Rex V Rapele Mphaki & 9 Others (CRI/T/0008/2028) [2025] LSHC 1 (27 February 2025)

 

IN THE HIGH COURT OF LESOTHO 

 

 

HELD AT MASERU CRI/T/0008/2018 

 

In the matter between: 

 

REX 

 

AND 

 

RAPELE MPHAKI ACCUSED 1 

PITSO RAMOEPANA ACCUSED 2 

LEKHOOA MOEPI ACCUSED 3 

MAHLEHLE MOELETSI ACCUSED 4 

MAHLOMOLA MAKHOALI ACCUSED 5 

NTHATHAKANE MOTANYANE ACCUSED 6 

MOTŠOANE MACHAI ACCUSED 7 

LIPHAPANG SEFAKO ACCUSED 8 

NEMASE FASO ACCUSED 9 

TIEHO TIKISO ACCUSED 10 

 

Neutral Citation: Rex vs Rapele Mphaki & 9 Others [2025] LSHC 41 CRI (27 FEBRUARY 2025) 

 

CORAM: MOKHESI J 

HEARD:                Various dates since 06 February 2024 to 04 December 2024 

DELIVERED:      27 FEBRUARY 2025 

 

                                             SUMMARY 

 

Trial- within-a trial: At the time when the Crown was about to introduce evidence of pointing outs and confessions by the accused, they objected account that the pointing outs and confessions were neither made freely, voluntarily and without undue influence, it being alleged that they were either tortured or were not advised by the police of their rights to remain silent and legal assistence. 

 

 

ANNOTATIONS 

Books 

Schwikkard and Van Der Merwe Principles of Evidence 4 ed. (Juta) 

 

Legislation 

Criminal Procedure and Evidence Act No.9 of 1981 

 

Cases 

Lesotho  

Mabope and Others v R (C of A (CRI) 5 OF 1986) [1991] LSCA 82 (26 July 1991) 

Moshephi and Others v R LAC (1980-1984) 57 

R v Faku and Others 1979 (1) LLR 196) 

Rex v Sekhobe Letsie, LLR (1991-1996) 999 

 

South Africa 

Gcam-Gcam v S 2015(2) SACR 501 (SCA) 

Komane v S (51/2019) [2022] ZASCA 55 (20 April 2022) 

Mabaso v S 2016 (1) SACR 617 (SCA) 

R v Mtabela 1958 (1) SA 264 (A) 

R v Nhleko 1960 (4) SA 712 (AD) 

S v Janse Van Rensburg and Another [2008] ZAWCHC 40: 2009 (2) SACR 216 (C) 

S v Agnew and Another 1996 (2) SACER 535 (C) 

S v Khan 1997 (2) SA 611 (SCA) 

S v Magwaza 1985 (3) SA 29 (AD 

S v Mkwanazi 1966 (1) SA 736 (AD) 

S v Molefe and Others 1991 (4) SA 266 (ECD) 

S v Mpetha and others (2) 1983 (1) SA 576 (C) 

S v Teixera 1980 (3) SA 755 

S v V  2000 (1) SACR 453 (A) 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ruling on the admissibility of confessions and pointing outs 

 

[1] The ten accused are members of the Lesotho Defence Force in the Military Intelligence division. They are each facing, in the main, three counts of murder and three counts of unlawful detention in the alternative, two of which relates only to the first and second accused.  The first count relates to contravention of Section 40(1), read with Section 26(1) and 40(2) of the Penal Code Act No.6 of 2010 regarding the murder of three men Lekhoele Noko, Molise Pakela and Khothatso Makibinyane (hereinafter “the three men”).  Counts 4, 5 and 6 relates to contravention of Section 47(2), read with Section 26(1) and 109 of the Penal Code Act, 2010 regarding the unlawful detention of the three mentioned men.  All the ten accused are represented by Counsel.  They all pleaded not guilty to all the charges on the instructions of their Counsel. 

 

[2] The Crown had led evidence of twenty-three witnesses and when it got to the twenty-fourth witness who is one of the investigators in the case, Inspector Tankiso Lethoko, who would have introduced into evidence the statements made before various magistrates and pointing outs allegedly made by Lekhooa Moepi (A3), Mahlehle Moeletsi (A4), Mahlomola Makhoali (A5), Nthathakane Motanyane (A6), Motšoane Machai (A7), Liphapang Sefako (A8), Nemase Faso (A9), Tieho Tikiso (A10), the defence objected on the basis that they were not made freely and voluntarily by the accused in their sound and sober senses and without having been unduly influenced  contrary to the provisions of  Section 228 of the Criminal Procedure and Evidence Act No.9 of 1981.  The basis of this assertion is that the accused were either tortured while in detention, denied an opportunity to consult counsel or were not advised of their legal rights to remain silent and to consult their lawyers before they made confessions or pointing outs. Rapele Mphaki (A1) and Pitso Ramoepane (A2) did not make either confessions or pointing outs.   

 

[3] As a result of these objections a trial-within-a-trial was held.  The Crown led evidence of four investigators, namely Inspector Tankiso Lethoko (PW24), Inspector Nthejane (PW25), Inspector Nkeane (PW26) and Inspector Seutloali (PW27); evidence of Magistrates Peete Molapo, Lerato Ntelane,`Makopano Rantšo, and evidence of  Mosehle Tsapane (PW32) and Gilbert Moabi (PW33). I turn to give a summary of evidence against the accused. Even though A1 did not confess or point out I will nonetheless deal with evidence against and by him because he testified to provide a context of the supposed hostility of the investigators in this case towards the accused. The thrust of his and accused’s evidence is that the investigators were bent on using torture to extract self-incrimination evidence from them. 

 

 Evidence against Rapele Mphaki (A1)  

[4] PW24 testified that at the time of the arrest of all the accused he was working in the Criminal Investigation Unit of the Lesotho Mounted Police Service at Teyateyaneng, when he got a report of the kidnapping of one of the deceased, Lekhoele Noko.  The report was made by his mother `Malerato Noko. She reported that the incident took place at Lekokoaneng.  PW24 told the court that he was part of the team of investigators which investigated this kidnapping and the disappearance of two other men who are all deceased. Their investigations pointed to the members of the Lesotho Defence Force as being prime suspects. A1 was the first one to be interviewed by his team after being brought following the arrangements between the witness’ superiors and another team of investigators which was investigating a different matter before whom this accused was appearing.  All other accused were brought in by Military Police with prior arrangements with the senior command of the Police. 

 

[5] A1 arrived at the offices of the investigators on 20 September 2017.  When he arrived at the offices of the team investigating the current case, a senior police officer in charge of that team, one Inspector Lebajoa, introduced the accused to his team and vice versa.  PW24 testified that the introductions were followed by Inspector Lebajoa designating a lead interviewer in respect of a particular suspect.  The lead interviewer would start off by advising the suspect of his right to remain silent as his answers could be recorded and later used in a court as evidence against him, and his right to legal representative of his own choice and where he could not afford one, on request, the Government would provide one paid for by itself.  PW24 interviewed A1 in the presence of other investigators.  

 

[6] After being advised of the rights to remain silent and to legal representation A1 “chose to explain himself without the presence of a lawyer.”  He was not assaulted nor threatened. A1 was cooperative. His interview took about one and half hours to two hours. He was confronted about the deaths of the three men as per information which emanated from different sources. After giving his explanations, PW24 asked him whether he would like to repeat the statement before the magistrate.  He refused to do so.  He was further asked whether he would like to point out certain places to the police, his “response was that he could not help us because he did not know.”  He was then charged with the murder of the three men and locked up in a cell alone as he did not want other military officers to know that he got arrested first because they would think that he was the one who caused them to be arrested.  In the morning of the 21 September 2017 A1’s wife arrived and brought him food and she was given an opportunity to talk to him for ten to fifteen minutes about three to four metres away from the investigators.  In his detention form A1 wrote that “I am still in good health.”  

 

[7] Evidence against Lekhooa Moepi (A3), Mahlehle Moeletsi (A4) Mahlomola Makhoali (A5) and Nthathakane Motanyane (A6).  

These accused arrived in a manner I mentioned above. A3 and A4 were brought together before the investigators on 21 September 2017 while A5 and A6 were brought in on the 22 September 2017. Because A3 was wearing a military garb when he was brought in, the investigators requested the military police had to take him back home to change into private clothes. They obliged and returned him to the investigators where they left him.  It was six o’clock in the evening when A3 and A4 were brought in.  Inspector Nkeane led the interview of A3.  Before the interview could begin, he advised him of his right to remain silent and that whatever he said will be written down and used as evidence against him.  He was further advised of his right to legal representation of his choice and that if the is unable to secure one, on request, a state-sponsored lawyer would be provided to him.  A3 told Inspector Nkeane that he “doesn’t have a problem, he will talk”.  Inspector Nkeane (PW26) confronted him about the information from Senior Inspector Khatleli and P/C Nkhahle and information from ‘Malerato Noko and the Facebook post which talked about kidnapping at Lekokoaneng and the information they gathered from the interview of A1.  At the end of his explanation PW26 reminded him of his right of seeking a lawyer of his choice.  A3 voluntarily gave his explanation and was charged with murder of the three men and arrested him.  He did not remind him of his right to remain silent for the second time, he only advised him of his right to lawyer. A3 smiled and laughed during the interview. After being charged, he was ordered to sit on the bench in the corridor outside the interview room. 

 

[8] While A3 was being interviewed A4 remained on the bench in the corridor outside the interview room.  A4 was confronted with same information as A3 and A1. PW26 advised him of his rights to remain silent and legal representation before the interview could start. A4 “said there is no problem he will explain.  He continued to explain.”  At the end of the explanation, he was charged with the murder of the three men and was arrested.  No assaults or threats were made against both accused.  They were asked whether they would like to make the statements before the magistrates and to make pointing outs.  They both agreed to make confessions and to do pointing outs.  They were not handcuffed or shackled as they were cooperative. 

 

[9] On 22 September A3 was taken out of the holding cells to the interview room where he was asked again whether he still had no problem confessing before the magistrate.  Inspector Nkeane (PW26) took A3 to Magistrate Court for making a confession. They went on foot due to lack of transportation.  A3 was not threatened or influenced. He was not shackled or handcuffed.  He made a confession before Magistrate Kao.  But before they could leave for the magistrate court PW26 reminded A3 of his rights to legal representation and to remain silent.  After making the confession both PW26 and A3 returned to the police Headquarters.  They “were talking and even laughing.” 

 

[10] Around ten o’clock in the morning when A3 returned from the Magistrate Court A5 and A6 were brought to the police Headquarters by the Military Police. Inspector Lebajoa made introductions in the manner already stated and ordered PW24 to lead their interviews.  PW24 testified that he started off with A5 and told him the purpose of his being there and advised him of the right to remain silent and to legal representation after which he replied “…there is no problem we can proceed.”  After A5 had given his explanation, he charged him with the murder of the three men and ordered him to go and sit on the bench outside the interview room.  He then called A6 in. 

 

[11] He advised A6 of his right to remain silent and to legal representation to which A6 said “he understood, and he can continue.”  After his explanations he was asked whether he would like to make the statement before the magistrate, but he refused.  He nevertheless agreed to point out the scene of crime.  He was not threatened or promised anything nor was he assaulted.  In the detention form A6 said he was “in good health.” 

 

[12] Pointing outs by A3, A4, A5 and A6 

PW24 told the court that before A3, A4, A5 and A6 could be taken for pointing out they were again advised of their right to remain silent and to legal representatives.  They all agreed to go and point out the scenes of crime.  The party left Police Headquarters in three vehicles.  Members of the Special Operations Unit (SOU) were in a taxi to provide security.  Two Nissan Hardbody double cab vans carried the investigators and the accused.  The four accused were paired with shackles and handcuffs.  The front vehicle was driven by PW26 and was in the company of Inspector Seutloali, Sergeant Mohoang, Sergeant Thamae and Inspector Nthejane.  The middle vehicle was driven by Inspector Tshabalala who was accompanied by PW24, and Inspector Lebajoa.  The four paired accused were seated in the bin of the middle van vehicle facing its tailgate.  A4 would knock on the rear window of the vehicle to show the police which direction to take.  They first stopped at Setibing where the accused pointed out the scene of crime, after which they proceeded in the same Thaba -Tseka direction until they got to Thaba -Putsoa where accused directed the party to leave the tarred road and off ramp into a gravel road to the left.  They drove until they reached nearer one village where the investigators disembarked to look for the village chief to provide an independent observation of the pointing outs.  They found two villagers, Mr Mosehle Tsapane (PW32) and Mr Thabo Sello.  PW24 brought the two villagers to the four accused.  Before the villagers could talk to the accused, he advised them of their legal right to remain silence.  He asked the accused whether they were willing to tell PW32 and Mr Sello the purpose of their presence in that area of Ha-Mohale.  The accused said “yes.”  PW24 asked the A4 for direction and he showed them the direction to take to Mohale Dam. 

 

[13] When the vehicles approached their destination A4 knocked on the rear window in the same manner to signal that the vehicles should to come to a halt.  After the vehicles had stopped A4 said “this is the place sirs.”  Everyone disembarked excluding the four accused.  On the bridge at Mohale Dam A4 pointed at the area between the first and the third pillar of the bridge, and said, “we threw them between the first and the third pillar near the bridge.”  The other three suspects confirmed A4’s pointing outs.  After the pointing out, the place was marked, and the accused were returned to the Police Headquarters. 

 

 

  [14] Evidence against Motšoane Machai (A7) and Liphapang Sefako (A8)  

On 24 September A8 and A7 were brought to the investigators in the same manner as the other accused.  PW26 led the interviews. They were interviewed individually. Before interviewing the accused he informed them of the purpose of their presence there and advised them of their legal rights to remain silent and to legal representation.  A8 was the first to be interviewed.  He chose to proffer explanation after which he was charged with murder of the three men and was ordered to sit on the bench outside the interrogation room.  A7 was called into the interview room and the same procedure of explaining his rights was followed.  Both accused arrived between nine and ten o’clock in the morning.  When A8 was asked whether he would like to make a statement before magistrate and to point out, he said “yes.”  PW26 wrote down A7’s statement.  PW24 did not recall why the statement was taken. Both accused were neither assaulted, threatened or promised anything in return for making confessions and pointing outs. 

 

[15] On 25 September A1, A3, A4, A5 and A6 were taken to Maseru Magistrate Court for remand and for A4 to make a confession before the magistrate.  A4 was not assaulted, threatened or promised anything in return for making a confession.  After making the confessions all the five accused were read charges and taken to prison to await trial. 

 

[16] Evidence against Nemase Faso (A9) 

Before A7 and A8 could be taken to Magistrate Court A9 had in the meantime been brought before the investigators.  PW24 was the lead interviewer, and because he was a suspect, he was read his rights to remain silent and to legal representation.  One of the investigators, Sergeant Thamae and A9 came from the same village.  After he gave his explanation regarding the murder of the three men, he was charged with their murder and was arrested.  He was not threatened, assaulted or promised anything. 

 

[17] Pointing out by A7, A8 and A9 

As there was time after the interrogation of A9, the investigators decided to take the three accused for printing out.  One by one, in the absence of the other, after being read their right to silence and to legal representation they were asked whether they would like to do pointing outs.  They each said “yes.”  The party then left for pointing out.  Member of SOU used a Toyota Quantum and Isuzu which was for divers.  The vehicle left in the same formation as in the first trip, with a van in front and in the middle another van which carried the accused in the bin and behind the Quantum.  The three accused gave directions.  They used their heads to point directions. All the accused pointed a scene of crime at Setibing and directed the investigators to take the Thaba Tseka direction. At Thaba Putsoa they directed the police to take a gravel road to the left. 

 

[18] At the village near the destination, the investigators looked for the chief and they found him.  He is Chief Gilbert Moabi (PW33).  PW33 asked the accused some questions and they admitted to killing the three men and even gave the reason for doing so.  The answers were provided by A8, while A7 and A9 confirmed.  On the bridge the accused walked ahead of the party.  PW24 reminded them of their right to silence and to legal representation.  They all pointed at the place at the bridge which was already marked.  A7, A8 and A9 made confessions before the magistrates. 

 

[19] Evidence against Tieho Tikiso (A10) 

He was brought before the investigators in a similar fashion.  Inspector Seutloali led his interview, but before he could do so, he advised him of his legal rights to remain silent and to legal representation.  He was charged with the murder of the three men after his explanation.  He was asked whether he would like to take the police to the scene of crime and whether he would like to confess before the magistrate, to which “I think he said he is prepared to repeat the statement and to take us to the scene.”  To his recollection A10 made a statement to the magistrate and took them to the scene of crime.   

 

[20] Cross-Examination of PW24, on behalf of A1, A4 and A8  

It was suggested to the witness that he was part of the investigating team notorious for torturing suspects while in detention.  PW24 denied this allegation.  It was suggested to him that their methods included suffocating the suspects by staffing a clothe into their mouths or by throttling them with a clothe to the point where they could not speak.  PW24 denied these allegations.  It was put to the witness that A1 even though he did not confess or point out, he was tortured and insulted.  He was tortured in the following manner: The investigators took a big stick from the locker and a plastic bag.  They tied him with wire on his wrists while insulting him.  He was insulted by Superintendent Mokete.  He was ordered to sit on the on the plastic bag which was laid out on the carpet.  He was fastened in a way that his knees touched his chin.  His knees were close to his chin.  He had been stripped naked. Cold water was poured over his head with a big bucket.  When he denied knowledge of the death of the three men the wire on his wrists was tightened, this was while he was squatting on the plastic bag.  The witness denied these allegations as untruths, and responded, “If it’s true, I am trying to imagine the mess that would have been in that office.”  PW24 was told that he did not inform the witness about his right to silence and to legal representation.  He replied that he did. 

 

[21] Regarding A4, it was put to PW24 that his version is that his confession and pointing were not done freely and voluntarily as he was tortured:  he was forced to kneel down when answering questions; his head was covered in a plastic and suffocated and was ordered to implicate A1 because the army authorities did not want the latter to succeed the late Lt General Motšo-motšo;  That he as interrogated during the night; He collapsed during the interrogation.  PW24 denied these suggestions, and he further denied that A4 was never advised about his legal rights to remain silent and to legal representation. 

 

[22] It was put to PW24 that when A4, A6, and A5 went for pointing out the police seemed to know already where they were going.  PW24 replied that it was his first time going to Mohale Dam.  He was told that at Setibing the vehicles stopped, and after Inspector Lebajoa had spoken on the phone a fourth vehicle arrived carrying equipment and joined the convoy.  PW24 denied that there was ever a fourth vehicle.  At the bridge the police took the accused in pairs to a certain spot on a bridge without guidance of the accused.  PW24 rejected these allegations. 

 

[23] Another suggestion was made for A4 that the statement he made before the magistrate was rehearsed and that he was ordered by Inspector Lebajoa to make it.  The witness denied this suggestion and another suggestion that he was denied a request by Inspector Lebajoa to call his lawyer before he could make a confession before the magistrate. 

 

[24] Cross-Examination on behalf of A8  

On behalf of A8 it was put to PW24 that upon arrival at the Police Headquarters he was told by the investigators that he should be cooperative and not end up being tortured like A2.  It was put to the witness that a statement of how the three men met their deaths was read to him and was told he should narrate it to the magistrate, otherwise he would suffer the consequences as he will be taken back to the police Headquarters afterwards;  That he was also suffocated with a plastic bag as he was lying facing downwards as water was being poured over his head.  PW24 denied these allegations.  On the next day he was taken to the magistrate court for confession and was reminded to narrate the story as was recounted to him.  PW24 vehemently denied that this is what happened.  It was put to the witness that before leaving to the magistrate court for confession A8 asked to meet his lawyer, but Inspector Lebajoa refused saying he will meet his lawyer at the trial.  PW24 denied these allegations as well.  On pointing out, it was put to the witness that A8 was taken for pointing out on 26 September 2017 with A7 and A9 and while there they never pointed anything after being dropped on the bridge.  It was further put to the witness that the investigators brought the villagers who asked them why they did such a bad deed, to which they did not respond.  They were returned to Police Headquarters afterwards.  PW24 denied these suggestions. PW24 acknowledged that there was no record of the pointing outs by the accused, nor was there any record of what the accused said to the chief Gilbert Moabi (PW33). 

 

[25] Cross-examination on behalf of A3, A5, A6 and A10  

During cross-examination PW24 was questioned about PW11 (Captain Litsietsi Monyeke) and his treatment by his team, particularly before he made a confession before the magistrate.  The witness seemed not to recall anything apart from the fact that he appeared before his team twice.  He was questioned on whether he kept a diary of whatever he claimed to have done to the accused or by them.  His answer was that it had disappeared without a trace.  It was put to him that his reports, as he made three statements, did not suggest that he ever informed the accused of their rights to remain silent and to legal representation.  PW24 conceded that his report stated that he took the accused to Mohale Dam but did not state that they made pointing outs at Setibing and Mohale Dam. 

 

[26] When questioned about the presence of PW11’s lawyer, PW24 responded that he did not know if he was accompanied by his lawyer when he came for interviews.  The witness, however, did not dispute PW11’s evidence that his lawyer was expelled by Inspector Lebajoa. 

 

[27] Cross-examination on behalf of A10 

It was put to PW24 that A10 would say he was tortured and forced to make a statement before the magistrate.  The witness denied that A10 was tortured.  The method of torture was that he would lye facing downwards, and a plastic bag would cover his head and face, and some investigators would stand on his back.  He was told he would be taken before magistrate to make a statement and will go to Ha Mohale.  PW24 denied these allegations. The witness denied that A10 was blocked from calling his lawyer.  The witness was told that at Ha-Mohale Sergeant Thamae drove off after he was taken to the bridge and did not point out anything.  The witness told the court that Sergeant Thamae does not know how to drive a car, and he rejected this allegation. It was also put to the witness that A10 agreed to make a statement before a magistrate in exchange for being turned into a witness. PW24 denied this assertion. 

 

[28] Cross-examination on behalf of A5 

PW24 was told that A5 was not informed about his legal rights to representation and to remain silent when he appeared before the investigators.  The witness denied this and told the court that Inspector Nkeane did inform him about these rights even before he made pointing out. 

