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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CRI) NO: 8/2022
In the matter between:
LIMPHO MOTJOLOPANE APPLICANT
AND
REX RESPONDENT
CORAM: MOSITO P
CHINHENGO AJA
MATHABA AJA
HEAD: 08 APRIL 2025
DELIVERED: 02 MAY 2025
FLYNOTE
Criminal Law — Murder — Self-defence — Whether Crown proved guilt beyond reasonable doubt — Whether trial court misdirected itself in rejecting self-defence — Duties of appellate court on findings of fact — Credibility of witnesses — Single witness rule — Forensic inconsistencies — Investigative irregularities
The appellant was convicted of murder and sentenced to 8 years’ imprisonment following the fatal shooting of the deceased, who had confronted and chastised the appellant and a female companion on suspicion of indecent conduct outside his residential premises. The
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appellant claimed that he acted in self-defence, contending that the deceased had approached him with a firearm, which he pointed at the appellant, prompting a defensive reaction. The High Court rejected this version, preferring the account of a single eyewitness, and found that the appellant was not in imminent danger when he fired the fatal shots.
On appeal, the Court of Appeal held that the trial court materially misdirected itself by failing to evaluate critical evidence, particularly the testimony of a male eyewitness and a pathologist, and by failing to make essential factual findings on whether the deceased had a firearm at the time of the shooting. The trial court’s failure to approach the evidence of a single witness with the necessary caution, coupled with its misapplication of forensic testimony and unaddressed investigative irregularities—including allegations of police misconduct and attempts to alter evidence—undermined the integrity of the conviction. The Court emphasised the enduring principles that an accused is entitled to an acquittal where the prosecution fails to discharge the burden of proof beyond a reasonable doubt. The courts must not reject a version that is reasonably possible.
Held, per Mathaba AJA (Mosito P and Chinhengo AJA concurring, delivering concurring judgments): Appeal allowed. Conviction and sentence set aside. Substituted with an order of acquittal.
JUDGMENT
MATHABA AJA
Introduction
[1] On 11 April 2023 the appellant was convicted of murder under section 40(1) read with section 40(2) of the Penal Code Act No.6 of 2010. He was sentenced to a term of imprisonment of 8 years. This is therefore an appeal against the conviction.
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Background
[2] On the evening of 14 October 2015 Mr Kori Makakole, (“hereafter called the deceased”), met with his untimely demise just outside his yard at Matsoatlareng in this district of Maseru. Doubtless, the deceased died of gunshot wounds. It is common ground that he was shot by the appellant. At the heart of the criminal trial was whether the appellant acted in self-defence.
[3] On the fateful night the deceased found the appellant and Ms Nthati Ndabeni sitting in a car at the gate just outside his yard. He parked his car in front of the appellant’s car and went to the duo. Ms Ndabeni was a student at the Limkonkwing University and had rented a room at a housing complex nearer to the deceased’s residential house. Put differently, Ms Ndabeni and the deceased were close neighbours.
[4] It is apparent from the record that the deceased suspected that the duo was making love in the car. He ordered them to get out of the car and lie down after which he chastised them with a cane which he had cut from the nearby tree. The appellant only lay down after the deceased had struck him a blow on the forehead with a gun he was holding.
[5] Immediately the deceased was done chastising Ms. Ndabeni, he ordered her to get inside the house, which she did. Ms Ndabeni left the deceased still chastising the appellant. The appellant got inside his car after he was let go but did not leave the place immediately. The deceased approached the appellant and ordered him to leave the place. It was on this occasion that the
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appellant fatally shot the deceased. The cause of death as recorded in the postmortem report is multiple gunshot wounds with skull fracture and severe brain damage.
Evidence
[6] Besides the admissions made by the defence, the Crown called four witnesses in the ensuing trial. Conversely, in addition to his testimony, the appellant featured a pathologist.
