IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

v

ELLIAS
PHISOANA RAMAEMA

SECHABA
RAMAEMA

KEKETSO
RAMAEMA

TOKA
LETSIE

DAVID
MASITO

BONGANI
MASITO

NTSIE
SEBATANA

J U D G M
E N T

Delivered
by the Honourable Mr Justice WCM Maqutu on the 11th Day of April,
2001

The
accused are charged with murder and robbery:

COUNT 1:
MURDER

In that
upon or about the 21st of January 1999 and at or near Florida in the
district of Maseru, the said accused acting in concert, each or

2

other or
all of them, did unlawfully and intentionally kill PATRICK KENNEDY
HICKEY.

COUNT II
ROBBERY

In that
upon or about the 21st day of January 1999 and at or near-Florida in
the district of Maseru, the said accused acting in concert, each or
other or all of them did unlawfully and with the intention of
inducing submission by the deceased PATRICK KENNEDY HICKEY to the
taking by accused the following items of to wit:

1. White
   Toyota Hi Lux Van Registration Number AM273

   
   

2. Cellular
   (mobile) phone Siemens S6

   
   

3. Wallet
   containing M100 in cash.

   
   

threaten
the said PATRICK KENNEDY HICKEY that unless he consented to the
taking by the said accused of the said property or refrained from
offering resistance to them in the taking of the said property, they
would there and then stab him; did then and thereupon take and steal
from the person of the said PATRICK KENNEDY HICKEY the said property
of the deceased or in his lawful possession, and did rob him of the
same.

The Crown
applied for a separation of trials in respect of accused 7 Ntsie
Sebatana who had absconded and had not been re-arrested. The
application was granted. Nevertheless for convenience Ntsie Sebatana
was still

3

referred
to as accused 7.

All the
accused pleaded not guilty to both charges.

Crown
Case

The Crown
called nine witnesses.

The first
witness was John Paul O'Donoghue (PW1), from the Irish Consulate now
stationed in Maputo. Duly sworn;he said in January 1999 he was
stationed in Maseru, where he was the Attache for Development. The
late Patrick Kennedy Hickey worked in the rural foot-bridge project
of the Government of Lesotho which was supported by the Irish
Government. He was an old man in his seventies and was living alone.
He was an extremely fit person in the view of PW1.

Deceased
had been allocated a white Toyota Hi Lux van AM 2731 for his work. On
the 30th January 1999 PW1 was requested by the CID to come and
identify that vehicle. He was able to do so as he had brought its
registration book Exhibit "D". This Registration book for
the vehicle AM 273 is commonly known as the Blue Card.

PW2 was
also able to identify the vehicle because he had the duplicate keys
of AM273 - these keys together with the key to the alarm system
commonly known as the immobiliser, fitted the vehicle and could start
the vehicle - as the ignition key fitted the vehicle. Deceased (the
late Patrick Kennedy

4

Hickey)
had the other set of keys. In the Blue Card the vehicle is described
as a Toyota Hi Lux Van, model 1998, fuel diesel. It had been
registered on the 18th April 1998 as AM 273.

PW1 found
the number plates different,-but the engine and chassis numbers still
remained unchanged and consequently corresponded with those on the
Blue Card. The paint work was disturbed or painted over where blue
stripes had been. Originally this van AM 273 had a blue stripe on
both sides below the windows is running from the front to the back of
the vehicle. The keys that fitted the vehicle AM 273 were handed in
as Exhibit 1 without objection. PW1 noted that there was still a
strong smell of pipe tobacco inside the vehicle - as deceased was a
pipe smoker. No questions were put by the defence to this witness.

The
second Crown witness was Mosemako Hlalele (PW2). This witness was an
accomplice. After being declared an accomplice, the court asked him
if he was willing to give evidence PW2 said he was willing. The court
then told him that he would be granted immunity at the end of trial
if he gave his evidence honestly and satisfactorily. PW2 was very
ill. He was sometimes supported with pillows in court. The court had
to have several adjournments so that PW2 could have medical
attention. He was very lean and weak throughout the trial. The case
had to proceed because there had been far too many postponements.

5

When
accused 5 and 6 went to Thamae's, at the business premises of accused
2, they invited PW2 to come along with them. Accused 2 met PW2
directly there. PW2 told him, accused 5 and 6 that he would take them
later to go and see the vehicle he wanted. It was still too early to
do so as the man who had that vehicle knocked off at 4pm. At about
3.30 pm accused 2,5,6 and PW2 boarded a van belonging to accused 2
and went o Khubetsoana where the said vehicle was parked. It was
outside a building that had government flags. Accused 2 showed them
the vehicle. It was a white 4x4 Toyota van. It had a stripe in the
middle of its body. It was shiny with a mixture of metallic colours.

Accused
2, 5, 6 and PW2 waited for the owner of the vehicle to knock off from
work where he was going to pass on the road to the Agricultural
College. When that man passed in the white Toyota 4x4 which accused 2
wanted, they followed him. When they got to Seputaneng the traffic
lights closed and they had to stop while the white Toyota 4x4 drove
on - consequently they lost sight of that vehicle. They looked for
it, when they emerged from the railway station, they saw it at a
distance going towards the Maseru Bridge. They drove around Hoohlo
village looking for it, until they found it parked outside a house.
Having identified the owner's residence at Hoohlo's they went to
Thamae's. When they parted, accused 2 said they should come back the
following day.

PW2 says
accused 2 had asked them how they planned to take that

6

vehicle.
They had said they did not know. Accused 2 suggested that one of them
could pose as a policeman. If so, he would prove white gloves. They
should And a hat that was similar to that of traffic policemen. Then
the white man (deceased) who was the owner of that vehicle would be
stopped by what he thought was a traffic policeman, they would way
lay him and take the vehicle. As they discussed what would happen,
they decided that accused 6, who was taller, would wear white gloves
and a hat similar to that of the traffic police and stop the vehicle
and they would then points a gun at him and take the vehicle. PW2
says he did not know what guns would be used because they did not
have them. The plan did not proceed further because they did not find
the hat.

They went
to accused 2's place of business at Thamae's. Accused 2 said since
they had not found a hat, they should go to deceased's home to see
with whom he stayed. PW2, accused 5 and 6 went to check if deceased
stayed with anybody: PW2 had letters which he would pretend to be
delivering but were wrongly addressed. When he knocked, he would hand
them to deceased and as deceased looked at their letters, he would
take note if there were any people who stayed with deceased. PW2 in
the afternoon went to the home of deceased with wrongly addressed
letters. He found two people from West or Central Africa, they were
in the outbuilding next to the garage. They told him to enquire in
the next house. PW2 went to accused 2, 5 and 6 to report that there
were people staying in the outbuilding. This fact was noted. They
left and did not go back that day.

7

On
another day accused 2 took PW2, accused 5 and accused 6 in a car and
dropped them at the school at Hoohlo nearby. It was already dark. The
four of them had discussed a plan of hiding in deceased's yard if
deceased went to the Hotel. The three accused would catch deceased
and take away his vehicle when deceased came back from the hotel.
They hid at different places in the yard of deceased. PW2 says they
saw deceased go out in his vehicle. Deceased did not return. They
reported their failure to accused 2 the following day.

The
following night after dark accused 2 took the three of them to the
school at Hoohlo. PW2, accused 5 and accused 6 hid in the yard of
deceased. Two people entered the deceased's yard. It was still the
West or Central Africans. Deceased left in the vehicle they wanted.
The sight of those two people made them afraid to act. Shortly after
the deceased had left they had to go. They reported this failure to
accused 2 the following day and accused 2 did not comment. This was a
third failure after Ntsie Sebatana had joined them and had been
introduced to accused 2 who had taken them to Hoohlo school.

The
following day they did not go because it was raining. The day after
that PW2, accused 5, accused 6 and Ntsie Sebatana decided to go
without going to accused 2 because they realised they had failed too
often and they believed accused 2 must have become fed up with them.
Accused 6 suggested that they should reinforce their squad with Toka
Letsie

8

accused
4. They agreed and accused 4 was included in their group. That night
the five of them went to deceased's place. They were armed. PW2 was
armed with a dagger with a Brown handle. Its blade was about 12
centimetres. The other accused were armed with knives. They hid at
hid at difference places. Accused 5 was at the gate. PW2 was at the
opposite comer of the house. While Ntsie Sebatana, accused 6 and 4
were hiding in the bushes next to the fence nearest to where deceased
would park the vehicle.

When
deceased alighted from the vehicle, Ntsie Sebatana, accused 4 and 6
did not get hold of the deceased from behind as planned. It was PW2
from the opposite comer who rushed at deceased from the front. They
wrestled but the others did not come. Deceased threw PW2 to the
ground they both ended on the ground. Deceased got up while PW2 was
still clinging to deceased. They separated and deceased hit PW2 with
a fist and PW2 felt dizzy and had to support himself with the wall of
the house. PW2 stabbed deceased on the chest. At that point accused
6, accused 4 and Ntsie rushed towards deceased. Accused 6 stepped on
the neck of deceased who had fallen and stabbed him on the chest and
ran away. Ntsie Sebatana and accused 4 also stabbed deceased and also
ran away. They ran towards town. PW2 ran away towards the river in
the opposite direction from the one the other three accused had
taken. Accused 5 had also run in the direction of the river (which
was the same direction that PW2 had taken). to They had heard a siren
of an ambulance.

9

Later PW2
and accused 5 returned to the deceased. Accused 5 was reluctant to go
back but only did so when PW5 convinced him that deceased must be
dead. They found deceased indeed dead. Accused 5 groped for the keys
of the vehicle on the ground and found them. They searched deceased,
took his wallet plus the waist cell phone. Accused 5 drove the
deceased's Toyota vehicle that they wanted and together with PW2.
They went to Motimposo and to Khubetsoana where they bought tobacco
and beer at the bar of Lechalaba at Khorong. From there they went to
Ramaema's place at Upper Khubetsoana. They drew the attention of the
watchman at Ramaema's gate to draw the night watchman's attention to
them. Eventually they were admitted into Ramaema's yard where they
met accused 2. It was at about 10 pm at night.

Accused 2
asked why they had not removed the number plates of the vehicle.
Accused 5 said they forgot to do so. After they had removed the
number plates at the back of the vehicle a child said that accused 2
was being called into the house by Mr Ramaema. Accused 2 went into
the house. PW2 told the court that he did not know how to remove the
number plates, it was accused 5 who had removed them. When accused 2
came back from the house, he said the old man had said they should
park the vehicle they had come with in the garage. Accused 2 brought
hot water from the garage and they removed the stripes at the side of
the vehicle.

11

They then
took all the papers in the vehicle they had come in. Accused 2 took
them to their home in a Venture motor vehicle. On the way they threw
the number plates into the Maqalika dam.

- The
court went on inspection in loco to see where deceased was killed and
where PW2 and the other accused were hiding. The garage of the
vehicle was in the outbuilding with a servant's quarters The vehicle
had been parked outside the main building on the drive-way to the
garage facing the garage door. The deceased had been killed a few
paces behind the vehicle at the side of the main building on the way
to the front entrance. He fell 3 paces from the corner of the
building.

Accused 2
had been given the deceased cell-phone but accused 2 did not know
where he sold it. After taking PW2 and accused's 5 home, it had been
agreed that they should come and see accused 2 at Thamae's the
following day. This they did. Accused 2 asked them how much they
wanted for the vehicle - accused 5 replied and said accused 2 could
pay them what he found fit. When this was said by accused 2, those
who were present were PW2, accused 5 and accused 6. Accused 2 did not
pay them except for M600-00, and gave them problems until they were
arrested. He had promised to make an appointment with the bank for
the rest of the money.

PW2 could
not identify the cell-phone he was shown because he was

12

not sure.
He was shown a dagger that looked like small bayonet with a
20centimetre blade and a black handle - he said it belonged to
accused 4, and that accused 4 used it on the deceased. He (PW2) had
used a dagger with a brown handle and a 12 centimeter blade and a
scabbard to stab deceased. It was handed in as Exhibit "2".
PW2 said he had borrowed it from a man he could no more remember, and
from whom he used to borrow that dagger often.

Gross
examined, PW2 said-he does not know when he was arrested: His date of
arrest that counsel for accused said was the 31st January 1999 he
could not deny since it came from documents in the (hands) of
counsel.

PW2
answering further questions said he had been arrested early in the
morning at the house of a friend. Many armed policemen had surrounded
the house he was in before sun-rise. They were so many that he could
not count. They knocked at the door and when he opened the door they
demanded the knife he had used. Not many questions were fired at him
during interrogation because he told them the truth.

He spent
5 to 7 days in custody. He was not released after making a statement
- he was detained though it was not for a long time. He signed his
statement but it was not read to him. He was taken to a Commissioner
of Oaths on a different day from the one he made his statement. He
does not recall all these events very well. If counsel, from papers
in his

13

possession,
claimed he was before the Commissioner of Oaths on the 5th February
1999, PW2 will not deny that. Similarly if documents in counsel's
possession show he was arrested on the 31st January 1999, PW2 will
not deny this. He does not recall if he made his statement on the 3rd
February 1999 from what appears on the statement, PW2 will not deny
that. He was not arrested at his girl friend's place but at the home
of Ekang, whose home is at Mafeteng where he had put up that day.

Cross-examined
on why, he stabbed deceased, PW2 said deceased had hit him with a
fist and might have done so again to finish him (PW2) off. PW2 said
he was not remanded to custody with the other accused, his case had
been postponed. PW2 said his home is at Fobane, Ha Mosae and that is
where he will go when the case adjourned. He had not absconded to
Carletonville in the Republic of South Africa as he is ill. He had
been told to report to the police if he should leave the country. He
had not done so because he had no money to come to Maseru. The police
went to arrest him on Friday on a day he cannot remember. He had not
been promised a reward because it was said he is a killer. He had no
problems with the police - he was lying down as he said this. The
case had to be adjourned to the following day because PW2had become
very ill.

