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CRI/T/39/93
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
v
SIMON SEHLOHO SEHLOHO FIRST ACCUSED
MOTHIBI LETSIE RAMALUMANE SECOND ACCUSED
JUDGMENT
Delivered by the Honourable Mr. Justice T. Monapathi on the3rd day of February 1999
The two accused persons A1 Simon Sehloho Sehloho and A2 Mothibe Letsie Ramalumane, have been charged first with the count of murder and it was alleged that:
".......upon or about the 19th day of December 1992 and at or near Ha Khoeli, in the district of Maseru, the said accused acting in concert each or other or all of them, did unlawfully kill Moeti Rapeane.
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And secondly, with robbery in count II, about which it was alleged that:
"........upon or about the 19th day of December 1992 at or near Ha Khoeli in the district of Maseru, the said accused acting in concert each or other or all of them did unlawfully and with intention of inducing submission by the deceased Moeti Rapeane to the taking by the accused of a motor vehicle to wit a Toyota Hilux Van registration No YBK 1427 thereafter the said Moeti Rapeane that unless he consented to the taking by the said accused of the said property or refrained from offering resistence to them in taking the property they would there and then shoot him and did thereupon take and steal from the person of the said Moeti Rapeane the said property, which was the property of Moeti Rapeane or in his lawful possession, and did rob him of the same."
To both counts they both pleaded not guilty. Their defence was a complete denial of complicity in the commission of the crimes charged. The issue had then become whether the accused's denial of complicity in the commission of the crimes charged could reasonably possibly be true. The Crown had let it be noted from the onset that the case for the prosecution was wholly circumstantial there having been no direct evidence or eye witness to the fatal shooting of the said Moeti Rapeane (the deceased).
It was common cause that the two accused persons were initially charged along with one Tsaka Camillus Khoaele (also known as Mosa Khoaele) whose whereabouts were to the Crown unknown. It was sufficient
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to record that prior to his disappearance the case had been postponed on several occasions on account of his absence or that of A1, the said Mosa Khoaele having initially appeared as the second accused. It was after the said postponements that the Crown was properly advised to seek recourse to the provisions of section 170 of the Criminal Procedure and Evidence Act 1981, in terms of which the Court finally granted an application for separation of trials and the case then proceeded in the absence of the erstwhile second Accused whose whereabouts were hitherto unknown.
It was submitted that the circumstantial case for the prosecution revolved around the two issues for which a creditworthy and satisfactory
presentation had to be made. First, it was the recovery of the vehicle parts belonging to the said deceased's vehicle in possession
of A1 and A2 at a roadblock manned by Royal Lesotho Mounted Police officer No. 3272 Detective Sergeant Sefika. And secondly the evidence of 'pointing out' by both A1 and A2 of the place where the deceased's vehicle was burnt at after having been dismantled.
The Crown witnesses were nine in all and included the following Joseph Leroba (PW 1), Libetsa Sidney Rapeane (PW 2), Seutloali Pheko (PW 3), Mapaili Phakane (PW 4), Sechaba Rapeane (PW 5), RLMP Lt/Sgt Sefika (PW 6) RLMP W/O Sehloho (PW 7) RLMP S/Lt Monyane (PW8) RLMP D/L/Sgt Motlatsi (PW 9). Only A1 gave evidence in his own defence. No further evidence was called for the defence and the defence case was thereafter closed. The defence pointedly submitted that:
"Nowhere did the evidence of the Crown, however
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circumstantial, get any near to indicating that A2 was involved in anyway in the murder of the deceased nor in the robbery of his motor vehicle because according to the evidence whoever murdered the deceased must have been the one that robbed him of his motor
vehicle". (My underlining)
The Court was referred to the evidence of PW3 in that regard. It sufficed to record that at the end of the crown case the accused had applied for discharge in terms of section 175(3) of the Criminal Procedure and Evidence Act 1981. The application was refused by this Court.
It was the evidence of PW2 that on the 19 December 1992 the deceased who was his brother's son approached him requesting an amount of cash. The witness was on his way to Mohale's Hoek. He asked the deceased to take his vehicle (van) and attend to some errands. One of the errands was one about the witness's cafe business. Then thereafter as the witness said he allowed the deceased to make use of the van to carry goods for a fare (price) and take the proceeds for his own needs. The deceased would later pick up the witness's mother's wife and daughter at some place. The witness however discovered later that the deceased never turned up. He suspected that an accident could have occurred. He contacted police at the Maseru Central Charge Office to inquire. There was no favourable response. He later reported the state of affairs to one Sam Rapeane, the deceased's father who stayed at Florida in Maseru. Still thereafter there was no good response.
