HIGH COURT OF LESOTHO
LIPHOTO Accused No. 1
PELEA Accused No.2
by the Honourable Mr. Justice M.M. Ramodibedi On the 20th day of
of the 18th day of August 1995 will no doubt go down as one of the
bleakest days in the history of a tiny, but apparently popular,
restaurant known as Roberto Restaurant at Roma in the district of
Maseru. It was on that day that Edward Fobo (the deceased) was shot
and killed while enjoying beer drinking with his friends. Following
this incident, the two accused, Liphoto Liphoto (A ) and Lehlohonolo
Pelea (A ) have appeared before me charged with the murder of the
mention at the outset that A1 was discharged at the end of the Crown
case on the ground that there was no evidence
which a reasonable man might (not should) convict and Miss
Mofilikoane for the Crown very fairly and properly conceded this
commencement of the trial the defence made the following formal
admissions in accordance with Section 273 of the Criminal Procedure
and Evidence Act 1981:-
facts as deposed to in the preparatory examination depositions of
PW2 Motloang Mohapi, PW4 Lineo Ramokoena, PW5 Louis Fobo, PW7
Detective Trooper Mahlehla and PW8 Detective L/Sgt. Tsiu.
post mortem report Exh "A" in terms of which it was
admitted that the deceased had sustained a "gunshot wound at
the cervical neck, fracture of cervical bone seen". It was
further accordingly admitted that the cause of death was the gunshot
wound to the neck.
the facts as deposed to by PW2 Motloang Mohapi at the preparatory
examination disclose the following :-
at Roma and is employed at the National University of Lesotho (most
probably as a night watchman - He himself did not explain). He knew
A1 and the deceased "very well". He usually saw A . On the
night in question he was on duty at the university and was standing
under an electric light about 35 metres across Roberto Restaurant. He
saw people coming out of the restaurant and standing outside. After
sometime he heard a gun
did not count how many times the gun sounded but there were two
different sounds. After the gun sound the deceased went out of the
group of people who had come out of the restaurant and ran away. He
subsequently fell down after coming down the stairs of the
restaurant. The deponent then approached the deceased and was "aware"
that the latter was no longer breathing. He went to report the
incident at Roma Police Post. He came back to the scene of crime with
the police who examined the "corpse" and took it to the
mortuary. The deceased was bleeding from the head and there was blood
on his chest. He had bled "heavily".
admitted facts as deposed to by PW4 Lineo Ramokoena at the
preparatory examination are briefly that she lives at Mafikeng. She
knew both the accused and the deceased. On the night in question at
about 8.00 p.m. or 9.00 p.m. she was at Roberto Restaurant to buy
food. She then heard a gun sound following which she went outside
where she saw the deceased running and falling down under an electric
light. PW1, Bonang Maama came running after the deceased and said to
him "let us go". The deponent then realized that the
deceased was too heavy for PW1 to carry. She came closer and saw that
the deceased was bleeding from the neck. PW2 Motloang Mohapi came
with a car to
of crime and he went to fetch the police who came and examined the
"corpse" and took it to the mortuary.
stated, the admitted facts of PW5 Louis Fobo at the preparatory
examination show that he lives at Roma, Mafikeng. He knew the
deceased who was his younger brother. He also knows the accused. On
the 23rd August 1995 he went to Queen II (apparently Queen Elizabeth
II Hospital) and on arrival there he examined the deceased's corpse
in the presence of the hospital employee before a post mortem
examination was performed. He saw a wound on the deceased's forehead
and on the neck. He had always been with the deceased who was a
the admitted facts as deposed to by PW7, No. 7509 Detective Trooper
Mahlehla show that he is a member of the police force stationed at
Roma and he is one of the investigators. He knows the accused. On the
18th August 1995 he was at home at Roma Police Station when one
Setlolela arrived and gave him a report which he followed. He went to
Roberto restaurant where he found a corpse with many people gathered
thereat. Examining the corpse, he saw that it had an open wound on
the neck. He looked for the cause of death but was unable to find
anything. He then
corpse to Queen II (once more presumably Queen Elizabeth II Hospital)
mortuary. Before taking it away he realized that it had bled
"heavily". The deceased had fallen face down and the corpse
did not sustain any other injuries on the way to the mortuary.
