HIGH COURT OF LESOTHO
matter between :
SEKAJANE 1st ACCUSED
SEKAJANE 2nd ACCUSED
by the Honourable Mr. Justice M.L. Lehohla on this day of
accused stood trial before this Court charged on three counts of
of Section 3 (1) of the Internal Security (Arms and Ammunition) Act
No. 17 of 1966.
charges read as follows:
respect of Count 1 the crown asserted that the two accused are
that upon or about the 18th day of September 1993 and at or near
Likalaneng in the district of Maseru the said accused each or the
other or both of them unlawfully and intentionally killed Sekhoane
respect of Count II the Crown alleged that the two accused are
guilty: "In that upon or about the 18th day of September 1993,
at or near Likalaneng in the district of Maseru, the said accused,
each or the other or both acting unlawfully and intentionally pointed
respect of Count III it was alleged that on the same day and place
covered in the other two Counts above the said accused are guilty
"one or the other or both of them" in that they "were
found in possession of a fire-arm in respect of which they did not
hold a fire-arm certificate in force at the time".
accused pleaded not guilty in respect of all the offences set out in
the charges preferred against them.
the Crown in order to prove its case sought to rely on both oral
evidence and admitted evidence set out in the preparatory depositions
of witnesses who testified at that stage.
admitted evidence consisted of the evidence of:
MAJOR TELUKHUNOANA whose depositions were accompanied
forensic report handed in marked Exhibit "A"
also handed in and marked Exhibit "B" the post-mortem
report of a pathologist who performed the autopsy on the deceased.
Unfortunately it is not possible to decipher his/her name from the
signature appended to Exhibit "B".
report indicates that the post mortem was conducted on 21st
September, 1993. The deceased was an African male adult whose body
was identified to the pathologist by one Lekhetho Tjotji (PW4).
of death was described as bilateral hemopneumo thorax and
hemoperitoneum caused by 2 cm shot wounds.
external appearance of the deceased showed multiple puncture wounds
and burn marks measuring about 2 mm in width. Five of these were on
the left front chest. Two on the right abdominal wall. Another five
on the front of the right arm. Burn marks support PW1's evidence that
shooting was effected at close range for she saw the accused and the
deceased next to each other when the gun report was heard and the
deceased fell to the ground.
the lungs the pathologist discovered that there was penetration of
the upper left lobe consisting of three perforations. There were also
two perforations on the upper right lobe.
had sustained two lacerations of about one centimetre on the upper
surface of the right lobe.
admitted evidence of PW4 was mainly as to the role he played as the
deceased's younger brother who identified the deceased's body for
purposes of being examined by the pathologist at Queen Elizabeth II
hospital on 21st September, 1993.
admitted depositions of PW5 D/Sgt Babi is to the effect that at the
time he was attached to the CID branch of the L.M.P. and stationed at
Thaba Tseka. He deposed that he knew the two accused before Court. He
came to be involved in their matter after one Ntaba Leboela came to
him at the police post to give him a report. Thereupon he set out for
Tiping in the Likalaneng area where he found a crowd of people.
the deceased Sekhoane lying down on his right side facing
slope. The deceased was identified to PW5 by Ntaba Leboela and the
chief of the place. The deceased had laid dead.
undressed the deceased and examined him. It was in this connection
that PW5 observed multiple wounds on the chest of the deceased which
he concluded could have been caused by pellets.
depositions firmly indicate that his investigations ted him to the
two accused before court. He deposed that he demanded from the
accused without success the shells corresponding to the pellets which
had hit the deceased. He singled out accused 1 as the one who handed
to him the shotgun which was placed before the court below and
described its serial number as PO7880. He deposed that he seized the
gun and kept it. The gun was duly handed in together with its two
pellets and collectively marked Exhibit "1" in the Court
deposed that these two pellets had been found in the deceased's body
during the post-mortem.
PW5 who conveyed the deceased's body from Tiping via the Marakabei
Police Post en route to Queen Elizabeeth II mortuary. He deposed that
sustained no additional injuries while being so conveyed in a van
belonging to the Roads Department.
interrogated accused 1 and obtained an explanation from him PW5
deposed that he arrested accused 1 and charged him with murder.
further investigated the question whether accused 1 was in lawful
possession of the firearm but discovered that accused 1 had no
licence to cover his possession of this gun which was lawfully owned
by his brother Molebatsi Sekajane.
seized Molebatsi's licence but on his transfer to Thaba Tseka
returned it to accused 2.
admitted depositions of PW6 Major John Tlhabi Telukhunoana revealed
that this witness was a member of the LMP working at the Technical
Service Department. His duties entailed examination of firearms
suspected to have been used in the Commission of Crimes. This witness
has had a fairly broad training in this field ranging from
instructions received from Lerotholi Poly-Technic in Lesotho to
Kerven Street College of Technology and Irish Forensic
Laboratory both obtained in Ireland.
witness handed in a report he had prepared on examination of the
firearm. The report was marked Exhibit "A".
PW6's report first gives an explanation that he obtained training in
microscopic examination of fired bullets and cartridge cases,
firearms mechanisms, photomicrography and restoration of obliterated
numbers on metal.
indicated that on 28th September, 1993 D/Tpr Moletsi handed him a
shot-gun S/No. P07880 together with two lead shots for examination.
He duly examined them.
the shotgun to be in good working condition. He also found that it
had previously been fired though how long ago could not accurately be
lead shots were found to be of size three (3) shot.
admitted depositions were read into the recording machine and thus
part of the record in this proceeding.
foregoing formal admissions summarise the first route followed by the
Crown in its attempt to prove its case against the accused. The
balance of the route followed by the Crown for the aforesaid purpose
consists of viva voce evidence tendered by two witness namely:-
Mookho Mahana and PW1 'Matsebiso Bosielo.
evidence adduced before this court by PW3 was to the effect that she
stays at Likalaneng and that she knows the two accused before court.