 

[29] Cross-examination on behalf of A6 

It was put to the witness that when A6 arrived the police were sympathetic to him, but after the accused had rejected the offer to become the witness he was insulted by the investigators.  PW24 denied this suggestion.  It was put to the witness that at Ha-Mohale A6 did not point out anything, an assertion which the witness denied. 

 

[30] Cross-examination on behalf of A3 

It was put to the witness that after A3 denied any knowledge of the murders of the three men he was shackled and handcuffed behind his back and was made to squat and his head and face covered with plastic bag to suffocate him and that a crowbar was used to hang or truss him up between the two tables.  The witness denied these deeds perpetrated on the accused.  He also denied that A3 was not informed of his legal rights to remain silent and to legal representation.  It was put to the witness that A3 never pointed out any place on the way to Ha-Mohale and at Mohale Dam.  PW24 told the court that A3 was the one who gave directions to Mohale Dam. He further denied that the statement which A3 told the magistrate was rehearsed and was done under the orders of the investigators. 

 

[31] Cross-examination on behalf of A7 and A9  

On behalf of A7 it was put to PW24 that the atmosphere in the interrogation room was intimidating as he was not allowed to call his lawyer.  A7’s wife even brought a lawyer but was turned away.  PW24 denied this assertion.  It was put to him that following his arrest he applied for bail, and Inspector Lebajoa deposed to an affidavit opposing it, and in it, the latter avers that A7’s lawyer was present at the police headquarters.  PW24 was then referred to paragraph 9 of the said affidavit, and he acknowledged that that is what Inspector said. He conceded that evidence of the investigators is contradictory on the issue of the presence of A7’s lawyer at the Police Headquarters. 

 

[32] With regard to A9, it was put to the witness that on arrival at the Police Headquarters and before his interview, he was not informed about his right to remain silent and to legal representation.  PW24 denied the assertion and further stated that because A9 and Sergeant Thamae were known to each other they had a private conversation.  It was put to the witness that A9 was persuaded by Sergeant Thamae to make a statement before the magistrate in exchange for being turned into a state witness and that a lawyer was not needed at that stage.  The witness said he did not know the content of their discussion.  It was put to the witness that A7 and A9 never pointed out anything during the journey to Ha-Mohale and at Mohale Dam. PW 24 denied this suggestion.  

 

[33] Evidence of Inspector Nthejane (PW25) 

I deliberately laid out much of PW24’s evidence so that it would not be necessary to repeat the evidence of other police officers except where it is necessary, because to a large extent their evidence is similar, especially as regard informing the accused about their rights to remain silent and to legal representation before they could be interviewed and before pointing out.  PW25 testified that A5 and A6 arrived at police headquarters on the morning of the day on which they were taken for pointing out.  Before they left for Ha-Mohale the accused were informed about their rights to remain silent and to legal representation.  PW25 told the court that on the way to Mohale they stopped at Setibing as the accused wanted to point out the place where the crime was committed.  At the village of Ha-Montši the party searched for the village chief, but could not find him, they could only find the villagers, one Tsapane (PW32) and Sello.  These villagers were allowed to have access to the accused for purposes of asking questions.  Interestingly PW25 did not tell the court whether the investigators advised the accused about their rights to remain silent before Tsapane could have access to them, and even on the bridge, and this is what he said: 

 

“I recall one Tsapane.  We introduced ourselves to the chief and informed him about the purpose of our visit and that they could inquire what brought us there.  The suspects explained what brought us there.  The representatives even asked some questions under guidance of the suspects we left for Ha-Mohale dam.  When you are at the village you are able to see two bridges.  The one on the left is a bit far.  They guided us to the one that connect Ha-Montši and other villages across.  Upon arrival at the bridge we alighted and we walked on foot to the bridge with the guidance of the suspects.  While on the middle of the bridge the suspects talked and agreed that that was the correct place.  We were very close to the third pillar.  The bridge is sitting on the pillars, they are in the dam.  They agreed that the three men were thrown into the dam at that place.  They were telling the chief’s representatives and we heard what they were saying.” 

 

[34] A7, A8 and A9 were also taken to Ha-Mohale for pointing out.  At Setibing these accused stopped the vehicles and pointed at the scene of crime.  At the village of Ha-Montši the police sought village chief, and they found him, Chief Gilbert Moabi (PW33). He was given access to the accused, and at the bridge on the accused’s guidance they pointed where the bodies of the three men were thrown into the dam.  Even in this instance PW25 does not say whether the accused were advised of their rights to remain silent. 

 

[35] A10 was the last accused to arrive and to appear before the investigators.  PW25 told the Court that before they left for pointing out, A10’s was informed about his right to remain silent and to legal representation.  According to PW25, A10 guided the investigators and the chief to the bridge where the bodies were thrown into the Mohale Dam. 

 

[36] Cross-examination 

Under cross-examination PW25 conceded that his report did not contain the details such as that the accused’s rights were read out to them before they were interrogated, went for confessions and before pointing outs. It was further put to him that the accused were tortured. He rejected the suggestion that the accused were tortured. PW25, however, conceded that he made a report three years after the arrest of the accused.  On being questioned by Adv. Molati that none of the ten accused met their lawyers while in detention, PW25 said it is because none of them wanted to consult a lawyer.  He was at pains to concede that his evidence is contrary to that of Inspector Lebajoa who said in the affidavit opposing bail of A7 that he met his lawyer, when that was not true.  PW25 denied that A1 sent Inspector Lebajoa to buy food for him and that they ate together as he feared food poisoning.  PW25 stated  contrary to PW24’s evidence, that  the four suspects were carried in two separate vehicles. 

 

[37] On being cross-examined by Counsel for A3 on what he did to stop the vehicles at Thaba-Putsoa PW25 replied that he did not recall even though he knew that it was A4 who stopped the vehicles. PW25 conceded that the reading of rights to all the accused did not appear in his report.  He however, retorted that it did not mean that they were not read.  PW25, on being cross-examined by counsel for A7 and A9 insisted that the accused’s lawyers were not present at the police headquarters even though Inspector Lebajoa averred, misleadingly, in his affidavit that A7 met his lawyer.  PW25 rather startlingly made an assertion that he did not see any role for accused’s lawyers during interrogations of the suspects except when they consult suspects before they are interviewed.  It was put to him that all the accused never pointed any place at Setibing and Mohale Dam. He denied this suggestion. 

 

[38] Evidence of Inspector Nkeane (PW26) 

Essentially evidence of this witness is the same as that of his fellow investigations on the question of the accused’s rights being read before going for confessions and pointing outs.  When they took A3, A4, A5 and A6 for pointing out he as driving the vehicle in front, and that the 2nd vehicle was carrying all the suspects.  In the front vehicle he was with Sergeant Thamae and Inspector Seutloali.  All the accused were in the second vehicle.  At Setibing the second vehicle flickered lights to him to stop. He stopped and the accused were pointed out the scene of crime.  At Thaba Putsoa he was again flickered lights to stop and when he did PW24 showed them direction they had to take as directed by the accused. The party drove until it got to Mohale Dam. On bridge, in the presence of PW32, the accused pointed out the place where the bodies of the three men were dumped into the dam. 

 

[39] Cross-Examination 

PW26 denied the accused were either tortured or threatened into narrating to the magistrates the stories they were told by the police.  It was put to him that PW25 told the court that A3, A4, A5 and A6 were carried in separate vehicles during a to Ha-Mohale.  His response was that “Nthejane is forgetful.”  He conceded that his report does not mention pointing outs at Setibing or the accused meeting Chief Moabi or his representatives or pointing outs. 

 

[40] Evidence of Inspector Seutloali (PW27) 

I will treat his evidence in the same manner I did with PW25 and PW26.  PW27 told the court that while at Masianokeng on the way to Ha-Mohale the vehicles stopped and A3, A4, A5 and A6 were reminded of their rights to remain silent and to legal representation.  He said this was done at every turn they took from the main road.  He told the court that at Setibing the vehicles stopped as the A3, A4, A5 and A6 wanted to point out a place where crime was carried out.  A4 was doing a lot of talking even though the other accused were given an opportunity to speak.  He told the court that they stopped, as the van in the middle had flickered lights for the vehicle front to stop.  At the bridge accused pointed a place where the bodies of the three men were dumped into the dam.  They did this in the presence of the chief’s representatives.  Even in the second trip to Mohale where A7, A8 and A9 were taken for pointing out, the party stopped at the same points as in the first trip as the accused wanted to point out the scene of crime.  The second time, at Ha-Montši, Chief Tsapane was present when the accused pointed the place where crime was committed.  Even with the last trip involving A10, what happened in other two trips along the way and Mohale Dam happened in terms of showing of directions and making of pointing outs. 

 

[41] Cross-examination  

During cross-examination by Adv. Molati PW27 conceded that A4 made a confession after spending four nights in police detention – following his arrest on 21 September 2017.  The witness conceded that his report does not show that the accused were informed about their rights to remain silent and to legal representation.  He conceded that he was the only witness who told the court that the vehicles stopped at Masianokeng on the way to Ha-Mohale.  He denied that the accused did not point anything or make statements during pointing outs.  He denied the allegation that the accused were tortured.  

 

[42] PW28 Mr Atang Mampa who is the Senior Clerk of Court at the Magistrate Court gave evidence of how the accused are brought for making confessions before magistrates.  Not much came out of it as well as from the evidence of PW29 Magistrate Molapo, PW30 Magistrate Ntelane and PW31 Magistrate Rantšo which dealt with the aspect of how the accused who wished to confess were brought before them.  They all stated that the accused were brought in by the Clerk of court. 

 

 

[43] Evidence of PW32 (Mosehle Tsapane) 

PW32 is one of the villagers the police had requested to accompany them when A3, A4, A5 and A6 went for pointing out at Mohale Dam.  After they were picked up by the police the party went to the bridge where everybody alighted, close to the bridge.  One police officer posed a question to the accused and said, “Captain where did you say you dropped them?” and one of the accused said, “A third pillar sir.”  The accused were walking in front into the bridge and the investigators were following.  At the third pillar towards the fourth pillar, they pointed a spot where they said the bodies were dumped. The spot was marked.  The witness said the suspects were seated in the bin of one van.  

 

[44] Cross-examination 

PW32 was asked whether in their presence as villagers when police introduced them to the accused the latter were read their rights to remain silent.  The witness replied that the police did not advice the accused of their right to remain silent.  He also told the court that as villagers they did not talk to the accused.  The witness refuted the allegations by the investigators that they, together with the accused were given food by the police. 

 

[45] Evidence of PW33 (Gilbert Moabi) 

PW33 is the righthand man of the chief of Ha-Montši village which is located near the Mohale Dam.   He accompanied the police when A7, A8 A9 and A10 went for pointing out at Mohale Dam.  The police asked the three accused (A7, A8, A9) to go and show the chief “where you did your work.”  The three accused seemed to be relaxed even though they were handcuffed.  PW33 said the three accused said they “threw people” between the third and fourth column.  PW33 then asked the accused a question “these people you threw here where did you kill them?  and the accused said they killed them at Setibing. PW33 then asked a further question “How did you kill them; did you shoot them?”  The accused said, “we strangled them a bit.”  Two days later the police came back with another suspect and at the police said to the suspect, “go and show us and the chief where you did the work.”  The police, the PW33 and the accused went on to the bridge where he pointed the same which was pointed by the other accused.  It is common cause this last accused was A10. 

 

[47] During cross-examination PW33 was adamant that the three accused said they strangled the three men.  With this witness the Crown closed its case. 

 

[47] Evidence of Major Litsietsi Monyeke (PW11) 

The evidence of this witness was not led during a trial -within- a trial but it is relevant for present purposes. His evidence was to the effect that when he first appeared before team which investigated the current case, he realised that he might be criminally charged, and as a result, he sought the services of a lawyer.  He approached Advocate Ntabe and the latter agreed to accompany him to Police Headquarters on the second occasion.  When the two of them arrived at Police Headquarters. On arrival Inspector Lebajoa told Advocate Ntabe that he was not needed there.  PW11 was released and was summoned for the third time.  He testified that he did not volunteer to make a confession but was told by the police to go and make a confession before the magistrate.  He told the court that he was not advised of his right to remain silent and that if he made a statement, it would be written down and be used as evidence against him in subsequent criminal proceedings, nor was he informed about his right to legal representation.  I therefore turn to summarise the evidence of the accused because they all chose to testify. 

 

[48] DW1 (Rapele Mphaki) 

The purpose of this witness as I understand it was to show that the investigating in this case had proclivity for torturing suspects in order to extract confessions and pointing outs from them. He detailed out what he said were torture meted out on him by the police investigators for denying any knowledge of the death of the three men.  On top of the insults which were hurled at him, he was tied with wire on his wrists and was ordered to sit on the carpet in such a way that his knees touched his chin.  He was stripped naked on his clothes.  Water was poured over head. He was sitting on plastic which was laid out on a carpet.  A wire was tightened around his wrists.  A stick was used to twist the wire.  This torture lasted for approximately two hours.  He felt severe pain. He even sent Inspector Lebajoa to go and buy him food. He ate the food with him as he feared food poisoning. 

 

[49] Cross-examination 

The witness was told that it is improbable that water would be poured over him in the office.  He insisted that that is what happened.  He asked whether he bore any scars from the twisting of the wire around his wrists. His answer was that he only sustained bruises and not scars.  He acknowledged that despite these torture and bruises in his detention form when he was released to go to magistrate court for remands, he only stated that he was in good health and experienced backpain. 

 

 

[50] DW2 (Mahlehle Moeletsi) 

DW2 told the court that Inspector Lebajoa told him that he was ordered by A1 to kill the three men. The investigators asked him to implicate A1 in these murders.  He was read a prepared statement by Inspector Seutloali about how the three men were murdered.  When he denied any knowledge of how these men were murdered the investigators took out a plastic bag and suffocated him with it.  He said it was a painful experience.  The plastic bag covered his head and face.  He could not breath until he lost consciousness.  On the 24 September 2017, after being arrested on the 21 September, he signed the statement which the police had prepared.  On the 25 September 2017 he was taken to magistrate court for confession.  He was instructed by Inspector Lebajoa to tell the magistrate what the police said happened. In exercising a choice between life and death he narrated to the magistrate what the police had ordered him to.  He asked to meet his lawyer before going for confession, but Inspector Lebajoa refused saying he will only need a lawyer for trial.  Before the magistrate a confession was explained to him by the magistrate.  He made the confession still fearing the police investigators who were present outside the magistrate’s chambers. 

 

[51] Cross-examination 

All the co-accused did not cross examine DW2.  It was put to the witness by the Crown counsel that he already knew about the right legal representation which is why he kept on requesting to meet his lawyer.  The witness conceded.  He was asked whether he requested his wife and daughter to secure him a lawyer when they visited him.  He said he did not ask them to.  He conceded also that despite having been visited by his relatives he did not tell them that he was being tortured. His answer was “[t]here was no need because I would put their lives in danger.”  The witness conceded that when he was released, he did not state in his detention form that he was tortured.  He told the court that he told Magistrate Molapo before making a confession that he was not assaulted because he believed the police “were still in the office.”  It was put to him that Magistrate Molapo explained to him that he had nothing to fear as he was the magistrate.  The witness replied that he was not aware that such a question was ever asked.  He only made a statement to save his life. 

 

[52] DW3 (Pitso Ramoepane) 

This witness evidence is geared towards the same end as that of DW1. He was taken to before a different team of investigators on 12 September 2017.  He was undressed by removing his overcoat and t-shirt.  His upper body was bare.  He was left wearing his boxer shorts after his track pants was lowered.  He was chained and his t-shirt was used as a “cushion” on his hands.  His hands were tied behind his back.  He was sat on the chair.  A rope was used to tie his hands.  His hands were tied behind his back.  A rope was used to tie his hands.  The rope that tied his hands was pulled towards the leg shackles.  The other police officer sat on his back and held a plastic bag which covered his face.  Water was poured over him.  The wire which tied his wrists was causing too much pain.  He struggled to breath.  This torture was repeated until he lost consciousness, to the extent that he soiled himself. 

 

[53] Cross-examination 

All the co-accused did not cross-examine this witness.  Even the prosecution asked no more than five unhelpful questions. But what is clear is that this witness’ evidence related to a different team of investigators. This witnesses’ evidence lacks probative value in relation to the conduct of the investigators in this case and nothing more will be done about it. 

 

[54] DW4 (Liphapang Sefako) 

This witness told the court that he was tortured and was never advised of his rights to remain silent and to legal representation.  On the issue of torture, he told the court that a plastic was placed on the carpet.  He was made to lie on it flat on his stomach.  One police officer sat on his back. A wet plastic bag was used to cover his face.  The witness collapsed and when he regained consciousness the investigators asked if he was still not willing to tell them what happened to the three men.  He was suffocated for the second time.  He lost consciousness again and only woke up next to A7.  Inspector Lebajoa denied him an opportunity to call his lawyer.  He told the court that the confession he made was narrated to him by the police.  The witness denied ever directing the police Ha-Mohale or pointing out any place.  At Mohale Dam, they did not respond to the questions posed by the villagers and PW33.  

 

[55] Cross-examination 

All the co-accused did not cross-examine.  It was put to the witness by the Crown that he chose not to ask his wife when she visited to secure a lawyer for him.  The witness replied that “[t]his is your thinking”.  It was put to him that the magistrate before whom he confessed asked him whether he was aware that he was in the presence of magistrate and that he should not fear anything.  The witness responded that he feared being returned to the police because of the torture he was subjected to, hence he made the statement. 

 

 

[56] DW5 (Mahlomola Makhoali)  

He denied any involvement in the murder of the three men.  Inspector Lebajoa suggested he became a witness in exchange for releasing him from their custody.  He refused.  He was not advised of his rights to remain silent and to legal representation.  This did not happen even when they were taken to Ha-Mohale.  He confirmed that at Thaba-Putsoa and Setibing the vehicles stopped but he did not know why they stopped.  The police did not inform them of their rights at Mohale Dam. It appeared the police had a prior knowledge of where they were going. He was not tortured. He was only insulted. 

 

[57] Cross-examination 

It was suggested by the Crown that his interview was cordial and was informed about his rights to remain silent and to legal representation, hence he chose not to make a confession.  He denied that he was advised of his rights. 

 

[58] DW6 (Lekhooa Moepi) 

His evidence is that he was tortured when he denied involvement in the murder of the three men.  He was tortured despite his pleas that he just had an operation on his stomach.  The police disregarded his plea.  The police shacked and handcuffed him, and the shackles were joined with the cuffs using a rope.  One investigator pulled at the rope which connected he shackles and the handcuffs. His face was covered with a plastic bag which was pulled down to the neck to suffocate him.  He lost consciousness. When he regained consciousness, the investigators took out a crowbar and put it through the point where the handcuff and shackles were joined and lifted him.  The crowbar rested on both sides on the table, and the witness was hanging or trussed up between the tables.  He says the pain was unbearable.  He was ultimately untied and locked up in the cell.  The witness told the court that he was told what to tell the magistrate, and he understood that if he did not do as the police told him they would repeat the torture.  The confession he made was the story the police had ordered him to tell the magistrate.  He denied that he made any pointing out at Ha-Mohale.  He told the court that he was not informed of his rights to remain silent and to legal representation. 

 

[59] Cross-examination  

DW6’s co-accused did not cross-examine him.  During cross-examination by the Crown he conceded that he did not tell the magistrate about his torture.  It was put to the witness that in the detention form he wrote that he was healthy and did not mention being tortured.  DW6’s response was it was because the police knew that they tortured him.  It was put to the witness that before the magistrate he said he was not influenced to make the statement.  DW6 said the magistrate did not ask him the question even though in the pro forma confession document that question was evidently asked. 

 

[60] DW7 (Tieho Tikiso) 

He denied any involvement in the murder of the three men.  He tried to call his lawyer but PW26 took his phone away.  In the evening, he was taken to the interview room.  He was handcuffed behind his back and his feet were also shackled.  He was directed to kneel before the investigators, where afterwards he was suffocated with a plastic bag after his face was covered with it.  The plastic bag would be removed every time he indicated he would do anything the police wanted him to do.  The police wanted him to become state witness.  The witness maintained that he did not make any pointing out either along the way on the journey to Mohale Dam and at Mohale Dam.  The confession he made was just a narration of the facts which the police told him he should make to the magistrate. 

 

[61] Cross-examination  

During cross-examination it was put to him that it was improbable that the police would want to turn him into a state witness if it is true that he denied any involvement in the murders of the three men.  The witness insisted that the police wanted to turn him into a witness.  It was put to him that his rights to remain silent and to legal representation were read out to him.  He was firm in his response that he was not informed about his rights either before being interviewed or, before the pointing outs or before being taken to Magistrate Court for confession.  The Crown put it to him that he fabricated a story that he was driven all the way to Mohale Dam for fun as he said he did not point anything there.  The witness said the events occurred in that manner.  The witness was directed to the questions he was asked by the magistrate such as whether he had been assaulted and had said that he was not assaulted.  DW7 said his answers were motivated by fear of torture by the police because they had said if he did not tell the magistrate what they told him he should remember that he would be returning to their custody. 

 

[62] DW8 (Nthathakane Motanyane) 

He was brought the investigators with one Private Liphoso and DW5.  He denied any involvement in the murder of the three men.  He told the court that the police were sympathetic to him due to his young age, and for this reason, they wanted to turn him into a state witness.  He said he was “scared and confused” and pleaded with them not to hurt him.  When he disagreed with their proposal to become a witness, the investigators’ mood changed.  They insulted him and used derogatory words against him.  In the afternoon of the same day him, A3, A4 and A5 were taken for pointing outs at Mohale Dam.  While at Setibing the vehicles stopped. Inspector Lebajoa was on the phone.  He denied that the accused directed the police where to stop along the way until Mohale Dam.  At the bridge after the police had gone to the village and brought two villagers, it rained.  Police spoke with the two villagers and after they had spoken, the party returned to Maseru without any pointing out being made. 

 

[63] Cross-examination 

Only Adv. Molati put two questions in cross-examination.  The questions were geared at showing that the police did not record anything that was happening on the way to Mohale Dam and at Mohale Dam.  The witness agreed with these assertions.  The Crown then proceeded to cross-examine him.  It was put to the witness that along the way to Ha - Mohale and at Mohale Dam wherever the vehicles stopped it was because the accused had signalled the vehicles to stop.  DW8 was adamant that the vehicles did not stop at their instigation.  It was put to the witness that PW32 would not have a reason to lie that the accused pointed at the third pillar on the bridge.  He denied that he pointed at any spot on the bridge. 

