CRI/APN/197/84
IN THE HIGH COURT OF LESOTHO
In the Application of
GERARD THUSO NKHABU 1st Applicant
NTHOFELA NTSAMAI 2nd Applicant
PAUL THABO LEBULA 3rd Applicant
V
REX Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B K. Molai on the 29th day of March, 1985.
The applicants herein seek an order granding them leave to appeal to the Court of Appeal against the judgment of this Court in CRI/APN/91-93/83, bail pending appeal and further or alternative relief. The application is opposed by the respondent.
The applicants originally appeared before the Resident Magistrate of Mafeteng charged with 3 counts viz
(i) attempted murder,
(ii) kidnapping and
(iii) housebreaking with intent to commit an offence to the prosecutor unknown
They were at the end of the trial aquitted on count I, found guilty as charged on count II and convicted of housebreaking with intend to commit robbery on count III The applicant subsequently appealed to the High Court against their convictions on counts II and III. The appeal was dismissed in respect of count II and as regard count III a verdict of guilty of "malicious injury to property" was substituted for"housebreaking with intend to commit robbery". The reasons for the decision appear in my judgment - CRI/A/91-93/83 delivered on 30th November, 1984 and I do not propose to go over them again.
In their founding affidavits the applicants aver that their appeals have prospects of success on the grounds contained in the supor-ting
affidavit of their attorney Mr Lehlohonolo Pheko who deposed that the identity of the applicants was not proved beyond all reasonable
doubt.
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The respondent filed answering affidavit in which he denied that the identity of the applicants was not proved beyond all leasonable
doubts.
It is clear from the affidavits that the verdicts returned against the Applicants on counts II and III are not disputed. The real issue in dispute is the identity of the applicants as the persons who committed those offences.
First, No 1 applicant It was common cause that on the day in question, 1st November, 1982, No 1 applicant borrowed P.W.1's car allegedly to use it to visit his home and the same car was on the night of the same day seen at Mdlea-lea used by people who committed the offences against which the applicants were convicted. No 1 applicant's story that he was dispossessed of the car by some unknown persons at Motsekuoa was rejected by the trial magistrate before whom all witnesses appeared and testified I found no good reason to interfere with the finding of the trial magistrate who was, in my view, a better judge on the issue According to the evidence accepted by the trial magistrate, after they had been kidnapped into the car, there was a time when the lights were put on and P W 6 and 7 were able to clearly identify No.1 applicant was one of the kidnappers and the person who was actually driving the car He was later positively identified by the same witnesses at a subsequent identification parade which, in my view, was as a whole properly conducted. I found nothing unreasonable in the trial magistrate concluding as he did that in the circumstances No.1 applicant had been positively identified as one of the persons who committed the offences with which the applicants had been charged.
As regard No.2 and 3 applicants, their story was that they were never in the company of No 1 applicant on the day in question
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they could not, therefore, have been the persons who committed the offence with No 1 applicant Nos 2 and 3 applicants and a 3rd person were however, seen in the afternoon of 1st November, 1982 my P W 18 D/Tor Monantsi in P W 1's car which was being driven by No 1 applicant in Mohale's Hoek bus stop. The 3 applicants together with the 4th person were in the eveninq of the some day again seen by P W 8, Pinda Pinda, a saddler at Mohale's Hoek Police Station who knew them very well, at Mafeteng where he even assisted them to fit a spare wheel to the same car that P W 1 had admittedly lent to No 1 applicant In my view the evidence that Nos 2 and 3 applicants were going witn No 1 applicant was simply overwhelming ana it gave a lie to their story that they were never in his company on the day in question.
There was evidence accepted by the trial court that when the villagers approached the car in which No 1 applicant and his companion were travelling, one of them (companions) fired shots before running away. As they were being chased by dogs and villagers next to P W 4's house one of the perpetrators of the offence in counts II and III lost a shoo.
According to the evidence of P W 10, Mosuoane Moqoorge, on the early morninq of 2nd November, 1982, he was drivinq next to Malca lea on his way from Maseru to Mohale's Hoek when he noticed No 2 applicant who appeared frightened and was going bare footed No 2 applicant explained that he had heard a gun report and feared that No 5 applicant had opened fire Although No.2 applicant denied this, the evidence of P W 10 was accepted by the trial magistrate The evidence of P.W.10 was in my view, yet another indication that No 2 and 3 applicants were among the
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people who were being chased with No.1 applicant next to P.W.4's house where No.2 applicant apparently lost one of his shoes That explains the reason why No 2 applicant was going bare footed on that early morning Although there was no direct evidence showing that Nos 2 and 3 applicants were two of the people who acted together with No 1 applicant in the commission of the offences in counts II and III, there was, in my view, sufficient circumstantial evidence in that regard.
I am not, therefore, convinced that this is an application in which the applicants have prospects of success in the appeal. I accordingly
dismiss the application.
B.K. MOLAI
JUDGE
29th March, 1985
For Applicant Mr Sooknanan
For Respondent Mr. Peete.