[7] It is common cause that the deceased chastised both the appellant and Ms Ndabeni. Also, the version that the deceased knocked the passenger window with a gun when he first got to the appellant’s car, was not assailed. The same applies to the version that the deceased was still carrying a gun at the time he was chastising the appellant and Ms Ndabeni. Therefore, evidence relevant to what happened prior to the shooting will only be alluded to where necessary.
[8] The first witness to testify was Ms Nthabeleng Molatuoa. She was staying in the same yard as Ms Ndabeni at Matsoatlareng during the period relevant to the events. She left her room twice between 20h00 and 21h00 on the fateful night. On the first occasion when she was outside her room she saw and heard the deceased reprimanding the appellant and Ms Ndabeni just outside his gate. The deceased had a cane in his hand and was asking the duo to lie down. She went back to her room to wear her shoes as she had left the room barefooted. Though she did not observe when the deceased was chastising the duo, she heard the lashing sound
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as she was in her room and later saw Ms Ndabene limping towards her house.
[9] Ms Molatuoa testified that on the second occasion she got out of her room, she saw the appellant and the deceased going to their respective cars. According to her, the appellant did not leave the place immediately but sat in his car with its door still opened. The deceased approached the appellant telling him to leave. It was at that point that the appellant went outside his car pointing something towards the deceased’s direction. The deceased raised his hands and said, “don’t, don’t please don’t”. She thereafter heard three-gun reports and saw the deceased stepping backwards and fell in the furrow.
[10] Ms Molatuoa confirmed under cross examination that the deceased shouted the words “go man! go man!” at the time he was at the appellant’s car. She did not hear the deceased saying that he will shoot the appellant or his car. Neither did she see the deceased knocking at the passenger window with a gun or pointing it at the direction of the appellant. She maintained her version that it was the appellant who already had something in his hand when he alighted from his car, which she confirmed it was a gun when she heard the gunshots. She stood firm that it was the deceased who uttered the words “don’t, please don’t! and not the appellant.
[11] Ms Molatuoa pointed out that she did not see the deceased holding a gun when he was raising his hands but moments later said that she was not able to deny that the deceased was holding
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a gun.1 Pertinently, when it was put to her that the deceased’s arm was pointed at the direction of the appellant when the first shot landed on him, she said she did not know.2
[12] The second witness to testify was Ms Ndabeni. She pointed out that the deceased knocked at the passenger window with a gun when he got to their car. He ordered them to get out of the car and chastised them. The deceased was asking the appellant for how long he had been reprimanding him. On the other hand, the appellant was saying that he did not know what the deceased was talking about and urging him to take them to the police if there was anything wrong that they had done.
[13] Ms Ndabeni did not know how the appellant sustained an injury on his forehead, but she realised that the appellant was bleeding as she rose up from where she was being chastised. The deceased ordered him to go inside the house and focused on the appellant who had refused to lie down. Ms Ndabeni was already inside her house when she heard three gunshots and told the person she was with that the gentleman (the deceased) had shot the appellant. She went outside and saw the appellant emerging between the vehicles asking for police telephone numbers. The appellant was bleeding from the head and wiping blood.
[14] The third witness, Mr Thabang Chabalala, was preparing to go to bed when he heard a noise of something hitting the window very hard. He left his shack to position himself where he could clearly see what was happening. He saw the deceased knocking at
1 Record, Page 48
2 Ibid, Page 49
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the passenger window of a car asking the occupants to open for him. The deceased asked them what rubbish they were doing in the car and why they were making love there.
[15] According to Mr Chabalala, the girl alighted first and was chastised after which the deceased ordered her to get inside the yard. The deceased thereafter went to the driver who eventually alighted from the car after he initially refused. The deceased beat him and told him to leave the place.
[16] Mr Chabalala explained that the driver did not leave the place immediately. As a result, the deceased went to the driver’s car and knocked at the passenger window telling the driver to leave and that if ever he saw him again, he will shoot him. The driver came out of his car and shot the deceased who had moved a little in front of the driver’s car.