She testified further that she is familiar with the incident which
occurred on 18-9-93 involving the two accused who are her
quickly corrected herself as to the date she had supplied and said
instead that the incident occurred on 18-05-1993 . But again she
expressed her doubts concerning her correctness as to the latter
date. Thereupon the court asked her if she went to school, and if so,
up to what level. She replied that she did, up to Std V. But again
was in doubt about this. Her explanation for this peculiar doubt was
that she couldn't remember because she married either in 1988 or 1987
is definite that she was still at school when she married. Funny that
marriage should have had such traumatic effect on her recollection of
when it took place.
has therefore had to take caution of her evidence generally on the
basis of her low standard of education, and particularly on the basis
of the possible lapse of memory as to dates because this matter
proceeded at the end of 2000 whereas the events occurred, as the
indictment shows, way back in 1993.
back to the evidence of PW3 the court heard that on the day in
question and quite early at around 5 am while PW3 was in her house
the two accused came there shouting from outside that they wanted
is the brother of PW3. She explained to the two accused that Tseliso
was not in. The two accused nonetheless insisted that PW3 should open
the door, and she complied. They asked PW3 to come out. Again she
testified that Tseliso had been staying with her at her (marital)
home. When PW3 peered through the door she was frightened to see that
holding a gun in a pointing position and levelling this gun's muzzle
at her. Thereupon through sheer desperation she dared accused 1 to
rather come and shoot her children first before shooting her.
accused 2 said to accused 1 "Thibello shoot, Molebatsi will
pay". Saying so accused 2 imprecated curses upon PW3 swearing at
her by her mother's private parts.
explained that Molebatsi whose name was mentioned immediately above
is the elder brother of both accused. From this rather bizzare
statement that accused, should shoot for Molebatsi would pay can thus
be distilled the implication that whatever injury or damage could be
caused by accused 1 the elder brother Molebatsi would bear the
consequences so accused 1 was thus urged to act without fear of
consequences for someone else would bear them. This in a way comes
into even sharper relief when it later turned out during
investigations that the gun used in the shooting of the deceased
actually belonged not to the perpetrator but to Molebatsi the
licencee of the gun in question.
proceeded to testify that accused 1 turned back and departed with her
sister accuse d 2.
while later and when the coast was clear and she was in no danger of
being spotted by the accused, PW3 went, so she testified, and
reported the incident to the chief. She told the court that the
accused didn't say why they were looking for Tseliso. However during
cross-examination PW3 when asked to explain her statement that she
only got to know meaning "to learn" when she was at the
Chief's place, why the accused who were looking for Tseliso were so
angry she replied "I learnt from the Chief that the accused (1)
went to my place because Tseliso had raped his sister i.e. accused
it is worth the allegation of rape of one's sister when considered
along with facts which envelope the accused in an aura of suspicion
for the offence or offences charged could well serve as providing a
motive for that offence or offences charged.
giving her statement to the Chief PW3 was told to go home. It was not
long after she had left the Chief's place that she learnt that a
person had been shot. She set out for the alleged scene and
discovered the deceased lying there dead. PW3 said accused 1 appeared
drunk. But, his sister, she said does not drink. PW3 explained that
she feared accused I was drunk for he was very angry and had not seen
him that way before. He was even staggering, she said.
cross-examination PW3 readily conceded that her brother and accused 1
maintained cordial relations. She buttressed this statement by saying
she used to see them walking together. She even saw her brother
taking the accused's stock for grazing along with his parents' stock.
She went further and indicated that she has known both accused since
1987. PW3 said also that having learnt form the Chief that Tseliso
was alleged to have raped accused 2 she confronted Tseliso late in
the evening when the latter turned up home. She said Tseliso's
response was that the said allegation about him was a baseless
question put to her by Counsel for the accused that accused 1 says
Tseliso had raped accused 2 PW3's satisfactory answer in the
estimation of this court was "I know nothing since I was not
indicated to PW3 that the two accused came to her house in the night
in question at around 3 am. In reaction to this PW3 said it was at 5
am. Otherwise she went along with the explanation proffered by the
defence Counsel that accused 1 was angry and that he asked of
Tseliso's whereabouts. She however rejected the assertion that
accused I didn't point a gun at her and emphatically said "He
did" . See page 6 of court's notes. To a further question
In fact he did not have a gun in his possession" it was PW3's
that "He was holding it".
maintained the general pattern of her evidence-in-chief in reaction
to questions put to her as follows i.e.:-
is accused 2's evidence that she never said ' Thibello shoot;
Molebatsi will pay ' for there was no gun" she replied that "She
(accused 2) uttered those words. The gun was with him (accused 1) and
he was holding it like this " as was pointed in a levelled like
fashion aimed at the witness's imaginary target.
denied that she supplied the portion about daring accused 1 to shoot
her children first to strengthen her fabrication about the gun for
the children at the time were in bed and asleep.
accepts that for a frightened mother apprehending immediate death
PW3's explanation is not far-fetched namely that " I had to say
so for if] died my children would be left in misery for Tseliso is
useless" suggesting he couldn't look after them as well as she
maintained she herself could.
PW3's uncertainty about the dates her evidence made plain reading
unpolluted by bias or ill-will towards the accused. In any case even
if there was no gun carried by accused 1 the anger expressed by him
at that hour in the month of May was enough to frighten her out of
It is to
be wondered why the accused didn't report the alleged incident of
rape to the Chief even that early in the morning instead of trying to
take the law into their own hands.
interest in this scenario is the fact that PW3 says accused 1 was
holding a gun in the first instance. In the next instance the
admitted evidence of PW5 Sgt Babi is that accused l handed him the
gun used in the killing of the deceased. Of course the entire defence
and their witnesses deny that accused 1 handed the gun to Sgt Babi.
