HIGH COURT OF LESOTHO
by the Honourable Mrs. Justice K J. Guni On the 25th Day of October.
accused is charged with the crime of murder. It is being alleged that
on the 8th day of July 1997 at MPHARANE POLICE POST, in the district
of MOHALE'S HOEK, the accused did unlawfully and intentionally killed
THAKHISA BOTSANE. The accused is one of the members of the LESOTHO
POLICE SERVICE. He was also one of the four or so members of the
LESOTHO POLICE SERVICE who were
at MPHARANE POLICE POST at the time of the commission of the alleged
BOTSANE was arrested together with three others as suspects in a
stocktheft case NO.CR 14/7/97. The report was made about the alleged
stocktheft of two sheep of one JAPHTA on Sunday the 16th July 1997.
There was only one police officer on duty at this POLICE POST of
MPHARANE on that day. The officer commanding that post, instructed
one of the off duty officer —trooper LESOLI to assist trooper
MOHLAKOANA who was the only one on duty that Sunday. The two troopers
followed up that report of stocktheft by going to the village called
LIKHUTLONG, the very same Sunday the 6th July 1997.
Sunday three suspects were arrested at LIKHUTLONG and they were
brought to MPHARANE POLICE POST. Those arrests were made by the two
troopers LESOLI and MOHLAKOANA. The suspects arrested on Sunday the
6th July 1997 were:- 1) THABO MOSENOLI, 2) NKOKO PAKELA and
of these three suspects were entered in the OCCURANCE BOOK and Cell
Register ON THE 6™ July 1997, in respect of stocktheft case NO.
the 7th July 1997 these three suspects were released but taken back
to their village on indications. The two troopers:-LESOLI and
MOHLAKOANA continued with their investigations of that stocktheft
case. Further arrest were made. The newly arrested who were entered
in both the cell register and OCCURANCE BOOK for the first time
BOTSANE - Deceased in our case.
RAMATHESEALA MASENOLI who was arrested on Sunday the 6th July 1997
and released that Monday morning of the 7th July 1997, was re
arrested and his name re-entered in those two Books (i.e. cell
register and Occurance Book). These are the four suspects whom the
two troopers LESOLI and MOHLAKOANA brought with them when
returned from patrol at LIKHUTLONG village on the 7th July 1997.
four suspects were locked up together in one cell on the night of the
7th July 1997. As appears from the evidence led before this court
that was the only cell at that POLICE POST. MPHARANE POLICE POST
charge office consisted only of two rooms. One room is used as a
radio room and an office for the Officer Commanding that POLICE POST.
The other room is a charge office to which this cell is attached with
the entrance therein behind the charge office counter.
morning on the 8th July 1997 one of those suspects in the stocktheft
case was found dead in that cell. The deceased is THAKHISA BOTSANE
described in the post mortem as an old man of sixty (60) years of
age. The post moterm repot shows that he died as a result of multiple
ribs fractures and chest haemorrhage. The ribs perforated his right
pleurae in which there was about 300 mls of blood. On the left side
of his chest the broken ribs perforated the pleurae in which there
was - + 200 ml of blood. The deceased's body
was covered all over with multiple lacerations. The left side of his
face was swollen, including the jaws and eyes.
no direct evidence linking this accused with the death of the
deceased. All evidence is circumstantial. The crown case seems to
suggest that the accused was seen taking the suspects into the office
of the Officer Commanding for interviews. The accused admits that he
did question the suspects privately one at the time in that office of
the Officer Commanding the Post.
the interview of THAKHISA BOTSANE - deceased, PW2 is said to have
heard some kind of commotion going on, in that office. He went to
check. On arrival in that office he found the accused holding the
deceased by his shoulders - pushing him against the door - that door
went bang bang .... PW2 told this court that he asked the accused to
stop doing that. The accused ignored him and continued questioning
the deceased in that fashion. This witness waited for the accused and
the deceased to move away from the door. They moved away. He opened
the door and left. He did not only leave the room
left the premises of the POLICE POST, the camp and the village for
the night. The questioning of the suspects in the stocktheft case by
this accused took place for the first time between 4-4.20 p.m.
