HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 24th day of August, 1992
This is a
summary trial in which the accused faces two counts in respect of
offences allegedly committed on 23rd March, 1991 at
Ha Lebamang in
the district of Maseru.
count charges that the accused did unlawfully and intentionally kill
Paul Mothabeng while the second count charges the
accused with the
crime of attempted murder wherein the complainant Ntja Sele was shot
with a pistol as a result of which he sustained
accused pleaded not guilty to both these charges of murder and
outline of the case for the Crown based on the testimony of some of
the sixteen witnesses called is that during day time
on 23rd March,
1991 a group of musicians consisting
men led by PW4 Ntja Sele set out from Roma for Ha Khanyetsi in PW4's
kombi to stage a concert at the home and business
premises of PW3
Pheello Tsoeu. The group arrived there late in the afternoon.
deceased Paul Mothabeng a policeman in the RLMP and his cousin PW5
Tseliso Mothabeng who are not musicians joined the musicians'
from Roma to their destination at Ha Khanyetsi where they hoped to
enjoy the concert music that the group would provide.
party arrived at Ha Khanyetsi it appeared that a big crowd of people
had already gathered in response to the advertisements
beforehand been displayed and disseminated by word of mouth for the
impending concert due to be staged at an appointed
hour in the
afternoon of the day in question.
advertisement of the music group's arrival and presence at PW3's
place was provided by radio cassette music blaring from
kombi the immediate effect of which was, as if by magic, to set the
crowds breaking into vigorous dancing and ecstatic
joy. Thus the
entire atmosphere was transformed into a seething wave of human
accused, in the typical manner of a spoilsport or the Biblical fly in
the ointment and for no reason whatsoever, approached
Mphunyetsane Phoka slapped him in the face and ordered him to stop
positioning the speakers in preparation for the concert
him to remove those things and go away. The deceased's pleas to the
accused to allow the concert to go on met with
manifested by the accused's throwing away the deceased's Identity
Card. PW4's attempts to persuade the accused
to allow the concert to
go on equally fell on deaf ears. The result was that PW4 and his
group loaded their musical equipment into
their kombi and left after
the accused had urged PW3 to drive what, in reference to the group,
he termed rags out of PW3's yard.
When the group left or shortly
afterwards it was necessary to switch the headlamps of the kombi on
as it was early dusk.
however important to point out that with regard to the events which
are alleged to have occurred at Ha Khanyetsi PW3 denies
contradicts the version given by other Crown witnesses. Even though
these witnesses give the impression that it was the accused
thwarted the staging of the concert at his place, PW3 disputes this
allegation. He further denies that the accused chased members
music group away. It is significant that the Crown made no attempt to
have this witness impeached nor did it refer to his
yet his version tends to support the accused's version as to events
which took place at Ha Khanyetsi. Thus his testimony
the Crown itself, with no doubt full sense of responsibility, cannot
be ignored. However according to PW4 the absence
of a tent would pose
no problem because it had been agreed between him and PW3 that the
latter would supply a make-do shelter by
means of some Canvas sails
to enable the concert to go on. PW3 made no mention of this, nor
would it be proper to elicit it through
cross-examination by the
Crown before and unless he had been impeached by the Crown whose
other witnesses' evidence is at variance
testified that the reason why the concert did not take place was
first that PW4 had failed to secure a tent wherein this was
place, next that PW4 had failed to secure a permit from the police or
to obtain the local chief's permission to hold that
denies the allegation that the accused ordered him to order "these
rags out of his yard". Rags in this sense
was portrayed by the
other Crown witnesses who were at Ha Khanyetsi at the time to mean
PW4 and his group.
important occurrence took place there at Ha Khanyetsi according to
those of PW4's group who testified. It is according to them
was grabbed by the accused before being slapped across the face. But
PW6 denies that he was ever grabbed by the
before being so slapped. It is therefore to be wondered why PW5
Tseliso Mothabeng, PW7 Hlaeli, PW8 Tsokolo Sesha should
impression to the Court that PW6 had been grabbed before being
slapped in the face. It is equally to be wondered why PW4
who did not
see the alleged slapping should take so long to admit that he did not
see the slapping despite his testimony that he
only heard the sound
of the slapping effected some estimated distance of 10 paces away
from him in the middle even of the loud
music that was going on and
the near hysterical noise of excited dancers around him.
submitted that the version put to PW4 of insults uttered by his men
and denied by Crown witnesses is not borne out in
evidence. But DW2
'Machaka testified to hearing such insults. Thus it cannot be correct
that there is no evidence on record bearing
testimony to the
utterance of such insults. Whether the version so put or the evidence
supporting it is true or false is another
attempt to show that the accused was deliberately lying when he said
he did not see any musical instruments when he came to
the scene at
Ha Khanyetsi the Crown sought to rely on the accused's sworn
affidavit deposed to earlier when he applied for bail
in Court. The
deposition is to the effect that the
said he had "found a group of men assembling musical
instruments". The Crown relying on DW2's evidence to expose
accused's alleged untruths submitted that the accordions and quitar
were there and plainly visible to all and sundry. The accused
to explain away the difference between "finding" and
"seeing" the men "assembling musical instruments"
by saying he had been informed that those were the men who had been
doing so but who had finished doing so and were no longer doing
when he found them. The text reads at 472 of my notes :
"So you saw musical instruments at Ha Khanyetsi ......? I said
so at that time in regard to the statement of that time.
Why now vehemently deny what you said in this Court....? I now talk
of what I saw not what is supposed to have been given to me
interpretation of events observed by PW3 and PW4.
That's not answering my question....? That's how I take it to be.
Why insist today you never saw any instrument...? This time I talk of
what I saw not what I was told others said 'we did this and
'saw this and that'.
Why did you deny seeing instruments there.....? Because today I am
asked about what I saw not what I was told others had done.
You deny saying you saw instruments....? I never said I saw them.
In affidavit you said you found men assembling instruments......? I
said I found men in the yard.