[17] Mr Chabalala was taken to task that in his statement about the events recorded on 15 October 2015, he did not mention seeing the appellant shoot the deceased. And that what he said was that he hid himself behind his shack when he heard the first shot. He insisted that he told the police that he saw the appellant shot at the deceased. He disputed that the deceased advanced to the appellant and pointed him with a gun. He struck to his evidence in chief that the appellant alighted his vehicle and shot the deceased. He denied that there was ever a point where the appellant lay down to be whipped and or that the deceased struck the appellant a blow on his head.
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[18] The last witness for the Crown was Seargent Motlalepula Tebateba. He was stationed at the Maseru Central Charge Office during the relevant period and was on duty on 14 October 2015 when the appellant came to report that he shot a person. The accused handed over his 7.65 Taurus and its license. He confirmed that the appellant was bleeding from the forehead when he arrived at the charge office.
[19] Seargent Tebateba went to the scene of crime where he recovered three shells. He eventually handed over the appellant, his gun as well the shells to members of Criminal Investigations Department who arrived in his office.
[20] The appellant testified that he went to see Ms Ndabeni on the fateful night and that as they were sitting in the car, the deceased arrived and knocked at the passenger window with a gun. He echoed Ms Ndabeni’s testimony in material respects regarding what happened when the deceased got to his car.
[21] The appellant confirmed that the deceased chastised them. He testified that he refused to lie down until the deceased hit him with his gun on the forehead after which he lay down and the deceased continued chastising him. Further that when the deceased paused chastising him, he immediately went to his car. [22] The appellant pointed out that he wanted to leave the place, but that as soon as he reversed, a lot of blood was running down his face such that he could not see. It was at that point when he was trying to wipe blood from his face that he heard a had knock again by the deceased who was telling him to leave, or he was going to shoot him and his car’s tyres.
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[23] The appellant explained that since he could not drive because of blood, he got out of the car and started backing away from it. The deceased, who was holding his gun, started walking to his direction but on the other side of the vehicle. By that time the appellant had pulled his gun from its holster. He testified that the deceased took aim at him with his gun when he realised that he too was carrying a gun. It was at that moment that he fired three shots at the deceased in self-defence.
[24] The appellant stood firm under cross examination that the reason he could not leave the place immediately after being chastised was because of poor vision due to blood that was flowing from his forehead to his face. Further that it was the deceased who pointed a gun at him first when he realised that he too was armed with a gun.
[25] The second witness to be called by the appellant was Dr Phakoana, a pathologist. He had prepared a report based on the postmortem report. He mainly focused on the wounds labelled 3(a) and (3b) on the upper arm of the deceased. 3(a) represented the entrance and 3(b) the exit of the projectile. In his opinion, the wounds indicated that at the time of the shooting, the deceased’s arm was pointing at the direction of where the projectile was coming from, hence there was an entrance and exit at the same line on the same side of the arm and not the opposite side. In simple terms, the only possibility was that deceased was pointing his arm at the direction of the appellant at the time he was shot. According to him, it was not possible that the deceased was raising his arms at the time he was shot.
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[26] It emerged under cross examination that Dr Phakoana was of the view that the wounds in issue were on the biceps whereas they were on the triceps, this he conceded3. Significantly, he conceded that it was possible that at the time the appellant shot at the deceased, the latter had raised his forearms and his hands.4 In short, he expressly said that he could not rule out that possibility.
In the High Court
[27] The High Court framed the following three factors to be considered:
“(a) At the time of the shooting was the deceased holding a gun and what happened to the gun finally.
(b) Who had uttered the words “phone don’t (sic) or words to that effect?
(c) What is the effect of DW2 evidence on the case as a whole?”
[28] Regarding the first issue the Court a quo indicated that the defence accepted the evidence of the deceased grandson’s that he was at the scene immediately after the shooting incident and was assisted by PW3 to lift the deceased in the car to convey him to the hospital. The Court a quo indicated that neither of them was asked whether the deceased gun was on the scene or not.
