HIGH COURT OF LESOTHO
ANDREAS Van der MERWE
by the Hon. Mr Justice M.L. Lehohla on 27th April, 2nd May,2001.
convenience the above accused who were formerly charged jointly with
three others who for some reason or other are not before Court, shall
be referred to as accused 1, 4 and 5 respectively thus retaining the
numbers given to them while jointly charged with the other accused
who are not before Court but who were given
numbers 2, 3 and 6.
numbers 1, 4 and 5 pleaded not guilty to charges of murder in Count
I, murder in Count II and robbery in Count III.
I the charge preferred against the accused specified that
"..........upon or about the 21st day of June, 1995 and at or
near Ha- Lumisi in the district of Mafeteng, the accused, one, or the
others, or all of them, did unlawfully and intentionally kill Sekoli
II the specific terms are to the effect that
"............upon or about the 21st day of June, 1995, and at or
near Ha- Lumisi in the district of Mafeteng, the said accused, one or
the others or all of them, did unlawfully and intentionally kill
III the charge specifies that:
"...............upon or about the 21st day of June, 1995, and at
or near Ha- Lumisi in the district of Mafeteng, the said accused, one
or the others or all of them, did unlawfully and with intention of
inducing submission by the deceased, Sekoli A. Moeketsi and Refiloe
'M. Mofolo to the taking by the accused of certain items of property
motor vehicle Jetta (VW) GLX, silver grey in colour
pair of black shoes(men's)
black leather jacket .
diary book threaten the deceased persons herein that, unless they
consented to the taking by the accused persons of the said property
or refrained from offering any resistance to them taking the said
property, they would then and there shoot and or kill them; and did
then and thereupon take and steal from the persons of the said
deceased the said property, which was the property of the deceased
herein or in their lawful possession, and did rob them of the same".
to say at the end of the Crown case the applications for the
discharge of accused 1, 4 and 5 were refused in terms of a ruling
delivered on 4th December, 2000, whereupon only accused 1 and 5 gave
evidence in their defence while accused 4 on, no doubt, advice from
his counsel Mr Lesuthu opted to exercise his right to remain silent.
stage of the proceeding the Court is called upon to determine if the
Crown has succeeded in discharging the onus placed on it to prove the
individual accused's guilt beyond a reasonable doubt in respect of
one, more or all counts. This is the test to be applied even in
respect of accused 4 who remained silent even although the Court's
finding had indicated that there was a case to answer. If in any of
the charges preferred the determination is that there is proof of
guilt beyond doubt then it would mean that in respect of an accused
person who remained silent the
facie case became conclusive in the absence of the explanation the
tenor of evidence tendered required him to give in the sense that it
called for an answer. In an endeavour to prove its case the Crown
called eighteen (18) witnesses.
defence on its part relied on five witnesses consisting of DW1
Moeketsi Sello DW2 Moeletsi Challa DW3 Rethabile Mathetse who
testified for DW4 No.l accused Refiloe Mokalanyane.
defence witness is DW5 No.5 accused Mokherane Tsatsanyane.
accused 1's witnesses testified before him. More of that later.
Litseko Julius Mosoeu having been given a warning pertaining to
accomplice witnesses testified on oath that he resides at Lithoteng
Ha Seleso and has been living there even in 1995. He is aged 38 and
for the last 15 years he has been employed as a soldier in the
Lesotho Defence Force - LDF - where he is still an employee to date.
recalls that on 21-06-195 between 8 pm and 9 pm his children drew his
attention to the lights of a vehicle outside the home. He went
outside and found that the vehicle was actually inside his yard. He
told the Court that he saw two people alighting from this vehicle. He
approached them and inquired who they were. One of them answered and
said "it is me Mr Mosoeu" and indicated to PW1 that he was
ACE. The name Ace was a nick-name of a fellow familiar to PW1
surviving under the name Moeketsi Mofihli.
didn't know Ace's companion who remained silent and didn't say
anything. Because PW1 knew Ace's parents' vehicle and because this
particular one was unfamiliar to PW1 he asked where they got this
explanation given while on face value appeared plausible it later
turned out to have been a mere ruse. This is the discovery PW1 came
to make after his own arrest when the story put to him by
interrogators revealed to him that he had been given hold of the
wrong end of the stick.
fanciful story that was related by "Ace" Moeketsi Mofihli
in the presence of accused 1 was that the duo obtained the car from
Mohale's Hoek. Asked how they managed to obtain it, Moeketsi Mofihli
stated that while he and accused I whom
to learn was Refiloe on asking Mofihli who his companion was, had
been drinking at a restaurant in Mohale's Hoek and they saw a
drunken man from whom car keys imperceptibly fell. Mofihli collected
the keys and went to the parking area outside and kept on
reactivating the remote activator till the car to which the key
belonged gave the positive reaction. This is how the duo were able to
find the Jetta car among many cars.
important to note from Pw1's evidence that he testified to being told
by Mofihli that the fallen keys were picked up from the floor by
Mofihli from the drunken man and that Mofihli's companion didn't say
anything to gainsay what Moeketsi Mofihli was saying. See page 3 of
secured themselves the possession of this Jetta car they travelled in
it from Mohale's Hoek to Lithoteng at PW1's house where this
conversation took place.
during the course of PW1's evidence relating to what Mofihli was
telling him that he asked Mofihli who his companion was and Mofihli
said the companion is Refiloe. PW1 learnt from Mofihli during the
course of this conversation that Refiloe's home is next to Pita's
addressed the question to the duo as to what they said "about
this car. The reply was that they wanted to leave it at my(PW1's)
home while they were going to look for a place to hide it".
appears patent that PW1 was prepared to go along with the scheme that
involved the "hiding" of this car. He thus asked that it be
driven closer till it reached the front door of his home which is
where PW1 indicated it should be parked.
It is at
this stage that on noticing that this car is new PW1 asked the duo to
open it so that he could see it more closely. As they obliged he sat
in the front passenger seat of the car, opened the cubby hole and
found a small note book in there with names of people written in it
but forgets what these names were. He also found a log-book in there
whereupon he asked where the number plates of this car were for it
had none. He was motivated to this question by his experience that if
a vehicle carries a log-book then it must be a government vehicle.
There upon he was told that the vehicle had no number plates but a
"temporary". By "temporary" he understood to be
meant a piece of paper reflecting [registration] numbers of that
vehicle. In his experience a "temporary" is usually fixed
on the windscreen and back window.
the Court that he pointed out that this is a government vehicle and
asked the duo what they intended doing with it. The response he got
was"..........this vehicle should remain in our hands and that
it be altered so that we can use it. They said it be changed from
being a government possession into something else". I have
italicised the phrase above to indicate the fact that Pw1 does not
seem to exclude his participation in and facilitation of the plan
being hatched to convert the government's possession in the car into
some collective possession of individuals by means instantly
willing Pw1 was to be part of this enterprise that no doubt enticed
by prospects of being an instant shareholder in the car or proceeds
of its sale he made suggestion that the log book be burnt; and it
was. He tore the incriminating pages of the note book referred to
earlier or diary where names of persons appeared.
testified further that Moeketsi Mofihli asked if PW1 had a sail for
purposes of covering the car. However PW1 had none and decided that
they could make do with his own mackintosh in reference to which his
actual words are "I took it from inside the house and we covered
the vehicle with it. The three of us (did)". Emphasis supplied.
He later indicated that the mackintosh managed to cover the
windscreen and back window of the car.
indicated that although he was unable under unnatural light to
identify the exact colour of this car it was nonetheless dark in
colour; either green or blue. We know now that the colour is a dark
silver grey sometimes referred to by counsel who were present at the
inspection in loco as charred grey. PW1 noticed a defect on the
window or door on the passenger side of this car. The fault he
referred to consisted of a hole at the bottom of the door. The hole
seemed to him to have been of a punched type.
close of the events of that evening Mofihli and his companion named
Refiloe left taking the car keys with them as they did so. PW1 was
quick to add that he didn't know who between the two had been driving
for when he reached them they were already down on their feet outside
following day Pw1 recalls that he was off duty. Thus he went to
Naledi to see friends and drink. When he arrived back home at small
dusk he found the car still there. A short time afterwards Moeketsi
Mofihli and Refiloe arrived. The time of their arrival is roughly
estimated at 7 pm. PW1 says on asking where this vehicle
be taken to whereupon Moeketsi suggested a place at his uncle's at Ha
Tsosane, some vehicular lights shone above a hill some short distance
away from PW1's house. Shortly afterwards a priest called Moeletsi
(now known as Moeletsi Challa) i.e. DW2 arrived at PW1's place. It
seemed to PW1 that DW2 came from that vehicle that was at the top of
the hill. DW2 was at the time known to PW1 as a priest with whom they
previously discussed church matters at DW2's home. Pw1 and DW2 went
some distance away from Refiloe and Mofihli to talk about church
matters once again.
private conversation had come to a conclusion DW2 asked whose car
this was parked in PW1's yard. He replied that it was brought by the
two people standing next to it. PW1 told DW2 that the two are used to
him and that they had stolen it from somewhere. Asked by DW2 what
they intended doing with the car PW1 told him "we are still
uncertain what to do with it". PW1 hastened to ask DW2 if he
could be of any help in finding a place where to hide this car. This
in my view marked a vast departure from church business for which DW2
had come there. DW2 said he couldn't make any promise but suggested
that he had left a white man at the hill lying over and across
perhaps he could be of some help as he is a motor-repairer. DW2
invited PW1 to go and see the white man. Meantime Refiloe and
had remained at PW1's place.
reaching the white man the discussion went on in English between DW2
and the white man. However though PW1 does not understand English
very well he was able to gather that the vehicle could be taken to
'Mamokhutsoane's place where the white man stayed. Anyway DW2 told
PW1 that the white man said they could go and place the car there.
The white man PW1 was referring to was later identified before Court
as accused 4.
accused 4 joined the driver of a white Honda while PW1 repaired to
his house to inform his earlier visitors of the good news.
after the Jetta joined and followed the Honda which had waited some
150 metres away from PW1's home. PW1 says he was with Moeketsi
Mofihli and Refiloe in the Jetta. They followed the Honda till they
reached 'Mamokhutsoane's place lying some 1½ to 2 km away.
garage was opened and Moeketsi Mofihli drove the Jetta inside there.
