HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 4th day of March, 1992
accused pleaded not guilty to four counts wherein the Crown has
preferred charges of
3. Housebreaking with intent to steal and theft
4. Rape against him.
accused was tried summarily before this Court.
murder charge in Count 1 the Crown alleges that on or about the 27th
April, 1990 and at or near Prison Gardens in the district
the accused did unlawfully and intentionally kill Monis 'Makamohelo
2 involving robbery it is alleged by the Crown that around the same
day and place as above the accused did unlawfully and
assault Monis 'Makamohelo Ts'ola, by using force and violence in
order to induce her submission and having thus done
so he did
wrongfully take and steal from 'Makamohelo Ts'ola's person certain
items of property appearing in a long list of items
reflected in the
indictment under this count. This property is alleged to have been
'Makamohelo Ts'ola's or in her lawful possession
and that the accused
did wrongfully rob her of the same.
3 the Crown alleges that around the same day and place the accused
unlawfully and intentionally did enter into the house
of the said
'Makamohelo Ts'ola's with intent to steal and did break and enter
that house from which the accused unlawfully stole
items of property
listed in this count. The property is said to have belonged to or was
in the lawful possession of the said 'Makamohelo
4 the Crown alleges that on or about the same day and at or near the
same place set out in the first Count the accused
have unlawful sexual intercourse with an adult female 'Makamohelo
Ts'ola without her consent, and did thereby
commit the crime of rape.
post-mortem examination form handed in marked "A" reveals
that the doctor who performed the post-mortem examination
on 1st May
1990 formed the opinion that death was due to internal haemorrhage
and subdural haematoma of the cerebral hemisphere.
The doctor formed
an opinion that death occurred at night on 28th April, 1990 and prior
to examination of the deceased's body.
medical officer observed that the body was of a young female. The
body at the time of the post-mortem examination was rigid
pupils fixed and dilated. The doctor also observed that there were
signs of bleeding from the left ear, the lower jaw was
that there were two deep star wounds on both sides of the scalp.
Further medical observations reflected on "Exhibit
that the right lobe of the liver was ruptured with the result that
there was bleeding into the peritoneal cavity.
The doctor who
performed the post-mortem was said to have gone outside the
jurisdiction of this Court hence the postmortem
handed in in terms of Section 223(7) of our Criminal Procedure and
Evidence Act No.9 of 1981.
be noted from the outset that there was no eyewitness to the
killing of the deceased in Count 1 nor was there any
in respect of
the other charges set out in Counts 2 to 4.
led the evidence of PW7 'Malebese Likotsi who was
employee of the deceased and had been serving in the deceased's
household in that capacity for only three months before the deceased
met her death. PW7 stayed in the deceased's servants' quarters.
27th April, 1990 PW7 was at her work and the deceased who was on
maternity leave having delivered herself of a newly born
Katleho barely three months before the deceased's death, was also at
home. PW7 informed the Court that the deceased had
spent that day
intermittently breast feeding her baby. Since her stay with the
deceased PW7 had observed that the deceased was
in the habit of
staying at home. This is a feature regarding which PW7 is supported
by the deceased's sister-in-law PW9 'Malintle
Lerotholi. The type of
visitors that the deceased had at home during PW7's stay with her
she didn't know the accused and had never met him anywhere near the
deceased's home during the life time of the deceased.
usually knocked off from duty at 7.00 p.m. On 27th April 1990 she
knocked off at this hour leaving the deceased with her two
i.e. the baby and another seven year old son called Kamohelo sitting
in the sitting room watching T.V. When she thus left
PW7 had observed
that everything regarding the
of household goods and furniture was normal. She bid the deceased
good night and went out through the main or dining room
locked the kitchen door from inside and carrying with her the kitchen
door key which she dropped at her living quarters
to Ha Hoohlo where she was to see a friend. The deceased was in good
health when PW7 bid her good night.
not remember when exactly she came back from Ha Hoohlo but she
remembers that shortly before reaching her living quarters
struck 10.45 p.m. She didn't observe anything unusual. Thus she went
morning at about 6 a.m. the older boy Kamohelo came and knocked at
PW7's door giving her a report concerning his mother.
observation this child looked very frightened. On the way to the main
house PW7 saw the deceased's blanket shown to her
by the little boy.
inside through the kitchen door which was already unlocked. She
satisfied herself from the inside that the dining room
door had been
locked. While in the kitchen PW7 observed that there was blood on the
sink table and that glasses and ash-trays were
broken. She also
observed a navy blue lumber jacket under the table. She had never
seen this lumber jacket
She did not pick it up to scrutinise it. She also observed that the
chair cushions had fallen to the floor.
proceeded to the dining room where she observed that the telephone
had fallen to the floor, the video and audio cassettes including
chairs and their cushions had laid on the floor in a strewn and
scattered mess. These things gave PW7 the impression that there
been a fight in there.
from the disturbance regarding the furniture PW7 observed that the
video machine on the T.V. set had gone missing. PW7 identified
machine which she said she used to see blinking on the T.V. set not
knowing what it was doing there. This is the exhibit which
in and marked "Exhibit 32" in this Court.
proceeded to Kamohelo's bedroom which lay adjacent to the deceased's.
In there she discovered that things were also strewn on
There was blood in this room too. The clothes which the deceased had
been wearing including panties were scattered about
on the floor.
There was a pool of blood on the floor rug. There were also splashes
of blood on the wall. The pair of panties was
lying on the mat. She
didn't know whose pair of panties this was. However the clothes she
had last seen the deceased wearing the
previous night were the purple
a brown doek including the shawl which the deceased had wrapped round
her waist. This is the shawl referred to earlier
as the blanket PW7
observed lying outside when she made for the main house from her
peeped into the deceased's bedroom without actually going in there.
She observed that the wardrobes were kept ajar and
clothes from in
there had been disturbed and thrown about though they had not been
let out of the wardrobes. Again the state of
the bedroom gave her the
impression that there had been a fight in there.
clapping her eyes on something that struck her attention PW7 pulled
the little boy by hand and asked that they should run out.
made for PW9's home some 150 to 200 paces away and gave PW9 a report.
return to the house accompanied by PW9 and 'Mateboho PW7 saw the
deceased for the first time. She was lying on the floor
bed and the wall on the far side of the bed. She appeared dead. She
was completely naked. PW7 saw that the deceased
had a wound above the
eye which to her appeared lifeless. There was a lot of blood where
she was lying. Some of
had splattered on the wall and on the floor. PW7 covered the body.
Apart from covering it thus nobody in PW7's presence
did anything to
the body. Afterwards the police were sent for. When they arrived PW7
went to attend to the baby at PW9's home.