Trooper LESOLI - PW1 signed on duty at 4.30 p.m. when PW2 knocked
off. The interviews took place in the presence of both these
trooper LESOLI - PW1 was at the scene of the alleged offence longer
than any witness. Although he was officially off duty since Sunday
the 6th July 1997, he was asked to assist trooper MOHLAKOANA - PW2 to
follow up the report about stocktheft. Having been involved with the
initial investigations he continued the following Monday to release
those arrested on Sunday. He and PW2 escorted those released suspects
back to the village of LIKHUTLONG. There they made arrests. They
returned with those suspects plus one RAMATHESELA MOSENOLI who was
re-arrested. When PW2 knocked off at 4.30 p.m, PW1 - trooper LESOLI
remained for night duty till (10.00) ten o'clock at night when he
handed over to Sgt. MAHULA.
troopers - (PW1 and 2) returned from patrol at LIKHUTLONG having
arrested four (4) suspects at about (12-1) twelve and one o'clock
that afternoon of the 7th July 1997. The four suspects were given
utensils, pots and foodstuff to prepare and eat their evening meal
They cooked and ate their food. Thereafter they were locked in the
cell for the night. On the 8th July in the morning the deceased -
THAKHISA BOTSANE was found dead in that cell.
the deceased die? According to the post mortem examination report,
the circumstances surrounding his death are suspicions. In the
autopsy report the doctor has remarked that the circumstances of the
deceased's death suggest some kind of criminality or culpable
neglect. There is no direct evidence to show this court that the
accused killed the deceased in this case. This court is being urged
to draw an inference from the surrounding circumstances of this case
that the accused is guilty of this murder.
is entitled to draw an inference if that is the only possible
inference that can be drawn from the established facts. R V BLOM 1939
AD 288 at 203, S V SETSETSE 1981 (3) SA 353 (A) at 369 -70. In this
two cases two "Cardinal rules of logic" which govern the
use of circumstantial evidence in criminal trial, were set out as
inference sought to be drawn must be consistant with all the proved
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn.
suggestion emerging from the evidence of the crown witness seems to
be that this accused was suspected to have assaulted the deceased and
the deceased has died from the injuries presumably caused by the
accused. This is a bad or poor case. PW1 who is the police witness
who was with the suspects, one of whom was found dead, longer than
all the policemen who could have witnessed what took place at that
POST has not seen any criminal act being perpetrated by the accused
against the deceased.
entered the charge office from the outside he saw the accused trying
to lock himself up in the cell with the suspects. He then observed
PW2 restraining him from doing so. Apparently PW2 succeeded to stop
the accused from locking himself in the cell with those suspects. PW1
then saw the accused take the suspects one by one into the office of
the Officer Commanding that POLICE POST. According to PW1 the accused
took out of the cell in the manner described above all the four
suspects only after he had been to his residence and had taken off
his uniform. This episode must have happened before 4.30 p.m.,
because trooper MOHLAKOANA had not yet knocked off as he had just
intervened to stop the accused from locking himself up in the cell
with those suspects. That is presumably why the accused now took
those suspects out of the cell for questioning as indicated above.
accused left after the first session of interrogating the suspects.
It could possibly have been around five o'clock because only trooper
LESOLI who has signed on duty at 4.30 p.m., was left at the charge
office with the suspects in the police cell. Later on at about 6-7
p.m., when there was still no other police officer on duty or present
except trooper LESOLI, THIS accused came back to the charge office.