 

[64] DW9 (Motšoane Machai) 

He appeared before the investigators and was questioned about the deaths of the three men.  He said he was scared to appear before this team of investigators as it was known for torturing suspects.  He denied any involvement in their murder.  His request to call his lawyer was rejected by PW24.  When his wife had come to visit him, she asked her to call his lawyer Advocate Mafaesa for him.  The police were not happy about the request for a lawyer to come and see him.  On the following day of the 25 September 2017, he was called out of his holding cell to the interview room and when he passed at the reception area, he saw his lawyer Mr Mafaesa and his wife waiting but was not allowed to meet him. Inspector Seutloali rehearsed with him the story which he said he must tell the magistrate because he would be taken there.  The investigators said he would only need his lawyer during trial.  Him, A8 and A3 were taken to Magistrate Court for confession.  Before the magistrate, he narrated the story which he was ordered to by the police.  On the 26 September 2017 they were taken to Mohale Dam.  He was not informed about his right to remain silent and to legal representation.  At the bridge when the three villagers approached them and asked questions, they did not respond.  The question was why they “did such a bad thing.”  The witness told the court that PW33’s testimony which is to the effect that they pointed to the bridge pillars, is false. 

 

[65] Cross-examination 

All the accused did not cross examine DW9. The Crown cross-examined DW9.  The witness conceded that he was not assaulted by the police, only that they were hostile to him.  He said he confessed because he feared going back to the police.  When questioned that he told magistrate before he confessed that he was not threatened to make the statement, the witness said he did not hear when that question was asked.  He was firm that he did not point any place along the way to Mohale Dam and at Mohale Dam. 

 

 

[66] DW10 (Nemase Faso) 

He told the court that when he appeared before the investigators, he was not informed about his rights to remain silent and to legal representation.  One of the investigators Sergeant Thamae was known to him as they came from the same village.  He denied being involved in the murder of the three men.  He said when he heard the gravity of the information which the police were confronting him with, he asked Sergeant Thamae whether he should secure a lawyer.  The latter said the lawyer was not needed at that stage.  Sergeant Thamae told him to narrate the story the police were telling him before the magistrate and he would not be sent to prison, in exchange.  He told the magistrate that he was making the statement because he expected to be made a state witness.  He was taken to Mohale Dam.  The vehicles did not stop along the way.  They were not advised about their legal rights to remain silent and to legal representation.  At the bridge they did not respond to questions by PW33. 

 

[67] Cross-examination 

Adv. Molati for A1, A4 and A8 cross examined him for purposes of establishing the investigators who visited the witness while in prison.  He said he was visited by PW26 and PW27.  Advocate Letuka for A2 posed one question with regard to which investigators took the witness to Magistrate Court for confession.  The witness said it was PW24, PW26 and PW27.  Other accused did not cross-examine the witness.  The Crown cross-examined the witness.  The witness was quizzed about his expectation to be made an accomplice even though he told the court that he told the police that he knew nothing about the deaths of the three men.  He could only say he expected the court to belief him. 

 

[68] DW11 (Advocate Motebo Ntabe) 

Advocate Ntabe is the practising advocate of the high court.  His client was PW11 (Major Monyeke) in 2017.  He took PW11 to the investigating team with the intention of being with him during interrogation, but he left PW11 there because the investigators were hostile towards him. He had to abandon brief because he was fearful given the political climate at the time.                           

 

[69] Cross-examination 

Advocate Molati posed a question to the witness whether he was aware of the judgment of the Constitutional Court which states that lawyers have a right to be present during interrogation of their clients.  DW11 said he was aware of it.  He conceded that he was not expelled but was rather “excused” by the police investigators.  Mr Letsika also cross-examined and started with the question whether the witness was aware that PW11 made a confession before the magistrate.  The witness said he was not aware.  The witness said it was untrue for PW24 to have told the court that suspect’s lawyer went to the police headquarters.  He was asked why he abandoned brief; his answer was that “I actually fled I couldn’t handle it.”  When asked whether he fled because of the case, DW11 said “Atmosphere around that case was not forthcoming.”  He was asked to explain but the witness said he felt unsafe. 

 

[70] For the Crown, Adv. Rafoneke posed questions to the witness. He asked the witness whether he told the Law Society that he felt intimidated by the police for representing DW11.  His answer was in the negative.  He conceded that he abandoned brief afterwards.  On the issue of hostility of the investigators he was asked whether somebody said something to him.  He witness’s answer was that “we arrived there, and tones charged and with a stern face” he was told to leave immediately. I turn to deal with the legal principles which govern admissibility of confessions and pointing outs in this jurisdiction. 

 

[71] Admissibility of confessions and pointing outs: Legal Principles   

Section 228 (1) and (2) of the Criminal Procedure and Evidence Act No.9 of 1981 (hereinafter ‘the CP&E’) on confessions provides that: 

 

“(1) Any confession of the commission of any offence shall, if such confession is proved by competent evidence to have been made by any accused of such offence (whether before or after his apprehension and whether on a judicial examination or after commitment and whether reduced into writing or not), be admissible in evidence against such person provided the confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto. 

 

(2) If a confession is shown to have been made to a policeman, it shall not be admissible in evidence under this section unless it is confirmed and reduced to writing in the presence of a magistrate.” 

 

[72] Section 229 of the same Act, on pointing outs provides that: 

 

“(1) Evidence of any fact otherwise admissible in evidence may be admitted notwithstanding –  

 

1. that such fact has been discovered and come to the knowledge of the witness who gives evidence respecting it only in consequence of information gives evidence respecting it only in consequence of information given by the person under trial in any confession or otherwise which by law is not admissible in evidence against him on such trial and  

 

2. that such fact has been discovered and came to knowledge of the witness against the wish or will of the accused. 

 

(2) Evidence may be admitted that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against him on such trial.” 

 

[73] Section 229(2) was interpreted in the case of Mabope and Others v R (C of A (CRI) 5 OF 1986) [1991] LSCA 82 (26 July 1991) at p.26 by following the authority of S v Sheehama 1991 (2) SA 86 (A) where the court was interpreting a similar South African provision.  The court therein stated that: 

 

“The section, on a correct interpretation the thereof, provides that evidence of a pointing out which is otherwise admissible shall not be inadmissible merely by virtue of the fact that that it forms part of an inadmissible confession or statement.  Put differently when evidence of a pointing out is inadmissible it will not be admissible simply because it forms part of an inadmissible confession or statement.” 

 

[74] Importantly, the court in Mabope and others v R, at p.27 stated that S. 229(2) has as its focus the validation of pointing out and not proof of an otherwise inadmissible confession or admission.  Put differently S. 229(2) is not a vehicle through which an inadmissible confession can be brought before court under the guise that it was made during a pointing out. 

 

[75] It is trite that the Crown bears the onus of proving, whether it be a confession or pointing out, that they were made freely and voluntarily by the accused in their sound and sober senses, and in the absence of any undue influence. This onus must be discharged beyond a reasonable doubt (Gcam-Gcam v S 2015(2) SACR 501 (SCA) (25 March 2015) at para. 39).  All that is required of the accused is to put up a version that is reasonably possibly true even if in certain respects it is found to be demonstrably false (Gcam-Gcam v S ibid at para. 48). In S v V 2000 (1) SACR 453 (A) para.3 the court stated that: 

 

“[I]t is trite that there is no obligation upon an accused person, where the State bears the onus ‘to convince the court’. If his version is reasonably possibly true, he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused’s version is reasonably possibly true but whether one subjectively believes him is not the test. As pointed out in many judgments of this Court and other courts the test is whether there is a reasonable possibility that the accused’s evidence may be true.” 

 

[76] Evaluation evidence: Legal approach 

I do not intend to deal with the accused in the order in which they appear in the indictment as issues in relation to some of them can quickly be disposed of while others may require a detailed scrutiny.  There are a number of facets to this case, namely, the validity of confessions made before various magistrates; whether some of the accused were tortured into making confessions; whether the police advised the accused about their legal right to remain silent and their right to secure legal representation before they could be interviewed, before they could be taken to magistrates and before they supposedly made pointing outs at Setibing and Mohale Dam, and what the consequences should be where the Judges’ Rules were not followed; whether they showed police directions leading to Mohale Dam and whether they made any pointing outs at Setibing and at Mohale Dam.  It is not in dispute that all the accused who made confessions before various magistrates intimated that they were making those statements freely and voluntarily without any influence or due to assaults.  It is also common the investigators’ version is that the accused were advised of their legal rights to representation and to remain silent either before they were interviewed or before being taken for making confessions or pointing outs. The accused dispute this version.  It is evident, therefore, that the versions of the police investigators and those of the accused are mutually destructive. 

 

[77] On the issue of evaluation of evidence the approach which is espoused in Moshephi and Others v R LAC (1980-1984) 57 at 59 F – H will be followed: 

 

“The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt.  The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it.  But, in doing so, one must guard against a tendency to focus too intently upon separate and individual part of what is, after all, a mosaic of proof.  Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation.  Those doubts may be set at rest when it is evaluated again together with all the other available evidence.  That is not to say that a broad and indulgent approach is appropriate when evaluating evidence.  Far from it.  There is no substitute for a detailed and critical examination of each and every component in a body of evidence.  But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole.  If that is not done, one may fail to see the wood for the trees.” 

 

[78] On the issue of mutually destructive versions the approach was laid out in S v Janse Van Rensburg and Another [2008] ZAWCHC 40: 2009 (2) SACR 216 (C) at para.8 thus: 

 

“Logic dictates that, where there are two conflicting versions or two mutually destructive stories, both cannot be true.  Only one can be true.  Consequently, the other must be false.  However, the dictates of logic do not displace the standard of proof required either in a civil or criminal matter.  In order to determine the objective truth of the one version and the falsity of the other, it is important to consider not only the credibility of the witness, but also the reliability of such witnesses.  Evidence that is reliable should be weighed against the evidence that is found to be false and, in the process, measured against the probabilities.  In the final analysis the court must determine whether the State has mustered the requisite threshold – in this case proof beyond reasonable doubt.” 

 

  Evaluation and discussion 

Were Mphaki (A1), Moeletsi (A4), Sefako (A8) and Tikiso (A10) tortured or assaulted?     

[79] In S v Mkwanazi 1966 (1) SA 736 (AD) at p. 747, the court cautioned against rejecting confessions on any basis other than evidence.  It has widely been recognised that accused persons who are facing capital offences often fabricate charges of violence by the police against them with the sole purpose of avoiding the effects of their free and voluntary statements.  Despite this obvious motive and tendency of the accused, the court is still enjoined to examine evidence to determine whether the Crown has discharged its onus beyond a reasonable doubt that the accused made the statement freely and voluntarily his sound and sober and without being unduly influenced (R v Nhleko 1960 (4) SA 712 (AD) at 720 D-E). 

 

[80] The purpose of requiring the accused to make confessions before the magistrates is to guard against the police forcing them to make involuntary confessions induced by duress or promises.  (S v Khan 1997 (2) SA 611 (SCA): 

 

“The very object of bringing an accused person before a magistrate is to safeguard him against duress or undue influence in making a statement which may be used as evidence against him.  As Innes CJ pointed out in Barlin’s Case at p. 465, even authority and ascendancy of a policeman – his ius reverentiale – may conceivably affect the exercise of free will unduly in certain circumstances.” 

 

[81] Rapele Mphaki 

His version is that Judge’s rules were not observed in relation to him, but the version of the Crown is that after he was advised of his legal rights to remain silence and legal representation, he opted in favour of exercising his right to remain silent, and the police left him alone.  The His version is that he did not confess because he denied any knowledge of the murders of the three men. I have no reason to reject this version as not being reasonably possibly true. 

All the allegations of assaults and torture made by the accused against the investigators are palpably false.  All the accused have nothing to show for these allegations except their mere ipse dexit. In my judgment credibility of the investigators cannot be called into question regarding the issue of the torture of all the accused. I begin with A1. His allegations against the police are quite sensational and fantastic. He was neither threatened nor intimidated into doing anything.  He testified that he even sent Inspector Lebajoa to buy him some food and that they even ate together because he feared food poisoning. He alleges that he was tortured physically and by means of water being poured over him in the interrogation room. Taken on the face value this version would not tally with the picture he is painting of the police treating him with brutality. It is hard to fathom how a tormentor and a victim would exchange roles so freely: in one hand the police subject him to horrific torture and in the same breadth he sends their most senior officer to go and buy him food and even ate with him. This story is so improbable and false beyond a reasonable doubt.  

 

[82] As regards torture, which was allegedly perpetrated on him, he alleges that he was severely tortured with a wire which was twisted with a stick around his wrists.  Being handcuffed with a wire must have been extremely painful and should surely have left visible marks or bruises around the wrist.  His wife religiously visited him while in detention, but he did not share this supposed ordeal with her.  In the detention forms he did not write down that he was assaulted and was in serious pain. All the accused were visited by their relatives regularly who could have spotted anything untoward with them and would have alerted their military chiefs that something bad is happening to them. I do not think that the police would have been so foolish to torture the accused and still expect cooperation of the military to bring other suspects before them. They would have been foolish to have acted in this manner. I therefore have no hesitation in rejecting version as being false beyond a reasonable doubt.  In my view the Crown has succeeded in proving beyond a reasonable doubt that A1 was not assaulted while in detention. I deliberately omit dealing with the testimony of A2 because it has no probative value in view of the fact that he makes allegations of torture against a different team of investigators as I said. 

 

 [83] Lekhooa Moepi 

This accused as already stated alleges that he was tortured with a plastic bag.  He was suffocated with it while being forced to implicate himself.  He was handcuffed, trussed up and hung between the tables on a crowbar, and was suffocated with a plastic bag until he lost consciousness.  Legitimate cross-examination from the Crown Counsel made him to concede that he did not tell the magistrate that he had been tortured, and that even in the detention form he wrote that he was healthy and did not mention that he had been tortured.  He also told the magistrate that he was not influenced in any way to make the statement.  He told the court that he was told what to tell the magistrate when making a statement.  He denied having been asked by the magistrate whether he was influenced to make the statement.  His denial is despite the fact that the pro forma confession document shows that indeed he was asked the question, and his answer was in the negative.  It is common cause that despite A3 being allegedly put through an ordeal he suggests he was put through he did not have visible marks on the wrists.  A person cannot be trussed up hung of the rod and not have visible marks or bruises.  The fact that he did not tell anyone including his relatives when they visited him nor the magistrate before whom he made a statement makes his version inherently improbable that he was tortured. As I have already said in relation to A1, I do not think that the police would have been so foolish to torture the accused and still expect cooperation of the military to bring other suspects before them because at the time the investigators were expecting more suspects to be brought in. They would have been foolish to have acted in this manner especially when the relatives of the accused were allowed to visit them.  In my view Moepi’s version is false beyond a reasonable doubt. It is not reasonably possibly true. It is accordingly rejected. 

 

[84] Mahlehle Moeletsi 

This accused’s version is that he was suffocated with a plastic bag until he lost consciousness.  He asked Inspector Lebajoa to allow him to meet his lawyer, but the latter refused saying he will only be needed during trial.  He told the court that he confessed before the magistrate under the impression that the investigators who had taken him there were still in chambers, and so the story goes on, he told the magistrate what the police ordered him to narrate. 

 

[85] A4 conceded under cross-examination that he did not tell his visitors that he had been tortured.  This he also did not tell the magistrate before whom he made a statement.  The suggestion that when he made the statement, he did so under the impression that the investigators who took him to the magistrate’s court were present in the room is implausible.  It is not borne out by the answer he gave to the magistrate when asked whether he was aware that he was in the presence of the magistrate and that he should not fear anything.  He responded positively to this question.  He specifically told the magistrate further that he was not assaulted.  The same views I expressed with regard to A1 and A3 are applicable with equal force regarding this accused. In the absence of objective facts showing that A4 was tortured while in detention I find that his version is false and not reasonably possibly true. 

 

[86] Liphapang Sefako 

This accused alleges that he was tortured by being suffocated with a plastic bag while water was poured over his head.  He lost consciousness as a result.  The following day he was taken to magistrate court to make a statement after being told that he should tell the magistrate what Inspect Lebajoa he told him to narrate, as failure to do so would have bad consequences as he would be returned to the police afterwards.  He told the court that Inspector Lebajoa refused his request to call his lawyer before being taken to the magistrate court for making a confession.    

 

[87] During cross-examination he conceded that he did not ask his wife to secure a lawyer for him.  But this must be seen in the light of the fact that the witness alleged that Inspector Lebajoa refused to allow him to call his lawyer saying he will only be needed during trial, and this has not been contradicted because Inspector Lebajoa was not called to testify.  It is probable that he did not ask his wife to secure a lawyer because Inspector Lebajoa had refused earlier when he asked to call his lawyer, and this assertion was put to Crown witnesses repeatedly.  The Crown was fully aware that this is A8’s version of events but chose not to subpoena Inspector Lebajoa to come and refute these claims. 

 

[88] On the issue of torture in the similar manner the accused did not tell the magistrate that he was assaulted, nor did he tell his wife when she visited him.  The argument that he was assaulted does not tally with what he told the magistrate, and what he wrote in his detention form as he only wrote that he takes medication at 20hrs00.  Based on the objective facts the issue of torture is just a mere fabrication and is rejected. It is not reasonably possibly true. The Crown has proved beyond a reasonable doubt that he was not tortured. 

 

[89] Tieho Tikiso 

This accused’s version is that he was suffocated with a plastic bag while being handcuffed and shackled to force him to admit complicity in the murders of the three men.  The confession he made was a narration of what the police told him he should tell the magistrate.  Again, this witness he did not tell anyone that he was tortured, not even his relative who visited him while in detention.  He told the magistrate before whom he made the confession that he was not assaulted, threatened or influenced by anyone to make a statement.  In his detention form he did not write that he was assaulted.  In my view if all these had happened surely, he would have found it easier and opportune to tell any of these individuals that he had been tortured.   

 

[90] He alleges that he was tortured into making a statement before the magistrate so that the police would turn him into a state witness. I find this to be inherently improbable: the police would not force a person who is distancing himself from committing a crime to make a confession so that he would be turned into a witness.  Logic would dictate that they would only ask a person who admits committing a crime to be a witness.  He says he was denied an opportunity to call his lawyer, but then when his brother visits him, he does not instruct him to call his lawyer for him, if his version were to be believed.  I do not belief that he was denied a chance to consult his lawyer. I also find it improbable that the police would persuade him even while in prison to become a witness if they had brutalised him while in their custody and was denying any involvement in the murders of the three men.  The allegations of torture against are clearly false beyond a reasonable doubt as already ruled. Without any objective evidence being placed before the court I find that his version is false beyond a reasonable doubt.  It is not reasonably possibly true, and it is accordingly rejected. 

 

          Whether evidence of confessions and pointing outs against Machai and Faso should be admitted. 

[91] Mots’oane Machai (A7) 

All the investigators who testified before this court told the court that the accused were advised of their legal rights to remain silent and to legal representation before being interrogated, being taken for confession and before pointing out at Setibing and Mohale Dam.  PW25 Inspector Nthejane’s revelation during cross-examination put beyond doubt the attitude of the investigators with regard to observing Judges’ Rules and it will be observed that this attitude was quite pervasive and not peculiar to him.  When he was cross-examined by Advocate Mafaesa for A7 and A9 he denied the accused’s version that they were not advised of their legal rights to remain silent and to legal representation.  His response was that the investigators and lawyers must give each other a “space” to operate. His view is that lawyers will only be needed in court during trial.  He was steadfast that lawyers should not be present during the interrogation of the suspects as their role is restricted to handing over the suspects to them.  Him, PW24 and PW26 denied that A7’s lawyer was denied access to him by Inspector Lebajoa even though he was present at the Police Headquarters.   

 

[92] The investigators in this case exhibited a clear pattern of being averse to accused consulting their lawyers while in detention and before they could either confess or do pointing outs, and this behaviour was corroborated by the Crown witness Major Monyeke (PW11). His evidence is to the effect that when he reported before the police investigators, he was alone.  He was interviewed without being informed about his rights to remain silent and to legal representation.  After the interviews he formed an opinion that he might be criminally charged, so he sought the services of a lawyer.  He approached Adv. Motebo Ntabe (DW11) who accompanied him to the Police Headquarters on the second occasion he was to appear before the investigators.  Major Monyake told the court that Inspector Lebajoa told Advocate Ntabe that he was not needed and should leave.  This version of one of Crown witnesses corroborates Advocate Ntate’s version that there was a palpable hostility towards him from the investigators to the point where he abandoned the brief. He simply left Captain Monyeke in the lurch to face the investigators alone without his guidance.  Captain Monyeke was taken for confession before the magistrate without having been guided by his legal representative.  He told the court that he was simply told by the police after the interview that he was going to make a confession before the magistrate.  

 

[93]  These investigators were confronted with the affidavit of Inspector Lebajoa which he deposed to when he opposed bail application of A7. In it he averred that his lawyer had access to him.  In fact, Inspector Lebajoa’s evidence rhymes with A7’s evidence that he instructed his wife to call his lawyer for him and that on the 26 September 2017 on his way out of the holding cells to the interrogation room he saw his lawyer Advocate Mafaesa and his wife waiting at the reception but was not allowed access to him.  It should be stated that Inspector Lebajoa, despite being available, was not called as a witness to deal with the issue of Advocate Mafaesa’s denial of access to his client.  In the circumstances it can safely be inferred that the failure by the Crown to call him was borne out of the fear that he might give contradictory or unfavourable evidence (S v Teixera 1980 (3) SA 755 at 764A).  Without his lawyer having advised him A7 went on to make pointing outs and confessions before the magistrate.  In the words of Foxcroft J in S v Agnew and Another 1996 (2) SACER 535 (C) at 537J, the investigators stole a march on A7.  It follows from this that the evidence of pointing out and confession with regard to A7 is inadmissible. The state failed to proof beyond a reasonable doubt that they were voluntarily made.  Had the accused had access to his lawyer it is probable that he would not have confessed or made a pointing out as he would have been advised against doing so (See: S v Agnew and Another ibid).  The fact that this accused lawyer was not allowed to have access to him is consistent with the modus operandi of the investigators in this case. They were averse to allowing accused to have access to their lawyers probably so that they could confess and point out without the benefit of their advice. 

