he is obliged to testify under pain of court

sanction. In terms of section 203 of CP&E whenever any person is called to court per
warning or subpoena and being verbally required by the court to give evidence and fail to
answer any questions put to him, he can be committed to jail for a period not exceeding 8
days and again from time to time until he consent to what is required from him.

Competence and compellability of spouses

Spouse (being it a wife or husband) of an accused shall not be competent to give evidence for
the prosecution in criminal proceedings but shall be competent and compellable witness in
respect of matrimonial cases25. This applies to married couples only and the person who is
married in Sesotho law and custom is a married person26.

The rationale behind the disqualification of the spouse to testify for the other spouse is that
upon the unity that is existing between the spouses, the other spouse will have a vested
interest in the outcome of the case against other spouse and there is a likelihood that he can
falsify or exaggerate in her husband’s favour.27

Incompetent or non-compellable witness

- A person associated with mental disorder and intoxicated persons or otherwise

whereby he is deprived of the proper use of reason, shall be competent to give
evidence while so afflicted or disabled.28
- No advocate, attorney or other legal practitioner shall be competent to give evidence
against any person by whom he was professionally employed or consulted, without
the consent of that person.
- An accused – Accused person is non-compellable to give evidence where he is
charged for crime committed.
- Person concerned in judicial proceedings: judge or magistrates are incompetent to
testify over the matters which they were presiding over them.

25
See s216 of CP&E
26
See s 216(2)
27
Owori ,MA: The Competence and Compellability of Spouses in Criminal Proceedings in Lesotho ,LLJ VOL 12
NO.1 page 97.
28
See s219 of CP&E

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 Privileges

Definition – Privilege is a right of a witness to lawfully refuse to disclose relevant and

admissible evidence or right of the witness to refuse to answer specific questions put to him.
Corbett CJ defines priviledge to mean a personal right to refuse to disclose admissible
evidence.29

Although a court of law must be given access to every relevant piece of evidence in order to
decide the matter before it, there are circumstances where a witness may refuse to disclose
what he knows despite the fact that the information he has may make the state convict the
accused person. Privilege may be divided into two categories namely; Private and Public
privileges.

Private privilege: denotes that an individual may refuse to disclose certain information on
account of social policy, such as refusal by accused to answer questions which are likely to
implicate him in the commission of a crime.

(a) Privilege against self-incrimination – This is the right of the witness to legally refuse to
answer questions put to him on the ground that to do so will implicate him in the commission
of the crime. See section 255 of the CP&E. However, an accomplice may be forced to
answer questions which implicate him in the commission of a crime. See sections 236 and
237 of CP& E.

(b) Marital Privileges –A wife or husband of an accused shall not be compelled to disclose
any communication made to him, by another spouse during the marriage. 30 A person whose
marriage has been dissolved or annulled by a competent court shall not be compelled to give
evidence as to any matter or thing which occurred during the subsistence of the marriage or
supposed marriage and as to which he or she could not have been compelled to give evidence
if the marriage was subsisting.31

(c) Legal Professional Privilege – This is the privilege which is accorded to a client to refuse
to disclose any communication whether oral or in written form made between him and his
lawyer or stops his lawyer from disclosing any such information. Section 253 CP&E. Even
documents which have been obtained while executing search warrant, are privileged. The
following are the requirements that have to be met in order for one to claim legal professional
privilege.

- Acting in a professional capacity.

- Acting in confidence.
- For purposes of obtaining Legal Advice.
- Not to facilitate Commission of Crime.

29
See Magmoed v.Janse Van Rensburg & others 1993 (1) SACR 67 (A).
30
CP& E Act s250(1)
31
See CP&E 250(2)

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Public Privilege refers to that privilege which is considered to be in the interest of the public
and therefore it demands that the information be withheld in the interest of the public. For
example, the court will reject evidence which tends to disclose cabinet meetings.

State / Crown Privilege

This refers to privilege which is accorded to any evidence whether oral or documentary,
whose disclosure will be contrary to the public interest. Section 254. The following attract
crown privileges;

 Military secrets
 Diplomatic Correspondence
 Proper functioning of the Civil Service

Claiming of priviledge

It is the accused who must claim privilege and or the legal representative who will be
claiming it as the agent of his client.

