POLICE TRAINING COLLEGE

2018

LECTURE NOTES

ON

LAW OF EVIDENCE

Compiled by:

Senior Inspector Sehloho, NC

LLM UNISA SCHOLAR, LLB NUL, PMMS & ADVOCATE OF THE COURTS OF
LESOTHO,

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 Aim of the course:

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

Objectives

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

 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
 Hearsay evidence
 The best evidence rule
 The doctrine of Miranda warning or Judges’ Rules.
 Corroboration.
 Standard of proof
 Admission and Confession
 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.
 Roman Dutch 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.

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:

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  The admissibility of evidence
 The manner of adducing evidence
 The evaluation of evidence.

Definition

Evidence meaning – is defined as any material which tends to persuade the

court to the truth or probability of some fact alleged or asserted before it.
There are four types of evidence namely: oral testimony, documentary
evidence, real evidence and circumstantial evidence.

TYPES OF EVIDENCE

 Real evidence

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.

Whenever any book or other document is of such a public nature as to be

admissible on its mere production from the proper custody, and copy thereof
or extract there from shall be admissible in evidence in any court or before a
magistrate in a preparatory examination, provided it is proved to be an
examination copy or extract, or provided it purports to be signed and
certified as a true copy or extract by the officer in whose custody the original
is entrusted.2 It means therefore that, even a certified copy of a document to

1
Zeffert & 2 others,2003 The South African Law of Evidence , Lexis Nexis Butterworth’s 703.
2
Section 242 CP&E.

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be tendered in court can suffice as a sufficient prove as long as it is duly
certified as a true copy from the original.3
 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.

The circumstantial evidence is evidence that tends to prove a fact by

proving other events or circumstances which afford a basis for a reasonable
inference of the occurrence of the fact at issue.4

There is certain information which often forms important components of

evidence to be furnished before courts. Where a person cannot possibly
have witnessed commission of a crime to such an extent that, he cannot
make direct assertions with regard to the facts in issue, he can provide
information which can make the court to be in the position to draw
inferences or conclusion. As such circumstantial evidence provides an
indirect proof.5 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 .

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.

3
Section 242 of CP&E.
4
Zeffert and Paizes Essential Evidence 23-24.
5 Schwikkard PJ & Others Principles of Evidence , Juta & Co at 19

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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 case 6. 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 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.

6
Zeffert and others , 2003 , Principles of Law of Evidence lexis nexis Butterworth page 224

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 (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 7the 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.

7
1991-94 ALLER 24

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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
similar fact is admissible where the probative value exceeds the prejudicial
value on the accused. 8This 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 is so unique and it eliminates all possibility of
coincidence. Lord Wilberforce stated requirement of similarity in the following
terms In S v. Wilmot9 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.

8
Schwikkard PJ & Others 1997 , Principles of Evidence Juta and Co. at p 68
9
S v Wilmot 2001(1) SACR362

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 In R v. Smith 10, 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.

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 11 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

10
1914 -15 ALLER 262
11
CP& E

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character is normally tendered if it is available. 12 This is supported by section
28313which 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, 14 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 24915 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
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

12
See section 285(b) and 287(4) of Criminal Procedure and Evidence Act 1981
13
CP&E
14 1963-66 HCTLR 21
15 CP&E

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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 ,16evidence 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.17

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. Zuma 18in 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
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

16
Act no 9 of 1981
17
See section 263(3)
18 Unreported case of High Court of South Africa Witwatersrand and Local Division delivered on the

08/05/2016

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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 19 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.20 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 Tonder21 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

19
Sexual Offences Act no. 3 of 2003
20
Owori , MA The evaluation of Evidence before DDPR. Page 6
21 1929 TPD 365

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to hoot or he was travelling in anti direction hence he collided with on
coming car.

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) which provides unequivocally
that, whenever any fact ascertained by any examination or process requiring
any skill in bacteriology, biology, chemistry, physics, astronomy, any branch of
pathology or intoxicology or in the identification of finger prints or palm prints
is or may be relevant to the issue in any criminal proceedings, a document
purporting to be an affidavit made by a person who in that affidavit alleges
that he is in the service of any institution to be designated for the purposes of
this by the Minister by notice in the Gazette, and that he has ascertained any
such examination or process, shall on its mere production in those
proceedings by any person, but subject to subsection (6), be admissible in a
subordinate court.

 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.22

22
Zeffert at page 307 see also S v. Boesak 2000(3) SA 381 (SCA)at 399 D

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  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. 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

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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 Hewthorn 23

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.

23
1943(2) ALLER 534, see also Owori ,MA Revisiting the Rule in Hollington v. Hewthorn LLJ . VOL 14 2001-2004.

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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.