The
following day when cross-examination continued, the condition of PW2
was still bad, but his illness was less acute although PW2 still
looked ill. Answering questions, PW2 said he left home without
telling his

14

mother
and sister where he was going. He had merely told the chief he was
going to South Africa without specifying the place because he himself
did not know. He had told his sisters he was going to look for work
in South Africa. He was not yet ill then. PW2 denied he had been
given a reward to testify as he was doing.

PW2
answering questions about his presence at the Ramaema residence said,
he cannot remember if they hooted at the gate. It was the first time
he went there that night. He does not know the number of houses in
the site. The only person he talked to there was accused 2. PW2 said
he does not know that he had ever said there was an instruction from
the old man that one vehicle in the garage should make way for the
Toyota they had brought. Accused 2 just drove that vehicle into the
garage. He does not recall ever saying they blew the horn at the gate
or talked to anyone else except accused 2.

The above
cross-examination had been by the first defence counsel Mr Phafane,
who appeared for accused 1 and 3. The next counsel to cross-examine
PW2 was Mr Ntlhoki (counsel for accused 2).

Answering
questions from Mr Ntlhoki, PW2 admitted that he had become ill
earlier after the death of deceased. He was in Queen Elizabeth II
hospital and during his illness, he even had a mental breakdown. He
was even nursed back to health by traditional doctors.

15

Cross-examined
further on behalf of accused 2 PW2 confirmed that accused 2 had
talked to accused 5 and 6 at the recruitment stage even if accused 2
now seeks to deny this. At that stage, accused 2 did not know PW2. He
was brought into the conspiracy by accused 5 and 6. Accused 2 was
aware that PW2 had been told everything by accused 5 when accused 2
first met PW2. Accused 2 lies if he says he never sent them on a
mission to go and steal a motor vehicle. If accused 2 claims he had
played no part in this mission, he has to explain why the vehicle was
found in his possession. The court observed that at this stage of the
cross examination the health of PW2 suddenly improved and his mind
became very clear. PW2 admitted that accused 2 did not participate in
the actual stealing of the vehicle, but he did give them advice on
how to go about taking the vehicle, consequently PW2 said he does not
understand how and why accused 2 claims he did not participate.

Dealing
with more questions from counsel, PW2 insisted that accused 2 who was
driving a venture on that occasion had approached accused 5 and 6 -
and these in turn spoke to PW2 whom accused 2 did not know at the
time. Initially PW2 had not been in the conspiracy but accused 2
involved him as he came to know him. Accused 2 must have been aware
that accused 5 had told him everything. It was the first time PW2
hijacked a motor vehicle, but accused 2 was not sure he was a
beginner or not.

According
to accused 2, they were to obtain police attire first and

16

hijack
the vehicle. PW2 could not specify the time of the highjack in broad
because the plan failed. It was not a good plan because that period
of the day is the busiest period in terms of traffic. Whether the
plan of one of them pretending to be a policeman was odd or not, that
was the plan. After the vehicle had stopped the others were supposed
to rush at the driver and seize the vehicle. PW2 said he has
forgotten what was supposed to happen in respect of obtaining a
fire-arm. They were supposed to acquire gloves and headgear of the
traffic police. Accused 6 who was taller was supposed to be the
traffic policeman. A white short and khaki trousers were easy to
find. Being referred to his statement before the police - PW2 a ZCC
hat would have sufficed so long as it would make a person look like a
traffic policeman. Of the five people who went to the house of
deceased, only accused 5 did not stab deceased.

Dealing
with accused 2's version of events, PW2 said he does not know Seeiso
Seeiso or Ptjoemptjoete from Matelile. He did not hear from Seeiso
Seeiso that accused 2 wanted a van. If accused 2 wanted a twin cab
van PW2 would not have know. If accused 2 put the date at 26 January
1996, PW2 said he does not know the date on which they met. Accused 2
lies when he says PW2 sold him a van. Accused 2 lies when he says PW2
drove the vehicle in question because PW2 does not know how to drive.
Accused is not telling the truth when he says PW2 ever promised to
bring papers for the vehicle in question. He never bargained with
accused 2 over the price of the vehicle. The price of M65,000-00
which was brought down

17

to
M60,000-00 for the vehicle in question never cropped up in their
conversation. If accused 2 said he ever promised that he would pay
PW2 such an amount of money, that is not possible because PW2 does
not believe he could ever had had such an amount of money - if he
paid PW2 such an amount of money accused 2 would have nothing to live
on. The only thing that is true is that accused had promised to go to
the bank (which he did) and brought only M600-00. He had not
mentioned the amount he would bring from the bank. If indeed accused
2 was waiting for the papers, he could not have given them M600-00 to
share among the three of them.

Dealing
further with accused 2's version of events, PW2 denied he ever left
the vehicle at the home of PW2 because he claimed it was not safe
where PW2 was staying. Accused 2 had volunteered to take them home.
He did take them home the day they had come to ask for their money.
That day when they got to Lechalaba's, they had heard over the radio
that anyone who provides a clue as to the death of the deceased would
be given the sum of M10,000-00. Accused 2 said to them, that was not
true, anyone who went to the police would be arrested. PW2 admitted
that had he not been arrested, he would not have told the police
anything.

PW2
hearing the version of accused 2 of events, said he never showed
accused 2 his premises or those of his girl friend. PW2 said the
police arrested him at Motimposo near the dam. It was the first time
he heard accused 2 says, he (accused 2) was responsible for the
arrest of PW2.

18

PW2 was
emphatic that he did not know the residence of accused 2, it was
accused 5 who knew, and who drove that Toyota vehicle there. PW2
denies he ever came to the home of accused 2 at 8 am accompanied by a
girlfriend. PW2 also denied that on that occasion he left the vehicle
at the residence of accused 2 promising to bring papers.

It is
true that when accused 2 first met PW2 at the police station accused
2 assaulted PW2 accusing PW2 of bringing disgrace on the family of
accused. If accused claims he told a policeman called Ramataboge and
that PW2 had vanished, PW2 says he was at Motimposo at the time. PW2
denies there was ever any need to trace him at the time.

PW2
answering questions insisted that accused 2 conveyed them to the area
where deceased's home was. PW2 said he had forgotten the number of
occasions this happened. The court wanted an estimate and after
hesitation PW2 said it could be about five times. The statement of
PW2 to the police showed it was about two times. If in his statement
to the police PW2 is recorded as having said they hooted that is
wrong, they flicked the lights. The statement showed some difference
from the evidence in court because it showed accused 2 had opened the
gate and that accused 2 removed the plate numbers, bent them and
threw them to the ground. PW2 insisted what he said in court was
correct although there were things he might have forgotten to say in
court. He blamed the police for not recording his statement properly.
PW2 said they threw the plate numbers

19

and the
papers they had found in the vehicle into the Maqalika dam.

Taxed
about his failure to mention a further M300-00 which his statement to
the police show PW2 and his colleagues got from accused 2, PW2 said
that was for the cellphone which accused sold for them. That
cell-phone belonged to PW2, accused 5 and accused 6, it had nothing
to do with the motor vehicle. Accused 2 who had gone with accused 6
said he sold the cell-phone for M300-00, PW2 is not sure if this is
what he in fact

he were
to deny this. The statement to the police is correct when it states
that they went to the wife of accused 2 drunk in the absence of
accused 2 threatening harm to accused 2 unless he paid them more
money. PW2 said it is true that he presently hates accused 2 and
harbours a festering grudge against accused 2.

Miss
Mahase who appeared for accused 4, 5 and 6 was the last to
cross-examine PW2. PW2 insisted that he was a friend of accused 5
despite a suggestion that he was not a friend of accused 5. They had
with accused 5 and 6 at one time stayed at the home of Mampolokeng.
PW2 insisted that he rented a room jointly with accused 6. He denied
that accused 6 was merely accommodating him. They were involved in
robberies with accused 6. Accused 6 lies when he said he stayed with
his wife who is Mampolokeng's daughter. PW2 never quarreled with
accused 6 over cassettes - those cassettes belong to accused 5.

20

Answering
further questions, PW2 said accused 4 was never his friend but they
stole together. They quarrelled with accused 4 when PW2 and accused 5
took away a firearm of accused 4. That fire arm in fact belonged to
the brother-in-law of accused 4. Relations between him and accused 4
soured but even so they robbed together. If accused 5 denies he was
involved the day deceased was robbed, PW2 insisted accused was
involved. Accused 5 drove the deceased's vehicle because PW2 could
not drive. PW2 insisted he, accused 2, 4, 5 and 6 did plan to rob
deceased. PW2 had been recruited for the hijacking job by accused 5
and 6. PW2 did not normally hijack motor vehicles. PW2 at one stage
during cross-examination said he did not go about with accused 5 and
6. He later corrected this statement and said he did not go with them
but not all the time.

The aim
in the robbery had been to scare off deceased and take his vehicle.
Accused 5 and 6 had said white people are afraid of knives. If we
could put a knife at the neck of deceased, deceased would be scared
and accused 5 would drive off with he vehicle. PW2 admitted he
stabbed deceased and deceased fell, and the others stabbed deceased
after deceased had fallen. PW2 had rushed and caught deceased from
the back. Deceased had screamed as they grappled until they both
ended on the ground. The other accused who were nearby did not come
to his assistance. They were all supposed to get hold of deceased -
they were not supposed to stab deceased. The others only came when
deceased had already fallen to the

21

ground.
PW2 admitted that it was the first time he said deceased had
screamed, but he had recalled that deceased screamed. Things did not
work according to plan. PW2 ran away from where deceased was when the
others ran away.

When Miss
Mahase quoted from the statement of PW2 in a manner that was not
fair, the court ordered her to read relevant passage as a whole. The
following passage was read about deceased:

"Then he came, switched off the vehicle, got down, locked the
doors, and lit a torch on his way to the house. It was then that I
caught him, he screamed (or shouted). I was holding a knife in my
hand he got hold of my hand and we fought for possession of the
knife. We ended up having fallen to the ground, then Bongani came and
stepped on him on the neck. I was then able to pull the knife and
step back. Toka Letsie came and then Bongani said 'stab him'. Toka
stabbed him. I had already stabbed him on the chest first. Toka
stabbed him three times while deceased was still screaming. Ntsie
then stabbed him two times."

PW2 said
what he said to the police was correct, he may have forgotten some of
the issues. PW2 said accused 2 caught him (PW2) as they were running
down. This PW2 conceded he had not said before but it was true

22

that
accused 5 did catch him. PW2 had convinced accused 2 later that the
deceased was dead, they could take the vehicle

PW2
denied that he had ever said to the police a toy gun was supposed to
be used at the time one of them pretended to be a policeman. Accused
insisted that despite the fact that it did not appear in the
statement, they did lose sight of the deceased at the traffic lights.
PW2 insisted that what he was saying is true. At the stage of their
arrest, it was very bad. He was pinched a little before he could tell
the truth. He was pinched a little at the time of arrest. By being
pinched a little PW2 said he meant that he was whipped a little. He
was whipped by the police before he could produce the knife. After
that PW2 says he was not whipped again because he told the truth.

The Crown
then called Thabo Fosa PW3. PW3 testified that accused 2 between 1998
and 1999 came with someone to supermarket at Borokhoaneng where PW3
was working looking for a buyer of a cell­phone. PW3 found a
buyer for the cell-phone and put that person (Mothae is his name) in
touch with accused 2. Mothae left with accused 2and his companion and
PW3 does not know what transpired. Accused 2 was their regular
customer. Answering questions from counsel for accused 2, PW2
confirmed he himself had bought a Nokia cell-phone from accused 2 in
January 1999. After that accused 2 had said he was selling a Siemens
cell-phone. This was the cell-phone Mothae eventually bought. It had
no

23

specific
distinguishing features.

PW4
Mothae Nonyana confirmed that PW3 had put him in touch with two
people he did not know. These people were selling a cell-phone. Asked
to look carefully at all the accused, PW4 said one of them is accused
2 who is wearing glasses. They left PW3 and went to negotiate a sale.
The price they quoted was M500-00. The price was eventually fixed at
M350-00. PW4 went to the bank, withdrew M300.00 and gave it to them.
He was given the cell-phone after promising to pay M50.00 through PW3
later. The cell-phone was a Siemens S6. One day he police came for
it. PW4 under cross-examination insisted a Siemens cell-phone was
sold to him even if accused 2 denied this.

PW5 was
Paseka Maphale who had lent PW2 a dagger with a brown handle. This
knife had been demanded by the police after PW2 has returned it. This
witness said PW2 and accused 6 had borrowed this knife from him. PW5
said he did not know accused 6 at the time but was taught his name by
the court, he only knew accused 6 by sight. PW2 had returned the
knife of PW5 accompanied by accused 6 and accused 4 whose name he
also learned here in court. Under cross examination, it transpired
that in his statement to the police PW4 had never referred to accused
4 and 6. His statement was clearly inconsistent with his evidence on
this point.

PW6 Tikoe
Matsoso said deceased a Siemens S6 cell-phone. He

24

could
identify it with some scratches on it. He said before the police, he
identified it with those scratches and a strong odour of pipe tobacco
that is had. This came from the heavy pipe smoking that deceased
indulged in. PW6 is a Lesotho Government employee who had worked
closely with deceased. Under cross-examination it emerged that PW6
had said nothing in the statement to the police about those scratches
and the strong tobacco odour in the Siemens S6 cell-phone that PW6
had said before court that had identified the cell-phone with.

PW7
Mthimkulu Mavuso had told the court that he had been an occupier of
deceased's servant's quarters. On the night deceased died, he had
heard nothing because he had been drinking and had fallen into a deep
sleep. The following day when he woke up he found many people ,
policemen outside. When the police invited him to approach he saw
deceased lying prostrate and there was blood on the ground.