Waiving the Privilege

It is clear that the privilege belongs to the client or otherwise an accused person and he is the
one who can waive the privilege.32 The privilege can be claimed by the accused person only
and once it has been waived, it is lost and it cannot be reasserted at a subsequent point by
him. That is to say when the accused‘s conduct or words touches on a certain point of
disclosure, fairness requires that his priviledge ceases to exist, whether he intended the results
or not.33

Incompetent or non-compellable witness

(a) Mentally disordered and intoxicated persons. See section 219 of CP&E.

(c) Persons concerned in judicial proceedings : Attorney or counsel – It is undesirable for

the legal representative to give evidence on anything that transpired between him and his
client.

(e) An accused – Accused person is not-compellable to give evidence where he is charged

for crime committed.

(f) Spouses – At common law, the accused’s spouse is not a competent witness for either the
prosecution or the defence to testify against the other spouse. The wife shall be a competent
witness to testify for the husband if he is charged. See section 217 of CP& E. A wife is both
competent and compellable to testify in respect of matrimonial offences laid in section 216 of
CP&E

32
Zeffert at p585
33
See Wigmore as quoted by Zeffert p 585 and see also Euroshipping Corporation of Monrovia 1979 (1) SA 637
(C) at 646

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g) Police informer – No question may be asked and no evidence may be tendered which will
reveal (i) identity of the police informer and (ii) method of police investigation. This is done
in order to protect the police informer and his family from those whom he reports; disclosure
will cease to be useful to the police, encourage potential informers to come forward and
report crimes, and protect police investigation methods from the suspects and potential
criminal.

Corroboration

The evidence is said to be corroboratory if it confirms and support the evidence to be

corroborated in material respect. Corroborating evidence must be admissible and must not
offend rules of evidence such as hearsay, opinion, similar fact etc. It must be independent of
the one which requires corroboration or it must be separate from the evidence to be
corroborated. It must confirm or support the evidence which requires corroboration in
material respect.

There are 3 differing views on corroboration

- Under Roman Dutch Law, whenever you have one piece of testimony without
independent and confirming evidence, then avoid ton convict on single evidence.
- There is a view to the effect that, as long as the witness is believed and is in a position
to convince the court, judgement can be entered on the basis of the single testimony.
- Middle ground states that there are some cases either as a result of offences or
character of the witness which require corroboration. It therefore means that, although
a court may convict on the single evidence of witness there are those cases which
require corroboration.
Rationale is that, the nature of offence or character of witness is such that, it would
be dangerous to convict on that evidence. The danger is that you can take innocent
man to prison. Then there must be back up information to convince the court.

Any court may convict on evidence of single evidence as long as that testimony is credible.

There are two types of corroboration:

1. Mandatory Corroboration

It is a requirement of the statute where judgement cannot be entered or accused be convicted

unless there is actual corroboration as a matter of fact without independent testimony. The
court may convict any person of any offence alleged against him in the charge on the single
evidence of any competent and credible witness except on charges of perjury and Treason.
See: Section 238 (2) of CP&E.

2. Cautionary Corroboration

In cautionary corroboration court must look for independent witness confirming the story of a
certain witness, but in the absence of the of lack of corroboration it may still convict. But
before it can convict the court must warn itself of the danger of convicting without
corroboration. The cautionary rules have been evolved because the courts have observed that

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certain kinds of evidence cannot be relied upon unless accompanied by satisfactory indication
of trustworthiness. For example the evidence of accomplice needs caution as there is a likely
hood that it is intended to protect the culprit and implicate the innocent third party.

Section 18 of the Sexual Offences Act 2003 abolishes cautionary rule meaning that the court
in sexual offences can convict on a single evidence of the complainant.

Onus or Burden of proof

Legal burden is the duty placed on the party persuading the court on the whole of the
evidence of the proof of every essential fact in issue. Legal burden is normally on the party
who is alleging a fact and not in his opponent who merely deny that fact. Legal burden is
always fixed at the beginning of the case and never shift and it may be discharged by
pleading or whether by operation of presumption. It is the cardinal principle that he who
alleges must prove.

Evidentiary burden

This is a burden placed on the party against whom prima facie case has been made out to
rebut that prima facie case

Standard of proof

The standard of proof in criminal case is the proof beyond reasonable doubt whilst the
standard of proof in the civil proceedings is a proof on the balance or preponderance of
probability. That is to say the police officer must ensure that he satisfy all the essentials
element of the crime committed so as to avoid the situation where the accused can be given
benefit of a doubt and thereby be acquitted. As in the event where the certain element of a
crime cannot be proved then the prosecution will not be said to have proved its case beyond
reasonable doubt.

Compiled and presented

By

Senior Inspector Sehloho NC

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