 

[94] Nemase Faso (A9) 

A9’s version is that one of the investigators, Sergeant Thamae, was personally known to him as they come from the same village.  Sergeant Thamae persuaded him into making a statement (confession) in exchange of him being made an accomplice witness. He further told the court that Sergeant Thamae told him that lawyers will only be needed during trial.  It is common cause that Sergeant Thamae was in constant contact with A9 and that he two would have private conversations others would not be privy to.  In law Sergeant Thamae, despite being his acquaintance, was a person in authority (Rex v Sekhobe Letsie, LLR (1991-1996) 999 at 1000).  Sergeant Thamae was never called as a witness to refute the allegation that he promised A9 to be turned into a state witness in exchange for making a confession before a magistrate and that he told him that lawyers would only be needed for trial.  Sergeant Thamae is available but was not called as a witness, and so A9’s version stands unchallenged.  To my mind, this promise constituted the undue influence on the mind of A9 when he made the confession before the magistrate. That this influenced his decision to make a confession is evidenced by his answer to the magistrate’s question. The magistrate asked him what benefit he expected to get for making a statement.  His answer was that he expects to be made a witness.  It is common cause that A9 was not turned into a state witness.  In my judgment A9 did not exercise a free will when making a confession, and therefore his confession is inadmissible.  (See S v Mpetha and others (2) 1983 (1) SA 576 (C) at 585). 

 

Whether confessions and pointing outs by Moepi, Moeletsi, Machai, Motanyane, Sefako and Tikiso should be admitted. 

 

[95] Confessions and pointing outs of Moeletsi and Sefako 

Having ruled that the above accused were not tortured while in detention I turn to consider whether the confessions they made are assailable.  I firstly to deal with Moeletsi and Sefako’s confessions.  They both allege as already seen, that they requested Inspector Lebajoa to allow them to call their lawyers, but the latter refused saying a lawyer would only be needed during trial.  These versions were put to various Crown witnesses, but Inspector Lebajoa was not called as a witness. Inspector Lebajoa is available, and one wonders why he was not called to refute these allegations. It is not enough that his subordinates sought to reject these allegations, he should have testified to deal with them as they were made specifically against him.  In the absence of his gainsaying evidence I find that this allegation remains unchallenged.  The question then is what should be the fate of these accused’s confessions and pointing outs in the light of this?  In my judgment it is doubtful whether the accused would have confessed or made pointing outs had they been allowed to consult their lawyers before being interrogated by the police.  It is reasonably possible that their lawyers would have advised them not to confess or to make pointing outs.  In the premise, the Crown has failed to discharge its onus that the confessions and pointing outs were made without undue influence.  The attitude of the investigators against the accused having access to their lawyers is well documented in this case.  What compounds matters for the Crown is that there are no police investigation notes which would have shone light on what happened when the accused were before them. I therefore rule that confessions and pointing outs of Moeletsi and Sefako should be rejected. 

 

Confessions by Moepi, Machai and Tikiso 

[96] Lekhooa Moepi 

I have already ruled that this accused was not tortured as alleged.  But as I understand his Counsel’s submissions, he sought to hide behind the fact that Magistrate Kao who took his confession did not testify, and that for this reason it should be excluded because a foundation was not laid for its admission.  This submission lacks merit, in fact, I find it quite opportunistic.  It was never in issue that this accused made a statement before Magistrate Kao, and that what is stated therein that he made the statement freely and voluntarily is not in dispute.  What I understand to be A3’s contention is that despite the confession being recorded as having been made freely and voluntarily it was never the case given the torture he was subjected to by the investigators.  This is the basis upon which he impugns the statement.  But I have already ruled that he was not tortured.  The fact that the magistrate did not testify cannot be the basis for excluding this statement in the light of the circumstances of this case, because even if he had testified if the circumstances were such that despite the recording that it was made freely and voluntarily, if it is found that it was not in fact made freely and voluntarily, it would be excluded  (R v Faku and Others 1979 (1) LLR 196).  The conduct of the magistrate cannot be faulted for if there was anything questionable about it A3 would have raised it from the beginning.  In the premise I find that the Crown has proved beyond a reasonable doubt the confession was made freely and voluntarily without undue influence. 

 

[97] Tieho Tikiso 

This accused’s allegation that he was tortured has been found to be unfounded.  It will be observed that his story is based on him being tortured and being promised to be made a witness in exchange to making a confession.  This version is internally contradictory:  The police cannot torture a person forcing him to agree to committing murder and in the same breadth seek to enter into some sort of a bargain with a view to making him to confess in exchange for being made witness.  It is highly improbable that this would have happened especially in view of his assertion that he has always denied being involved in these murders.  I would have understood if the police were hostile and brutal to him throughout, but to be persuasive and hostile in the same environment which he alleges is highly improbable.  The conduct of the magistrate is not impugned with regard to this accused, and I conclude that his confession is admissible.  I now turn to deal with the pointing outs by other accused. 

 

[98] Pointing outs at Setibing and showing of directions by the accused. 

The most striking and perhaps the most crucial feature of this case is the lack of record of what happened while the accused appeared before the police investigators and when they made pointing outs (for those who made pointing outs).  All the investigators were asked whether they kept the notes of what they allege the accused said and did.  Strikingly, they all did not have the notes. Note-taking is an important aid in the collation of evidence regarding pointing outs, and for the investigators of such a serious case not to have jealously guarded them is quite remarkable, to say the least.  Neither did the investigators make use of other aids such as photography, videotaping and tape recording.  The court is faced with the mutually conflicting versions of the investigators and the accused as to what transpired during trips to Mohale Dam and at Mohale Dam.  The court is left with having to ponder the imponderables.  However, be that as it may.  I have already ruled that confessions and pointing outs by Moeletsi, Sefako, and Machai should be excluded for various reasons dealt with in the preceding discussion.  I am only concerned with the pointing outs of Moepi, Makhoali, Motanyane, Faso and Tikiso. 

 

[99] Evidence of the police in its simplest form is that during interrogation of the accused certain information regarding their involvement in the murders of the three men was divulged.  The accused would either be taken to the magistrates’ court for confessions or for making pointing outs, and that before all these could be done the accused would be advised of their rights to remain silent and to legal representation.  With reference to pointing outs, as this involved travelling from Police Headquarters to Mohale Dam, the accused would be the ones showing the investigators directions to the place and would point out a certain place along the way where the murders were committed.  Before each pointing out the accused would be advised of their rights to remain silent and legal representation, and this was the case even at Mohale Dam where the spot where the bodies of the three men were dumped into its depths.  On the one hand the accused’s contention is that they were not advised of their rights to remain silent and to legal representation. Some even suggested that the police took them to Mohale Dam on what one can safely call a joyride only to embark on a return journey without any pointing outs being made. 

 

[100] A3, A4, A5 and A6 were the first ones to be taken for the pointing out.  According to PW24 the four accused boarded the vehicle which was in the middle as there were three vehicles.  The last vehicle provided security backup.  The vehicle which was in front was driven by PW26 its passengers were PW25, Lance Sergeant Mohoang, Sergeant Thamae and PW27.  The vehicle in the middle was driven by Inspector Tshabalala with Inspector Lebajoa and PW24 as its occupants.  In its bin were these four accused.  The third vehicle was used by members of Special Operations Unit (SOU).  The accused, especially A4 gave the police directions, until they reached Setibing, where the accused requested the vehicles to stop.  The vehicles stopped.  The police investigators and the accused disembarked from the vehicles.  The accused pointed out the place where the murders were committed and afterwards the vehicles took the Thaba-Tseka direction and at Thaba Putsoa A4 signalled for the vehicles to stop by hitting the rear window of the in which he was the occupant and gave directions to Mohale Dam.  The investigators took PW32 and one Thabo Sello to make independent verification of pointing outs at Mohale Dam.  At the bridge A4 pointed out the spot where the deceased’s bodies were dumped into the dam.  The other three accused confirmed the pointing outs, and the area was marked. 

 

[101] Evidence of PW25 contradicted that of PW24, PW26 and PW27 that the four accused were place in the bin of one vehicle.  He suggested that two accused were in the middle vehicle and the other two in the front vehicle.  When PW26 was confronted with this discrepancy he told the court that PW25 was a forgetful person.  PW24 told the court that the four accused disembarked from the vehicles at Setibing but PW26 told the court that they did not alight from the vehicles, and that he did not see what happened as he stepped away to “answer the call of nature;” and only returned when the police were already boarding the vehicles. 

 

[102] The police investigators told the court that at Mohale Dam they advised the accused of their legal right to remain silent in the presence of PW32 and that the latter even put questions to the accused, to which A4 gave answers and others nodded in agreement.  However, PW32 denied that he had an opportunity to speak with the accused.  He even denied, as the police would have this court to believe, that the police advised the accused of their rights in his presence. 

 

[103] PW27 intimated to the court that the vehicles stopped at Masianokeng Junction on the way to Mohale as accused were showing directions.  But this witness is the only witness who testified on this, the other investigators PW24, PW25 and PW26 did not mention the vehicles stopping at Masianokeng.  I find it doubtful that the vehicles stopped at Masianokeng, Setibing and Thaba Putsoa at the instigation of the accused. 

 

[104] These internal contractions in the evidence of the investigators leads me to doubt whether indeed the four accused showed them the directions to Mohale Dam or even pointed at the spot at Setibing.  One is inclined to believe that the police driven by the information they gathered during the interrogations of the accused drove straight to the places without being shown directions.  The Crown’s evidence regarding the pointing outs at Masianokeng and Setibing and at Mohale Dam is made difficult by the lack of record of the events there. Had the police taken notes in writing or through any other medium, it would have made the Crown case easier.  In the present case accused’s pointing outs were not recorded.  In the light of these internal contradictions in the Crown case I find that it is reasonably possibly true that the accused did not point out any spot at Setibing nor did they point any directions to Mohale Dam. 

 

[105] Events at the Mohale Dam in respect of Moepi, Makhoali and Motanyane. 

I deal firstly with Moepi and Makhoali as a pair. As already said from the first group of accused who went to Mohale Dam, I am now left with Moepi, Makhoali and Motanyane to determine if their pointing outs were made freely and voluntarily and without undue influence. The versions of A3, A5, A6 and the Crown are mutually destructive, however, it should be borne in mind that the Crown bears the onus of proving beyond a reasonable doubt that the accused’s versions are false, and that theirs is the correct one.   These two accused’s version is that they did not do any pointing out at Mohale Dam, and that they were not advised of their legal right to remain silent.  There is no evidence that the accused rights to silence and to legal representation were explained to them because the police did not keep the record of what took place at Mohale Dam.  Although the police investigators would have the court to belief that they explained the rights of the accused in the presence of PW32. The latter denied this assertion, and I have no reason to reject their version as not being reasonably possibly true. This conclusion does not however, spell the end to the enquiry because not advising the accused of his rights does not necessarily render the pointing out inadmissible. It is one of the factors to be taken into consideration. The court has still to determine whether as a matter of fact the statement or pointing out was freely and voluntarily made without undue influence. (R v Mtabela 1958 (1) SA 264 (A) at 268 D-F). In S v Molefe and Others 1991 (4) SA 266 (ECD) at p.271H-I the court stated the approach as follows: 

“…Whether admissions, confessions or pointing outs by arrested person after his arrest will be admissible as evidence against him at trial will depend upon various considerations. The fact that he was not prior thereto told of his right to legal assistance, and the fact that he was unaware of this right (if that be the case), may or may not have a bearing on the question whether he acted freely and voluntarily and without undue influence, and this in turn may determine whether evidence sought to be led will be admissible or not. But failure to advise an arrested person of his right to legal assistance will not per se render an admission or confession or pointing out by him inadmissible as evidence against him.” 

 

 

 

[106] The accused deny that they pointed out a spot on the bridge at Mohale Dam but the evidence of PW32 corroborates that of the investigators to the effect that as the party entered the bridge the four accused led from the front until they pointed at the spot where they indicated that the deceased were dumped. PW32 corroborates PW26’s evidence that the accused entered the bridge in pairs as they were paired with handcuffs.  The four accused pointed at the third pillar.  Even though there are internal contradictions in the investigators’ testimonies regarding whether the rights of the accused were explained to them and whether the accused made any pointing outs at Setibing, I found them to be largely telling the truth on the issue of pointing out at the bridge by the accused.  Corroborative evidence of PW32 has not seriously been disputed.  PW32 was a very credible and reliable witness. I find it unbelievable that the accused would be taken to Mohale Dam, and did not do anything there. Their version that they did not point out at the bridge is rejected as not being reasonably possibly true. They freely and voluntarily and in their sound and sober senses and without undue influence pointed out the spot where the deceased were dumped into the dam.   

 

[107] Nthathakane Motanyane (A6) 

Motanyane was delivered by the Military Police to the investigators on 22 September 2017 in the morning hours.  Due to his young age, candidly, he told the court that investigators were sympathetic towards him. After being confronted with the allegations that he participated in the murders of the three men, he denied any knowledge. According to him the investigators wanted him to be a witness, but he refused.  He said they insulted him and called him a “puppy”.  His version is that the investigators did not advise him of his rights to remain silent and to legal representation.  According to DW24 after Moepi, Makhoali and Motanyane had been interviewed only Moepi intimated his preparedness to make a statement before the magistrate.  The A5 and A6 chose to exercise their right to remain silent.  In the afternoon Motanyane was taken to Mohale Dam for pointing out.  It is common cause that three bodies were recovered from the depths of the Mohale Dam. 

 

[108] Motanyane disputes police’s version that him in the company of Moepi, Moeletsi and Makhoali showed the police directions to Mohale Dam and that they pointed at certain places at Setibing where the murders were allegedly committed.  He further disputes that he was ever advised of his legal rights to remain silent and to legal representation. 

 

[109] As already highlighted failure by the police to advice the accused of the rights will not automatically render the confession or pointing out inadmissible.  The fact that these protocols may have been breached is one of the factors to be taken into consideration in determining whether accused made a confession or pointing out freely and voluntarily in his sound and sober senses without being unduly influenced. 

 

[110] With respect to both A5 and A6 I am prepared to accept that they did not make confessions because they were advised of their rights to remain silent. I deal specifically with A5 in the ensuing paragraphs.  I am, however, not prepared to accept that they were warned of their rights before they were taken for pointing out at Setibing and Mohale Dam.  Regarding A6:  He was brought in the morning of the 22 September 2017 and during the interview he declined to make a confession, but quite remarkably in the afternoon of the same day he was taken for pointing out allegedly having agreed to do so after being warned of his rights.  This change of mind is quite remarkable.  If in the morning A6 duly warned refused to confess only after a few hours later to act contrary to his earlier stance must have been as a result of something else remarkable having occurred in the aftermath of his earlier stance.   

 

[111]    It is probable that he was not warned of his right to remain silent and the consequences of agreeing to make a pointing out.  It is also probable that the police realising that they could succeed in getting A6 to make a confession in the morning sought to achieve the same result by taking him for a pointing out in breach of the Judges’ Rules.  The version of the accused cannot be rejected on the score that it is false; it is reasonably possibly true.  The Crown’s case is made even more improbable by the lack of investigators’ records or handwritten notes on pointing outs which would have shed light on what transpired.  (see Mabaso v S 2016 (1) SACR 617 (SCA) at paras. 9-11. Furthermore, pointing outs were undesirably facilitated or conducted by the police officers who were involved in the investigation of this case (see Komane v S (51/2019) [2022] ZASCA 55 (20 April 2022) at paras. 27-28).  

 

[112] The Crown sought to lead evidence of PW32 (Mosehle Tsapane), a villager, to bolster their case on the occurrences at the Mohale Dam. Tsapane under cross examination told court that he did not hear the police tell the accused who was in the company of A3 (Lekhooa Moepi) and A4 (Mahlehle Moeletsi) about their rights to silence and legal representation at the bridge where pointing outs were made. The question then to be answered is whether all the above notwithstanding, can it be said that Motanyane made pointing out freely and voluntarily and in his sound and sober senses and without undue influence? In my view despite the police not advising the accused of his rights and pointing being conducted by the investigators of this case evidence points to the fact that A6 made pointing out at Mohale Dam freely and voluntarily and in his sober and in his senses and without any undue influence. It follows that evidence of A6’s pointing out at Mohale Dam should be admitted, as it would not render his trial unfair. 

 

[113] Events at Mohale Dam in respect of Nemase Faso 

This accused was in the second batch of detainees who went for pointing out at Mohale Dam. He was in the company of Sefako and Machai.  A9’s version is that Sergeant Thamae who was his acquaintance advised him that he did not need a lawyer because he was going to be turned into a witness.  This version is undisputed as Sergeant Thamae was not called a witness to deal with it.  I am fully alive to the fact that this accused brought up the issue of undue influence of Sergeant Thamae in relation to him making a statement before the magistrate, and not with regard to pointing out.  As was stated in S v Mkwanazi 1966 (1) SA 736 (A) at 746H: 

 

“The accused himself is usually the best witness as to whether and how he was influenced, if at all, to make a confession.  When he specifically puts his mind to the question and gives the reason why he made a statement, it is generally an unnecessary artificial approach to search for other hypothetical reasons.” 

 

[114] Despite the above opinion notwithstanding, I agree with the views expressed in S v Mpetha and Others (2) (ibid) at 585 F-G that the fact the accused does not raise an issue of a particular influence having played any role in him making a pointing out in this case, the possibility of the influence of Sergeant Thamae having played any role in this accused making a pointing out should not be ignored. 

 

[115] A9 made a confession on the same day he was advised by Sergeant Thamae that he did not need a lawyer because he would be turned into a state witness.  Upon returning from making the confession, on the same day, he was taken for pointing out at Mohale Dam.  In my view I do not need to examine what happened during the pointing outs because on the circumstances of this case, it is not hypothetical, but reasonably possible that the promise that the accused would be turned into state witness and that he would not need a lawyer unduly influenced him to make the pointing out at Mohale Dam.  I say he made pointing outs because even though he disputes it, on the facts, especially evidence of the investigators which has been corroborated by PW33, cannot be seriously disputed.  I therefore find that the pointing out by A9 should be rejected. 

 

[116] Events leading to Mohale Dam in respect of Tieho Tikiso. 

A10’s story is that the police wanted him to incriminate himself so that he could be turned into a state witness, and that he was told what to narrate before the magistrate.  He said he disagreed.  He said he tried to call his lawyer but was prevented from doing so by PW26.  PW26 denied this allegation vehemently. A10 told the court that at night he was tortured with a plastic bag by suffocation while he was cuffed, while some police investigators stepped on his back.  The next morning, he was merely placed in the bin of a van and taken to Mohale Dam.  Vehicles did not stop along the way as the police suggest.  When they got to Mohale Dam Sergeant Thamae went and came back with two villagers and ordered everybody to get into the vehicles and they returned to Maseru without any pointing out being made.  He testified that he was not advised of his legal rights to remain silent and to representation before he was taken to Mohale Dam.   

 

[117] A10 states that he was taken out of the cells to Mohale Dam just for fun as nothing was done while there.  What I find problematic with regard to the Crown’s case is the assertion that A10 pointed out a spot at Setibing and was read his rights to remain silent when they left Police Headquarters and before pointing. I have already indicated with regard to other accused the Crown’s case is made difficult by lack of record of all these occurrences.  The police did not produce any notes they took nor any record of whatever nature they kept of the giving of directions to Mohale Dam and pointing out at Setibing. The same police officers who partook in taking the first two batches of accused to Mohale Dam also took A10 there, and they were all investigators in this case.  This is against the weight of judicial authority which frowns upon such practice (See: Schwikkard and Van Der Merwe Principles of Evidence 4 ed. (Juta) at 378 para 1783). In the absence of the record, I find it reasonably possibly true that A10 was not read his rights prior to leaving the Police Headquarters on the way to Mohale Dam, at Setibing and before he pointed out the spot on the bridge at Mohale Dam. I also find that it is reasonably possibly true that he did not show the investigators any directions nor did he point out any spot at Setibing.  

 

[118] As stated already the fact that the investigators did not advise the accused about his rights does not automatically render the evidence of the pointing out inadmissible (R v Mtabela 1958 (1) SA 264 (A) at 268 D-F).  Although I have found that the accused was not advised of his rights before leaving for Mohale Dam, and before any pointing out was done, A10 would have this court belief that while at Mohale he did nothing.  Evidence of PW3 corroborates that of the investigators that he pointed out a spot on the bridge.  I have no reason to doubt the veracity of PW33’s evidence. I find PW33 to be a reliable and credible.  A10’s version that he did not point out is false beyond a reasonable doubt and is rejected on the score that it is not reasonably possibly true.  I accordingly rule that his pointing out at Mohale Dam is admitted into evidence.  Throughout I have deliberately not dealt alluded to the questions by PW33 to the accused and the answers they provided because the purpose of taking the accused to Mohale Dam was to point out and not to make confessions. It is for this reason that a disguised confession cannot be allowed into evidence because that is not the purpose of S.229 (2) of the CP&E (see Mabope v R above; S v Magwaza 1985 (3) SA 29 (AD) at 36B). 

 

[119] Order 

For the sake of convenience my findings in relation to each accused are as follows: 

 

1. Accused No. 3 Lekhooa Moepi: 

• Confession and pointing out at Mohale Dam are admitted. 

 

2. Accused No. 4 Mahlehle Moeletsi: 

• Confession and pointing out Mohale Dam are rejected. 

 

3. Accused No. 5 Mahlomola Makhoali: 

• Pointing out at Mohale Dam is admitted. 

 

4. Accused No. 6 Nthathakane  Motanyane: 

• Pointing out at Mohale Dam is admitted. 

 

5. Accused No. 7 Motšoane Machai: 

• Confession and pointing out at Mohale Dam are rejected 

 

6. Accused No. 8 Liphapang Sefako: 

• Confession and pointing out at Mohale Dam are rejected. 

 

7. Accused No. 9 Nemase Faso: 

• Confession and pointing out at Mohale Dam are rejected. 

 

8. Accused No. 10 Tieho Tikiso: 

• Confession and pointing out at Mohale Dam are admitted. 