But that is besides the point. The point is how did PW3 who first
mentioned the gun being held by accused 1, know that Sgt Babi would
later say accused 1 handed him a gun used in the killing of the
deceased? It has not been suggested that PW3 and PW5 put their heads
together to concoct the story about the gun against accused 1. In the
light of this gaping hollow in the defence's fortifications it would
be imprudent to reject the crown evidence on the particular issue.
The law provides that for an accused person to escape criminal
liability his story need only be shown to be reasonably possibly
true. Thus if his story is not reasonably possibly true it stands to
reason that it is false beyond doubt and thus deserves rejection.
witness for the Crown was PW1 'MatsebisoBosielo who gave oral
evidence under oath and said that she is aged 38; and went to school
up to Class V. PW1 said she resides at Likalaneng.
recalls that on the day of the events in 1993; the actual date and
month of which escape her, she was from her house going to the well
to draw water.
she heard some noise from the Cliff overlooking the well where she
was. On paying attention to this noise she detected the voices of
Thibello (accused 1) and Mpatai (accused 2). These two accused are
co-villagers with this witness and she had no difficulty discerning
their voices. The voices were saying "where is he/she ; where is
he/she" without saying who it was this being inquired into.
she heard accused 1 shouting for his brother Tloso to hand over to
him something from the steel trunk. PW1 didn't see Tloso emerge. But
from which the familiar voices referred to were emanating. She
stressed as folows : "I heard when they were speaking that it
was people I know for I knew their voices". PW1 stated further
that because the two figures were not far (estimated at 100 metres)
she recognised accused 1 and saw that he had been standing with his
sister. She saw accused 1 leave the spot where he had been standing
with his sister and head for the direction of his home. The sister
remained standing there. A short while after entering his home he
came back again. He came along. As he did so PW1 heard accused 2 say
to accused 1 "Thibello there he/she comes towards you".
Again it was not expressed by the utterer of those words who was
being referred to. The language spoken was Sesotho and the Court
takes judicial notice of the fact that this language makes no
distinction of sex in the application of the pronoun referring to
male or female persons when used in the singular. Sex is lost in the
singular pronoun in Sesotho the same way as it is lost in English
when reference is to plural pronouns.
the Court that at the time she looked where accused 2 was warning
accused 1 of someone's approach from the narrow mountain cut that
separated accused 1 from accused 2. The relative positions held by
accused 1 and accused 2 satisfied me that accused 1 could not,
without the warning given by accused 2, have seen the deceased's
approach. In the words of PW1 " Thibello
was in a
hollow and couldn't have been aware of the man approaching him".
of Court's notes".
further and in describing the situation and said :
"After accused l had come out of the hollow and was level with
the person who he was being warned about accused 2 said to accused 1
' I said hey you there he is coming towards you. Release, shoot and
Khoasa'. And we heard a gun report there and then".
PW1's evidence-in-chief that the gun report went just once.
Thereafter PW1 said she and those who had come to the well "saw
the person who had been approaching being very close to accused 1".
At the same time PW 1
heard...............a voice emerging from there saying ' why are you
killing me cruelly ' ". PW1 said accused 1 asked the person "who
are you. The man said ' I am Sekhoane and I stay at Ha Ntapa ' ".
see pages 83-84 of Court's notes.
witness testified that she and her company saw the man just falling
down. As this happened accused 1 proceeded to the place where he had
left his sister. When he reached her they left together and
disappeared beyond an incline
over-topping the spot where they had been earlier seen standing.
reaction to questions put to PW1 by the court she said that the two
accused are her relations Their father is PW1's father's cousin. She
also said her personal relatives with both accused are very good.
cross-examination she said she didn't know of any quarrel between her
and the two accused in reaction to the question put on their behalf
that they say PW1 is not on friendly terms with them. She stressed
therefore that she knew her relations with them to be good.
denied that the accused's stock trespassed on her husband's crops and
destroyed them; hence the source of their alleged quarrel.
denied what was dubbed a second incident which formed the basis of
her quarrel with the two accused. The text went as follows:-
"The 2nd incident was when your husband killed Sejakane's
father's ram ..........? It is my first time to hear of that.
Did your husband kill a ram or not--------------? I never knew my
husband to have ever killed a ram"
rather unfair that the nature of questions which could at best be put
to her husband are instead put to PW1 despite her professed ignorance
of what at best could serve as a basis for ill-will between her
husband and the accused's father. I simply think that the element of
bad blood in these circumstances is rather over-drawn; even if a
cross-examiner is at large to cross-examine on anything.
although the distance between her and where the accused were standing
when she saw them is about the length of the football field she could
hear them say "where is he/she; where is he/she" because
they were talking loudly, the Court takes judicial notice of the fact
that generally early morning silence tends to make voices carry far.
not remember giving evidence at PE in 1995. She says her failure to
remember is due to serious nervous problems she suffered from some
time ago. The malady had manifested itself by bouts of falling
sickness PW1 has undergone. However she says nobody reminded her of
what she had seen and
in 1993 when events leading to this case took place.
denied that she was schooled to implicate accused 2 today by saying
accused 2 said accused 1 should shoot. The plausible reason for this
suggestion is that nowhere in PW1's evidence at PE did she say
accused 2 said accused 1 should shoot.
regrettable loss of memory P W1 has experienced with regard to the
fact that she gave evidence at PE is no different from that of
Sekonyela Ramaqabe who was PW8 in CRI/T/22/88 Rex vs Motamo Sehlabaka
(unreported) at 26 where the following is reflected:
Sekonyela Ramaqabe who was utterly at a loss regarding dates when
matters he testified to occurred, and who further compounded this
particular defect in his testimony by denying that he gave evidence
before a magistrate at the preparatory examination of this case told
me that he has read only up to standard 1. He told me he was
notorious for forgetfulness and attributed this handicap to [a] motor
accident which he was involved in", (see further page 31 where
the following is reported)
also said he remembered giving evidence only before the police at T.
what he told them is substantially the same as what he told this
court; although he has been asked certain other things here under
me his accident which apparently affected his memory occurred in
1979. As a result of it he told me he even passed out and only came
to in Hospital in the Republic".
