COURT OF LESOTHO
POSHOLI PHEELLO MOSILI
REENTSENG JACKSON PHALALI
by the Honourable Mr Justice WCM Maqutu on the 23rd day of August,
had initial problems of some of the Accused not attending trial. On
the 17th October 2000 the case could not proceed because Accused 3,
Accused 5 and Accused 7 were not there.
the case was able to proceed after Accused 7 had surrendered herself
and given a reasonable explanation on the 29 th November 2000 and
Accused 3 had been arrested and remained in custody on the 7th
December 2000. Accused 5 who is a national of the Peoples Republic of
China had absconded and
therefore never arrested. The case proceeded after the Crown Counsel
had applied for separation of trials. That application was granted,
but the numbers of the Accused were not charged. The result of this
was that on the 1? February 2001 Accused 1, 2,3,4,6 and 7 were
arraigned for trial.
accused were read the following indictment:-
Director of Public Prosecution who as such prosecutes for and on
behalf of The King, presents and Informs the court,
CALLED THE ACCUSED ARE GUILTY OF THE CRIME OF MURDER
upon or about the 17th June 1997 and at or near Khomo-e-Ts'oana Ha
Makhoathi in the District of Maseru, the said accused did one or the
other or all of them unlawfully and intentionally kill PIETER
CALLED THE ACCUSED ARE CHARGED WITH THE CRIME OF ROBBERY
upon or about the 17th June, 1997 and at or near Ha Pena-Pena in the
district of Maseru, the said accused did one or the other all of them
unlawfully assault PIETER JOHANNES GROWNEWALD and by intentionally
using force and violence to induce submission by PIETER JOHANNES
GROWNEWALD did take and steal from his person or his presence out of
his immediate care and protection property to wit.
white Nissan van 2.4 registration numbers BFH 193 FS engine number
A24002030y chassis number S.081421 1997 model.
wrist citizen watch quarts.
torch with red marks
blue lumber jacket
vehicle radio set S/N QK 089019 Pioneer
of black leather hand cloves
brown leather boots
jean trousers wrangler
with brown and white jersey assorted colours, his property or in his
lawful possession, did rob him of the same.
CALLED THE ACCUSED ARE GUILTY OF THE CRIME OF KIDNAPPING
upon or about the 17th day of June 1997 and at or near Ha Tonki in
the district of Maseru, the said accused did unlawfully and
intentionally deprive PIETER JOHANNES GROENEWALD a male adult, of his
liberty by detaining the said PIETER JOHANNES GROENEWALD in a donga
for four hours.
six accused pleaded not guilty to all the charges.
first witness Pw1 was Mokhethi Rebamare Ntsoereng:
sworn Pwl said he had met Accused 4 (Chief Ts'iu Mopeli) in 1997 when
they were introduced to each other by Rets'elisitsoe Hlasa. On that
occassion Accused 4 had brought a Xhosa speaking man who was looking
for diamonds. Pwl had diamonds, but they could not agree on the
price. Among the people present was a woman from Kolonyama. When they
parted Accused 4 had given him his telephone and had asked Pwl to
find him buyers for vans. Pwl had found a buyer for a van and phoned
Accused 4, but Accused 4 did not bring a van
June 1997 Accused 4 phoned Pwl and told him he was bringing a van.
Although Pwl no more took Accused 4 seriously, he warned Thabo Mphana
some one was coming with a van, Thabo Mphana should get a Chinese
buyer whom he knew to be ready. Pw1 then went away to attend his
other business affairs. He had left a message with Silas Chakela at
Caltex Garage to direct Accused 4 to the residence of Pw1, if Accused
4 should come. When Pw1 came back he saw that there were people and a
white 4x4 vehicle at his residence. When he got to his residence he
found Accused 4 with 3 young men whom Accused 4 introduced as his
they were waiting for Thabo Mphana who had not been at home when they
went to look for him, Accused 1 and Accused 3 washed that vehicle on
Accused 4's instructions. At that time Pw1 and Accused 4 went to look
for food and when they came back Accused 3 and Accused 1 had not
finished washing the vehicle. As it was getting late, they went to
the Chinese gentleman who was supposed to buy the van. He would not
talk to them in the absence of Thabo Mphana. It was after some
waiting and only after 7pm that Thabo Mphana became available and
they returned to the Chinese gentleman. Negotiations
Accused 4 was talking as the owner. He asked for M18000.00 as the
price for selling the vehicle to the Chinese gentleman, Thabo Mphana
was acting as interpreter.
Chinese gentleman was joined by another Chinese gentleman. These
Chinese gentleman said they were prepared to pay M12000.00 of which
M2000.00 would be paid immediately. The balance of M10 000.00 would
be paid in a day or two. An agreement was reached on this basis and
the four Accused promised to bring the papers for the vehicle. They
left the vehicle there and Thabo Mphana took them to the Bus Stop in
a vehicle belonging to the Chinese gentleman. As negotiations had
been taking place in Teboho Kou's premises, Accused 4 gave Thabo Kou
M50.00. Accused 4 had also demanded an extra M300.00 for the tyres.
Pw1 was rewarded with M500.00 for his part in what had transpired up
to that time. He was later phoned by one of the 4 Accused who said he
should have been given only M50.00.
days later the four accused came in a red Cressida car which was
driven by Accused 4. They eventually got to the Chinese gentleman
with Thabo Mphana. The Chinese gentleman asked for papers that
covered the vehicle. They went and talked away from them. Pw1 does
not know what was said and whether the
gentleman was given papers for the motor vehicle. He however
witnessed the handing over of M10 000.00 to the Chinese gentleman.
This was done under a street lamp outside Teboho Kou's residence.
Thabo Mphana was given M500.00 by accused 4 and he was also asked to
find other buyers Pw 1 was given another M500.00.
that on the first occassion Accused 1 had been called by a neighbour
who had called him Chup, Push or Major - he is not sure of the exact
name that was used. They appeared to know each other. That neighbour
said they had met at Katse.
four days later Pw1 was arrested by the police at Hlotse Leribe. He
was later transferred to Maseru. It was from the police that he
learned that the vehicle had been stolen. In Maseru he made a
statement. Although he only knew Accused 4, no identification parade
was held for the identification of Accused 1, 2 and 3. Nevertheless,
Pw1 was certain he knew Accused 1, 2 and 3 because they came to him
first occassion as they were going up and down accused 4 had said .
his car had no radio with a cassette player. Accused 3 took out the
radio with a
player from the vehicle. Accused 1 and 3 are the ones who took it
vehicle had been a Nissan one ton vehicle which looked like a 4x4.
cross-examination Pw1 revealed he now resided in the Republic of
South Africa where he is doing business with Voda Com and NTN. He
conceded that the vehicle was a white 4x4 which he later called a
Nissan Van. Pw1 told the court that he had not been well-treated by
the police. He had been hand-cuffed and his legs had been in iron
legging when he was transported to Maseru. This was so uncomfortable
that he felt less discomfort when he was lying on the bakkie of the
police van. He was only untied when he was put in the cell.
interrogated from 10 am to 4 pm with intervals 10 by a team of five
policemen. He was released after providing the police with a
statement. He was never given a charge. He signed a statement and
signed some papers in blank. The police said they were going to
transfer it to those papers and write it properly. He was never taken
before a Commissioner of Oaths. He was surprised there was a
Commissioner of Oaths stamp on it. The one he had signed, he had
signed at the end. The one he was shown by defence had only been
signed in the margins. The one he had signed had been read back to
him in English.
denied he had given a statement about what the police wanted to hear
or that he had been told by the police what to say: He had realised
he was in trouble when he learned the facts from the police about the
vehicle, he became aware he might face a criminal charge. In his view
the police handcuffed him and destabilised him in that manner because
that is the way they act to all people. He did not wash while he was
in the cell like all his cell-mates. He did not give the reason why
the M10 000.00 was handed outside Teboho Kou's residence under a
in his statement to the police he had mentioned that he had taken
Peter Topaz to the Chinese gentleman in an attempt to sell a car to
the Chinese gentleman, but he would not buy it because he wanted a
van. Pw1 had not asked about the legality of the van. He assumed the
van was legal because Accused 4 had other vans. He never satisfied
himself about the existence of documents for that particular van. The
only thing he was interested in was payment of M10 000.00. He was not
in the vehicle selling business. He made M 1000.00 out of that
the court also in answer to questions that although police knew he
was a diamond smuggler, they did not say he was in trouble. He knew
it was a
did not know anything about the vehicle when he got involved in its
sale. Pw1 said although Accused 1, 2 and 3 denied ever meeting him in
Hlotse in June and July 1997, they did meet him. Accused 1 and 3 did
wash the vehicle although they denied washing.
of Accused 4 in cross-examination, Pw1 was asked many question about
his rough treatment during police detention before he was
interrogated he confirmed that it was not pleasant and that the
police had said they were not going to play with him. He insisted
that his statement was the same as his evidence although there were
many things the police did not understand. Pw1 said he was not sure
if the transcribed statement was the same as the statement he gave.
Pw1 insisted he told the court that Thabo Mphana was given M1000.00
for his part in the transaction. He conceded that in his statement he
said the Chinese gentleman offered M2500.00 which is M500.00 more
than the M2000.00 which he said was offered in his evidence in court.
He insisted that in his statement to the police he had said the last
letters in the registration number of the vehicle were FS. He denied
improving his statement in evidence. He believed he spent 2½
days in police custody not 5 to 7 days. He is not sure he was
arrested on first July 1997 although that may appear in his
not explain why his statement showed it was Accused 4 who took the
radio when he had said in evidence that the radio was taken out by
Accused 1 and 3 on Accused 4's instructions. At that stage Pw1 wiped
his face with a face towel. He explained he had earlier been running.
It also transpired that he was drinking a lot of water. Pw1 said the
police had invented the story in his statement that he came to know
that the owner of the vehicle had been kidnapped and murdered and the
vehicle stolen. The police had not told him about Accused 4. After
Pw1 had been arrested he came to know during interrogation that the
vehicle was involved in a robbery. Pw1 said it was Chasta his
neighbour who called Accused 1 and said he knew him from Katse dam.
denied there was or had been any animosity between him and Accused 4.
Pw1 admitted he had lived on his Sister's earnings. He said this was
supplemented by farming and gardining. To him farming was profitable.
He was not cross that his diamonds were not bought by the Xhosa
gentleman who was with Accused 4. Pw1 denied he had been a willing
tool in police hands and that he had any grudge against Accused 4.
the Crown called Pw2 Thabo Mphana.
sworn told the Court that on the 18th June 1997, when he got home, he
that some one had been to see him 3 times. That person called Chain
had eventually left him a note. The note simply stated DBra T, see
meC signed Chain Chain is the nickname of Pw1 Mokhethi Nts'oereng.