PW8
detective Trooper Tlotliso Mphephoka gave evidence as a crime-scene
officer. He had taken photographs of the deceased lying prostrate on
the ground, together with injuries on the deceased. He also took some
post mortem photographs before a medical officer at the mortuary. He
handed in a photo album Exhibit B. There were signs of struggle. He
also observed crops of blood at the gate on entry. There was blood
where deceased had been lying and drops of blood on the outside wall
of he house that had been near that spot. He had also photographed
the

25

spot
where the keys of deceased had been found.

The
evidence that followed was that of PW9 Inspector William Mosili. He
told the court that when he took over the investigations, the
deceased's death had been given extensive radio and press coverage. A
reward of M10,000.00 was also offered for any information that might
lead to the arrest of the culprits.

Particulars
of deceased's vehicle had. been given and PW9 had recorded them in
his note book. The vehicle of deceased was a Toyota Hi Lux Twin Cab,
with a canopy. Deceased (from information PW9 had) had not only been
robbed of that vehicle, he had also been robbed of a cell-phone and
an amount of Ml 00.00. Investigation continued.

On the
29th January 1999 - a week after they had got information about
deceased's death - the police got information during the night. On
the 30th January 1999 early in the morning PW9 and several policemen
raided the home of Major General Ramaema, the first accused. The
information he acted upon was not from the late Detective Ramatabooe.
It was at 5.30 am when they got there. On arrival, PW9 saw accused 2
Sechaba inside the yard of accused 1 at a time the gate was still
locked. He called accused 2, whom he had known since 1989. Accused 2
ignored him and went to the eastern side of the house and got out of
sight.

26

Accused 1
went to the gate and asked what the police wanted at his home.
Detective Warrant Officer Lephole said they had come to search the
place. Accused 1 demanded a warrant. Warrant Officer Lephole told
him, his rank entitled him to search without warrant. The discussion
was long, did so.

Then PW9
started searching the garage which had been locked. They found a
Mercedes Benz and a white Toyota Hilux Twin Cab after the garage had
been unlocked. It bore the registration number D0440. PW9 demanded
the Registration Certificates of those vehicles. Accused 1 could only
produce papers for the Mercedes Benz. He had none for the Toyota Twin
Cab. PW9 warned and cautioned accused 1. PW9 then examined the engine
and chassis numbers of the Toyota Twin cab and found they
corresponded with those of the deceased's Toyota Twin cab which he
had recorded in his note book. Accused 1 gave an explanation
voluntarily and referred PW9 to accused 3 the wife of accused 2.
Accused 3 provided PW9 with a bunch of keys which fitted the Toyota
Hi Lux twin cab. The keys fitted the doors and the ignition of the
vehicle, their immobiliser could operate the vehicle's alarm system.
Accused 3 was cautioned and gave a voluntary explanation.

There was
a canopy outside the garage. Accused 1 gave PW9 an explanation about
it. There is a big house and other small houses. Accused

27

3 had
brought the keys from one of the small houses. Accused 2 knew PW9 is
a policeman and they knew each other very well. PW9 arrested and duly
charged accused 1 and 3 with the crimes of robbery and murder. He
took the Toyota Twin Cab and the canopy both of which he had seized.
was identified by PW1 O'Donoghue in the presence of accused 1 and 3.
PW1 had a Registration Certificate of that vehicle, spare keys and
immobilizer which operated the vehicle. The chassis and engine
numbers corresponded with those of the vehicle

On the
31st January 1999 PW9 found accused 2 and his attorney Hae Phoofolo
sitting in a car. PW9 cautioned and warned accused 2 but accused 2 in
the presence of his attorney freely and voluntarily gave PW9 an
explanation. Accused 2 took PW9to Tsiu's where he pointed out accused
5,6 and Ntsie Sebatana (accused 7). Accused 2 gave an explanation.
PW9 cautioned accuseds 5,6 and Ntsie Sebatana (accused 7) and
arrested them. At that stage PW9 was only with PW8. Accuseds 5 and 6
and Ntsie Sebatana (accused 7) took PW9 to Lower Tsiu where PW9
arrested PW2 -the accomplice. PW9 introduced himself and arrested PW2
as well. Accuseds 5, 6 and Ntsie Sebatana (accused 7) took PW9 to
Motimposo where they pointed out accused 4 who was arrested after
being cautioned accordingly. PW2 took PW9 to PW5 and demanded the
dagger exhibit 2 and PW5 gave it to him.

28

Accused 4
took PW9 to Pusetso Matsepe where accused 4 asked for a dagger which
Pusetso Matsepe handed to accused 4. Accused 4 gave it to PW9 after
giving an explanation. The dagger was handed in and marked Exhibit
"4". Accused 2 took PW9 to PW3 Thabo Fosa who gave PW9 an
explanation that eventually led to PW4 Nonyane who gave PW9 a Siemens
S6 cell-phone with an explanation. It was handed in as Exhibit "5".
PW6 handed in the Toyota Hi Lux Twin Cab 4 x 4 seized from accused 1
and it was marked Exhibit "6".

The court
went to examine Exhibit "6" the Toyota Hi Lux Twin Cab 4x4.
It found it white in colour. On its bakkie there was a white canopy.
At the back it bore registration number D0447. All windows bore the
number 0005100. The bonnet was opened and the Engine Number was 3L
4408343 Chassis Number AHT31 LN6700005100. The vehicle is all white -
there is no evidence that it ever bore any other colour.

Under
cross examination it emerged that the RLMP12 forms that were
presented to the Clerk of Court to authorize the keeping of exhibit
were filled by other policemen who claimed to have seized the
exhibits. PW9 said he authorised them to fill them on his behalf as
they were working as a team and were present.

PW9 said
he knew accused 1 and had known him as a Major General who led the
country until 1993. PW9 said he did not know if he normally

29

uses an
old van D2250. That van had been parked outside the garage. PW9
conceded that accused 2 is a married man who lives in a house in
accused 1's yard and that accused 2 is the eldest son of accused 1.
PW9 did not know that accused 1 gave accused 2 the vehicle D0440 many
years back.

accused
1. PW9 admitted he did not know the parking arrangements in the
garage. There were 35 policemen divided into 4 sections the day they
went to accused 1's home at 5.30 a.m.

AH that
accused 3 had done was to hand over the keys of Exhibit 6. She had
said accused 2 would account, she did not know about the vehicle
Exhibit 6. PW9 said he also took Khojane, accused 2's younger
brother, that day as part of the investigations, although he did not
interview Khojane personally. PW9 knew nothing about the issue of
plate numbers and the instructions of accused 2 to Khojane.

Asked
about PW2, PW9 confirmed that he had said PW2 had absconded. PW9
found that during this period PW2 had been working at a mine in
Carletonville. After missing PW2 when PW9 went to Carletonville PW9
eventually found PW2 at he right mine and told PW2 to go home. PW9
denied that he himself pinched or thrashed PW2. He was merely firmly
told to produce the knife and he produced it. He could not be
thrashed because PW9 was there.

30

Asked by
counsel for accused 2 PW9 agreed that he had previously given accused
2 his cell-phone number. He also confirmed that he and accused 2
worked harmoniously while Mr. Phoofolo - the attorney was there. PW9
denied it was accused 2 who 'phoned him, he said it was the
deceased's vehicle on the instructions of accused 2. Accused 6
pointed the deceased's Siemens 6 cell-phone that had disappeared. PW9
traced it. PW9 said even if accused] denies he went with PW9 to trace
the cell-phone, PW9 said accused 2 did so. Accused 2 showed, Thabo
Fosa PW3 to PW9 who otherwise would not have known him.

In answer
to further questions PW9 insisted that accused 2 was there on the
30th January 1999 when they went to the home of accused 1. Accused 2
had been given the cell phone number of PW9 by PW9 himself not by the
late Ramatabooe. This was in 1998 in connection with other cases. The
attorney of accused 2 Mr Phoofolo is the one who 'phoned PW9 and they
met next to that attorney's office. They went to Tsenola with accused
2 and PW8 in Mr Phoofolo's car, PW2 was not there. Accused 2 pointed
out accused's 5,6 and 7 (Ntsie Sebatana). When PW2 was pointed out by
accused 5,6 and 7 other policemen had come and PW9 arrested him. PW9
denied that accused 2 ever pointed out the home of the girl friend of
PW2 while Mr Phoofolo was there. PW9 said Mr Phoofolo had been asked
to go as two vehicles bringing police reinforcements driven by Senior
Inspector Baholo and Trooper Mahao had come. It is untrue that PW8,

31

PW9 and
accused 2 were taken to the police station in the attorney's car.

It is
true that when accused 2 first met PW2 at the police station, accused
2 assaulted PW2. His complaint was that PW2 had given him a stolen
vehicle whose owner had been killed.PW9 did not believe Khojane could
have mixed up Exhibit 6 a 1998 model with the 1988 twin cab - such a
mistake was not possible. He was not aware those plate numbers were
put by Khojane by mistake on Exhibit 6 on the instruction of accused
2.

In answer
to question by counsel for accused 4,5 and 6 PW9 said he arrested
accused 5,6 and Ntsie Sebatana between 5.30 and 6 am and he had been
led to them by accused 2. He did not pass them on the way, he found
all three sleeping with girls. PW9 at that stage was with accused 2
and PW8. These accused later showed PW9 where PW2 could be found.
Accused 2 knew accused 5 and 6 before PW9 could arrest them. In the
written report dated 12th January 2000 PW9 had mixed up the knives
that had been obtained from accused 4 and PW2. To the question that
demonstrated the coincidence that all accused just co-operated to
produce exhibits and show PW9what was needed, PW9 retorted that the
accused did co-operate as PW9 had testified. PW9 denied bringing a
knife accused 4 did not know and claiming accused 4 had stabbed
deceased with it.

The
defence formally made the following admissions:

1. The
   body that was examined by Dr Molapo (the district

   
   

32

surgeon) was that of the deceased Patrick Kennedy Hickey.

2. The
   body of deceased until it was examined by Dr Molapo had sustained no
   further injuries.

   
   

3. The
   vehicle registration D0440 a Toyota Hi Lux Twin Cab van had been
   registered in the name of Elias Phisoane Ramaema long before
   21stJanuary 1999. This was had been beige in colour ad had been a
   1988 4x4. Its fuel was petrol. These numbers had not been
   reallocated as at 3rd February 1999. The engine and chassis numbers
   

   
   

4YO177090 and YN670015951 respectively.

4. The
   vehicle registration number AM273 a 1998 Toyota Hi Lux van had been
   registered in the name of Irish Consulate (Rural Development Support
   Project). Its fuel was diesel. The engine and chassis numbers were
   3L4408343 and AH T31LN6700005100 respectively - This was handed in
   as Exhibit 6.

   
   

In
examining Exhibit 6, I had observed it was also a 4x4 twin cab. I
noted from the Oxford Pocket Dictionary that beige is a pale sandy
fawn colour. Exhibit 6 was by observation of the court white. This
question of the difference between beige and the white colour of
Exhibit 6 was not put in issue during trial.

There was
another set of admissions by the defence. These were:

33

1. The
   contents of the post-mortem report exhibit "B" which
   included the findings of Dr Molapo and that these were Dr Molapo's
   findings relating to the body of the deceased, PATRICK KENNEDY
   MICKEY on the 25* January 1999. 21 That photographs K,L,M,L,M,N,O,
   and P were taken during the postmortem.

   
   

2 2 The wounds were caused by a sharp object such as a knife.

23 Wound No.1 was fatal and for a short time deceased might move
after the wound was inflicted before deceased died.

2.4 The other three wounds were not fatal except that wound no.2
might be fatal over a long period.

25 The body of deceased was discovered by Makenete Molapo a water
metre reader at 7.40 a.m. on 22nd January 1999.

26 The deceased's body was lying in the manner depicted in
photographs B, c and D of the album.

The photo
album in the second set of admissions is marked as Exhibit "C"
while the album in court was marked Exhibit "B".

At the
end of the Crown case, accused numbers one and three were released
after an application for their discharge.

34

It was
clear that accused 1 had been charged because his number plates were
on the stolen vehicle exhibit 6 which had been in the garage of the
house of accused 1. It was not disputed that the plate numbers found
on exhibit 6 were those of a vehicle that accused 1 had given to
accused 2. It was not disputed that accused 2 also had the use of the
garage of accused 1.

Accused 2
still lived in the premises of accused 1 as he was the son of
accused. Accused 3 had been charged merely because she produced the
keys of the vehicle and because she was the wife of accused 2. Indeed
there were definite indications in cross-examination and the Crown
case as a whole - that it was accused 2 who would account for the
presence of the vehicle Exhibit 6 in accused 1's premises.

Defence
Case

Accused 2
was he first witness for the defence. He stated he was 38 years old
and is married to accused 3. Accused 1 is his father. Accused 2
consequently lives in one of the outbuildings in the home of accused
1. This outbuilding in which accused 2 lives has four rooms. Accused
said he has two brothers namely Motlatsi and Khojane. Accused 2 said
he is a business man. He has a shop which has a bar at Thamae's. He
also owns several taxis.

Accused 2
then told the court that he had known PW9 Inspector

35

Mosili
since 1997 and PW9 knows him too. PW3 Thabo Fosa also knows him well
as accused 2 used to buy often at a Chinese wholesale at which PW3
works . PW4 Nonyana whom accused does not know also does not know
accused 2 although he pointed accused 2 in court in a dubious manner.
Contrary to what PW2, the accomplice, had said before the court,
accused 2 had had no dealings with accused 4, 5 and 6 or Ntsie who
was accused 7 in the indictment.