Thereafter Moeketsi Mofihli, Refiloe and the driver of the Honda
drove till reaching
earlier spot lying some 150 metres away from PW1's home and the
driver dropped his passengers there. Each passenger repaired on foot
to his home from that spot.
following day PW1 reported on duty and had done so for the next day
or so when after knocking off he met the driver of the Honda who was
on foot this time at Ha Pita. The man asked PW1 to stop. As PW1 did
the man said to PW1 "Hey man that vehicle is being announced all
over". PW1 took fright and asked "where is it being
announced". The man said "all over, over the radios it is
testified that he understood his informer to be referring to the
Jetta car that PW1 and accused 1, and Moeketsi Mofihli and indeed
accused 4 had left at 'Mamokhutsoane's place.
the man parted. The following day amidst great worries about the
encounter with the previous driver of the white Honda PW1 felt he
didn't know "how to carry this weight that was on me". See
pg 10 of court's notes. He was perplexed as he didn't have time to
meet with the priest DW2 for he had to go to work in the mornings and
come back home late in the short winter days. His anxiety was not
made any easier when the Honda driver told him also that he had been
trying to reach
several occasions earlier.
came to work he learnt from one of his colleagues who is senior that
if the vehicle that was at his house is the one in the hands of a
white man PW1 should know it is being looked for; moreover it might
well be that the white man has already been arrested.
got a message that he was required at the National Security Services
NSS. He was questioned about the car and he indicated that he knew
referred to the CID where he gave his explanations concerning his
involvement in this unsavoury episode. However the CID appeared not
satisfied with PW1's narration when it made no mention of the use of
the gun in the robbery and murderous enterprise. The CID police
rejected his version that the vehicle had been obtained from Mohale's
Hoek. It was when PW1's story appeared to have a ring of truth in it
that the CID accepted his story, namely, that he didn't know for a
fact if the car was obtained from Mohale's Hoek but "according
to people who brought it to my home I had learnt that it came from
Mohale's Hoek". If PW1's story is true that he had been so told
then it is clear that he had been deceived by those people who had
the car to his home. That the truth emerged as I have indicated at
inquiry was thanks to the diligent inquiry of the CID.
indicated that after some days he, accused 1, Moeketsi Mofihli and
accused 4 were driven to Mafeteng by the CID. Before then PW1 had
been taken out of his cell to go and identify the car that had come
to his home on the night of the events and he did so.
when PW1 and the above had been detained to attend remands at
Mafeteng prison that he had occasion to ask Moeketsi and accused 1
what had exactly happened that they got to acquire the car they
brought to his house. He told the Court that they informed him that
they had not in fact taken the car from Mohale's Hoek but from
Mafeteng. Asked how they did that they told him that they had asked
for a lift from the driver/owner of the car intending to come to
Maseru. When the duo had secured themselves the lift thus they shot
and killed the driver and his female passenger; and drove in the
deceased's car till reaching PW1's home. PW1 didn't ask where they
did the shooting. He learnt however that Moeketsi Mofihli and accused
1 had dumped the two deceased somewhere along the way from Mafeteng
cross-examination by Mr Mosito for accused 1 PW1 was referred to the
statement he had made before the police. PW1 reiterated that he
didn't know accused I before he arrived with Moeketsi Mofihli at
conceded that when told a vehicle had lit up his house by his
children he came out with a galil gun measuring about a metre long.
He denied pointing it at the car coming to his house.
taxed on the point whether his daughter said the vehicle had come to
the home or that there was light of car outside. I quite frankly
don't think much should turn on this rather petty-fogging form of
cross-examination which could be indeed legitimate except when as in
this occasion it was unnecessarily indulged in at length.
out also that the name of the person that PW1 gave to the police as
the one who was accompanied by accused 1 when they drove into his
yard was one Rantantu or Rantau. The fact that the man Ace is the
same person as Rantantu comes out in answer to a question put as
shown at page 97 of the Court's notes as follows:
"You remember in your evidence-in-chief you said the person who
came to you that evening was one Ace........? I said so.
Yet in your statement before the police you don't mention this Ace.
You talk of different names. Rantau (for instance)........? Yes
Ace is his nickname which I called him by when bringing him up as a
child. His real name is Rantantu."
conceded he no longer remembers what name this Ace alias Rantantu
alias Moeketsi Mofihli identified himself by. But regard being had to
the length of time that has passed between when PW1 gave his
statement to the police about this issue of the name and when he gave
his evidence before this Court one can scarcely take him to task for
that. Moreso because one more factor of added impetus to the equation
is that his true surname is Mahula. It was thus unfair to suggest
that PW1 was fabricating when he used the names which in any case
appear in the charge sheet in reference to Moeketsi Mahula who it
could correctly be suspected was responsible for the supply of the
names appearing in the charge sheet. If there was anything wrong then
it should have been cured by simple amendment to the charge sheet had
objection to the name been raised at that appropriate stage.
there may be a point that the first time when PW1 saw Mofihli's
companion he could well not have been able to identify him because he
had never seen him before, it was dark and the man did not speak; it
seems to me that if in fact
again the following day as PW1 said and PW1 met him again and
thereafter a couple of days when they lived together and conversed in
the Mafeteng prison, by that time accused 1 was fairly familiar to
PW1 and therefore no question of mistaken identity can arise in such
circumstances as to who had accompanied Mofihli to PW1's premises on
the number of occasions this is said to have taken place.
importance under cross-examination which elicited the information
that PW1 was tortured while at the police detention is that he told
the court that the torture did not make him lie before the police or
before this Court.
put to PW1 that nohow could Ace Moeketsi have said he was with
accused 1, when the key to the car was taken for accused 1 was not
there. PW1 countered by indicating that actually accused 1 himself
told him (PW1) this aspect of the matter at the time when accused 1
and PW1 were in detention and were enjoying some moments of leisure
to speak to each other.
Lesuthu for accused 4 briefly asked if it was PW1 or some other
witness who had said to the Court that the vehicle was involved in
some crime. PW1 replied "Not me". Apparently Mr Lesuthu's
confusion was generated by the fact that PW1
ordered to stand down and let his evidence be interrupted by no less
before he could be recalled.
Mahlakeng appearing for accused 5 Mokherane Tsatsanyane asked whether
simply because PW1 was expecting visitors on 21-06-95 he should have
been in the high state of alert that he seemed to have been in.
Accordingly he wished to know what was so special about the evening
of that day. The witness answered that there was nothing special and
seemed to be puzzled how it could be said he was in a state of alert.
Thereupon a legitimate question was put to him drawing attention to
the fact that once it was reported by his children that a vehicle had
come to his premises he came out with a big gun to confront the
occupants of the car. PW1 conceded that he is not used to being
visited by people driving cars.
further indicated that even military vehicles never go to his house.
As a matter of fact he has never been escorted in any military
vehicle to his house in the 15 years he had hitherto spent in the
army. None ever did so in 1995.
he leads a scared life he answered yes. Further that in 1995 he was
already leading a scared life. The reason for this mode of life he
said had nothing to
his being in court where he was giving evidence.
attention was brought to the discrepancy in his statement wherein he
indicated at page 4 he arrived home from Naledi between 6 and 7 pm;
in contrast with his testimony before this Court that he arrived home
between 7 pm and 8 pm. The witness indicated that in both occasions
he was only giving his estimation of the time. I accept the point
that it having been in the middle of winter it was, as the witness
conceded, already dark. PW1 does not remember what day of the week
this was though.
to the question put by one of my assessors why PW1 did not report the
matter to the police on noticing it was a government vehicle his
disarming answer was that this sort of stupefied him. As I said
earlier because he associated himself with acts of criminality
pertaining to this car to the extent that he destroyed one of the
means that identified it as a government vehicle he was in fact a
participant in trying to foil means of establishing its identity. To
that extent it would be inconsistent with the attitude he had adopted
towards this car for him to report the incident that a car belonging
to government had just been stolen and kept at his house by others.
in credit to PW1 he was agreeable to the suggestion that 1995 was
marked by lawlessness in the history of this country. The military
were virtually untouchable in respect of breaches of the law they
were committing in this country. Indeed just a year before the Deputy
Prime Minister had been killed in circumstances pointing to the
involvement of the military yet nothing happened to the culprits. So
when a government vehicle subsequently got stolen and kept in the
safe custody of a man belonging to the military the enormity of the
callousness that accompanied the act of stealing a mere government
vehicle paled into insignificance when compared to events of the
previous year. The Court takes judicial notice of the fact that the
prevailing atmosphere at the time spanning the years 1994 and 1995
was characterised by mutinies in the army, illegal police strikes and
teachers' strikes including indeed illegal strikes by the prisons
opportunism in the occurrence of the instant crime could easily be
regarded as a factor in the series of events that characterised the
ugly mood of the time. Be that as it may.
Mcpherson who performed post-mortem examination on the bodies of the
two deceased on 23-06-95 stated that he went through the examination
reduced his findings to writing afterwards. He formed the opinion
that injuries on both deceased were caused by bullets discharged from
fire-arm. The details of his findings are contained in Exhibits A and
B handed in by this witness in respect of the deceased Sekoli
Armstrong Moeketsi and Refiloe 'Mamolulela Mofolo respectively.
Respective sketches with accompanying illustrations are attached to
Exhibits A and B.
determined that the cause of death in respect of Sekoli Moeketsi was
haemothorax whereas that in respect of 'Mamolulela Mofolo was a
respect to Armstrong Moeketsi's body PW2 indicated that he found a
wound on the right supra-clavicular region measuring 1 cm in
diameter. He also found a superficial wound on left mid-axillary
region 2½ cm long.
respect of 'Mamolulela PW2 found a wound 2½ cm in diameter on
the right upper arm anterior aspect. Next to it was another wound of
the same dimensions. There was another wound on left anterior
revealed that only one bullet entered the body of the
Armstrong. The witness did not find any exit wound; yet he couldn't
bullet remained in this particular deceased's body.
Court if he would have found it if there was any; he said it is not
always possible to trace a foreign body in the body of a dead person.
am constrained to say what appears to be the real reason for this
unsatisfactory answer and state of affairs is the attitude conveyed
in this witness's reply that "sometimes we don't feel the need
to trace these things.
in brief what you are saying is that you didn't find the
also taking into account the state of our hospital..............".