You said you found men who were assembling instruments .....? I said
What did you mean by saying you found them assembling the
instruments.....? As I earlier said I found
crowds in the yard till I came to my vehicle and ultimately got into
the house. It only came to my attention through PW4 that these
done or had been done.
What is meant ordinarily by saying you found someone doing
something......? That you came where he is alleged to have been doing
something. The information was - they had assembled instruments. I
didn't see with my eyes.
inclined to think that this explanation is something in the nature of
a fourflusher as indeed Mr. Phafane for the defence when
Court if he could give any sensible meaning besides that conveyed in
the expression "I found them assembling musical
or even doing a thing, candidly stated that he didn't think he could
be of any further assistance to the Court
in that respect. But it
should not be overlooked that PW3 who was called to testify for the
Crown said in respect of this point
which seems to be regarded as
crucial by the Crown "I had not seen any musical instruments up
to this point". See page
41 of my notes.
supports the accused's version that the discussion pertaining to the
fate of the aborted concert went on harmoniously between
PW4 and PW3
in the presence of the accused in PW3's house. PW3 said he saw PW4
and his men depart in their kombi without an incident.
He referred to
having heard PW4 instruct his men to load drums into the kombi. He
says he did not see these drums though.
common cause that some one and half hours after PW4 and his group had
left Ha Khanyetsi the accused also left along the road
Roma thus following PW4 and his men. While PW4 and his men might not
have known the time when the accused departed from
Ha Khanyetsi the
evidence of PW3 is on hand to substantiate this point.
important to take note of places that lie ahead between Ha Khanyetsi
and Roma. Starting from Khanyetsi side these are Ha Khanyetsi,
Likolobeng, Likatseng, Pheuoeng, Nyakosoba, Ha Ngakane, Ha Lebamang
and finally Roma.
It is at
some of the above places that the Crown sought to show that PW4 and
his men stopped for a variety of all legitimate and
purposes. Indeed looking at everyone of the stops made by PW4 and his
men it seems a reasonable explanation is tendered
for each such stop.
explained that at Likolobeng the group had stopped to have a meal. On
the face of it nothing sinister can be read into that.
testified that after crossing some stream while heading for Likatseng
the accused overtook him but shortly afterwards he overtook
accused's vehicle at Khumamela where the accused had
his speed as if to stop.
PW4 came to Pheuoeng he stopped shortly to inform his brother by
shouting to him that the concert had failed. PW4 said
he didn't have
to disembark in order to make this report because his brother was
standing next to the road. He said the accused
came and stopped his
vehicle behind PW4's.
vehicles started moving again at reasonable speed regard being had to
the nature of the road which is an ill-maintained
dirt road that is
not only narrow but also admits of no high speed. PW4 could see the
accused's vehicle coming behind with its
the Court that when he reached Nyakosoba the accused drove past him
and headed for a T-junction one of whose branches to
the left leads
to Ha Ramabanta while the other to the right leads to Roma.
he chose a short cut road cutting through Nyakosoba village and
joining the Ramabanta-Roma road on the other side of the
didn't see any vehicle coming from behind his till he came to stop at
Ha Lebamang where he parked his vehicle near
the scene on the
Khanyetsi side of the culvert which the
went to inspect during the course of this trial. He said his purpose
for so stopping was so as to relieve his bladder.
accused's version on the other hand is that regard being had to the
head start PW4 had had of him when leaving Ha Khanyetsi
surprised to see PW4's vehicle just ahead of him when he came to
Likolobeng. He does not deny that the group could have
for some meals but he says that as soon as he was near enough to see
these men he saw them rush from either side
of the road and get into
their vehicle which drove off ahead of him before he could come to
stop; for he had observed that their
vehicle had stopped in the
middle of the road. However PW4's vehicle drove ahead of the
accused's vehicle till reaching Likatseng
where PW4's vehicle started
moving at painfully slow pace ignoring the accused's desire to be
given way. He said he signalled his
intention to pass by blowing his
horn and flickering his indicators to the right. DW2 Mosiuoa Phakane
'Machaka fully corroborates
the accused in this and other material
aspects of the defence case. An impression was sought to be created
by the Crown that DM2
must have sat together with the accused to
concoct a false account of events which occurred on that fateful day.
But in my recollection
of the circumstances of this case a good many
questions had been put to the Crown witnesses outlining the defence
case in such
a manner that the Court was not left
what the defence was going to be and what the accused was going to
say when he came to testify. It was in a different setting
think the accused felt compelled to call DW2 for he was asked by the
Crown itself during the course of cross-examination
whether he would
call a witness to substantiate a single and identified point raised.
Being thus dared it seems that the accused
being eager to be as good
as his word for the benefit of the Crown called DW2 who neither
advanced the accused's version in material
respects nor detracted
from it at all judging the case as a whole. The text in which the
accused was dared to bring a witness who
would support the side of
his case where he himself testified he never heard PW4 or any of
PW4's group members swear at him is
at page 471 starting at 470 of my
notes; and it goes :
"Other than the fact that PW4's face gave you the impression
that he was angry did he say anything to say he was angry at
Khanyetsi.....? He didn't say anything.
Assuming he was angry; with whom would he have been angry......? I
It would not have been with you, would it.....? No.
He wouldn't be angry with you for he was an observer. He had no
business to be angry with you for you were talking with the
I have no such knowledge. I don't know if he wouldn't
be angry with me.
But you were not talking with him. You were talking with the
After this when he went away before he left (for Roma) did you
contact him ......? No.
Before then what was the last thing that PW4 said to you when you
were with him....? He suggested that I should ask PW3 to allow
concert to proceed; and at that point the deceased intervened saying
he was a policeman and would assume the responsibility
of seeing to
it that law and order were maintained.
Will you confirm that this being so PW4 therefore did not insult
you.....? I never said so.
Court: Question was to invite you to confirm if he insulted you.....?
He never insulted me.