Before sunset, a Chinese gentleman called him and had come
accompanied by another Chinese gentleman that he did not know. He
said three men came to his shop Lai lai wholesale selling a motor
vehicle. They had said they were selling the vehicle for M18 000.00.
While Pw2 was talking with this Chinese gentleman Pw1 came with two
or three gentleman - if his memory serves him well. Pw1 had already
arranged a meeting place about 100 metres from Pw2's residence. Pw1
preceded them to that meeting place and Pw2 and the Chinese gentleman
Lin followed them. They got into the house, leaving the other Chinese
gentleman, they were with, outside.
house Pw2 says he found Pwl with four other gentlemen. Pw1 introduced
Mopeli (whose first name he forgets) as Chief of Mazenod. Pw2 could
not identify Accused 4 although he pointed out accused 4 among the
accused before court as the man who had some features of the man he
saw. Chief Mopeli said he had been to Lin and they talked about the
vehicle and the price. Pw2 told the court he never knew who the other
men were. Chief Mopeli only said they were his boys who live in Cape
Town, and they sometimes have motor vehicles.
issue of Lin's payment arose. Pw2 asked where the papers for the
vehicle were. Chief Mopeli said that was not a problem. Pw2 and Lin
went outside the house to talk. Lin said he could only afford M12
000.00. They then went into the house to tell Pwl and Chief Mopeli
this fact. Chief Mopeli went out followed by the taller and shorter
man. After a while Pw1 followed them. They eventually returned and
said they would accept M12 000.00. It would be difficult to identify
Chief Mopeli's boys. Lin did not have M12 000.00, he only had
M2000.00. They accepted it with an undertaking that they would bring
papers for the vehicle. Chief Mopeli and another said M500.00 would
be needed for the spare-wheel. Lin produced M300.00 - which was also
accepted. It was agreed that the parties would meet again on the 20th
June which was a Friday. Accused 4 had taken the money, counted it
and passed it on to one of the men with him.
transaction they wanted to be taken to Maseru, it was agreed that
they be taken to the Bus stop. One of the men produced the keys which
were passed to Lin by Chief Mopeli. On the way out Pw2 saw a Nissan
vehicle in the dark. He could not say what its colour was.
Lin came to the place of Pw2 to find out if they were coming. They
waited, but they did not come. The following day, they still did not
was late at night they went to Pwl's home where they did not find
were going away, they met Pwl who went back with them to go and
phone. Pwl phoned and said Chief Mopeli was coming.
Pwl came to the place of Pw2 in a Cressida vehicle with Chief Mopeli
and two young men. They said they were going to that house where they
had previously met. Pw2 sent a message to Lin. When they got there
they found Pwl, Mopeli and two or three other men standing under a
spot light. The owner was not there, therefore they worked outside.
Lin asked for a document, but it was not there, Pw2 noticed things
were being done quickly. One of the young men who was with Chief
Mopeli said papers would be sent soon. When they were supposed to
part Chief Mopeli said he would like Pwl and Pw2 to go and meet him.
One of the men had driven away the Cressida, only Pwl, Chief Mopeli
and Two lads were at the place where payment had been made. They met
at Pwl's house where Chief Mopeli came with three other men and gave
Pw2 M 1000.00 and Pw2 went home.
week later armed police men who were wearing blankets pointed a gun
at him. They were in a vehicle without registration numbers. They
allowed him to put his personal effects at home and took him away.
about the vehicle that was bought. He took them to Lai lai Wholesale
where Lin was not there, he was at Pitseng. At Pitseng they found Lin
who took them to Rampais where the vehicle was supposed to be. They
found other Chinese gentlemen where the vehicle was found and taken
to the Butha-Buthe police. From Butha-Buthe Pw2 was taken back to
Hlotse Leribe where he remained when the police passed on to Maseru
taking the vehicle they had found with them.
Tuesday Pw2 was told to report to Maseru CID where he found himself
in a room with injured people waiting for a person he did not know.
Later he was locked up in a cell where he slept without knowing the
reason. The following day he was told the owner of the vehicle had
been killed. Pw2 was then asked to tell what he knew about the
vehicle. He gave a statement and was released.
Pwl had been given M500.00 on the occassion of the second visit of
Chief Mopeli and his men. Mr. Lin preferred having him around, he had
not played any special part.
cross examination Pw2 admitted that on all occassions he saw Chief
Mopeli, it was at night. He cannot identify Chief Mopeli because
maybe they were together for a short time. Mistakes are possible as
people have similar
It is possible for a person intent on mischief not to reveal his true
identity. It can also happen for a person to use other people's
names. Pw2 disagrees with Accused 4 that he was not at Hlotse. He
believes the features of Accused 4 reveal him to be the man he saw.
His hesitation is caused by the fact that he sees him among many
then called Kenalemang Kotola as the third witness (Pw3)
Pw3 said he was a neighbour of Pwl. In 1997 he saw Posholi Accused 1
in the company of three men going to the home of Pwl, Pw2 was at home
at the time. His home is about 70 metres from the home of Pwl.
Accused 1 and his companions were in a white Nissan van with blue
stripes on the sides. He did not notice the registration number.
Accused 1 who had worked with him at Katse Dam was known as Push.
Accused 1 asked Pw3 if the place Pw3 was at that time was in fact the
home of Pw3. From there Accused 1 went and his companions went to the
home of Pwl. Pw3 said he knew Accused 1 very well as they had worked
together for two years but he did not know the other three. It was in
the morning at about 9 am when he saw them.
cross-examination it was shown that Accused 1 agrees that he and Pw3
know each other. Pw3 did not agree with Accused 1 that Pw3 was
said they met in June 1997 at Hlotse. He denied that in June 1997 he
qued for work at Mohale after he had been retrenched from Kats'e Dam.
Pw3 denied that he ever met Accused 1 and his three friends at Caltex
Garage in Hlotse around May 1997 or that he ever bought them drinks.
He also denied pointing at his home from there. Pw3 also denied
knowing Accused l's girl friend Malitaba. Pw3 insisted that he saw
Accused 1 and his three companions going to the home of Pwl in a
Nissan vehicle in June 1997.
read to Pw3 a portion of his statement that gave the impression that
he already knew the name of Accused 1 which is Posholi. Pw3 in reply
said he only knew Accused l as Push, it is possible he might have
already known Accused l was Posholi. The Police referred to Accused 1
as Posholi at the time they had come to the home of Pw3, but he is
this witness the Crown called Leuta Mahao as the fourth witness (Pw4)
Pw4's sworn testimony was to the effect that he knew Accused 1,2 and
3. They worked with Accused 3 as security guards Fahida Cash and
Carry. On the 16th June 1997 they had been drinking with Accused 1, 2
and Accused 3 at his home. Pw4 says he had been cleaning his father's
pistol and during this drinking, it was
his bed. Accused 3 kept on handling it. Its Number is 3771 if he is
not mistaken. The following day he realised it was missing. The
following day the 17th he went to the residence of Accused 3 to look
for this fire-arm but found no people. He found Accused 3 at the home
of Accused 1. Accused 3 told him they had the gun he and Accused 1
would take it to the residence of Pw4. On the 18th June 1997 between
4 and 5 am Accused 1, 2 and 3 came to his residence, they were with
Accused 3. They came in a white Nissan with blue stripes on the
sides. They told him they could not bring the pistol for reasons
beyond their control. They did not bring that gun the following day.
after that, he went to accused 3's residence, but found no people. He
then proceeded to the home of accused l's father. Accused l's father
showed him the home of Mannini who cohabited with Monate. Pw4 asked
Mannini where accused 1, 2 and 3 were. She did not know. He waited
for them for a long time and they did not come. Pw4 made two other
attempts to find them at Mannini's but was not successful. On the
21st June he found accused 3 at Mannini's place. They went to find
accused 1, they found Accused 1 moving house. It was only on the 22nd
that he went to a house that was pointed to him - there he found
Thato accused 7 who is the sister of accused 1. Pw4 asked accused 7
to call accused 1. Accused 1 gave him his father's pistol which no
more had ammunition, when it
8 bullets. On the way from accused 1, Pw4 met accused 2 and 3.
promised to replace the ammunition.
29th June the police came to the residence of Pw4, he saw Accused 2
in the police vehicle. They asked Pw4 where the firearms were. He
produced his father's pistol, but they were not satisfied, they also
wanted a big gun that he did not have. They then searched the house
and took Pw4 to the Charge Office.
examination revealed that Pw4 was a former member of the Lesotho
Defence Force from 1986 to 1990. Pw4 had deserted when he claimed his
resignation was not accepted. He admitted he was dishonourably
discharged from the Lesotho Defence Force for desertion. He denied he
had a drinking problem. He denied that he left the army in 1994.
in answer to questions he had heard from the police that Accused 1,2
and 3 had committed an offence. He does not remember how long he was
detained. He had signed his statement to the police in the margins,
there was his signature at the end of his statement, but he never was
taken before a Commissioner of Oaths - although there is an
appearance on the statement that he was taken before a Commissioner
of Oaths. He had also signed blank pages. The
statement was signed on the 5th day of his confinement. He had lost
conception of time as he was always taken from a cell for
interrogation. Within 48 hours of his detention, he and Accused 2
were taken to the magistrate Court. Pw4 was released after making a
the son of a policeman and he had taken his father's firearm to clean
it although his father could clean his own firearm. He had taken it
because his father had no cleaning equipment. His father was 62 years
old at the time although his statement shows he was only 51 years
old. That is wrong. Pw4 noted there was an error in the description
of his fathers pistol. He admitted he had taken the fire-arm without
his father's knowledge, but his father sent his mother to find out
and he told his mother that he had taken the pistol. He denied
refusing to return it. Pw4 observed some mistakes in his statement
Pw4 insisted that Accused 3 did not go to work during the week he was
looking for him. From the day he was looking for the pistol he had
not gone to work. Accused 3 had started not going to work before Pw4
started absenting himself from work. They had been in the day shift
with Monate and Accused 3 for 3 to 4 months before this incident.
further answering questions said Accused 1,2 and 3 did drink at his
and on one occassion came in a Nissan in a vehicle. Pw4 also denied
that Accused 1 had been at Mohale Dam looking for a job between 16th
and 21st June 1997. In cross-examination it was put to Pw4 that it is
correct that Accused 1 was moving house from Lower Seoli to Qoaling -
and Pw4 said that is what he was told. Pwl denied he did not find
Accused 1 on the 22nd June and he gave him a pistol. Even if Accused
1 says he has no drivers licence - Pw4 told the court that he saw
Accused 1 driving the Nissan van.
sworn Crown Witness was Thabang Makole (Pw5). He said sometime in
June 1997 accused 1 came and knocked at Pw5's house. It was at 11 pm
in the night. Pw5's wife said Pw5 was not there although Pw5 was
still in the house. In the morning he found a white van that looked
like a Ford Curia parked near his house. It had green below the
window just above the door. It bore South African numbers. Pw5 sent
for Accused 1 and his father. The father of accused 1 eventually
came. While Pw5 was talking to the father of Accused 1, accused 1 and
2 came in the company of a third man. Accused 1 apologised for
parking his vehicle at the place of Pw5 in the absence of Pw5. The
third person who was with Accused 2 looked like Accused 3. Accused 1
said he parked the vehicle at the home of Pw5 because he found the
gate at his home locked. Pw5 said he told them to leave his premises
and they complied. Accused 1 was the driver of that
cross-examination Pw5 noted that Accused 1 remembered the incident.