[29] Concerning the second issue, the trial court found that the words “please don’t” were those of the deceased. It relied on the testimony of Ms Molatuoa who it said was unmoved during the
3 Record, Page 236 to 237
4 Record, Page 241
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cross-examination and noted that no plausible explanation was furnished why she could falsely implicate the accused.
[30] Regarding the last issue, the Court a quo said that Dr Phakoana conceded that the theory that the right arm of the decease was pointing at the appellant at the time of the shooting did not include the forearm. And that he conceded that the forearm might have been pointing upwards or sideways. Further, he admitted that the shots fired at the deceased were fired at different distances making it probable that the accused was advancing towards the deceased at he shot.
[31] The Court a quo found that Ms Molatuoa was a fair witness who gave evidence in clear and credited manner. And that the evidence of the defence corroborated her evidence in many aspects. The Court a quo rejected the defence version on the basis that the evidence as a whole showed that there was no imminent danger to the accused at the time of the shooting and that his own witness showed that he was the one advancing towards the deceased during the shooting. The Court found the version to be unreasonable, improbable and false beyond reasonable doubt. It disagreed with the appellant that the wounds could be the reason he did not leave immediately after being chastised.
Submissions by the parties on appeal
[32] The appellant had fourteen grounds of appeal, some of which were duplicated. Mr Teele for the appellant collapsed all the
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grounds and argued them conjointly. He submitted that the Crown failed to prove the guilt of the appellant beyond reasonable doubt and attacked credibility findings of the Court a quo with respect to Ms Molatuoa.
[33] Mr Teele submitted that the Court a quo relied only on the evidence of Ms Molatuoa with respect to the shooting incident as a result of which her evidence ought to have been approached with caution pursuant to section 238 of the Criminal Procedure and Evidence Act 1981. It was further argued that in all probability, Ms Molatuoa was not outside at the time of the shooting. Therefore, she did not observe the events that preceded the shooting, so argued the defence.
[34] Mr Teele further argued that contrary to the High Court’s finding, the appellant’s explanation was reasonably possibly true. He was critical of the fact that the High Court did not make any finding on whether the deceased had a firearm or not before the appellant fired shots at him.
[35] The Crown supported the conviction. Mr Fuma for the Crown vehemently argued that the deceased had raised his forearms and hands when the appellant fired shots at him. He placed reliance on the evidence of Ms Molatuoa and Mr Chabalala that the appellant did not act in self-defence.
Discussions
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[36] I preface the discussions that will follow with the relevant basic principles that will help us in determining the appeal. Counsel for the appellant correctly pointed out that it is only in exceptional circumstances that an appellate court will interfere with a trial court’s evaluation of evidence. Absent demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct. Thus, the findings must be clearly wrong to be disregarded.5 The main reason is that the trial court has an advantage which the appellate court does not have in seeing and hearing witnesses, as well as observing their demeanour.6
[37] Another time-honoured principle relevant to this matter which must be observed in considering whether the Crown was able to meet the threshold of “beyond reasonable doubt” as stated in R v. Mlambo7 is that –
“…, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the accused has committed the crime charged. He must in other words, be morally certain of the guilt of the accused. An accused’s claim to the benefit of the doubt that may be said to exist must not be derived from speculation but must rest upon a reasonable and solid
5 S v. Monyane and Others 2008 (1) SACR 543 at [15]; Tlali Serine v. Rex 1991-92 LLR – LB Page 42 at 43.
6 R v. Dhumayo and Another1948(2) SA 677 (A) at 705.
7 R v. Mlambo 1957 (4) SA 727 (A) at 738 A-C.
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foundation created either by positive evidence or gathered from reasonable influences which are not in conflict with, or outweighed by the proved facts of the case.”
[38] Additionally, in investigating the defence case, a court must do so with a view to discern whether it is demonstrably false or inherently so improbable as to be rejected as false8.