I observe that with a few exceptions PW1's version before this court
is substantially the same as what she deposed to at PE.
re-examination she answered positively when asked as appears in the
you still remember events that led to the death of the
these are the events you told this court------? Yes. (see p.94 of the
unprecedented move after the Crown had closed its case Mrs Kotelo for
the defence made an application for the Crown to re-open its case.
Needless to say the application was opposed by the crown and turned
down by the court.
witness for the defence was DW1 Thibello Sekajane the 1st accused. He
said he forgets his age but was born in 1973.
testified that he lives at Likalaneng Ha Ramohope but was living at
Mantsonyane in 1993.
for purposes of performing some ancestral rites he was sent for to
Tiping (Dipping). He arrived in the afternoon and proceeded to a beer
drinking place. He sat there drinking beer in quarts as well as
Sesotho beer till night time.
the night he proceeded to Tiping and remained at 'Mamojabeng's till 4
am. At 4am his sister accused 2 arrived crying. She called DW1
outside. On coming outside he was told by accused 2 that Tseliso
Mahana had raped her at a Stokvel where she and Tseliso had been.
Asked where Tseliso was she pointed to him and said to DW1 "There
he is coming following me". There and then and without asking
Tseliso anything further DW1 told this court that he
Tseliso who fled to his home chased by DW1 and accused 2. Tseliso
the pursuing pair to his parental home.
he knocked at the door of Tseliso's parental home . In response
thereto Tseliso's sister PW3 peered at the door. DW1 asked where
Tseliso was. PW3 asked what DW1 wanted Tseliso for. She was told that
he had raped accused 2. Then PW3 said Tseliso had gone to Ha
DW1 was drunk and feeling sleepy he says he went home; followed along
the way there by accused 2.
denied that he went to PW3's home carrying a firearm. His reason for
saying so, he says, is that he doesn't own a gun.
he says he was carrying a "Lebetlela" stick. He denies ever
threatening or swearing at PW3. He concedes that he was angry and
gives as the reason for being angry the fact that he was drunk.
is credible evidence to show that a man on a particular night was
seen wielding a firearm which he later handed in to an investigator
of the incident
from the use of such a firearm, the fact that he doesn't own a
firearm is far from being an acceptable reason that he couldn't have
been holding the gun on the night in question or that he didn't hand
in the firearm contrary not only to what the investigator deposed to
at PE but to the evidence admitted on his behalf by his own Counsel.
reason being proffered for the anger exhibited at PW3's home suggests
an attempt at escaping the logical consequence of that anger. If
drunkenness was the reason for the anger it leaves unanswered what
impact the vital question of the alleged rape committed to his sister
had on accused l's state of mind. Moreso when taken along with his
own evidence-in-chief that without any further ado he attacked
Tseliso when the latter was pointed out as coming following accused 2
after the alleged sordid act to her.
attempt to distance himself from any use of the firearm whether by
pointing it at anybody or actually firing it anybody accused 1 sought
to invent the story that all he was holding was a lebetlela stick.
This would be a convenient weapon to be in possession of in the
circumstances because without a gun then he would be faced with an
awkward explanation to make namely how could he attack Tseliso with
bare hands when he didn't know what possible superior
the latter had.
1's story that he was armed with a lebetlela stick therefore is an
obvious last minute fabrication and afterthought because to no one of
the crown witnesses (especially PW3) was the version put that accused
1 was holding a lebetlela stick and not a firearm. This would have
given the crown witnesses a fair opportunity to either deny or
confirm accused l's version.
illustration of the principle entailed in the above proposition the
authority of Small vs Smith 1954 (3) SA at 434 is very apt to the
"It is, in my opinion elementary and standard practice for a
party to put to each opposing witness so much of his own case or
defence as concerns that witness, and if need be, to inform him, if
he has not been given notice thereof, that other witnesses will
contradict him, so as to give him fair warning and an opportunity of
explaining the contradiction and defending his own character. It is
grossly unfair and improper to let a witness's evidence go
unchallenged in cross-examination and afterwards argue that he must
vs Rex 1981 (2)LLR at 246 supports the above view in the following
"It is generally accepted that the function of Counsel is to put
the defence case to the crown witnesses, not only to avoid the
suspicion that the defence is fabricating, but to provide the
witnesses with the opportunity of denying or confirming the case for
the accused. Moreover, even making due allowances for certain
latitude that may be afforded in criminal cases for a failure to put
the defence case to the crown witnesses, it is important for the
defence to put its case to the prosecution witnesses as the trial
court is entitled to see and hear the reaction of the witness to
every important allegation".
further to tell the Court that along the way to their parents' home
he and accused 2 didn't meet anybody. He only saw PW1 sweeping her
forecourt. He said he left his sister at home and headed for the
Cattle post to fetch an ox for the ritual earlier referred to.
later came home his brother told him the chief came asking for
proceeded to the Chief's place where he was interviewed by Sgt Babi.