I must confess to my perplexity and bewilderment that because of the
attitude revealed in the testimony of this witness criminal justice
runs the risk of frustration due to inadequate presentation of
evidence before court while abundant amount of vital evidence which
was readily available to medical practitioners who performed
post-mortems remains entombed along with the deceased in their
graves. This is unacceptable. Proper sanctions should be in place
immediately to curb this surest
to the destruction of what criminal justice system stands for namely
to prevent and eradicate crime by thwarting any attempts to frustrate
detection of crime.
to Mr Mosito PW2 said the wound on Armstrong was not caused by
dumping but by a bullet. With respect to 'Mamolulela he said he was
positive there were two entry wounds and one exit wound. He was not
sure if there still was another bullet imbedded in the body of
that PW2 said the wounds on the arms of the deceased 'Mamolulela had
nothing to do with the liver; it could safely be concluded that the
rupture of the liver given as the cause of death was caused by
puzzled though that the doctor said both the entry and exit wounds on
'Mamolulela measured the same. This defies all experience which is to
the effect that exit wounds are usually larger than entry ones in
missiles fired from fire-arms. But again I formed the view that the
doctor's mind was not totally focussed on what was required of him to
do. No attention was given by him to requirements to be fulfilled in
terms of notes 7 and 8 of Exhibits A and B.
says "give cause or causes of death as evidenced solely by
objective appearances. If more than one cause, state primary
opinion has been expressed by Pw2 as to what could have been
responsibly for the rupture of the liver.
respecting which no attempt has bee made to fill reads :
"These [REMARKS(8)] should always include a brief statement of
the circumstances in which death is reported to have taken place.
Appearance which raise (sic) a presumption of criminality or of
culpable neglect, should also be briefly referred to here. See also
Mookameli Mantutle testified that he works at the Ministry of
Education; and was already doing so in 1995. He is known to both
deceased. Both of them also worked for the Ministry of Education.
'Mamolulela was PW3's immediate superior. On an unspecified day in
1995 'Mamolulela told PW3 about a trip she was to undertake. It
seemed that 'Mamolulela on this trip was to give a lift to another
employee of the Ministry bound for Mohale's Hoek.
parted company with 'Mamolulela at around 12.50 pm when each went
lunch. That was the last time PW3 saw 'Mamolulela alive. A day or two
afterwards PW3 recalls the deceased's husband coming to inquire about
his wife's whereabouts as she hadn't spent the night at home on the
day she had intimated to PW3 that she was going on a trip connected
the course of this inquiry another Education Ministry employee from
Mohale's Hoek broke the sad news that she had seen dead bodies of
both deceased near Ha Likupa - a little distance after passing
Mafeteng town en-route to Maseru.
to the scene described and afterwards went and saw the two bodies at
the Mafeteng Mortuary.
Tpr Chonelanka testified on oath that he had been a detective since
1993. In 1995 he was stationed at Mafeteng. On the morning of 22nd
June 1995 a Sgt Ntlama, policeman Tseloa and PW4 left in a police
vehicle intending to go to Mathebe. Along the way and at a place
called Santeng at Ha Lumisi this posse of police saw a group of
people gathered along side the road. The police went to the group to
find out what was happening.
right hand side of the road leading from Mafeteng to Maseru, some 20
paces from the shoulder of the road in a shallow furrow were lying
two dead bodies. One was male the other female. The male one was
lying face down while the female was lying on her back. There were
traces of blood on some spot along the road. These traces of blood
drops led to where the bodies were found. More blood drops were
observed where the bodies were resting.
having been satisfied that the bodies were in fact dead and that foul
play was involved in the deaths , immediately radioed his office to
report. The trip to Mathebe was thus abandoned in favour of attending
to this new and unexpected discovery of blood-curdling deaths.
was issued to go and fetch Dt Lt. Mothibeli from the office. Only
part of the posse went while trooper Tseloa remained at the scene. On
Dt Lt. Mothibeli's arrival the bodies were undressed and examined by
the bodies were undressed PW4 had in fact examined them. It was PW4's
evidence that the male deceased had a brown sleeveless jersey, a
white shirt and a grey pair of trousers on. Of significance even at
this early stage of adducing
is that this deceased was not wearing shoes. (See page 24 of the
Court's notes). The witness indicated though that this deceased had
socks on though he can't say what colour. The deceased was also
wearing a tie. This deceased's clothes were soaked in blood.
testified that having undressed this deceased he observed an open
wound on the right side of the neck. The witness indicated this spot
by pointing at the right side of his own neck just on the side of the
ridge of his shirt collar.
witness indicated also that this deceased had an open wound at the
back of his right shoulder and another under the right arm-pit. It
was his satisfactory testimony as far as the Court was able to assess
it that opposite all areas where this deceased had these wounds his
clothes had holes. He indicated that the wounds appeared to have been
effected with a piercing instrument or a fired gun.
proceeded to testify in relation to the female deceased concerning
whom PW4 said this deceased had a cream white jersey on with navy
blue stripes around the wrists and buttons. She also had a
multicoloured floral brown blouse, a pair of black boots, a navy blue
skirt, a lady's fawn vest and a white bra on. PW4 testified that the
deceased's clothes had blood on them too.
undressing this deceased PW4 observed two open wounds on the right
upper arm. The witness said that these wounds were located at the
back of the upper arm.
witness indicated that he also observed on the right breast the
female deceased had an open wound. He showed further that there was
an open wound under the right arm-pit.
witness was so thorough in his observations backed up by holes on
clothes the deceased is said to have been wearing, corresponding with
the locations where the deceased sustained the injuries that the
Court accepted it as credible. For instance PW4 referred to an open
wound which he observed on the left hand side of the deceased's rib
cage. The Court observed corresponding holes on this deceased's
clothes. The doctor said nothing about this particular injury in his
evidence. But in fairness to him his sketch has it well-mapped out in
the fourth diagram though it is again not labelled. It is merely
represented by a broad dot. To compound his laxity about the way the
doctor went about his work one observes in his schedule of
relating to this deceased that he indicates that in right lung he
yet as far as his sketch goes wounds on the right are those on the
upper arm only. One is left wondering what became of the bullet that
his sketch indicates entered the left rib cage.
deceased's clothes were handed in marked Ex "1"
collectively. See page 25 of the Court's notes.
regard to the female deceased's clothes the Court observed that of
the three holes on the jersey two were on the sleeve while the other
was on the arm-pit. The Court observed three holes on the floral
blouse. The fawn vest too had three holes. Two on the right sleeve
and one on the arm-pit area. The bra had a hole on the right breast.
The female deceased's clothes were handed in marked Exh "2"
just indicate at this stage that the Court feels more comfortable
with the location of the wounds as described by the police officer
whose description is supported by the deceased's clothing than by the
doctor who, as I said earlier, doesn't seem to have devoted
sufficient attention to the serious duty he was required to
on the flimsiest of reasons that he didn't see the need.
examining the bodies PW4 and others conveyed them to Mafeteng
Government Mortuary. It was his testimony that the bodies didn't
sustain any further injuries during their conveyance till the autopsy
was performed on them.
further testified that on 9th July 1995 a team of policemen from
Maseru led by police officer Raleaka came in company of two men who
it was maintained could help throw some light on how the deceased met
according to PW4 the Maseru team of police, accompanied by the two
men joined the Mafeteng police who drove to Santeng near Ha Lumisi.
Along the way towards there the two men gave explanations about what
happened at various points along the way on the fateful night. Indeed
a few paces away from the left shoulder of the road following an
explanation given by the two men a 9 mm shell was found. This is
shown in the album Exh "E" at page 2 "B". On the
opposite side of the road some hundred metres away was a donga a
waist deep into which it was learnt the deceaseds' bodies had
previously been discovered dumped therein.
he couldn't remember if any of the two men he talked about were
indicated that he collected the deceaseds' clothes and sent them for
forensic tests at the Police Laboratory at Makoanyane Barracks.
cross-examination by Mr Mosito he indicated that since he was unable
to remember the two men who were pointing out various spots likewise
he wouldn't be able to remember which one of them was making
explanations. Mr Mosito's question in this regard chose to confine
the question of explanations to one man whereas the witness had
indicated that the two men were both making the explanations and
pointing out though he can't remember who these were.
Thabang Mofolo is the husband of the deceased 'Mamolulela. Having not
had the company of his wife the previous evening he went about making
inquiries about her whereabouts at her place of work. He sadly learnt
that his wife had died. He there and then made for Mafeteng
government mortuary where he identified the dead body of his wife. He
went to the police Charge Office Maseru where he identified his
wife's clothes. Notably among these was his wife's black leather
was to learn later that along with other goods belonging to both
deceased this leather jacket was found at the home of accused 1.
Andres Makoebu Andreas having been sworn testified that he resides at
the stadium Area and had been doing so even in 1995.
accused before Court he knows accused 5 who is his nephew and accused
4 who used to stay at his home between 1995 and 1966 if his memory
occasion in 1995 to drive to DW2's place. PW6 was in the company of
friends namely Moeketsi Tjamela and Bafokeng Ramoseme when they left
in PW6's white Honda Ballade car for DW2's place. DW2 stated that he
could help PW6 and his party secure a place that could be run as a
Tavern. Thereupon PW6 and his party were led by DW2 to Ha Pita where
PW6 was told by DW2 that they would find accused 4 who knows of
someone who could be of help.
suggested to accused 4 that the place for use as a Tavern was
urgently needed. At the place where accused 4 was staying a grey
Jetta car was found. It was at night but PW6 was able to see that it
had a dent and a hole in it. One of the things PW6 observed was
either that the window was missing or not closing.
and Moeketsi Tjamela were driven in the Honda car while PW6 and the
owner of the Jetta car and the driver thereof were driven in the
Jetta car to 'Mamothutsoane's place where accused 4 stayed at
Lithoteng around Ha Abia area. PW6's car was being driven by Tjamela.
testified that accused 4 asked of 'Mamokhutsoane to have the Jetta
parked at her garage for the night while assuring her that it would
be removed soon thereafter because it had to be repaired.
'Mamokhutsoane was agreeable.
some of his party drove the owner of the Jetta car who he believed
was PW1 to his place. Everyone went his way after being dropped.
afterwards PW6 heard an announcement over the radio that the Jetta
car which coincided in general description with the one he had seen
was being sought
he immediately went to accused 4 to tell him about what he had heard
concerning the Jetta car. PW6 also says he advised accused 4 to
return that car to the people who had brought it to him.
cross-examination by Mr Lesuthu PW6 indicated he was not the one who
had made the deal with accused 4 for the repairs of the Jetta car.