[39] Besides, where self-defence is pleaded, a court must consider the desperation of the situation and urgency of the circumstances, rather than judging the events like armchair critic. In S v. Ntuli,9 Holmes JA stated the following in that regard:
“In applying these formulations to the flesh-and-blood facts, the Courts adopt a robust approach, not seeking to measure with nice intellectual callipers, the precise balance of legitimate self-defence or the foreseeability or foresight of resultant death”
[40] I turn to consider the facts in this matter. Firstly, I interpose to note that there was a material misdirection on the part of the Court a quo in that it did not account for all the evidence even on material aspects of the case. Despite Mr Chabalala testifying that he observed the events that preceded the shooting, as well as the actual shooting, the Court a quo said absolutely nothing about his testimony in that regard. Whether it be to convict or to acquit, the court must account for all the evidence,
8 S v. Munyai 1998 (4) SA 712 at 915 G.
9 S v. Ntuli 1975 1 SA 429 (A) at 437D-F.
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some of which may be found to be false, some unreliable or some of which might be found to be true. Simply said, a compactus of all the evidence is required10.
[41] The defence team attacked Mr Chabala’s credibility on the basis that nowhere in his statement to the police did he say that he saw the appellant pointing his firearm at the deceased and shooting him. It was eventually put to him that he did not see the events preceding the shooting and the actual shooting. Nonetheless, that did not relieve the Court a quo of its primary responsibility to consider and evaluate Mr Chabala’s testimony despite the material difference between his testimony and his statement.
[42] I find it timely to refresh on the established principles on how evidence of a witness who made a previously inconsistent statement has to be approved. The principles were reinstated by Horn J (with whom I respectfully agree) as follows in S v. Mahlangu and Another:11 “In order to discredit a witness who made a previously inconsistent statement it must be shown that the deviation was material (S v Bruiners en ‘n Ander1998 (2) SACR 432 (SE) at 437e; S v Mafaladiso en andere 2003 (1) SACR 583 (SCA) at 593e). Deviations which are not material will not discredit the witness. Police statements and statements obtained from witnesses by the police,
10 S v. Trainor 2003 (1) SACR 35
11 S v. Mahlangu and Another (CC70/2010) [2012] ZAGPJHC 114 (22 May 2012)
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are notoriously lacking in detail, are inaccurate and often incomplete. A witness statement is in the main required to enable the prosecuting authority to determine whether a prosecution is called for, on what charge and to consider which witnesses to call on which issues. It would be absurd to expect a witness to say exactly in his statement what he will eventually say in court. There will have to be indications other than a mere lack of detail in the witness’ statement to conclude that what the witness said in court was unsatisfactory or untruthful. There is no law that compels a witness what to say and what not to say in his statement. The witness tells it as he sees it. He is not expected to relate in his statement what he saw in the minutest detail. Should a witness through a lapse of memory or any other valid reason omit some detail which later could become important, he should not as a matter of course be branded as being untruthful. Moreover the mere fact that a witness deviates in a material respect from what he said in his statement does not necessarily render all his evidence defective. The court will in the final analysis consider the evidence as a whole in order to determine in what respects the witness’ evidence may be accepted and in what respects it should be rejected. Counsel who act on behalf of accused persons, are wont to pounce on any differences, no matter how insignificant, which may arise between an extra curial statement of a witness and the witness’ testimony in court (See S v Govender and
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Others 2006 (1) SACR 322 (E) from 326c,where Nepgen J gives an insightful discourse on this topic.) The witness is often lambasted where his testimony in court gives more detail than what appears in his written statement. The more differences that can be found between the statement and the testimony in court, the more successful counsel feels his cross-examination has been. However, as has been pointed out, that is not the correct approach. The test is: were the differences material, always bearing in mind that a witness’ testimony in court will almost without exception be more detailed than what the witness said in his written statement.”
[43] I proceed to consider the criticism levelled against the Court a quo regarding the credibility finding it made in respect of Ms Molatuoa. The criticism was largely based on the argument that it was probable that Ms Molatuoa was inside her room and did not observe the shooting. The argument is meritless given that Ms Molatuoa ‘s testimony that she was outside her room and that she observed the shooting was not gainsaid.
