CRI/T/24/83
IN THE HIGH COURT OF LESOTHO
In the matter of:
REX Plaintiff
v.
SENOABO MANTZENKANE Defendant
JUDGMENT
Delivered by the Hon. Mr. Justice J.L Kheola on the 31st day of May, 1985
The accused before me, Senoabo Mantzenkane, is indicated upon a charge of murdering Chabasemaketse Masupha and Halekhethe Pheello (hereinafter called the deceased) on the 27th June, 1982 at Maphotong in the district of Qacha's Nek.
The accused pleaded not guilty. Mr. Phakoana, for the accused admitted the entire preparatory examination record as evidence but indicated that the defence was disputing the admissibility of a confession made to a magistrate by the accused. He indicated that the confession had not been freely and voluntarily made. I ordered a trial within a trial and my assessor retired.
Before going to the trial within a trial I think it will be convenient to give a very short summary of the evidence that has been admitted by the defence. According to medical evidence Chabasemaketse died as a result of a fracture of the left side of the skull, starting three inches above the left ear and extending to the base of the skull; Halekhethe's death was due to a depressed fracture of vertex of skull 1½ inches in diameter. There was a subdural haematoma underlying the fracture. The rest of the
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evidence revealed that the accused was staying at a cattlepost next to that of the deceased. One day the accused found one of his sheep dead and suspected that Chabasemaketse had killed it. One of the Crown witnesses, Sephokaphokana Ndodana told the court that one day he saw the accused quarrel with Chabasemaketse and accusing him of having killed his sheep. The witness ordered the accused to desist and he complied. Later that same day the witness went to the cattlepost of the accused where he was served with some beer. While they were drinking and conversing he noticed that the accused was still a little unhappy about the quarrel regarding the dead sheep. They parted at midday. On the following day the two deceased were found dead at their cattlepost.
Sekeiti Mosololi gave evidence to the effect that from the scene of the crime they saw shoe -prints leading to the cattlepost of the accused which could have been caused by gum -boots similar to those of the accused. He immediately qualified his last statement by saying the prints we saw could have been caused by boots of this nature although those ones were not straight." This means that although they were gum -boots prints they could not have been caused by accused's gum - boots because they were not straight. Without the confession the evidence led by the Crown does not establish a prima facie case against the accused. In other words, even if the accused remains silent when the Crown closes its case, the evidence is not such that the Court might convict. All it shows is that because the accused had a quarrel with the deceased he may have returned to their place at Right and killed them. This is a possibility but the evidence shows that the shoe -prints from the scene of the crime leading to accused's place wore not made by the gum-boots of the accused. So there is another possibility that the person or
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persons who killed the boys wanted to incriminate the accused by making the spoor towards his place. The evidence creates a suspicion against the accused but in a criminal trial mere suspicion is not enough. The Crown is expected to establish a case which if the defence decides not to rebut, becomes conclusive evidence that the accused killed the deceased.
In the trial within a trial the Crown called Second Lt. Kakole who was the officer in charge of Mashai Police station where the accused was detained for two and a half months before he made the confession. His evidence did not refute the allegations by the accused that during his detention he was assaulted by various groups of members of the Force including Trooper Letho, Makara and Mahloane. Lt, Kakole merely denied that on the first day the accused arrived at the station he too took part in the assault of the accused. He further told the Court that one day one of the suspects -Sephokaphokana Ndodana (P.W.2) told him that the accused wanted to talk to him. He ordered that the accused be brought to his office. When he arrived he confessed. He then told him (accused) that the statement he had made to him could only be made to a magistrate. Arrangements were made for the accused to go to Qacha's Nek to appear before a magistrate. Lt. Kakole does not know what had been happening to accused during the entire period of his. detention and he is, therefore, not in a position to deny that the accused was assaulted by the junior officers. None of the junior officers who were directly involved in the investigation of the case was called to give evidence.. It is common cause that Trooper Letho is late.
The accused gave evidence that during his detention he was regularly assaulted by various members of the Force. They kicked him all over the body and kept him in solitary confinement for about
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three months. On one occasion when they assaulted him they kicked him on the mouth and broke his front tooth (it is true that his front tooth is missing). He explained that the officers assaulted him and forced him to admit that he killed the deceased. He finally admitted because of the assaults. He decided to tell the magistrate what was not true.
As I have already stated the Crown has failed to rebut the allegations made by the accused for the simple reason that they are not in a position to call Trooper Letho who was apparently the investigator in the case. Lt. Kakole did not know why his junior staff kept the accused in detention for two and a half months without taking him home to the magistrate for formal remand.
I came to the conclusion that the allegations by the accused that he had been assaulted by the police and kept in solitary confinement in a cold cell are true. It is therefore, clear that the confession was not made freely and voluntarily. I ruled that the confession was inadmissible.
The Crown closed its case.
The defence also closed their case without calling any witness
As the Crown had failed to establish a prima facie case against the accused I found no alternative but to find him not guilty and discharged him.
J.L. KHEOLA
31st May, 1985.
For Crown : Miss Nku
For Defence : Mr. Phakoana.