Sgt Babi asked him about the night's events and accused 1 related the
story about Tseliso. However Sgt Babi told accused 1 that someone had
heard that accused 1 was involved in that episode. Thus he took
accused 1 to Marakabei police post. He didn't say what accused 1's
involvement was, so accused 1 said. Nor did he say the name of the
person he is alleged to have had an involvement with. DW1 denied that
he gave Sgt Babi any firearm. He denied that relations between him
and PW1 were good. The reason for this was, so he said, that his
flock strayed into her yard and her husband who was still alive then
quarrelled with accused l's brother. The other reason is that PW1's
husband killed accused l's parents' ram. For these reasons he says
PW1 has cause to falsely say he killed someone.
to the Court's question accused 1 said the ram alleged to have been
killed by PWl's husband belonged to accused l's parents and not to
find strange is that accused 1 insists that 15 years after the
alleged killing of the ram in 1985 someone who was not involved in
that killing should come and lie about accused 1 having killed
someone before this Court.
it sounds even stranger when one considers, for all this story is
worth, that if PW1's husband killed accused 1's father's ram for
whatever reason he had thus exacted his revenge and the actual
parties involved were to that extent "square" with each
other. How then could PW1 who was not a party come and lie about
accused 1 on the basis that her own husband had killed the belonging
to accused 1's parents? Can she indeed behave as if it wounded her
for her husband to kill that ram? And if it wounded her why not take
it against her husband but instead take it against children of people
who were wounded thereby and for that matter wait until 15 years have
lapsed to do so.
case how would she have known that the deceased would be befallen by
the tragedy that occurred so many years afterwards and use that
occasion to lie against people he calls his relatives with whom she
is on good terms? It appears to me that the weight of these questions
bear rather heavily against accused 1's criticism of PW1. The same
goes for accused 2 as it does for accused 1.
is stretched to absurdity to accommodate accused 1's fanciful
criticism of PW1's evidence as definitely biased against him, his
responses relating to PW3 and PW5 Sgt Babi readily reveal the
baselessness and emptiness of accused 1's attitude. This is
illustrated by the text running as follows:
want the court to believe that she [PW1 ] would lie about something
as serious as killing a person---------? Yes
about PW3 Mookho Mahana; what quarrel did you have with her.....? We
quarrelled with her.
quarrel had you with Sgt Babi-----? We have never had a quarrel with
accused 1's plausible responses to the two questions relating to PW3
and PW5 he has made so bold as to emphatically say these two people
have conspired together with PW1 to falsely incriminate him.
denies that he admitted the evidence of PW5 which was deposed to at
that his counsel did so on his behalf.
two immediate denials are a result of ignorance ; though I suspect
that the denials stem more from stubborness than from ignorance, then
accused 1's denial that when being recorded into the instant
proceeding Sgnt Babi's deposition was interpreted from English into
Sesotho was a deliberate falsity because I recall very well that 1
ordered that all the admitted statements be interpreted for the
benefit not only of both accused but of the public whose
constitutional right it is
for proceedings to be conducted in the language they understand.
denials in this regard therefore come to nothing.
admitted that Mrs Kotelo is his counsel. He admitted that she acts on
"When she accepts evidence she does so on your behalf.......? It
must be like that". Indeed it is like that.
The protestations by DW2 also come to nothing. She likwise stated
that she disputes and does not accept the admitted post mortem
findings. I got a distinct impression that she didn't know what she
was talking about when she said this. Her disarming response was "If
I ever admitted it, I did so without knowing what I was admitting".
denied that Sgt Babi gave back to her the licence for the weapon. She
was not able to reconcile her denial with the fact that her situation
was rendered impossible thereby inasmuch as this portion of evidence
appears in the admitted depositions of Sgt Babi in relation to her
own role as reflected therein.
giving evidence DW2 said that on the day in question she was at a
stokvel at Lekhalong. She said she drank beer there. She had gone
there at 4 pm and remained drinking till late at night.
occasion at night to go outside to pass water behind 'Malimakatso's
house. Then Tseliso crept behind her and said he had all these days
been looking for her and that today he had found her. He dragged her
into a ditch and raped her.
reported the incident to the stockvel owners Tsibela and his wife
'Malimakatso who confronted Tseliso about the rape. But Tseliso just
said " aache".
went to where accused 1 was and reported to him. From then the story
of DW2 is almost identical to that given by accused 1.
the cross-examination sought to indicate to her that PW3 said DW2 and
her brother came together to her house. But DW2 denied this and said
she was coming behind accused 1.
denied that she swore at PW3 and threatened her or incited accused 1
to shoot her.
accused 1 and accused 2 have earned themselves a proverb for
deliberately dodging and failing to answer straight forward questions
put to them by the very considerate but indeed purposeful
cross-examiner Miss Maqutu.
the evidence of DW3 Motlalepule Mabone and DW4 Osia Kabi who sought
to testify in this court that it was Molebatsi who handed the gun to
Sgt Babi their attempt to persist in that regard was deflated when it
was drawn to their attention that the instructions of both accused to
their counsel was to the effect that accused 1 handed the firearm to
Sgt Babi. Indeed the defence was hard put to it to say how it could
be possible that a policeman acting on the results of information
gathered from his investigative exercise would omit to ask the
suspect to produce the weapon used in the commission of the offence.
defence further failed to say why Sgt Babi omitted to say he received
the gun from Molebatsi.
to section 273 of the Criminal Procedure and evidence Act No. 7 of
1981 indicates that:
accused or his representative in his presence may, in any criminal
proceedings, admit any fact relevant to the issue and the admission
shall be sufficient evidence of that fact".
invaluable works the learned authors Hoffman and Zeffertt at page 430
of The South African Law of Evidence 4th Edition say
"The purpose of the section [akin to ours cited above] is to
enable the accused, despite his having pleaded not guilty, to reduce,
the issues put into dispute by this plea, and which the State would
have to prove, by admitting facts which then cease to be in issue".
See S vs Seleke en 'n ander 1980 (3) SA 745 at 746 F - G saying;
an admission is made in terms of S.220 [ours 273], it means that the
accused cannot later allege that that which was admitted has still to
by the State. The words 'sufficient proof' therefore absolve the
State from the burden of proving in any other manner the particular
fact which has been admitted,-----------".