PW6 said he didn't know why this car was driven to accused 4's place.
suggested to PW6 all that accused 4 needed for the repairs of the car
was M3500 not M9000; but PW6's response was that if that is what
accused 4 is going to say it so happens that that was not what he
said at the time.
Tankiso Mokhobatau is a thirty year old who at the time was staying
and working at the home of PW8 'Makabi Kabi at Maseru West.
testified that one day in June accused 5 Mokherane Tsatsanyane
arrived at dusk at this residence in the absence of PW8 who had gone
away on a trip to
was someone well-known to Pw7 because he was a frequent visitor to
this home. When accused 5 knocked at the door PW7 opened for him to
enter but he didn't. Instead he pointed out to PW7 that he had only
come to leave his car there. PW7 noticed that accused 5 had already
driven this car because the garage door had been lifted.
accused 5 close the garage door and head for another car apparently
that had escorted him to the home. This other car had remained parked
on a tarred road that has been cut off by a fence and thus stopping
it being used as a thoroughfare any longer.
the Court that the car that was parked in her employer's garage that
night was a grey Jetta car.
day PW8 arrived from Durban, and when she made for the garage to open
it intending to park her own car in it PW7 informed her that there is
another car in there parked by accused 5. PW8 let that be. PW7 helped
her unload the luggage
it into the house.
following day PW8 went early to work. At day time when PW7 came from
fetching a child from school she observed a car parked near the drive
way leading to PW8's premises. This she recalls was a station waggon
cream white in colour.
back seats of this car were loaded car doors. PW7 doesn't remember
how many though. But certainly they were, she said, more than one.
She went past it and made for the door to the house. But before she
could open it she could hear voices of people in the garage though
the garage was closed.
opening the garage door PW7 found 3 people in there consisting of
accused 5, a boy called Khosi and accused 4.
noticed that a car door was leaning against the garage wall inside
having seen that it was people she knew inside there except accused 4
went back to her household chores. This was around lunch time.
late afternoon when PW7 was going to collect wood for building the
evening fire she recalls that this car was still there. There is an
element of astonishment in the way this struck her though strictly
speaking it was none of her business for what purpose this car was
there: she said relating to conclusion of events surrounding the
"That's all for that Friday. But in the afternoon when I went to
the garage to collect fire wood the vehicle was still there...."
PW7's testimony that this car remained there throughout Saturday and
morning which was a holiday and PW8 was not going to work but instead
was still enjoying her sleep, people came knocking at the door. These
were police according as they identified themselves. PW7 reported to
PW8 that police had come.
to open for them. They spent a long time speaking with PW8 in PW7's
absence. She had remained outside during all the time that PW8 was
being interrogated. PW7 had told them at the door step when they
asked when the Jetta car
arrived there that it had done so on the previous Wednesday night.
She told them further that it had been brought there by accused 5 who
had said it was his and had come to ask that he be allowed to leave
thing that PW7 recalled is that the police asked Pw8 to go and show
them accused 5's home as well as his parents' home. Thus PW8 left in
the company of two or so police. One of the police who had come there
remained on the premises while Pw7 continued doing her normal chores.
long time PW8 arrived. PW7 recalls that though she didn't know with
whom accused 5 came there but at the same time that she saw him, she
also saw accused 4 arrive with police as well as Khosi. More and more
civilians came as well as police who kept flocking to that place.
things PW7 saw happening was the Jetta car being driven out of the
garage and being inspected. She also heard one of the police
addressing himself to accused 4 and saying "Andre did you do
this?" Saying so the policeman was pointing at the seat of the
car on which appeared to have been poured some dark substance. PW7
also heard the policeman ask if that was beet-root or not. In reply
didn't know. PW7 had learnt for the first time that moment that
accused 4 to
had been referring as the white man, was called Andre.
noticed that the door on upper side of the garage which is on the
same side as driver's door had been removed.
cross-examination by Mr Lesuthu, PW7 was adamant that what she saw on
the seat in question was dark and appeared as if it had been poured
there. She didn't recall though what colour the seats were. She
further stated that she was not sure if one wouldn't have seen the
dark spot unless pointed out to one. She conceded that it was
possible she might have thought of it as dirt.
Mahlakeng closely cross-examined this witness. It was in the course
of this cross-examination that it was revealed that PW7 had been
staying at PW8's home for two years prior to the incident. She
testified that accused 5 was no stranger to her and that he had been
visiting PW8's home frequently. She conceded that she herself was
much used to accused 5. She however rejected the invitation to say
this was not the 1st time accused 5 had left a car there.
however turned out that PW7 remembered times when PW8 would use some
of the vehicles brought to the premises by accused 5 save that she
was quick to say these would be done with PW8 being present though
she wouldn't know under what terms.
she does not remember accused 5 leaving a vehicle in June 1995 in
PW8's premises with instructions that a friend would come and collect
it the following day.
she stated that she never came to know that accused 5 was related to
PW8 she nonetheless thought their relationship was a family one
because Pw8 used to visit accused 5's parental home.
part PW8 denied that accused 5 or his parents are related to her. She
only regarded accused 5's parents as friends who shared her political
referred to her statement to the police PW7 readily conceded that she
made a mistake when in this court she failed to show that after going
past the station waggon with nobody in it she saw Mokherane nearby
and outside the garage.
again stated that she could no longer be sure if the day she referred
to as Friday was the day when PW8 went to work early.
conceded that she got confused by the question of dates as the matter
occurred a long time ago.
in my view the substance of this witness's evidence as opposed to
fine details is quite satisfactory and has the merit of being from a
person who is not bent on misleading the Court or showing positive
bias towards any of the parties to whom she made reference.
find that without appearing to be alive to the implication of her
testimony before this Court the picture she has been shown to paint
of accused 5 is of a sinister nature when she suggested that accused
5 was in the closed garage when she arrived from fetching a child
from school. However the overall picture supplied by PW15 Thabang
Lentjeka who was assigned the task of removing the doors from the
Jetta car by accused 5 quickly sets at naught what accused 5 would
stand to gain from the removal of the adverse effect of PW7's
evidence towards him.
conceded that the vehicle had been brought to the premises and driven
into PW8's garage by Khosi at accused 5's instructions.
'Makabi Kabi testified that in 1995 she used to stay at Maseru West
at the British High Commissioner's flats owned by Allied Chemistry.
She is a Lecturer at the National University of Lesotho.
1995 she went to Durban to collect Industrial Cleaning Products that
thinks that she returned at night on a Thursday. When she arrived at
her flat she wanted to park her van in the garage but was told by PW7
that accused 5 had parked a car in there. She shrugged off the
information and took her products into the house, leaving the van
where she had been unloading her stuff.
the Court that she was surprised that there was a car parked in her
garage. The following morning she went to work to carry on with the
accused 5 as the son of her political colleagues. She explained that
her surprise that the car was parked in her garage stemmed from the
fact that there hadn't been any prior agreement that it should. She
vehemently asserted that before then accused 5 had never parked any
vehicle in her garage except when his parents had borrowed her brand
new van in exchange for something that his parents would leave for
PW8 to use. The van it was said was bought in January (presumably of
the year in question).
witness sought to make the Court to understand that while this would
be the case between her and accused 5's parents at no stage was there
an arrangement between her and accused 5 to leave his vehicle on her
that on her way back from work she went via accused 5's father's
home. She found accused 5 and told him to go and remove his vehicle
from her garage as she needed to use it for her own vehicle.
PW8 had to send her van for a minor repair to accused 5's father.
Notwithstanding that PW8 had told accused 5 to remove his car from
her garage she discovered even as late as on Sunday that this car was
still in there. All this while she
couldn't have access to her garage. Nor did she care to look what
kind of car was
to be in her garage.
Monday morning she was woken up by what she described as a hard knock
at her door. It turned out that police had come to her home that
morning and sought to have some talk with her. They told her their
mission and she explained to them that she had been told there was a
car in her garage. The police went with her to check. As they opened
the garage she saw a car bearing Botswana Registration numbers.
this was the first time that she had seen this car since it was left
in her garage. The car was a Jetta car which PW8 says she doesn't
remember if it was grey or bluish.
asked her to take them to accused 5 and she obliged. They came back
together to PW8's home in the company of accused 5 whom PW8 had
identified to the police.
was asked to produce the key for the car to have it driven out of the
but because he had none the car had to be pushed out.
inspection of the car was thus done by police under day light. The
driver's door was not in place.
police called PW8 closer to the car and informed her that this was
the car which was used by Mr Moeketsi and Mrs Mofolo who were killed
in it. PW8 observed dark maroonish stains on passenger door of this
car. These stains were on greyish black back ground. PW8 found the
stains easily discernible. She saw these on the floor behind the
front seat. There was debris of broken glass. Police also picked up a
spent bullet from the floor. The debris of broken glass was lying
under the driver's seat.
was present throughout police activity that took place there
consisting of photographing the car and video-taping it. PW8 says
accused 5 was asked by police whose this car was and he said it was
accused 5 when asked why the vehicle came there, said that he had
tried to leave it at his grandmother's home at Maseru East but for
some reason or
failed and thus brought it to PW8's place because he recalled PW8 had
a garage; and thus decided to park it in it.
the Court recalls that when giving evidence in his own words accused
5 said he had intended leaving this car at his mother's elder sister
Mrs Mosala in Maseru East but found that the garage was full and
couldn't leave the car in the premises outside a garage in case it
rained bearing in mind that it was without a window.
people who kept being brought to the premises of PW8 was a white man
accused 4 according to PW8. If this is true one wonders why when it
was proposed that an inspection in loco be held on those premises it
was stated on his behalf that accused 4 would not find the place as
he had never been there before. In fact PW15 who testified that
accused 4 was one of the persons who were in the closed garage in
which he had been ordered to remove the Jetta car doors, was told
that this could not be so, moreso that accused 4 would come and deny
to say accused 5 himself testified that accused 4 has previously been
to the premises and was puzzled at the suggestion that he had never
only surmise that this suggestion was made on accused 4's behalf
because PW8's premises, especially the interior of her closed garage
where work was being done on the Jetta car was felt to be not a
comfortable place to be nor one which anybody would wish to be
associated with. But why? That's the question.
was closely cross-examined by Mr Mahlakeng for accused 5.
denied that she is related to accused 5's mother. She admitted
knowing Matsobane Putsoa and told the Court that he is her cousin.