C.C Will you comment on what was put to PW4 by your Counsel namely
that 'There will be evidence that when you left Ha Khanyetsi
swearing and saying this boy is silly and we will catch him one
day'......? I heard that but it was not said Masupha the
would say it.
If this type of witness is brought would his statement be true....?
It will be true depending on the testimony of that man who
at the place where he and PW4 were together and not where I myself
..........Will you bring him to testify......? Yes."
submitted on behalf of the accused that at Likolobeng where PW4 had
stopped the other Crown witnesses in his group testified
had seen the accused's vehicle approach from behind theirs yet PW4
denies having, seen any vehicle or the accused's at
all. PW5 who is
the deceased's relative agrees with the accused's story to the effect
that when the accused's vehicle got near
PW4's vehicle the latter
already stated that the accused's version is that from Likatseng to
Ha Lebamang except for the round about way he took at
vehicle was always behind that of PW4.
accused further testified that for the entire 15 to 20 km spanning
the distance between Likatseng and Pheuoeng PW4 was driving
at a very
slow pace ignoring the accused's pleas to overtake. Significantly
despite PW4's story to the contrary it was never put
to the accused
that he in fact overtook PW4 who in turn overtook him at Khumamela.
However it was the accused's further story that
PW4 stopped in the
middle of the road upon a cement bridge at Pheuoeng thus making it
impossible for the accused to pass. The accused
said he waited
patiently behind and had resigned himself to doing PW4's bidding for
he felt PW4 might have felt angry with him
for failing to assist him
with the result that the intended concert did not take place at Ha
Khanyetsi. With this in mind he decided
that he would be patient and
accept the slow pace inflicted on him by PW4. Thus for a further 6 to
7 Km spanning the distance between
Pheuoeng and Nyakosoba he resigned
himself to what seemed to be his fate that night i.e. following
slowly behind PW4.
admits that he had stopped at Pheuoeng but says his vehicle was off
the road. He also admits that the accused's vehicle had
behind his though he gave no reason why the
would not pass yet there was nothing to obstruct the passage of the
latter's vehicle. While on the one hand PW4 admits at
least that the
accused's vehicle had stopped behind his kombi in this area, PW5 and
PW6 on the other deny that the accused's vehicle
came anywhere near
PW4's vehicle at that spot nor stopped behind it. It is common
knowledge as even experienced in CRI\T\22\88
Rex vs Motamo Sehlabaka
that witnesses sometimes contradict one another in a manner that it
becomes doubtful whether their side
of the story would carry the day
and the accused and several other witnesses testified that indeed PW4
pulled to the side at Nyakosoba with the result
that the accused was
able to pass, PW5 denies that his group's vehicle did so. He further
denies that his group had stopped there
for purposes of passing
witnesses denied that the road followed by PW4 from Nyakosoba to the
Ramabanta-Roma junction is an old unused road. It
is however common
cause that this is a short road but which is in an advanced state of
disrepair with the result that negotiating
one's way in a motor
vehicle on it is an extremely slow process. The Crown's submission
was consistently that no ill-motive could
be ascribed to PW4 and his
group for the slow rate at which their vehicle was moving ahead of
the accused's and
the state of the road for that. On the other hand the defence
submitted that PW4 and his men had hatched a plan to waylay
accused and refers to the concerted effort on their driver's part to
block the accused's passage as part of this plan. The
indicated that the many stoppages were in part to ascertain whether
the accused was still following their vehicle
as they didn't want to
lose sight of him for whatever sinister motive they had against him.
defence in making this submission relied on the fact that though a
considerable distance away from where PW4's vehicle had pulled
side at Nyakosoba where the accused was able to pass the place where
PW4 and his men were gives on the Ramabanta-Roma junction
and that it
would be possible even at that distance to observe through the
signalling effected by the accused that the latter was
heading not in
the Ramabanta direction but Roma, The defence buttressed this
argument by stating that it would in any case be inconceivable
despite all appearances that the accused was going home to Matsieng
he could use a round about and very bad road that spans
places instead of a much shorter, safer and tarred road that leads to
Matsieng via Roma.
the question is not necessarily whether PW4 and his group did see
that the accused turned in the Roma direction when
to the junction, but whether they could if they looked. In my view if
the T-junction is visible from where PW4 had parked
at Nyakosoba then
nothing could prevent him and his group from seeing which way the
accused turned and headed when he came to the
testified that after joining the tarred road beyond Nyakosoba he
headed for Ha Lebamang where he stopped his vehicle partly
tarmac to the left. The accused on the other hand says that having
followed the round about way he was surprised to find
that PW4 had
once more stopped at a curve topping the start of the descent into
the Nyakosoba stream. However, he testified that
the vehicle ahead of
him moved at high speed and fell out of his view. But, so his story
went, he again found himself confronted
by PW4's vehicle which had
stopped between the raised walls of the culvert at Ha Lebamang
practically making it impossible for
him to pass. He testified that
all the doors of PW4's vehicle were open at this stage. The accused
said he stopped his vehicle
to the left on the road behind PW4's
denies that he had parked his vehicle in the middle of the culvert.
Nor had the doors of his vehicle been left open at all.
went on inspection to the scene and marked the
point of reference as "A" signifying the side of the road
where the Court stood some 35 paces in the Roma direction
point point "B" which marked the location of the culvert
measuring 7 paces in breadth.
is a gentle slope and consists of a gentle curve to the right as one
proceeds from the Khanyetsi direction to Roma. From
uphill in the Khanyetsi direction where the road falls out of view to
point "B" the culvert; the
road is 127 paces long. From
Point "A" to "D" down hill in the Roma direction
where the road falls out of view
the length of the road measures 84
paces. Thus the distance between the two extreme points "C"
and "D" totals
246 paces in all.
nearest visible houses from point "B" lie North East some
estimated distance of 500 paces as the crow flies. The culvert
a gorge flanked by a steep bushy and rocky hill on the South West
side and an even thicker and denser growth of vast spread
fanning out from immediately below the culvert to the foot of another
rising hill 400 paces on the North East side of the
exception PW4 and the occupants of his vehicle who testified before
this Court professed their ignorance of a place which
in their view
would be suitable for highwaymen to waylay
victims. Their ignorance of a place that could be ideal for waylaying
is based on their claim that each of them had not been
their lives. In my view one doesn't have to be waylaid before having
a physical or even a mental perception of a place
where one can lie
in wait for one's intended victim. the question arising is why these
Crown witnesses should behave in this puzzling
but strikingly uniform
manner in a situation which admits of a variety of common sense
possibilities. Any of the following possibilities
pass for the description of a place which is ideal for waylaying,
viz, remote, obscure, bottle-necked, woody,
reedy boggy or simply
point "A" to where PW4 says his vehicle was parked measured
44 paces. This was marked "E". From "E"
accused's vehicle point "F" the distance measured 13 paces.