admitted facts emanating from PW8 No. 3326 Detective Lang Sgt. Tsiu
show that he is a member of the police force stationed at Roma. He is
the investigating officer in this case and he knows the accused
before court. Lehlohonolo Pelea is employed as a soldier. On the 21st
August 1995, while on duty, he received a report that a person had
been shot at Roberto restaurant. He proceeded there on the 22nd
August 1995 and saw blood outside the house where he learned the
deceased had been lying (he was no longer there). He found a gallil
shell and another shell belonging to a pistol 7.65. His
investigations led him to the suspects A1 and A . He arrested
Lehlohonolo Pelea (now A ) at Lesotho Defence Force camp on the same
day namely the 22nd August 1995. He then went to Katlehong to arrest
Liphoto Liphoto (now A1). Lehlohonolo Pelea (A2) handed over to him
the rifle No. L701753 with 19 rounds of ammunition while Liphoto
Liphoto handed to him "rifle" 7.65 No. 5853344 with 8
rounds of ammunition. It is
common cause that the deponent was in fact referring to a pistol and
not a rifle as suggested.
deponent then took the accused to the police office. He warned them
and they made an explanation after which he gave them a charge of
murder. The exhibits were kept by the police and they were taken to
Makoanyane camp where they were examined. The gallil rifle with its
19 rounds of ammunition and the empty shell, as well as that of 7.65
pistol were marked Exhibit "1" collectively.
witnesses were led at the trial in support of the Crown case namely
PW1 Bonang Maama, PW Relebohile Liphoto and PW3 Dyke James Thaanyane.
evidence of PW1 Bonang Maama discloses that he is 28 years old and
lives at Roma, Ha Mafefooane. He is single and literate having gone
as far as COSC at school. He is a driver and he knew the deceased in
his lifetime as they lived in the same village. He also knows both
accused. A1 is his own co-villager while A was his schoolmate.
It is the
evidence of PW1 that on the fateful night in question he was at
Roberto Restaurant in the company of the deceased and one Zimbabwean
called Farai. It was at 8. o'clock in the evening. The latter had a
discussion with a certain girl (no doubt Lineo Ramokoena referred to
above) and in due course a decision was made by the group to go and
make a "sit in" within the University Campus. As they left
for this place however a little problem arose in that the girl in
question went and sat in a motor vehicle driven by one Matsoso. It
was at this stage that Farai, who could not speak Sesotho, asked PW1
to confirm with Matsoso whether the girl in question was still going
to the "sit in".
PW1's evidence that Matsoso opened his window so that he (PW1 ) could
speak to the girl in question but that even before he could talk to
the latter, Matsoso hit him with the door of the vehicle. PW1 fell to
the ground. Matsoso alighted from the vehicle and fought PW1 with
fists. The latter fought back assisted by his companions.
stage A1 and A2 appeared on the scene and inquired whether PW1 and
his companions were the ones who could fight their friend Matsoso. A"
went to the boot of the vehicle and took
out a big
gun and shot at the deceased who fell down. Yet in the same breath he
says that when the deceased was aware that A was going to fetch the
gun he (the deceased) ran away. I should therefore state at the
outset that for me these may be early warning signs of an untruthful
to the evidence of PW1, it turned out that, according to his own
evidence, at the time A allegedly took out the gallil rifle from the
boot of Matsoso's vehicle he (PW1) was actually "wrestling"
with A1 in a bitter fight. It was during this time when the gunshot
whether he saw where the gun was pointing, PW1 was emphatic that he
did not see the direction where the gun was pointing adding: "I
just heard the sound". If that is so, I cannot understand then
why earlier on PW1 claimed that A took out a big gun and "shot
at the deceased". I have no doubt that he was exposed as a liar
on this point even before cross-examination began.