Told that Matsobane Putsoa is related to the mother of accused 5 she
replied "Him not me".
closer cross-examination indicated that before the police PW8 had
said she had grown up at Quthing with accused 5's mother and her
sisters and that she is related to them. The Court gained a distinct
impression that she was trying to somersault and wiggle vainly out of
an awkward situation when she started saying the statement was not
written by her yet she signed it after it had been read back to her.
Not only that, but she gave as her reason for failing to correct her
statement the fact that she was shocked and that this happened a long
time ago. I don't see though how one can be so shocked as to claim
that one is related to another with whom they grew 48 together if no
such things are true. It cannot be true therefore that PW8 got to
know accused 5's mother in 1992 when PW8's attention was drawn to her
and her sisters. These vain and unwholesome attempts to distance
herself from people she has known for long compounded by her belief
that she could be allowed to ride off on such implausible statement
detract from her station as a Lecturer at a place of Higher Learning.
Mahlakeng further succeeded in highlighting the facile manner in
which PW8 would improvise and give what on the face of it could pass
for a plausible story on her part only to be shown later to be
instance learned counsel was able to elicit from this witness an
admission that she did not spend a week-end in Durban a factor which
she facilely sought to persuade the Court to accept that it occurred
because she had to go and hold some discussion with her sister during
that time which being a week-end was just about most propitious.
think the admonition by learned Counsel was most appropriate, namely
"when you forget things you shouldn't just
invent.................. when you didn't
you shouldn't have said you spent the week-end in Durban but just say
upshot of this then is that the true position is PW8 left for Durban
on Monday and returned on Thursday.
insisted that at no time during the month of June 1995 did accused 5
park and leave a van belonging to Archie on PW8's premises on account
of the fact that this vehicle had a broken window. After ducking and
twisting and indeed fencing with a simple question whether she
doesn't know because she can't remember or because this didn't happen
she ultimately said that she knew of no such occasion.
Mahlakeng referred her to an occasion during 1995 Easter when accused
5 left a motor car at PW8's place and she said she didn't remember.
further, when prudence dictated she should have been let be at that
point, by suggesting that this was when accused 5 left for school at
Thaba 'Nchu thus leaving the Hi-Lux for PW8's use she suddenly
remembered with clarity and answered, in my view truthfully, "I
am sorry. This carries many years. What could
happened to my van which was bought on 20-01-1995 which was still new
milage. How could have I been using somebody else's (vehicle)?"
my view demolished what good inroads Mr Mahlakeng was making into
Counsel deftly left that point in favour of the well-harped theme of
PW8 trying to shy away from being a relative of accused 5. But
unfortunately a serpent instead of haddock had been caught in the
learned Counsel's net. One other thing is that although PW8's
evidence remained unchallenged regarding the fact that the vehicle in
her garage was wearing Botswana Registration numbers when she and the
police saw it, in the absence of any corroborating evidence, regard
being had to that facile manner in which she fills gaps in her
evidence, it would be unsafe to accept that aspect of her evidence.
Thabang Mofolo was recalled for purposes of identifying his wife's
jacket. The Court at a later stage when it was handed in observed the
bullet holes which were on it but were not easily discernible because
of the colour and texture of this garment. For the moment it was
marked "ID I" for identification only. See page
the Court's notes.
Philip Masoabi presently an inmate in the Central Prison but
otherwise till then a lance seargent who in 1995 was attached to
Robbery and Car Theft squad of Lesotho Mounted Police/Lesotho Police
Services, testified that he was stationed in Maseru in 1995.
21-06-1995 while on duty he read a message from Mafeteng police
referring to two dead bodies of a man and a woman discovered along
the way leading from Mafeteng to Maseru at a place called Ha Lumisi.
appointed an investigating officer into this incident. He operated as
a team consisting of major Raleaka who was the team leader, W/O
Makhetha, Sgnt Mpopo, Trooper Pitso and some three or four others.
investigation led him to PW8's garage where he found parked therein a
Jetta saloon or sedan car of the description: Engine No. HV082705
Chassis No. AVZZZ 16ZJKU036941.
the details and elaborate background accorded previous witnesses'
evidence in this Judgment, PW9's evidence shows that accused 5 handed
to him a wheel, three keys of a Jetta car with an immobiliser, a
right front door with side mirror still attached to it and another
door with a hole in it plus a car radio. The Court had occasion to
see all these items.
PW9's further evidence that there were glass fragments on the mat
below the driver's seat. The car was devoid of the right front door.
He observed that there was a dead bullet on the mat next to the
driver's seat. There were blood stains on both front seats as well as
on the seat behind the front passenger's seat. There was another
bullet on the mat on the driver's side. Two other dead bullets were
found on the floor of the garage next to where the Jetta had been
witness said that PW1 handed to him green diary which 1 referred to
earlier i.e. the one that had the pages bearing names of some persons
ripped off by PW1.
to the home of accused 1 and upon conducting a search there this
witness says he and his companions found one pair of men's shoes
jacket and a black leather jacket with holes on the right hand side
recalls as earlier intimated that the black leather jacket was
identified by PW5 as belonging to his wife the deceased 'Mamolulela
Mofolo. It was handed in by PW9 and marked "Exh 3". See
page 144 of Court's notes.
indicated that at one occasion PW12 Mabokang Moeketsi identified the
green diary, the grey jacket and black shoes as having belonged to
her husband the deceased Sekoli Armstrong Moeketsi. Unfortunately the
grey jacket was mislaid before being produced before Court as an
testified that accused 1 and Moeketsi Mofihli took him along with the
Mafeteng police to a place near Ha Lumisi. At a certain spot along
the road at that place accused 1 explained that he had pointed a gun
at the two deceased who were still in the Jetta, ordered them to get
out of the car and shot them when he saw them hesitating. Accused 1
and Mofihli showed PW9 the furrow where they said they had dumped the
bodies of the two deceased.
further said that Mofihli and accused 1 said they had afterwards
stripped the two bodies of the leather jacket belonging to the female
deceased and a jacket and shoes belonging to the male deceased. The
fact that the items of property referred to were found in possession
of accused 1 is a matter that this court is unable to take lightly.
It in fact corroborates PW9 in very material respect that also
appears to incriminate accused 1. PW9 also said accused 1 identified
the Jetta in question as it remained parked at Police Headquarters as
one that he and Mofihli had taken and driven away after shooting the
two deceased who had been in it.
showed the photographs contained in Exh "E" collectively
being albums compiled by W/O Selebalo who had taken photographs of
the scene both at Maseru and at Mafeteng at Ha Lumisi. The photos
were handed in by PW10 Sub.Insp Hlaahla because W/O Selebalo had
PW9 told the Court that the photographs depict the likeness of what
he himself saw while attending the respective scenes at Ha Lumisi
Mafeteng and Maseru West. The Court was able to see gory scenes of
blood in the Jetta car, on the seats, door frame inside the car and
further told the Court that accused 4 told him that he had seen the
blood in the car and had said to him that DW2 and a soldier had come
to him and asked him to keep the Jetta car which he had learnt had
forcefully been taken from some people. PW9 said that accused 4 had
been asked to try and sell it for them.
is keenly aware that though the soldier referred to here can mean no
one but PW1 the latter none the less did not in giving his evidence
say direct that accused 4 was to find immediate means of selling the
car for him and the two visitors who came in the car at his place at
the occasion when he first clapped his eyes on it. For that reason
the Court would be very wary of hastily concluding that because PW9
said accused 4 is alleged to have known that the car was taken
forcefully from some people then he must be guilty as an accessory to
the crime of robbery where forceful taking is an essential element.
subjected to lengthy cross-examination. His replies indicated that he
had given the accused warning that is necessary against
self-incrimination. In the ruling made after the application for
discharge at the close of the Crown case I dealt with the more
serious aspects of challenges which are liable to be raised as
inadmissible evidence against the accused but which were
satisfactorily answered by
J.A. in David Petlane vs Rex 1971-75 LLR85. The learned Judge of
Appeal in that case had crisply dispelled any myths regarding
so-called inadmissible confessions before police officers by saying .
"Although the surrounding circumstances may be taken into
account in deciding whether a statement amounts to a confession, the
fact that the appellant knew when he made his statement that the
police were looking for him in connection with the killing of the
deceased could not have the effect of making his statement a
confession of the offence with which he was subsequently charged, as
the statement did not exclude the possible defences of self-defence
or accident. Further, the fact that it transpired at the trial that
if such defences had been raised they would not have been admissible
could not operate to turn the appellant's statement to the police
into an unequivocal confession of murder".
denied ever torturing any of the accused. He stated that at no stage
did he witness any use of third degree methods being applied on any
of the accused. However the Court is not unmindful of PW1's statement
that he had been tortured while in police custody; though he didn't
say how. He indeed said the torture did not dissuade him from telling
the truth as he knew it.
Sub/Insp Hlaahla as stated earlier handed in the photo albums with
the photographs collectively marked Exh "E".
Bulara Khomohaka is a forensic biologist whose testimony showed that
he examined the Jetta car and swabbed up several brownish stains on
various parts of this car both inside and outside. He took nine
samples which turned out to be of human origin of blood group 'O'.
from the tests which he conducted on specimens collected from the car
and items of clothing which were blood-stained he concluded that the
deceased 'Mamolulela Mofolo could be the source of blood V8 while
Sekoli Armstrong Moeketsi could be the source of blood V9. It is once
more unsatisfactory that given the fact that when this witness
conducted his tests the bodies of the deceased were available and
could even be exhumed if need be he should content himself with what
appears to be possible sources of the blood type instead of striving
for positive identification which could only be obtained by
extracting blood from the respective deceased.
'Mabokang Moeketsi testified that on the morning of the fateful day
she had seen her husband putting on the black Watson shoes Exhibit
"4" which she indicated were worn-out. Apparently she and
her deceased husband cared very much about how the husband appeared
in public. I say this because the shoes as far as I
were practically new except for appearing to be slightly scuffed on
the outside edges of the heels. The Court had also learnt from PW9
that the grey jacket looked very nice with leather patches on the
indicated that before testifying in this Court she had identified the
above items of property as her husband's including the green diary
when the police had brought them to her.
that the Jetta car leaves no doubt that it is the one in which the
deceased had been travelling in and of which they were deprived, only
to be found later at PW8's garage, it is sufficient at this stage to
indicate that the Court accepts as a whole PW13 Mary Masupha's
evidence as to the identity of this car.