From "E" to "G" where PW4 said
he stood passing
water the distance measured 10 paces. This is a point on the
Khanyetsi side of the culvert on the North eastern
shoulder of the
point "E" to the opposite side the gradient is quite steep.
to "H" a distance measuring 12 paces signifies the distance
traversed by the accused and PW4 while
to "I" a distance measuring 11 paces is a distance where
PW4 says he and the accused rolled.
lying 5 paces from "H" signifies where PW4 says someone
from among the accused's men came and pulled him
from the back.
to "K" 2 paces apart signifies the spot where PW4 came to
stop after being pulled from the back as alleged
also signifies the spot at which PW4 says he was when he got shot.
lies 6 paces away from "K" signifying where it is alleged
the accused was standing when he fired the
he was at "K" when the deceased emerged from point "M"
36 paces away.
stated that the deceased was at point "N" 21 paces away
from "M" when the latter got shot.
the deceased started raising his hands while at point "0"
some 10 paces away from "N".
It was at
the inspection in loco where Mr. Phafane asked the Court to observe
that at point "G" and the area around its
vicinity where PW4 said he stood passing water when accosted by the
accused there was no bush. Indeed the Court made and
relying on spots identified by PW4 marked point "P" 4 paces
deep into the road to signify the position or location
of the right
set of PW4's vehicle's wheels while "Q" signified the
location of the left set of wheels direct on the edge
of the tarmac.
observed that immediately to the left of "E" where PW4 says
he had parked his vehicle there is an open space
and that the edge of
the road falls gently to the left suggesting that if PW4 had had
concern for the interests of other road users
he would have had no
difficulty making use of that space even if he had experienced a
sudden need to pass water for in any case
he moved 10 paces away for
the purpose, whereas if indeed he was under such pressing need he
would have directed his spray on the
front wheel or on the ground
below the driver's door.
expressed its wish to have the space referred to as a furrow. the
Court observed that it is indeed a water course broad
accommodate Mr. Nthethe's private car which experienced between 25
degree and 30 degree tilt when the
of its wheels were on the edge of the road; and further that there
was no question of the under carriage of that car touching
even when the left set of its wheels were on the deepest portion of
that water course while the right were on the edge
of the road.
the Court through the Crown's invitation observed
immediately to the left of "E" but slightly to the front
there were holders in the bed of the water course.
wished the Court also to observe that at this point the road is 8
paces broad i.e, from "P" to "R".
observed that from "E" the front of PW4's vehicle to "S"
the mouth of the culvert on the Khanyetsi
side measures 10 paces.
also observed that "T" to "U" signifying the
right hand side of the road as one faces Roma falls steeply
edge of the tarmac.
observed the spots demonstrated by the accused and to avoid confusion
identified them numerically.
"One" is marked as more or less the middle of the road
between the raised edges of the culvert.
lies on the edge of the tarmac but a pace from the left shoulder of
lies at the end of the Roma side of the right hand side of the
culvert as one makes the observation facing Roma,
lies about 6 paces away from point 3 and falls steeply to the right
off the culvert.
lies 21 paces away from point 4.
lies 8 paces away from point 5 and on opposite side of the road.
lies 16 paces away from point 6 in the direction from Roma to
observed that, facing Roma, on the right handside wall of the culvert
on the Roma side of the culvert the inner upper
edge showed that a
stone which appeared to have been cemented there seemed to have been
dislodged leaving a marked difference between
the hollow space and
the cement finish on the neighbouring stones. It was at this juncture
that the Court
the accused picking up and holding a stone 5 paces away at the bottom
of the slope abutting the culvert wall in question.
The Crown wished
it to be observed that the defence pointed at 7 spots without making
any comment thereon. This was a welcome observation
insofar as it
referred to the figure 7 because it effectively clears some confusion
arising from the impression gained by the defence
that the place of
the dislodged stone on culvert wall was marked 8.
be clear from the reference points mentioned above that there is a
dispute as to where PW4's vehicle was parked. There
controversy regarding where the accused found PW4. There is also
controversy regarding the places where the first and second
were respectively fired from and also regarding whether or not each
shot found its independent target.
giving his evidence the accused stated that one of the things he
noticed while driving along the road following PW4's vehicle
PW4 patting the side of his vehicle through the window while someone
in the passenger seat was raising and lowering his
outside the window. Aware that this was never put to the Crown
witnesses yet the accused tended to attach importance
to it the Court
put questions to him; and this is how the text reads:
"Why did you tell the Court that.....? Because I wanted the
Court to know of it.
Didn't you think those gestures were important to your case.....? I
now realise they are important.
When did you realise their importance.....? After the occurrence of
the incident that brought us before this Court.
If they are important do you recall your Counsel putting them to
Crown witnesses at all.......? I can't recall them distinctly.
Don't you think you would have recalled if they were put.......? I
wish I could remember but because of the length of the case
remember. Did you tell your Counsel about this.....? I recall doing
I don't recall him putting them to these witnesses but if it happens
they were not put to them would you say why.....? (Obvious
uncertainty and appearance of perplexity in the accused's face
observed coupled with silence)".