PW1 was taken to task in cross-examination about his allegation that
A shot the deceased. The very first question put to him by Mr.
Ntlhoki for A went as follows:
"Q: Before we go any further, A2 says he never shot at the
deceased that night. What do you say to that?
A: I would say he shot him.
Q: You did not see A2 shoot at deceased?
A: That is so
Q: In fact you were so busy yourself engaged in a fight with Liphoto
(A1) that you didn't see?
A: That is incorrect.
Q: So you were fighting and at the same time trying to take stock of
what was happening around you?
A: I was not fighting.
Q: In your own words you said you were wrestling with Liphoto (A1)?
A: Yes that is correct."
view, the little exchange referred to above clearly exposed PW1 as an
untruthful witness. However he was ultimately driven to concede,
under the pressure of cross examination, that his wrestling with A1
went on until after the gunshot in question and that they only
separated after the gun report. Yet despite this concession he still
persisted in his denial to the defence suggestion
was so busy wrestling with A1 that he could not see what was
further concede in favour of A2 , and for the first time in
cross-examination though, that both A1 and A2 came on to the scene
"trying to stop the fight." He coneedes furthermore that
the first thing A2 did was to get hold of the deceased "to
separate him from Matsoso". Indeed to drive the point home the
following question was put to PW1 by Mr. Ntlhoki:
"Q: Really all, he (A2) was doing was to try to stop the
skirmish, the fight?
A: That is correct.
Q: A2 says on that day there was nothing that went wrong between them
(i.e. A2 and the deceased). That is they didn't even fight or
exchange verbal insults?
A: I said they had come to intervene. They didn't fight."
response quoted above must be judged in the light of his earlier
version that A went to the boot of the vehicle, took out a big gun
and simply shot at the deceased. This seems highly improbable if, as
PW1 himself now says, A and his companion had come to intervene and
were in fact not fighting. It should, for that matter, be noted here
that PW1 himself concedes that A2 and the
were such close friends that they used to call each other
"motsoall'aka" (my friend).
not dispute the defence version that a lot of people had gathered at
the scene of crime at the time the deceased was injured. Nor does he
deny that this crowd of people approached A "bellingrently"
despite the fact that the latter duly identified himself as a soldier
and was by then holding a gallil rifle. More importantly PW1 does not
seriously dispute the defence version and sequence of events that
indeed A seized Matsoso's gallil rifle from the vehicle in question
and fired in the air once "as a warning shot." All PW1
could say is that he heard "about" two sounds.
PW1 is adamant that A is the only person who discharged a firearm at
the scene of the crime on that fateful night. As will become clear in
the course of this judgment, I do not believe him on this issue in
the same way as I do not believe him on his version that he saw A
shoot at the deceased. I bear in mind two further factors that count
against PW1 namely that he concedes that it was dark on that night
(apart from some electric light coming from the university campus)
and that he had consumed beer, although he was conveniently evasive
as to what amount of beer he
taken, hiding almost arrogantly behind the reply that he does not
count cans of beer when he is drinking.
material facts testified to by PW2 , Relebohile Liphoto, are brief
and can be summarized as follows:-
He is an unmarried man of 28 years of Roma in Maseru district. He
presently resides at Moshoeshoe II in Maseru urban area. He knew the
deceased in his lifetime. He also knows both accused. Significantly
A1 is his own elder brother.
It is the
evidence of PW2 that on the evening of the 18th August 1995 he
visited Roberto Restaurant at about 8.30 pm. There he sat in the
company of A1, Matsoso, Chabeli Moeletsi, Potsane Lelala and A . They
were drinking beer.
9 o'clock the same evening PW2 heard a scuffle outside as if there
was a fight taking place. It was then that he realised that Matsoso
was no longer in their company. He went outside with Potsane Lelala
and Chabeli Moeletsi to investigate what was happening. It was then
that they found Matsoso lying prostrate and unconscious on the steps
leading to the restaurant.