PW7 identified "Exhibit
14" as the shawl she had last seen the deceased wearing, and as
the shawl she saw lying outside
the home when she proceeded to the
house after Kamohelo had made the report to her. She also identified
"Exhibit 2" as
the lumber jacket she had seen under the
table in the kitchen. She stated that the white colour on "Exhibit
2" was obscured
from her view showing the predominant colour
navy blue. She also identified "Exhibit 1" the black hat,
19" a green bag as all belonging to PW3 Tsepo
Ts'ola the deceased's husband. She informed the Court that PW3 used
mostly during his wide and frequent travels. PW7 stated
that prior to 28-4-90 none of the property belonging to either PW3 or
deceased was reported stolen. There had been no breaking into the
premises before the evening of 27-4-90 when she bid her employer
night. When called by Kamohelo to the house PW7 observed that it
didn't seem that breakage had been employed to gain entry.
or windows were broken. She didn't see anything untoward regarding
the deceased's private parts but she didn't scrutinise
these as she
was afraid. The body of the deceased was lying belly up but the face
was inclined to the side. There were clear signs
that violence had
been applied to the deceased.
further testified that the deceased's husband had gone to Mafeteng
during the day on 27-4-90 after taking the deceased and the
the clinic. PW3 only came back on 28-4-90. PW7 didn't know if PW3 had
any spare keys to any of the doors on him.
brief time that she had lived together with the deceased she formed
the impression that she was a quite person.
got to know PW5 Ntoetse 'Mota at the time the two came to Court here
on 21-5-91. PW7 had never seen PW5 at or near the
deceased's home on
or before 27-4-90. She identified "Exhibit 30" a lady's
wristlet-watch as similar to the deceased's
though she herself had
never touched it. On and after 28-4-90 PW7 never saw the property
before Court at the deceased's place any
longer. Nor was she called
to identify any after that day.
further testified that the relations between the deceased and PW3
were good throughout her stay with these parties. Nothing
in their relations on 27-4-90 when they took the baby to the clinic
and came back to have lunch together. She remained
as an employee at
the joint home of PW3 and the deceased even after the deceased's
recalled that police came to the deceased's home on 28-4-90. She
recalls seeing PWl Lance-Sergeant Selebalo there. She
police did not remove any of the property before Court from the
deceased's home in her presence. She had been shuttling
deceased's home and PW9's home attending to the baby's needs at the
latter's place. She is supported by PW9 on these.
PW9 after receiving
the report and arriving at the deceased's took charge.
cross-examination PW7 told the Court that PW3 went to Mafeteng after
lunch on 27-4-90 because PW3 had told her in the morning
intention to go to Mafeteng as well as instructing her to prepare his
clothes for that purpose.
stated that she found the baby in the elder brother's bedroom. Other
answers elicited from PW7 regarding what the young
told her are in the nature of hearsay and therefore inadmissible.
explained that in fact the deceased when found was lying on a duvet
with a pillow under her head.
evidence of PW5 Ntoetse 'Mota provides a link between her assailant
and events which later took place at the deceased's place.
identified aa hers the navy blue lumber jacket with triangular white
colours around the sleeves and to the front "Exhibit
is her evidence that she had "Exhibit 2" draped
shoulder on 27-4-90. She never while wearing this lumber jacket
ventured anywhere near the deceased's premises. In fact
she has never
set foot in the deceased's premises or in the house where this
"Exhibit 2" was later found.
the late afternoon i.e. around 5.30 p.m. on 27-4-90 PW5, according to
her evidence, had occasion to go past an area known
as the LNDC; a
shopping centre lying along the Kingsway. She was walking on foot
from her parents' home where she was staying and
going to the Post
Office. Before this occasion she had not met the accused, she said.
But on that occasion she saw him at a place
which used to be
Ellerines Shop in the LNDC (the Lesotho National Development Centre).
She testified that the accused was leaning
against a pillar at the
LNDC. She said the accused was wearing a bluish green track-suit.
further to say from where she was she shouted in Sesotho to one
Blandina working in the Chinese Palace, who was standing
balcony that she (PW5) would on her return from the Post Office go to
the Provencal House(a Convent). On her return PW5
did not see the man
in the bluish green track-suit. When she reached the Provencal House
the 6.00 p.m. mass had already been in
progress and the sun had
already set. Having spent not more than five minutes at the Provencal
House PW5 set out for Pholomolong.
Along the way she saw the man in
track-suit as she was heading for the Maseru Club. This man was
standing near the gate and was carrying his bag. Although
rather dark at the time PW5 described the stranger he saw as black,
tall and bearded. She also said this stranger had grey
hairs at the
back of the head above the neckline. She said the man was average
size but tall. She went further to say she didn't
observation of him at the time". By consent the accused's hair
was subjected to forensic tests and "Exhibit
C" was handed
in showing the results of the tests conducted by PW10 Lt. Khomohaka.
PW10 is a Forensic Biologist in the Technical
Services Department of
the Lesotho Mounted Police.
results of his tests revealed that the accused's hair was black with
a few grey strands. His beard is described by this witness
with several grey strands".
appears to the Court that the accused's hair does not have anything
near what could be described as "this stranger
had grey hairs at
the back of the head....."
cross-examination to which the accused's lover PW6 Lucy Motsopa was
subjected was to the effect that though the accused's
hair was black
it had an undergrowth of grey discernible only on the top crop being
described the bag the stranger was carrying as a black long sling bag
usually seen carried by men who are "with it".
went past this stranger the latter touched her on the shoulder, an
act which she says aroused annoyance in her. The stranger
PW5 with a fist on the face "just like that". PW5 was
surprised by this and asked the stranger why he was doing
response the stranger pushed her and told her to go with him to his
place at the Arrival Centre. The stranger's voice
was neither loud
nor soft when he told PW5 to accompany him. PW5 told him she wan't
going to the Arrival Centre whereupon a scuffle
between the two
the accused got angry and pushed her forward. When the two came under
the street light near Maseru Club PW5 says she pulled
glasses from his face. Then the accused put down his sling bag, took
his glasses, folded them and placed them in
a purse strapped to his
waist. PW5 said at this point she was just standing. Then the accused
opened the sling bag on the ground,
took out a knife from inside it
and told PW5 that he didn't like the games she was playing and
threatened that if she persisted
he would stab her with that knife.
Saying so he grabbed hold of PW5's right hand. She went further to
tell the Court that when
she met the accused she was wearing a full
dress green in colour and had her navy blue lumber jacket with
slung over her shoulder. She described this lumber jacket "Exhibit
2" as having the Letter "F" on
the side. She told the
Court that "Exhibit 2" had a red smear of lip stick at the
spot bearing the Letter"?".
The Court observed these
identifying marks. She tried "Exhibit 2" for size and it
fitted her handsomely.
further to state that the man who had confronted and accosted her
placed his knife against her hand. As she pulled her
hand the knife
caught and cut her finger and she bled.
put the knife into his pocket and forced PN5 along the road till the
two reached a dam near the Polo Ground.
came near some trees the accused directed PW5 to a path leading
downwards and away from the Arrival Centre. Whereupon
PW5 asked him
why the deviation since the accused had said he stayed at the Arrival
Centre. PW5 explained that she just put up
with what his assailant
was saying for she had no choice.
two were approaching Mr. Khomonngoe's house PW5 stopped. She hoped
that Mr. Khomonngoe's dogs would attack the accused.
asked why she stopped. She indicated that there are dogs in the
vicinity. Then the accused did not venture
but instead decided to take PW5 to the side of the dam. Their
exchanges were in English. When they reached a cement furrow
downwards the accused placed the bag on the ground and unstrapped the
one at his waist. Then PW5 got hold of the black
sling bag and tossed
it into some trees below, the accused tried to go for that bag while
PW5 ran away inside the cement furrow.
The accused abandoned his
attempt at securing that bag and chased after PW5 and grabbed hold of
her lumber jacket which PW5 let
go of. The accused, according to PW5,
then pulled her by the dress but she poked at him with her elbow and
the accused fell, PW5
continued running towards Khomonngoe's place
but she tripped and fell in the furrow, whereupon the accused jumped
on her head.