The father of accused 1 had said Accused 1 had been away for two
weeks. He could not deny if Accused 1 said the third person had been
Thabang Tau from Nazareth. Pw5 could not deny if he was told the
vehicle belonged to Thabang Tau. Pw5 said he was a motor mechanic.
Mokhoele Mahao was the sixth Crown witness. Duly sworn he said Pw4
had taken his firearm without permission. It is an auto pistol -
rifle Cerka RSA Serial NO. 32771 calibre 7.65 - .303.
called Pw7 Mabusetsa Francis Malooa as its seventh witness. Pw7 under
oath said gave evidence about a Galil Rifle L701150 which had been
issued to him as a member of the Royal Defence Force. He use to share
a locker with Accused 6 and he had asked Accused to go and put that
rifle in a Chubb safe. After a while that rifle vanished. On the 15th
July 1997 he was called to the CID Office to come and identify it, it
no more had a butt. It had a different sling from the one it used to
revealed Pw7 had not known how it was at one time issued to accused
6. Pw7 also did not know the butt of the rifle was lost when the
vehicle overturned. Pw7 did not know that Accused 6 retained that
rifle afterwards. Pw7 did not even know that accused 6 retained
possession of the rifle until it was taken from him by Trooper
at that stage called Maliau Phate as the eighth witness (Pw8) to give
1997 Mannini had rented a room at the home of Pw8. Mannini at the
time lived with Monate and Accused 3 with the encouragement of
Mannini Pw8 became a lover of Accused 3. There was a time that
Accused 3 went away for a week and came back with Accused 1 and 2.
This was in May. She saw the firearm that used to be in the
possession of Monate and Accused 3 in the hands of Accused 1. Accused
1 had quarrelled with Mannini and he had pointed that gun at Mannini.
As no one else was intervening, Pw8 intervened and with the help of
other people wrested the fire-arm from Accused 1 and hid it. Accused
3 later asked for it and took it. After some time they went away for
about three days.
this period Accused 7 came to the residence of Pw8 at night followed
by an angry man. This man started looking for something and turning
of Pw8 upside down. He said he was looking for government property.
took Pw8, and Accused 7 out of the house. Outside they met Accused 6
and Moratuoa. Pw8 did not know Accused 6 at the time. Accused 6
called Pw8 aside and told her they were looking for a gun and Pw8
should plead with Accused 3 to return the gun. Accused 3 would be
given money to flee to South Africa. Eventually Moratuoa, Accused 7
and Pw8 were released and they slept at the residence of Pw8 after
this ordeal. The following day Accused 3 came and Pw8 gave him a
report about what happened the previous day. Accused 3 said he had
already given the gun back. Accused 3 who was with Accused 1 and 2
went away together with them and was not seen for a little while.
days later the police invaded the premises of Pw8's parents looking
for them. Accused 1, 2 and 3 came at night to buy beer at the
premises of Pw8's parents. Pw8 told them police were looking for
them. Thereafter they went away again. Two days later she saw Accused
3 with torn clothes saying he was being chased by the police. The
following morning she heard gun reports. The police knocked at the
door and said they were looking for Accused 1 and 2. They took Pw8
and others with them saying, they would tell them where Accused 1 and
2 hide. The police wanted them to produce the butt of a firearm. They
did not know where it was. When Accused 3 has been arrested following
his explanation they
loaded in a police vehicle and vent to the premises of 'Mamohale
Mohale where Pw8 also stays. When Pw8 and others got there, Pw8 saw
Accused 3 take out that butt in a hole of a cement block bricks which
was on top of a pile of cement block bricks.
answering questions, Pw8 said Mannini and Monate had hired a single
room. Accused 3 also lived with them. Mannini is the elder sister of
Accused 7. Accused 3 used to visit Pw8. Pw8 said although she could
not deny Accused 3 was a security guard, she had never seen Accused 3
going to work of in a Security Guards uniform. Accused 3 and Monate
claimed they were soldiers.
he saw Accused 6 only once at night when it was not dark. It was on
the night they demanded Government Property. Detective Mosili had
detained or imprisoned Pw8 along with her baby. She slept on a sofa
chair with the baby. The police were rough in their words during
interrogation but she was not afraid of them. She was very angry and
aggrieved at the humiliation she suffered because of the detention.
Pw8 insisted she saw the police start at Accused l's home and she saw
the police go with Accused 1 and come out with a bag.
Mohale was the ninth Crown witness (Pw9)
sworn said although she is not sure of the exact year, in July 1997
the police came to her home with Accused 1, Accused 3, Accused 7
that, Moratuoa and Pw8. The police asked for permission to look for
something and she allowed them. She saw Accused 3 emerge from a
police vehicle, go to a pile of bricks (cement blocks). Accused 3 put
his hand in a hole of a brick and took out a black thing which was
said to be part of a firearm. This black thing made of metal was
described by Mosili (a policeman) as part of a gun. It looked like a
butt of a firearm, Accused 3's hands and feet had handcuff.
Molefe was the tenth witness (Pwl0) of the Crown.
sworn testimony Pwl0 said he knows Posholi Accused 1 very well. Early
in the morning at about 6.30 am he heard a hooter. When he went to
investigate he saw Accused 1 and 2. Pwl0 says he did not know the
name of Accused 2, but he had seen Accused 2 many times. Accused 1
and 2 said they were selling a motor vehicle. It was a white Nissan
van, it was parked outside. Accused 1 said the vehicle was straight
and clear, and that it had come with a friend from Cape Town. Pwl0
said to Accused 1 and 2, that he was interested in 4x4, Pwl0
recommended Accused 4 as a person who might buy that vehicle. Pwl0
added that he does not know if Accused 1 and 2 did go to Accused 4 as
he had suggested. Accused 1 and 2 were in the company of a third
person whom he
seeing for the first time. In answer to questions Pw8 said he was not
sure if he was the man from Cape Town. It was accused 1 who had said
he was selling that vehicle.
Prosecution called Khubelu Khateane Pwll as the eleventh witness.
sworn testimony Pwll said during the July winter of 1997 he met
Accused 1 (whom he already knew) near Bakubung Shop. Accused 1 said
police were looking for him. Accused 1 told Pwl1 to fetch a bag of
his from Mojela and give it to his sister Accused 7. He got a grey
bag from Mojela and gave it to Accused 7.
days later Accused 1 put up at the home of Pwl1 and when he went away
he left a light brown jersey because he claimed to have been heavily
dressed. Pw 11 told the court that he wore this jersey and went to
play snooker because Accused 1 is his friend. When he returned home
he put it in a plastic bag and put it under a mattress. It was here
that the police got it at Pwll's home in his absence. This jersey was
fawn and had white colours. It was marked ID 4.
cross-examination Pwll admitted he had hidden it because his parents
had forbidden him to wear other people's clothes. Pwll said he heard
own father that Accused 1 and the police came to retrieve the jersey
denied that Accused 1 had left a different jersey from that one, he
insisted Accused 1 lent him the jersey before court ID 4. In fact
Accused 1 has only left that jersey with him, Pwll never actually
borrowed it from Accused 1. Pwll insisted that at that time Accused 1
claimed the police were looking for him although this did not appear
in his statement to the police, in fact Pwl1 actually saw the police
who were looking for Accused.
called Detective Trooper Lekhetho as the twelfth witness Pwl2.
sworn Pwl2 said he is a policeman assigned to the robbery and
car-theft squard. On the 8 th July 1997 he followed information that
led her to Maputsoane (Mannini) and Accused 7 Thato. He introduced
himself to them and showed his identification card. Pwl2 asked
Maputsoane and Accused 7 about the shoes that Accused 7 had brought.
Maputsoane the elder sister of Accused7 produced a pair of light
brown boots. Accused 7 gave an explanation about those boots. The
light brown shoes were handed in as an exhibit and marked exhibit 1.
shoes the court observed were exceptional in that they were double
skinned. Pwl2 says he charged Accused 7 with all the charges.
proceeded to Leqeles where he found Accused 6 following the
information he had got. From under the bed Accused 6 produced a Galil
rifle without a butt. In its magazine it had six rounds of
ammunition. Accused 6 was charged with all the charges. The Galil
rifle is marked Exhibit 2 and the 6 rounds of ammunition marked
Cross-examination Pwl2 Trooper Thulo or Sergeant Mosili did not seize
those boots exhibit 1 and the rifle exhibit 2 despite what the RLMP
12 form states. All he can say is that they were members of his
then called Trooper Mankoe Sello as the thirteenth witness (Pwl3).
sworn testimony he told the court that on the 13th July 1997 he and
trooper Tauli got information that enabled them to arrest Accused 1.
Pwl3 then gave Accused 1 a charge and later handed him to the CID.
Pwl3 says he was the one who got the jersey that he described as
cream white from Matsepe Khateane. He showed the court what were dark
brownish spots which he described as a red
This jersey is the ID 4 to which the court had already been referred
Inspector Sello Mosili was the fourteenth crown witness (Pwl4) Pwl4
after being sworn in told the court that he was invited by the then
head of the CID Colonel Telukhunoana to head the investigation of the
murder of Pieter Johannes Groenewald. The vehicle the deceased had
been robbed of was a white Nissan van - Registration Number BFHI93FS.
Engine Number Z 24002039Y, Chassis Number S 081421, Model 1997 Fuel
on the 27th June 1997 two days after taking charge of the
investigation Team, information led him to a row of rooms of T'seliso
Mapota. There he went to the Makhethang Nkabane's room. She gave her
information that led them to Lower Seoli where they found Moratuoa
Dlamini and Accused 7. Having introduced themselves and cautioned
them that they are policemen, Moratuoa Dlamini and Accused 7 gave
them an explanation. Pw14 and his team took Moratuoa Dlamini and
Accused 7 with them to the home of Makhethang Nkabane. Moratuoa
Dlamini and Accused 7 asked for a key from Makhethang Nkabane. When
this happened they were with the Chief's messenger Dyke Makhetha. The
room was opened and as they searched the house they found the
following items of property:
wrist watch RPN scientific calculator written P. Groenewald Black and
Red torch Green Sesotho Medicine A radio for Communication A black
electric lamp Black hand gloves A surveyors telescopes Pwl4 told the
court he siezed this property and arrested Accused 7 and Moratuoa
Dlamini. On the way to the police station Accused 7 showed them three
men. When they stopped their vehicle, the three men began to run.