Asst/Compol John Telukhunoana is an experienced firearms examiner
responsible for examination of firearms and items suspected of having
been used in commission of crime. He dealt with this type of
examination since 1985 doing an average of 100 firearms examinations
examined the items consisting of a cartridge case and a dead bullet
in 2 dead bullets, a bullet jacket, one core of a bullet and two
cartridge cases making a total of 6 items collectively marked Exhibit
"10". These were handed in but ordered to be retained by
the witness for his further use.
the Court he was not able to say how far the shooting was effected
from because of what to me appeared to be thoughtless and unnecessary
bickering in the police force where, as PW14 stated regretfully, it
is not deemed necessary that expert witnesses should, even when
circumstances allow attend the scene. He appealed to the Court to
exercise what power it has to disabuse his colleagues of this
unsavoury attitude. He was of the opinion that the bullets and shells
were of 9 mm calibre firearm.
Thabang Lentjeka testified that accused 4 and 5 took him to a
residence in Maseru West in a white Corolla Station Wagon. They
arrived at a garage which was opened by accused 5. In the garage was
the charcoal Jetta car.
told PW15 to take out and fix the doors on the right hand side of
had noticed that the right front door had a damaged lock. There was a
about five centimetres in length on this lock. The window was broken
and there were glass fragments inside the car. The rear door had a
hole in it that appeared to have been made by a sharp piercing
indicated that he detected a pungent smell in the vehicle. He said
this smelled like old blood. He was taken to task by Mr Mahlakeng on
how old blood smelled and he said it smelled like a body which had
been in the sun for three or four days.
that despite this smell accused 5 would not allow him to open the
garage door for fresh air while he worked. Indeed he painted a
picture of accused 5 manifesting feverish urgency and pressurising
him to get the job done and completed in no time.
he managed to take out the two doors on the right hand side of the
car. Meanwhile accused 4 is said to have been sitting with his back
towards the wall on which the garage door is hung reading a newspaper
by aid of some natural light coming in through the chink allowed by
the slightly opened garage door which
otherwise appeared to be virtually closed. The Court tested the
degree of opening the witness said the door had remained open and was
satisfied that even though the garage door appeared closed the light
it allowed in was enough to enable the reading of a newspaper print.
accused 4 took out a number plate from the front of the Jetta car. He
indicated to the Court where he brazed the tear on the door lock
which he had repaired.
witness was also taken to task in cross-examination but the tenure of
his testimony had a ring of truth in it from which he was not shaken.
Indeed there were discrepancies in his evidence including that he was
able to work in the garage by aid of light coming from the window.
out that this garage had no windows. For this disparity he was taken
to task and held up as someone who had come to mislead the Court.
However if it turned out that the garage had windows but PW15 created
the impression that it had none and by virtue of the absence of the
windows the culprits had secured themselves an ideal hideout in which
to work without detection of the crime they were continuing
commit in there, I have no doubt in such circumstances PW15 would
deserve the condemnation that he had come to court to mislead it to
the detriment of the accused. But in the opposite circumstances
obtaining now the same cannot be said. It would be reckless to paint
him in the same brush regardless of the alteration of circumstances.
I am thus prepared to accept his explanation that he made this
mistake because the occurrence when he found himself in that garage
took place long time ago and furthermore he hardly had an opportunity
to take in his surroundings in the environment where he was being
pushed to the limit of his ability to finish the job at hand within
the minimum length of time.
Ngoajane Mohapi's evidence was to the effect that the duplicate
original registration certificate of the Jetta car reflected its
Chassis number as Chassis No. AAZZZ 16ZKUO36941 and the Engine number
as Engine No. HV 082705 while its make is a 1990 vehicle.
Senior Inspector Thibeli was called to identify his signature on Exh
"D" constituting Submission of Articles for Examination
Form. He duly identified the signature on Exh "D" as his
and said he had signed his name at the time to acknowledge receipt by
him of items therein mentioned. He identified Ex 10
as the items he had received.
closed its case and DW1 Moeketsi Tsehlana gave his evidence.
from the outset at this stage indicate that the Court warned that if
accused 1 was going to give evidence after his witness or witnesses
then his evidence would run the risk of not having sufficient weight
attached to it in view of the natural tendency discouraged by Courts
that a party to litigation in such circumstances would tailor his or
her evidence according to the evidence that he or she listened to and
heard when being adduced while he or she is sitting in Court. Indeed
it is deemed a salutary practice that even where there are two or
more parties jointly charged or jointly laying charges then if they
are to give evidence they should do so before any of the
co-defendants' or co-accused's or co-plaintiffs' witnesses can give
their evidence for the same reason that it is highly undesirable that
any of the co-accused should tailor their evidence according to the
witnesses of their preceding joint parties.
DW1 gave evidence the first day but had to stop because he appeared
not fit due to insobriety. The Court had felt that he might just
unwittingly prejudice the serious case facing accused 1. He was in
brief a perfect spectacle who should have been committed for
day when he truly testified to having taken proper food he told the
Court that he knew accused 1 and his father (accused 6 in the charge
testified that on 21-06-1995 he was at Ha Mantsebo where he lives. He
said he was with Thabo Lefalatsa and Hareteke Mapeshoane drinking at
Ha Mantsebo Bus stop.
testified that as the drinking was going on accused 1 arrived with a
friend. The friend bought DW1 beer. He says the time was between 9 am
and 10 am when this occurred.
drinking till sunset. Towards sunset DW1 accompanied accused 1 to the
Bus stop near by. Accused 1 wanted to go to Maseru. A vehicle
approached from Mafeteng direction. Accused 1 raised his hand to stop
it. The car stopped and accused 1 went on board leaving DW1 and
accused 1's friend there. The colour of this car is said to have been
greyish yellowish. However DW1 pointed to his jacket as approximating
the colour of that car he spoke about.
cross-examination DW1 said that he often went to drink at that beer
Ha Mantsebo in 1995. He however said it was not normal to sit
drinking there the whole day except that when beer is available there
would be no point leaving it behind.
pointed out that it was the first time he saw accused 1 at Ha
Mantsebo. DW1 reiterated that when the car from Mafeteng approached
it was at sun set and not dark. It was possible to see a person
clearly 22 paces away. He could not only discern a figure but
identify a person as so and so in that light and at that distance. He
said the vehicle that approached did not have its lights on for it
was not yet dark. He said in that light he was able to see that the
colour of the vehicle was greyish, yellowish.
further said he didn't see accused 1 after that day. Asked which day,
he was clearly in a cleft stick and he settled for 21st August 1995.
he had earlier accepted 21-06-1995 as the day in question he said he
was only estimating. Asked further why he didn't tell counsel he was
not clear of the day he said that didn't occur to him.
Moeletsi Challa gave evidence on oath. The essence of his testimony
is that accused 4 and PW6 and another arrived at his home and they
all proceeded to PW1's home. He learnt from PW1 that two boys had
left a Jetta car with him and that PW1 wanted some help whereby this
car could be kept somewhere. He said it was explained that the car
came from Mafeteng or perhaps Mohale's Hoek. There was no clear
explanation given about the car. Nonetheless accused 4 who DW2 says
is innocent was asked to fix the car, particularly the broken window.
Rethabile Mathetse said that PW1 told him that on 23 June 1995 a
white man had been arrested. He said PW1 said he and his friend had
stolen a VW vehicle in Mohale's Hoek after its owner had dropped his
cross-examination he said that when PW1 returned from detention the
latter explained to him that the vehicle had been brought to him by
two boys. He said unlike in the previous occasion this time when PW1
said this he was not confused but seemed relaxed. DW3 admits that if
the white man had not been arrested on 23rd June 1995 neither he nor
PW1 would have heard of his arrest being announced over the radio
Refiloe Mokalanyane who is accused 1 gave evidence on oath and said
he is illiterate. He said his mother told him in 1999 that he was
then 25 years old. He told the Court that he met DW1 one day in 1995
and drank with him until just after sunset. They were drinking at Ha
evidence of DW1 and accused 1 on just this point deserves comment.
indicated that the car that came to his house on 21-06-95 arrived
there between 8 pm and 9 pm. Given that Ha Lumisi is just about 6 km
shy of Mafeteng which is about 80 km from Maseru, it would mean that
this car left Mafeteng between 7 pm and 8 pm assuming it was
travelling at 80 km per hour which is normal high speed on that road.
But if on the other hand this car reached Ha Mantsebo - 10 km from
Maseru -just after sunset and given that on that day according to my
Hortor's Diary the sun set at about 17 - 25 pm it would mean that
this car that accused 1 claims he went on board at about sun set at
Ha Mantsebo had left Mafeteng and Ha Lumisi long before sunset. This
in turn would mean that the two deceased that it conveyed were shot
in broad day light at the spot where the empty shell was found lying
some 100 paces away from where the bodies were dumped. The empty
shell provides an objective fact from which this inference can be
aspect of the matter alone and given that Ha Lumisi village is not
far from where the incident of shooting and conveying two bodies a
distance of 100 metres from the road and thereby travelling a
distance of no less than 400 metres in total to dispose of the bodies
it would be underrating the intelligence even of criminals to think
that they could risk arrest by brazenly doing two things which would
immediately draw attention to them and their sordid act. i.e. cause
repeated explosive sound of gun fire near a village in broad day
light and go to and fro not less than twice huffing and puffing to
dispose of two dead bodies 100 metres away each time next to a high
way carrying busy traffic at such time of day. I boggle to be made to
think that darkness is no longer a trusted ally to mischievous
breakers of the law bent on avoiding detection of their wicked acts.