Accused 2
told the court that he does know PW2, they were brought together by
Ptjemptjete whose real name is Seeiso Seeiso. Seeiso had known since
November 1998 that accused 2 wanted a Toyota Twin cab. On the 26th
January 1999 Seeiso had 'phoned accused 2 and asked him if he still
wanted a Toyota Twin Cab. Accused answered that he still wanted it,
whereupon Seeiso said there was a person selling one and he would
bring that person to accused 2's shop. Seeiso brought PW2 to the shop
of accused. That is when accused 2 met PW2 for the first time.

Accused 2
said Seeiso brought PW2 to the business premises of accused 2 and
parked outside it. Accused 2 went to the vehicle (a white Toyota Twin
Cab) got inside it and found PW2 at the steering wheel. Seeiso
introduced PW2 to accused 2 and accused 2 learned that the name of
PW2 was Mosemako Hlalele. The vehicle bore an expired South African
special permit on its screen. It had no number plates. Accused 2
asked PW2 why he was selling such a new vehicle. PW2 said the vehicle

36

belonged
to his parents. PW2's father had died and PW2's mother had agreed
with PW2 that it should be sold because of his late father's debts.
Accused 2, who is a qualified mechanic, could see the vehicle is new.

PW2 asked
for M65,000-00 as a selling price for the vehicle. Accused 2
negotiated for a reduction of the price, eventually the selling price
was reduced to M60,000-00. It was agreed that accused would pay a
deposit of M40,000-00 and pay the balance within 3 months. Accused 2
did not pay for the vehicle there and then. He asked for papers for
the vehicle. PW2 said he would bring them from his home at Fobane Ha
Mosae in the Leribe district. PW2 said he would not be able to go to
Leribe in that vehicle because the special permit for the vehicle
expired on Monday the 25th January 1999 - which was the day before.
He would not want to drive it to Leribe and thereby get into trouble
with the traffic police. They were still at the shop of accused 2
when PW2 said all this. Accused 2 said nevertheless he would go and
arrange for the agreed deposit for the vehicle. In the meantime PW2
should go and get the papers.

PW2
expressed concern about where he would park the vehicle. It was
agreed accused 2 should follow him to see where he stays when he is
in Maseru and where he could be found. He said he stays at his
girlfriend's place at Ha Tsiu. Accused 2 followed PW2 who was driving
the Twin Cab while accused 2 was driving a 4x4. PW2 showed accused 2,
PW2's residence and that of his girl friend at Tsiu's. Before they
parted, accused

37

2 gave
PW2 directions to the home of accused 2.

The
following day (27* January 1999) at about 8 a.m. PW2 came driving the
Toyota Twin Cab Exhibit 6 to the home of accused 2 at 8 a.m. Accused
2 was preparing to go to Ladybrand to get money from the bank: PW2
introduced accused 2 to the lady whom he said was his girl friend.
PW2 said he was on his way to Leribe to get papers of the vehicle,
but he could not leave it at his residence as it would not be safe.
Accused 2 allowed PW2 to park the vehicle Exhibit 6 in the garage.
PW2 had said he would come back on Wednesday 27th January 1999. PW2
drove the vehicle into the garage and left accused 2 with the keys.
Accused 2 took PW2 and his girl friend to the Maputsoe Bus terminal.
Accused 2 went to his bank in Ladybrand.

PW2
according to accused 2 did not show up on the 28th January, 1999.
Accused 2 told the court that he takes precautions as regards
purchases he wants to make. On the 4th day of his possession of the
vehicle, he wanted to go to Ladybrand (it was Friday the 29th January
1999) he wanted to get the vehicle cleared before 12 noon which is
the closing time. Seeing PW2 did not show up he took the particulars
of the engine and chassis number and phoned Mr Ramatabooe in the
police vehicle squad. He also informed the late Ramatabooe that the
vehicle bore a South African special permit. Ramatabooe asked accused
2 to bring the said special permit. Accused 2 took the said special
permit to the CID vehicle squad

38

and found
them having lunch.

Ramatabooe
'phoned accused 2 at 4.30 pm and asked accused 2 how he had come
across that vehicle and its whereabouts. Accused 2 told him about PW2
and that the vehicle was in accused 2's garage. The late Ramatabooe
said they should go and look for PW2. They did so and went to Tsiu's
where PW2 lived. They did not find him. After their return, the late
Ramatabooe told accused 2 that the vehicle in question was stolen and
it was being looked for. He then gave accused 2 the telephone numbers
of PW9 and said this case was handled by PW9. Accused 2 already knew
PW9's telephone number. Ramatabooe had said accused 2 should 'phone
PW9 as soon as PW2 arrived - but should on no account release the
vehicle to PW2. Ramatabooe also told accused of the reward of
M10,000-00 that was being offered. The vehicle would be used as a
trap. Accused 2 and Ramatabooe parted at 5 pm that day. Accused 2
added that Seeiso Seeiso had been found not there at the time they
went to look for him with Ramatabooe at Motimposo. They thought he
had gone to his home at Matelile.

Continuing
with his evidence accused 2 told the court that he had removed the
canopy from the Twin Cab exhibit 6 in the morning, just as he was
preparing to go to Ladybrand that Friday. He had intended to carry
the second hand sofas that he had decided to buy in Ladybrand after
getting the vehicle given a clearance by the police. Unfortunately
PW2 did not show

39

up with
the papers.

After he
had finished with Ramatabooe at 5 pm, accused 9 continued doing
business at his shop until 9 pm when he closed the shop. He then went
to a function at Cabanas and returned home with his wife around 12
pm. After leaving his wife at their home at Khubetsoana, accused 2
proceeded to Qwaqwa in the Republic of South Africa. On Saturday 30th
January 1999 he had tried to 'phone his wife while he was a Qwaqwa
during the day,but-failed. He returned to his home at about 3.30 am
on Sunday 31st January. He found his father accused 1, his wife
accused 3 and his younger brother Khojane arrested and the 4x4
vehicle Exhibit 6 taken by the police. Accused 2 says he immediately
telephoned PW9's cell-phone number to find out what was going on. It
was around 4 am and PW9 was at his home at Sehlabeng. Among the
things he said to PW9 was that PW2 had brought that vehicle to
accused 2's home for sale. PW9 informed him that the vehicle had been
stolen and the owner killed.

At that
stage accused 2 'phoned his attorney Mr Phoofolo and told him to take
him to the police as he was in trouble. Mr Phoofolo came in his
vehicle and found accused 2 at Mookoli trying to go to the residence
of PW9. The attorney took him to the home of PW9. PW9 said they
should go and look for PW2 with him. They first went to the CID
office where they waited outside while PW9 went in.

40

They went
to Tsiu's to go and collect Detective Trooper Mphephoka PW8 with PW9
in Mr Phoofolo's car. They then went to the home PW2 had shown them,
but found PW2 absent. They then went to the house of the girl-friend
of PW2. When they went to these homes, accused 2 was accompanied by
PW9 and PW8, Mr Phoofolo used to remain in his motor vehicle. PW2 was
not found, consequently they went back to the CID office. Other
policemen had come, it was between 6 and 7 am. PW9 said accused 2
should remain at the CID office as professionals were taking over. Mr
Phoofolo at that juncture went back home.

Accused 2
says he was allowed to go home to wash and to return to the CID
office as soon as possible. Accused 2 returned to the CID office
between 9 and 9.30 am and found PW2 already there. There were many
policemen at that stage. Accused 2 immediately attacked PW2 hitting
PW2 with fists. He was saying PW2 attempted to sell him a stolen
vehicle thereby putting the family of accused 2 in trouble. The
Police intervened. Accused 2 says he was not under arrest at that
stage. He did not know any of the four other accused consequently he
does not remember seeing them that day, even if they were there. By
four other accused, he meant accused 4, accused 5, accused 6 and
Ntsie Sebatana who would have been accused 7. It is not true that he
pointed out accused 5,6 and 7 as PW9 claimed he did.

Accused 2
says he was surprised at the time he was outside the CID

41

office
with his younger brother to find the registration number D0440
screwed on the vehicle Exhibit 6. Khojane told him that he had
misunderstood the instructions of accused 2. These numbers had been
supposed to be put on a 1988 Toyota Twin Cab 4x4 which was still at
the panel beaters at the railway station. Accused 2 says his younger
brother Khojane was released but his father accused 1 and accused 3
his wife were not. Accused 2 asked PW9 for his Ml0,000-00 reward but
got no help.

They
following day 1st February 1999 accused 2 was taken to the magistrate
and charged with his father accused 1 and his wife accused 3. At that
stage accused 4,5 and 6 were not with them.

Concerning
the cell-phone, accused 2 denied he participated in its recovery. He
never had anything to do with PW3 in respect of the cell-phone. He
only sold PW3 a Nokia cell-phone. Accused 2 had not asked PW3 to get
him a buyer for the Siemens S6 cell-phone - nor was he put in contact
with PW4 by PW3. Accused 2 denied selling the cell-phone to PW4. He
also denied what PW2 had said to the effect that he went with accused
6 to sell that cell-phone and that he gave PW2, accused 5 and accused
6 the M300.00 the Siemens S6 cell-phone had been sold for.

Accused 2
denied that he had invited accused 5 and 6 to his business premises
so that he could show them a vehicle he wanted. He denied taking PW2,
accused 5 and accused 6 to a Government office complex with flags

42

and
showed them the vehicle Exhibit 6 which he wanted them to rob
deceased of. He denied following deceased to his home and hatching a
scheme to rob deceased with PW2, accused 5 and accused 6. He denies
that he did transport PW2, accused 5 and accused 6 on subsequent days
dropping them at Hoohlo next to the school so that they could be able
to seize the vehicle from deceased at night. He denied PW2 and
accused 5 brought the vehicle to him on the night of the 21st January
1999. He insisted on his version that PW2 had been brought in contact
with him by Seeiso Seeiso and that PW2 left the vehicle with him on
the 26th January 1999. He denied ever paying PW2, accused 5 and 6 the
sum of M600.00.

Accused 2
denied PW9 had seen him and called him on the morning of 30th January
1999 because he was at Qwaqwa.

Cross
examined by Miss Mahase for accused 4, 5 and 6, accused 2 insisted he
did not see accused 4, 5 and 6 at the CID office. He first saw them
in December 2000. When accused 2 was first remanded in custody, these
accused were not there.

Cross
examined by Mr Griffith for the Crown, accused 2 told the court that
he was the eldest son of Major General Ramaema who was chairman of
the Military Council that governed Lesotho before the 1993 democratic
elections. He had done Cambridge Overseas School Certificate and did
a 4-year diploma in Lerotholi Polytechnic in Motor mechanics. He was
a

43

grocery
store owner, and runs a bar in which liquor is served. He has three
taxis. He also has houses to let.

Accused 2
said he does not listen to the radio except occasionally for music.
He is a musician. He does not read newspapers. He lives in a four
room house which is situated in his father's large site. His father
lives in the main three bed-roomed house. There is a double garage
attached to the main house in which his father lives. 4 or 5 motor
vehicles can be parked in the yard. The site is surrounded by a
security fence 3 to 4 metres high.

His
father had given him a 1988 Toyota Twin Cab 4x4 registration D0440 in
1994. It was white in colour. It had been involved in an accident and
had been panel-beaten for M2500. It had been damaged at the front
(the headlights, grill, radiator and bonnet). Accused told the court
that he had first known PW9 in 1997.

Accused 2
answering questions said he first met PW2 in January 1999 when PW2
had been brought by Seeiso Seeiso (a friend of accused 2). Seeiso
knew that accused 2 wanted a Toyota Twin Cab 4x4, and that accused
had wanted this vehicle since November/December 1998. He wanted a
second Toyota Twin cab so that he could hire it out to LCU and he was
keen to find that particular vehicle. Accused 2 said he does not know
if Seeiso Seeiso was still alive and where he is. He last saw him
after his (accused 2's) arrest. Accused 2 says he would wish for
Seeiso Seeiso

44

to give
evidence. He cannot look for Seeiso because he (accused 2) is in
prison and is short of money. He has 3 businesses that are doing well
- but not very well. Accused 2 said he has done nothing so far beyond
telling his counsel about Seeiso Seeiso. In any event, their personal
relations deteriorated since he had brought PW2 who was selling him a
stolen car fraudulently.

When he
saw the vehicle Exhibit 6, it had done less than 5000 kilometres.
Today it might fetch M93500.00, accused 2 is not sure it could fetch
M82500100 because he is not a car dealer although he is a motor
mechanic. Accused 2 said he owns about 8 motor vehicles. At M60 000
this diesel Twin Cab 4x4 Exhibit 6 was a bargain. That is the price
they agreed with PW2. All that was left were papers because accused 2
wanted to find out if the vehicle was authentic. Accused 2 said he
did not suspect it was stolen. PW2 had told him he would not be able
to drive it to Fobane to fetch the papers because its special permit
had expired. Accused 2 said he was told by PW2 that its permit bad
expired on the 25th January 1999. It was already being driven
illegally. PW2 had said he would go to his place of residence so that
PW2 could go and look for him when he had the money. Accused 2 being
keen on the vehicle therefore followed PW2 in another vehicle to see
PW2's residence and that of his girl-friend.

The next
day accused 2 saw PW2 and his girl-friend between 8 and 8.30 am at
his home. He was called by the watchman to the gate. Accused

45

2 had the
vehicle put in the garage for shade. Accused 2 became suspicious when
PW2 did not come back. He has heard PW2 killed deceased but he cannot
be certain PW2 did, because PW2 is trying to extricate himself. PW2
was in any event pinched or brutally assaulted. He could say
anything. The vehicle came to his shop on the 26th January, 1999.
Theft of motor vehicles is prevalent in Lesotho. There is even a
special vehicle theft unit.