[44] Turning to the argument that Ms Molatuoa was a single witness and that the trial court should have applied a cautionary rule, I interpose to note that a court can convict on the single evidence of a competent witness as provide for in section 238 of the Criminal and Evidence Act, 1981. It is, however, well established judicial principle that the evidence of single witness must be approached with caution. Differently put, such evidence
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must be scrutinised with care due to lack of corroboration that might have provided an assurance that a wrong conviction might not take place.
[45] Having discounted the evidence of Mr Chabalala even without considering it, the trial court should have approached the evidence of Ms Molatuoa with caution as far as the shooting incident was concerned. She became a single witness besides the appellant. Had the trial court approached her evidence with caution, it would have realised that reliability thereof was reproachable and deserved a closer scrutiny.
[46] First and foremost, to see what was happening at the scene, Ms Molatuoa relied on the lights from the two cars that were parked facing each other. The lights did not illuminate the scene enough. There are certain things which she did not see at the scene because it was dark. For instance, her response was as follows under cross-examination when she was asked to describe what was happening when the deceased was reprimanding the appellant and Ms Ndabeni:
“I cannot describe the movement you will pardon me because it is dark there at the road, but you could only see the clothing that they were the people. But you could see the position of Mr Makakole because the light from his car was very bright12.” (Emphasis added).
12 Record, Page 29.
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[47] Besides, when she was told that the appellant did not have a gun in his hand when he alighted from his car before he shot at the deceased, Ms Molatuoa once again said that it was dark and she did not see what was going on inside.13 Tellingly, Ms Molatuoa could not dispute that the deceased was holding a gun or that his arm was pointed at the direction of the appellant when the first shot landed on him.
[48] Moreover, both Mr Chabalala and the appellant said that the deceased knocked on passenger door of the appellant ‘s car after he chastised the appellant and Ms Ndabeni before he was shot. Ms Molatuoa said that she only saw the deceased going towards the appellant’s car but did not see him knock. Equally, Mr Chabalala did not observe everything. He disputed that the deceased hit the appellant with a gun on the forehead, yet the appellant left the scene bleeding from the forehead. It is not even clear how far both Ms Molatuoa and Mr Chabala were from the scene.
[49] Nothing better illustrates that the witnesses would, in all probability, have not had an opportunity to clearly observe what was happening at the scene than the above examples. The Court a quo does not seem to have applied its mind on whether Ms Molatuoa’s testimony was reliable or not. She may have been a fair witness and tendered her evidence in a clear and credited manner as the Court a quo found, but that did not mean her evidence was necessarily reliable. There are certain events which she did not see on the scene.
13 Record, Page 44.
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[50] More significantly, the criticism that the Court a quo did not make factual findings, especially on whether the deceased was holding a gun just before he was shot at is unassailable. This was a serious misdirection. It therefore boggles the mind as to how the High Court rejected the appellant’s defence without a factual finding that at the time the deceased was shot at, he was not holding a gun and pointing it at the appellant.
[51] Similarly, it is inconceivable how the High Court concluded that the appellant was not in imminent danger at the time of the shooting without a finding that the deceased was not pointing a gun at him. In page six of its judgment the trial court said the following:
“The defence did accept the evidence of the deceased grandson that he was on the scene immediately after the shooting and was assisted by PW3 (Mr Chabalala) to lift the deceased into a car and conveyed him to the hospital. Neither of them was asked whether the deceased gun was on the scene or not.”
[52] In my respectful view, the criticism that the grandson and Mr Chabalala were not asked whether the deceased gun was on the scene or not, should be levelled against the Crown and not the defence. This is so because the onus to prove beyond reasonable doubt that the accused is guilty lies squarely within the domain of
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prosecution and the duty does not shift to the accused even where a plea of self-defence is raised.14
[53] Crucially, the appellant testified that the deceased had pointed a gun at him, hence he fired at the deceased in self-defence. In my view, the Crown’s case was dealt a fatal blow when Ms Molatuoa conceded that she was not able to deny that the deceased was holding a gun, and that the deceased’s arm was pointed at the direction of the appellant when the first shot landed on him.