These men would not stop even when they fired into the air. Pw14 they
were able to arrest Accused 2 because he locked himself into some
one's house. Pw14 not only arrested him but gave him a charge as
well. Pw14 told the court that he took Accused 2, Accused 7 and
Moratuoa Dlamini to the charge office. When they got to the charge
office, Accused 2 produced a ring and gave it to Pw14 together with
28th June 1997 Accused 2 took Pw14 and his team to Abias. This he did
voluntarily without any coercion Accused 2 brought Pw14 together with
Pw4 Leuta Mahao. Pw14 told this court that he did not need to
introduce himself to
Mahao because they were old acquaintances. Accused 2 asked Pw4 to
produce the firearm that Pw4 had lent them. Pw4 produced the Ceska
pistol, Accused 2 gave an explanation in relation to the pistol. All
this was done without coercion. From there Accused 2 went to a line
of rooms where he had lived and gave Pw14 a blue anorak (which was
described by Pw14 as a blue lumber jacket made of cloth).
same day (28th June 1997) Accused 2 took Pw14 to Hlotse to a place
called Amerika. Pw14 was with his team. This is an area where the
Chinese live. Accused 2 looked for him, the information given was
that he was at Pitseng. They went to Pitseng with Accused 2. When
they got to Makhoalibe's shop (manned by Chinese) Accused 2 pointed
at Lin who was Chinese. Accused 2 said to Lin that he should give
them the vehicle DKoloiC Lin took them to Rampais where they found
the Nissan 2.4 van which had all the particulars of the vehicle they
were looking for in the engine and chassis.
corrected his testimony by saying they found the surveyors telescope
on the 28th not 27th June 1997. Accused 2 had led them there. The
bundle of keys that Pw14 had, opened the doors and started the
ignition of the vehicle. Pw14 says he arrested Lin and took him and
the Nissan van to Maseru. John Slade Baker the
administrative manager of LTA construction identified the vehicle as
that of deceased. He had worked with deceased. He used the deceased
registration certificate on which there was a chassis and engine
number which tallid with those on the Nissan van to identify it.
30th June 1997 J.A. Williams came to Pwl4's office where he
identified the scientific calculator with deceased's name on it,
citizen golden wrist watch, 2 way radio communication radio (released
to deceased's wife) Navy blue anorak as belonging to deceased.
Accused 2 was present when this was done.
2nd July 1997 accused 2 took Pw14 to Khomo-e-ts'oana Donga below the
village of Toki. Freely and voluntarily Accused 2 gave an explanation
and pointed at place. Senior Inspector Hlaahla and Detective Trooper
Thulo were present and video were taken by Colonel Hlaahla. Detective
trooper Thulo was taking photographs. Following an explanation of
Accused Pwl4's team went to Chief Mopeli Accused 4 . He cautioned
Accused 4 that anything he says might be written because he Pw14 was
a policeman. Accused 4 freely and voluntarily gave him an
explanation. He took Pw14 to Maselepe Mopeli in Mazenod and demanded
a car radio from Maselepe Mopeli. Maselepe Mopeli produced it, and it
was handed by Accused 4 to Pwl4. It was a Pioneer radio with a
1150 serial QK 089019. Pw14 siezed the radio and charged Accused 4
with murder, robbery and kidnapping.
went to arrest Accused 3 on the 11th July 1997 at a shack in the yard
Motlalepula Khoeli, a herbalist. Pw14 found Accused 1 at the CID
office. Then Accused 1 freely and voluntarily took Pw14 to Lower
Seoli where he pointed at some blue jeans trousers at his father's
place Malebanye Mosili, Pw4 seized it. Accused 3 took Pw14 to Qoaling
where he pointed out a butt of a Gallil rifle on a pile of bricks by
inserting his right hand in it and taking out that butt. He then
handed that butt to Pwl4. On arrival at the charge office Pw14
charged Accused 1 and 3 with murder, robbery and kidnapping.
15th July 1997 Accused 3 took Pw14 to Khomo-e-ts'oana donga at the
village of Makhoathi where he pointed at a certain place inside the
donga. Senior Inspector Letsie was making a video and Detective
Trooper Chikando taking pictures. Khomo-e-ts'oana donga is the place
where deceased's body was allegedly found from information Pw14 had
got. Accused 1 did the same on the 16th July 1997. Pw14 then handed
in the following items as Exhibits:- Ceska pistol it was marked
Exhibit 3, lamp that gets attached to the slot for cigarette lighter
marked Exhibit 4, surveyors telescope marked Exhibit 5, Gallil rifle
Exhibit 6, Blue anorak marked Exhibit 7, light blue jean trousers
8, scientific calculator Exhibit 9, pair of black hand gloves marked
Exhibit 10, gold wrist watch marked Exhibit 11, finger golden ring
marked Exhibit 12, silver finger ring marked Exhibit 13.
something of an amendment to his evidence Pw14 said he was with Pw2
Thabo Mphana and Accused 2 when he went to Pitseng and Rampai to get
the Nissan vehicle. Pw2 acted as a kind of interpreter. Pw 14 said he
found Accused 6 at the CID office. It was then that Accused 6 went
with Pwl2 and other policemen, to bring the Gallil rifle exhibit 2
after giving him an explanation.
cross-examination Pw14 admitted there was pressure from the police
authorities to get results in this high profile case. Pw14 admitted
he succeeded remarkably in getting voluntary explanations from the
Accused in a remarkably short time. In this particular case they
appeared to co-operate instantly. Pw14 was surprised to hear Pwl was
very uncomfortable and had his hands and feet tied during the period
he was transported from Leribe to Maseru. Although he got this
treatment from a team from which Pw14 was head, Pw14 said he did not
know the type of treatment Pwl expected, but he was absent. Pw14 was
surprised Pw2 Mphana also complained of bad treatment at the hands of
the police. Pw14 said
fired when Accused 2 and his companions started running. Pw8 was not
pleased with the way she was interrogated because she was not used to
was charged by Pwl2 although the RLMP 12 shows otherwise. A lot of
things including the rifle Exhibit 2 were siezed on his behalf:
Colonel Telukhunoana the then head of the CID was also the ballistic
expert. Pw14 denied influencing the outcome of the ballistic
examination to suit their investigation. Pw14 insisted his version of
the siezure of the Ceska pistol was the correct one and not that of
Pw4 and in particular, it was Accused 2 who demanded the pistol from
Pw4. Pw14 insisted on this despite his written report of an earlier
denied she recovered most of the exhibits where Tlokotsi Monate
lived. Pw14 said they were recovered in a room next to that of
Makhethang Nkabane. Pw14 added that it was accused 7 who asked for
the keys of the room from Makhethang Nkabane because she Accused 7
stayed there. It was Accused 7 who stayed there. Pw14 said in this
room Accused 1, Moratuoa Dlamini and Accused 7 stayed there. Pw14
denied that Tlokotsi Monate was the one who lived there. Tlokotsi
Monate to the best of his recollection was never arrested, although
Pw14 did not clearly recall the fact. Pw14 said Tlokotsi Monate was
met and did
investigations for a short time at Seoli's. When it was put to Pw14
that Accused 7 would say that when she was arrested the van of the
police was already full of things which included the Exhibits such
Exhibit 9 the calculator, Exhibit 11 the wrist watch, black hand
gloves Exhibit 10, the lamp Exhibit 4 and other things - Pw14 said
that would be untrue. To the Accused 7's claim that Tlokotsi Monate
was handcuffed, Pw14 said that is incorrect, Tlokotsi Monate was not
even there. When further cross-examination was directed at the fact
that Tlokotsi Monate (like Accused 1, 2, and 3) was taken to
Khomo-e-ts'oana Ha Tonki and a video taken of him pointing at places
- Pw14 denied this. Pw14 denied he ever assaulted Tlokotsi Monate,
Accused 1, 2 and 3, he insisted Tlokotsi Monate was not even there.
Pw14 denied he had dictated to the Accused what to say.
if Accused 2 denies giving him a finger ring Exhibit 12, surveyors
telescope Exhibit 5 and a dark blue anorak Exhibit 7, Pw14 insisted
that Accused 2 did. At that time Accused 2 had not been given a
charge although he had been arrested on the 27th June 1997. If
Accused 2 said they broke into the residence of Accused 2, Pw14
denied this. If Accused 2 denied he was ever at Hlotse, Pitseng and
Rampais, Pw14 insisted Accused 2 was there. Pw14 denied planting the
butt of a gun Exhibit 6 which Accused 3 pointed out. Pw14 denied
first peeping at the place Accused 3 found the Butt of a gun. Pw14
Accused 1, 2 and 3 with sticks and knobkerries or making them remain
in cells while they had leg-cuffs and handcuff on because that is
contrary to regulations. He denied detaining the accused for too long
a period contrary to law. Pw14 claimed he kept applying for warrants
to extend his detention of the accused before a Magistrate at
different dates. Pw14 in short denied suffocating the accused with
tubes of tyres or torturing them in anyway while in detention.
with further cross-examination pwl4 admitted that he was subjected to
a lot of pressure by his superiors. He released to radio of the motor
vehicle to deceased's wife although RLMP 12 (Exhibit 3) had directed
Pw14 to keep it until it was produced at the trial. Pw14 said he
never consulted Accused 4 before he released the radio as he was
expected to do - he had no time. The South African Embassy was
putting pressure. He insisted without producing evidence that the
Clerk of Court modified her order. The radio had been found in the
possession of Maselepe Ts'iu, which was not the residence of Accused
then called No 7808 Detective trooper Motlatsi Moeletsi as the 15th
fifteenth witness (Pwl5).
sworn testimony he revealed that he found the body of a European at
Khomo-e-ts'oana donga following information received. He found many
there. The body was naked except for the under trousers. There was
one sock on the left foot. The body was tied with a belt on the left
wrist. In examining the body he found a wound on the forehead. One
big open wound at the back of the head. An open wound at the neck
towards the left, an open wound on the cheek in front of the right
ear, there were scratch wound at the back mainly to the right.
the body there was a spring attached to a rod of iron that looked
like part of a gun. An empty shell of a 7.65 mm was found next to the
deceased. Pwl5 took photos of the scene and took the body to Queen
Elizabeth II hospital mortuary. On the way the body did not sustain
any injuries Pwl5 handed in an album Exhibit DCC of the photographs
he took of the deceased. The empty shell was handed in and marked
Exhibit 13. There was already an Exhibit 13, (which was a silvery
finger ring) but the fact was overlooked by mistake by the court and
both the Crown and the Defence counsels who were assisting it. This
empty shell will therefore for convenience and clarity of
identification be referred to as Exhibit 13(a). The rod of iron
attached to a spring was marked Exhibit 14.
then called David Stefanus as its sixteenth witness (Pwl6) Miss Nku
the Crown Counsel informed the court that the Nissan vehicle was
the court. She invited the Court and Defence Counsels to go and
inspect it. The court made a few notes. The vehicle was a by common
consent a Nissan 2.4 S.E bakkie (van). It had green stripes on the
sides below the windows, these began at the door and continued to the
bakkie on both sides. It had no Canopy. It is a 1997 model. It was
agreed by both parties that its registration numbers had changed,
consequently the new registration numbers were not recorded.
then examined the Chassis Numbers and recorded NO. 8 &ADNB570000S
081421. Engine Number Z2400209X. On all windows the last of the
Chassis Number S 081421 was printed on the glass. The radio of the
vehicle was a Cardio. It was not disputed that this was a new radio.