Kotelo raised what she has styled Procedural Point namely whether PW1
Matseliso Botsielo is a competent witness.
learned Counsel's concerns with this witness are with regard to her
forgetfulness which she terms amnesia coupled with falling sickness.
already made my preliminary remarks concerning this witness's
forgetfulness. I need only reiterate that while on the one hand P W1
's forgetfulness does not seem to have upset her depositions at P.E.
on the other hand Mrs Kotelo's over-caution that the fate of the two
accused should not be resigned to the likely delusions of a single
witness should be sufficiently met by the fact that there is no such
danger as may be occasioned by exclusive dependence on a single
witness because PW3 also corroborates it in the material respects
raised by PW1. For instance where PW3 says she saw a gun carried by
accused 1, PW1 says she heard accused 2 incite accused 1 to shoot and
thereafter she heard a gun report. Later on Sgt Babi says he received
the gun from accused 1. Thus there is
sufficient safety provided by this corroboration against any possible
miscarriage of justice likely to be occasioned by exclusive
dependence on a witness whose mental well-being gives cause for
concern to the defence.
observed this witness and have not at all formed in the slightest any
opinion that her mental condition is a matter for any concern. On the
contrary in my view she gave her evidence with clarity that betrayed
her familiarity with the facts she was testifying to.
dealt briefly with points raised by the defence I wish to proceed to
dealing with the position in law as I had already started doing.
Thus in R
vs Fouche 1958 (3) SA 767 (T) can be distilled the general
proposition that formal admissions dispense with the necessity to
adduce evidence in an endeavour to establish proof of the facts in
issue but which are admitted.
her final submissions Miss Maqutu for the Crown buttressed her
viewpoint by reference to S vs Mjoli and anor 1981 (3)SA 1233 at
1247B where Viljoen JA is recorded as having said :
reason of the fact that an admission formally made by or on behalf of
the accused is 'sufficient evidence ', the effect is that such fact
virtually becomes conclusive proof against him because the accused
himself or his legal representative on his behalf has made the
admission and any effort by him or on his behalf to adduce evidence
countervailing such fact would be inconsistent with his having made
the admission". I am in respectful agreement with the position
neatly set out in this exposition of the law.
significant that learned counsel for the defence confined herself to
the submissions contained in her heads of arguments which in turn are
confined to promotion of the view that it would be dangerous to base
a conviction on the single evidence of PW1. Needless to say, I have
indicated and Mis Maqutu for the Crown has properly submitted that
the view maintained by the defence is mistaken in view of the fact
that PW1's evidence does not stand in stark isolation in respect of
vital or material aspects of the case to depend upon for purposes of
further significance is the bold move adopted by the learned counsel
for the defence as evidenced by her laying her cards on the table, so
to speak, and making her point clearly understood that the fate of
the case for the defence stands
on the course she adopted as outlined in her heads. Significally
therefore she decided in arguments to remain silent on the issue that
raised much controversy during evidence by the defence, namely, the
question that the admission for the defence of Sgt Babi's evidence is
something that the defence may not resile from. I can only say the
wisdom of learned counsel in fighting shy of standing by her client's
evidence on this controversial issue is undoubted and has not escaped
the attention of the court because in my view the position of her
clients is indefensible regard being had to the body of authority
pointing to the opposite direction to the course they would have this
Court pursue. Indeed learned Counsel in pursuing that would soon find
herself in an unenviable position of riding on two horses by
rejecting on the one hand what she solemnly admitted on behalf of her
clients on the other.
illuminating to observe the Lesotho Court of Appeal recent treatment
of a similar case to the instant one. The case in point is C of A
(CRI) No. 8 of 1997 REX vs Sehloho Joseph Maphiri (unreported) at
page 10 where it is stated :
"Mr Lesuthu submitted that by admitting the evidence the accused
did no more than admitting "that (the) witnesses who were to be
called were going
to say exactly what they said at the preparatory examination. By such
an admission we did not admit to the truth of the depositions".
denouncement of the Appeal Court regarding the import of the above
passage was fast and immediate ; and was as follows:
"If what Counsel admitted on behalf of his client were
'admissions' this contention cannot be sustained. If an admission is
made freely and voluntarily any fact so admitted is in terms of
Section 273 ' sufficient evidence of such fact' ".
Learned President of the Appeal Court namely the Honourable Mr.
Justice Steyn went further to say :
the procedure adopted by the crown, facilitated by the defence
counsel and accepted by the court, in reading the evidence into the
record in an attempt to convert such evidence into admissions in
terms of Section 273 (1) appears to be not only inappropriate and
ill-advised but may also not have achieved the desired objective. I
say this for the following reasons:
173 (1) of the Act provides as follows :
'Every criminal trial shall take place, and the witnesses, save as is
otherwise expressly provided by this Act or any other law, give their
evidence viva voce, in open court in the presence of the accused
unless he so conducts himself as to render the continuance of the
proceedings in his presence impracticable, in which event the court
may order him to be removed and may direct the trial to proceed in
his absence ' ".
rather causes me some anxiety regarding the Learned President's
criticism of the adoption of Section 273 (1) is whether this section
ceases to be the law anymore or whether it remains the law only as
long as an accused person on whose behalf the admission of a fact was
made by his counsel does not resile from such admission; so that if
he does so resile the position becomes that a priori it was
inappropriate and imprudent to have adopted that section in the first
as it may; consideration of cases cited in Maphiri above leaves no
doubt about the need to follow the provisions of Section 273 (1) with
great circumspection whenever the procedure set out in that section
13 of Maphiri above reference is made to S. vs Thomo and Ors 1969 (1)
SA 385 where at 387 [F] -  Wessels JA says the following :
"In the preceding paragraph I referred to the fact that certain
facts were 'admitted ' at the trial. In terms of section 284 (1) of
the Criminal Code an accused may ' admit any fact relevant to the
issue ' and such admission' shall be sufficient evidence of that
fact'. Since the purpose of making admissions of facts is to dispense
with the need to call evidence to prove those facts, the reference to
'evidence' is inappropriate unless it is understood to mean ' proof.
" I agree respectfully with this exposition of the law ".