I have no
hesitation therefore in rejecting as not only false but false beyond
reasonable doubt any evidence that hinges on the allegation that the
Jetta car came to collect accused 1 from Ha Mantsebo where he and Dw1
had been drinking.
indeed fundamental in our law that an accused person wishing to have
his story accepted by the court has to demonstrate that it is
reasonably possibly true. If his story is not reasonably possibly
true then it is false beyond doubt and the Court
obliged to accept it. See R vs Difford 1937 AD 370 at 373 saying if
satisfied not only that the explanation by the accused is improbable
but beyond any reasonable doubt false the court is entitled to
said that having got into this vehicle which was driven by Mofihli he
felt cold and Mofihli lent him a jacket which was greyish brown in
colour with leather patches on the elbows. He observed that Mofihli
was wearing a black leather jacket similar to one that PW5 said
belonged to his wife. He denies that the jacket that belonged to the
deceased Mamofolo was retrieved during the search from his
possession. Asked why PW9 could falsely say he obtained from him that
jacket and the black shoes belonging to the deceased Armstrong he
proffered the explanation that PW9 was capable of doing so because he
had tortured him while in detention.
significantly this explanation appears to have been mulled for
sometime because when cross-examination was going on briskly it
seemed to have eluded accused 1.
371 learned Counsel for the Crown referring to PW1's version said to
says he did talk to you and says you told him that you asked for a
lift from occupants of the vehicle and that you had taken this
vehicle from its occupants and that after shooting them you dumped
these people somewhere and proceeded with the vehicle to Maseru. What
do you say to that............? He is committing me(falsely) I never
discussed such a thing with him in prison.
Masoabi also says you related a similar story to him. He says you
told him you had asked for a lift from people who were riding in a
vehicle. That on the way to Maseru you asked that the vehicle be
stopped. That you shot the occupants of the vehicle, dumped their
bodies and proceeded to Maseru. What do you say to that............?
He committed me for he didn't want to accept the report I gave him. I
don't know that one.
two people PW1 and PW9 with whom you had had no previous quarrel.
They tell the Court the same story about what you told
Didn't you find this that they say strange..............? No. I
didn't find it strange.
it is normal and true.................? No it is not true.
know what is meant by something being strange. Here are two people
telling the same thing about you learnt from two different
places.............? With PW9 I am not surprised for he had hit me
and assaulted me.
He is the one who I am surprised with".
go no further in expressing my satisfaction with PW1's story which
surprises accused 1 for supported as it is by PW9's version it
illustrates beyond doubt that any protestations to or denials of its
veracity cannot be true. I reject therefore those denials and
protestations in favour of the credible story narrated by PW1 who
enjoys the support of PW9 in this very crucial respect-It is accused
1's further testimony that the vehicle that Mofihli was driving on
the day in question looked like the one that the Court went to
inspect at the inspection in loco i.e. the Jetta car Mofihli and he
went to PW1's home in. When they arrived accused 1 stood some
distance away from PW1 and Moeketsi Mofihli and thus could not hear
what the two were saying. He eventually left without any further ado
seeing that the two had gone into the house and he didn't know how
long they were going to go on further.
cross-examination he indicated that he didn't bother to thank Mofihli
for the lift or tell him that he was leaving. He told the Court that
only Moeketsi Mofihli gave explanations at the scene in Mafeteng.
already indicated that PW9's story and I should add taken along with
Chonelanka which indicated that the two men who arrived with police
indicating what happened at various places along the way from
Mafeteng to Ha Lumisi, though Chonelanka couldn't say if any of the
two men is in Court, yet by simple deduction and given that other
evidence including that of accused 1 himself indicates that on a
particular day when police from Maseru joined with those from
Mafeteng as photographs amply illustrate, went together to the scene
at Ha Lumisi and the two men gave explanations at the scene, such men
can be none other than accused 1 and Mofihli. Thus although
Chonelanka is unable to identify the two men his evidence against
them is indeed damning beyond redemption for it cannot even be said
why Chonelanka should lie about people he cannot even identify. Thus
on this aspect of the matter where accused 1 wants the Court to
believe that he kept mum and said nothing in the face of credible
evidence to the contrary deserves rejection as false beyond doubt.
It is his
further story that he didn't hear the explanations that Mofihli gave
to the police. But in this regard accused 1 is treading what by now
appears to be his familiar path and singing his pat theme. It should
be recalled that at PW1's he said he did not participate in the
discussion that he said was going on between PW1 and Mofihli yet
credible evidence pointed to the contrary as I earlier indicated.
Furthermore he said he never talked with PW1 while in prison about
how he and
had come by the vehicle they came driving in to PW1's home. One more
strange thing that he expects the Court to believe is that when he
left Mofihli, as he claims he did, at PW1's place he never bothered
to bid him farewell or alert him to the fact that the car that
remained outside PW1's place had remained without him keeping an eye
on it in case something happened to it while the duo inside basked in
the false hope that the man outside would raise an alarm should any
such mishap threaten to happen.
he didn't bother to ask Mofihli what happened when he obtained this
car at Mafeteng. It is strange that he should expect that the blood
seen on photographs taken days after the incident could have escaped
him entering the car while such blood was still fresh and while it
was still bright not necessitating the lighting of motor vehicles
travelling on the high-ways.
strains credulity to expect that the court should even remotely
regard it as reasonably possibly true that Mofihli could give a lift
to anyone so soon after he had killed two people in that
blood-splattered vehicle with bullet holes including spent bullets
and shattered window all of which factors would have been enough to
the curiosity of an innocent hitch-hiker as to what the matter could
car was in this condition. Innocent curiosity moved PW6 to indicate
that the cold draught coming in through the window of this car made
him feel that he missed his white Honda greatly. PW1's impression had
been that this car was new and he wondered why its window wouldn't
close. Yet well accused 1 is different.
Miss Maqutu's submission that accused 1 after being given a lift by
Mofihli, would not have simply left without saying good-bye or
thanking the man who had done him all the favour that one could
expect from a friend. For instance he kept the warm jacket for days
on end without any thought about the need or use that "the
owner" Mofihli would wish to put it to. On leaving the least he
could have done according as common sense dictates would be to alert
Mofihli that he was then leaving.
Miss Maqutu 's further submission that there is no evidence to
suggest that PW1 would lie about what happened and what he was
subsequently told by accused 1 and Mofihli whilst in jail. It is also
significant that PW9 found the items of clothing belonging to the two
deceased in accused 1 's possession before the latter's arrest.
paid particular attention regarding accused 1 's evidence that it
came after his own witnesses had given evidence and that it would
therefore not be surprising if his evidence is streamed-lined to fit
in with that of his witnesses. I have formed an opinion that the
evidence revolving around the two murders insofar as it relates to
accused 1 is purely circumstantial. The commission of those crimes
including indeed robbery involved no eye-witnesses. To that extent I
don't think the authority of Tseliso Lempe vs Rex C. of A. (CRI) No.7
of 1996 (unreported) which relates to the defence of alibi is of much
use. I would rather rely on CRI/T/10/91 Rex vs Veddie Sello Nkosi
which like the instant matter was based on circumstantial evidence
where like in the instant matter property belonging to or under the
control of the deceased was traced to the accused thereby connecting
him inseparably from accountability for the crime committed. I have
no doubt that robbery was the motive for the murders committed.
regard to accused 5 Mokherane Tsatsanyane the evidence tendered by
this accused is that accused 4 came to him and asked him to fix a car
for him but not at the workshop belonging to accused 5's father
because accused 4 owed him moneys he was unable to pay and thus
feared that accused 5's father might impound this car on learning
that it belonged to his debtor.
5 pointed out that on the following day in the evening they went to
Lithoteng where the car was to be parked. The car was fetched from
there in another evening and eventually parked in PW8's garage.
Accused 5 says he saw no blood on this vehicle. He only saw blood
when the police pushed the car outside the garage. Indeed even PW15
who had been working on the vehicle didn't see the blood until this
was pointed out to him by a fellow-worker.
indicated that even if he saw blood he would not think of anything
untoward because the work of a panel beater entails working with
blood-sodden vehicles. This appears to me to be fairly reasonable.
further indicated that he detected no fetid odour issuing from this
further stated that he had been on a wrong trail looking for a 4 x 4
vehicle he thought 'Mamolulela Mofolo was riding in when she met her
ill-fate. He testified that 'Mamolulela is his relative against whom
he could not mean any harm.
matter of fact he was present during funeral arrangements for
eventually attended the funeral. He laboured under the false belief
that what was being looked for was a 4 x 4 and not the Jetta that was
in his possession. He didn't bother to inquire from the Ministry of
Education what progress was being made towards finding the 4x4. He
never asked his father about the circumstances leading to
'Mamolulela's death. He never heard people at the funeral or in
casual conversations during arrangements leading to the funeral or
afterwards remarking about the fact that this time 'Mamolulela had
travelled in a different vehicle. Although in looking for
'Mamolulela's vehicle he maintains he was assisting with police
investigations it didn't occur to him to alert them in that regard
nor did he feel the need to exchange notes with them.
he didn't work on this vehicle at Lithoteng because there was no
electricity. But he acknowleged that at the place where he was
working on it electrical work was not required nor indeed needed
doing on the vehicle.
that electricity could not have been the reason the car was removed
from Lithoteng where it had been kept, he quickly indicated that
accused 4 had rented the premises where he lived at Lithoteng
therefore the car could not have easily stayed there. It is to be
wondered whether he was certain PW8 was not paying rent at the
High Commissioner's flats. It should also be borne in mind that he
that the Jetta had been removed from Lithoteng because of lack of
electricity at that place. Strangely it was taken to PW8's garage
where there was no electricity also.
further indicated that accused 4 was having some business to do at
Quthing and it was feared it might be inconvenient to come to his
rented premises in his absence. But indeed accused4 on credible
evidence has been observed sitting behind the Jetta car in the
semi-closed garage at Maseru West scores of kilometres away from
Quthing. PW15 testified to this that he was even reading a newspaper
when so observed. This seems to give a lie to the urgency pressing on
his time at Quthing for the reading of a newspaper on any account is
a leisurely form of pass-time. So nothing in truth seems to me to
have been pressing accused 4 at Quthing such that the car could not
be repaired where he stayed at Lithoteng.
significant thing which cuts a wide swath on accused 5's innocence
regarding his connection with this car is that at no time has it been
shown that this car, since arriving in Maseru at night, ever moved
from place to place in daylight. It has been moving under cover of
darkness from point to point. Furthermore accused 5 had
for permission to keep this car in PW8's garage.
It is not
denied that PW8 asked accused 5 to remove this car from her garage.