Stephanus Marais was called as the sixteenth witness (Pwl6) Duly
sworn he showed that on the 16 th May 1997 he had sold a motor
vehicle, a Nissan Registration Number BFH193FS to the deceased. Its
Engine Number was Z 24002639Y, Chassis Number ADNB570000 S 081421. It
had been fitted with a radio pioneer 1150 model.
called Celia Straus as its seventeenth witness (Pwl7) Duly sworn
Pwl7 said she was married to the deceased Peter Johannes
Groenewald. On the 17th June 1997 Peter Johannes Groenewald did not
return from work. They had resided at Ladybrand. On the 19 June Pwl7
was informed her husband had passed away. The last time he saw him,
deceased had been wearing light blue jeans, light brown shoes, wrist
watch, cream white jersey with white and brown assorted colours, navy
blue lumber jacket, he also had in his possession a calculator
labelled P Groenewald and his Identity Book. She was then pregnant
and was living with her mother and her daughter.
invited to Group 5 offices where her late husband had worked, there
he found a sergeant of the Lesotho Mounted Police who took her to a
place where she identified her husbands items. She identified her
husband jeans Exhibit 8 which she now finds torn, Light brown shoes
Exhibit 1, Citizen watch Exhibit 11, a blue lumber jacket Exhibit 7,
a cream white jersey ID 4, and there was a Pioneer radio similar to
the one that had been fitted to the vehicle of her husband. Pwl7 also
identified her late husbands vehicle which the defence admitted was
outside court and there was no need to go to it.
significant that Pwl7 said the two rings Exhibits 12 and 13 and the
handgloves Exhibit 10 did not belong to her husband. One of the rings
had been voluntarily had (according to Pwl4) been voluntarily handed
to him by Accused
also was said to have given an explanation.
recalled to hand over the White Nissan with green stripes on both
sides below the windows which was outside court. It was marked
Exhibit 13. It should be noted that there were already two Exhibit 13
which were the silvery finger ring and the empty shell found next to
the deceased's body. I have already in the judgment decided to refer
to the empty shell as Exhibit 13(a) to avoid confusion. I will
therefore refer to the Nissan bakkie as Exhibit 13(b) for the same
for the Crown decided to hand in the ballistic report in the form of
an affidavit made by the late Colonel Telukhunoana into evidence in
term of Section 223 of the Criminal Procedure and Evidence Act of
1981. Miss Nku found the Section ambiguous and self contradictory.
The defence had no objection to its admission as secondary evidence.
It was admitted as Exhibit Cl. But the court was not happy with the
bare assertion that the empty shell of 7.65 Exhibit 13(a) was fired
by the pistol Exhibit 8. The Crown produced a photograph and
distributed copies of it to the defence and the court. While the
court was examining it, Inspector Phuthipali began explaining it to
defence counsel. The
remarked that it was necessary for this photograph to be explained to
it as well.
Phuthipali was therefore called as Pwl8 for the purpose. This photo
which was mounted on a paper with a tittle Royal Lesotho Mounted
Police Ballistic Section Court Chart with a Lab Ref Number F101/97
dated 8/12/97 compiled by J. Telukhunoana was first referred by the
court as Exhibit C3 but this was changed to Exhibit C2 and Exhibit C2
was written on that Ballistic Section court chart. The court looked
at exhibit C2 and found it highly unsatisfactory. The basis of
similarity in this blown up microscopic chart was an area less than 1
millimetre. This was according to Pwl8 an ejector mark. The court
which had dealt with photographs of this nature was not at all
impressed with this photograph. It was not even referred to in the
affidavit Exhibit Cl. Pwl8 then produced another photograph marked
exhibit C3 which he claimed also related to this empty shell Exhibit
13(a). He said it bore marks of imprints of the chamber of the pistol
Exhibit 3. This could persuade that the two photos of empty shells
being compared were from the same weapon. The court was surprised it
was not intended for use in court. It because clear that since
Exhibit C3 was the only photo and it had not been in any way referred
to and reconciled with the affidavit Exhibit Cl, it had no probative
then called Maselepe Mamajara Mopeli as its nineteenth witness
sworn Pwl9 said Makhabane Mopeli the son of Tsiu Mopeli and Lesole
Lefa came to her house at about 8 or 7 pm in July 1997. Makhabane had
a plastic bag intended for Palesa. They asked where Palesa was. Pwl9
told them to leave it. When Palesa came she put it in the wardrobe.
In July about a week later Accused 4 the father of Makhabane came
with a gentleman who turned out to be a policeman Pwl4. Accused 4
asked for the plastic which he had asked Palesa to keep. After
Accused 4 had been given the plastic parcel, he took a radio out of
it. There was a van waiting with several people outside, Accused 4
went away in that van, two weeks later the CID police took a
statement from her. The radio was about 30cm by 20cm. At all material
times Pwl9 was ill and in bed. She rose from the sick bed to come and
cross-examination Pwl9 said in 1997 she was even more ill than she
was in court when she gave evidence. Pwl9 insisted she was telling
the truth and burst into tears when she was accused of not telling
A list of
admissions of facts was handed in read into the record by one of the
defence counsels and marked Exhibit DAC. Those admissions were the
findings of the medical doctor who performed the post- mortem on the
deceased Peter Johannes Groenewald as regards the cause of death
some time in 1997, a white van was seen being driven into a donga.
Further that it was already dark at the time it came out of the
donga was admitted.
on the 19th day of June 1997, a white van with green stripes on both
sides was seen parked by the donga at Khomo-e-ts'oana. Further that
there was nobody by it. This fact was also admitted.
on the 19th day of June 1997, a dead white man was found at
Khomoetsoana donga. The body had no clothes on except for a pair of
underpants. This was admitted too.
post-mortem report was handed in and marked Exhibit D. The cause of
death was severe blood loss due to a perforating projectile wound in
the neck. There was a description of the external appearance of the
body. The deceased was in his early 30s.
closed its case.
accused except Accused 6 gave evidence in their defence.
was the first defence witness.
oath Accused 1 said he resides at Seoli's and was arrested on the
13th July 1997. He denied he was ever involved in the murder, robbery
and kidnapping with which he is charged. Furthermore in June 1997 he
never drove a white Nissan with blue stripes. He had not been in
Leribe 1997 with other people as alleged. He was not among the people
who washed a vehicle which was sold to some Chinese gentlemen.
Accused 1 told the court that he knows Accused 2 and 3 but he does
not know Accused 4, he first met him here in court. He had not met
Accused anywhere before then. As for Accused 6, Accused 1 said he
first met him in the magistrate court when he was read the charges.
Accused 2 and 3 were mere acquaintances not friends.
told the court that he know Pw3 because they met at Katse Dam where
they both worked. He denied Pw3 had ever seen him in a white Nissan
vehicle in Leribe. He met Pw3 in June 1997 when he was going with
three people to 'Muela to look for a job. Those people were not any
of the Accused before court. They were using public transport. Pw3
had bought them liquor at a liquor restaurant at Caltex garage. Pw3
called him (Accused 3) outside and showed Accused 1 his home. Accused
1 told Pw3 that Pw3 lived near his girl friend
In June 1997 Accused said he was in Mohale Dam for the whole month,
only visiting home on week-ends. He had gone there to look for a job
and had to stay because there were always promises.
told the court that he knew Pw4 by sight and he met him in street.
Accused 1 said therefore he only knows Pw4 lives in Lithoteng. He
lived 700 metres from the residence of Accused 1. They used to meet
at the liquor restaurant at Cheapside. Accused 1 emphatically denied
he had ever been to the home of Pw4 where there had been drinking. He
had never borrowed Pw4's pistol. They never talked about that pistol
subsequently - as Pw4 alleged. Accused 1 denied what Pw8 said to the
effect that he pointed a gun at his own sister and that Pw8 took that
said he know nothing about the multi-coloured jersey ID4 which was
with Pwl1. By consent the jersey ID4 was handed in by consent as an
exhibit at the insistence of the court. The jersey was marked by
mistake as Exhibit 14 because the Prosecution, the Defence and the
Court were unaware that there was already and Exhibit 14 which was a
metal road to which was attached a spring which was handed in by
Pwl5. For convenience the court will refer to the multicoloured
jersey ID4 as Exhibit 14(a) Accused 1 denied he ever handed a pair of
Exhibit 8 to Pw14 at Accursed's parental home at Qoaling. Pw7 who is
his sister also stayed at his parental home.
denied ever renting premises around June 1997 at Qoaling. I was a bit
surprised by this because in cross-examination of Pw5 it was put on
behalf of Accused 1 that Accused 1 had been moving house in June
1997. It became puzzling how this could happen if he had been living
at his parental home. The bulk of Exhibit which Pw14 found at Qoaling
such as Exhibit 4 the lamp, Exhibit 5, the surveyors telescope,
Exhibit 9 the scientific calculator, Exhibit 10 the hand gloves,
Accused 1 said they were in his possession. Accused 1 said he was not
there when they were found. Accused 1 described how he was handcuffed
and leg-cuffed with legging and kept bound hand and foot in a cold
cell at the border post, and the Central Charge Office for 3 days. He
also described how he was suffocated with a tyre tube to which water
was added. All this was done to extract a confession from him.
mixed up dates on which they met in Leribe. Pw4 was implicating him
falsely because it is Pw4 who should be on trial, not Accused 1. Pw8
was saying what she said about Accused 1 because of the ill-treatment
he received at the hands of the police. Pwl 1 tried to pin the jersey
ID4 or Exhibit 14(a) because
Accused 1 was already under arrest when the jersey was found in the
hands of Pwll. Pw14 the head of the investigation team was
implicating Accused 1, the way he was doing because he is the
investigator of the case.
by the Crown, Accused 1 said witnesses were schooled by the police.