 

                                             ________________ 

           MOKHESI J 

 

 

For Crown: Adv. M. Rafoneke 

 

For A3, A5, A6 and A10: Mr. Q. Letsika 

 

For A4 and A8: Adv. L. Molati 

 

For A7 and A9: Adv. N. Mafaesa 

 

 

IN THE HIGH COURT OF LESOTHO 

 

 

HELD AT MASERU CRI/T/0008/2018 

 

In the matter between: 

 

REX 

 

AND 

 

RAPELE MPHAKI ACCUSED 1 

PITSO RAMOEPANA ACCUSED 2 

LEKHOOA MOEPI ACCUSED 3 

MAHLEHLE MOELETSI ACCUSED 4 

MAHLOMOLA MAKHOALI ACCUSED 5 

NTHATHAKANE MOTANYANE ACCUSED 6 

MOTŠOANE MACHAI ACCUSED 7 

LIPHAPANG SEFAKO ACCUSED 8 

NEMASE FASO ACCUSED 9 

TIEHO TIKISO ACCUSED 10 

 

Neutral Citation: Rex vs Rapele Mphaki & 9 Others [2025] LSHC 41 CRI (27 FEBRUARY 2025) 

 

CORAM: MOKHESI J 

HEARD:                Various dates since 06 February 2024 to 04 December 2024 

DELIVERED:      27 FEBRUARY 2025 

 

                                             SUMMARY 

 

Trial- within-a trial: At the time when the Crown was about to introduce evidence of pointing outs and confessions by the accused, they objected account that the pointing outs and confessions were neither made freely, voluntarily and without undue influence, it being alleged that they were either tortured or were not advised by the police of their rights to remain silent and legal assistence. 

 

 

ANNOTATIONS 

Books 

Schwikkard and Van Der Merwe Principles of Evidence 4 ed. (Juta) 

 

Legislation 

Criminal Procedure and Evidence Act No.9 of 1981 

 

Cases 

Lesotho  

Mabope and Others v R (C of A (CRI) 5 OF 1986) [1991] LSCA 82 (26 July 1991) 

Moshephi and Others v R LAC (1980-1984) 57 

R v Faku and Others 1979 (1) LLR 196) 

Rex v Sekhobe Letsie, LLR (1991-1996) 999 

 

South Africa 

Gcam-Gcam v S 2015(2) SACR 501 (SCA) 

Komane v S (51/2019) [2022] ZASCA 55 (20 April 2022) 

Mabaso v S 2016 (1) SACR 617 (SCA) 

R v Mtabela 1958 (1) SA 264 (A) 

R v Nhleko 1960 (4) SA 712 (AD) 

S v Janse Van Rensburg and Another [2008] ZAWCHC 40: 2009 (2) SACR 216 (C) 

S v Agnew and Another 1996 (2) SACER 535 (C) 

S v Khan 1997 (2) SA 611 (SCA) 

S v Magwaza 1985 (3) SA 29 (AD 

S v Mkwanazi 1966 (1) SA 736 (AD) 

S v Molefe and Others 1991 (4) SA 266 (ECD) 

S v Mpetha and others (2) 1983 (1) SA 576 (C) 

S v Teixera 1980 (3) SA 755 

S v V  2000 (1) SACR 453 (A) 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ruling on the admissibility of confessions and pointing outs 

 

[1] The ten accused are members of the Lesotho Defence Force in the Military Intelligence division. They are each facing, in the main, three counts of murder and three counts of unlawful detention in the alternative, two of which relates only to the first and second accused.  The first count relates to contravention of Section 40(1), read with Section 26(1) and 40(2) of the Penal Code Act No.6 of 2010 regarding the murder of three men Lekhoele Noko, Molise Pakela and Khothatso Makibinyane (hereinafter “the three men”).  Counts 4, 5 and 6 relates to contravention of Section 47(2), read with Section 26(1) and 109 of the Penal Code Act, 2010 regarding the unlawful detention of the three mentioned men.  All the ten accused are represented by Counsel.  They all pleaded not guilty to all the charges on the instructions of their Counsel. 

 

[2] The Crown had led evidence of twenty-three witnesses and when it got to the twenty-fourth witness who is one of the investigators in the case, Inspector Tankiso Lethoko, who would have introduced into evidence the statements made before various magistrates and pointing outs allegedly made by Lekhooa Moepi (A3), Mahlehle Moeletsi (A4), Mahlomola Makhoali (A5), Nthathakane Motanyane (A6), Motšoane Machai (A7), Liphapang Sefako (A8), Nemase Faso (A9), Tieho Tikiso (A10), the defence objected on the basis that they were not made freely and voluntarily by the accused in their sound and sober senses and without having been unduly influenced  contrary to the provisions of  Section 228 of the Criminal Procedure and Evidence Act No.9 of 1981.  The basis of this assertion is that the accused were either tortured while in detention, denied an opportunity to consult counsel or were not advised of their legal rights to remain silent and to consult their lawyers before they made confessions or pointing outs. Rapele Mphaki (A1) and Pitso Ramoepane (A2) did not make either confessions or pointing outs.   

 

[3] As a result of these objections a trial-within-a-trial was held.  The Crown led evidence of four investigators, namely Inspector Tankiso Lethoko (PW24), Inspector Nthejane (PW25), Inspector Nkeane (PW26) and Inspector Seutloali (PW27); evidence of Magistrates Peete Molapo, Lerato Ntelane,`Makopano Rantšo, and evidence of  Mosehle Tsapane (PW32) and Gilbert Moabi (PW33). I turn to give a summary of evidence against the accused. Even though A1 did not confess or point out I will nonetheless deal with evidence against and by him because he testified to provide a context of the supposed hostility of the investigators in this case towards the accused. The thrust of his and accused’s evidence is that the investigators were bent on using torture to extract self-incrimination evidence from them. 

 

 Evidence against Rapele Mphaki (A1)  

[4] PW24 testified that at the time of the arrest of all the accused he was working in the Criminal Investigation Unit of the Lesotho Mounted Police Service at Teyateyaneng, when he got a report of the kidnapping of one of the deceased, Lekhoele Noko.  The report was made by his mother `Malerato Noko. She reported that the incident took place at Lekokoaneng.  PW24 told the court that he was part of the team of investigators which investigated this kidnapping and the disappearance of two other men who are all deceased. Their investigations pointed to the members of the Lesotho Defence Force as being prime suspects. A1 was the first one to be interviewed by his team after being brought following the arrangements between the witness’ superiors and another team of investigators which was investigating a different matter before whom this accused was appearing.  All other accused were brought in by Military Police with prior arrangements with the senior command of the Police. 

 

[5] A1 arrived at the offices of the investigators on 20 September 2017.  When he arrived at the offices of the team investigating the current case, a senior police officer in charge of that team, one Inspector Lebajoa, introduced the accused to his team and vice versa.  PW24 testified that the introductions were followed by Inspector Lebajoa designating a lead interviewer in respect of a particular suspect.  The lead interviewer would start off by advising the suspect of his right to remain silent as his answers could be recorded and later used in a court as evidence against him, and his right to legal representative of his own choice and where he could not afford one, on request, the Government would provide one paid for by itself.  PW24 interviewed A1 in the presence of other investigators.  

 

[6] After being advised of the rights to remain silent and to legal representation A1 “chose to explain himself without the presence of a lawyer.”  He was not assaulted nor threatened. A1 was cooperative. His interview took about one and half hours to two hours. He was confronted about the deaths of the three men as per information which emanated from different sources. After giving his explanations, PW24 asked him whether he would like to repeat the statement before the magistrate.  He refused to do so.  He was further asked whether he would like to point out certain places to the police, his “response was that he could not help us because he did not know.”  He was then charged with the murder of the three men and locked up in a cell alone as he did not want other military officers to know that he got arrested first because they would think that he was the one who caused them to be arrested.  In the morning of the 21 September 2017 A1’s wife arrived and brought him food and she was given an opportunity to talk to him for ten to fifteen minutes about three to four metres away from the investigators.  In his detention form A1 wrote that “I am still in good health.”  

 

[7] Evidence against Lekhooa Moepi (A3), Mahlehle Moeletsi (A4) Mahlomola Makhoali (A5) and Nthathakane Motanyane (A6).  

These accused arrived in a manner I mentioned above. A3 and A4 were brought together before the investigators on 21 September 2017 while A5 and A6 were brought in on the 22 September 2017. Because A3 was wearing a military garb when he was brought in, the investigators requested the military police had to take him back home to change into private clothes. They obliged and returned him to the investigators where they left him.  It was six o’clock in the evening when A3 and A4 were brought in.  Inspector Nkeane led the interview of A3.  Before the interview could begin, he advised him of his right to remain silent and that whatever he said will be written down and used as evidence against him.  He was further advised of his right to legal representation of his choice and that if the is unable to secure one, on request, a state-sponsored lawyer would be provided to him.  A3 told Inspector Nkeane that he “doesn’t have a problem, he will talk”.  Inspector Nkeane (PW26) confronted him about the information from Senior Inspector Khatleli and P/C Nkhahle and information from ‘Malerato Noko and the Facebook post which talked about kidnapping at Lekokoaneng and the information they gathered from the interview of A1.  At the end of his explanation PW26 reminded him of his right of seeking a lawyer of his choice.  A3 voluntarily gave his explanation and was charged with murder of the three men and arrested him.  He did not remind him of his right to remain silent for the second time, he only advised him of his right to lawyer. A3 smiled and laughed during the interview. After being charged, he was ordered to sit on the bench in the corridor outside the interview room. 

 

[8] While A3 was being interviewed A4 remained on the bench in the corridor outside the interview room.  A4 was confronted with same information as A3 and A1. PW26 advised him of his rights to remain silent and legal representation before the interview could start. A4 “said there is no problem he will explain.  He continued to explain.”  At the end of the explanation, he was charged with the murder of the three men and was arrested.  No assaults or threats were made against both accused.  They were asked whether they would like to make the statements before the magistrates and to make pointing outs.  They both agreed to make confessions and to do pointing outs.  They were not handcuffed or shackled as they were cooperative. 

 

[9] On 22 September A3 was taken out of the holding cells to the interview room where he was asked again whether he still had no problem confessing before the magistrate.  Inspector Nkeane (PW26) took A3 to Magistrate Court for making a confession. They went on foot due to lack of transportation.  A3 was not threatened or influenced. He was not shackled or handcuffed.  He made a confession before Magistrate Kao.  But before they could leave for the magistrate court PW26 reminded A3 of his rights to legal representation and to remain silent.  After making the confession both PW26 and A3 returned to the police Headquarters.  They “were talking and even laughing.” 

 

[10] Around ten o’clock in the morning when A3 returned from the Magistrate Court A5 and A6 were brought to the police Headquarters by the Military Police. Inspector Lebajoa made introductions in the manner already stated and ordered PW24 to lead their interviews.  PW24 testified that he started off with A5 and told him the purpose of his being there and advised him of the right to remain silent and to legal representation after which he replied “…there is no problem we can proceed.”  After A5 had given his explanation, he charged him with the murder of the three men and ordered him to go and sit on the bench outside the interview room.  He then called A6 in. 

 

[11] He advised A6 of his right to remain silent and to legal representation to which A6 said “he understood, and he can continue.”  After his explanations he was asked whether he would like to make the statement before the magistrate, but he refused.  He nevertheless agreed to point out the scene of crime.  He was not threatened or promised anything nor was he assaulted.  In the detention form A6 said he was “in good health.” 

 

[12] Pointing outs by A3, A4, A5 and A6 

PW24 told the court that before A3, A4, A5 and A6 could be taken for pointing out they were again advised of their right to remain silent and to legal representatives.  They all agreed to go and point out the scenes of crime.  The party left Police Headquarters in three vehicles.  Members of the Special Operations Unit (SOU) were in a taxi to provide security.  Two Nissan Hardbody double cab vans carried the investigators and the accused.  The four accused were paired with shackles and handcuffs.  The front vehicle was driven by PW26 and was in the company of Inspector Seutloali, Sergeant Mohoang, Sergeant Thamae and Inspector Nthejane.  The middle vehicle was driven by Inspector Tshabalala who was accompanied by PW24, and Inspector Lebajoa.  The four paired accused were seated in the bin of the middle van vehicle facing its tailgate.  A4 would knock on the rear window of the vehicle to show the police which direction to take.  They first stopped at Setibing where the accused pointed out the scene of crime, after which they proceeded in the same Thaba -Tseka direction until they got to Thaba -Putsoa where accused directed the party to leave the tarred road and off ramp into a gravel road to the left.  They drove until they reached nearer one village where the investigators disembarked to look for the village chief to provide an independent observation of the pointing outs.  They found two villagers, Mr Mosehle Tsapane (PW32) and Mr Thabo Sello.  PW24 brought the two villagers to the four accused.  Before the villagers could talk to the accused, he advised them of their legal right to remain silence.  He asked the accused whether they were willing to tell PW32 and Mr Sello the purpose of their presence in that area of Ha-Mohale.  The accused said “yes.”  PW24 asked the A4 for direction and he showed them the direction to take to Mohale Dam. 

 

[13] When the vehicles approached their destination A4 knocked on the rear window in the same manner to signal that the vehicles should to come to a halt.  After the vehicles had stopped A4 said “this is the place sirs.”  Everyone disembarked excluding the four accused.  On the bridge at Mohale Dam A4 pointed at the area between the first and the third pillar of the bridge, and said, “we threw them between the first and the third pillar near the bridge.”  The other three suspects confirmed A4’s pointing outs.  After the pointing out, the place was marked, and the accused were returned to the Police Headquarters. 

 

 

  [14] Evidence against Motšoane Machai (A7) and Liphapang Sefako (A8)  

On 24 September A8 and A7 were brought to the investigators in the same manner as the other accused.  PW26 led the interviews. They were interviewed individually. Before interviewing the accused he informed them of the purpose of their presence there and advised them of their legal rights to remain silent and to legal representation.  A8 was the first to be interviewed.  He chose to proffer explanation after which he was charged with murder of the three men and was ordered to sit on the bench outside the interrogation room.  A7 was called into the interview room and the same procedure of explaining his rights was followed.  Both accused arrived between nine and ten o’clock in the morning.  When A8 was asked whether he would like to make a statement before magistrate and to point out, he said “yes.”  PW26 wrote down A7’s statement.  PW24 did not recall why the statement was taken. Both accused were neither assaulted, threatened or promised anything in return for making confessions and pointing outs. 

 

[15] On 25 September A1, A3, A4, A5 and A6 were taken to Maseru Magistrate Court for remand and for A4 to make a confession before the magistrate.  A4 was not assaulted, threatened or promised anything in return for making a confession.  After making the confessions all the five accused were read charges and taken to prison to await trial. 

 

[16] Evidence against Nemase Faso (A9) 

Before A7 and A8 could be taken to Magistrate Court A9 had in the meantime been brought before the investigators.  PW24 was the lead interviewer, and because he was a suspect, he was read his rights to remain silent and to legal representation.  One of the investigators, Sergeant Thamae and A9 came from the same village.  After he gave his explanation regarding the murder of the three men, he was charged with their murder and was arrested.  He was not threatened, assaulted or promised anything. 

 

[17] Pointing out by A7, A8 and A9 

As there was time after the interrogation of A9, the investigators decided to take the three accused for printing out.  One by one, in the absence of the other, after being read their right to silence and to legal representation they were asked whether they would like to do pointing outs.  They each said “yes.”  The party then left for pointing out.  Member of SOU used a Toyota Quantum and Isuzu which was for divers.  The vehicle left in the same formation as in the first trip, with a van in front and in the middle another van which carried the accused in the bin and behind the Quantum.  The three accused gave directions.  They used their heads to point directions. All the accused pointed a scene of crime at Setibing and directed the investigators to take the Thaba Tseka direction. At Thaba Putsoa they directed the police to take a gravel road to the left. 

 

[18] At the village near the destination, the investigators looked for the chief and they found him.  He is Chief Gilbert Moabi (PW33).  PW33 asked the accused some questions and they admitted to killing the three men and even gave the reason for doing so.  The answers were provided by A8, while A7 and A9 confirmed.  On the bridge the accused walked ahead of the party.  PW24 reminded them of their right to silence and to legal representation.  They all pointed at the place at the bridge which was already marked.  A7, A8 and A9 made confessions before the magistrates. 

 

[19] Evidence against Tieho Tikiso (A10) 

He was brought before the investigators in a similar fashion.  Inspector Seutloali led his interview, but before he could do so, he advised him of his legal rights to remain silent and to legal representation.  He was charged with the murder of the three men after his explanation.  He was asked whether he would like to take the police to the scene of crime and whether he would like to confess before the magistrate, to which “I think he said he is prepared to repeat the statement and to take us to the scene.”  To his recollection A10 made a statement to the magistrate and took them to the scene of crime.   

 

[20] Cross-Examination of PW24, on behalf of A1, A4 and A8  

It was suggested to the witness that he was part of the investigating team notorious for torturing suspects while in detention.  PW24 denied this allegation.  It was suggested to him that their methods included suffocating the suspects by staffing a clothe into their mouths or by throttling them with a clothe to the point where they could not speak.  PW24 denied these allegations.  It was put to the witness that A1 even though he did not confess or point out, he was tortured and insulted.  He was tortured in the following manner: The investigators took a big stick from the locker and a plastic bag.  They tied him with wire on his wrists while insulting him.  He was insulted by Superintendent Mokete.  He was ordered to sit on the on the plastic bag which was laid out on the carpet.  He was fastened in a way that his knees touched his chin.  His knees were close to his chin.  He had been stripped naked. Cold water was poured over his head with a big bucket.  When he denied knowledge of the death of the three men the wire on his wrists was tightened, this was while he was squatting on the plastic bag.  The witness denied these allegations as untruths, and responded, “If it’s true, I am trying to imagine the mess that would have been in that office.”  PW24 was told that he did not inform the witness about his right to silence and to legal representation.  He replied that he did. 

 

[21] Regarding A4, it was put to PW24 that his version is that his confession and pointing were not done freely and voluntarily as he was tortured:  he was forced to kneel down when answering questions; his head was covered in a plastic and suffocated and was ordered to implicate A1 because the army authorities did not want the latter to succeed the late Lt General Motšo-motšo;  That he as interrogated during the night; He collapsed during the interrogation.  PW24 denied these suggestions, and he further denied that A4 was never advised about his legal rights to remain silent and to legal representation. 

 

[22] It was put to PW24 that when A4, A6, and A5 went for pointing out the police seemed to know already where they were going.  PW24 replied that it was his first time going to Mohale Dam.  He was told that at Setibing the vehicles stopped, and after Inspector Lebajoa had spoken on the phone a fourth vehicle arrived carrying equipment and joined the convoy.  PW24 denied that there was ever a fourth vehicle.  At the bridge the police took the accused in pairs to a certain spot on a bridge without guidance of the accused.  PW24 rejected these allegations. 

 

[23] Another suggestion was made for A4 that the statement he made before the magistrate was rehearsed and that he was ordered by Inspector Lebajoa to make it.  The witness denied this suggestion and another suggestion that he was denied a request by Inspector Lebajoa to call his lawyer before he could make a confession before the magistrate. 

 

[24] Cross-Examination on behalf of A8  

On behalf of A8 it was put to PW24 that upon arrival at the Police Headquarters he was told by the investigators that he should be cooperative and not end up being tortured like A2.  It was put to the witness that a statement of how the three men met their deaths was read to him and was told he should narrate it to the magistrate, otherwise he would suffer the consequences as he will be taken back to the police Headquarters afterwards;  That he was also suffocated with a plastic bag as he was lying facing downwards as water was being poured over his head.  PW24 denied these allegations.  On the next day he was taken to the magistrate court for confession and was reminded to narrate the story as was recounted to him.  PW24 vehemently denied that this is what happened.  It was put to the witness that before leaving to the magistrate court for confession A8 asked to meet his lawyer, but Inspector Lebajoa refused saying he will meet his lawyer at the trial.  PW24 denied these allegations as well.  On pointing out, it was put to the witness that A8 was taken for pointing out on 26 September 2017 with A7 and A9 and while there they never pointed anything after being dropped on the bridge.  It was further put to the witness that the investigators brought the villagers who asked them why they did such a bad deed, to which they did not respond.  They were returned to Police Headquarters afterwards.  PW24 denied these suggestions. PW24 acknowledged that there was no record of the pointing outs by the accused, nor was there any record of what the accused said to the chief Gilbert Moabi (PW33). 

 

[25] Cross-examination on behalf of A3, A5, A6 and A10  

During cross-examination PW24 was questioned about PW11 (Captain Litsietsi Monyeke) and his treatment by his team, particularly before he made a confession before the magistrate.  The witness seemed not to recall anything apart from the fact that he appeared before his team twice.  He was questioned on whether he kept a diary of whatever he claimed to have done to the accused or by them.  His answer was that it had disappeared without a trace.  It was put to him that his reports, as he made three statements, did not suggest that he ever informed the accused of their rights to remain silent and to legal representation.  PW24 conceded that his report stated that he took the accused to Mohale Dam but did not state that they made pointing outs at Setibing and Mohale Dam. 

 

[26] When questioned about the presence of PW11’s lawyer, PW24 responded that he did not know if he was accompanied by his lawyer when he came for interviews.  The witness, however, did not dispute PW11’s evidence that his lawyer was expelled by Inspector Lebajoa. 

 

[27] Cross-examination on behalf of A10 

It was put to PW24 that A10 would say he was tortured and forced to make a statement before the magistrate.  The witness denied that A10 was tortured.  The method of torture was that he would lye facing downwards, and a plastic bag would cover his head and face, and some investigators would stand on his back.  He was told he would be taken before magistrate to make a statement and will go to Ha Mohale.  PW24 denied these allegations. The witness denied that A10 was blocked from calling his lawyer.  The witness was told that at Ha-Mohale Sergeant Thamae drove off after he was taken to the bridge and did not point out anything.  The witness told the court that Sergeant Thamae does not know how to drive a car, and he rejected this allegation. It was also put to the witness that A10 agreed to make a statement before a magistrate in exchange for being turned into a witness. PW24 denied this assertion. 

 

[28] Cross-examination on behalf of A5 

PW24 was told that A5 was not informed about his legal rights to representation and to remain silent when he appeared before the investigators.  The witness denied this and told the court that Inspector Nkeane did inform him about these rights even before he made pointing out. 

 

[29] Cross-examination on behalf of A6 

It was put to the witness that when A6 arrived the police were sympathetic to him, but after the accused had rejected the offer to become the witness he was insulted by the investigators.  PW24 denied this suggestion.  It was put to the witness that at Ha-Mohale A6 did not point out anything, an assertion which the witness denied. 