Crown took over -
"At what point did you say you saw PW4 with his hand out
.......? At Likatseng.
What was he doing.......? Patting the side of his vehicle.
Did you take this as anything of significance at the time.....? I
didn't know what it signified.
You saw left arm on passenger side as well.....? Yes
Did you attach any significance to this gesture......? Nothing at the
time. It didn't occur to me how important it might be but
I saw it.
How long did these go on for.....? I don't remember but it didn't
These gestures were spontaneous actions of response to the music that
was being played in there.......? I don't want to deny that"
reference to the authority of Phaloane v. Rex 1981(2)
246 the above text would tend to show that the accused was
fabricating, indulging in afterthoughts and manufacturing the
evidence as the case progressed for it is inconceivable that he could
have omitted to put to the other side so important a feature
defence as this one that should serve to give the Court an insight
into his state of mind from the time when he saw these
when he suddenly realised what they portended.
Phaloane above Maisels P. said :
"It is generally accepted that the function of counsel is to put
the defence case to the crown 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. Moreover, even making due allowance for certain latitude
that may be afforded in criminal cases for failure to
put the defence
case to the Crown witnesses, it is important for the defence to put
its case to the prosecution witnesses as the
trial court is entitled
to see and hear the reaction of the witness to every important
no doubt in my mind that this was an important allegation by the
accused. It would have been necessary and indeed useful
to see and
hear PW4's reaction to it and to the suggestion that the accused
interpreted it, while at the scene, as the gallows
humour or some
bizarre precursor to the fate that was awaiting him there.
and behold" the crown in its wisdom effectively
the essence of the question whose effect was to show that the
accused's reference to the gestures was an afterthought
as indeed it
was heard and seen for the first time when the accused was giving
evidence in his defence and when no crown
could be called to react to it any more.
if this appeared to be an afterthought, once the crown suggests, as
it happened here, that such a thing took place, even
if it didn't,
the accused cannot be faulted for saying he observed it. But that is
not the end of the story. It goes further and
shows that once it is
accepted that he saw it he cannot be faulted for interpreting it the
way he did, given the circumstances
he said he was in when he called
it to memory and its full significance dawned in his mind while at
the scene; for then it served
as what accounted for the milk in the
coconut. This looms into greater perspective when looked at against
the background he based
his fear on and supported in this regard in
part by PW4 who testified that even at spot "E" where he
had parked his vehicle
he had effectively blocked the accused's path.
The picture that one has of the accused then is of a man whose path
is blocked at
an obscure and remote area way up in the mountain at
night by a group of young men who entertained the perception that the
had deprived them of their means of livelihood and done such
further acts of contempt to them by harassing the policeman who was
trying to persuade him to allow
concert to take place, referring to them as rags and slapping one of
their companions on the face simply because he is a chief.
help feeling that the group members were smarting under this
insufferable behaviour of the accused even at this point.
is a licensed driver and who had used the road past the scene at Ha
Lebamang many times before,told the Court that the road
at that spot
where he had parked does not admit of two vehicles going past each
other either in opposite directions or overtaking.
He said the
drivers confronted with any of these situations stop and wait for
with him because I personally saw that at point "E" where
he says he had parked his vehicle occupied 4 of the
8 paces that
constitute the entire breadth of the road there. The road on the
culvert is even a pace narrower. Even while accepting
that the road
at the particular spot is 8 paces broad the crown, as if to cock a
snook at its own evidence, put to the accused
that because PW4's
vehicle had occupied only 4 paces of the road the other 4 paces were
free for the accused to utilise if he genuinely
wanted to pass and
was not merely spoiling for trouble as it had been his attitude
throughout the way from Khanyetsi to Ha Lebamang.
This would in part
flow from the question put to the accused that if he had not done
what he is alleged to have
Khanyetsi events at Ha Lebamang would not have taken place. The
logical analysis of this question leads to the conclusion
despite their denial the group from Khanyetsi had done something at
Ha Lebamang to warrant some reaction by the accused. Regard
to the fact that the group in kombi left Ha Khanyetsi a good while
before the accused did, and that this group was always
ahead of the
accused it is to be wondered how he would know while at Ha Khanyetsi
and coming along the way what was going to happen
at Ha Lebamang. To
me this appears to be an oblique concession by the crown that despite
their protestations to the contrary, PW4
and his group behaved in a
manner that could in the circumstances inspire fear in the accused
that he was being waylaid at Ha Lebamang.
trite that a cross-examiner has the latitude to cross-examine on a
wide range of things even those not directly having a bearing
case. But when he puts to opposite witnesses the case which is
counter to the one adduced by his own witnesses then it means
train has left the metals.
humble view it seems that one need not be a driver to realise that
two vehicles cannot share equal halves of a road 8 paces
without them scraping the sides of each other.
looking at the evidence before Court as to the
of witnesses on either side it seems important to consider what
motive could have prompted the crown witnesses to nurse
against the accused, or prompted the accused to act in the manner he
is alleged to have done.
has observed with astonishment the impression created by the crown
witnesses who had gone to Ha Khanyetsi that they were
that the accused had in their perception caused their concert to
fail. It took a very long time and an equally large
patience through repeated questioning by the defence counsel to make
some of them realise the ridiculousness of their
evidence led made it understandable that if theirs was the perception
of the accused's conduct it would be only natural for
them to have a
motive to retaliate.
apparent humiliation of the deceased by the accused who it is alleged
threw away the deceased's ID Card and threatened that
deprive the deceased of his employment also furnished the motive to
testimony by the accused and the perception by the music troupe that
he declined to persuade PW3 to allow the group to go ahead
concert also provided the motive to retaliate.
showing that the deceased had made more than two attempts to appeal
to the accused to persuade PW3 to allow the concert
to take place is
on hand. This question of crown witnesses acting on perceptions is
demonstrably accentuated in PW4's conduct.