LESOLI saw with his own eyes this accused open the cell door and took
out the deceased. According to this witness, the accused this time
was in possession of a sjambok. The accused put the deceased on the
chair next to the cell entrance. This witness observed that the
deceased was experiencing difficulties to speak. This witness is one
of the troopers who arrested and brought the deceased to the POLICE
POST charge office that very same day. He had not observed at any
time that this suspect - THAKHISA BOTSANE had any difficulties to
speak. The deceased had been speaking very well that day until this
time 6-7 p.m. as the witness observed. The only question the accused
is alleged to have asked the deceased at this juncture was, "where
are JAPHTA'S sheep?" The deceased could not
The accused attempted to force the deceased to speak. He orders him
to speak. He tried to assault him. Presumably using that sjambok! But
this witness intervened and stopped him. The accused returned the
deceased back into the cell and he there and then left the charge
office. He did not return till the next morning when the alarm was
raised about the death of the deceased.
appear that each time the accused took out of the cell the deceased
he attempted or actually assaulted him. Every time there was someone
who witnessed what actually took place. The first time when the
accused was allegedly assaulting the deceased in the office of the
Office Commanding, PW2 intervened. According to the evidence of PW2,
the accused held the deceased by the shoulders and he was pushing him
against the door. By knocking the deceased against the door that
caused the door to bang. How did the witness go in and out while the
door was being used in that manner - accused banging the deceased
against it? The witness conveniently found the opportunity to open
that door each time when the accused and the deceased moved away from
it. The accused however denies that
of that sort happened. He denies assaulting the deceased. He denies
that PW2 intervened. He denies manhandling anyone of those suspects
including the deceased.
accused told the court that all the suspects admitted the charge of
stocktheft. He interviewed them separately. He did so in order to
determine the proprietary of their intended tender of plea of guilt
to the charge of stocktheft as reported by the two troopers. The
stoktheft Unit there at MPHARANE POLICE POST consisted only of two
members of the Lesotho Police Service. Of those two members the
accused was the most senior. He told the court that as the officer
responsible for Stock-theft Unit, he wanted to satisfy himself about
the proprietary of the accused's tender of a plea of guilty. He
wanted to find out from the suspects if perhaps they had been
improperly influence to plead guilty. The accused said there was no
need to assault the suspects who were only waiting for the next
morning to tender their plea of guilty before court. On this point
the accused and the two troopers who investigated the stocktheft case
and arrested these four (4) suspects agree. All four suspects had
admitted theft of
two sheep. Only two of those suspects testified against the accused
in this case. According to both PW3 and 4, they never admitted theft
of JAPHTA'S sheep. It seems all the suspects denied that charge.
According to the investigating officer of this murder charge, the
docket in respect of that case CR 15/7/97 was closed due to lack of
evidence. The two troopers PW1 and 2 were certain in their evidence
that the suspects were ready and waiting only for the next day to
tender their plea of guilty to the charge of stocktheft regarding the
disappearance of JAPHTA'S sheep. How on earth can the docket in
respect of the same case be closed for lack of evidence?
a lot of discrepancies in the facts of the case against this accused.
According to the evidence of two of those suspects who were in the
cell that night with the deceased, they were locked in there by this
accused. His conduct was very rough and abusive of their rights. PW4
- RAMAHOTETSA MOSENOLI testified to the effect that this accused
arrived at the POLICE POST MPHARANE while all the four suspects were
still sitting outside the office. They had finished cooking their
meal. They were now eating or preparing to
the accused arrived. He kicked their food and kicked them too. He
pushed them into the cell at the same time punching them with fists.
He ordered them to stand against the cell wall. He punched TALE who
was infront of them all as they ran into the cell. As they stood
against the wall the accused asked PW4 "What's put you here?"
where is JAPHTA'S sheep? " and ordered him to speak up. He was
obviously not getting any replies to his questions. PW4 replied that
he knows nothing regarding JAPHTA'S sheep and their disappearance.
The accused then grabbed hold of PW4 by his blanket around his neck
and pushed him against the wall. The accused said to PW4 "you do
not want to tell the truth." He hit him with a fist on the lip.
The accused pulled this witness out of the cell and put him in the
office of the Officer Commanding while in there he asked the witness,
"where are JAPHATA'S sheep? The accused insisted that this
witness - PW4 has eaten JAPHATA'S sheep and must disclose the place
where he ate the sheep. It would appear that PW4 had been taken out
of the cell when those questions were asked to him. The manhandling
of this witness by the accused in denied.
treatment of the suspects according to PW4 went on against all four
of them. PW4 was grabbed hold of by his blanket around the neck. He
was pulled and shafted back into the cell. The other suspects asked
PW4 what was happening. PW4 said to them "my country man, this
man is fighting." Just as PW4 spoke those words, the accused
re-entered the cell. This time he grabbed hold of TALE by his blanket
also. He then tried to punch TALE with the fist. TALE dogged the
accused's fist and grabbed the accused's hand. TALE ASKED THE ACCUSED
THUS:- "Are you fighting? Why are you not telling me the wrong
that I have done?" At this juncture the accused let go of TALE.