[54] Another serious misdirection committed by the High Court and which goes to the heart of the case related to its finding that there was no evidence that the appellant was in imminent danger at the time of the shooting. It compartmentalised the evidence of Dr Phakoana and said that the appellant’s “own witness said that he was the one advancing towards the deceased during the shooting. He was the aggressor.” It also said that Dr Phakoana “did not rule out the possibility that the forearms of the deceased were facing upward.”
[55] It is unbelievable that the trial court arrived at a conclusion that the appellant was not faced with imminent danger in circumstances where his evidence that the deceased was pointing a firearm at him at the time he fired at him was not gainsaid. It is hard to fathom how this evidence was rejected when the only Crown witness on the issue could not dispute that the
14 Rolston Pillay v. S 1981 (3) SA 172 (A) 180E-G.
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deceased was holding a gun, and that his arm was pointed at the direction of the appellant when the first shot landed on him.
[56] The Court a quo was also wrong in selecting Dr Phakoana’s evidence where he said he could not rule out the possibility that the deceased’s forearms were facing up when he had another alternative version. Had the Court a quo considered the totality of Dr Phakoana’s evidence, it would have realised that he did not necessarily change his stance that the deceased’s arm was pointing at the direction where the projectile came from at the time of the shooting. It is accepted that the Crown is not required to close every avenue open to the accused person, but it was its responsibility to exclude the possibility that the deceased was pointing a gun at the appellant at the time of the shooting.
[57] Notably, in arriving at the conclusion that the appellant was the aggressor, the Court a quo relied on the report by Dr Phakoana to the exclusion of what he said in evidence. Obviously, his conclusions in his report regarding the range from which the projectiles were fired from are hopelessly unreliable. In fact, even his evidence on the subject is riddle with inconsistences.
[58] At first, he admitted that in order to determine the range from which a firearm was fired, characteristics of wounds caused by a projectile are vital. It is common cause that the postmortem report did not show the characteristics of the wounds and that Dr Phakoana did not consult with a pathologist who did the postmortem and complied the report. Dr Phakoana responded as
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follows in reaction to the question that in the absence of the characteristics of the wounds, he could not accurately say from which range the firing was made whether close, far or contact range:
“Yes, correct My Lord, but if I am not mistaken, I think on my report I said since those characteristics are not there, are not mentioned by the pathologist it would be difficult to ascertain any proximity or about the range”
[59] It is clear from the record that after he was given access to his report to read, Dr Phakoana then realised that he had in fact expressed an opinion about the range at which the projectiles were fired from. He immediately changed tune.15 He said that he expressed an opinion based on whether entry gunshot wounds had an exit. Where there was an entry and exit wound, it meant that the projectile was fired at a close range.
[60] It became obvious as the cross examination progressed that Dr Phakoana’s report was based on assumptions as far as the shooting range was concerned and not on scientifically proven methods. He said the following when he was asked about his conclusion regarding the wound labelled No.5 in the report.
“Like I said actually on that first paragraph (of his report) it wouldn’t be very correct to come with certainty on the proximity but then I would assume yeah on this no.5 since
15 Record, Page 227 to 233.
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there was an exit most probably it was at close range”. (Emphasis added).
[61] When he was asked about gun wound no.3, Dr Phakoana said he was not in a position to express an opinion whether the projectile was fired at close or not since the characteristics of the wounds were not described in the postmortem report.
[62] The trial court laid the blame on the appellant that he did not leave the scene after he was chastised. It indicated that the wound could not be the reason the appellant did not leave the place. The appellant testified that he was oozing with blood hence he could not see. And that he was wiping blood from his face when the deceased approached him for the second time threatening to shoot him. There is no evidence that was tendered to gainsay what the appellant said in this regard. He exhibited the picture which he took when he arrived at the police station which showed that he was indeed oozing with blood.