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However there are exceptions:

1. Res gestae:

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. Hine 24 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

24
1910 CPD 371

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statement was admitted as dying declaration even though it appears as
hearsay.

In Seiketelo v. R25 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 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. For example a will or
instructions of a deceased.
5. Admissibility by agreement
Hearsay will be admissible if each party against whom the evidence is to be
adduced agrees to the admission thereof as evidence at such proceedings.
6. Computer generated evidence
The admissibility of a ‘data message’ being data generated, sent, received
or stored by electronic means.
7. Affidavits and certificates
There are number of statutory provisions that allow the use of affidavits and
certificates ass prima facie proof of their contents. For example 223(4) of the

25
C of A (CRI) NO.8 OF 2003

17 | P a g e
Criminal Procedure and Evidence Act 1981 in particular allows for the results
of certain scientific and medical tests to be proved by affidavits.

THE BEST EVIDENCE RULE

The general rule is that no evidence is ordinarily admissible to prove the

contents of a document except the original document itself. For example,
when ownership has to be proved, the best evidence is a document of title
like title deed, the register kept by the Registrar of deeds or such secondary
evidence as has been made admissible by the statute. Where a party wishes
to prove that a licence or permit holder was obliged to do something then
the original licence must be produced before the court unless a copy has
been admissible by statute. For example a police officer who brings a person
before court for failure to abide with his liquor license to close on a particular
time may be expected to tender before court such a license which is
showing the conditions of such use of a license.

Duplicate or multiple copies such as carbon copies are regarded as original

documents. 26

The rule applies only when the content of a document is directly in issue. For
example, in the cases of Stock Theft the police officers can be expected to
go to check the original copy of bewys book in the event the person who is in
position of stock is alleged to have forged bewys. In R v. Smit the accused
fingerprints had been found on a bottle but the fact that neither the bottle
nor even a photograph had been handed in by the prosecution was held
not to affect the admissibility of that fact. It went only to the weight of the
evidence.27

There are exceptions to the general rule

 An admission of the content of the document may be made by a

party despite his having knowledge his personal knowledge of its
contents.

 When secondary evidence is exceptionally admissible. For example

- Where a party is able to use a copy, it must be a true copy.

- Secondary evidence may be given when production of the original

writing would be impossible , unlawful or inconvenient for instance

26
Herstigate Nasionale Party Van Suid Africa v. Sekretaris van Binnelandse Sake en Immigrasie 1979(4) SA 274.
Roneod copies a rotary duplicator that uses a stencil through which ink is impressed.
27 Zeffert and Paizes Essential Evidence 127 see also 1952(3)SA 447(A).

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 notice affixed to a wall or certificate that could not be lawfully
removed.

MIRANDA WARNING OR JUDGES’ RULES

In Miranda v. Arizona 28 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 Makhetha29 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 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.

The sequential practical application of the cautioning by the police is that:

a) The police will introduce himself to the accused; for example I am

number 123 Police Constable Mats’oinnyonyo a member of Lesotho
Mounted Police Services stationed at Thamae and a policeoffice can
even show identity document of the service to the suspect.
b) Tell the accused the purpose of his visit. For example, there is a report in
my duty station of a murder case of one Elizabeth Ramsa m/f aged of

28
384 US 486 (1966)
29
CRI/T/66/90

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 Ha Thetsane who was raped and killed at Mokhehle road on the
09/07/2018 and there is evidence which shows that it is in fact you
Mants’oinyonyo who is suspected as a perpetrator.
c) The police will caution the accused that he or she has a right to remain
silent as any reply he or she makes may be used as evidence against
him before the courts of law. The police officer must also tell an
accused that he may provide an explanation in regard to those
allegations made against him or her. The accused be warned that
such explanation is given free and voluntary.
d) If the accused can elect to freely and voluntarily provide an
explanation which does not rebut any allegations against him or her.
e) The police officer will inform the suspect that his explanation is not
satisfactory as it fails to rebut allegations made against him.
f) Then the police will then give the accused person a charge. This will
be to fulfil section 32(4) which states unequivocally that, “whenever a
person effects an arrest without warrant he shall forthwith inform the
arrested person of the cause of arrest”.
g) Then arrest him.

Note: The report of a police officer either being a report of arrest, pointing out
and any interrogation there must be an illustration that he had fairly
complied with Miranda warnings.

ADMISSIONS AND CONFESSIONS

Admission is a statement made by an accused person which is contrary to

the interest of the maker. Admission is an acknowledgement of the fact
which is damaging to the maker. Admission may either be formal or informal.

Formal admission is a statement made against interest of the party either in

the court or in pleadings. For example if an accused person when asked as
to how does he plead to the charge ,he can show that he is guilty.