Then the accused kept kicking her with his knee until
she became dazed and passed out.
came to PW5 says she discovered that the yellow petticoat she had on
had been removed from her body and used to cover her
mouth and nose
with. All else was still on her body. The stranger told her not to
look at him. He stood astride the furrow in which
PW5 had fallen. The
latter folded her legs and let them both hit the accused on the chest
with the result that he fell some distance
away in the furrow. Thus
PW5 obtained the time and opportunity she required for fleeing into
Mr. Khomonngoe's house. Her face was
swollen and the occupants of the
house couldn't recognise her. While in there she fainted
Her lumber jacket "Exhibit 2" had fallen to the ground near
the furrow. She was without "Exhibit 2" when
she came into
Mr. Khomonngoe's house. She only saw it at the CID office on Sunday
29th April 1990. It was mud-stained on the sleeves
and at the back.
Before this occasion "Exhibit 2" had not been mud-stained.
where the deceased stayed at Prison Gardens for she too was living
with her parents in that area some 300 paces away from
following her encounter with the stranger PW5 went to the last scene
of the assault on her. This is about five minutes walk
deceased's home. She didn't find "Exhibit 2" there. On
27-4-90 she had not been to the deceased's house, nor
at any time
reiterated her story that the man she had seen at the LNDC is the
same man she subsequently met at Chinese Garden near Maseru
the first occasion PW5 saw this man he was 8 paces away from her.
When she went past him later after returning from the
the distance between them was estimated at about one foot apart. She
said she was able to see this stranger in
a clear manner because the
sun had just set and the street light on the other side of the road
near the Maseru Club gate afforded her an opportunity to identify
him. She positively stated that the man she was walking
evening was the accused. Again when she was grappling with him in the
furrow she observed his face closely. At that time
covering his face.
gave a description of her assailant to the police.
showed the Court the scars she had following the knife wounds the
accused had caused her. These were two parallel scars
on the inside
of her arm and a more or less round one on the outside towards the
the Court that she was taken home by Mr. Khomonngoe after she had
fled to his house. The following morning she went to
see a doctor as
well as a forensic specialist at Makoanyane Barracks where blood
tests were carried out.
conceded under cross-examination that when asked the next day to give
the description of her assailant she did not mention grey
the back of the head. She however denied that the reason for her
omission of this was that she had been alerted to the
fact that the
accused has no grey hair at the back of his head. She rejected the
suggestion that the impression she gave the Court
is that she
scrutinises men she comes across in
streets. She denied that her story on the following day was an
improvement on what she had said the previous day. She denied
her opportunity to observe her assailant was limited. She reiterated
her story that whenever she looked at the accused he
told her he
didn't want her to. She stated that although her assailant did not
want her to look at him she managed to do so, moreso
because at first
he did not do anything to dissuade her from doing so. She rejected
the suggestion that she had made a mistake
in her identity of the
accused. She positively stated that the man she saw that night was
the accused. Asked how certain she was
she said she had been in his
company for about an hour; and that she was not being hit on the face
throughout that time when she
was kept a virtual captive for the most
re-examination PW5 stated that she never saw any man resembling the
accused either in Lesotho or anywhere.
Motsopa told the Court that she knows the accused. She first met him
in 1988. The accused was her boy friend with whom
she lived together
at Katlehong in Maseru. She was shown the ladies watch "Exhibit
30" and said that she first saw it
in May and in a manner that
obviously showed this was a slip of the tongue she corrected herself
to say she saw this watch in April
1990. She gave the date when she
first saw this watch as 28-4-90. Her boy friend the accused had given
it to her as a
on that day.
the Court that she inquired of him where he had bought "Exhibit
30" from as it had no price tag. PW6 said the
accused told her
he had bought "Exhibit 30" from somebody at Mafeteng. She
didn't notice if this watch was new or had
been used but she had some
nagging feeling that it had been used. PW6 was pleased that her boy
friend had given her this watch
as she had never had one like it
before. However her delight with the watch was short-lived because on
2-5-90 police came to search
at her house and she handed it to them.
She remembers the date distinctly because it was on King's Birthday.
She identified PWl
L\Sgt Selebalo as one of the police among whom
there was a policewoman who came to search at her house. She said
when coming to
her house the police were in the company of the
accused. Before this occasion she had never been visited by police.
She said the
police took a radio and a teaspoon belonging to the
accused. She on her part voluntarily handed "Exhibit 30" to
She explained that she was prompted by her fear that if the
accused could kill a person he could as well take away the victim's
possessions. Thus she said she wanted to return the present to the
testified that the accused left her on 29-4-90 which was a Sunday,
saying he was going to Namibia. The accused never came
again between the dates 28-4-90 and 2-5-90. She stressed that
relations between her and the accused on 28-4-90 were good.
explained that when the accused parted with her on 29-4-90 he was
happy. His beard was long and peppered with streaks of
grey. The head
was peppered with grey hairs. She observed that the hair had this
time appeared black.
cross-examination PW6 denied that she had an obsession that the
accused be convicted. She conceded that on looking at the
hair closely even today she could see white and grey hair all over
his head. She conceded that nothing in the accused's
hair had changed
from the time when she had last stayed with him. She also conceded
that she thought the hair was not grey for
she had not opened it.
taxed on the fact that the impression she had given in her
evidence-in-chief was that the watch had been given to her in
there and then said end of April. She denied that she had said May
but the recording machine was played back and she acknowledged
she had said "May" followed by "end of April".
denied that the reason she said she first met the accused in the
street was that she no longer wants to be associated with him.
further stated that when first she received the watch it did not fit
her well hence it had to be adjusted to the size of her
denied the version given on behalf of the accused that because
"Exhibit 30" could not fit her properly the
accused had to
take it away for some days for adjustment and only handed it to her
afterwards. On the contrary she said the accused
just shifted the
metallic strap and adjusted it himself without taking it to anybody
for the purpose.
put to PW6 that the accused would say that when he left her he never
said he was going to Namibia but that Namibia is his
home. PW6 was
adamant that the accused said he was going there.
re-examination PW6 was shown "Exhibit 30". She told the
Court that its strap can move and be adjusted. She said
it was not
necessary at all to take that watch to jewellers for adjustment of
its strap. The Court was shown the movements of the
gold plated strap
of "Exhibit 30".
nature of the evidence led by the prosecution was that on the morning
of 28th April 1990 the deceased 'Makamohelo Ts'ola was
found dead at
her home at Prison Gardens. The house in which she was found was in
shambles. Certain rooms in the house were splattered
with blood. The
deceased had been brutally battered
apparently when she was at her home with her children minding her own
business. The evidence showed that after the discovery
deceased's body it became apparent that some property had been
removed from her home after the deceased had been killed.
further evidence of someone having had sexual intercourse with her
most probably before her death.
was shown exhibit "C" - an album of the photographs taken
at the scene of crime. These were handed in in evidence.
photographs give a pictorial representation of the external injuries
observed on the body of the deceased.