Maphiri above it is evident that counsel for the defence associated
himself with the stance adopted by his client, in the instant case
counsel didn't argue this point at the addresses phase. Accordingly
in Maphiri above the adoption of the procedure followed was described
as an example of inadvisability or indeed illegality as follows:
"The irregularity of the proceedings was compounded by the fact
that Counsel for the defence must have intended, when admitting the
evidence of witnesses who had testified at the preparatory
examination that the accused had stabbed the deceased, to convey to
his colleague and to the court that this fact was not in dispute. It
was of course open to the accused to give evidence that the stabbing
took place in e.g. self-defence or in the defence of the life of
another passenger on the bus. It was however quite improper to admit
the depositions knowing that your client would contradict a key
element common to both statements involved.
Therefore, once it appeared that there was no intention to admit this
vital fact, the trial Court should in my view have inquired as to
whether the decision to admit the evidence at the preparatory
examination was indeed made voluntarily by the accused and was made
in accordance with his instruction to his Counsel. To have proceeded
with the trial without such enquiry was in my view irregular"
learned President's remarks are quite apt and I endorse them. I would
only indicate that the objection to the admission should in my view
be raised at any stage during the recording of such admission. The
whole purpose of
interpreting the version being recorded in order to be adopted as
part of the proceedings is to ensure that what is being recorded is
in accordance with the particular accused's instructions. What I find
absolutely unacceptable is to let the admitted facts be recorded
within the accused's presence and hearing, proceed to hearing the
balance of the evidence and having had time to consider what may be
perceived as weaknesses in the totality of the Crown evidence seek to
have the crown case re-opened. In my view interrupting the admitted
evidence in order to call viva voce evidence is not much different
from making an application for the re-call of a witness who has
finished giving his evidence. That can be done and has time and again
been done in practice. The practice that I feel should be discouraged
is one whereby one side seeks to have a second bite at the cherry at
an awkward stage of proceedings as far as the other side is
Honourable Steyn P. continued to consider the authorities in
conjuction with the relevant evidence as well as the treatment by the
Court a quo of the evidence and facts in Maphiri above.
referred to the sentence relied upon by the court a quo where the
learned Judge in that Court extracted a passage from 2nd Edition of
Hoffmann and Zeffertt : The South African Law of Evidence in which
the learned authors say :
"There is no authority dealing with the circumstances in which
formal admissions made in Criminal proceedings may be withdrawn. In
principle there seems no reason why this should not be allowed at any
time before the verdict--------".
appears that the Court a quo banking on the suggestion contained in
the learned authors' view that there seems to be no reason why
admissions cannot be allowed to be withdrawn went further to develop
and justify his attitude by concluding as follows
"It seems to me, therefore, where the accused, having admitted
the depositions made at the Preparatory Examination, goes into the
witness box, so to speak, withdraws part of the admissions he has
made by denying the correctness thereof he is, on principle, entitled
to do so and court cannot simply dismiss him on the ground that he
initially admitted all the depositions made at the Preparatory
importance is that in immediate reaction to this statement the
learned Steyn P categorically and unequivocally says "With
respect, I am constrained to
with this conclusion". For my part I most heartify endorse the
learned President's reaction.
was addressed briefly in connection with the charge preferred in
count 2 on this special day and after previous addresses had been
heard and concluded and reservation for judgment postponed last
Friday. Due to some omission both Counsel had forgotten to address
court on this count of assault. The Court mero motu postponed
delivery of Judgment to enable counsel to address it on this
Maqutu accordingly submitted that evidence clearly reveals that the
two accused set out for the home of PW3 early in the morning
demanding to see her brother Tseliso.
again shows that she was put in fear for her life when a firearm was
pointed at her by accused 1 who was very angry in company of accused
2 who was swearing at her and urging accused 1 to shoot at her.
further indicated that she went and reported the matter as soon as
the coast was clear and could afford to do so without attracting the
who had accosted her in anger.
Counsel indicated that inspiring another with fear that a firearm
pointed at him is readily going to be used against him amounts to
assault -I agree.
response Mrs Kotelo submitted that accused 1 does not deny going to
PW3's place. He is said to have been angry when he got there because
of the alleged rape by Tseliso of his sister accused 2.
accused 1 says he didn't point a gun at PW3. Thus he couldn't have
been guilty of assault. The same goes for accused 2 who only met her
brother on his way from there and retraced her steps without getting
to PW3's place.
already dealt at length with the lack of substance in the denials by
the accused in this connection. Because in my view their explanation
cannot be reasonably possibly true in this regard it is rejected as
false beyond doubt.
regard to Count 1 it appears patently clear to this court that the
two accused had embarked on a common action to punish Tseliso for his
But it so happened that the wretched soul, Sekhoane the deceased,
happened to be at the wrong place at the wrong time. Thus it cannot
even avail the accused were they to say that they didn't intend
molesting or even killing Sekhoane but Tseliso instead. Thus the fact
that it is Sekhoane who died does not affect the position regarding
the intent to kill. The requisite mens rea is there coupled with the
result accused 1 and 2 are found guilty as charged in Count 1.
Further accused 1 and 2 are found guilty as charged in Count 2.
in regard to Count 3 only accused 1 is found guilty as charged while
accused 2 is acquitted and discharged in this Count on the tenuous
excuse that the person who made an effort to ensure that the firearm
was fetched from his steel trunk is accused 1.
: MISS MAQUTU
DEFENCE : MRS KOTELO
now at the extenuation phase of this proceeding. Extenuating
circumstances have been described by various authorities as such
factors as should be taken into account for purposes of reducing the
moral blameworthiness of an accused person in respect of a capital
offence of which he has been convicted.
purpose of determining the existence, if any, of extenuating
circumstances is to help an accused person avert the full vigour of
the law; by which I mean avoid the ultimate penalty.
stage factors to be considered are different from those considered in
the previous stage from which we have just graduated. The test that
an accused person who lays a claim to the existence of extenuating
circumstances is a subjective test, and what this means is that the
onus this time is on an accused person, on a balance of probabilities
to establish entitlement to the finding that extenuating
circumstances exist in his or her case.
been, on numerous occasions, stated that the factors to take into
may include youthfulness on the part of the accused, drunkeness as an
element in the commission of the crime, provocation can be one of the
factors, the list we are told is not exhaustive. And these factors
can act individually or cumulatively; it is cautioned that the court
is definitely enjoined to overlook no element unless it is absolutely
not connected with or has no bearing on the crime committed.
the approaches is that an exparte address can be made as was just
done by Mrs Kotelo on the one hand. Otherwise another method would
have been for the accused to give evidence to establish the existence
of extenuating circumstances.