It appears from this evidence by the cell-mates that TALE was never
taken out of the cell. According to the POLICE witness - PW2 and 2
all the four were taken out of the cell one by one until all four had
been interviewed by the accused.
accused dropped TALE he is alleged to have proceeded to grab hold of
NTALA. He held him by his blanket at the neck area and pushed him
against the wall. He was hitting NTALA'S head against the wall. Ntala
appealed to the accused not to do that.
pointed out to him that he has a steel plate or metal piece in his
head and if his head is banged against the wall that plate will be
displaced. The accused asked NTALA if he is a thief. Ntala persisted
to tell the accused to desist from banging his head against the wall.
The accused dropped him and proceeded to the next man. So this one
was not taken out of the cell according to this evidence.
and last person the accused grabbed hold of was the deceased -
THAKHISA BOTSANE. The accused pulled THAKHISA BOTSANE out of the
cell. He went to the Office of the Officer Commanding the Police
Post. He left the rest of the suspects locked up in the cell. After a
while they came back and the accused shaft THAKHISA BOTSANE into the
cell. THAKHISA BOTSANE fell on his knees. The accused went perhaps
after closing and locking the cell door behind him. Shortly
thereafter the accused returned. THAKHISA BOTSANE had just got up
from his knees. The accused pulled him out again and locked the cell
door after closing the rest of the suspects there in. There is hardly
any considerable interval as the deceased has just sat down.
Comparison must be made on the time
between the evidence of the cell-mates of the deceased and the
policeman on duty at the time - PW1. PW4 claims to have head THAKHISA
BOTSANE cry out once saying! "father you are killing me. There
is a huge discrepancy. Mind you according to PW1 the only eyewitness
of this episode, the deceased could not speak. PW4 estimated that
something like five minutes passed. During this five minutes interval
there was absolute silence. Then they (suspects) heard the cell door
open. THAKHISA BOTSANE who was being pulled on the floor was naked
except for his underpants. The accused threw him into the cell and
went away. He left the cell door a jar. He returned in possession of
THAKHISA BOTSANE'S clothes. He threw them into the cell. It was his
pair of trousers and his blanket. There is no talk of shirt or
jacket. In winter and in those mountains the suspect seemed to have
worn an underpant, a pair of trousers and blanket only.
deceased's cell mate claims that THAKHISA BOTSANE told them that this
man has finished him, he asked MOKETE to assist him by putting on his
clothes. Ntala assisted by Mokete put
BOTSANE'S clothes on him. They laid him down to sleep and support his
head with a blanket. They all slept the whole night until the morning
of the 8th July 1997.
a few strange happenings in this episode. According to PW4 during the
night THAKHISA BOTSANE was groaning. Mokete asked the other suspects
if they are aware. Ntala replied that they are but because of
darkness there is nothing they can do. So ±ey slept on till
the morning. In the morning they shook THAKHISA BOTSANE to wake up.
Realising that he does not wake up they knocked at the door -
claiming that they need to use the toilet. The door opened. Three
suspects went out. Sgt. MAHULA asked them about the 4th one. They
replied that he is in the cell but was not moving. He ordered them to
wake him up. NTALA went back. He shook THAKHISA BOTSANE. He came back
and told Sgt. MAHULA he thinks that THAKHISA is finished. MAHULA went
into the cell. He came back and asked the suspect what happened. They
claimed that they do not know but there is a policeman whom they can
identify, who should know what happened. This is incredible. The
pretence of ignorance is
There is no cohesion in the facts alleged. Why did they knock at the
door when they could not wake up the deceased? Could they have wished
to assist the deceased? Why do they lie?
which this court is urged to draw an inference from are unreliable.