PW9 and PW10 D\Tpr Motlomelo all testified to the condition of the
house where the body of the deceased was found. The
house was in
not challenged that "Exhibit 2" belonged to PW5 who had
positively identified it as hers.
evidence of PW8 Captain 'Mapeete Molapo shows that a stain was
observed on "Exhibit 2". On examination this stain
found to be human blood belonging to Group 0. This evidence was not
put in issue. It was not disputed that PW8 tested the blood
accused, PW5 and PW3. The deceased's blood was classified as
belonging to Group "O" while that of PW5 was said
"B". The blood of both the accused and PW3 the deceased's
husband belongs to Group "A". Blood scrapings
scene indicated that this blood came from a person of "0"
blood group. Vaginal swabs taken from the deceased
gave a very strong
indication of the presence of semen. PW8 observed from the slides she
had prepared from the samples of swabs
taken that, whole spermatozoa
were still visible in countless heads. Some were still whole and
intact as shown by the fact that
their heads and tails were still
there whereas with others the tails had disintegrated. It was from
her undertaking of these tests
that PW8 was of the view that sexual
intercourse with the deceased had taken place not long before the
seminal fluid was brought
to her for examination.
PW8's evidence that presence of intact and whole spermatozoa
indicated that the interval between the depositing of the spermatozoa
in the deceased's reproductive organs and the obtaining of the
seminal fluid sample was close. She also testified that "Exhibit
14" (the shawl) was among the articles brought to her for
examination. Some portions on it had stains. The stained areas were
creamy in colour and on examination they proved to be semen. These
seminal stains were mixed with blood. These stains were observed
several areas on the shawl. The blood group of the person from whom
the seminal fluid in the deceased's vagina had been deposited
not be determined from
fluid. Examination of "Exhibit 14" only showed presence of
spermatozoa in the seminal stains.
samples taken by PW8 were kept in the forensic Science Laboratory
where PW8 said they were not contaminated or mixed with any
no dispute that on discovery of the deceased's body on 28-4-90 PW7
and PW9 immediately noticed that some articles had
been removed from
the deceased's house apparently by an intruder who had gained entry
after PW7 had gone off duty on 27-4-90 leaving
the kitchen door at
the house locked and taking the key with her.
identified some of the property as either his or the deceased's. Most
of the property which PW3 identified was his. He was meticulous
his identification of this property to the extent that he was able to
say when, where and how he acquired each one of the items
his attention. He actually tried some of them on and they were seen
to fit him well. There was no dispute about this.
further identified "Exhibit 30" a ladies gold plated watch
as similar to the one belonging to the deceased. He had
constantly being used by the deceased. However it had
missing from the common home on 28-4-1990. The case in which it was
contained when it was purchased was found empty on 28-4-1990.
evidence is that "Exhibit 30" was given to her by the
accused on 28-4-1990. The accused denies that this was given
on that day. PW6 further indicated that she asked the accused where
he bought "Exhibit 30" as it did not appear
new to her for
it appeared to have been used nor was it bearing a price tag. Thus of
her own volition she surrendered it to the
police when they came to
search her house accompanied by the accused on 2-5-1990.
evidence shows that the man who accosted her on 27-4-1990 wore a
bluish-green track-suit, had spectacles on and was having
sling-bag slung over his shoulder. She described him as dark tall and
bearded. She gave her description of her assailant
to the police. Her
lumber jacket remained after being dropped at the place where she
fought with her assailant during her flight
to Mr. Khomonngoe's house
at Polo Ground. She does not know how this jacket found its way to
the deceased's house.
no dispute that some of the articles initially seized from the
accused by the police were later returned to him. The accused
that his bed linen, some clothes, his red bag, his blue and red bag,
audio cassettes, his single video
and book were returned to him. The greenish blue track suit has been
misplaced by the police - a sign of inexcusable remissness
part and a source of great discomfiture to this Court.
Selebalo told the Court that he has been in the police force for 15
years. In 1990 around April he was stationed in Maseru.
investigations concerning the deceased's death after receiving a
report about it between 6 am and 7 am. Hence he set out
a big black hat "ID 1" after getting in through the gate
leading to the deceased's home. PWl was accompanied
there by PW11
D\Tpr Motlomelo. He made the same observations as already referred to
in PW7's evidence, namely, that there was blood
in some of the rooms
and the furniture was in disarray. He went further to say that he
observed some slimy liquid like substance
on the deceased's thighs.
He made a thorough inspection of the house and its contents. His
companion PW11 was taking photographs
of the scene at the time.
the property he had collected at the scene i.e. the black hat, a
panty and dish cloth including "Exhibit 2" to
Office and locked them away. PW5 came later to claim "Exhibit 2"
investigations led him to Butha Buthe. He had received information on
1-5-1990 that the person fitting the description made
of the suspect
was in Butha Buthe. He found the accused in the cell in Butha Buthe
and asked that he be released to him. PW1 had
while still in Maseru
sent a message to Butha Buthe police to arrest the accused.
the accused along with the property alleged to have been claimed by
him as his at the time of his arrest at a hotel in
Butha Buthe and
drove to Maseru. This property was in the care of PW4 Police Woman
Molapo. PW1 did not show the accused this property
while at Butha
Buthe. The property consisted of 3 bags, 3 video machines, a big
radio and a jacket. PW1 later said the big black
hat actually was not
obtained by him at the deceased's gate but had been handed to him by
PW4 at Butha But the. It was through
the interview that the accused
had with PW1 that he led PW1 to PW6's home. The evidence of PW1 is
somewhat confused as to the sequence
of events in his investigation
including places where certain items of property were found.
learned Director of Public Prosecutions in his handy heads of
argument summarised the points in dispute as follows :-
testified that when he found the accused at Butha Buthe on 1-5-90 the
latter had in his possession some property. The
which PW1 alleges was with the accused when he brought him to Maseru
includes property relevant to the case before this
Court and other
property that has no relevance to this case. PW1 kept a list of the
articles relating to this case. These are articles
which he seized
from the accused and kept in police custody for use in evidence.
Among these items of property he brought along
with the accused from
Butha Buthe were the 3 bags, 3 video machines and one big radio. The
Court noted that the 3 bags and one
video cassette recorder (VCR)
were produced in evidence before this Court.
selection of some of the articles found with the accused according to
PW1 were "Exhibit 6" a sleeveless casual
scarves exhibits "7(a)", "7(b)", "7(c)"
a black handbag "Exhibit 9", a black
10", 3 T-shirts consisting of a white Moshood, a black Moshood
and navy blue Stimela T-shirts handed
in as exhibits "ll(a)",
"1Kb)" and "ll(c)" respectively, one green bag
"Exhibit 19", one
brown bag "Exhibit 20", 9 video
cassettes "Exhibit 27(a) to (i)" one "National"
video machine (exhibit
32) one black bag "Exhibit 33" and a
photograph "Exhibit 34".
testified that he recorded all the articles he seized from the
accused in the police Exhibit Register.
Molibeli said that he told the accused that he was wanted by the
Maseru CID in connection with murder. He and his colleagues
the accused with them to the Butha Buthe Police station from the
Butha Buthe Crocodile Inn. PW2 was with a Sgt. Molapo
(a man) when
they arrested the accused. The property they brought with them to the
police station was, according to PW2, pointed
out by the accused as
his property. This is the property which was later handed over to the
Maseru Police when they came for the
accused. Of the property that
PW2 saw with the accused on 1-5-90 he recalls 3 video cassette
recorders and video cassettes, a black
radio, Sankomota T-shirts and
"Exhibit 34" a photograph found in a bag.
testified that "Exhibit 34" an instant photograph of the
deceased's husband, was also handed over to the Maseru police;
fact to PW1. He also said he didn't open a docket at Butha Buthe but
merely apprehended the accused at the request of the Maseru
He didn't consider it necessary to record the particulars of the
property he found with the accused at Butha Buthe. He
that the accused did not have on him the property mentioned by the
said PW2 when the accused was arrested at Butha
Buthe on 1-5-1990.