 

[30] Cross-examination on behalf of A3 

It was put to the witness that after A3 denied any knowledge of the murders of the three men he was shackled and handcuffed behind his back and was made to squat and his head and face covered with plastic bag to suffocate him and that a crowbar was used to hang or truss him up between the two tables.  The witness denied these deeds perpetrated on the accused.  He also denied that A3 was not informed of his legal rights to remain silent and to legal representation.  It was put to the witness that A3 never pointed out any place on the way to Ha-Mohale and at Mohale Dam.  PW24 told the court that A3 was the one who gave directions to Mohale Dam. He further denied that the statement which A3 told the magistrate was rehearsed and was done under the orders of the investigators. 

 

[31] Cross-examination on behalf of A7 and A9  

On behalf of A7 it was put to PW24 that the atmosphere in the interrogation room was intimidating as he was not allowed to call his lawyer.  A7’s wife even brought a lawyer but was turned away.  PW24 denied this assertion.  It was put to him that following his arrest he applied for bail, and Inspector Lebajoa deposed to an affidavit opposing it, and in it, the latter avers that A7’s lawyer was present at the police headquarters.  PW24 was then referred to paragraph 9 of the said affidavit, and he acknowledged that that is what Inspector said. He conceded that evidence of the investigators is contradictory on the issue of the presence of A7’s lawyer at the Police Headquarters. 

 

[32] With regard to A9, it was put to the witness that on arrival at the Police Headquarters and before his interview, he was not informed about his right to remain silent and to legal representation.  PW24 denied the assertion and further stated that because A9 and Sergeant Thamae were known to each other they had a private conversation.  It was put to the witness that A9 was persuaded by Sergeant Thamae to make a statement before the magistrate in exchange for being turned into a state witness and that a lawyer was not needed at that stage.  The witness said he did not know the content of their discussion.  It was put to the witness that A7 and A9 never pointed out anything during the journey to Ha-Mohale and at Mohale Dam. PW 24 denied this suggestion.  

 

[33] Evidence of Inspector Nthejane (PW25) 

I deliberately laid out much of PW24’s evidence so that it would not be necessary to repeat the evidence of other police officers except where it is necessary, because to a large extent their evidence is similar, especially as regard informing the accused about their rights to remain silent and to legal representation before they could be interviewed and before pointing out.  PW25 testified that A5 and A6 arrived at police headquarters on the morning of the day on which they were taken for pointing out.  Before they left for Ha-Mohale the accused were informed about their rights to remain silent and to legal representation.  PW25 told the court that on the way to Mohale they stopped at Setibing as the accused wanted to point out the place where the crime was committed.  At the village of Ha-Montši the party searched for the village chief, but could not find him, they could only find the villagers, one Tsapane (PW32) and Sello.  These villagers were allowed to have access to the accused for purposes of asking questions.  Interestingly PW25 did not tell the court whether the investigators advised the accused about their rights to remain silent before Tsapane could have access to them, and even on the bridge, and this is what he said: 

 

“I recall one Tsapane.  We introduced ourselves to the chief and informed him about the purpose of our visit and that they could inquire what brought us there.  The suspects explained what brought us there.  The representatives even asked some questions under guidance of the suspects we left for Ha-Mohale dam.  When you are at the village you are able to see two bridges.  The one on the left is a bit far.  They guided us to the one that connect Ha-Montši and other villages across.  Upon arrival at the bridge we alighted and we walked on foot to the bridge with the guidance of the suspects.  While on the middle of the bridge the suspects talked and agreed that that was the correct place.  We were very close to the third pillar.  The bridge is sitting on the pillars, they are in the dam.  They agreed that the three men were thrown into the dam at that place.  They were telling the chief’s representatives and we heard what they were saying.” 

 

[34] A7, A8 and A9 were also taken to Ha-Mohale for pointing out.  At Setibing these accused stopped the vehicles and pointed at the scene of crime.  At the village of Ha-Montši the police sought village chief, and they found him, Chief Gilbert Moabi (PW33). He was given access to the accused, and at the bridge on the accused’s guidance they pointed where the bodies of the three men were thrown into the dam.  Even in this instance PW25 does not say whether the accused were advised of their rights to remain silent. 

 

[35] A10 was the last accused to arrive and to appear before the investigators.  PW25 told the Court that before they left for pointing out, A10’s was informed about his right to remain silent and to legal representation.  According to PW25, A10 guided the investigators and the chief to the bridge where the bodies were thrown into the Mohale Dam. 

 

[36] Cross-examination 

Under cross-examination PW25 conceded that his report did not contain the details such as that the accused’s rights were read out to them before they were interrogated, went for confessions and before pointing outs. It was further put to him that the accused were tortured. He rejected the suggestion that the accused were tortured. PW25, however, conceded that he made a report three years after the arrest of the accused.  On being questioned by Adv. Molati that none of the ten accused met their lawyers while in detention, PW25 said it is because none of them wanted to consult a lawyer.  He was at pains to concede that his evidence is contrary to that of Inspector Lebajoa who said in the affidavit opposing bail of A7 that he met his lawyer, when that was not true.  PW25 denied that A1 sent Inspector Lebajoa to buy food for him and that they ate together as he feared food poisoning.  PW25 stated  contrary to PW24’s evidence, that  the four suspects were carried in two separate vehicles. 

 

[37] On being cross-examined by Counsel for A3 on what he did to stop the vehicles at Thaba-Putsoa PW25 replied that he did not recall even though he knew that it was A4 who stopped the vehicles. PW25 conceded that the reading of rights to all the accused did not appear in his report.  He however, retorted that it did not mean that they were not read.  PW25, on being cross-examined by counsel for A7 and A9 insisted that the accused’s lawyers were not present at the police headquarters even though Inspector Lebajoa averred, misleadingly, in his affidavit that A7 met his lawyer.  PW25 rather startlingly made an assertion that he did not see any role for accused’s lawyers during interrogations of the suspects except when they consult suspects before they are interviewed.  It was put to him that all the accused never pointed any place at Setibing and Mohale Dam. He denied this suggestion. 

 

[38] Evidence of Inspector Nkeane (PW26) 

Essentially evidence of this witness is the same as that of his fellow investigations on the question of the accused’s rights being read before going for confessions and pointing outs.  When they took A3, A4, A5 and A6 for pointing out he as driving the vehicle in front, and that the 2nd vehicle was carrying all the suspects.  In the front vehicle he was with Sergeant Thamae and Inspector Seutloali.  All the accused were in the second vehicle.  At Setibing the second vehicle flickered lights to him to stop. He stopped and the accused were pointed out the scene of crime.  At Thaba Putsoa he was again flickered lights to stop and when he did PW24 showed them direction they had to take as directed by the accused. The party drove until it got to Mohale Dam. On bridge, in the presence of PW32, the accused pointed out the place where the bodies of the three men were dumped into the dam. 

 

[39] Cross-Examination 

PW26 denied the accused were either tortured or threatened into narrating to the magistrates the stories they were told by the police.  It was put to him that PW25 told the court that A3, A4, A5 and A6 were carried in separate vehicles during a to Ha-Mohale.  His response was that “Nthejane is forgetful.”  He conceded that his report does not mention pointing outs at Setibing or the accused meeting Chief Moabi or his representatives or pointing outs. 

 

[40] Evidence of Inspector Seutloali (PW27) 

I will treat his evidence in the same manner I did with PW25 and PW26.  PW27 told the court that while at Masianokeng on the way to Ha-Mohale the vehicles stopped and A3, A4, A5 and A6 were reminded of their rights to remain silent and to legal representation.  He said this was done at every turn they took from the main road.  He told the court that at Setibing the vehicles stopped as the A3, A4, A5 and A6 wanted to point out a place where crime was carried out.  A4 was doing a lot of talking even though the other accused were given an opportunity to speak.  He told the court that they stopped, as the van in the middle had flickered lights for the vehicle front to stop.  At the bridge accused pointed a place where the bodies of the three men were dumped into the dam.  They did this in the presence of the chief’s representatives.  Even in the second trip to Mohale where A7, A8 and A9 were taken for pointing out, the party stopped at the same points as in the first trip as the accused wanted to point out the scene of crime.  The second time, at Ha-Montši, Chief Tsapane was present when the accused pointed the place where crime was committed.  Even with the last trip involving A10, what happened in other two trips along the way and Mohale Dam happened in terms of showing of directions and making of pointing outs. 

 

[41] Cross-examination  

During cross-examination by Adv. Molati PW27 conceded that A4 made a confession after spending four nights in police detention – following his arrest on 21 September 2017.  The witness conceded that his report does not show that the accused were informed about their rights to remain silent and to legal representation.  He conceded that he was the only witness who told the court that the vehicles stopped at Masianokeng on the way to Ha-Mohale.  He denied that the accused did not point anything or make statements during pointing outs.  He denied the allegation that the accused were tortured.  

 

[42] PW28 Mr Atang Mampa who is the Senior Clerk of Court at the Magistrate Court gave evidence of how the accused are brought for making confessions before magistrates.  Not much came out of it as well as from the evidence of PW29 Magistrate Molapo, PW30 Magistrate Ntelane and PW31 Magistrate Rantšo which dealt with the aspect of how the accused who wished to confess were brought before them.  They all stated that the accused were brought in by the Clerk of court. 

 

 

[43] Evidence of PW32 (Mosehle Tsapane) 

PW32 is one of the villagers the police had requested to accompany them when A3, A4, A5 and A6 went for pointing out at Mohale Dam.  After they were picked up by the police the party went to the bridge where everybody alighted, close to the bridge.  One police officer posed a question to the accused and said, “Captain where did you say you dropped them?” and one of the accused said, “A third pillar sir.”  The accused were walking in front into the bridge and the investigators were following.  At the third pillar towards the fourth pillar, they pointed a spot where they said the bodies were dumped. The spot was marked.  The witness said the suspects were seated in the bin of one van.  

 

[44] Cross-examination 

PW32 was asked whether in their presence as villagers when police introduced them to the accused the latter were read their rights to remain silent.  The witness replied that the police did not advice the accused of their right to remain silent.  He also told the court that as villagers they did not talk to the accused.  The witness refuted the allegations by the investigators that they, together with the accused were given food by the police. 

 

[45] Evidence of PW33 (Gilbert Moabi) 

PW33 is the righthand man of the chief of Ha-Montši village which is located near the Mohale Dam.   He accompanied the police when A7, A8 A9 and A10 went for pointing out at Mohale Dam.  The police asked the three accused (A7, A8, A9) to go and show the chief “where you did your work.”  The three accused seemed to be relaxed even though they were handcuffed.  PW33 said the three accused said they “threw people” between the third and fourth column.  PW33 then asked the accused a question “these people you threw here where did you kill them?  and the accused said they killed them at Setibing. PW33 then asked a further question “How did you kill them; did you shoot them?”  The accused said, “we strangled them a bit.”  Two days later the police came back with another suspect and at the police said to the suspect, “go and show us and the chief where you did the work.”  The police, the PW33 and the accused went on to the bridge where he pointed the same which was pointed by the other accused.  It is common cause this last accused was A10. 

 

[47] During cross-examination PW33 was adamant that the three accused said they strangled the three men.  With this witness the Crown closed its case. 

 

[47] Evidence of Major Litsietsi Monyeke (PW11) 

The evidence of this witness was not led during a trial -within- a trial but it is relevant for present purposes. His evidence was to the effect that when he first appeared before team which investigated the current case, he realised that he might be criminally charged, and as a result, he sought the services of a lawyer.  He approached Advocate Ntabe and the latter agreed to accompany him to Police Headquarters on the second occasion.  When the two of them arrived at Police Headquarters. On arrival Inspector Lebajoa told Advocate Ntabe that he was not needed there.  PW11 was released and was summoned for the third time.  He testified that he did not volunteer to make a confession but was told by the police to go and make a confession before the magistrate.  He told the court that he was not advised of his right to remain silent and that if he made a statement, it would be written down and be used as evidence against him in subsequent criminal proceedings, nor was he informed about his right to legal representation.  I therefore turn to summarise the evidence of the accused because they all chose to testify. 

 

[48] DW1 (Rapele Mphaki) 

The purpose of this witness as I understand it was to show that the investigating in this case had proclivity for torturing suspects in order to extract confessions and pointing outs from them. He detailed out what he said were torture meted out on him by the police investigators for denying any knowledge of the death of the three men.  On top of the insults which were hurled at him, he was tied with wire on his wrists and was ordered to sit on the carpet in such a way that his knees touched his chin.  He was stripped naked on his clothes.  Water was poured over head. He was sitting on plastic which was laid out on a carpet.  A wire was tightened around his wrists.  A stick was used to twist the wire.  This torture lasted for approximately two hours.  He felt severe pain. He even sent Inspector Lebajoa to go and buy him food. He ate the food with him as he feared food poisoning. 

 

[49] Cross-examination 

The witness was told that it is improbable that water would be poured over him in the office.  He insisted that that is what happened.  He asked whether he bore any scars from the twisting of the wire around his wrists. His answer was that he only sustained bruises and not scars.  He acknowledged that despite these torture and bruises in his detention form when he was released to go to magistrate court for remands, he only stated that he was in good health and experienced backpain. 

 

 

[50] DW2 (Mahlehle Moeletsi) 

DW2 told the court that Inspector Lebajoa told him that he was ordered by A1 to kill the three men. The investigators asked him to implicate A1 in these murders.  He was read a prepared statement by Inspector Seutloali about how the three men were murdered.  When he denied any knowledge of how these men were murdered the investigators took out a plastic bag and suffocated him with it.  He said it was a painful experience.  The plastic bag covered his head and face.  He could not breath until he lost consciousness.  On the 24 September 2017, after being arrested on the 21 September, he signed the statement which the police had prepared.  On the 25 September 2017 he was taken to magistrate court for confession.  He was instructed by Inspector Lebajoa to tell the magistrate what the police said happened. In exercising a choice between life and death he narrated to the magistrate what the police had ordered him to.  He asked to meet his lawyer before going for confession, but Inspector Lebajoa refused saying he will only need a lawyer for trial.  Before the magistrate a confession was explained to him by the magistrate.  He made the confession still fearing the police investigators who were present outside the magistrate’s chambers. 

 

[51] Cross-examination 

All the co-accused did not cross examine DW2.  It was put to the witness by the Crown counsel that he already knew about the right legal representation which is why he kept on requesting to meet his lawyer.  The witness conceded.  He was asked whether he requested his wife and daughter to secure him a lawyer when they visited him.  He said he did not ask them to.  He conceded also that despite having been visited by his relatives he did not tell them that he was being tortured. His answer was “[t]here was no need because I would put their lives in danger.”  The witness conceded that when he was released, he did not state in his detention form that he was tortured.  He told the court that he told Magistrate Molapo before making a confession that he was not assaulted because he believed the police “were still in the office.”  It was put to him that Magistrate Molapo explained to him that he had nothing to fear as he was the magistrate.  The witness replied that he was not aware that such a question was ever asked.  He only made a statement to save his life. 

 

[52] DW3 (Pitso Ramoepane) 

This witness evidence is geared towards the same end as that of DW1. He was taken to before a different team of investigators on 12 September 2017.  He was undressed by removing his overcoat and t-shirt.  His upper body was bare.  He was left wearing his boxer shorts after his track pants was lowered.  He was chained and his t-shirt was used as a “cushion” on his hands.  His hands were tied behind his back.  He was sat on the chair.  A rope was used to tie his hands.  His hands were tied behind his back.  A rope was used to tie his hands.  The rope that tied his hands was pulled towards the leg shackles.  The other police officer sat on his back and held a plastic bag which covered his face.  Water was poured over him.  The wire which tied his wrists was causing too much pain.  He struggled to breath.  This torture was repeated until he lost consciousness, to the extent that he soiled himself. 

 

[53] Cross-examination 

All the co-accused did not cross-examine this witness.  Even the prosecution asked no more than five unhelpful questions. But what is clear is that this witness’ evidence related to a different team of investigators. This witnesses’ evidence lacks probative value in relation to the conduct of the investigators in this case and nothing more will be done about it. 

 

[54] DW4 (Liphapang Sefako) 

This witness told the court that he was tortured and was never advised of his rights to remain silent and to legal representation.  On the issue of torture, he told the court that a plastic was placed on the carpet.  He was made to lie on it flat on his stomach.  One police officer sat on his back. A wet plastic bag was used to cover his face.  The witness collapsed and when he regained consciousness the investigators asked if he was still not willing to tell them what happened to the three men.  He was suffocated for the second time.  He lost consciousness again and only woke up next to A7.  Inspector Lebajoa denied him an opportunity to call his lawyer.  He told the court that the confession he made was narrated to him by the police.  The witness denied ever directing the police Ha-Mohale or pointing out any place.  At Mohale Dam, they did not respond to the questions posed by the villagers and PW33.  

 

[55] Cross-examination 

All the co-accused did not cross-examine.  It was put to the witness by the Crown that he chose not to ask his wife when she visited to secure a lawyer for him.  The witness replied that “[t]his is your thinking”.  It was put to him that the magistrate before whom he confessed asked him whether he was aware that he was in the presence of magistrate and that he should not fear anything.  The witness responded that he feared being returned to the police because of the torture he was subjected to, hence he made the statement. 

 

 

[56] DW5 (Mahlomola Makhoali)  

He denied any involvement in the murder of the three men.  Inspector Lebajoa suggested he became a witness in exchange for releasing him from their custody.  He refused.  He was not advised of his rights to remain silent and to legal representation.  This did not happen even when they were taken to Ha-Mohale.  He confirmed that at Thaba-Putsoa and Setibing the vehicles stopped but he did not know why they stopped.  The police did not inform them of their rights at Mohale Dam. It appeared the police had a prior knowledge of where they were going. He was not tortured. He was only insulted. 

 

[57] Cross-examination 

It was suggested by the Crown that his interview was cordial and was informed about his rights to remain silent and to legal representation, hence he chose not to make a confession.  He denied that he was advised of his rights. 

 

[58] DW6 (Lekhooa Moepi) 

His evidence is that he was tortured when he denied involvement in the murder of the three men.  He was tortured despite his pleas that he just had an operation on his stomach.  The police disregarded his plea.  The police shacked and handcuffed him, and the shackles were joined with the cuffs using a rope.  One investigator pulled at the rope which connected he shackles and the handcuffs. His face was covered with a plastic bag which was pulled down to the neck to suffocate him.  He lost consciousness. When he regained consciousness, the investigators took out a crowbar and put it through the point where the handcuff and shackles were joined and lifted him.  The crowbar rested on both sides on the table, and the witness was hanging or trussed up between the tables.  He says the pain was unbearable.  He was ultimately untied and locked up in the cell.  The witness told the court that he was told what to tell the magistrate, and he understood that if he did not do as the police told him they would repeat the torture.  The confession he made was the story the police had ordered him to tell the magistrate.  He denied that he made any pointing out at Ha-Mohale.  He told the court that he was not informed of his rights to remain silent and to legal representation. 

 

[59] Cross-examination  

DW6’s co-accused did not cross-examine him.  During cross-examination by the Crown he conceded that he did not tell the magistrate about his torture.  It was put to the witness that in the detention form he wrote that he was healthy and did not mention being tortured.  DW6’s response was it was because the police knew that they tortured him.  It was put to the witness that before the magistrate he said he was not influenced to make the statement.  DW6 said the magistrate did not ask him the question even though in the pro forma confession document that question was evidently asked. 

 

[60] DW7 (Tieho Tikiso) 

He denied any involvement in the murder of the three men.  He tried to call his lawyer but PW26 took his phone away.  In the evening, he was taken to the interview room.  He was handcuffed behind his back and his feet were also shackled.  He was directed to kneel before the investigators, where afterwards he was suffocated with a plastic bag after his face was covered with it.  The plastic bag would be removed every time he indicated he would do anything the police wanted him to do.  The police wanted him to become state witness.  The witness maintained that he did not make any pointing out either along the way on the journey to Mohale Dam and at Mohale Dam.  The confession he made was just a narration of the facts which the police told him he should make to the magistrate. 

 

[61] Cross-examination  

During cross-examination it was put to him that it was improbable that the police would want to turn him into a state witness if it is true that he denied any involvement in the murders of the three men.  The witness insisted that the police wanted to turn him into a witness.  It was put to him that his rights to remain silent and to legal representation were read out to him.  He was firm in his response that he was not informed about his rights either before being interviewed or, before the pointing outs or before being taken to Magistrate Court for confession.  The Crown put it to him that he fabricated a story that he was driven all the way to Mohale Dam for fun as he said he did not point anything there.  The witness said the events occurred in that manner.  The witness was directed to the questions he was asked by the magistrate such as whether he had been assaulted and had said that he was not assaulted.  DW7 said his answers were motivated by fear of torture by the police because they had said if he did not tell the magistrate what they told him he should remember that he would be returning to their custody. 

 

[62] DW8 (Nthathakane Motanyane) 

He was brought the investigators with one Private Liphoso and DW5.  He denied any involvement in the murder of the three men.  He told the court that the police were sympathetic to him due to his young age, and for this reason, they wanted to turn him into a state witness.  He said he was “scared and confused” and pleaded with them not to hurt him.  When he disagreed with their proposal to become a witness, the investigators’ mood changed.  They insulted him and used derogatory words against him.  In the afternoon of the same day him, A3, A4 and A5 were taken for pointing outs at Mohale Dam.  While at Setibing the vehicles stopped. Inspector Lebajoa was on the phone.  He denied that the accused directed the police where to stop along the way until Mohale Dam.  At the bridge after the police had gone to the village and brought two villagers, it rained.  Police spoke with the two villagers and after they had spoken, the party returned to Maseru without any pointing out being made. 

 

[63] Cross-examination 

Only Adv. Molati put two questions in cross-examination.  The questions were geared at showing that the police did not record anything that was happening on the way to Mohale Dam and at Mohale Dam.  The witness agreed with these assertions.  The Crown then proceeded to cross-examine him.  It was put to the witness that along the way to Ha - Mohale and at Mohale Dam wherever the vehicles stopped it was because the accused had signalled the vehicles to stop.  DW8 was adamant that the vehicles did not stop at their instigation.  It was put to the witness that PW32 would not have a reason to lie that the accused pointed at the third pillar on the bridge.  He denied that he pointed at any spot on the bridge. 