Accused 2
says he did withdraw the required amount from a bank in Ladybrand and
had kept it in the house. He contacted the late Detective Trooper
Ramatabooe in the morning hours of Friday 29th January 1999.
Ramatabooe had previously assisted accused 2 in respect of another
vehicle. Ladybrand is where vehicles are checked for lawfulness.
There was no way he could go to Ladybrand so he had to resort to
Ramatabooe. Accused 2 says after Ramatabooe had told him the vehicle
was stolen he and Ramatabooe went to look for PW2 and Seeiso but did
not find them. But the late Ramatabooe never went to accused 2's
home. Ramatabooe never told accused 2 of the death of the deceased.
It was decided between them that the vehicle should be used as a bait
to catch PW2 so that accused 2 could get the Ml0,000-00 reward.
Accused said the M10,000-00 was for the death of Mr Hickey but
withdrew this answer and said the M10,000-00 was for the recovery of
the vehicle Exhibit 6.

No
arrangements were made to catch PW2 if he came while accused

46

2 was in
Qwaqwa. PW9 must have heard of the whereabouts of the vehicle Exhibit
6 from Ramatabooe. Accused 2 says he did not tell PW9 about his plan
with Ramatabooe because of fright. Relations between accused 2 and
PW9 were good at the time. They worked harmoniously with PW9 on 31st
January 1999. PW9 started not to look at accused 2 in the face when
accused 2 asked for a Ml0,000-00 reward. PW9 is wrong when he said
accused 2 was arrested on the 31st January 1999. Accused 2 denied he
pointed accused 5 and 6 to PW9 and said he only showed PW9 where PW2
stayed.

DW2 was
Khojane Ramaema who duly sworn told the court he was 26 years old and
that he is the younger brother of accused 2. He is an artist. On the
30th January 1999, he had been arrested with accused 1 and 3 who were
discharged at the end of the Crown case.

DW2 told
the court that on the 29th January 1999 accused 2 had told him to go
and screw the plate number D0440 on to the Toyota 4x4 which had just
been panel-beaten at the Industrial Area near the railway station.
This had been early in the morning.

DW2
attended to his own business at TY (Teyateyaneng) and forgot about
what accused 2 had said. When he came back in the late afternoon he
found that vehicle in the garage and screwed on the back plate number
and when he was supposed to screw the front plate numbers, he noticed
he had only one screw. Therefore he did not screw the front plate
number on. He was completely unaware that he

48

instructions
of accused 2 He had made a statement to the police about this
mistake. He did notice the paint work made the vehicle Exhibit 6
appeared new but he thought it had merely been resprayed. When he had
at one stage used the words overturned he did not mean it literally -
he only meant it was involved in an accident. Court was invited to
see on the vehicles outside the vehicles which have mount for plate
numbers sometimes screw the plate numbers on them as well. This was
done in re-examination.

DW3 was
Hae Phoofolo an attorney who had been engaged by accused 2 to help
accused 2 to surrender to the police: Duly sworn he told the court
that accused 2 'phoned him to tell him that the police were looking
for him. DW3 was asked by accused 2 to accompany him to the police.
They would meet at Lancers Gap at 4.30 am. After DW3 had collected
accused 2 he went to the home of PW9 and there he handed accused 2 to
PW9. As PW9 had no transport to take him to the CID office, DW3 took
him there. The idea was for accused 2 to point out the person who
gave accused 2 the vehicle Exhibit 6.

When PW9
did not find a police vehicle to drive him and accused 2 to this
person, DW3 offered to drive them there. They first picked up a
policeman who would assist PW9 at Mabote, Khubetsoana. Accused 2, PW9
and the other policeman went to two places. DW3 did not go out of the
car but allowed them to go to these places. They then returned to the
CID office where DW3 left them and went home. No people had been

49

arrested
from these two places. DW3 says it was 10 am when he left the C1D
office. DW3 says accused 2 and PW9 had left again, he does not know
where they were going. DW3 said PW9 was mistaken when he said DW3 did
not go to the home of PW9.

Under
cross-examination DW3 said he had known accused 2 for several years.
He had heard of the death of deceased over "Radio Lesotho".
It was 5 am and it was bright when he got tot he home of PW9. PW9 was
expecting them but DW3 had not found it necessary to 'phone PW9. DW3
said he did not know accused 2 had 'phoned PW3: Later he recalled
accused 2 had 'phoned PW3. It was on Saturday when they went to PW9.

DW3 said
his office was about 200 metres from the CID office. He did not leave
until 10 am because he was having a chat with the police who are his
friends. DW3 then recalled it was Sunday. He had gone to Tsenola
between 7.30 and 8 am. They came back between 8.30 and 9am.

Accused 4
gave evidence in his own defence as DW4. Duly sworn accused 4 said he
was 22 years old. His occupation is washing motor vehicles at a dam
call Robert. Accused 4 said he knows PW2 and had heard what PW2 had
said in evidence against him. He had known PW2 as one of his
employers because PW2 used to come driving a small Nanana van which
accused 4 would wash.

50

In
November 1998 when PW2 had come for a car wash, he showed PW2 4 tyres
that he was selling for M4000.00. PW2 went to see them. PW2 took them
after promising to pay M500.00 deposit and paying the balance of
M3500-00 later. PW2 never paid the balance for the tyres. Accused 4
quarreled with PW2 because his brother-in-law Motsuoe Thamae told
accused 4 that PW2 had taken his fire-arm. When he asked PW2 about
this, PW2 became aggressive and they fought. PW2 was annoyed because
accused 4 was interfering in something that did not concern him. They
never met again until 31st January 1999. That day PW2 came with the
police who invited him to the CID office. He was not aware he was
being arrested. It was between 11 and 12 am.

Accused 4
was asked if he knew accused and PW2. This happened at a
pre-fabricated building. He said he did not know them. He was told he
was not speaking the truth and was then locked in a cell at police
headquarters. Later they brought him and tortured him by suffocating
him with a tube of a motor vehicle. His hands and feet were
handcuffed. He was told he robbed and killed a white man at Florida,
a thing he did not how. Two knives were brought and three policemen
who were interrogating him wanted him to admit he stabbed a white man
with it. After torture and a threat of further assaults that he was
told what they were doing would cause him to urinate blood he
admitted knowing the knives. After this admission, the torture
stopped.

51

Accused 4
did not know accused 5 and 6 but on Wednesday, he met them three or
four days after, he was taken to the Magistrate for remand. He had
never been recruited by accused 5 and 6 to go and rob and take a
white man's vehicle. He does not even know accused 2 with whom PW2
said they had bad relations.

Cross-examined,
accused 4 said PW2 was the most trustworthy of his customers until he
took his tyres, he was generous and also sympathetic to accused 4's
condition. Accused had not asked for a reduction in price when he
bought the tyres of accused 4. PW2 only gave accused M500.00 so
accused 4 released the tyres believing PW2 would pay the balance. PW9
was not there when he was tortured, but Trooper Mahao was there. It
is false that he ever demanded the knife Exhibit 4 from Pusetso
Matsepe. He never joined accused 5, 6 and 7 (Ntsie Sebatana) and PW2
in robbing the white man. At the end of cross-examination both
counsel agreed that brand new tyres cost between M750 and Ml 200-00
per tyre depending on quality and size.

Accused 5
gave evidence as DW5. Duly sworn he said he was 28 years old. He said
knows PW2 very slightly because he has seen him passing his stall at
which he sells vehicles. Accused 6 is his younger brother. He does
not know accused 2. He does not know accused and Ntsie Sebatana who
should have been accused 7.

52

PW9 did
not arrest him on the 31st January 1999. PW9 arrested him in
February. He only saw PW2 near the police vehicles. It was on a
Monday. Accused 2 was not there. Accused 5 and accused 6 had gone
early in the morning to Ntsie's place to get the cassettes of accused
2. When they got near Ntsie Sebatana's place, they saw two men
passing them in a hurry. When they got to Ntsie's house accused 5
says they knocked and entered. As soon as they entered, they found
two gentlemen who were in a hurry - the men told them they were CID
policemen. After they had got their names, they told accused 5 and 6
that they were looking for them. One of these men was PW9. They then
handcuffed Ntsie and accused 5 together with foot-cuffs. They held
him (accused 5) by the belt and took them to their vehicle. They were
taken to CID offices and locked in different cells.

At about
11 or 12 am he was taken for interrogation. He was asked if he knew
accused 2, he said he did not know him. He was asked if he knew PW2,
he said he had seen him in the village. He was asked about the
killing of the white man, he said he knew nothing. He was shown
Exhibit 6 which he could see through the open door - accused 5 denied
knowing it. He was then told to undress. He was then whipped with a
sjambok on the buttocks. He was badly assaulted, to this day he still
bears the scars. When in answer to their questions he still did not
satisfy them, they suffocated him with a tube of a motor vehicle
until he lost consciousness. He regained consciousness when they
poured water on him. He was then taken to the

53

cell. PW9
and PW8 were not there when accused 5 was tortured in this manner.
Trooper Mahao and two others not in court did the torturing.

On
Wednesday PW9 charged him with murder and robbery, they were then
taken to the magistrate where they were remanded to custody. Accused
5 denied he was with accused 4 and 6, PW2 and Ntsie when deceased was
killed and that he drove the deceased's vehicle to the home of
accused 2. He denied he was involved in the planning of robbing the
white man of his vehicle Exhibit 6. Accused 5 said he cannot even
drive. He did not know accused 4 before they were charged together.

Cross-examined,
accused 5 said he never lived a Mampolokeng's with PW2. PW2 has his
own rented premises where he lives with his wife. He knows where PW2
lives, he knows this because he used to visit his brother, accused 6.
Accused 5 was surprised that counsel did not put to PW9 that they
were arrested on Monday 1st February not 31st January as PW9 claimed
he had. PW9 had arrested them between 6 and 6.30 am in the morning.
PW9 was with one other policeman. Prison authorities did not take
accused 5 to a doctor although he showed them his wounds. Accused 5
said it is wrong that PW2 pointed at him. Accused 5 denied he pointed
out where PW2 and accused 4 lived. He used not to go and see his
brother accused 6 often. He did so 3 or 5 times.

The next
defence witness was Mampolokeng Motsoetsoane DW6.

54

She had
been sitting in court while accused 2 was giving evidence. Duly sworn
DW6 told the court that she is a licensed traditional doctor and she
also makes brooms. PW2 was his patient who stayed from 4 months at
her house in 1994. PW2 came again in 1998, when he asked him to pay
PW2 ran away, this was bad because PW2 was from work in Johannesburg.
PW6 saw PW2 in January 1999 after his arrest. He arrived at her place
with the CID. PW2 never stayed at her house with accused 5 and 6. She
rents two flats which are not hers. She stays with her children, her
husband is a chief in Leribe. It is just two rooms.

Cross
examined she said one room is used as a kitchen, the other as a
bedroom. In January 1999 she was living at Mapoteng, Makhoroana, she
found them arrested. She had gone to treat people, she does not know
how long she was away. She returned quickly because her daughter was
pregnant. In January 1999 she was sleeping with her daughter and new
bom child in the bedroom. The others slept in the kitchen. PW6 in her
household of two rooms lived with 9people in all. Her daughter came
to have a child in February 1999. In January he daughter was living
with her husband.

In that
household, she also runs her medical practice and consults patients.
She examines people in the kitchen. Accused 6 is her son-in-law. He
visited accused 6 to give him food. She was approached the day before
yesterday to come and give evidence. PW2 lived for four months in her

55

house in
1994 under those conditions. He even wanted her daughter who married
accused 6 after he had been cured. She refused to allow them to marry
because PW2 still owed her Ml000-00 or an ox for the treatment. At
that time PW6 did not know accused 6 Bongani.

Evaluation
of the evidence

It is
clear from the outset that the evidence of an accomplice in this case
plays the central role. Section 239 of the Criminal Procedure and
Evidence Act of 1981 provides

"Any court may convict any person of an offence alleged against
him in the charge on the single evidence of any accomplice, provided
the offence has by competent evidence other than that of the single
unconfirmed evidence of the accomplice, been proved to the
satisfaction of the court to have been actually committed."

The
letter of the requirements of this section have been satisfied
because the robbery and the murder have taken place. It is not
disputed through the evidence of PW1, PW7 and PW8 that indeed the
deceased was found killed and his vehicle Exhibit 6 taken. Indeed
even the accused do not deny this fact. They all only say they have
nothing to do with this crime.

The crown
is obliged to prove beyond reasonable doubt that the accomplice PW2
is telling the truth.

56

Courts
have over the years developed a practice and a procedure that
protects innocent people from conviction by mistake. This practice
and procedure is known as the cautionary rule. As Elyan J said in
Regina v Nkwetini Ndwandwa 1955 HCTLR 13 at 14 BC

"But the trial court must always have in mind the danger of
accepting accomplice evidence.

It was laid down by their Lordships of the Privy Council in the case
of Gideon Nkambule v The King 1926-53 HCTLR 181, the evidence of two
accomplices unsupported by other testimony, is sufficient, if
believed and if due warning of the danger of accepting it is present
in the mind of the judge and assessors...."

In other
words, even where there are more than one accomplice, the trial court
must remain on guard against the dangers of the evidence of the
accomplices. In the case before me there is a further danger that on
many issues, the accomplice is a single witness and there is nothing
factual or circumstantial to check the evidence of this accomplice
PW2 against. This in itself increases the danger of wrongful
conviction.