[63] The trial court failed to have appreciated that the incident comprised two distinct phases. Inasmuch as the first phase was still important, the court should have directed its inquiry to the second phase in which the appellant testified that the deceased pointed a firearm at him and that is what drew a lethal response from him. It can never be that simply because he did not leave the place immediately when he was ordered to by the deceased, the appellant is not entitled to the plea of self-defence. Neither could it reasonably be expected that he was not going to shoot and defend
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himself when the deceased pointed a firearm at him, thus sacrifice himself. The appellant could have shot the deceased before or immediately after he was chastised if that was his plan.
Conclusion
[64] In driving towards the conclusion, this is an opportune moment to pause and remark that the case was not properly investigated in two material respects. First, no effort was made to establish what happened to the deceased’s gun during the fateful night and if indeed he was still carrying it at the time the appellant shot at him. This is an unfortunate omission where a person has died. The investigators slept on their job. The prosecution did not help the situation. The Crown has conceded that the deceased had a gun in his possession during the fateful night. What happened to this gun and where exactly it was found after the deceased was shot remains a mystery. If I am wrong that investigators slept on the job, then evidence was deliberately suppressed.
[65] The second issue which we will be shrinking our responsibility if we were to pretend it never came to our attention relates to police conduct during the investigations of this case. Ms Ndabeni testified that she was made to write three statements, the first two on 14 and 15 October 2015, and the last three months before the trial. She testified that she was tortured and forced not to disclose that the deceased had a gun with him on the fateful night.
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[66] Similarly, Seargent Motlalepula Tebateba testified that at some stage during the investigation, he was called by the investigating officer who wanted him to change his report and say that he collected five shells at the scene of crime instead of the three which he had collected. It is not difficult to understand why the investigating officers wanted Seargent Tetateba to change his report. According to the postmortem report, the deceased had five gunshot wounds. Oddly, it does not appear like any effort was made to understand what really happen given that Crown witnesses said they only heard three gunshots.
[67] It is unfortunate that the police resorted to devious tricks. Police must be robust and unwavering in their investigations to dissuade future offenders. However, they should not behave like criminals themselves, their conduct must always be aboveboard. Consequently, police must ensure that suspects are brought to justice not through devious means, but by executing their responsibilities ethically and professionally and in conformity with the laws of the land. They should not aim to secure conviction at all costs. That is not their function, neither is the prosecution expected to secure conviction at all costs.
[68] When all is said and done, I have no basis to find that the appellant’s evidence is not possibly reasonably true or that it is demonstrably false or inherently so improbable as to be rejected as false. There is no denying that the deceased was carrying a gun, both when he first approached the appellant and Ms Ndabeni, as well as when he was chastising them. The appellant testified that
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the deceased was still carrying his gun and pointed it at him when he approached his car for the second time. This evidence remains unchallenged. Not much was done to rebut it or to demonstrate that the deceased had left his gun in his car when he approached the appellant for the second time.
[69] Therefore, I am not able to find that the appellant acted unreasonably in the manner in which he defended himself regard being had to the situation he was faced with. In the circumstances, the Crown has failed to establish the guilt of the appellant beyond reasonable doubt.
[70] In the result, the appeal must succeed.
Order
[71] Accordingly, the following order is made:
(a)
The appeal succeeds.
(b)
The conviction and sentence of the High Court are set aside and replaced with the following order:
“The accused is found not guilty and is acquitted.”
______________________________
A.R. MATHABA
ACTING JUSTICE OF APPEAL
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I agree
_______________________________
K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree
______________________________
M H CHINHENGO
ACTING JUSTICE OF APPEAL
FOR APPELLANT: ADV. M. TEELE KC WITH ADV E.T
POTSANE
FOR RESPONDENT: ADV. T. FUMA