 

[64] DW9 (Motšoane Machai) 

He appeared before the investigators and was questioned about the deaths of the three men.  He said he was scared to appear before this team of investigators as it was known for torturing suspects.  He denied any involvement in their murder.  His request to call his lawyer was rejected by PW24.  When his wife had come to visit him, she asked her to call his lawyer Advocate Mafaesa for him.  The police were not happy about the request for a lawyer to come and see him.  On the following day of the 25 September 2017, he was called out of his holding cell to the interview room and when he passed at the reception area, he saw his lawyer Mr Mafaesa and his wife waiting but was not allowed to meet him. Inspector Seutloali rehearsed with him the story which he said he must tell the magistrate because he would be taken there.  The investigators said he would only need his lawyer during trial.  Him, A8 and A3 were taken to Magistrate Court for confession.  Before the magistrate, he narrated the story which he was ordered to by the police.  On the 26 September 2017 they were taken to Mohale Dam.  He was not informed about his right to remain silent and to legal representation.  At the bridge when the three villagers approached them and asked questions, they did not respond.  The question was why they “did such a bad thing.”  The witness told the court that PW33’s testimony which is to the effect that they pointed to the bridge pillars, is false. 

 

[65] Cross-examination 

All the accused did not cross examine DW9. The Crown cross-examined DW9.  The witness conceded that he was not assaulted by the police, only that they were hostile to him.  He said he confessed because he feared going back to the police.  When questioned that he told magistrate before he confessed that he was not threatened to make the statement, the witness said he did not hear when that question was asked.  He was firm that he did not point any place along the way to Mohale Dam and at Mohale Dam. 

 

 

[66] DW10 (Nemase Faso) 

He told the court that when he appeared before the investigators, he was not informed about his rights to remain silent and to legal representation.  One of the investigators Sergeant Thamae was known to him as they came from the same village.  He denied being involved in the murder of the three men.  He said when he heard the gravity of the information which the police were confronting him with, he asked Sergeant Thamae whether he should secure a lawyer.  The latter said the lawyer was not needed at that stage.  Sergeant Thamae told him to narrate the story the police were telling him before the magistrate and he would not be sent to prison, in exchange.  He told the magistrate that he was making the statement because he expected to be made a state witness.  He was taken to Mohale Dam.  The vehicles did not stop along the way.  They were not advised about their legal rights to remain silent and to legal representation.  At the bridge they did not respond to questions by PW33. 

 

[67] Cross-examination 

Adv. Molati for A1, A4 and A8 cross examined him for purposes of establishing the investigators who visited the witness while in prison.  He said he was visited by PW26 and PW27.  Advocate Letuka for A2 posed one question with regard to which investigators took the witness to Magistrate Court for confession.  The witness said it was PW24, PW26 and PW27.  Other accused did not cross-examine the witness.  The Crown cross-examined the witness.  The witness was quizzed about his expectation to be made an accomplice even though he told the court that he told the police that he knew nothing about the deaths of the three men.  He could only say he expected the court to belief him. 

 

[68] DW11 (Advocate Motebo Ntabe) 

Advocate Ntabe is the practising advocate of the high court.  His client was PW11 (Major Monyeke) in 2017.  He took PW11 to the investigating team with the intention of being with him during interrogation, but he left PW11 there because the investigators were hostile towards him. He had to abandon brief because he was fearful given the political climate at the time.                           

 

[69] Cross-examination 

Advocate Molati posed a question to the witness whether he was aware of the judgment of the Constitutional Court which states that lawyers have a right to be present during interrogation of their clients.  DW11 said he was aware of it.  He conceded that he was not expelled but was rather “excused” by the police investigators.  Mr Letsika also cross-examined and started with the question whether the witness was aware that PW11 made a confession before the magistrate.  The witness said he was not aware.  The witness said it was untrue for PW24 to have told the court that suspect’s lawyer went to the police headquarters.  He was asked why he abandoned brief; his answer was that “I actually fled I couldn’t handle it.”  When asked whether he fled because of the case, DW11 said “Atmosphere around that case was not forthcoming.”  He was asked to explain but the witness said he felt unsafe. 

 

[70] For the Crown, Adv. Rafoneke posed questions to the witness. He asked the witness whether he told the Law Society that he felt intimidated by the police for representing DW11.  His answer was in the negative.  He conceded that he abandoned brief afterwards.  On the issue of hostility of the investigators he was asked whether somebody said something to him.  He witness’s answer was that “we arrived there, and tones charged and with a stern face” he was told to leave immediately. I turn to deal with the legal principles which govern admissibility of confessions and pointing outs in this jurisdiction. 

 

[71] Admissibility of confessions and pointing outs: Legal Principles   

Section 228 (1) and (2) of the Criminal Procedure and Evidence Act No.9 of 1981 (hereinafter ‘the CP&E’) on confessions provides that: 

 

“(1) Any confession of the commission of any offence shall, if such confession is proved by competent evidence to have been made by any accused of such offence (whether before or after his apprehension and whether on a judicial examination or after commitment and whether reduced into writing or not), be admissible in evidence against such person provided the confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto. 

 

(2) If a confession is shown to have been made to a policeman, it shall not be admissible in evidence under this section unless it is confirmed and reduced to writing in the presence of a magistrate.” 

 

[72] Section 229 of the same Act, on pointing outs provides that: 

 

“(1) Evidence of any fact otherwise admissible in evidence may be admitted notwithstanding –  

 

1. that such fact has been discovered and come to the knowledge of the witness who gives evidence respecting it only in consequence of information gives evidence respecting it only in consequence of information given by the person under trial in any confession or otherwise which by law is not admissible in evidence against him on such trial and  

 

2. that such fact has been discovered and came to knowledge of the witness against the wish or will of the accused. 

 

(2) Evidence may be admitted that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against him on such trial.” 

 

[73] Section 229(2) was interpreted in the case of Mabope and Others v R (C of A (CRI) 5 OF 1986) [1991] LSCA 82 (26 July 1991) at p.26 by following the authority of S v Sheehama 1991 (2) SA 86 (A) where the court was interpreting a similar South African provision.  The court therein stated that: 

 

“The section, on a correct interpretation the thereof, provides that evidence of a pointing out which is otherwise admissible shall not be inadmissible merely by virtue of the fact that that it forms part of an inadmissible confession or statement.  Put differently when evidence of a pointing out is inadmissible it will not be admissible simply because it forms part of an inadmissible confession or statement.” 

 

[74] Importantly, the court in Mabope and others v R, at p.27 stated that S. 229(2) has as its focus the validation of pointing out and not proof of an otherwise inadmissible confession or admission.  Put differently S. 229(2) is not a vehicle through which an inadmissible confession can be brought before court under the guise that it was made during a pointing out. 

 

[75] It is trite that the Crown bears the onus of proving, whether it be a confession or pointing out, that they were made freely and voluntarily by the accused in their sound and sober senses, and in the absence of any undue influence. This onus must be discharged beyond a reasonable doubt (Gcam-Gcam v S 2015(2) SACR 501 (SCA) (25 March 2015) at para. 39).  All that is required of the accused is to put up a version that is reasonably possibly true even if in certain respects it is found to be demonstrably false (Gcam-Gcam v S ibid at para. 48). In S v V 2000 (1) SACR 453 (A) para.3 the court stated that: 

 

“[I]t is trite that there is no obligation upon an accused person, where the State bears the onus ‘to convince the court’. If his version is reasonably possibly true, he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused’s version is reasonably possibly true but whether one subjectively believes him is not the test. As pointed out in many judgments of this Court and other courts the test is whether there is a reasonable possibility that the accused’s evidence may be true.” 

 

[76] Evaluation evidence: Legal approach 

I do not intend to deal with the accused in the order in which they appear in the indictment as issues in relation to some of them can quickly be disposed of while others may require a detailed scrutiny.  There are a number of facets to this case, namely, the validity of confessions made before various magistrates; whether some of the accused were tortured into making confessions; whether the police advised the accused about their legal right to remain silent and their right to secure legal representation before they could be interviewed, before they could be taken to magistrates and before they supposedly made pointing outs at Setibing and Mohale Dam, and what the consequences should be where the Judges’ Rules were not followed; whether they showed police directions leading to Mohale Dam and whether they made any pointing outs at Setibing and at Mohale Dam.  It is not in dispute that all the accused who made confessions before various magistrates intimated that they were making those statements freely and voluntarily without any influence or due to assaults.  It is also common the investigators’ version is that the accused were advised of their legal rights to representation and to remain silent either before they were interviewed or before being taken for making confessions or pointing outs. The accused dispute this version.  It is evident, therefore, that the versions of the police investigators and those of the accused are mutually destructive. 

 

[77] On the issue of evaluation of evidence the approach which is espoused in Moshephi and Others v R LAC (1980-1984) 57 at 59 F – H will be followed: 

 

“The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt.  The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it.  But, in doing so, one must guard against a tendency to focus too intently upon separate and individual part of what is, after all, a mosaic of proof.  Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation.  Those doubts may be set at rest when it is evaluated again together with all the other available evidence.  That is not to say that a broad and indulgent approach is appropriate when evaluating evidence.  Far from it.  There is no substitute for a detailed and critical examination of each and every component in a body of evidence.  But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole.  If that is not done, one may fail to see the wood for the trees.” 

 

[78] On the issue of mutually destructive versions the approach was laid out in S v Janse Van Rensburg and Another [2008] ZAWCHC 40: 2009 (2) SACR 216 (C) at para.8 thus: 

 

“Logic dictates that, where there are two conflicting versions or two mutually destructive stories, both cannot be true.  Only one can be true.  Consequently, the other must be false.  However, the dictates of logic do not displace the standard of proof required either in a civil or criminal matter.  In order to determine the objective truth of the one version and the falsity of the other, it is important to consider not only the credibility of the witness, but also the reliability of such witnesses.  Evidence that is reliable should be weighed against the evidence that is found to be false and, in the process, measured against the probabilities.  In the final analysis the court must determine whether the State has mustered the requisite threshold – in this case proof beyond reasonable doubt.” 

 

  Evaluation and discussion 

Were Mphaki (A1), Moeletsi (A4), Sefako (A8) and Tikiso (A10) tortured or assaulted?     

[79] In S v Mkwanazi 1966 (1) SA 736 (AD) at p. 747, the court cautioned against rejecting confessions on any basis other than evidence.  It has widely been recognised that accused persons who are facing capital offences often fabricate charges of violence by the police against them with the sole purpose of avoiding the effects of their free and voluntary statements.  Despite this obvious motive and tendency of the accused, the court is still enjoined to examine evidence to determine whether the Crown has discharged its onus beyond a reasonable doubt that the accused made the statement freely and voluntarily his sound and sober and without being unduly influenced (R v Nhleko 1960 (4) SA 712 (AD) at 720 D-E). 

 

[80] The purpose of requiring the accused to make confessions before the magistrates is to guard against the police forcing them to make involuntary confessions induced by duress or promises.  (S v Khan 1997 (2) SA 611 (SCA): 

 

“The very object of bringing an accused person before a magistrate is to safeguard him against duress or undue influence in making a statement which may be used as evidence against him.  As Innes CJ pointed out in Barlin’s Case at p. 465, even authority and ascendancy of a policeman – his ius reverentiale – may conceivably affect the exercise of free will unduly in certain circumstances.” 

 

[81] Rapele Mphaki 

His version is that Judge’s rules were not observed in relation to him, but the version of the Crown is that after he was advised of his legal rights to remain silence and legal representation, he opted in favour of exercising his right to remain silent, and the police left him alone.  The His version is that he did not confess because he denied any knowledge of the murders of the three men. I have no reason to reject this version as not being reasonably possibly true. 

All the allegations of assaults and torture made by the accused against the investigators are palpably false.  All the accused have nothing to show for these allegations except their mere ipse dexit. In my judgment credibility of the investigators cannot be called into question regarding the issue of the torture of all the accused. I begin with A1. His allegations against the police are quite sensational and fantastic. He was neither threatened nor intimidated into doing anything.  He testified that he even sent Inspector Lebajoa to buy him some food and that they even ate together because he feared food poisoning. He alleges that he was tortured physically and by means of water being poured over him in the interrogation room. Taken on the face value this version would not tally with the picture he is painting of the police treating him with brutality. It is hard to fathom how a tormentor and a victim would exchange roles so freely: in one hand the police subject him to horrific torture and in the same breadth he sends their most senior officer to go and buy him food and even ate with him. This story is so improbable and false beyond a reasonable doubt.  

 

[82] As regards torture, which was allegedly perpetrated on him, he alleges that he was severely tortured with a wire which was twisted with a stick around his wrists.  Being handcuffed with a wire must have been extremely painful and should surely have left visible marks or bruises around the wrist.  His wife religiously visited him while in detention, but he did not share this supposed ordeal with her.  In the detention forms he did not write down that he was assaulted and was in serious pain. All the accused were visited by their relatives regularly who could have spotted anything untoward with them and would have alerted their military chiefs that something bad is happening to them. I do not think that the police would have been so foolish to torture the accused and still expect cooperation of the military to bring other suspects before them. They would have been foolish to have acted in this manner. I therefore have no hesitation in rejecting version as being false beyond a reasonable doubt.  In my view the Crown has succeeded in proving beyond a reasonable doubt that A1 was not assaulted while in detention. I deliberately omit dealing with the testimony of A2 because it has no probative value in view of the fact that he makes allegations of torture against a different team of investigators as I said. 

 

 [83] Lekhooa Moepi 

This accused as already stated alleges that he was tortured with a plastic bag.  He was suffocated with it while being forced to implicate himself.  He was handcuffed, trussed up and hung between the tables on a crowbar, and was suffocated with a plastic bag until he lost consciousness.  Legitimate cross-examination from the Crown Counsel made him to concede that he did not tell the magistrate that he had been tortured, and that even in the detention form he wrote that he was healthy and did not mention that he had been tortured.  He also told the magistrate that he was not influenced in any way to make the statement.  He told the court that he was told what to tell the magistrate when making a statement.  He denied having been asked by the magistrate whether he was influenced to make the statement.  His denial is despite the fact that the pro forma confession document shows that indeed he was asked the question, and his answer was in the negative.  It is common cause that despite A3 being allegedly put through an ordeal he suggests he was put through he did not have visible marks on the wrists.  A person cannot be trussed up hung of the rod and not have visible marks or bruises.  The fact that he did not tell anyone including his relatives when they visited him nor the magistrate before whom he made a statement makes his version inherently improbable that he was tortured. As I have already said in relation to A1, I do not think that the police would have been so foolish to torture the accused and still expect cooperation of the military to bring other suspects before them because at the time the investigators were expecting more suspects to be brought in. They would have been foolish to have acted in this manner especially when the relatives of the accused were allowed to visit them.  In my view Moepi’s version is false beyond a reasonable doubt. It is not reasonably possibly true. It is accordingly rejected. 

 

[84] Mahlehle Moeletsi 

This accused’s version is that he was suffocated with a plastic bag until he lost consciousness.  He asked Inspector Lebajoa to allow him to meet his lawyer, but the latter refused saying he will only be needed during trial.  He told the court that he confessed before the magistrate under the impression that the investigators who had taken him there were still in chambers, and so the story goes on, he told the magistrate what the police ordered him to narrate. 

 

[85] A4 conceded under cross-examination that he did not tell his visitors that he had been tortured.  This he also did not tell the magistrate before whom he made a statement.  The suggestion that when he made the statement, he did so under the impression that the investigators who took him to the magistrate’s court were present in the room is implausible.  It is not borne out by the answer he gave to the magistrate when asked whether he was aware that he was in the presence of the magistrate and that he should not fear anything.  He responded positively to this question.  He specifically told the magistrate further that he was not assaulted.  The same views I expressed with regard to A1 and A3 are applicable with equal force regarding this accused. In the absence of objective facts showing that A4 was tortured while in detention I find that his version is false and not reasonably possibly true. 

 

[86] Liphapang Sefako 

This accused alleges that he was tortured by being suffocated with a plastic bag while water was poured over his head.  He lost consciousness as a result.  The following day he was taken to magistrate court to make a statement after being told that he should tell the magistrate what Inspect Lebajoa he told him to narrate, as failure to do so would have bad consequences as he would be returned to the police afterwards.  He told the court that Inspector Lebajoa refused his request to call his lawyer before being taken to the magistrate court for making a confession.    

 

[87] During cross-examination he conceded that he did not ask his wife to secure a lawyer for him.  But this must be seen in the light of the fact that the witness alleged that Inspector Lebajoa refused to allow him to call his lawyer saying he will only be needed during trial, and this has not been contradicted because Inspector Lebajoa was not called to testify.  It is probable that he did not ask his wife to secure a lawyer because Inspector Lebajoa had refused earlier when he asked to call his lawyer, and this assertion was put to Crown witnesses repeatedly.  The Crown was fully aware that this is A8’s version of events but chose not to subpoena Inspector Lebajoa to come and refute these claims. 

 

[88] On the issue of torture in the similar manner the accused did not tell the magistrate that he was assaulted, nor did he tell his wife when she visited him.  The argument that he was assaulted does not tally with what he told the magistrate, and what he wrote in his detention form as he only wrote that he takes medication at 20hrs00.  Based on the objective facts the issue of torture is just a mere fabrication and is rejected. It is not reasonably possibly true. The Crown has proved beyond a reasonable doubt that he was not tortured. 

 

[89] Tieho Tikiso 

This accused’s version is that he was suffocated with a plastic bag while being handcuffed and shackled to force him to admit complicity in the murders of the three men.  The confession he made was a narration of what the police told him he should tell the magistrate.  Again, this witness he did not tell anyone that he was tortured, not even his relative who visited him while in detention.  He told the magistrate before whom he made the confession that he was not assaulted, threatened or influenced by anyone to make a statement.  In his detention form he did not write that he was assaulted.  In my view if all these had happened surely, he would have found it easier and opportune to tell any of these individuals that he had been tortured.   

 

[90] He alleges that he was tortured into making a statement before the magistrate so that the police would turn him into a state witness. I find this to be inherently improbable: the police would not force a person who is distancing himself from committing a crime to make a confession so that he would be turned into a witness.  Logic would dictate that they would only ask a person who admits committing a crime to be a witness.  He says he was denied an opportunity to call his lawyer, but then when his brother visits him, he does not instruct him to call his lawyer for him, if his version were to be believed.  I do not belief that he was denied a chance to consult his lawyer. I also find it improbable that the police would persuade him even while in prison to become a witness if they had brutalised him while in their custody and was denying any involvement in the murders of the three men.  The allegations of torture against are clearly false beyond a reasonable doubt as already ruled. Without any objective evidence being placed before the court I find that his version is false beyond a reasonable doubt.  It is not reasonably possibly true, and it is accordingly rejected. 

 

          Whether evidence of confessions and pointing outs against Machai and Faso should be admitted. 

[91] Mots’oane Machai (A7) 

All the investigators who testified before this court told the court that the accused were advised of their legal rights to remain silent and to legal representation before being interrogated, being taken for confession and before pointing out at Setibing and Mohale Dam.  PW25 Inspector Nthejane’s revelation during cross-examination put beyond doubt the attitude of the investigators with regard to observing Judges’ Rules and it will be observed that this attitude was quite pervasive and not peculiar to him.  When he was cross-examined by Advocate Mafaesa for A7 and A9 he denied the accused’s version that they were not advised of their legal rights to remain silent and to legal representation.  His response was that the investigators and lawyers must give each other a “space” to operate. His view is that lawyers will only be needed in court during trial.  He was steadfast that lawyers should not be present during the interrogation of the suspects as their role is restricted to handing over the suspects to them.  Him, PW24 and PW26 denied that A7’s lawyer was denied access to him by Inspector Lebajoa even though he was present at the Police Headquarters.   

 

[92] The investigators in this case exhibited a clear pattern of being averse to accused consulting their lawyers while in detention and before they could either confess or do pointing outs, and this behaviour was corroborated by the Crown witness Major Monyeke (PW11). His evidence is to the effect that when he reported before the police investigators, he was alone.  He was interviewed without being informed about his rights to remain silent and to legal representation.  After the interviews he formed an opinion that he might be criminally charged, so he sought the services of a lawyer.  He approached Adv. Motebo Ntabe (DW11) who accompanied him to the Police Headquarters on the second occasion he was to appear before the investigators.  Major Monyake told the court that Inspector Lebajoa told Advocate Ntabe that he was not needed and should leave.  This version of one of Crown witnesses corroborates Advocate Ntate’s version that there was a palpable hostility towards him from the investigators to the point where he abandoned the brief. He simply left Captain Monyeke in the lurch to face the investigators alone without his guidance.  Captain Monyeke was taken for confession before the magistrate without having been guided by his legal representative.  He told the court that he was simply told by the police after the interview that he was going to make a confession before the magistrate.  

 

[93]  These investigators were confronted with the affidavit of Inspector Lebajoa which he deposed to when he opposed bail application of A7. In it he averred that his lawyer had access to him.  In fact, Inspector Lebajoa’s evidence rhymes with A7’s evidence that he instructed his wife to call his lawyer for him and that on the 26 September 2017 on his way out of the holding cells to the interrogation room he saw his lawyer Advocate Mafaesa and his wife waiting at the reception but was not allowed access to him.  It should be stated that Inspector Lebajoa, despite being available, was not called as a witness to deal with the issue of Advocate Mafaesa’s denial of access to his client.  In the circumstances it can safely be inferred that the failure by the Crown to call him was borne out of the fear that he might give contradictory or unfavourable evidence (S v Teixera 1980 (3) SA 755 at 764A).  Without his lawyer having advised him A7 went on to make pointing outs and confessions before the magistrate.  In the words of Foxcroft J in S v Agnew and Another 1996 (2) SACER 535 (C) at 537J, the investigators stole a march on A7.  It follows from this that the evidence of pointing out and confession with regard to A7 is inadmissible. The state failed to proof beyond a reasonable doubt that they were voluntarily made.  Had the accused had access to his lawyer it is probable that he would not have confessed or made a pointing out as he would have been advised against doing so (See: S v Agnew and Another ibid).  The fact that this accused lawyer was not allowed to have access to him is consistent with the modus operandi of the investigators in this case. They were averse to allowing accused to have access to their lawyers probably so that they could confess and point out without the benefit of their advice. 