Accused 1 said he does not know why Pw4 and Pw14 had given the
evidence against him when there are so many other people. Accused 1
said he does not know why Pw5 Thabang Makole had said he came to his
place driving a white bakkie because he (Accursed) cannot even drive.
Accused 1 had come with Accused 2 and one Brown from Cape Town trying
to sell Pwl0 a vehicle. When Pwl0 did not buy it because it was not a
4x4. Brown the owner proceeded to Cape Town in that vehicle.
second Defence witness was Accused 2
sworn Accused 2 said he was 38 years old and was a builder. He knows
Accused 1 and 3 and had known them before arrest. He does not know
Accused 4. He saw Accused 4 when they attended remands at the
Magistrate court. Accused 2 said he know Accused 7. Accused 2 denied
involvement in all the charges. He had been arrested by Pw14 when
Pw14 and his colleagues started
at them for no apparent reason. Accused 2 denied the finger ring
Exhibit 12 and the blue anorak were found in his possession or that
he handed them to Pwl4.
denied seeing the Ceska pistol Exhibit 3 anywhere. He also denied
taking the police to Pw4 and demanding the Ceska pistol from Pw4.
Accused 2 denied any knowledge of the Nissan vehicle Exhibit 13(b) or
selling it to a Chicness gentleman. Accused 2 denied going to Hlotse
Pitseng and Rampai where that Nissan vehicle was recovered. Accused 2
denied taking Pw14 to Makhoathi and Khomo-e-ts'oana. Accused 3 said
it was Pw14 who took him to those places. Pwl was not telling the
truth when he said Accused 2 was involved in the selling of the
Nissan vehicle. He did not know Pwl and saw him for the first time in
court. Accused 2 said he was brutally assaulted with a heavy
lebetlela stick in an attempt to force him to confess; but he
Accused 2 said he was taken to Khomoetsoana by Pw14 and was told to
say that is where they killed the white man and he was photographed .
Accused 2 denied he took the police to Lithoteng. He says he only saw
Pw4 being brought into the vehicle while the vehicle was in
Lithoteng. Accused 2 denied travelling in that Nissan vehicle. He was
a passenger in a Nissan belonging to Brown with Posholi and a white
man called Brown. In fact
was a coloured and he wanted to sell that Nissan. Pwl0 Molefe would
not buy it because it was not a 4x4. He said they should go to his
friend at Mazenod who was looking for a vehicle. They never went.
Pwl0 had said they should go to Accused 4. The people he was with
never took the vehicle to Accused 4. Accused 2 denied that he Accused
1,3 and 4 were seen in a Nissan with green or blue stripes trying to
sell it in Leribe.
further questions Accused 2 denied knowing Lin Ming Ren who was
Accused 5. A Chinese gentleman was an awaiting trial prison. It was
the first time he saw the surveyors telescope Exhibit 5 - Accused 2
denied giving it to Pwl4. Accused 2 said he was not there when
Accused 1 promised to replace the ammunition of Pw4. All he remembers
about is Pw4 being brought out of a house at Lithoteng carrying a
Defence then called Accused 3 as the third defence witness:
oath accused 3 said he is 37 years old and is married. He knows
Accused 1 and 2. He does not know Accused 4, he first saw him when
they were remanded before the Magistrate together. He knows Pw4 Leuta
Mahao, Pw8 Maliau Phate, Pw9 Mamohale Mohale and Inspector Mosili
worked with Accused 3 at Eagle Security. Accused 3 says he stopped
working there in July 1997 when the police arrested him. When this
happened Pw4 had long stopped working for eagle Security. Accused
said he was innocent of all charges. He never even took part in the
sale of the Nissan Van Exhibit 13(b). He had not been in Leribe in
June or July in that Nissan van with blue stripes on the side. Pwl
who claims he saw Accused 3 where the vehicle was disposed is wrong.
Accused 3 does not even know him. Pw4 is not telling the truth when
he says Accused 3 took his pistol after playing with it on Pw4's bed
while they were drinking. This drinking episode never occurred. Pw3
never saw him in a white Nissan van. He never promised to replace the
bullet of Pw4.
Maliau Phate was his girl friend or lover. Pw14 never saw Accused 3
produce the butt of a Galil rifle. It Pw14 who brought him bound
hands and feet to the place where Pw14 pointed at a hole in the pile
of cement blocks bricks. Pw14 took it out and showed it to the owner
of the residence Mamohale Mohale Pw9.
told the court that he was arrested with Pw8 Maliau Phate who had
once been his lover. He was taken to Khomo-e-ts'oana by the police,
he never went there voluntarily. He was then photographed there after
He had been assaulted because the police wanted him to admit that he
had killed a white man. Pw8 had seen him (Accused 8) being assaulted
by the police. Accused 3 said he did not know why Pw4 associate him
with the pistol Exhibit 3. As for Pw14 he testified falsely to build
up his case against Accused 3.
Cross-examination said he does not know that the police are not
allowed to assault him in front of his girl friend. Accused 3 said he
was assaulted badly on the buttocks and ribs with a Lebetlela stick.
But he never admitted anything even after such a savage beating.
denied washing a Nissan motor vehicle at Leribe. He also denied
removing the radio of that vehicle. Accused 3 told the court that he
first saw Pwl . in court, he does not know him. Pw4 told his lies out
of envy because he worked in a low security role while Accused 3 was
guarding cash in transit, a job Pw4 considered himself better
qualified for because of his prior military training. Pw5 Thabang
Makole was wrong to associate Accused 3 with a van parked in his yard
without permission, he was not there. Accused 3 said he first came to
know Lin Ming Ren while they were out on bail. They used to be
remanded together. Accused 3 counsel objected when the contents of
his affidavit were used to
him by giving a different statement under oath. The objection of
Accused 3 was sustained not because such a step was impermissible but
because of the special circumstances of this case. This court in
doing so distinguished Lempe v Rex 1997 - 98 LLR & B 195 at 224.
In this case Accused 7 3 had blamed his counsel who had drawn the
affidavit for bail without taking proper instructions. This court
also believed this prior affidavit might prejudice Accused 3 as its
significance might escape the assessors.
Defence called Accused 4 Ts'iu Mopeli as the fourth witness (DW4)
Duly sworn Accused 4 said he was 63 years old and is the Chief of
Thota-moli and Phuthiatsana Ha Paki. Accused 4 told the court that he
does not know Accused 1, 2, 3, 4, 6 and 7. He denied of the Nissan
van exhibit 13(b). He saw this Nissan vehicle before this court for
the first time Accused 4 told the court that he quarrelled or earned
the enmity of Pwl when he refused to allow a friend of his to buy the
diamonds of Pwl because those diamonds were of poor quality. Pwl was
desperate for money at the time. He never with Accused 1,2, and 3
sold a Nissan bakkie to a Chinese gentleman. Accused 4 added that it
is untrue that he had asked Pwl to find him buyers for vans.
denied he had taken Pw14 to Pwl9 where he asked for a radio –
Pwl9 produced. Pw14 had come to him (Accused 3) already in possession
of a car radio and had asked Accused 3 if he knew that radio. After
that Pw14 had taken Accused 14 to the CID office, when he got to the
CID office, he found Pwl police vehicle lying down on its bakkie
bound hands and feet. Accused 4 told the court he was asked no
questions but was locked up for four days at the Charge Office at the
end of the five days he was given a charge and released on bail. He
had never seen the radio that Pw14 had shown him. Advantage had been
taken of Pwl9's forgetfulness by forcing her to testify against him
(Accused 3). That is why Pwl9 was crying. Pwl9 who is the wife of his
younger brother has been sick for a long time. In 1997 Pwl9 was even
more ill than the presently is.
never met him. It is untrue what Pw2 was saying to the effect that he
sold the Nissan van to a Chinese gentleman. If that incident
happened, some one must have been impersonating him. This is nothing
unusual criminal sometimes impersonate prominent people like him when
they commit crimes Pw2 may even have taken the name Chief Mopeli from
questions Accused 4 said he had met cases of impersonation in the
course of his administrative duties. If Pwl0 had directed accused 1
and 2 to him when he failed to buy the Nissan they had, Accused 1 and
2 never came to
Accused 4 persisted in denying that he went to Pwl9 with Pw14 where a
radio was produced. The police never told him why he was arrested, he
first came to know this when the Magistrate read him the charges.
Mosili (Accused 7) was the fifth and the last witness (DW5) After
taking the oath Accused 7 said she is 21 years old. In June 1997 she
lived at her maiden home at Ha Seoli, Accused 1 is her brother. She
knows Accused 2 and 3. She does not know Accused 4 and 6. She had
nothing to do with the three offences she is charged with either
directly or indirectly. She and accused 1 lived at their parental
home. She was not aware that Accused 1 had rented any premises - in
fact he had not.
took her- nor did she take Pwl to Upper Qoaling. She never unlocked
any premises where Pw14 found part of the property which forms
exhibits before court. It is not correct what Pw14 saw in court to
the effect that she and Moratuoa Dlamini took him to Qoaling in June
1997. None of them unlocked those premises. Moratuoa Dlamini is the
wife of Accused 1.
questions Accused 7 said the yellow boots Exhibit 1 were recovered
from her sister Maputsoane or Marmini who is now deceased. Accused
the court that she was present when Pw12 Trooper Sekopo took the
boots from the late Mannini. Accused 7 told the court she does not
know where Mannini had taken the boots from. She was never asked for
an explanation, only Mannini her sister was asked for one. The shoes
Exhibit 1 were brought by Mannini in a plastic bag. Pw12 never said
to Mannini that she should bring the parcel or shoes that she Accused
7 had brought. No policeman ever gave Accused 7 a charge in respect
of Exhibit 1 the shoes. He sister Mannini was never arrested.
Pw14 and his colleagues who arrested Accused 7, he told her she was
being charged after Accused 1 had been arrested. She had already
spent two weeks in custody without being asked any questions.
told the court that she was arrested with Moratuoa Dlamini, her
brother's wife , Maliau Phate Pw8 and Ntulela Dlamini the sister of
her brothers wife. They were not being asked questions. She was only
asked by the police how they could get at her brother Accused 1.