It was at
this stage that PW2 and his companions tried to stop the fight by
separating those who were fighting. Both accused then appeared on the
scene and it is the evidence of PW2 that A2 became very angry when he
realized that Matsoso had sustained injury. He says that he (A2) took
out a big gun from the vehicle and pointed it at all the people who
were gathered there including the deceased. The gun was similar to
the gallil rifle Exh "1" before court.
testifies that while A2 was pointing the gun at the people gathered
there he (PW2) became aware that A1 was having a fight with PW1 a few
paces away from him. Significantly, he testifies that A1 was armed
with a "small gun" which he further describes as a pistol.
stage PW2 tried to stop the fight between A1 and PW1 by separating
them. While in that process he heard a sound of a big gun "about"
two times. The sound came from behind and as he turned around, he saw
A holding a gun which was pointing in the direction where the
deceased was subsequently found lying down.
extent that the Crown seeks to rely on circumstantial evidence on the
issue of the alleged shooting of the deceased it
noted here that PW2 contradicted himself badly under cross
examination by Mr. Ntlhoki and thus seriously dented the impression
he had created in the preceding paragraph. It proves convenient to
reproduce the line of questions on this point:-
"Q: He (A ) goes further to say that you did not see him
pointing at anybody with the rifle because according to your evidence
in chief you were now too busy trying to separate PW1 and A1?
A; Before I separated them he had pointed the gun.
Q. Assuming that is correct, without conceding, when A2 fired a
warning shot you didn't see where his gun was pointing because that
was the time you were separating PW1 and A1?
A: He did not fire a warning shot.
Q: My question is: At the time you heard a gun report of a big gun
you did not see where the gun was pointing because you were busy
separating PWl from A1?
A: That is true."
Thus encouraged, Mr. Ntlhoki naturally delivered the following killer
blow in the next two questions in his attempt to expose PW2 as a
"Q: So you cannot even say with any measure of conviction that
when the big gun was fired it was pointing at the deceased?
A: That is so.
Q: At that time when the big gun (the gallil rifle) rang you cannot
even say exactly where the deceased was because you were busy
separating these people?
A; That is so."
And yet when the same question was subsequently repeated
in a different form it produced startling results as follows:-
"Q: A says by the time he went to take the gun in the car and
long before he fired the warning shot, the deceased was nowhere in
the immediate vicinity, he had left.
A: That is not true.
Q: And he says the deceased left the scene of the fight as a result
of A2's persuasion.
A: That is not true."
as PW2 himself concedes he did not know the whereabouts of the
deceased at the material time, I cannot understand why he should
suddenly pretend to know that he had not left the scene. I was
certainly not impressed with his evidence.
PW2 did testify in chief, as previously stated, that his own elder
brother A1 was armed with a pistol he did not however say what he did
with it. It was only under cross-examination by Mr. Ntlhoki that he
disclosed, for the first time, that A1 actually discharged his
firearm. It will, in fact, be recalled
admitted facts emanating from PW8 No. 3326 Detective Lang Sgt. Tsiu
show that an empty shell belonging to a 7.65 mm pistol was
subsequently found at the scene of crime.
satisfied therefore and do hereby make a finding that two different
firearms were discharged at the scene of crime on the fateful night
in question. Once that is so, the salient question for determination
in my view, is: which of the two firearms (the gallil rifle or the
pistol) killed the deceased? I will return to this aspect later.
evidence of PW3, Dyke James Thaanyane, shows that he too lives at
Roma, Mafikeng in Maseru district. He is employed in the Lesotho
Defence Force as a soldier since 1987. He knows both accused "very
well". A1 is his neighbour at Roma while A2 is his co-worker in
the Lesotho Defence Force. He knew the deceased in his lifetime. They
resided in the same village and grew up together at Roma.
also present at Roberto Restaurant on the fateful night in question.
He says that he was playing a game of chess with the owner of the
restaurant at around 9 to 9.30 in the evening. He then heard a gun
report from what appeared to him to be a gallil rifle from outside.