PW2 persisted in his assertion that the accused had this property in
his possession when he was arrested. PW2
categorically denied that
of beer when he was apprehended at Butha Buthe on 1-5-1990. This
witness conceded that some money including foreign currency
form of US Dollars, British Pounds sterling may have been found on
the accused on 1-5-1990. He however vehemently disagreed
suggestion that the accused didn't know most of the things before
Court and that the accused did not have them in his
he was apprehended by the Butha Buthe police.
policewoman Molapo who spoke in irritatingly low voice testified that
she saw the accused already under arrest at Butha Buthe
PW2 and Sgt. Molapo had arrested him. When the accused arrived
together with the police they came with some property
her as 3 bags identified as a green bag, a brown bag, and a black
bag. PW4 was afterwards instructed by Warrant Officer
search the accused. During her search PW4 found two photographs of
the deceased's husband. She found them in one of
compartments of a black bag "Exhibit 9". These are small
passport size photographs. They were contained in
a brown small
envelope on which was printed "On Government Service". On
discovery of the photographs she immediately
recognised the photo
reflected as the likeness of PW3. She stated that she never planted
"Exhibit 34" inside "Exhibit
9". She went further
to say that she kept a record of some of the articles which were
found with the accused. She
that the accused was informed that there was something irregular
about his passport when he was taken to Maseru. I have paid
attention to the evidence of PW4 Policewoman Molapo first because
while at first it seemed in keeping with that of the Police
to deal with the accused at Butha Buthe, because of her arrogant
stubbornness along the way when she discovered that it
would put her
to shame to own up that her story in a particular respect could not
be accurate she decided to stick by the original
version which could
not be true. This is particularly so with respect to "Exhibit
34" and the record she claims she kept.
Hence her evidence taken
with that of all other Crown witnesses requires treatment with
caution. I doubt though whether her stubbornness
is not a kind of a
facade behind which she tries to conceal lack of intelligence or even
testified that "Exhibit 34" is an instant photograph he
took in a booth in London. He said he had not allowed anybody
it away from where he had kept it before he left for Mafeteng on
27-4-1990. Nor indeed had he authorised the taking of
any of his
property including that of the deceased to be taken away from his
house. PW3 is a musician of some renown. He is the
leader of a group
of singers known as Sankomota. He is well-travelled and the bags he
claimed as his bear testimony to this. Many
new and old travellers'
stickers and labels are there to see
portions showing position marks which were once occupied by stickers
which have since been removed.
learned DPP in summarising the case for the accused stated that the
accused's defence in essence is that he did not participate
commission of the crimes he is charged with. It is the evidence of
the accused that he was nowhere near the scene of crime
evening of 27-4-1990. He testified that he knows nothing about the
articles produced in evidence allegedly found with him
at Butha Buthe
that the goods which were produced as real evidence were found with
him when he was arrested at Butha Buthe. He says that
he saw the
goods for the first time at Maseru CID offices after his initial
arrest at Butha Buthe. He suggests that the police
these goods in issue were found on him is a wicked plot hatched by
the police so as to falsely implicate him in
the murder of the
deceased. He suggests that the police have devised this evil plot to
blame him for the sins of another person,
unknown to him, because he
is a foreigner belonging to the category of people usually referred
to in Lesotho as 'Makoerekoere'
- a rather uncomplimentary term used
to poke fun at the manner of speech attributable to black people
North of the Limpopo mainly.
said that on 27-4-1990 he left for Maputsoe to check on his agent
Lipontsa Mokhothu. He said Lipontsa was selling
for him as his agent. He said she lived at Maputsoe somewhere behind
Sekekete hotel. She did not have a shop from which
she sold the
accused's merchandise. She sold whatever goods were given to her from
her home or went about vending her goods as
a hawker. The accused
doesn't know his agent's house or home. Lipontsa has not visited the
accused to give an account of her sales
as an agent of the accused.
He reconciled himself to the view that Lipontsa was an unfaithful
agent if as at 27-4-1990 she had
not found it necessary to report
about the state of the business to her principal. The accused didn't
find Limpontsa on 27-4-1990.
He left Maputsoe for Maseru without
having found Lipontsa on that day. He is silent on how and when he
first established contact
with his agent.
evidence the accused says he left Maputsoe for Maseru between 5.30
p.m. and 6.00 p.m. On arrival at Maseru he went to see
friend Maggie Mokoena. From there he went to Hotel Malunga. However
he later changed his story about Maggie Mokoena and
said that he had
met Maggie Mokoena on a bus on which he was travelling from Maputsoe
to Maseru. At their first meeting on the
bus the accused made certain
advances to Maggie and one thing led to the other in consequence
whereof they ended up spending the
night in bed together at Hotel
Malunga. To his knowledge Maggie's home is at Mazenod. He was only
informed that Maggie lived with
her sister but further than that the
testified that he never met PW5 Ntoetsi 'Mota on the evening of
27-4-1990. Thus he couldn't have accosted her or anybody for
matter on that evening. He maintains that PW5 mistakes him for the
actual culprit. He is not that culprit.
that he has a track-suit which is predominantly blue albeit that
certain portions of it are white in colour. He further
admits that he
owns a black sling bag similar to the one described by PW5.
then how PW5 could have described him as wearing the tracksuit in
question on 27-4-1990 he said she possibly could have seen
wearing it at some earlier occasion. When the question was further
developed to suggest that "so during the occasion that
alleges she saw you you could have become a familiar sight to her in
that track suit...?" he excluded that possibility
during the subsequent occasion "she must have seen someone
else". One wonders why on the earlier occasion she
seen someone else if in the later occasion this is the case.
Conversely one wonders why if the possibility holds
that on the
earlier occasion it should not hold on the latter occasion because
being seen in a greenish blue track suit on both
is not a crime.
that he did not have any grey hair on his head on 27-4-1990. He
doesn't dye his hair. As he appears now he has a few strands
on his head and his beard is generously peppered with grey.
"Exhibit 30" the ladies watch he said he gave it to PW6
some time in April 1990. He does not recall the exact
date but it was
certainly not 28-4-1990. He recalls vividly that he paid M195-00 and
some odd cents for it but cannot say precisely
where he bought it
other than that it was from a certain Indian Shop at Maputsoe. He
denies ever telling PW6 that he told her that
he had bought "Exhibit
30" from Mafeteng. It is his evidence that the watch strap had
to be adjusted somewhere in town
before it could fit PW6 properly. He
is again hazy about where exactly the watch was adjusted save that it
was adjusted by someone
in Kingsway. His story about the adjustment
of "Exhibit 30" stands in sharp contrast to that of PW6 who
said the watch
was never taken anywhere for adjustment of its strap
but was adjusted by the accused himself on the day he gave it to her.
accused paints a very sad picture of his predicament at the hands of
the police after he was brought to Maseru from Butha Buthe.
he was beaten at the Maseru CID office by police
suggested to him that he should admit that he had killed the
deceased. He was so badly assaulted that his persecutors had to
him to hospital as they feared he might die in their hands. This
serious assault on him took place on the second day of his
Maseru. He was unable to stand or walk after this cruel treatment. He
told the Court that at one stage he even fainted
due to these
was not enlightened about at what stage the accused recovered
consciousness. Indeed he was referred to the portion of
evidence-in-chief where for more than three times his Counsel asked
what happened to him after arrival in Maseru. Each time
he said he
was being questioned. Only after the question had been asked for the
4th time did he suddenly remember that he was subjected
assaults that he related at great length to this Court.
ordeal at the police station he says he was taken to Makoanyane
Barracks and the other Barracks near Hillsview, apparently
Ratjomose Barracks. At Makoanyane someone took his blood sample after
which he was subjected to further assaults by some soldiers
both his hands and feet were manacled. The police officer who took
him to Makoanyane Barracks announced that the accused
was the person
who had killed their musician's wife. At one stage he says he was
assaulted from the first day
arrival in Maseru until 4-5-1990, at another he says the assaults
started on the 2nd day of that arrival. From Makoanyane
he says he
was taken to the barracks near Hillsview where he was kept in the
cells and from there back to Makoanyane Barracks.