The
danger inherent in the evidence of an accomplice, especially a single
one was summarised by Schreiner JA in Rex v Ncanana 1948(4) SA 399 at
page 405 in the following manner:

"What is required is that a trier of fact should warn himself
or, if the trier is a jury, of the special danger of convicting on
the evidence of an accomplice; for an accomplice is not merely a

57

witness with a possible motive to tell lies about an innocent
accused, but is such a witness peculiarly equipped, by reason of his
inside knowledge of the crime to convince the unwary that his lies
are the truth.... The risk that he may be wrongly convicted although
section 285 has been satisfied will be reduced, and in the most
satisfactory way, if there is corroboration implicating the accused.
But it will also be reduced if the accused has shown himself to be a
lying witness, or if he does not give evidence to contradict or
explain that of the accomplice. And it will be also reduced, even in
the absence of these features, if the trier of fact understands the
peculiar danger inherent in accomplice evidence and appreciates that
acceptance of the accomplice is, in such circumstances, Only
permissible where the merits of the former and demerits of the latter
are beyond question."

This
passage from the Ncanana case was cited with approval by the Privy
Council in Bereng Griffith Lerotholi & others v The King 1926-53
HCTLR 149 at page 153.

It has to
be noted that PW2 was not forthright about his sojourn in the
Republic of South Africa when the police had to go and look for him.
PW2 says he came back because of illness while PW9 says he persuaded
PW2 to come back home. This fact the court noted and was put on guard
and had to scrutinise the evidence of PW2 with caution because of it.

Even in
exercising caution Maisels JA in Buta PhalatsivRex 1971-73 LLR 92
dealing with an accomplice's evidence at page 95F to 96B said:

58

"There were unsatisfactory features in Joseph's evidence, such
as his attempt to minimise the importance of his role but the learned
judge quite clearly approached his evidence with the necessary
caution and was mindful of the dangers of accepting accomplice
evidence. Sidwell and Sera were by no means satisfactory witnesses.
...Of course the fact that any one or all of the accomplices lied on
material points does not mean that the court is therefore obliged to
reject their evidence in its entirety."

Even in R
v Sekhobe Letsie & Another 1993-96 LLR 1041 the trial court still
found the accomplice an impressive witness although it did not
believe the first accused in that case incited the murders in that
case. I therefore noted that PW2 was unwilling to concede that he did
what he could, to avoid giving evidence before this court.

Furthermore
PW2 did not mince his words about his hatred for accused 2 whom he
accuses of bad faith. PW2 says accused 2 did not pay them a fair
amount for robbing deceased of his vehicle, he only paid them M600-00
when they had expected him to be much more generous although no
specific amount had been named when they handed the vehicle Exhibit 6
to accused 2. The court had to be on guard, lest this hatred dominate
the evidence of PW2, thereby causing PW2 to fabricate evidence
against accused 2 that will lead to the conviction of accused 2 when
such evidence is false.

These
incidents had happened a long time ago. Not only was PW2

59

very ill
but his recollection of events was not always perfect. Indeed even
the mind of a healthy person, after such a long time, would have
considerably dimmed. The court had to be careful that the evidence of
PW2 should not prejudice the accused by substituting conjecture for
fact. It was vitally important to treat the evidence of PW2 with care
because he had had a mental breakdown during the period December 1999
and February 2000.

PW2 as a
witness .was labouring under a disadvantage, not only of being an
accomplice but of having given his statement to the police under fear
of being tortured if he did not. At the beginning of
cross-examination PW2 had said he told the truth from the very
beginning to avoid torture. Nevertheless towards the end of his
evidence PW2 of his own volition quite innocently said, it is always
the done thing to pinch an African so that he can speak the truth.
PW2 then revealed that at the beginning he was pinched or thrashed a
little by the police. A3 a result of this pinching or thrashing he
produced the dagger with which he stabbed deceased. After that he was
never tortured, he just told the police the truth. At places PW2
accused the police of recording his statement badly. Although PW2
said his evidence was true, the court had to approach the evidence of
PW2 with caution. His attempt to bolster the value of his evidence by
denying any torture was noted. The court also noted that from the
beginning PW2 implied there had been improper pressure from which he
saved himself by talking. The court became cautious of his evidence
because of this

60

pressure.

PW2 is
the only person who says accused 2 invited accused 5 and 6 to his
shop at Thamae's. PW2 says accused 2 told accused 5 and 6 together
with PW2 that he had identified a white Toyota 4x4 Hi Lux Twin Cab at
a Government Office Complex where deceased worked. Accused 2
undertook to take PW2, accused 5 and accused 6 to the Khubetsoana
Government Complex, so that he could identify it to them. This,
accused 2 did. When they had seen, it PW2 with accused 2, 4 and 5
waited for deceased to see where; deceased stayed. Although they lost
deceased at some traffic lights, they looked for the vehicle until
they found it at the part of Hoohlo known as Florida. It is this
Exhibit 6 vehicle of deceased that ended up in the garage of accused
2's father where the police seized it.

Even
apart from the evidence of PW2, accused 2 had been connected to the
crime by the finding of Exhibit 6 (a vehicle which belonged to
deceased) in the possession of accused 2. Furthermore this vehicle
had been fitted with the plate numbers of a vehicle in the current
possession of accused 2. This was highly corroborative to the
evidence of PW2. Accused 2 could only escape liability if his
exculpatory explanation could reasonably be true. Consequently
accused 2 bore the evidenciary onus of explaining the presence of the
vehicle Exhibit 6 and of showing the evidence of PW2 was untrue.

61

Accused 2
admits he was brought in contact with this vehicle by PW2 and that it
was brought by PW2 at the home of the father of accused 2 where
accused 2 stayed. There are major differences in their versions.
Accused 2 says PW2 was brought to him by a friend of accused 2 called
"Ptjemptjete" whose real name was Seeiso Seeiso. Accused 2
says he learned from Seeiso Seeiso by telephone that PW2 was selling
Exhibit 6 which had the description that fits D 0440 (a vehicle which
had been given to accused 2 by his father). I looked at the
description of D 0440 in the list of admissions it was a 4x4 like
Exhibit 6. It was almost identical in description to Exhibit 6
belonging to deceased save for that D 0440 was a 1988 Model which
used petrol and was beige in colour while Exhibit 6 was a 1998 Model
which used diesel and was white in colour. In the way the trial was
conducted, counsel on all sides assumed beige and white are the same.
That being the case the trial was conducted on the basis that white
and beige are the same. I have come to the conclusion that both
vehicles were similar in colour save for year of the model, nature of
fuel and the engine and chassis numbers.

The crisp
issue for determination is - how could PW2 know the exact vehicle
that deceased wanted?

Seeiso
Seeiso was not traced, nor was he brought to give evidence. Accused 2
says when they went with the Late Detective Trooper Ramatabooe on the
29th January 1999, Seeiso Seeiso could not be found at

62

Tsiu's
where he was supposed to stay. Accused 2 says Seeiso Seeiso visited
him in prison, but he did nothing to alert the police to this
possible partner in crime who had brought him in a contact with PW2.
It remains a mystery in the absence of Seeiso Seeiso that PW2 could
have known that accused 2 wants deceased's vehicle which was almost
similar to that of accused 2 in many respects. Indeed the numbers of
D 0440 when fitted on Exhibit 6 would have deceived many people. It
is doubtful that Seeiso Seeiso exists as a person. If he does, he had
nothing to do with PW2 and accused 2 in respect of the deceased's
vehicle Exhibits.

Accused 5
avoided saying PW2 was staying with his younger brother accused 6. It
did not escape my attention that earlier he had said he only knew PW2
by sight. When accused 5 now said PW2 lived with a wife at his own
premises, the remote acquaintance became closer. In
cross-examination, it had been said accused 6 would say PW2 lived at
accused 6's residence. To which PW2 had responded that there are
co-tenants. Accused 6 (if we are to believe DW6 Mampolokeng) also
lived with his wife in the same house. Accused 6 never gave evidence
because he was aware that the position of denying close acquaintance
with PW2 was untenable. One wonders why accused 5 tried to distance
himself from PW2 in this way if it was not because PW2 was telling
the truth.

PW2 said
accused 2 gave them tips on how to seize the vehicle of deceased. He
first said they should have Bongani accused 6 play a traffic

63

policeman,
but the scheme failed because the right hat could not be obtained.
The only option was for accused 2 to take them to Hoohlo school about
twice, there they failed for one reason or the other. They ended up
recruiting Ntsie Sebatana and finally accused 4 on the day accused 2
did not know they would proceed with the mission. On this issue, the
evidence of PW2 stands alone save only that the denials of the
accused 2,5 and 6 have been coloured by their lies where
circumstantial evidence corroborated the evidence of PW2.

Accused 4
told the court that PW2 had been fairly prosperous at the time
between 1998 and 1999 immediately before the tragic death of
deceased. Accused 4 said PW2 drove a Nanana van which accused 4
washed regularly and was paid Ml5.00 per wash. If it was so, accused
6 would not have given the impression through cross-examination, that
PW2 was sponging on him.

It should
at the outset be noted that PW2 has left the court in no doubt that
he is the first one that tackled deceased from behind. Before the
others came, everything went very wrong because the deceased proved
too strong and fought for his property. In fact the other partners
namely accused 4, accused 6 and Ntsie Sebatana let PW2 down because
they hesitated and were slow in coming to the aid of PW2. Deceased
was virtually overpowering PW2 and had hit PW2 with a fist and the
blow made PW2 dizzy. It was then that PW2 stabbed deceased on the
chest and

64

deceased
fell to the ground. It was at that stage that accused 6 came out from
the bushes and stepped on the neck of deceased and stabbed deceased
on the neck and ran away. The others namely Ntsie and accused 4 also
stabbed deceased and ran away.

It is
clear beyond any shadow of doubt having regard to the nature of the
chest stab wound that it caused deceased to fall down almost
immediately and that PW2 is the real and actual killer of the
deceased. PW2 says he also ran because the others were running away.
This court, noted that PW2 is not only an accomplice but the sole
killer of "the deceased. The reason being that 30x5 milimetre
wound that he inflicted did great damage. It was according to the
doctor a penetrating incised wound on the left side of the chest
level. It penetrated the heart apex causing plus or minus 15
mililitres haemotheral, 150 to 200 mililitres haemopericadirem. It
had been deep - level 4th to 5th intercostal space, 100 milimetres
left midline 200 milimetres from midlclavacular line. The wound
direction was from front to back. It is not surprising that from this
one stab wound deceased fell fatally wounded. The accomplice witness
in cross examination said the deceased was crying for help during his
struggle with him. It is not surprising that the other accused and
PW2 ran away as deceased lay on the ground. PW2 said in court he
stabbed deceased only once.

According
to PW2, the other wounds were caused by the others.

65

The other
wounds on the deceased were, according to the doctor's admitted post
mortem report, an incised superficial wound on the left shoulder
anterial superficial aspect and a superficial incised wound on the
right side of the chest. The last would which was actually more
serious than the other two was a 100x30 milimetres penetrating
incised wound on the right arm's interior aspect, but had not injured
any major vessels. These wounds have and where they are situated have
been shown on the diagram which is part of the report of the post
mortem examination.

In his
statement to the police, PW2 had tried to minimise his role in the
killing of deceased by saying:

"I caught deceased, and then deceased shouted, I had a knife in
my hand. Deceased caught my hand and we fought over the knife. We had
fallen to the ground, then Bongani (accused 6) came and stepped on
the deceased with his foot on the deceased's neck. I was then able to
pull away my knife and retreat. Toka accused 4 came, then Bongani
accused 6 said, accused 4 should stab deceased, accused 4 stabbed
deceased. I had already stabbed the deceased first on the chest. Toka
accused 4 stabbed deceased three times. At that time deceased was
still shouting. Ntsie then stabbed the deceased two times."

If one
compares PW2's statement it is not identical with what he said in
court in his evidence. In his statement to the police, not only does
PW2

66

minimise
his role, PW2 claims others did the damage on the deceased, the
wounds inflicted on the deceased ought to be over seven in number.
PW2 reluctantly put the fact that he had first stabbed the deceased
on the chest. The defence drew my attention to this demerit.

It seems
to me, however, that far from discrediting PW2, his evidence in court
is more straight forward about his role as the real killer of the
deceased. It also seems PW2 had dropped the attitude of trying to
minimise his role in the killing. PW2 further states that as they ran
away they heard the siren of an ambulance: This made them run even
faster. Accused 5 caught him during the time both had run downwards
towards the river. It was then that they discussed what had happened.
PW2 convinced accused 5 that deceased was dead and that they should
go back and take the deceased's vehicle.

They
groped for keys of the deceased, searched the deceased took his
wallet and cell-phone. As accused 5 could drive, while PW2 could not,
accused 5 drove the vehicle Exhibit 6 to the home of accused 2 at
Khubetsoana. PW2 had never been there before. Here too PW2 does not
minimise his role in the robbery, he says clearly that once accused 5
had stopped him from running away, he persuaded accused 5 that
deceased was dead and they went back to take the vehicle. PW2 was
subjected to cross-examination on this point, but he was not shaken.

67

I have
already said PW2 is the only witness that implicates accused 4, 5 and
6. I have also said they lied in everything that showed they knew PW2
before the murder of and robbery of deceased. These lies are on a
material issue. Corroboration can sometimes occur through denial, yet
even then the court should be cautious lest it convict the accused
merely because they are liars. Even so, it remains a fact that lies
on material facts can give a strong colouring to evidence that had a
neutral dull colour.

PW2 (in
cross-examination) admitted readily that they had quarreled with
accused 4 over the firearm of the brother in law which he and accused
5 had taken. But he insisted that even with this bad blood between
them, accused 4 still agreed to be recruited by accused 6 into
joining them on the day they intended to seize the vehicle of
deceased Exhibit 6. When accused 4 came to give evidence, he invented
a ridiculously false story that PW2 had a Nanana motor vehicle in
which PW2 used to come to him at the dam for accused 4 to wash.
Questions had not been put on this point to PW2 to deal with on this
issue.

This was
followed by the purported sale of the tyres by accused 4 which he
claimed to have stolen to PW2 at a price more than they would have
fetched when they were new. It became patently obvious that PW2
knowing them to be stolen could hardly be expected to have agreed to
buy them at such an exorbitant price that exceeded that of cheaper
tyres of that class. Had PW2 been cross-examined on this issue, it
would have helped.