The witness then decided to search for the deceased at a number of
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places. He still recalled that the deceased was attired in a white and red shorts with blue dots, a short sleeved shirt and a pair of push in shoes. One of the places he decided to attend, having failed to locate the deceased, was the Roma/St Michael junction where he decided to wait having desperately thought that the deceased could have gone to either of the two places. He also had his attention to vehicles which could have come from as far as Thaba-Tseka. His brother Sam Rapeane had undertaken to look in the direction of Teyateyaneng, in the east of Lesotho.
It had been around the hours of 11.00 pm to 12 o'clock when the witness had waited at the said junction. He made inquiries from about three vehicles. The drivers did not have any good information. While waiting desperately he at long last saw a van which appeared familiar. It was a van driven by A2. He was able to identify the van by the stickers which it used to display on the vehicle's cap. He attempted to stop the vehicle. The vehicle slowed down but suddenly sped off. It had three occupants in the cab. When he saw it it was about five to six paces away from him. The witness was able to see that it had a load at the back of chairs, wheels and vehicle parts tied with a rope. That had given him no suspicion or least that the van could have been dismantled. He was not able to take note of the vehicle's registration number. It drove off at a great speed in the direction of Maseru. The witness waited but gave up after a few hours when he returned and went via his brother's home and reported to him the lack of progress and particularly that the deceased was still untraceable.
The witness was later informed by the police that the deceased had died. It was after he had had gone by or past a place called Mmelesi. He
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undertook to advise the deceased's next of kin accordingly. Police laater reported that the "vehicle" had been seized. Police took him to Roma Police Station where he identified the following: the vehicle body, the chassis of the vehicle and the cab which he identified that of his van which he had lent to the deceased. These were, later together with other parts, identified by this witness exhibited without any objection by the defence. In addition the defence did not claim ownership of the property because their version was that they had nothing to do with the property.
The witness was later called up to show the vehicle's registration papers by Maseru Central Charge Office police officers one of whom the witness remembered by the name Toloane. He was able to identify all parts of his vehicle by sight. He identified the parts exhibited including seats, brown headrest, three wheels, engine gearbox. He also showed to this Court registration papers of the vehicle bearing the name Michael Mokhele. This was because as the witness said the papers had not yet been transferred into the witness' name. The registration was no. YBK 1427 and engine number. YN 29017168 and YN 5000 52751. It was a white Toyota Hilux 1986 model. The witness said the police took possession of the papers in order to compare same with the discovered property. They tallied as was intimated by the police officers doing the inspection. The items were later shown to the Court at the residential place of the witness where they had been kept for safety. There was no disppute that the vehicle parts belonged to the witness' vehicle in issue.
PW 1 testified that sometimes during the month of December 1992 he was a petrol attendant at a filling station at Ha Makhalanyane. This is
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along the road from Maseru to Roma/St Michaels junction. I observe that this road as after the junction will lead one to Likalaneng, Marakabei, Mantšonyane and ultimately Thaba Tseka on the one hand and to Roma, Ramabanta and Semonkong Maseru district on the other hand. The witness testified that between the hours of 12.00 mid day and 2 O'oclock in the afternoon he had occasion to render service to four gentlemen who were travelling in a Toyota Hilux bearing a foreign registration. It was white and without a canopy. One of the occupants was at the back of the van. He had served many vehicles. There was not much traffic and at that time of afternoon when the described van attended. The witness had not known any of the occupants of the van.
The driver who was a young man of about twenty three years of age asked where the bowser was. The witness showed him the bowser. The young man was dressed in summer clothes including a Bermuda shorts and a push in shoes. After serving them as the witness testified the van drove off in direction of Roma. The witness further testified that on the following day he was approached by a gentleman who claimed to be the father of the young man who had who had been driving the van. It was said that the young man had disappeared and had not been traced since the previous day. The features of the young man who had allegedly disappeared fitted those of the young man who had seen on the previous day. The testimony of the witness was not challenged by the defence.
PW 3 testified that his home was at Setleketseng Ha Lithathane in the district of Maseru. He was a mineworker in 1992. On or about the 19* December 1992 he had gone to Thabana Morena in the Mafeteng district.
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It had been around the hour of 11.00 in the late morning when he left and was on his way home. He was accompanied by his own brother in the witness vehicle driven by his brother. The vehicle was a van. Along the way the witness and his brother had taken a route via Ha Mantšebo village where coal had to be collected at the place of one Mokotso which presumably they did and were on their way home.
The witness and his brother were on their way on the top of the plateau at Ha Khoeli when they say something in the direction of a government tree plantation a few paces from the edge of the road and about six paces from the road. It was a young man who was beckoning at them or raising up his hand as if to stop them. He must have fallen even before they reached him. When they first saw him he was about fifteen to thirty paces from the spot when the witnesses were in their vehicle. The witness said he had had the impression that the man had been drunk. They reduced speed and approached the man. After a little hesitation they alighted.