4-5-1990, so his story goes, the accused was taken before a
Magistrate. At the Magistrate's offices he was taken to a room where
he found a man occupying a seat. This man without so much as
introducing himself asked the accused to tell him something
being the word actually attributed to this man
by the accused". The accused then told this man that he knew
the accused says he was taken back to the police
station. This time he says he was beaten to within an ace of his
life. He says
he was made to sign some papers not knowing what was
written on them.
the Court that he does not recall ever being charged. What he
remembers is that police took him to the Magistrate's court
after beating him. Then he was taken to an office where he met a
woman who informed him he was not obliged to say anything.
told him that he would appear in court on some future specified date.
Thereafter he was taken to the Central Prison at
Maseru. This was on
he informed the warders that the police were
in a plot to falsely implicate him in the deceased's murder and other
offences the text is as follows :
"........? I was subconscious What do you mean....? I did not
know where I was During this period you were not aware of your
surroundings...? I was aware but I only became subconscious when I
got there at prison".
learned DPP submitted that what the accused says is false; and stated
that the accused wanted to say something indicating that
he had been
tortured at the Magistrate's Court.
accused went further in his evidence to say that he did not tell the
Magistrate before whom he appeared that he had been severely
assaulted because he did not know that the Magistrate was a proper
person to report to.
strange thing is that even though the accused was severely beaten as
he says, he was never instructed what to say to a Magistrate
he wish to confess to the killing of the deceased. Indeed the general
picture he has given concerning his treatment by the
police is that
of callousness and complete disregard of his rights as a human being.
it is his firm belief that there was a conspiracy among the police to
frame him for crimes committed by someone
is not able to suggest why the police should wish to fabricate
evidence against him more particularly when it appears that
police know the identity of the perpetrator of the vile deeds
committed at the deceased's home.
amazing that while the accused had made it appear that he had no
connection whatsoever with Namibia and that the very name
mentioned by PW6 could have been a product of her fertile imagination
it turned out that he had been in Namibia and grew up
there for a
greater part of his life. But this revelation was not to be until his
claim that he was Zulu-speaking citizen of South
Africa was shown to
be doubtful when the Learned Counsel for the Crown gave him a story
book written in Zulu to read from. It was
then and only then that he
acknowledged that he didn't know Zulu and the reason he advanced was
that though born in Natal in the
Republic of South Africa he went to
Namibia while still of tender age when his mother got married to a
Namibian after the death
of his father. His pretence to the knowledge
of what the content was of the highest standard of education he
achieved was also
revealed by the competent cross-examination by the
DPP based on clear familiarity with the education system in South
the accused said he obtained his education was also
leave of Court the Crown called PW12 Mpoetsi Leche to
evidence in rebuttal regarding the question whether the accused spent
the night at Hotel Malunga on 27-4-1990. PW12 at that
time in 1990
was employed as a receptionist at Hotel Malunga. Her duties as a
receptionist included checking in as well as checking
out guests at
testified that she met PW1 at Hotel Malunga in 1990 although she
cannot recall when PW1 had come to the hotel to make inquiries
whether a certain person whose description he gave, had checked in at
the hotel the previous day or night. PW12 recalled having
such a person the previous night. She clearly recalled that the
person described by PWl had checked in at the hotel at
midnight just when the reception was about to close. The man in
question had a lot of luggage and had some currency
with which she
was not familiar. The witness observed that the man was very dark and
she assumed that he was a 'Lekoerekoere'.
He was also tall. Reference
to foreign currency does not include the South African rand in this
not know how the guest she received arrived at the hotel. Among the
luggage this guest had with him was a maroon bag;
in fact a
suit-folder. She said that the suit-folder she saw was similar to
Exhibit 28. She recalls that the other bags carried
by the guest had
some tags on them. She recalls that she observed on one of them the
word British or Britain written
She testified that the guest stayed one night at the hotel and left
the following day. When the guest checked out no one
assisted him to
carry his baggage. Thus he made several trips between his room and
the reception area where he placed this enormous
baggage. He asked
PW12 to keep an eye on it after he completed ferrying this baggage
from his room to the reception area; as he
suggested he was going to
look for means of transport. He later came back in a taxi and carried
his baggage with the assistance
of a conductor into the taxi. The
taxi was a kombi.
arrival at the hotel this guest had no companion with him, either
male or female. He said he was hungry and would like to order
food but was told that as he arrived so late it was long past meal
time, so no food was served to him. When he checked out
he was still
on his own.
further to say PW1 arrived at the hotel after the man had left. She
cannot recall whether this was shortly after the guest
left or on the
testified that when PW1 arrived at the hotel inquiring about a
certain man no other person with so much baggage had arrived
hotel, at least around the time PW1 arrived making inquiries at Hotel
Malunga. Nor did PW1 come
any such inquiries more than once that year. PW12 started working at
the reception desk either in February 1989 or 1990.
But she left the
employment of the hotel in October 1990. She was not cross-examined.
Sempe was called as a Court witness to give evidence in regard to
certain issues raised by the accused when he testified
defence. She testified that she first met the
on 1st May 1990. She met him in the course of her investigations of a
murder case. She said her role was to assist and advise
the team that
was investigating the murder. She professed her knowledge of the
exhibits before court having seen them during investigations.
denied that she took a receipt from the accused reflecting that the
accused was a guest at Hotel Malunga on 27-4-1990. She
PW1 was instructed to proceed to Hotel Malunga after the deceased's
death. She firmly insisted that she did not take
any receipt from the
accused. she said she was the second-in-command at the Maseru CID.
She said the first-in-command was Lt. Col.
Ngatane. It was not
suggested to her that she was a party to a conspiracy that was bent
on implicating the accused falsely in the
murder of the deceased and
the commission of other crimes at the deceased's home.
subjected to a vigorous cross-examination regarding
police lack of seriousness in their duty in that they left
investigation of the murder of an important citizen and wife of a
famous musician to junior officers in the police force. She was told
that she had pretended that she knew the exhibits before court
when questions relating to these exhibits were put to her she
revealed her ignorance. Regard being had to the fact that PW12
that PW1 came in the morning either of the day the guest checked out
or of the next day, taken along with the fact that the
arrested on 1-5-90 which was soon after the quest had left Hotel
Malunga it cannot be true that the night when the
accused had checked
in there was 27-4-90. Be it borne in mind that PW12 said immediately,
on learning that a man answering to the
accused's description was
seen at the Crocodile Inn at Butha Buthe he asked that he be arrested
while he himself forthwith set
out for Butha Buthe to convey the
accused from there to Maseru.
submissions Mr. Maqutu for the defence pointed out that the onus of
proof lies on the Crown throughout. I agree.
further submitted that an accused person cannot be convicted merely
because he is a liar or has lied. I agree. For this he reposed
reliance on Rex v Moroka Mapefane CRI\T\80\81 with which I agree.
elaborated this by referring the Court to Hoffmann and Zeffertt South
African Law of Evidence 3rd Ed. page 472 supporting the
that giving false evidence may lead to the witness story being
discarded or giving neutral facts an element of suspicion.
learned authors' submission relied upon by Mr. Maqutu says :
the Court is not entitled to say that because he has been proved a
liar, he is therefore likely to be a criminal. It is
possible that an
innocent person may put up a false story because he thinks that the
truth is unlikely to be sufficiently plausible".
paying attention to the learned authors' submissions it is important
however not to lose sight of Lord Devlin's speech in
Broadhurst vs R.