Informal admission is any extra-curial statement or statement made out of

court and it may be withdrawn, contradicted or explained away by the
maker. For example, any admission which is made by the accused person to
the police during arrest. The informal admission can take either positive
conduct or negative conduct.

Positive conduct of an accused can amount to informal admissions where

there are:

(a) Admissions by word of mouth

(b) Admission by Conduct – this may be a positive conduct where the party
behaves in such a way to make the court to draw inferences that he admits
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liability. This may include demeanour of the accused or running away from
the scene of crime and or to hide him etc.

Negative conduct of an accused person may amount to admission where he

may show a consciousness of guilt like refusal of the accused person to
undergo HIV test whilst facing sexual offences charge. Even refusal to provide
specimen or to be finger-printed or an attempt to bribe a witness can be
taken as negative conduct of the accused depicting admission as that may
be made by a person who has consciousness of guilt.

Silence – If one is accused of a criminal or improper conduct and he keeps

silent an adverse inference of guilt can be drawn if a reply would be
expected from any reasonable person placed in the similar circumstances of
the accused. Failure to respond in those circumstances would indicate
consciousness of guilt.

However, where accused has been cautioned, no adverse inference may

be drawn from the silence.

Admission is not admissible against anyone except the maker and not the
third party, however, where it is established that the person making the
statement had express or implied authority to make the statement from the
principal then the principal will be bind. The rationale is that when one
makes an admission against his interest, it is likely to be true.

CONFESSION

This is an unequivocal statement which is made by a person who

acknowledges that he has committed the crime. Confessions can be made
by an accused person in response to a question made by anyone. It must be
freely and voluntarily made and it must be made by an accused in his sober
senses without being unduly influenced See Section 228 (1)30.

The legislature has observed that, police officers normally subject accused
person to torture, so that they can thereafter confess. In order to save guard
against the abuse of power by the police legislature then treated confession
made before a police in a particular way.

Confession made before the police is inadmissible unless it can be seen to

have been reduced into writing before a magistrate. See section 228(2)31.
Any court may convict the accused on the basis of any confession by him
without any other evidence.

30
CP& E Act 1981
31
CP&E

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However the police are supposed to make sure that, they have independent
evidence besides confession as the accused have the tendency of
counterclaiming that the confession was not made free and voluntary. If they
succeed on trial within trial which may be held to determine the legitimacy or
otherwise of the confession it means that the prosecution will be left with no
evidence and as such the matter will be dismissed for lack of evidence and
or the accused be discharged.

No confession made by any person shall be admissible as evidence against

any other person. 32

Confession by Pointing – out

Confession by pointing out is basically the confession by way of body

language where the accused literally points out. For example, he points out
where stolen thing is hidden or where murder weapon is hidden. Section
229(2) of CP& E provides that evidence of pointing out may be admissible
without regard as to whether it formed part of the unlawful of the
inadmissible confession. Confession by conduct invariably means that
accused know hidden place because he participated in the crime.

In R v. Samhando33 the appellant had been convicted of murder. Prosecution

tendered evidence that of an admission, made by an accused person after
application of considerable violence, and evidence that he pointed out to
his interrogators an orange tree where the blood stained clothes of the
deceased had been hidden. He also pointed an axe which was a murder
weapon 500 pacers away from the tree. The court aquo excluded the
evidence of admission but accepted the evidence of pointing out. The
Appellate division held that the evidence of pointing out is correctly
admitted since the accused knowledge of where things used in the murder
case have been hidden is relevant to his guilt.

Pointing outs of exhibits are viewed as admissions by conduct and as such

they are self-incriminatory evidence and they are admissible provided they
are free and voluntary.

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.

32
See section 230
33
1943 AD 608

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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 cases34. This
applies to married couples only and the person who is married in Sesotho law
and custom is a married person35.

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.36

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. 37
 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.

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

34
See s216 of CP&E
35
See s 216(2)
36
Owori ,MA: The Competence and Compellability of Spouses in Criminal Proceedings in Lesotho ,LLJ VOL 12
NO.1 page 97.
37 See s219 of CP&E

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questions put to him. Corbett CJ defines priviledge to mean a personal right
to refuse to disclose admissible evidence.38

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.39 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.40

(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.

38
Magmoed v.Janse Van Rensburg & others 1993 (1) SACR 67 (A).
39
CP& E Act s250(1)
40 See CP&E 250(2)

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  For purposes of obtaining Legal Advice.
 Not to facilitate Commission of Crime.

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.41 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.42

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.

41
Zeffert at p585
42
See Wigmore as quoted by Zeffert p 585. see also Euroshipping Corporation of Monrovia 1979 (1) SA 637 (C)
at 646

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(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

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 and then avoid
convicting 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.

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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 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

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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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