The accused is alleged to have taken the deceased -THAKHISA out of
the cell twice on that day. In the first instance PW2 heard a lot of
commotion going on in the Officer Commanding's office. He went to
check. He was the policeman on duty. PW1 although official off duty
he was still present at the charge office because he was the one
instructed by their superior officer to assist. Despite his presence
there it does not appear in his evidence that the hear the alleged
noise of something banging against the other. Those suspects who were
left in the cell did not hear the commotion. They heard a single cry
the second time when this accused had taken the deceased into that
office of the Officer Commanding.
evidence of the only policeman on duty when the accused took the
deceased out of the cell the second time, the accused
take the deceased into the office. He places him on the chair just
outside the cell by its entrance. That's why then they could hear him
cry, "father you are killing me." But according to PW1 the
deceased could not speak. How did he utter the cry if he could not
speak? According to the fellow detainees or suspects the accused and
the deceased were gone for a long time - longer than before.
Estimated as about (7) seven minutes. He was brought back naked and
unable to walk. According to PW1 he was on that chair long enough to
be asked just one question. Which he did not answer. The accused
tried to force the deceased to speak. He attempted to assault him but
he was stopped by PW1. Immediately he returned the deceased back into
the cell. He does not talk of the deceased being pulled back into the
cell naked. PW1 does not talk about the removal of the deceased's
clothes. Where, when, and how were the deceased's clothes removed?
mature adult Basotho men claim that they slept with the deceased
groaning and grieving until he died without them noticing because
there was nothing they could do in the dark. This is
Although the accused was seen in possession of a sjambok, he was
never seen using it upon the deceased or anyone. According to PW1,
the accused left immediately PW1 stopped him from questioning the
deceased and attempting to force him to speak. Where and how did the
deceased get lacerations all over his body. It should be there in the
cell during that night.
fellow detainer testify to the decease's inability to walk. He was
pulled into the cell. According to PW1 the deceased was returned into
the cell from the chair which he was sitting on outside the cell.
There was disability which the deceased suffered. The police witness
PW1 puts the disability in the deceased's mouth. He could not talk or
could talk but not walk. Which is which? The confusion and
contradictions paint the most unclear picture. I am unable to put
these pieces of evidence together. There is totally no cohension in
the facts. LEBOHANG LETLAKA V THE CROWN C of A (CRT) N0.3 2000. In
the circumstances the court is not entitled to draw any inference.
accused admitted taking the deceased for questioning. There is no
evidence that he assaulted him. I reject the alleged assault in the
evidence of PW2. Apart from saying that the accused was pushing
repeatedly the deceased against the door there is no evidence of
serious assault that could have resulted in multiple rib fractures
-multiple laceration all over the body.
handover take over between Sgt. MAHULA and trooper LESOLI AT 22.00
HOURS. According to the detainees he the deceased could not move from
approximately 7p.m. when the accused last took him out of the cell.
According to the police at 10. P.m. when Sgt. MAHULA took over and
signed for duty he was handed all the detainees in healthy condition.
PW1 told him about the deceased's difficulties to speak. It was
nothing major. They did not seek help. The bleeding wounds were not
seen by those policemen who were with the detainees at MPHARANE
POLICE POST charge office all the time. They never testified to the
disarray of dockets and files in the office of the Officer
Commanding. They work at that station all the time. They should know
better the condition of their office. Although
testified as to the commotion he heard therein, he never testified
about seeing blood or wounds on the deceased. Could that have
occurred after he left. Why did he not report to the superior who
could have arrested the accused?
a doubt as to who cause the deceased the injuries he died from. There
is no evidence supporting the allegation that the accused, could have
caused such injuries. The suggestion that the other detainees
especially considering their attitude - playing not just innocent but
ignorant to detect when a person is dead raises suspicion that they
are the ones who assaulted the deceased.
I find no
evidence on which to convict this accused of the offence charged or
any other offence.
found not guilty and discharged.
- Messrs. Motsamai and Loko
Maqutu for - Crown
Mafisa for - Accused
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