68

This high
profile of PW2 as a fairly prosperous person that accused 4 created
of PW2 in the evindence-in-chief of accused 4, differed markedly from
the one counsel for accused 4 had created during the
cross-examination of PW2. The cross-examination had sought to present
PW2 as so poor that he was accommodated by accused 6 at his place out
of kindness, rent being paid by accused 6.

It also
struck me as strange that Montsuoe Thamae, the brother-in-law of
accused.4, could ask PW2 who PW2 was when he knew PW2 had stolen his
firearm. Accused 4 did not elaborate on this issue because he was
keen on linking it with the tyres that he claimed PW2 was owing him
M3500.00 for. Having been told by his brother-in-law that PW2 had
taken his firearm, according to accused 4 he quarreled with PW2, as
soon as they met, for both the tyres and the fire-arm of accused 4's
brother-in-law. On that day PW2, according to accused 4, had been
driving a Golf.

The false
evidence of accused 4 was markedly different from that of PW2 who
claimed he and accused 4,5 and 6 were petty thieves and robbers who
lived on stealing from people. PW2 looked the poor petty thief he
claimed to have been. He spoke like an uneducated person from a rural
background. When he claimed he could not drive and that he had earned
a living by working in the mines, these seemed to be more likely to
be true. Accused 5 and 6 were from the outskirts of the growing city
of Maseru where they could easily have had contact with motor
vehicles as they grew

69

up. It
was however not beyond possibility that PW2 might have learned how to
drive in the mines or some other place. It was argued that PW2 might
have been an impressive figure before he became ill. While all these
might be possibly true, my assessors and I were satisfied that PW2
could not drive. We were satisfied from the demeanour of PW2 that PW2
was telling the truth while accused 5 and accused 4 were from their
demeanour and evidence telling a lie when they said PW2 could drive.

We were,
alive, to the fact that only the word of PW2 connected accused 4,5
and 6 to the vehicle Exhibit 6 and to accused 2. At places, the
evidence of PW2 stood entirely alone, while at places it received
snippets of corroboration from surrounding factors and lies of the
accused. We had to warn ourselves of the risk of accepting such
evidence. It will be seen that some circumstantial corroboration of
PW2 (the accomplice) will be found in the evidence of PW9 (the
investigator) with which I am going to deal with. It is significant
as already stated that the finding of the vehicle Exhibit 6 in the
hands of accused 2 corroborates the evidence of PW2 in respect of
accused 2 to a considerable degree.

At the
outset I must point out that there are unsatisfactory features of the
evidence of PW9 the investigator of this case. The first cause of
concern is that PW9 wrote his report that should have accompanied
this docket to the Director of Public prosecutions in January 2000,
almost a year after the events had occurred. It was also in January
2000 that the Director

70

of Public
Prosecutions signed the indictment against the accused. This
statement of PW9 was signed (according to the indictment) a little
before the DPP signed it on the 27th January 2000. In this report,
accused 9 has mixed up the dagger with a brown handle used by PW2 on
the deceased which was recovered from PW5 with the dagger with a
black handle allegedly used by accused 4 on deceased which was
recovered from Pusetso Matsepe.

PW9 tried
to explain why he made his report later that he should have done, but
I was unhappy. He referred to his note book on which he claimed to
have noted everything at the scene contemporaneously with his
findings. The truthfulness and the genuiness of entries in the
note-book could not be challenged. But the possibility that it might
be full of cooked up entries could not be discounted. Consequently
the court became very cautious in accepting them, despite the fact
that their genuiness could not be reasonably challenged.

The court
was also struck by the fact that PW9 claimed the dagger of PW2 and
the dagger allegedly used by accused 4 were handed to PW9 freely and
voluntarily. Yet PW2, whom this court believes, says he was pinched
or thrashed before he produced his dagger. Obviously PW9 was not
telling the truth when he said the dagger of PW2 and the dagger
allegedly used by accused 4 were free and voluntarily produced. I
became even more suspicious because these items were found in the
hands of third

71

parties
in identical circumstances, so identical that PW9 even mixed them up
in his memory. These factors increased my caution in accepting his
evidence.

I found
it strange that the report PW9 acted upon could also include
knowledge that deceased had M100-00 in his purse. The reasonable
conclusion is that no person other than deceased knew the amount he
had in his purse. PW9 was not telling the truth, he mixed up what his
investigation revealed with the report he acted on when he embarked
on the investigation. This tendency to mix up facts either
deliberately or unintentionally also put me on guard.

I was
sceptical of the evidence of PW9 that he took accused 2 with him when
he went to PW3 Fosa. The reason I questioned this evidence was that
if it was so, PW3 (who knew accused 2 very well) would have said so.
As PW2 had told PW9 that accused 2 and accused 6 took the Siemens S6
cell-phone to sell for them, accused 2 may have told him that he took
it and sold it to a person known to PW3. It was in following this
lead that PW9 got to PW3. The revelation by accused 2 that the
Siemens S6 ended with PW4 (a person known to PW3) does not in my view
mean he knew it belonged to deceased. Indeed PW2 was at pains during
cross-examination that that cell-phone belonged to them (meaning
accused 5, 6 and PW2). Nowhere (as far as the record reveals) did PW2
reveal to accused 2 that they obtained the cell-phone from the
deceased. I became cautious that I

72

should
not just accept what PW9 said, because of his tendency to bolster the
Crown case with improbable facts. I accepted his evidence as much as
possible where it was supported by evidence aliunde which could be
from PW2, circumstantial or from the other accused either directly or
indirectly.

PW9 says
he saw accused 2 on the morning of the 30th January 1999 when they
had raided the home of accused 1 and 2. He says when he tried to talk
to accused 2, accused walked away and disappeared from the view of
PW9 and was never seen until the 31st January 1999.- It is a fact
that accused 2 and PW9 knew each other very well and had worked
together on matters in which the police had an interest. Furthermore
PW9, according to accused 2, had given accused 2 his cell-phone
number long before the robbery that led to the death of deceased. At
5.30 am in January it is already bright because the sun rises at 6 am
or thereabout. It is unlikely that PW9 could be mistaken. There is
even no similarity in features between accused 2 and his brother
Khojane DW2.

Accused 2
says after learning from the late Detective Trooper Ramatabooe that
the vehicle Exhibit 6 was stolen and after they had failed with the
late Detective Trooper Ramatabooe to find PW2 and Seeiso Seeiso, both
of whom were responsible for his possession of that vehicle, he
continued with his normal business from 5 pm until 9pm. He did not
'phone PW9, although he had been told to do so by the late
Ramatabooe. It is very easy to say anything about the deceased
because the deceased is

73

not there
to rebut what is being said. In the case of Borcherds v Estate Naidoo
1955(3) SA 78 at page 79 Berman J therefore said "the courts
must therefore scrutinise with caution the evidence given by, or led
on behalf of the surviving party". In other words this court is
enjoined as a matter of common sense not to readily accept what
accused 2 said he did with the deceased Ramatabooe in the absence of
cogent evidence, both from the accused 2 and the surrounding
circumstances.

A
reasonable person faced with a stolen vehicle given by two people who
could no more be found by him and the late Detective Ramatabooe would
have not rested and gone about his normal business. He would have
'phoned PW9 at once as the late Detective Trooper Ramatabooe is
alleged to have said he should. I have no hesitation on rejecting the
evidence of PW2 that he went to Qwa Qwa at 12 midnight on the 29th
January 1999. I am also not persuaded that a businessman like accused
2 could have accepted a vehicle with an expired special permit and
kept in the garage innocently. The late detective Ramatabooe would
have liased with PW9 and given him the special permit that accused 2
had handed to him. Having found that accused 2's story is false, I
accept that PW9 did see accused 2 on the morning of 30th January 1999
at the home of accused 1 and 2. Accused 2 is not telling the truth
when he said he ever spoke to Detective Trooper Ramatabooe about this
vehicle. Accused 2 could only have spoken to the late Detective
Ramatabooe and had this silence maintained and PW9 not told if the
late Ramatabooe was a corrupt policeman who consorts, covers

74

up for
criminals and help to legitimise stolen cars within the police force.
In the absence of this evidence or even such a suggestion from
accused 2, I have no option but to reject the evidence of accused 2
in which he attempts to besmirch the character of a deceased person.

PW9 says
he was led to PW2 by accused 5, 6 and 7 (Ntsie). He denied
emphatically that he was led to PW2 by accused 2. I have already said
PW9 is a witness who in my view is too keen to bolster the Crown case
and has demonstrated it. I therefore have to deal with his evidence
with caution. It will be shown later that the evidence of PW9 is
corroborated indirectly by that of accused 5 where he says he was
arrested by PW9 and another policeman between 6 and 6.30 am. It was
precisely to make his version credible that accused 2 called his
attorney DW3. Accused 2 brought his attorney to give evidence to
corroborate his evidence of events of that day.

If indeed
accused 2 was afraid to surrender himself, Mr Phoofolo DW3 would have
first 'phoned PW9 and told him that accused 2 wants to surrender and
arrange a meeting. I do not believe accused 2, whose home had just
been raided and was scared, could have telephoned PW9 as he claimed
he did. It was DW3 the attorney (as PW9 said) who telephoned PW9.
DW3, whose memory was demonstratively bad in court has got his facts
wrong. I watched his demeanour, I was satisfied that he is not sure
of his facts and was allowing his imagination cover the gaps in his
recollection

75

of facts.
Indeed he started his evidence with the words "the general idea
was to find the person" who brought the vehicle Exhibit 6 to
accused 2.

I do not
believe DW3 when he says he does not respect the right to privacy of
policemen. DW3, an attorney, would have us believe he felt he could
just walk into PW9's home at any time merely because PW9 is a
policeman who should be on duty 24 hours a day. DW3 was just being
argumentative when he said he and accused 2 went to the home of PW9
that early in the morning. PW9 had no conceivable reason to deny this
fact if it did happen. I accept what PW9 said, namely that they met
outside DW3's office which is 200 metres from the CID office where
PW9 works. They met there on business as they should have.

I do not
believe accused 2 knew where PW2 lived. I have rejected the evidence
of accused 2 that he accepted the vehicle from PW2 in the belief that
it belongs to the late father of PW2. He is not that credulous he is
an astute businessman, who displayed considerable skill in the way he
answered questions. Only accused 5 and 6 were really known to him,
and it was to them that he took PW9. This fact is corroborated by the
fact that accused 5 says PW9 was with only one policeman when he
arrested them early in the morning. DW3 confirms that he took PW9 and
one policeman between 6 and 6.30 am. Although accused 5 claimed it
was on the 1st February 1999, I do not accept this because PW9 was
not challenged in cross-examination about his evidence that he
arrested accused 5, 6 and 7

76

(Ntsie)
at about 6 am on Sunday the 31st January 1999. If we go by what DW3
the attorney has told the court, it should have been much later. If
DW3 was still there at the CID office up to 10 am chatting (as he
claims he was) he should have seen the fight between PW2 and accused
2 between 9 and 9.30 am when accused 2 first saw PW2 at the CID
office.

It will
be seen that the evidence of PW9 and that of accused 5 harmonises in
as much as accused 5 says they found many policemen near the motor
vehicles when between 6 and 6.30am they were led to detention by PW9
and PW8. The only false portions of the evidence of accused 5 is that
PW2 had been taken in at that stage and that it was on Monday 1st
February 1999. This being the case DW3 as an attorney who acted as a
good Samaritan was no more needed because police reinforcement had
come. Even if accused 2 had tried to falsely blame PW2, he must have
included accused 5 and 6 for his possession of the deceased's vehicle
Exhibit 6. What accused 2 has done as an afterthought is to
substitute Seeiso Seeiso for accused 5 and 6. If indeed at that stage
accused 2 had told PW9 of Seeiso Seeiso, PW9 would have looked for
Seeiso Seeiso. I am satisfied therefore that PW9 was led to accused 5
and 6 by accused 2 and that accused 5 and 6 in turn showed PW9 where
PW2 was.

If
accused 2 had indeed negotiated a M60,000-00 deal for the vehicle
Exhibit 6, accused 2 would have told PW9 of this, if indeed it was
the honest transaction he would have us believe. PW2 says he could
not have

77

even
imagined such a lot of money. It is way beyond what he as a person
could expect to get. Having regard to his general appearance,
background and standard of education, he was highly persuasive and
credible on this point. I therefore have no hesitation in saying
accused 2 was not telling the truth. I believe PW2 that they went to
the business premises of accused 2 to demand payment. All they ever
got was M600.00 and no more.

I also
believe PW2 that they heard a radio announcement in accused 2's
Venture vehicle that a reward of M10 000-00 was being offered for
information that would lead to the arrest of the killer of deceased
and the recovery of the vehicle Exhibit 6. That is why accused 2 told
accused 5, 6 and PW2 not to go anywhere near the police because the
police would not keep their promise, they would arrest them. I am
fortified in this by the lie accused 2 told the court that the late
Detective Trooper Ramatabooe did not tell him that at the taking of
the vehicle Exhibit 6, the deceased was killed. No policeman would
ever do that. While I have already said no such conversation took
place with the late Ramatabooe, this false story tends to strengthen
PW2's evidence that accused 2 did listen to the radio contrary to
what he told this court.

PW9 has
said he was not the one who brought DW2 Khojane along with accused 1
and accused 3, the wife of accused 2. He was not the most senior
officer present. I accept this evidence on this point. I however
reject the evidence of DW2 Khojane that he put the plate numbers
D0440 on the

.