He proceeded outside and found his co-worker, Matsoso, seated and
bleeding from the face. He says he saw A2
paces away holding a gallil firearm. He also saw A1 who was holding a
stage someone shouted, drawing attention to a person who had fallen
to the ground. PW3 proceeded to this spot where he found the deceased
lying dead in a pool of blood. He was bleeding from a "hole"
in the neck.
cross-examination by Mr. Ntlhoki for A2, it emerged that PW3 did not
actually hear a gun report from a small firearm or pistol. As will be
recalled, it is common cause that there was in fact such a gun report
fired in the vicinity of the restaurant. In fairness to the witness,
however, he was inside the restaurant when the gun report went off He
says the noise inside the restaurant prevented him from hearing the
gun report. There was radio music playing. In these circumstances
there is no reason to doubt the witness on this issue.
completed the Crown case and, as I have stated previously, A1 was
discharged at this stage on the ground that there was no prima facie
case against him.
A did not
call any witnesses but duly gave evidence in his own defence as DW1.
He is aged 35 years old and lives at Ha Ralejoe in Maseru district.
He went as far as C.O.S.C. at school and he is employed at Lesotho
Defence Force as a soldier since 1992. He holds the rank of private.
A2's evidence that he knew the deceased in his lifetime and that they
were "big friends". The friendship began around 1988-89. He
also knows Matsoso who is his co-worker.
nutshell, A2 denies any suggestion that he pointed the gallil rifle
at the deceased or in his general direction. He denies pointing the
rifle at the people gathered at the scene of crime and in particular
he denies shooting the deceased.
to A2's version, on the fateful night in question, namely the 18th
August 1995, he left Maseru for Roberto Restaurant in the company of
Matsoso and the latter's girlfriend Lineo Ramokoena as well as Al.
They were travelling in Matsoso's car in which there was an army
service rifle belonging to the latter. It is the gallil rifle
referred to above. He denies that it
placed in the boot of the car. According to him it was placed under
the back seat of the car.
Roberto Restaurant Matsoso and his girlfriend, Lineo, developed a
quarrel to such an extent that Matsoso tried to strip her of the
jersey which he had lent her. The couple eventually went outside to
the car which was parked next to the restaurant. The time was between
9 and 9.30 at night. Matsoso was drunk.
five minutes after Matsoso and his girlfriend had left A heard that
there was a fight going on outside. He proceeded there in the company
of A1 and he says that he found the deceased and PW1 Bonang Maama
"trampling" upon Matsoso who was lying on the ground. A
successfully persuaded the deceased who, as earlier stated, was his
friend, to leave the place and that he would still get his girlfriend
(Lineo). The deceased was complaining to A that Matsoso had taken his
girlfriend. There was no exchange of angry words between A and the
deceased nor was there a quarrel or fight between them. Indeed A is
unchallenged on these issues and I accordingly see no reason to
stage Matsoso appeared to be unconscious. He was still lying on the
ground with blood covering his face and the whole body. His clothes
were also stained with blood.
then that A saw that A was fighting with PW1 . They were fighting
with fists and at this stage A2 realised that Matsoso's car which
they were travelling in had its doors open. He rushed to it in order
to retrieve the gallil rifle in question in case it fell into "bad
hands." He "slung" the rifle on his shoulder and
proceeded to where Matsoso was lying down. He then heard people shout
"hey man he is a soldier. He might fire. Let's burn this
vehicle." Thus threatened, he moved backwards and removed the
rifle from his shoulder. At this stage some people were throwing tins
and bottles at him. He then cocked the rifle "so as to scare
It is the
evidence of A that these people were in a fighting mood. Asked how he
felt at that moment he replied:- '7 was in trouble my Lord "
Given the unchallenged circumstances he has set out, I have no doubt
myself that he felt seriously threatened.
says that as these people came closer to him, he fired in the air
once and some moved back while others ran away. He
fired again. It will be recalled that the admitted evidence of PW8
No. 3326 Detective Sgt. Tsiu shows that only one gallil shell was
found at the scene of crime. I accordingly accept A2's version that
he fired only once. The real question, therefore, is whether in so
doing he shot the deceased, In this regard it requires to be
determined whether his explanation that he fired in the air may
possibly reasonably be true. I shall deal with this aspect in due
course. But first, one has to deal with the complication brought
about by the fact that Al also admittedly discharged his firearm. As
I have pointed out previously it becomes pertinent therefore to
determine which of the two firearms killed the deceased.
to the evidence of A , on this point, he says that after he had fired
in the air and the crowd had either moved back or dispersed, he
approached Matsoso where he was lying down and tried to carry him.