(1964) AC 441 at 457, viz:
"It is very important that the jury should be carefully directed
on the effect of a conclusion, if they reach it, that the
lying. There is a natural tendency for a jury to think that if an
accused is lying, it must be because he is guilty
and accordingly to
convict him without more ado. It is the duty of the judge to make it
clear to them that this is not so. Save
in one respect, a case in
which an accused gives untruthful evidence is no different from one
in which he gives no evidence at
all. In either case the burden
remains on the prosecution to prove the guilt of the accused. But if
on the proved facts two inferences
may be drawn about the accused's
conduct or state of mind, his untruthfulness is a factor which the
jury can properly take into
account as strengthening the inference of
guilt. What strength it adds depends of course on all the
circumstances and especially
on whether there are reasons other than
guilt that might account for his untruthfulness".
Maqutu went on to caution that the police are not above the human
temptation of trying to succeed by hook or crook. He referred
me to a
passage in Mapefane above extracted at p.5 saying :
"The idea to write a note might well have come from the police.
The police were obviously trying their very best to get evidence
against the accused......."
well be so in Mapefane but another principle to observe equally
passionately is that every case should be dealt with on
relying on Hoffmann and Zeffertt p.481 Mr. Maqutu submitted that the
police in the instant case compared notes and conspired
to lie and
say the accused had in his possession luggage which he did not in
fact have. If so, I wonder if this criticism against
the police would
apply to Capt. Sempe regarding whose evidence it has been pointed out
that it was never put to her that she was
part of any conspiracy to
display some enthusiasm to falsely implicate the accused. See
Phaloane vs Rex LLR 246 where Maisels P.
"It is generally accepted that the function of counsel is to put
the defence case to the rowan witnesses, not only to avoid
suspicion that the defence is fabricating, but to provide the
witnesses with the opportunity of denying or confirming the case
the accused....." c\f Small vs Smith 1954(3) SA at 434.
Counsel for defence submitted that PW5 was seeing
accused for the first time yet no identification parade was held. Her
observation of her assailant was in poor light. When she
saw that the
accused had no grey hair she twisted her evidence to meet that
evidence up to a point. But Mr. Mdhluli for the Crown
the evidence of PW5 is important insofar as it connects her assailant
with the events at the home of the deceased.
The inference is
irresistible if not the only reasonable one that PW5's lumber jacket
"Exhibit 2", was taken to deceased's
home by her
assailant.....even if PW5 did not recognise her assailant, the
identity of her assailant.....the eventual killer of
the deceased can
be established by way of extrapolation based on other evidence, I
agree with this submission.
is significant that the description of PW5's assailant given to the
police reasonably soon after the attack was used by
the police to
trace the man they were looking for and it was that description that
led to the eventual apprehension of the accused.
In my view it would
be either reducing or extending the notion of coincidence to
absurdity if it were to be suggested that PW5's
description of her
assailant that led to the apprehension of the accused was a mere
coincidence. It is also significant that the
person who accosted PW5
on the evening of 27-4-1990 was wearing a bluish green tracksuit and
had a black sling bag and it later
turns out that the accused owns a
and a sling bag similar to the one described by PW5.
Maqutu sought to cast doubts about what he referred to as some other
'Lekoerekoere' who slept at Hotel Malunga bringing with
him a lot of
luggage. He questioned why this witness was not called in the first
place and why she did not bring a register. He
submitted that the
accused claims that on coming into the hotel he did not arrest
attention when he came with his girl friend into
that hotel and
further that he registered himself under a false name when he did.
submission ignores the fact that the accused first said he went alone
to Hotel Malunga. He mentioned the question of going
to his girl
friend as something that he did on his way to that hotel. The
question of him going to the hotel with her only arose
changed his story to the effect that in fact he had come along by bus
with her from Maputsoe.
is in my view a matter of strange coincidence that the person
described by PW12 should fit the accused so well. Furthermore
it is a
strange coincidence that the suit-folder that she says she saw the
guest bringing into the hotel should be so similar to
the one that
went missing from the deceased's home, letting alone the strength of
the evidence that shortly after the guest checked
out a very similar
bag was found on him in Butha
even though of course he denies this. Assuming for argument's sake
that the police had conspired to implicate the accused
tying to him the baggage that did not belong g to him it escapes me
to consider what part if any PW12 played in that
even though she may not have known this fact when she was making
reference to the bags before Court, the same
bags are the ones that
the police testified the accused claimed as his when he was arrested
at Butha Buthe.
It is in
this connection that it is prudent to adopt Malan J.A.'s approach in
R. vs Mlambo 1957(4) SA 727 at 737 D-F that it was
have regard to the realm of conjecture when there was at hand
material which furnished "a perfectly sound,
sense solution of the problem".
significant that reference was made to foreign currency that was
found on the accused at Butha Buthe. PW12 also made reference
fact that the guest who came there late in the night during dates
falling within the immediate time frame of the murder
I have no
doubt in my mind that in his denial of the fact that he gave "Exhibit
30" to PW6 on 28-4-1990 the accused is
untruthful. It is also a
strange coincidence that the watch that he claimed he bought for his
girl friend should be handed to her
hours after a similar one belonging to the deceased had gone missing.
The deceased was said to be a rather tiny woman. It is
significant that the adjustment effected to make the strap fit PW6
was in enlarging the circumference of the watch strap.
clear the reason why the accused seeks to place the time when he
claims he bought the watch far in advance of 28-4-1990.
simply is to capitalise on the impossibility of the watch coming into
his possession before it could go missing at the
deceased's house if
it is claimed by the Crown that it is the same watch.
has considered the merits and demerits of the case for respective
parties and has come to the conclusion that the accused's
the material facts is not only improbable but beyond all doubt false
save only on the fact that his hair at the back of
his head is not
regard to the law concerning the probabilities and improbabilities of
the case in S. vs Jaffer 1988(2) SA p 88 Tebbutt J. (previously
Lesotho Court of Appeal Judge) said
"It is, of course, always permissible to consider the
probabilities of a case when deciding whether the accused's story may
reasonably possibly be true....".
