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.