Just as he tried to lift him up, he heard a gun report from a 7.65mm
pistol four times. He then saw A1 holding a firearm and in his own
words he says: '7 saw A1 that he was the one who was firing with the
7.65mm firearm. " He is unchallenged on this version and I
accordingly believe him.
testifies that he then approached A1 from behind and succeeded to
immobilize A1 s pistol by knocking off the magazine from it. As a
result A1 stopped shooting. He then carried Matsoso to hospital in
the company of Lelala. They were using Matsoso's vehicle. He only
learnt of the death of the deceased the following day.
It is not
disputed that as a soldier A was fully trained in the use of firearms
including a gallil rifle and was fully conversant with its effect as
well as that of a 7.65mm pistol.
importantly A is unchallenged in his evidence that at a distance of
20 - 35 metres and having been shot in the neck, a gallil rifle would
have either decapitated the deceased or the damage would have been
such that the decea3ed was left with little flesh on the neck. The
bullet would have broken the bones. As will be recalled there was no
such extensive damage in the deceased's neck and A2 testifies that in
his experience the deceased's injury was consistent with a pistol
shot. Once more he is unchallenged on this version. The Crown could
only suggest that the deceased's injury was a miracle. Miss
Mofilikoane for the Crown put it this way in her cross-examination of
"Q: But can you deny that miracles do happen? A: I haven't seen
Court too does not subscribe to miracles as suggested.
extent that the Crown witnesses seek to implicate him, A2 puts this
down to bias in as much as these witnesses come from the same village
adding "they play together, they reside together and they drink
together. " This is indeed common cause and, as will be
recalled, PW2 is in fact the younger brother of A . I consider
therefore that there is merit in the defence criticism of the Crown
witnesses. In this regard it is to be regretted that the Crown chose
to lead the evidence of interested witnesses when there was a "crowd"
of people at the scene of crime on the fateful night in question.
watched A as he gave evidence before me. He impressed me as a
truthful witness and remained completely unshaken in
cross-examination. I would accordingly have no hesitation in
preferring his evidence to that of the Crown witnesses where there is
a dispute of fact. I find that his merit as a witness far outweighs
the demerits of the latter.
no credible and direct evidence that A2 shot the deceased. As I see
it, therefore, the Grown case rests on circumstantial evidence of
which the age-old cardinal rules of logic as propounded by Watermeyer
JA in R v Blom 1939 AD 288 at 202-3 must come into play. There the
learned judge of appeal laid down the two rules in the following
"(1) The inference sought to be drawn must be consistent with
all the proved facts. If it is not, then the inference cannot be
(2) The proved facts should be such that they exclude every
reasonable inference from them save the one to be drawn. If they do
not exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct."
rule (!) to the facts of the instant case it is, in my view, evident
from the aforegoing considerations that the inference sought to be
drawn cannot be consistent with the proved facts namely that there is
no direct evidence that A shot the deceased coupled with the fact
that A1 also discharged his pistol and may thus well have been the
cause of the deceased's death himself.
and, as rule (2) is in my view largely an extension of, and is indeed
complimentary to rule (1), I consider that this rule (i.e. rule
(2))has also not been satisfied by reason of the fact that two
different firearms were discharged at the scene of the crime on the
fateful night in question. Immediately thereafter the deceased was
found lying dead with a bullet wound in the neck. In my view,
therefore, the proved facts do not exclude the reasonable possibility
that the deceased was shot by A1's firing: Significantly there is no
evidence that the two accused acted with common purpose or in
concert. On the contrary, the acts of one are completely independent
of the other.