Although he did not see
the accused slap PW6 as far as he was concerned the accused had done
so. It should not be forgotten that
by virtue of his status in regard
to members of the music group PW4 had considerable influence over
them. He supplied them with
conveyance for free from place to place
in pursuit of their musical performances. He felt that he had
responsibility towards their
parents in regard to the group members'
own welfare. Thus because of this high degree of care towards his
group it is not inconceivable
that PW4's wish to them was as good as
has observed that while it was easy for them to pointedly say the
accused was lying whenever his version conflicted with
they would not be so forthright in discounting PW4's version in
preference to theirs. Thus PW4's baseless perception
that the accused
had slapped PW6 could easily have had an infectious effect on his men
in other respects as has been demonstrated
by their unwillingness to
assure the Court that their individual versions when at variance with
his,are preferable to PW4's. Instead,
they tended to feign stupidity
and to claim that they did not understand the question which had to
repeated five or more times sometimes.
is the most educated of the group which had gone to Ha Khanyetsi
having testified that he went as far as Form 5 owned up
his story was shown to be illogical he would claim that he did not
understand the question.
witnesses said that the accused chased them from Ha Khanyetsi but
wish to say that such a thing would not make anyone feel
revenging one way or the other.
financial loss and expenses incurred in the preparation for a concert
whose failure occurred through the apparent instrumentality
accused, and the consequent loss of a good name and future reputation
of the music group all because the accused was the
would in my view provide a fertile ground for the motive to revenge.
other hand one would be hard put to it to find what further motive
the accused would have had against the members of the
group which he
was coming behind from Likatseng where he had caught up with it, when
his desire to disrupt the concert had been
resistance. This question assumes an even greater importance
considering that he could not possibly hope to catch
up with them any
where along the way when they had had no
one and half hours' head start of him.
granting that the road followed was narrow it is not understandable
why the accused was made to stop time after time without
pass for so long a distance.
said his path was blocked at Ha Lebamang because PW4, according to
PW4's own testimony, wanted to pass water. But hardly
into the tarred road from the junction joining the bad dirt road to
Ramabanta-Roma road the same vehicle had stopped,
suggested by Mr Lenono for the Crown, to enable the group to pass
water yet hardly a kilometre back into the Nyakosoba
village it was
said the group had stopped for the same purpose.
looking at the conflicting versions among the Crown witnesses as to
why there had to be a stop at Ha Lebamang one gains the
that either the true reason has been forgotten or hidden. PW4 said it
was solely for the purpose of his passing water
as he had been
terribly pressed yet only 20 paces ahead of him and therefore beyond
the culvert there is a wide space to the right
to reach which by
kombi it would have taken him less than a quarter of the time he
spent moving on foot 10 paces away for purposes
of relieving his
tight bladder. On
hand it is stated that he stopped there because it was members of the
group who wanted to pass water. If so, there is
far less excuse for
his failure to move ahead or at least to ensure that he was well
clear of the culvert, for the plight of his
group could not hold any
risk to the safety of his kombi or lives in it which otherwise would
be the case if the driver was faced
with any such predicament as a
sudden need to answer the call of nature.
Phafane submitted that if one is confronted with conflicting stories
on so important a stage in the evidence as this the safest
be to reject both as false, otherwise spinning the coin to decide
which version to accept would be as precarious as relying
indicated that it is not unusual for witnesses to contradict each
other and also for their versions to contain self-contradictions
at the end of the day find that their side of the story is upheld in
judgment as in Sehlabaka above. Yet, however as illustrated
inspection, PW4 who had earlier said his vehicle was parked slightly
off the road indicated that wheels spanned by both
axles were on the
tarmac. Other crown witnesses say the vehicle was outside the road or
3\4 - way off the road.
there was "khotolia" bush where he passed water.
Court saw none at the area yet he insisted in Court after being to
the scene that there was "khotolia" bush there.
Phafane accordingly submitted that PW4 was not at point "G"
but "3" when the accused found him at the culvert
testified by the accused. From this observation he submitted that the
motive was clearly to waylay the accused. Indeed as properly
to the court's attention by Mr. Lenono for the crown, it appears
there is nothing magical about the notion "waylay".
waylay a person if you stop him to talk to him, to obstruct him or
even to injure. Any of this can be effected by concealing
presence at the spot found suitable for the purpose or by affecting
an act of friendliness before showing one's true colours,
feigning distress as the accused claims it was his impression that
PW4's vehicle was in distress hence his alighting and
inquire of PW4 "what now could be the matter Ntja?"
mystery of the way the encounter took place deepens as one nears the
climax. PW4 says the accused grabbed him about the chest
pointed a gun at him. But PW5 and PW8 say that did not happen for had
it happened they would have seen it. Further what
does it make of
PW4's many contradictions? One would be tempted to rely on PW5 in as
far as his version is not exaggerated despite
that deceased was his
versions relate to the question whether PW4 and the accused pushed
each other or wrestled to point "3". In
this regard PW4 and
PW5 are opposed to PW6, PW7 and PW8.
says at the time he was wrestling with the accused the accused's men
were sjambokking him. But this is denied by all other
The question becomes persistent; why should PW4 say things under oath
which people who had the opportunity to see
deny ever having taken
accused denies that he rolled with PW4 down the steep slope to point
"4". The crown witnesses who were present however
conflicting accounts of how the accused and PW4 came up and climbed
back to the road. PW4 says the accused did not hold him
got to the road. He says the accused was walking backwards thus the
two were facing each other as PW4 climbed facing
forward after the
accused. PW5 says the accused emerged facing forward and was not
holding PW4 nor was the latter holding onto
the accused. PW6 makes no
mention of any of this. But the same incident viewed by PW8 at the
same time with these others who have
also contradicted one another
shows that "the accused was holding PW4 under the armpits with
both hands while PW4 held the
accused where the accused had held him
with both hands". Whatever this means!