Lefaso vs Rex C of A (CRI) 7 of 1989 Schutz P.; as he then was,
indicated that the defence Counsel should, when making an ex parte
address to apply for the finding by court that extenuating
circumstances exist meet and agree with the other side and find if
they are agreed on factors that could be common cause as constituting
Kotelo has addressed the court on the existence of extenuating
circumstances in this case. Starting with accused 2 she said that she
business and enjoying liquor at the stokvel, and when she went
outside, as the evidence indicated, to pass water behind the house
she was approached by Tseliso who she alleges raped her. And the
natural reaction for accused 2 was to see the perpetrator of the
offence perpetrated on her punished.
learned Counsel indicated events from then on followed each other
pretty much quickly, allowing not much time for cool thinking on the
part of the accused; least of all accused 2.
Counsel's next addressed herself to the question that although PW3
said she had not seen accused 2 drink, possibly it was because
accused 2 used to handle her drinking very well, for as teamed
counsel indicated she had been drinking for a long time.
the factors that Learned Counsel wanted to be taken into account
concerning accused 2 is that she delivered no blow to any of the
crown witnesses , and that accused No.1 is not her servant but a
terms indicated that there couldn't be any excuse for taking away the
human life and that sadly enough it was an innocent life that got
Court that it shouldn't overlook the fact that she had her own
grievance in the matter because she had been degraded by a horrendous
crime perpetrated against her.
accused No. 1 evidence here should be common cause that he had been
drinking because the evidence so stated, and PW3 who cannot be
contradicted in this regard indicated that she had never seen accused
No. 1 that drunk or behaving that way before. And the fact that this
witness says he was even staggering tends to give support to accused
No 1 's own claim that he had been drinking for a long time that day,
taking Sesotho beer and quarts of bottled beer.
learned counsel wished the court to take into account the effect of
beer drunk in that fashion taken along with the reception of
disconcerting and immediate'report about his sister's recent rape by
someone who is pointed at for that matter coming behind her while she
for the Crown responded to these submissions. But all in all I felt
that the thrust of her arguments could only be weighty to the extent
that there hadn't been any consensus between both counsel as to what
is common cause
regarding the existence or not of the extenuating circumstances.
However the court in such circumstances would be at large to revisit
the evidence or any element that emerged from the evidence that
supports the submissions to the effect that extenuating circumstances
exist: One of the commonest ones and most outstanding is that there
was drunkeness and I am prepared to accept that this drunkeness
affected both accused 1 and accused 2. This has been borne out in
evidence and the question of rape while perhaps doubtful the crown
has not strained to disprove its existence. So one would take it that
that would serve also as a factor which affected the minds of both
accused. Thus taken cumulatively with the question of drink
definitely one would not be wrong in regarding that extenuating
circumstances exist in this case.
result the court finds that the existence of extenuating
circumstances has been established in this case.
has just now been addressed by Mrs Kotelo for the accused on the
question of mitigation of sentence, and I accept her statement that
she has conferred with counsel for the Crown. Indeed learned counsel
for the crown has confirmed that this has been the case.
point therefore I would take it that it is agreed by both sides on
points which have been highlighted in the address in mitigation by
Mrs. Kotelo. She indicated that the question of interest of society
comes into play when considering the question of mitigation. She
indicated further that the two accused cannot really be seen as
common criminals. This aspect of the matter I think is borne out by
the crown's intervention to the effect that the two accused have no
Kotelo submitted that their removal from society doesn't seem to be
likely to benefit society in anyway if such removal is for a long
time. She urged however that while it may be important to teach them
a lesson not to ever take the law into their own hands this aspect of
the matter should be weighed
the fact that, but for their act of indiscretion, they would be
leading normal life.
herself specifically to accused 2 but by no means minimising the plea
in the same vein for accused No1, she stated that accused No 2 has
had a lot to lose in this episode. I accept the fact that both of
them have got three (3) children apiece ; and therefore that accused
1 has got three young children and a wife. The fact that the law
would require them to be separated from their families would itself
be punishment no matter for how short a time.
has considered all these factors which have competently been placed
at its disposal for consideration. But the court would be remiss
regarding its duty if it could ignore the fact that an innocent human
life has been lost. Furthermore it is a wrong thing to take the law
into one's own hands. That type of practice has got to recoil upon
the head of its perpetrator. One has a price to pay for that type of
also takes into account that the fact that you have reached the
station in life in which you are of having three (3) children apiece
without ever having contravened the law is something to your credit.
The court has also to take
account the fact that this case has been hanging on your heads for a
long time since the commission of the crime in 1993 May to date,
which is almost ten (10) years ago now. That in itself is a form of a
punishment in the sense that it has engendered anxiety in your minds
from day to day throughout all that period.
accused stand up.
one: accused 1 is sentenced to eight (8) years' imprisonment.
two : that is assault, he is sentenced to five (5) months'
three : that is illegal possession of a firearm, he is sentenced to
months' imprisonment. All these sentences are to run concurrently
with each other. With respect to accused 2, she is sentenced to three
(3) years' imprisonment in Count one, (that is of murder).
two, she is sentenced to three (3) months' imprisonment.
three she was acquitted and discharged. In the result the two
sentences are to run concurrently.
the sentence of this court, and its order.
: MS MAQUTU
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