stage I regret to observe that the Crown's case was either badly
investigated or was poorly presented. In this regard it will be
recalled that according to the admitted facts emanating from the
depositions of PW8 No. 3326 Detective Lang Sgt. Tsiu, the gallil
rifle (Exh "1"), its 19 rounds of ammunition (Exh "2")
(collectively) together with its shell (Exh "3") the 7.65mm
pistol No. 5853344 with its 8 rounds of ammunition as well as a 7.65
mm shell (Exh "4") were taken to Makoanyane Camp "where
they were examined" no doubt by a ballistic expert. Amazingly,
however no evidence of ballistic examination was presented to the
pistol was inexplicably handed over to Al by the police before the
case had even started.
circumstances set out above, I have no doubt that a valuable
opportunity to connect the accused with the death of the deceased was
lost and the question posed earlier in this judgment as to which
firearm actually killed the deceased shall ever remain a mystery. Of
course the Crown must shoulder the blame for this costly lapse.
her written submissions and in argument before me Miss Mofilikoane
for the Crown submits that "A2's" story is not true"
and that the Court should disbelieve him. He must therefore be
convicted on that score alone, so it is argued. I regret to say that
this is a wrong approach which this Court is unable to subscribe to.
In this regard I need do no more than quote from my own judgment, if
I may, in Rex v Lepoqo Seoehla Molapo 1997-98 LLR 208 at 237:-
"Now the law as I have always perceived it to be is not whether
the accused's explanation is true but whether it may possibly
reasonably be true. That is the real test. Conversely the test is not
whether the Court subjectively disbelieves the accused. Indeed the
Court does not even have to reject the case for the Crown in order to
acquit the accused. That remains so even where the case for the Crown
is overwhelming against the accused. The court must still determine
whether the defence
case is so demonstrably false or inherently so improbable as to be
rejected as false. It is also pertinent to bear in mind that in
embarking upon this exercise it is a wrong approach to reject the
accused's explanation merely because the Court is satisfied as to the
reliability of the witnesses for the Crown. It is only after the
merits and the demerits of the two sides have been analysed and
weighed together with the probabilities of the case that a Court
would be justified in reaching a conclusion one way or the other
regarding the question whether the Crown has proved its case beyond
reasonable doubt. Authorities in this regard are indeed legion.
See for example S v Singh 1975 (!) S.A. 227 at 228 per Leon J (now
Judge of our Court of Appeal)
S v Kubeka 1982 (1) S.A. 534 at 537
S v Jaffer 1988 (2) S.A. 84
S v Munyai 1986 (4) S.A. at 714
Indeed in R v Difford 1937 AD 370 at 373 Watereyer AJA succinctly
stated the law in the following words:
"It is equally clear that no onus rests on the accused to
convince the Court of the truth of any explanation he gives. If he
gives an explanation, even if that explanation be improbable, the
Court is not entitled to convict unless it is satisfied, not only
that the explanation is improbable, but that beyond any reasonable
doubt it is false."
AJA reaffirmed the legal position in R v M 1946 AD 1023 at 1027 in
the following words:
".... The Court does not have to believe the defence story,
still less does it have to believe it in all its details; it is
sufficient if it thinks that there is a reasonable possibility that
it may be substantially true."
the above mentioned principles to the facts of the instant case I
have come to the conclusion, therefore, that the explanation of A
that he merely shot in the air and that the deceased may well have
been killed by a shot fired by A1 may possibly reasonably be true in
the circumstances. That being the
is in my view, entitled to the benefit of doubt. I find that the
Crown has failed to prove its case beyond reasonable doubt.
accordingly found not guilty and acquitted.
Crown: Mr. Semoko (replaced by Miss Mofilikoane)
For A1 :
For A2 :
gallil rifle No. L701753 Exh "1", with its 19 rounds of
ammunition, Exh "2" shall be returned to Lesotho Defence
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