In S. vs
Munyani 1986(4) SA 712 at 715 Van der Spuy said:
"There is no room for balancing the two versions i.e. the
State's case against the accused's case and to act on
G Van der Spuy above said :
"In other words, even if the State case stood as a completely
acceptable and unshaken edifice, a Court must investigate the
case with a view to discerning whether it is demonstrably false or
inherently so improbable as to be rejected as false".
instant case being a circumstantial one the Court has to have regard
to the cardinal rules of logic set out in R. vs Blom 1939
where these rules are set out as follows :
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
exclude the other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct".
impossible to give credence to the accused's version that the watch
he gave to PW6 was bought by him in the light of the fact
had doubts about its newness and that she says he gave it to her a
day after the one of the deceased disappeared. Nor
is it possible to
give credence to his story that the police falsely linked him with
the property belonging to
deceased and her husband which they said he claimed as his.
categorical that she received "Exhibit 30" on 28-4-1990
from the accused; the very day the deceased was found
stands firm that the accused said he bought it from Mafeteng. It is
to be wondered what PW6 is to gain from falsely saying
the watch was
said to have been bought from Mafeteng and not Maputsoe if at all her
story is false on this point as the accused
would like this Court to
believe. PW6 consistently rejected the accused's suggestion that
after the watch had been given to her
it was taken away from her for
some days with a view to adjusting its strap. Why should she agree
that the strap had to be adjusted
and reject a seemingly innocuous
statement that for some days it had to be taken away for purposes of
adjustment of the strap.
cross-examination she was quite frank that she feared that the
accused might have killed somebody but what is important in
evidence is that nowhere in her evidence does she give the impression
that her impression that the accused had killed somebody
her evidence. Her evidence as to when the accused gave her "Exhibit
30" nowhere considered by itself associates
the accused with the
murder. If it had been given long time before the death of the
deceased it is difficult to see how PW6 would
associate it with the
became aware that the accused was a suspect when he came with the
police. Hence her desire to return the watch to the person
she had obtained it. That sounds a responsible enough sign. It seems
the police had not even been told anything about
the watch for it was
when they were about to leave with the accused that PM6 volunteered
to return it but the police took it. It
is in this respect that PW1's
version cannot hold good against PW6's when he suggested that the
accused led him to the place where
he was to pick up a watch thus
creating the impression that this had been the purpose of which the
accused led him there.
the basis of the totality of the evidence and the Court's impression
of the witnesses the accused's alibi must fail. See
R. vs Hlongwana
1959(3) SA at 370-1. I am of the firm view that even if PW5 did not
give the identity of her assailant, but had
been treated by a person
unknown to her in the manner in which she alleges she was, with the
result that she parted with "Exhibit
2" in circumstances
similar to those she alleges the accused was involved in, once
"Exhibit 2" was found at the
deceased's place and all else
that followed did occur it seems to me that the question of PW5's
identification of the accused would
be superfluous and therefore
unnecessary. Thus in my view "Exhibit 2" whose ownership by
PW5 is not denied provides an
axle around which every wheel in the
machinery turns. It provides an
by-pass around all hurdles or obstacles which inaccuracy of identity
of the culprit would otherwise occasion. Such is
the importance in a
case based on circumstantial evidence where
"If we find a variety of circumstances, all pointing in the same
direction, convincing in proportion to the number and variety
those circumstances and their independence one of another, although
each separate piece of evidence, standing by itself, may
admit of an
innocent interpretation, yet the cumulative effect of such evidence
may be overwhelming proof of guilt". See
R. vs J.A. Dickman at
Newcastle assizes on 4th July 1910.
separate piece of evidence while individually light would when its
weight is added to the weight of all such pieces of evidence
to serve as that final straw whose weight is enough to break the
camel's back. Put in another way :
" '....... even two articles of circumstantial evidence - though
each taken by itself weigh but a feather - join them together,
will find them pressing on the delinquent with the weight of a
millstone.... It is of the most utmost importance to bear in
that where a number of independent circumstances point to the same
conclusion, the probability of the justness of that conclusion
the sum of the simple probabilities of those circumstances, but the
compound result of them.'.......The court must not take
circumstance separately and give the accused the benefit of any
reasonable doubt as to the inference to be drawn from each
taken. It must carefully weigh the cumulative effect of all of them
together, and it is only after it has done so that the
entitled to the benefit of any reasonable doubt which it may have as
to whether the inference of guilt is the only inference
reasonably be drawn."
vs de Villiers 1944 AD 493 where Davis A.J.A. said :
"But I should not leave this point without dealing shortly with
dismissed as fallacious that
"the court must take each factor separately, and, if each of
them is possibly consistent with innocence, then it must discard
with the approach adopted by Davis A.J.A. and do endorse most
heartily the statement in The Law of Evidence in South Africa
by Scoble at p.2 that
"Therefore, where the evidence in a circumstantial trial is
entirely circumstantial, the court must bear in mind that the
inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation upon any reasonable hypothesis
other than of his guilt".
that this is the position in the instant trial: inculpatory factors
are incompatible with the accused's innocence.
basis of my findings the only possible inference is that the accused
deposited "Exhibit 2" at the deceased's home
and he is the
one who killed the deceased and committed other crimes charged in
the question of intention it would seem that if a
out in the night, rapes and by use of brutal force and lethal weapons
stabs her and bashes her head causing a depression
of the skull
scattering the deceased's teeth such that one of them was found
implanted in her hair thereby with the motive to rob
and commit other
related offences the requisite intent to murder has been proved.
accused is accordingly found guilty of : Murder in Count 1 Robbery in
with intent to steal and theft in Count 3 Rape in Count 4 My
J U D G E
Accused pleads none.
; In Count 2 : 8 years' imprisonment
In Count 3 : 5 years' imprisonment In Count 4 : 7 years' imprisonment
in the case to be released to their respective owner's or estates as
the case may be.
accused through his Counsel has informed the Court that he and his
Counsel have consulted and have chosen to close their case
stage of proceedings without pleading anything in extenuation.
Sakoane for the Crown however rose to draw to the Court's attention
that even at this turn of events in the proceedings the
enjoined in terms of Section 296 of the Criminal Procedure and
Evidence to make a finding on the existence or otherwise
extenuating circumstances. This is the case irrespective of the line
of action followed by the defence.
relevant law reads:
the High Court convicts a person of murder, it shall state whether
in its opinion there are any extenuating circumstances
and if it is of the opinion that there are such circumstances, it may
deciding whether or not there are any extenuating circumstances, the
High Court shall take into consideration the standards
of an ordinary person of the class of the community to which the
to comply with the requirements of sub-section (1) shall not affect
the verdict or any sentence imposed as a result thereof."
Maqutu's reply was to reassure the Court that the defence is aware of
the provisions referred to in the Criminal Procedure and
in line with the decision the defence has reached it is within the
defence's right not to make a plea in extenuation.
Hence the defence
is not going to either give evidence in extenuation or address Court.
normally enjoys the assistance of Counsel's advocacy in pleading in
extenuation, even in cases where the existence of
circumstances is minimal. In any event normally the existence of such
circumstances has to be established by the accused
on a balance of
case the Court acting on its own has tried in consultation with the
assessors to find if extenuating circumstances exist,
but in vain.
The Crown submitted that there are none either.
there are no extenuating circumstances in this case. Instead there is
existence of aggravating factors. Such aggravating
factors are the
crime of robbery, rape and housebreaking with intent to steal and
theft in the course of which the deceased was
murdered. The absence
of extenuating circumstances makes the ultimate penalty mandatory.
Will accused say why death sentence shall not be imposed.
Nothing to say.
The sentence of the Court is that you shall be removed from the dock
where you are standing and on an appointed day and time
death by hanging from your neck until you are dead.
have mercy on your soul. My assessors agree.
J U D G E
4th March, 1992
: Mr. Mdhluli and Mr. Sakoane
Defence: Mr. Maqutu
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