78

vehicle
Exhibit 6 by mistake on the instructions of accused 2. There were
enough screws to screw the front number plate on. If at all DW2 did
(which I doubt) it was deliberately. I accept the evidence of PW2
that accused 2 had from the beginning wanted the vehicle Exhibit 6.
When accused 2 got Exhibit 6, he put his own number on it to steal it
as it looked like D 0440 which was his vehicle. There was method in
this putting of plate numbers on exhibit 6, there was no mistake.

PW9 says
the dagger was produced by accused 4. I have however already said it
was not produced freely and voluntarily. I have also said the way it
was found has become suspect to me because by coincidence it was
produced by someone else in an identical fashion with the dagger of
PW2. I am aware that the provisions of Section 229(2) of the Criminal
Procedure and Evidence Act of 1981 which provides:

"Evidence may be admitted that anything 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 in law is not admissible in evidence against him on
such trial."

I noted
the words may which are permissive and gives the court a discretion.
I observed that the test is fairness to accused - see Hoffman and
Zeffert The South African Law of Evidence 4th Edition 280 to 281.
This Section 229(2) of the Criminal Procedure and Evidence Act 1981
has led to strange interpretation. For an example in Natal, Milne JP
in S v Ismail

79

(1)
1965(1) SA 446 at 449 has said the effect of a similar section in
South Africa is to allow the courts to admit evidence of a pointing
out "even though the relative confession was obtained as. a
result of acts of gross cruelty inflicted upon the person of the
accused". In general as Hoffman & Zeffert in the South
African Law of Evidence (supra) at page 207 is that judges had
narrowed inferences to be drawn from such evidence. Indeed the
learned authors question whether a pointing out induced by gross
cruelty can in law be deemed to be an act of accused at all.

I am not
impressed at all about the way the dagger with a black handle was
obtained from accused 4. Therefore I cannot admit it in evidence. In
any event no one can be sure it belonged to accused 4 or was in his
possession on the day deceased was killed - all PW2 say with
specificity is that accused 4 had a knife. The rejection of the
evidence of the way this dagger with a black handle was found does
not help accused 4 because PW2 whom I have believed says he was there
and had a knife -whether it was this dagger with a black handle or
not. He was aware that PW2 and the other accused had knives with
which to intimidate the deceased in order that he could yield his
vehicle to them. There is evidence that he attempted a stab at the
deceased after he had fallen. Even if accused 4 missed or had not
done so, PW2 did it on his behalf unfortunately their plan went
horribly wrong.

Discharge
of accomplice

80

Section
236(2) of the Criminal Procedure and Evidence Act of 1981 provides
that where an accomplice, "fully answers to the satisfaction of
the court all such lawful questions as may be put to him, he
shall...be discharged from all liability to prosecution for the
offence concerned". I am of the opinion that PW2 Mosemako
Hlalele answered all questions put to him to the satisfaction of this
court. Therefore in terms of Section 232 (2) of the Criminal
Procedure and Evidence Act of 1981 I discharge him from prosecution
for the offences concerned.

Murder

The test
for murder is a stringent one. There has to be an actus reus which is
the act that caused the death of the deceased. Evidence shows an act
of killing. The only issue for determination is, by whom.

The next
element to prove is of intention to kill. The test is whether the
accused subjectively intended to kill the deceased - not that the
accused objectively intended to kill the deceased. The subjective
intent as a test has much more stringent requirements than the
objective test whose standard is that of a reasonable man. Where the
test is subjective, the court has to find the accused's own
intention, not what the reasonable man might have done. Like any fact
its subjective intention may be inferred from surrounding facts and
circumstances. This is known as dolus eventualis. If subjective
intention to kill has been found from circumstantial evidence it must
be the only inference that can be drawn. See S v Sigwahla 1967(4)

81

SA 566.

In cases
such as a murder that occurred during a robbery or in furtherance of
a robbery, mens rea is premised on the doctrine of common purpose.
Where common purpose is ascribed to the accused, the court does not
inquire into the part played by each accused in the actual killing of
deceased. The mere fact that deceased was killed by one of the
accused in the execution of a common design to rob deceased (so long
as accused is in the vicinity) is sufficient to make all of them
liable for murder. See R v Shezi 1948 (2) SA 119:

In the
case of S v Nhlapho 1981(2) SA 844, the case of robbers who attempted
to grab cash from security guards intention was decided on the basis
that the security guard was shot by the other security guard during
the cross-fire. Although the actus reus or action that killed
deceased was not that of any of the accused on a robbery mission,
they were found guilty of murder. The reasoning of the Appellate
Division per Van Heerden AJA was that:

"It may be conceded that they hoped to overpower the guards
without a shot being fired by the latter, but they must have known
that the guards would endeavour to use their fire arms when
attacked.... Consequently they also foresaw the possibility of one
guard being killed by a shot fired in the direction of the robbers by
another guard or, for that matter, a staff member from Makro
witnessing the attack. In sum, the only possible inference, in the
absence of any negativing

32

explanation by appellants is that they foresaw, planned and executed
the robbery with dolus indeterminatus in the sense that they foresaw
the possibility that anybody involved in the robbers' attack, or in
the immediate vicinity of the scene, could be killed by the cross
fire." (S v Nhlapho & Another 1981(2) SA 744 at page 751
A-C)

Accused 2
(when he hatched the scheme to rob deceased of his vehicle) also
hoped that PW2 and accuseds 4, 5 and 6 and Ntsie (who was accused 7)
could overpower the deceased without killing him. In other words he
had like the robbers in S v Nhlapho dolus indeterminatus. He also
foresaw deceased might fight and raise alarm (as he in fact did), and
that excessive force including killing deceased outright might have
to be resorted to by PW2 and the co-accused of accused 2 who are in
fact, his partners in crime. This in a nutshell is the Crown's
argument against accused 2.

In the
case of people who use others to rob on their behalf like accused 2 -
and, so to speak, rob through agents - they might be liable. They can
be deemed to be liable for the death that might result because they
had foresight of the killing but were resigned to the acts of their
socius in crime. In the case of S v Mkhize 1999(2) SACR 632 accused
had been party to common purpose to commit a robbery and forseeing
the possibility of the participants causing death. The court found
that the liability of the accused in respect of murder is not
excluded merely because the robbery and the killing occurred at a
different place from the one that accused and his partners in crime
had planned.

83

In
respect of accused 2 the issue which this court in this case must
decide is whether the liability of accused 2 is excluded merely
because the robbery took place on a different day from the one
accused 2 expected it to occur. The other one is the fact that the
socius of accused 2 had included accused 4 who they knew accused 2
did not approve of.

There is
a further requirement which is missing in this respect in connection
with accused 2 in the case before me. In S v Mkhize the accused had
been seen in the company of the others approaching the motor vehicle
of deceased, pointing fire arms at deceased. In the case before me
accused 2 was not in the vicinity. It was argued in S v Mkhize that
conspiracy to rob deceased in the yard did not extend to the house
where the deceased was shot and killed not far from where accused in
Mkhize''s case was. Accused 2 was not in the proximity of the house
and yard of the deceased where the robbery was supposed to take place
according to the plan he had made with PW2, accused 5 and 6. He did
not know it was taking place and whether it was still going to take
place.

This
change of the day of the robbery raises the point of whether in the
absence of knowledge that the robbery was occurring and that it was
still going to occur, accused 2 foresaw at that moment the
possibility of death of the deceased, and that he nevertheless
persisted in the robbery reckless of the possibility of death of
deceased. In S v Mkhize there was no such problem because accused had
participated in the steps that led to the

84

robbery
in the yard of deceased, but the deceased was shot inside the house a
few minutes or seconds afterwards. In this case the vehicle had been
taken to the place of accused 2 which was about 15 kilometres away.
There is no clear evidence that accused 2 was in fact told
immediately that deceased had been killed as happened in Rex v
Sekhobe Letsie 1991-1996 LLR 1041.

The
problem that accused 2 has is that he gave no evidence that he had
dissociated himself from the robbery and its possible consequences at
the time it occurred. In stead he lied In S v Maelangwe 1999(1) SACR
133 it was repeated that common purpose entails liability if there
was agreement to commit a crime and foreseeing possibility of
participants causing death to someone in the execution of the plan
yet persisting with the plan reckless of consequences. There is no
rule of law that the state of mind of the accused should be
determined solely with reference to the facts existing at the
commencement of the killing.

In the
case before me accused 2 was miles away and did not know that his
scheme of robbery was proceeding. How does this court conclude that
he persisted in his participation in the robbery regardless of
whether the foreseeable death of the deceased occurred or not? I do
not believe subjective foresight can be imputed to accused 2 in the
circumstances of the case.

85

The only
issue is whether accused 2 can be said to be an accessory after the
fact to murder. There is no evidence that he was immediately told of
the deceased's death. It is true he sold the cell-phone of deceased
with accused 6, but even here too there is no evidence that he knew
that it was the deceased's cell-phone, and that in disposing of the
cell-phone he was concealing the murder. It is true as PW2 (whom I
believe) said accused 2 did hear of the death of deceased, the
robbery and the reward of Ml0,000-00 and that he discouraged PW9,
accused 5 and accused 6 from coming forward with information they
might have. Even here evidence of making, accused accessory after the
fact in the murder of the deceased is unsatisfactory and
insufficient. In R v Sekhobe Letsie 1991 -1996 LLR1043 there was
direct evidence that the perpetrators had gone to the accused and
told him of the murders and that he had concealed this information
from the police either alone or with other Military Councillors. Here
we have nothing except in respect of the motor vehicle which accused
2 wanted. The conclusion I have come to is that if the standard was
an objective one, it would be stretching facts too far and
supplementing them with guess-work to find accused 2 guilty as an
accessory after the fact to murder.

Accused
2's reaction to events leaves a lot of questions unanswered. His
deplorable lack of curiosity after getting the vehicle he had invited
his partners in crime to bring is very suspect. But the courts in
convicting accused persons do not act on suspicion, they act on
evidence. That being the case the state of mind of accused 2 could
not with certainty be So determined when PW2 and others had decided
to exclude him in the execution of the plan. Accused 2 might not
have known that PW2 and the others have not given up. I will
therefore give accused 2 the benefit of doubt on this issue.

Accused
4,5 and 6 were aware PW2 had a knife and they had knives too except
that the dagger might not be belonging to accused 4. They were aware
deceased was to be intimidated with a knife. This went wrong,
deceased fought PW2 in defence of his property and PW2 stabbed him
fatally on their behalf. They ,were all in the vicinity of the
stabbing. Whether they all stabbed deceased before or as they ran
away is immaterial. They foresaw that deceased might resist and they
be forced to kill him as they did. They are all guilty of murder.
Robbery

Robbery
is a species of theft. Hunt South African Criminal Law and Procedure
Volume II Common Law Crimes 2nd Edition by Milton at page 682 states
that

"robbery is theft by violence. Its animus or intention is much
broader and even crosses frontiers of States. That is why theft is
said to be a continuing crime at page 643 of the above mentioned work
Milton says:

"X is a socius and guilty of theft if he agrees before the
initial taking to receive the stolen goods from the thief and then
does so."

87

As already found proved, accused 2 went beyond agreeing to keep the
deceased's vehicle - he in fact instigated the robbery of the
deceased. Tindall JA in R v von Elling 1945 AD 234 at 247 reasoned
that even assisting in preventing the recovery of stolen property
makes the participant a principal offender because "theft is a
continuing crime which does not end with the original taking, it
seems to me to follow that Von Elling by his conduct in assisting Van
Rensburg became guilty of theft".

To
summarise the facts in respect of Accused 2, I have found as a fact
that accused 2 decided on the scheme to rob deceased of his vehicle
which was so similar to his that people might not notice it when he
put the plate numbers D0440 on it as he in fact did. He planned the
initial stages of the robbery by recruiting accused 5 and 6 to go and
rob deceased of his vehicle. They in turn brought PW2 who became a
member of their robbery team.

Accused 2
took this team to go and see the vehicle Exhibit 6, which accused 2
had initially intended this team should rob deceased of his vehicle
on the highway by having accused 6 as a traffic policeman. This plan
was abandoned in favour of seizing deceased when he got out of his
vehicle at night at deceased's residence, and taking his vehicle. He
took PW2, accused 5 and 6 to Hoohlo School twice or three times to
carry this robbery. The scheme eventually succeeded, he got the
vehicle Exhibit 6 as

88

he wanted
knowing deceased must have been robbed of it. Indeed even if he did
not initially know he learned of the robbery. He removed the canopy
and fitted his numbers on the vehicle thus making himself not only
the principal offender but an accessory after the fact in the
alternative - if such a category exists in robbery and theft.

The
conclusion I have come to therefore is that accused 2 is guilty of
robbery as a principal offender. In Lesotho, in law there is only the
crime of robbery. In the case of accused 2, his robbery (evidentially
speaking) was an aggravated one as deceased was killed in the
robbery.

Accused 5
is guilty of robbery as he took deceased's vehicle Exhibit 6 and
drove it to the home of accused 2 expecting a reward, which he
proceeded to claim from accused 2.

Accused 6
by knowingly associating himself with the robbery demanding a reward
after the vehicle had been taken at the time he had run away made PW2
and accused 5 to remain his agents in the completion of the robbery.
When they brought deceased's vehicle Exhibit 6 and cell-phone Siemens
S6, accused 2 and accused 6 went to sell it to PW4. Accused 6 is also
guilty of robbery.

Accused 4
is found not guilty of robbery because he fell completely off the
picture after the murder. No taking can be attributed to him.

89

Stand up
accused:

On Count
I:

Accused
4, 5 and 6 are guilty of murder as charged.

Count II:

Accused
2, 5 and 6 are guilty of robbery as charged.

Accused 4
is found not guilty of robbery.

My
Assessors agree.

WCM
MAQUTU

JUDGE

For the
Crown : Mr Griffith

For the
1st & 3rd : Mr S Phafane

For the
2nd accused : Mr M Ntlhoki

For the
4th, 5th & 6th accused : Miss Mahase