sought to make capital out of the fact that in his perceived
apprehension that the accused was attacked, and therefore
he should defend himself he sustained no injuries. With respect, the
fact that an accused person successfully quells
an attack mounted
against him and suffers no injury in the process is no proof that he
was not attacked. It may only serve as a
measure of the degree by
which, in an appropriate case, he has exceeded the bounds of
accused's story as opposed to PW4 who referred to a nonexistent
"khotolia" bush as the place of his first encounter
the accused is that the place was not point "G" but point
"3" and backs his story by pointing out where
a stone got
dislodged when rushed on and pushed by PW4 down the slope. He
explains that his left: leg got hitched on the stone
in the wall and
broke it free as a result of the push from PW4 who remained on top of
the road and never rolled down with him to
point "4". He
said from the first encounter to the end it took not more than a
minute. Indeed regard being had to the
length of the distance he
indicated he traversed between point "3" below where he
says he fired into the air, via point
"4" to point 5 where
he says he fired in the general direction of his pursuers who were
gaining on him, giving him no
opportunity to defend himself any other
way except by shooting, it does not seem to be inconsistent with
reasonable possible truth
that the fight took that length of
said he had to ensure that he ran where there was light from the
vehicles on the road but the lights of the vehicles did
the curvature of the road. It is common knowledge and scientific fact
that light travels in a straight line. But now
the portion on which
the headlamps of the vehicles gave was up a steep mountain on his
left. To seek refuge there would be to constitute
himself a lame
sought to make much of the fact that it turned out that PW4 and his
men were not armed. But in my view the question is
whether given the
circumstances of the case, and the fact that it was at night the
accused if he is to be believed acted reasonably
or not. He said he
fired the first short into the air to scare away what he perceived to
be a group bent on causing him harm. When
that did not help, he ran
away but was pursued; whereupon fearing that if caught up with by his
pursuers he would come to some
harm at their hands; and fortified in
this belief by the fact that they didn't seem to relent in their
pursuit of him as he was
tiring, he did the only reasonable thing to
ensure his safety: shot in the general direction of his pursuers and
did so with the
only available weapon in his possession. See R. vs
Patel 1959(3) SA 121 saying :
"An accused is entitled to an acquittal on the ground that he
was acting in self-defence if it appears as a reasonable possibility
on the evidence that he had been unlawfully attacked and had
reasonable grounds for thinking that he was in danger of death or
"Men faced in moments of crisis with a choice of alternatives
are not to be judged as if they had both time and opportunity
weigh the pros and cons. Allowance must be made for the circumstance
of their position"
Major Telukhunoana a firearms expert testified that at a given range
suggested to him in this Court it would be possible for
round of ammunition to travel through one target to the next provided
it does not get diverted as it would when it hits
something like a
bone. It was suggested and in fact established in PW1's evidence that
the part of PW4's hand affected by the fired
gun was mainly tissue.
The examination conducted on the deceased showed that there were only
the entry and exit wounds suggesting
that only one round of
ammunition entered and exited from the body. Thus in doing so it
could have hit PW4 afterwards or if it
hit him first it could
possibly have hit the deceased afterwards.
the two possibilities in whatever order it could have occurred, does
not seem to me to be excluded by factors attendant
on this case from
the realm of being reasonably possibly true, although surprisingly it
took a lot of coaxing for PW12 to acknowledge
this otherwise obvious
possibility - given that the distance between the two targets
purportedly hit by the same bullet fired at
close range of hardly
four paces away, was
five paces and regard being had to the fact that PW12 himself said
unobstructed a bullet fired from a gun of this calibre
can hit a
target more than 500 metres away.
Phafane attacked the crown case on several fronts. He suggested that
because the deceased before he died was taken to hospital
Joseph's Roma yet no evidence has been adduced of what form of
treatment was administered and the qualifications are of
treated him then novus actus interveniens cannot be excluded. That
may be so. But Thabo Tsomela vs Rex 1974-75 LLR at
p.99 is authority
for the view expressed as follows by Cotran CJ:
"I am unable to subscribe to the view that a court of law is
precluded from coming to a conclusion about the cause of death
reason only that no medical evidence was available, or if available,
was not satisfactory or not (scientifically) conclusive.
numerous cases of convictions for murder or culpable homicide where
no body was found at all, much less medical evidence
so also where a body was so decomposed that the cause of death could
not be ascertained".
CRI\REV\1\86 Rex vs Phate Mabilikoe and 5 Others (unreported) at 8
this Court said :
"In other words novus actus interveniens was shown to be a
positive act based on a demonstrable action by a participant whose
attempt at bringing about relief to the deceased could not be
excluded as a new thing that caused the death of the deceased
independently of the accused's initial act. In other words if sought
to be relied on novus actus interveniens must be shown to
effective cause not imagined or invented".
In R. vs
Adams 1957 CRLR 365 in his charge to the jury Devlin J as he then was
"Cause means nothing philosophical or technical or scientific.
It means what you twelve men and women sitting as a jury in
box would regard in a commonsense way as the cause".
back to evidence on contradictions and conflicts, Mr. Phafane made an
important observation and in turn submitted that there
been an occasion when the deceased pleaded with the accused pointing
out he had shot a man meaning PW4 if PW4 had
not done anything to
show that he had been shot, for according to his evidence it took him
quite a while before he realised he
had been injured in his hand by a
gunshot. The other point submitted by Mr. Phafane has merit that in
order to have observed the
events well people who observed them
should have done so from a point of vantage. In the circumstances of
this case such a place
happens to have been the seat immediately
behind the driver's seat. It is amazing that no less than 3
eyewitnesses make a
frantic scramble to jockey for this
particular position and each claims that when a particular event
common to all of them such
as the firing of the first shot, he was
seated on this very seat. This is a blatant untruth. Another point
becomes even more inexcusable as a sign that witnesses have concocted
their story is when they testify alike on something
that is not real
or true, such as was the case in the matter of CRI\T\3\86 Rex vs
Mafole Sematlane (unreported). Regrettably this
Court has had about a
surfeit of that kind of diet in the instant case.