 

[94] Nemase Faso (A9) 

A9’s version is that one of the investigators, Sergeant Thamae, was personally known to him as they come from the same village.  Sergeant Thamae persuaded him into making a statement (confession) in exchange of him being made an accomplice witness. He further told the court that Sergeant Thamae told him that lawyers will only be needed during trial.  It is common cause that Sergeant Thamae was in constant contact with A9 and that he two would have private conversations others would not be privy to.  In law Sergeant Thamae, despite being his acquaintance, was a person in authority (Rex v Sekhobe Letsie, LLR (1991-1996) 999 at 1000).  Sergeant Thamae was never called as a witness to refute the allegation that he promised A9 to be turned into a state witness in exchange for making a confession before a magistrate and that he told him that lawyers would only be needed for trial.  Sergeant Thamae is available but was not called as a witness, and so A9’s version stands unchallenged.  To my mind, this promise constituted the undue influence on the mind of A9 when he made the confession before the magistrate. That this influenced his decision to make a confession is evidenced by his answer to the magistrate’s question. The magistrate asked him what benefit he expected to get for making a statement.  His answer was that he expects to be made a witness.  It is common cause that A9 was not turned into a state witness.  In my judgment A9 did not exercise a free will when making a confession, and therefore his confession is inadmissible.  (See S v Mpetha and others (2) 1983 (1) SA 576 (C) at 585). 

 

Whether confessions and pointing outs by Moepi, Moeletsi, Machai, Motanyane, Sefako and Tikiso should be admitted. 

 

[95] Confessions and pointing outs of Moeletsi and Sefako 

Having ruled that the above accused were not tortured while in detention I turn to consider whether the confessions they made are assailable.  I firstly to deal with Moeletsi and Sefako’s confessions.  They both allege as already seen, that they requested Inspector Lebajoa to allow them to call their lawyers, but the latter refused saying a lawyer would only be needed during trial.  These versions were put to various Crown witnesses, but Inspector Lebajoa was not called as a witness. Inspector Lebajoa is available, and one wonders why he was not called to refute these allegations. It is not enough that his subordinates sought to reject these allegations, he should have testified to deal with them as they were made specifically against him.  In the absence of his gainsaying evidence I find that this allegation remains unchallenged.  The question then is what should be the fate of these accused’s confessions and pointing outs in the light of this?  In my judgment it is doubtful whether the accused would have confessed or made pointing outs had they been allowed to consult their lawyers before being interrogated by the police.  It is reasonably possible that their lawyers would have advised them not to confess or to make pointing outs.  In the premise, the Crown has failed to discharge its onus that the confessions and pointing outs were made without undue influence.  The attitude of the investigators against the accused having access to their lawyers is well documented in this case.  What compounds matters for the Crown is that there are no police investigation notes which would have shone light on what happened when the accused were before them. I therefore rule that confessions and pointing outs of Moeletsi and Sefako should be rejected. 

 

Confessions by Moepi, Machai and Tikiso 

[96] Lekhooa Moepi 

I have already ruled that this accused was not tortured as alleged.  But as I understand his Counsel’s submissions, he sought to hide behind the fact that Magistrate Kao who took his confession did not testify, and that for this reason it should be excluded because a foundation was not laid for its admission.  This submission lacks merit, in fact, I find it quite opportunistic.  It was never in issue that this accused made a statement before Magistrate Kao, and that what is stated therein that he made the statement freely and voluntarily is not in dispute.  What I understand to be A3’s contention is that despite the confession being recorded as having been made freely and voluntarily it was never the case given the torture he was subjected to by the investigators.  This is the basis upon which he impugns the statement.  But I have already ruled that he was not tortured.  The fact that the magistrate did not testify cannot be the basis for excluding this statement in the light of the circumstances of this case, because even if he had testified if the circumstances were such that despite the recording that it was made freely and voluntarily, if it is found that it was not in fact made freely and voluntarily, it would be excluded  (R v Faku and Others 1979 (1) LLR 196).  The conduct of the magistrate cannot be faulted for if there was anything questionable about it A3 would have raised it from the beginning.  In the premise I find that the Crown has proved beyond a reasonable doubt the confession was made freely and voluntarily without undue influence. 

 

[97] Tieho Tikiso 

This accused’s allegation that he was tortured has been found to be unfounded.  It will be observed that his story is based on him being tortured and being promised to be made a witness in exchange to making a confession.  This version is internally contradictory:  The police cannot torture a person forcing him to agree to committing murder and in the same breadth seek to enter into some sort of a bargain with a view to making him to confess in exchange for being made witness.  It is highly improbable that this would have happened especially in view of his assertion that he has always denied being involved in these murders.  I would have understood if the police were hostile and brutal to him throughout, but to be persuasive and hostile in the same environment which he alleges is highly improbable.  The conduct of the magistrate is not impugned with regard to this accused, and I conclude that his confession is admissible.  I now turn to deal with the pointing outs by other accused. 

 

[98] Pointing outs at Setibing and showing of directions by the accused. 

The most striking and perhaps the most crucial feature of this case is the lack of record of what happened while the accused appeared before the police investigators and when they made pointing outs (for those who made pointing outs).  All the investigators were asked whether they kept the notes of what they allege the accused said and did.  Strikingly, they all did not have the notes. Note-taking is an important aid in the collation of evidence regarding pointing outs, and for the investigators of such a serious case not to have jealously guarded them is quite remarkable, to say the least.  Neither did the investigators make use of other aids such as photography, videotaping and tape recording.  The court is faced with the mutually conflicting versions of the investigators and the accused as to what transpired during trips to Mohale Dam and at Mohale Dam.  The court is left with having to ponder the imponderables.  However, be that as it may.  I have already ruled that confessions and pointing outs by Moeletsi, Sefako, and Machai should be excluded for various reasons dealt with in the preceding discussion.  I am only concerned with the pointing outs of Moepi, Makhoali, Motanyane, Faso and Tikiso. 

 

[99] Evidence of the police in its simplest form is that during interrogation of the accused certain information regarding their involvement in the murders of the three men was divulged.  The accused would either be taken to the magistrates’ court for confessions or for making pointing outs, and that before all these could be done the accused would be advised of their rights to remain silent and to legal representation.  With reference to pointing outs, as this involved travelling from Police Headquarters to Mohale Dam, the accused would be the ones showing the investigators directions to the place and would point out a certain place along the way where the murders were committed.  Before each pointing out the accused would be advised of their rights to remain silent and legal representation, and this was the case even at Mohale Dam where the spot where the bodies of the three men were dumped into its depths.  On the one hand the accused’s contention is that they were not advised of their rights to remain silent and to legal representation. Some even suggested that the police took them to Mohale Dam on what one can safely call a joyride only to embark on a return journey without any pointing outs being made. 

 

[100] A3, A4, A5 and A6 were the first ones to be taken for the pointing out.  According to PW24 the four accused boarded the vehicle which was in the middle as there were three vehicles.  The last vehicle provided security backup.  The vehicle which was in front was driven by PW26 its passengers were PW25, Lance Sergeant Mohoang, Sergeant Thamae and PW27.  The vehicle in the middle was driven by Inspector Tshabalala with Inspector Lebajoa and PW24 as its occupants.  In its bin were these four accused.  The third vehicle was used by members of Special Operations Unit (SOU).  The accused, especially A4 gave the police directions, until they reached Setibing, where the accused requested the vehicles to stop.  The vehicles stopped.  The police investigators and the accused disembarked from the vehicles.  The accused pointed out the place where the murders were committed and afterwards the vehicles took the Thaba-Tseka direction and at Thaba Putsoa A4 signalled for the vehicles to stop by hitting the rear window of the in which he was the occupant and gave directions to Mohale Dam.  The investigators took PW32 and one Thabo Sello to make independent verification of pointing outs at Mohale Dam.  At the bridge A4 pointed out the spot where the deceased’s bodies were dumped into the dam.  The other three accused confirmed the pointing outs, and the area was marked. 

 

[101] Evidence of PW25 contradicted that of PW24, PW26 and PW27 that the four accused were place in the bin of one vehicle.  He suggested that two accused were in the middle vehicle and the other two in the front vehicle.  When PW26 was confronted with this discrepancy he told the court that PW25 was a forgetful person.  PW24 told the court that the four accused disembarked from the vehicles at Setibing but PW26 told the court that they did not alight from the vehicles, and that he did not see what happened as he stepped away to “answer the call of nature;” and only returned when the police were already boarding the vehicles. 

 

[102] The police investigators told the court that at Mohale Dam they advised the accused of their legal right to remain silent in the presence of PW32 and that the latter even put questions to the accused, to which A4 gave answers and others nodded in agreement.  However, PW32 denied that he had an opportunity to speak with the accused.  He even denied, as the police would have this court to believe, that the police advised the accused of their rights in his presence. 

 

[103] PW27 intimated to the court that the vehicles stopped at Masianokeng Junction on the way to Mohale as accused were showing directions.  But this witness is the only witness who testified on this, the other investigators PW24, PW25 and PW26 did not mention the vehicles stopping at Masianokeng.  I find it doubtful that the vehicles stopped at Masianokeng, Setibing and Thaba Putsoa at the instigation of the accused. 

 

[104] These internal contractions in the evidence of the investigators leads me to doubt whether indeed the four accused showed them the directions to Mohale Dam or even pointed at the spot at Setibing.  One is inclined to believe that the police driven by the information they gathered during the interrogations of the accused drove straight to the places without being shown directions.  The Crown’s evidence regarding the pointing outs at Masianokeng and Setibing and at Mohale Dam is made difficult by the lack of record of the events there. Had the police taken notes in writing or through any other medium, it would have made the Crown case easier.  In the present case accused’s pointing outs were not recorded.  In the light of these internal contradictions in the Crown case I find that it is reasonably possibly true that the accused did not point out any spot at Setibing nor did they point any directions to Mohale Dam. 

 

[105] Events at the Mohale Dam in respect of Moepi, Makhoali and Motanyane. 

I deal firstly with Moepi and Makhoali as a pair. As already said from the first group of accused who went to Mohale Dam, I am now left with Moepi, Makhoali and Motanyane to determine if their pointing outs were made freely and voluntarily and without undue influence. The versions of A3, A5, A6 and the Crown are mutually destructive, however, it should be borne in mind that the Crown bears the onus of proving beyond a reasonable doubt that the accused’s versions are false, and that theirs is the correct one.   These two accused’s version is that they did not do any pointing out at Mohale Dam, and that they were not advised of their legal right to remain silent.  There is no evidence that the accused rights to silence and to legal representation were explained to them because the police did not keep the record of what took place at Mohale Dam.  Although the police investigators would have the court to belief that they explained the rights of the accused in the presence of PW32. The latter denied this assertion, and I have no reason to reject their version as not being reasonably possibly true. This conclusion does not however, spell the end to the enquiry because not advising the accused of his rights does not necessarily render the pointing out inadmissible. It is one of the factors to be taken into consideration. The court has still to determine whether as a matter of fact the statement or pointing out was freely and voluntarily made without undue influence. (R v Mtabela 1958 (1) SA 264 (A) at 268 D-F). In S v Molefe and Others 1991 (4) SA 266 (ECD) at p.271H-I the court stated the approach as follows: 

“…Whether admissions, confessions or pointing outs by arrested person after his arrest will be admissible as evidence against him at trial will depend upon various considerations. The fact that he was not prior thereto told of his right to legal assistance, and the fact that he was unaware of this right (if that be the case), may or may not have a bearing on the question whether he acted freely and voluntarily and without undue influence, and this in turn may determine whether evidence sought to be led will be admissible or not. But failure to advise an arrested person of his right to legal assistance will not per se render an admission or confession or pointing out by him inadmissible as evidence against him.” 

 

 

 

[106] The accused deny that they pointed out a spot on the bridge at Mohale Dam but the evidence of PW32 corroborates that of the investigators to the effect that as the party entered the bridge the four accused led from the front until they pointed at the spot where they indicated that the deceased were dumped. PW32 corroborates PW26’s evidence that the accused entered the bridge in pairs as they were paired with handcuffs.  The four accused pointed at the third pillar.  Even though there are internal contradictions in the investigators’ testimonies regarding whether the rights of the accused were explained to them and whether the accused made any pointing outs at Setibing, I found them to be largely telling the truth on the issue of pointing out at the bridge by the accused.  Corroborative evidence of PW32 has not seriously been disputed.  PW32 was a very credible and reliable witness. I find it unbelievable that the accused would be taken to Mohale Dam, and did not do anything there. Their version that they did not point out at the bridge is rejected as not being reasonably possibly true. They freely and voluntarily and in their sound and sober senses and without undue influence pointed out the spot where the deceased were dumped into the dam.   

 

[107] Nthathakane Motanyane (A6) 

Motanyane was delivered by the Military Police to the investigators on 22 September 2017 in the morning hours.  Due to his young age, candidly, he told the court that investigators were sympathetic towards him. After being confronted with the allegations that he participated in the murders of the three men, he denied any knowledge. According to him the investigators wanted him to be a witness, but he refused.  He said they insulted him and called him a “puppy”.  His version is that the investigators did not advise him of his rights to remain silent and to legal representation.  According to DW24 after Moepi, Makhoali and Motanyane had been interviewed only Moepi intimated his preparedness to make a statement before the magistrate.  The A5 and A6 chose to exercise their right to remain silent.  In the afternoon Motanyane was taken to Mohale Dam for pointing out.  It is common cause that three bodies were recovered from the depths of the Mohale Dam. 

 

[108] Motanyane disputes police’s version that him in the company of Moepi, Moeletsi and Makhoali showed the police directions to Mohale Dam and that they pointed at certain places at Setibing where the murders were allegedly committed.  He further disputes that he was ever advised of his legal rights to remain silent and to legal representation. 

 

[109] As already highlighted failure by the police to advice the accused of the rights will not automatically render the confession or pointing out inadmissible.  The fact that these protocols may have been breached is one of the factors to be taken into consideration in determining whether accused made a confession or pointing out freely and voluntarily in his sound and sober senses without being unduly influenced. 

 

[110] With respect to both A5 and A6 I am prepared to accept that they did not make confessions because they were advised of their rights to remain silent. I deal specifically with A5 in the ensuing paragraphs.  I am, however, not prepared to accept that they were warned of their rights before they were taken for pointing out at Setibing and Mohale Dam.  Regarding A6:  He was brought in the morning of the 22 September 2017 and during the interview he declined to make a confession, but quite remarkably in the afternoon of the same day he was taken for pointing out allegedly having agreed to do so after being warned of his rights.  This change of mind is quite remarkable.  If in the morning A6 duly warned refused to confess only after a few hours later to act contrary to his earlier stance must have been as a result of something else remarkable having occurred in the aftermath of his earlier stance.   

 

[111]    It is probable that he was not warned of his right to remain silent and the consequences of agreeing to make a pointing out.  It is also probable that the police realising that they could succeed in getting A6 to make a confession in the morning sought to achieve the same result by taking him for a pointing out in breach of the Judges’ Rules.  The version of the accused cannot be rejected on the score that it is false; it is reasonably possibly true.  The Crown’s case is made even more improbable by the lack of investigators’ records or handwritten notes on pointing outs which would have shed light on what transpired.  (see Mabaso v S 2016 (1) SACR 617 (SCA) at paras. 9-11. Furthermore, pointing outs were undesirably facilitated or conducted by the police officers who were involved in the investigation of this case (see Komane v S (51/2019) [2022] ZASCA 55 (20 April 2022) at paras. 27-28).  

 

[112] The Crown sought to lead evidence of PW32 (Mosehle Tsapane), a villager, to bolster their case on the occurrences at the Mohale Dam. Tsapane under cross examination told court that he did not hear the police tell the accused who was in the company of A3 (Lekhooa Moepi) and A4 (Mahlehle Moeletsi) about their rights to silence and legal representation at the bridge where pointing outs were made. The question then to be answered is whether all the above notwithstanding, can it be said that Motanyane made pointing out freely and voluntarily and in his sound and sober senses and without undue influence? In my view despite the police not advising the accused of his rights and pointing being conducted by the investigators of this case evidence points to the fact that A6 made pointing out at Mohale Dam freely and voluntarily and in his sober and in his senses and without any undue influence. It follows that evidence of A6’s pointing out at Mohale Dam should be admitted, as it would not render his trial unfair. 

 

[113] Events at Mohale Dam in respect of Nemase Faso 

This accused was in the second batch of detainees who went for pointing out at Mohale Dam. He was in the company of Sefako and Machai.  A9’s version is that Sergeant Thamae who was his acquaintance advised him that he did not need a lawyer because he was going to be turned into a witness.  This version is undisputed as Sergeant Thamae was not called a witness to deal with it.  I am fully alive to the fact that this accused brought up the issue of undue influence of Sergeant Thamae in relation to him making a statement before the magistrate, and not with regard to pointing out.  As was stated in S v Mkwanazi 1966 (1) SA 736 (A) at 746H: 

 

“The accused himself is usually the best witness as to whether and how he was influenced, if at all, to make a confession.  When he specifically puts his mind to the question and gives the reason why he made a statement, it is generally an unnecessary artificial approach to search for other hypothetical reasons.” 

 

[114] Despite the above opinion notwithstanding, I agree with the views expressed in S v Mpetha and Others (2) (ibid) at 585 F-G that the fact the accused does not raise an issue of a particular influence having played any role in him making a pointing out in this case, the possibility of the influence of Sergeant Thamae having played any role in this accused making a pointing out should not be ignored. 

 

[115] A9 made a confession on the same day he was advised by Sergeant Thamae that he did not need a lawyer because he would be turned into a state witness.  Upon returning from making the confession, on the same day, he was taken for pointing out at Mohale Dam.  In my view I do not need to examine what happened during the pointing outs because on the circumstances of this case, it is not hypothetical, but reasonably possible that the promise that the accused would be turned into state witness and that he would not need a lawyer unduly influenced him to make the pointing out at Mohale Dam.  I say he made pointing outs because even though he disputes it, on the facts, especially evidence of the investigators which has been corroborated by PW33, cannot be seriously disputed.  I therefore find that the pointing out by A9 should be rejected. 

 

[116] Events leading to Mohale Dam in respect of Tieho Tikiso. 

A10’s story is that the police wanted him to incriminate himself so that he could be turned into a state witness, and that he was told what to narrate before the magistrate.  He said he disagreed.  He said he tried to call his lawyer but was prevented from doing so by PW26.  PW26 denied this allegation vehemently. A10 told the court that at night he was tortured with a plastic bag by suffocation while he was cuffed, while some police investigators stepped on his back.  The next morning, he was merely placed in the bin of a van and taken to Mohale Dam.  Vehicles did not stop along the way as the police suggest.  When they got to Mohale Dam Sergeant Thamae went and came back with two villagers and ordered everybody to get into the vehicles and they returned to Maseru without any pointing out being made.  He testified that he was not advised of his legal rights to remain silent and to representation before he was taken to Mohale Dam.   

 

[117] A10 states that he was taken out of the cells to Mohale Dam just for fun as nothing was done while there.  What I find problematic with regard to the Crown’s case is the assertion that A10 pointed out a spot at Setibing and was read his rights to remain silent when they left Police Headquarters and before pointing. I have already indicated with regard to other accused the Crown’s case is made difficult by lack of record of all these occurrences.  The police did not produce any notes they took nor any record of whatever nature they kept of the giving of directions to Mohale Dam and pointing out at Setibing. The same police officers who partook in taking the first two batches of accused to Mohale Dam also took A10 there, and they were all investigators in this case.  This is against the weight of judicial authority which frowns upon such practice (See: Schwikkard and Van Der Merwe Principles of Evidence 4 ed. (Juta) at 378 para 1783). In the absence of the record, I find it reasonably possibly true that A10 was not read his rights prior to leaving the Police Headquarters on the way to Mohale Dam, at Setibing and before he pointed out the spot on the bridge at Mohale Dam. I also find that it is reasonably possibly true that he did not show the investigators any directions nor did he point out any spot at Setibing.  

 

[118] As stated already the fact that the investigators did not advise the accused about his rights does not automatically render the evidence of the pointing out inadmissible (R v Mtabela 1958 (1) SA 264 (A) at 268 D-F).  Although I have found that the accused was not advised of his rights before leaving for Mohale Dam, and before any pointing out was done, A10 would have this court belief that while at Mohale he did nothing.  Evidence of PW3 corroborates that of the investigators that he pointed out a spot on the bridge.  I have no reason to doubt the veracity of PW33’s evidence. I find PW33 to be a reliable and credible.  A10’s version that he did not point out is false beyond a reasonable doubt and is rejected on the score that it is not reasonably possibly true.  I accordingly rule that his pointing out at Mohale Dam is admitted into evidence.  Throughout I have deliberately not dealt alluded to the questions by PW33 to the accused and the answers they provided because the purpose of taking the accused to Mohale Dam was to point out and not to make confessions. It is for this reason that a disguised confession cannot be allowed into evidence because that is not the purpose of S.229 (2) of the CP&E (see Mabope v R above; S v Magwaza 1985 (3) SA 29 (AD) at 36B). 

 

[119] Order 

For the sake of convenience my findings in relation to each accused are as follows: 

 

1. Accused No. 3 Lekhooa Moepi: 

• Confession and pointing out at Mohale Dam are admitted. 

 

2. Accused No. 4 Mahlehle Moeletsi: 

• Confession and pointing out Mohale Dam are rejected. 

 

3. Accused No. 5 Mahlomola Makhoali: 

• Pointing out at Mohale Dam is admitted. 

 

4. Accused No. 6 Nthathakane  Motanyane: 

• Pointing out at Mohale Dam is admitted. 

 

5. Accused No. 7 Motšoane Machai: 

• Confession and pointing out at Mohale Dam are rejected 

 

6. Accused No. 8 Liphapang Sefako: 

• Confession and pointing out at Mohale Dam are rejected. 

 

7. Accused No. 9 Nemase Faso: 

• Confession and pointing out at Mohale Dam are rejected. 

 

8. Accused No. 10 Tieho Tikiso: 

• Confession and pointing out at Mohale Dam are admitted. 

 

                                             ________________ 

           MOKHESI J 

 

 

For Crown: Adv. M. Rafoneke 

 

For A3, A5, A6 and A10: Mr. Q. Letsika 

 

For A4 and A8: Adv. L. Molati 

 

For A7 and A9: Adv. N. Mafaesa