Accused 7 told the court she is surprised that they say they asked
her sister about the shoes that were alleged to be from her and which
were produced by her sister she and Moratuoa never got a key from
Makhethang and opened a door of a room. They were never with Dyke
Makhetha the Chief's messenger. Accused 7 added that she does not
house where Exhibits 9 and 11 were found. Pw14 is simply not telling
the truth. They never showed Pw14 three men who were arrested.
prosecution and the defence made their address. Miss Nku for the
Crown told the court there is not enough evidence on which Accused 6
could be convicted. She pressed for the conviction of Accused 1, 2,
3, 4 and 7.
of the evidence
were some problems in the description and numbering of Exhibits that
crept into the record. These were the following:-
were three Exhibit thirteens (13). These were The silver ring
(handed in by Pw14) The empty catridge shell (handed in by Pwl5) The
2.4 Nissan bakkie or van (handed in by Pw14)
were also two Exhibit fourteens (14) These were:-The iron rod with a
spring (handed in by Pw15) The fawn or light brown jersey ID4
(handed in by consent at the insistence of the court)
confusion in exhibits was inevitable because the court and counsels
on both sides did not keep exhibits control sheets. With the case
having so many postponements confusion was bound to happen. I
discovered this as I was carefully going over my notes as I was
writing this judgment.
the problem of mixing up Exhibits in the judgment by describing the
Exhibits as follows:
silver ring was described in the judgment as Exhibit 13. The empty
catridge shell was described as Exhibit 13 (a) The 2.4 Nissan bakkie
was described as Exhibit 13 (b) The iron rod with as a spring was
described as Exhibit 14.
brown (fawn jersey ID4 was described as Exhibit 14 (a)
in the courts view no prejudice to the Accused in having adopted this
method for avoiding caused by giving more than one Exhibit the same
were some errors in the way the engine number and chassis number of
the 2.4 Nissan bakkie was described in the evidence of Pwl4, the
admitted facts Exhibit A and the results of the inspection in loco
done by the court. The only
possible error was that the court had omitted a 3 in the last three
numbers of the engine number. Mr Ntlhoki Counsel for Accused 1, 2, 3,
4, 6 and 7, during addresses, argued that he was entittled to use
Thebe errors to the advantage of the Accused. The court ruled that
since issue had never been joined on the identity of the vehicle, and
the Accused never claimed the vehicle, he could not take advantage of
these minor discrepencies. In any event the Accused had already
admitted the descrption of the vehicle (whatever it might be), and by
consent allowed exhibit A to be handed in. The court further reminded
Mr Ntlhoki that (as an officer of the court) he could not
deliberately allow errors to creep into the record then take
advantage of them.
no doubt that deceased was killed and his vehicle taken and sold to
Lin Min Ren. Whether he was kidnapped before he was killed or was
killed during the taking of his vehicle we cannot be absolutely
certain, we can only make deduction. The fact that deceased was
killed leaves us no room for any other conclusion but that he was
robbed. The list of admissions Exhibit A read with the post-mortem
report leads us to the conclusion that deceased was shot. This was in
June 1997 between 16.00 and 17.00 hours. This might have been on the
17th June 1997 because that is the day on which deceased did not come
home. A white van had been seen going into the Khomo-e-ts-oana donga.
What happened after
not certain. On that day when the white van went in the donga of
Khomoe-ts'oana it came out after dark. It was admitted into evidence
in terms of annexure A that a white van with green stripes at the
side was seen parked by the Khomo-e-ts'oana donga with no occupants
on the 19th June 1997. On the same day the dead body of a white man
with no clothes except an underpant was found in the Khomo-e-ts'oana
issues for determination are who killed this man Pieter Johannes
Groenewald and robbed him of his white Nissan bakkie with green
stripes on both sides below the windows. There is no definite
evidence of kidnapping. Even if kidnapping can be inferred. It is so
much part of the robbery that separating kidnapping and robbery might
amount to unlawful splitting of charges. The possibility of the use
of fire-arms such as the Gallil rifles and short fire-arms such as
pistols is within the realm of possibility. What is lacking is direct
and definite evidence during the robbery. It seems beyond doubt that
either during the robbery or later the deceased was shot with a short
fire-arm such as a pistol or a revolver. It is not difficult to
assume that a rifle was not used because it would have done much more
damage at short range.
court must therefore focus on offences that have been substantiated
adequate evidence. This court is therefore trying a case of robbery
and murder. What this court has to determine is who killed and robbed
Pieter Johannes Groenewald.
already observed that the evidence that connects the Ceska Pistol
Exhibit 3 with the murder of deceased is not satisfactors despite the
sworn affidavit of the late Colonel Telukhunoana that the shell
Exhibit 13 (a) was fired from the Ceska pistol exhibit 3. It was
wrong for the late Telukhunoana to assume he does not have to
demonstrate to the court how he reached this conclusion. With finger
prints, fire- arms and disputed handwritings it is now the common
practice to show the court the marks that led the expert to reach his
In Rex v
Khiba 1979 (1) LLR 92 the court found itself dealing with this issue
of experts. In that case a handwriting was in issue. In that case Pw3
Mr Hugh Allardyce had said the writing of a bank clerk was that of
the second Accused and that second Accused had forged a signature on
a cheque. Rooney J was not prepared to describe Pw3 as a fraud and
charlatan. At page 95 his Lordship said:-
not go so far as to agree with that description, as Allardyce
believed in his own pretensions. But, I do say that he should never
presented in this country as an expert in the examination of
court had occasion to deal with a case in which the late Colonel John
Tlhabi Telukhunoana acted as a fire arm examiner. It was in the case
of Rex v Kubutu Kubutu 1991 - 1996 LLR 975. The court at page 982 was
critical of the fact the court was not provided with magnified
photographs on which the then Major John Tlhabi Telukhunoana based
his conclusions. He had given the impression that the shell (fired
catridge case) might or might not have been fired from the suspected
weapon of the accused. But in court Major Telukhunoana (as he then
was) said even with the naked eye it was clear that the fired
catridge case could not have been fired from the suspected Komando
rifle because its ejector made a deep gash at the back of the shell
or fired catridge case.
case before me there was no clear evidence that Exhibit C2 that was
the photograph intended for evidence had markings similar to those of
the control fired catridge case. Pwl8 again spoke of a mark of an
ejector on the control fired catridge case that he claimed had very
small characteristics of the fired catridge case Exhibit 13(a) that
had been collected from the scene by Pwl5. There was nothing that
related the photograph Exhibit C2 to the affidavit of the late
Telukhunoana. Pwl8 showed me a photograph Exhibit C3 which might have
been a better photograph to draw conclusions from, but it had not
been intended for use in court. With Exhibit C2 there were several
photos that were even distributed to assessors I therefore concluded
that the evidence of ballistic examination was not helpful.
point of difficulty was that of Exhibits that were allegedly found by
Pw14 at a rented room of Tšeliso Mapota where a key had been
allegedly obtained from Makhethang Nkabane. The Exhibits found at
this place were highly incriminating if they could clearly an
unequivocally be linked with any of the accused. We have the evidence
of Pw14 linking Moratuoa Dlamini the wife of Accused 1 and Accused 7.
Among the Exhibits was the deceased's scientific calculator Exhibit 9
on which the names of the late Groenewald are written, a man's wrist
watch Exhibit 11, the black electric lamp with red switch Exhibit 4,
the surveyors telescope Exhibit 5 which were identified by deceased
wife as belonging to the deceased.
Makhetha Thaele who was the Chiefs messenger was not called.
Similarly Makhethang Nkabane would have helped in the corroboration
of Pw14 a single witness who had so much on his hands . This became
clear mistakes in his evidence. Among these was the fact that he
claimed the Nissan vehicle Exhibit 13(b) was found in the presence of
Accused 2 with Accused 2 doing all the talking. No reference was made
to Pw2 Thabo Mphana was made by Pw14 initially. When Pw14 tried to
include Pw2 in the finding of the Nissan vehicle the whole exercise
was not convincing. The evidence of a single witness has to be viewed
with caution. See R v Mokoena 1956 (3) SA 81. This is because in the
evidence of a single witness standing alone there is nothing to check
its accuracy against (R v Abdoorham 1954 (3) SA 163). It is according
to Broome JP a matter of common sense than strict law. I am of the
view that Pw14's evidence is in need of corroboration because it is
not satisfactory in every material respect (R v Mokoena 1932 OPD 79
at page 80). That being the case I am unable to accept the evidence
of Pw14 on how these Exhibits were recovered.
finding of the blue anorak from Accused 2 and the light blue jeans
from Accused 1 suffers from the same defect. It did not help matters
that the ring from the pocket of Accused 2 which was voluntarily
handed to him according to Pw14 was not found by Pw17 deceased wife
as belonging to the deceased. The same is true of the pointing out at
Khomo-e-ts'oana that was videod and photographed at which Pw14
presided. In our civilization this reliance on self-incrimination
relied upon did not help Pw14 as much as he expected. Dealing with
section 229 (2) of the Criminal Procedure and Evidence Act 1977 of
South Africa, which is similar to Lesotho's section of the Criminal
Procedure and Evidence Act 1981 Ackermann JA in S v Sheehema 1991 (2)
SA 860 at page 861 said
pointing out is essentially a communication by conduct and, as such
is a person by a person pointing out. If it is a relevant pointing
out unaccompanied by an exculpatory explanation by an accused, it
amounts to a statement by the Accused that he has knowledge of
relevant facts which Prima facie operates to his disadvantage and it
can thus in an appropriate case constitute an extra -Judicial
admission. It is also a basic principle of our law that an accused
cannot be forced to make self incriminating statements against his
will, and it is therefore inherently improbable that the Legislature
with a view to sound policy, could have had an intention in section
218 (2) of Act 51 of 1977 to authorise evidence of a forced pointing
of Appeal has endorsed the finding in S v Sheehema in the case of
Malefetsane Mabope v Rex 1993-94 LLR & B154 that a pointing out
has to be free and voluntarily. Crown witnesses have given the
indelible impression that what occurred when they were in the hands
of Pw14 was not that gentle and persuasive. Although the accused
tended to exaggerate their ordeal, I believe they have succeeded in
rebutting the suggestion that they were doing those pointing
Exhibit that received attention was the Nissan van Exhibit 13(b). Pwl
testified that Accused 1, 2, 3 and 4 went to sell it in Hlotse
Leribe. Pwl claims to have seen all the Accused in the late afternoon
after his return from where he had gone on business. He already knew
Accused 4 well, a fact Accused 4 concedes. Pwl told the court he was
seeing Accused 1,2, ans 3 for the first time. Accused 1 and 3 even
washed the Nissan van while they were waiting for a meeting with the
Chinese gentleman who was supposed to buy the Nissan van Exhibit
13(b). Pwl does not specify what accused 2 was doing while Accused 1
and 3 were washing the Nissan vehicle, but Pwl and Accused 4 had
during that period at one stage had gone to buy food for the group.
When they returned Accused 1 and 3 had not finished washing the
vehicle. Accused 1 and 3 turned off the tap and the five of them ate
the food Pwl and Accused 4 had bought for them.