In S. vs
Jaffer 1988(2) SA 84 at p.88 Tebbutt J (previously a Judge of the
Lesotho Court of Appeal) with regard to probabilities
a criminal case criticised a magistrate's approach which went -
"Now the court has now two single witnesses telling different
stories in certain respects. The court must now decide whether
the stories can be rejected. If the court now looks at the
probabilities the State's version seems to be the most probable".
learned Judge cautioned that :
"This approach by the magistrate was incorrect. It is, of
course, always permissible to consider the probabilities of a case
when deciding whether an accused's story may reasonably possibly be
In S. vs
Munyai 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
See S vs
Singh 1975(1) SA 277.
approach whereby the court applies its mind not only to the merits
and demerits of the crown and the defence witnesses, but
also to the
probabilities of the case is helpful in ascertaining if the accused's
version is so improbable as not to be reasonably
Difford 1937 AD 370 at 373 laid down the rule that, even if an
accused's explanation be improbable, the court is not entitled
convict unless it is satisfied not only that the explanation is
improbable but that beyond any reasonable doubt it is false.
is any reasonable possibility of his explanation being true then he
is entitled to his acquittal.
Van der Spuy proceeded and said :
"The fact that the court looks at the probabilities of a case to
determine whether an accused's version is reasonably possibly
something which is permissible. If on all the probabilities the
version made by the accused is so improbable that it cannot
supposed to be the truth, then it is inherently false and should be
In S. vs
Kubeka 1982(1) SA 534 at 537 it was said :
"Whether I subjectively disbelieve him is, however, not the
test. I need not even reject the State case in order to acquit
am bound to acquit him if there exists a reasonable possibility that
his evidence may be true. Such is the nature of the
onus on the
der Spuy said at 715 :
"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".
attempt was made by the Crown to prove the accused a liar by bringing
what was properly objected to as hearsay evidence in which
of the deceased had learnt that the relatives of the accused whom he
had not seen had allegedly taken a beast for slaughter
or some other
purpose at the deceased's funeral. Despite that this attempt was
foiled as inadmissible the Crown in a last ditch
attempt sought to
cross-examine the accused on the bewyses of which the accused was not
shown to either be the author or to have
the knowledge by evidence
placed before court through crown witnesses. Despite that one Nkau
Nkuebe's name was mentioned as a possible
messenger sent to deliver
any such ox no such attempt was made to call him to testify on behalf
of the crown. The crown should
at all times show familiarity with the
nature of the case it seeks to present before court and avoid giving
the impression that
it is making a last ditch attempt at clutching at
straws as was the case in this connection.
vital area where the crown evidence was resoundingly contradictory
relates to the events at the charge office where
accused's mood was painted as overbearing, haughty, pompous arrogant
and brassy and setting himself above the authority of the
according to PW4 and the group of musicians yet it is the same
accused who even let his vehicle to be driven by one of them
convey the deceased to hospital for treatment. The group's evidence
is in sharp contrast with that of the police who were in
office at the same time with PW4's group. Those police described his
attitude as courteous, polite and cooperative.
Of course the accused
denied that he was any of the things, portrayed by PW4 and his group.
This in itself projects a motive to
revenge by putting the accused in
as bad light as they possibly could.
sharp contrast typifies on the one hand the observation of an
isolated event witnessed at the charge office by PW4 and his
the same time as by the other crown witnesses on the other hand; it
cannot be wrong - when evaluating and assessing that
observation - to adopt the attitude, in those circumstances where the
accused happened to have fallen under the exclusive
focus of PW4 and
his group that their evidence is not above suspicion. By token of the
same rule then it would seem that in all
the isolated instances where
PW4 and his group claim what the accused and his witness deny, the
evidence of PW4 and his group has
to be taken with a pinch of salt
and therefore treated with great caution.
the events surrounding this case were even in the most serious
aspects of it verging on the comical.
Court heard the evidence of the 1st doctor whose sketch contradicted
the evidence of the complainant who demonstrated
to the Court the
hand on which he had sustained gun shot injury.
that of a doctor who under cross-examination it appeared he was not
qualified to perform post-mortem examinations because
he had not yet
registered as required by the law.
came the testimony of a firearms expert who submitted an affidavit
and claimed that the contents in it were the product
of the tests he
performed while in fact after he had been recalled and made to appear
in Court for the third time it was revealed
that for his findings he
relied on notes prepared by someone other than himself. See
Regulation 7 of Government Notice No.80 of
as if to put a coping stone to the drama in the scenario no less than
two witnesses came to testify about the identity of
the deceased and
none came any near saying at least someone identified the body to the
doctor for post-mortem examination.
couldn't help therefore calling in mind the fable whose pungency
improves with the narration. It goes thus :
country a certain reserve was declared a bird sanctuary. The
inhabitants of this country offered the necessary protection
birds which nested and lived undisturbed in that reserve. But one day
a night-watchman who woke up in his sleep at 12 midday
only to find
that stars had come out in the sky - unknowingly to him because of
the dust storm which had obscured the sun - rose
and made for his
place of work.
way he witnessed a crime being committed against the birds. Quickly
he went and laid a complaint against the wrongdoer.
His charge was
concisely and briefly that at night when he went past the bird
sanctuary he saw a man throw a stone at a bird sitting
on a tree and
was brought before court where it turned out that the stone he
attested to was not a stone but in fact dry cow dung; the
time of the
incident was in fact not at night but midday; The tree was in fact a
datura plant; The offender was not a man but in
fact a hermaphrodite;
The bird happened not to be one but a bat.
satisfied that the accused has given a plausible and easy-to-follow
account of the events which occurred and which is not outweighed
inferences properly to be drawn from reliable evidence led and
substantive facts of the case as a whole regard being had to
".................the court does not have to believe his story;
still less has it to believe it in all its details".
accused is acquitted and discharged in both counts. Exhibit "1"
and the rounds of ammunition are restored to his.
Crown: Messrs Lenono and Semoko
Defence: Messrs Phafane and Nthethe
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