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.

2

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

3

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

4

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.