Even though it turned out that the date PW8 said she made this demand
could be wrong the fact remains accused 5 never obliged till police
came and moved it out of that garage. This suggests that accused 5
felt that this was the best place this car could be kept in from
prying eyes which might raise eye-brows concerning its similarity to
the car being sought after. No reason - palpable reason is given why
the car was not worked on in the open but still relatively secure and
fenced in space opposite PW8's gate now that she was in dire need of
using her garage.
the inability on accused 5's part to readily comply with the demand
to remove this car from PW8's garage?? The Court is not unmindful of
the observations it made about the locality of PW8's home. It is in
an obscure area, accessed by a round about road which leads into a
cluster of houses butting on a narrow path giving an impression to a
casual stranger chancing along that path that he is encroaching. As
if that is not enough at the far end to this avenue-like setting is a
gate that leads to even more secluded area consisting of some five or
six flats hemmed in by trees on the other side of the path. Entry
through this gate imposes an even greater awe to a
that he is encroaching on private property. Along side the road-way
flats are gates leading to each of the individual flats. Going past
that gate one gets into a high-walled unroofed car-port further
opposite whose entrance is a garage without windows. The only light
getting in there being when the garage door is tipped. This is indeed
a secretive mind's haven.
is an ideal destination for the type of car which travels under cover
told the Court that when accused 4 arrived asking that he should fix
this car for him his father was not there and would be away for a
whole week. He and accused 4 agreed that the vehicle should be
finished in two days. Once more given that accused 5 knew that his
father would be away for a whole week the work that needed to be
completed in two days could have easily been effected at accused 5's
father's workshop with upwards of three days to spare. Indeed accused
5 agrees that he could have fixed this car there instead of parking
it at PW8's place.
further said they took this car to PW8's garage at night and only
told PW7 that he was parking it there.
above factors I find that the submission is well-founded that the
only reason this car was not taken to Lower Thamae workshop was that
accused 5 and 4 were intent on hiding it. The axiom constituting an
element of dishonesty prevalent in their dealing with this car is
unanswerable that they removed it from Lithoteng under cover of
darkness and hid it at PW8's garage without her knowledge. Accused 5
indeed made much of the fact that he was a relative of the deceased
'Mamolulela and could mean her no harm. But I take it that in hiding
the car she had been travelling in he was not doing his relative any
harm but disobliging the Government which is the owner.
I am not
unmindful of the explanation given why the vehicle ended up going to
Lithoteng in darkness. Indeed it was stated that accused 5 had to go
to Ladybrand to fetch a gear box and this took a long time. One
nonetheless wonders why every other vehicle driven by or at accused
5's behest travels at any other time while the Jetta car is confined
to movement at night always.
maintains that PW15 is changing his story when he says the garage
door was closed while they were working on the car. He buttresses
this contention by intimating fairly late in the day when PW15 can no
longer be cross-examined that
before the trial PW15 was approached by certain persons and told to
lie. This contention is in sharp contrast with the rule laid down in
Small vs Smith 1954(3) SA 434 that:
"..................It is grossly unfair and improper to let a
witness's evidence go unchallenged in cross-examination and
afterwards argue that he must be disbelieved"
Phaloane vs Rex 1981(2) LLR at 246 where Maisels P endorsed the
principle enshrined in the above authority.
from the fact that PW15 was steadfast in his contention that the
garage door was closed, he even placed this in his statement made to
the police dated 7th July 1995 - long before the trial and hardly two
weeks after the incident. The Court puts a premium on the fact that
there is no ill-blood between PW15 and accused 5. Why then would PW15
lie about him. With regard to accused 4 it would suffice to indicate
that in the face of whelming evidence against him he preferred to
remain silent. But it is not the position in law that silence is
equal to guilt. The Crown has to bear the onus to prove the case
against every accused beyond a reasonable doubt. In going about this
it is important to bear in mind the import of the discussion by
learned authors Hoffmann and Zeffertt in The South African Law of
Evidence at 598 that :
"If a witness has given evidence directly implicating the
accused, he can seldom afford to leave such testimony unanswered.
Although evidence does not have to be accepted merely because it is
uncontradicted, the court is unlikely to reject evidence which the
accused himself has chosen not to deny. In such cases the accused's
failure to testify is almost bound to strengthen the case for the
and PW1 gave evidence implicating accused 4 but he chose not to give
an explanation regarding his role in the offences charged.
starting point I think in order to determine what offences accused 4
and 5 have committed it should the proper yard-stick to use to find
out what PW1 the accomplice could be said to be guilt of.
evidence indicated that when he got involved in the crimes charged
PW1 had been duped into believing that what he was readily getting
himself embroiled in was theft simpliciter. It had not been disclosed
to him that the car had been forcefully taken from its lawful
custodian. In fact he was deceived into believing that keys belonging
to this car had dropped imperceptibly from a driver who was worse for
not disclosed to him that the occupants of the car had given a lift
to two rogues who shot and killed those occupants. In short it was
not suggested to PW1 that violence was an element in the taking away
of this car.
highest water-mark of accused 4's knowledge i.e. guilty knowledge or
mens rea was what was supplied to him by Pw1 who is an essential
Bench-mark if the situation being dealt with here is to be seen in
proper perspective. The acknowledgement of this fact takes the
instant case outside the purlieus of R vs Jongani 1937 AD 400 where
the facts were :
was the leader of a criminal gang. He could have been charged with
theft or receiving stolen property knowing it to be stolen. The gang
killed the deceased in Jongani's absence and without his knowledge.
After the murder the gang told him what they had done. He took
possession of the deceased's personal belongings. He was convicted by
the Appeal Court as an accessory after the fact in respect of the
C/F R vs
Nkau Majara 1954 HCTLR pg 38.
instant case guilty knowledge seems to be confined to a lesser crime
of theft only.
such circumstances it would seem PW1 would be guilty only of Theft.
But the charges here are of two murders and robbery; and not theft.
of the law one can only be convicted as an accessory to crimes
charged. But in the instant case Theft has not been preferred as a
charge therefore it would seem in such circumstances and following
this logic PW1 would have to be acquitted. But can he really. I think
consideration of sections 140(1), 182(2), 197, 198, 185 and 345 of
our Criminal Procedure and Evidence Act No. 7 of 1981 seem to fortify
me in the view that I entertain.
140 provides that –
number of persons charged with -
or with procuring the commission of the same offence, although at
different times, or with having after the commission of the offence
harboured or assisted the offence; or
may be charged with substantive offences in the same charge and may
be tried together, notwithstanding that the principal offender or
the person who obtained the property is not included in the same
charge or is not amenable to justice".
182(2) provides that –
person charged with an offence may be found guilty as an
after the fact in respect of that offence if such be the facts
proved, and shall, in the absence of any penalty expressly provided
by law, be liable to punishment to which the principal offender would
under any Law be subject".
197 provides that –
"If in any other case not mentioned in this Act the commission
of the offence with which the accused is charged as defined in the
law creating or as set forth in the charge, includes the commission
of any other offence, the accused person may be convicted of any
offence so included which is proved, although the whole offence
charged is not proved".
can pause here a moment it would seem plain that if by the whole
offence charged one could take robbery for an example and that
robbery is not proved then it would further seem that the
interpretation does no violence to this section if theft is
nonetheless proved, for in the scheme of things it is in fact
included because in its commission an element of dishonesty is
included just as well as it is defined as an essential element in the
commission and charge of robbery.
198 rams the point home by neatly providing even in more clear terms
than the preceding section, that –
"If the evidence on a charge for any offence does not prove the
commission of the offence so charged but proves the commission of an
offence which by reason of the essential elements of that offence is
included in the offence so charged, the accused may be guilty of the
offence so proved".
the accused is charged with robbery, and it is shown that only the
element of dishonesty is proved while that of violence is not then it
theft would be a proper verdict according to the spirit if not letter
of this section
the above cited ones.
185( 1) is also worthy of consideration insofar as subsection(d)
thereof relates to the exercise I am presently engaged in.
(1) provides that –
upon the trial of any person on a charge for robbery it appears upon
the evidence that the accused did not commit the offence of robbery
but that he did commit
assault with intent to rob; or
assault with intent to do grievous bodily harm, or public violence
common assault; or theft forming part of the offence of robbery
offence under section 343,
accused may be found guilty of an assault with intent to rob, or of
an assault with intent to do grievous bodily harm, or of a common
assault, or of theft or of an offence under section 343 as the case
may be". Emphasis supplied by me.
the invisible offence is created here that if Robbery is not proved
but theft is proved then it is fitting that a verdict for theft be
section 343 which talks of failure to give satisfactory explanation
for possession. Such could have either been given to the police or to
this Court. In my view accused 4 and 5 failed to meet the minimum
requirement needed of them by this section.
my opinion is the offence PW1 would stand to be convicted of in terms
of the sections set out above read with each other; and of nothing
light of the fact that PW1 was the linchpin working vigorously to
attract the desire to have on the part of accused 4 who in turn lured
accused 5's greed, yet the maximum crime he is shown to have
committed is theft under the sections considered, nohow can in my
view accused 4 and 5 go any higher.
be recalled that credible evidence revealed that in his eagerness to
reap where he had not sown PW1 brazenly said to DW2 "the two
boys you see near
have stolen it we want to make it ours. Can you think of anybody who
It can be
rightly presumed that the conversation that was engaged in by DW2 and
accused 4 though conducted in a language that PW1 knows little of, if
DW2 was faithful to what PW1 said to him then accused 4 would have
been told nothing concerning the violence that accompanied the taking
of the car resulting in two deaths. In fact PW1 got to learn of the
true position long after he learnt that accused 4 had been laid by
the heels and even if he could have learnt of it before accused 4 was
arrested it appeared that PW1 had lost the opportunity to meet with
him. Regarding accused 5 PW1 knew nothing of his involvement in the
desire to unlawfully possess this car. What knowledge accused 5 had
of the dishonour tainting this car could not have been more than
accused 5 had or in turn more than PW1 had.
and accused 5 are acquitted of murder in Count I, murder in Count II
and Robbery in Count III.
convicted of theft both of them in terms of the provisions of above
quoted sections read together.
freed from liability in respect of all charges preferred in this
is found guilty of murder in Count I, murder in Count II and Robbery
in Count III.
: Miss Maqutu
Accused 1 : Mr Mosito
Accused 4 : Mr Lesuthu
Accused 5 : Mr Mahlakeng
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