Accused 1 and 3 had finished washing the vehicle they went to check
on Thabo Mphana Pw3, they found he had not yet come home. Accused 4
complained it was becoming late. Pwl knew where this Chinese
gentleman lived because he had once gone with Thabo Mphana Pw2 and
Peter Topaz to sell that Chinese gentleman a car. The Chinese
gentleman did not buy the car because he
van. When Pwl and Accused 4 got to the Chinese gentleman,with all the
four Accused the Chinese gentleman refused to do business with them
in the absence of Thabo Mphana Pw3. It would seem, in the
circumstances, that Pwl had had sufficient time to be able to
identify Accused 1, 2, and 3. Although no identification parade was
care should be taken not to trust Pwl because he had been up to the
ears in the transaction of disposing of the Nissan vehicle illegally
without papers. Pwl had been overpaid for his efforts as what he
called a facilitator and where he might have been paid M50.00 he had
been paid M500.00 when the selling price had been M12 000.00, of
which M2000.00 had been immediately paid to Accused 1, 2, 3 and 4 on
the day the said agreement was concluded. Pwl had been paid M500.00
which is 25% of the deposit of M2000.00. In my view it is clear that
Pwl was in the category of an accomplice. Consequently he could not
be trusted. He could conveniently implicate falsely at will any of
the accused because he had an inside knowledge of the illegal
disposal of the Nissan van Exhibit 13(b). See Rex v Ncanana 1948 (4)
I will therefore treat the evidence of Pwl with great caution.
Pwl had another opportunity to see all four accused under the
light when the remainingMl0 000.00 was paid under an electric light
light at night outside Teboho Kou's house. On the previous occassion
Accused 1 had been with the four accused inside Teboho Kou's house
where the deal was struck. Pwl seems therefore to have been in a
position to identify all four Accused and to implicate or not
implicate these Accused in the crime at will for whatever motive. The
court also noted that Pwl at first described the vehicle that he had
seen as a white 4x4, but during evidence he had called it a Nissan
van. The court also noted that he began to sweat during
cross-examination when he was asked to reconcile his statement to the
police with his evidence in court on the taking out of the radio. In
his statement to the police, Pwl had said Accused 4 took out the
radio from the Nissan van. Before this court Pwl had said the radio
was taken out by Accused 1 and 3 on Accused 4's instructions. Pwl
might have been sweating because he might have been running as he
claimed, nevertheless the court noted his discomfort.
Mphana corroborates Pwl about Accused 4's involvement in the sale and
the fact that four people had been to the Chinese gentleman before
sunset. This confirms that the opportunities for Pwl's observation of
the four Accused were good. Pwl is also corroborated by Pw3 that
Accused 1 was identified by a person that knew him in the
neighbourhood of Pwl's residence.
differ on the questions of time and circumstances. Pwl had said he
heard a neighbour call Accused 1 at a time that must have been in the
late afternoon. Pw3 Kotola told the court that it was at 9.am in the
morning when he and Accused 1 met in the morning at his residence.
Accused 1 said he met Pw3 who knew him well in different
satisfied that Pwl identified the fourth Accused and that Pw2 was a
credible witness who gave his evidence well and was not shaken under
cross-examination. With the corroboration in many respect of the
evidence of Pwl by Pw2 about the presence of the Accused 4 and three
people selling the Nissan vehicle, the danger of wrong conviction is
reduced. Accused 1 was also identified by Kotola Pw3 in the morning
with that white Nissan. Pw3 was not shaken on this point. There is no
reason not to believe Pwl that a neighbour called Accused 1 later in
the afternoon. Nor can we disbelieve Pwl when he said the neighbour
had explained to him that he knew Accused 1 from Katse Dam. Although
Pwl positively identified Accused 2 and Accused 3 it is safer that
some corroboration of a circumstantial nature be found to back up
corroborated evidence about the alleged origin of the Nissan vehicle
that was sold to buyers. Pw2 Thabo Mphana told the court that
the other Accused his boys who sometimes had vehicles and lived in
Cape Town. These boys according to Pwl were Accused 1,2, and 3. Pwl0
Michael Molefe whose evidence was not challenged, told the court
Accused 1 and 2 had brought him a Nissan van to buy. They claimed it
was from a man from Cape Town. Pwl0 had told the court that Accused 1
and 2 were with a man he did not know. In cross-examination it was
put to Pwl0 that the third man was from Cape Town. Both Accused 1 and
2 agreed they had been to Pwl0 with a Nissan van with a man from Cape
Town. This assosciation of the Nissan van with Cape Town during seems
not to be a coincidence. People who sold had chosen Cape Town as
their place of origin.
Pwl0 and Accused 1 had not made any suggestion that the man allegedly
from Cape Town was different from them, Accused 2 had said the man
they were with was a white man, later he said was a coloured. Pwl0
had adviced Accused 1 ans 2 to go to accused 4 who might buy their
Nissan van because Pwl0 could not buy it because he was only
interested in a 4x4. Later as Pwl has said Accused 1 and 2 were in
the company of Accused 4 when they sold a Nissan van Exhibit 13(b) in
Hlotse Leribe. This seems strange when Accused 1 and 2 have told this
court that they did not take the advice of Pwl0.
Leuta Mahao also told the court he saw Accused 1, 2, and 3 in a
Nissan van during the time he wanted his father's firearm returned .
Pw4's story that Accused 3 stole that fire-arm is very suspect. This
weapon (though not convincingly established) might be the weapon that
was used to kill deceased. Pw4 might have lent this weapon to Accused
3 or have been actually the perpetrator of the murder of the
deceased. Consequently his evidence has to be treated with great
caution. He claims accused 1, 2 and 3 were friends and had actually
come to drink at Pw4's place.
Mahao on the use of a white van is partially corroborated by Pw5
Thabang Wesley Makole who says in June 1997 at 7.30 am he saw a white
van parked near his house. It was white in colour and green just
below the windows above the doors. It had South African numbers. It
was a van Daccording to his imaginationC, it looked like a Ford
Cortina. In Sesotho to say Daccording to his imagination D means
according to his recollection. Accused 1 and 2 had later come for the
vehicle, they were with a man who looked like Accused 3. Accused 1
was the driver. Pw5 did not deny under cross-examination that the
third man might not have been Accused 3 because it was the first time
he saw that person Pw5 was a mechanic.
that Accused 1,2 and 3 were seen together in circumstances that
reveal that they were not casual acquaintances (as these three
Accused alleged) is confirmed by Pw8. She claimed she saw them
together. It was in May 1997. They were there when Accused 1
threatened to shoot his sister Mannini with the fire arm that used to
be kept by Monate and Accused 3. In June 1997 after Accused 6 and his
companions had raided the premises of Pw8, Accused 7, Moratuoa
Dlamini (Accused l's wife) and detaining them demanding a Government
fire-arm, Pw8 gave Accused 3 a report of this incident. Accused 3 who
was with the Accused 1 and 2 said he had given it back to Accused 6.
This clearly shows that the three Accused were not casual
acquaintances as they would have this court believe.
suggested Pw8 had been intimidated or told by the police to implicate
the Accused falsely. Pw8 told the court that was not true, the bad
treatment she received angered and humiliated her, but she was never
afraid of the police. Pw8 impressed me as being a truthful witness
who had nothing to hide. I am satisfied Accused 1, 2, 3 and 7 were
not truthful in saying what Pw8 was saying was false. They were
distancing themselves from the truth because there were things they
did together. They had been constant companions during June 1997 as
Pw4 Leuta Mahao,Pw5 Thabang Makole, Pwl and Pw10) have shown accused
2 as having
the company of Accused 1 oftener than they would have us believe.
therefore that Accused 1, 2 and 3 were in fact seen in the Nissan van
exhibit 13(b) which they later sold to a Chinese gentleman Lin Ming
Ren in the company of Accused 4 and Pwl.
Accused 1 there is also the evidence of Pwll that he left a light
brown multicoloured jersey ID4 which was later marked Exhibit 14 (a).
Pwll took a bag from Accused 1 to Accused 7 Thato Mosili. Later Pwl2
says he recovered yellow shoes Exhibit 1 from the late Maputsoane or
Mannini which Pwl2 had told Maputsoane he had information that
Accused 7 had brought those shoes there. Both Maputsoane or Mannini
and Accused 7 Thato were the sisters of Accused 1. Exhibit 1 the
yellow boots and the light brown multi coloured jersey ID4 or Exhibit
14(a) were identified as the property of the deceased Pieter Johannes
Groenewald. Although Pwll might have been under pressure to distance
himself from this multi-coloured jersey, his evidence was credible.
was at pains to distance himself from the Nissan van Exhibit 13(b).
The evidence of Pwl is corroborated by that of Pw2. On the taking of
the radio of the Nissan vehicle, Pwl is corroborated by Pwl9 who is
law. I believed Pwl9 she had no reason to give false evidence against
Accused 4. It will also be noted that Pw2 was found to be credible,
therefore counsels for defence largely pointed out that he was
not deal with evidence against Accused 6 because it is insufficient
to support conviction for crimes in respect of which he is charged.
Accused 6 is shown by uncontroverted evidence to have lent the Gallil
rifle to Accused 3 and possibly Monate a long time before the crime
was committed. Accused 6 desperately looked for the fire-arm and was
among the people who detained Pw8,Moratuoa Dlamini (the wife of
Accused1) and Accused 7 (the sister of Accused 1) demanding its
production. According to Pw8 that was because Accused 6 claimed some
crime had been committed with that Gallil rifle. There is not even
any direct or clear evidence that this Gallil rifle was used in the
commission of any crime.
has very little that really implicates her in the robbery, and the
murder. She could be said to have received the yellow shoes Exhibit
1. These were mens shoes and she lived with Accused 1. These shoes
were produced by the late Mannini. It is hard to say she had any
intention to steal or receive these shoes knowing them to be stolen
because they are men's shoes. There is evidence from
Accused 1 sent her a grey bag which contained some things. Accused 7
is a liar and has shielded his brother Accused 1 who is connected to
the possession of deceased's Nissan van Exhibit 13 (b) and light
brown multicoloured jersey ID 4 or exhibit 14 (a). It seems to
me she should not simply be convicted because she is a liar. She is
therefore given the benefit of doubt in respect to all charged.
satisfied that Accused 1, 2 and 3 are guilty of robbery in respect of
the deceased's Nissan Van Exhibit 13 (b) which they sold to Lin Ming
Ren. They are also guilty of murder of the deceased either as
principal offenders or as accessories after the fact.
who became their partner as soon as they approached him participated
in the selling of the Nissan vehicle is guilty of receiving stolen
property knowing it to be stolen. He received the money, paid
facilitators of the sale of the vehicle namely Pwl and Pw2. M1000.00
each. Accused 4 had not bought the Nissan van as Pwl0 had suggested,
he joined the partnership for the sale of the Nissan van belonging to
1, 2 and 3 are guilty of murder as charged.
1, 2 and 3 are guilty of robbery as charged.
4 is guilty of receiving stolen property knowing it to be stolen
6 and 7 are given the benefit of the doubt and are found not guilty
and are discharged.
: Miss Nku
Accused: Mr. Sooknanan Mr. Phafane Mr. Ntlhoki
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