They discovered that the man had sustained a wound on the chest and rib area towards the left which was bleeding profusely. The young man pronounced himself as Moeti Rapeane. He then explained that he had been shot and robbed of his vehicle. As he was relating his story he pointed at white van which was being driven away at a great speed. He claimed that was the same vehicle he had been robbed of. The witness did not recall if the vehicle had had a canopy on but it was moving in the direction which the witness and his brother had been taking. The witness had not looked at the vehicle intently so as to remember it more than he did because he was more interested in assisting the injured young man.
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The witness was not able to recall what type of shoes were worn by the said Moeti Rapeane nor whether he had a skipper or a shirt on, but he recalled that he had Bermuda shorts on. A young man who was not far off from the vicinity had come to assist the witness and his brother to attend to the injured young man. The injured young man had only been able to report as to who he was and what had been done to him. He thereafter fell unconscious or he was unable to speak.
It was the witness' further testimony that he assisted the injured young man on to the witness vehicle to Roma Hospital. He was still alive. There they waited for about three hours for a doctor to attend. The witness apparently gave up the waiting as he felt it had got too late to get on his way back to his home. He left the hospital but went via the police at Roma where he gave a statement.
On the following day the injured boy's father attended at the witness' place. He gave a report to him. The witness was told that the boy had passed away. This was done by the police who later attended on the witness. I noted that the evidence was not challenged by the defence in that they did not cross examine the witness. I made a finding that the deceased was shot at Ha Khoeli by those people or one of them, they acting in concert. It was those people who were sped off in the white vehicle that was allegedly robbed from the deceased. None of the people, occupants of the vehicle were identified. It was the people who took control and possession of the vehicle.
PW 4 was a married woman who stayed at Ha Moitšupeli. She had
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another home at Semonkong. She testified that on the 18th day of December 1992 she had visitors at her home at Ha Moitšupeli. Her husband had gone to their home at Semonkong. The visitors were A1 and another man who were in company of the witness' husband's young brother (Tsotang). They had arrived driving a white van. The witness had not known A1 before. The witness said the other gentleman he last saw on that day. Tsotang reported that the gentleman had come to his brother to negotiate about a business concerning their parents's affairs.
The witness' brother-in-law and the two gentlemen who included A1 slept at the witness' home but left on the following day which was a Saturday. When they left the witness' husband had not yet arrived. When next the witness saw A1 and Tsotang it was after a week. Then they were at her home and had arrived in company of the police and were under arrest. They did not ask for the whereabouts of the witness' husband. No report or indication was given about why the police attended except that the gentlemen (A1 and Tsotang) were under arrest. Tsotang took a blanket and left in company of the police and A1.
Mr. Monyako for the A1 closely questioned the witness to suggest that she could have been mistaken about the identity of A1. The witness was unmoved and said that she had had a close look of or at A1 over a considerable time because he slept at her place when she fully identified him. She was most unlikely to be mistaken as she impressively asserted. Incidentally it was not suggested by the defence that the accused (A1) and Tsotang could have been somewhere else and not at the witness' place nor that the circumstances of their attendance at the witness' place were in any
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way inaccurate. I therefore considered it reasonable to accept as the truth the whole testimony of this witness.
PW 8 was stationed at the Roma police office of the Royal Lesotho Mounted Police in December 1992. It was on the nineteenth of that month when he received a report which was brought to his office by one Mothibeli Pheko accompanied by another person. It was to the effect that someone had been shot at or near Ha Khoeli. Following the report he proceeded to Roma Hospital accompanied by one of this colleagues.
On the witness' arrival at the hospital he was led to a mortuary where he examined a corpse of a man whose age he estimate at about twenty to thirty years. The body had an open wound on the chest which was revealed when the sheet covering the undressed body was removed. There appeared to be no other wounds on the body. The name Rapeane was shown as belonging to the corpse. The witness thereafter returned to his office to continue with his investigations.
The witness later received a report that PW 7 had got some leads towards suspects in connection with the crimes against Rapeane, the deceased. The witness testified that he met PW7 on or about the 26th December 1992. They together went along to certain places in connection with the suspects.
The witness and PW7 went to Ha 'Nelese at about 4.30 a.m. where they found A2 and another person by the name of Rantuba at the latter's
home. The witness knew A2 to be Malumane. The two gentlemen were
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found sleeping. Having arrested the two persons above the witness proceeded to A1's place which is said to be at Lithabaneng. A1 was found sleeping. He was allowed to get into necessary preparedness to proceed with others to Maseru Central Charge Office and they all proceeded the witness and his colleagues having introduced themselves as police officers. And furthermore that they had come in connection with the matter of Rapeane, the deceased.
At Maseru Charge Office the interrogation of A1 was followed by an explanation that led to their going via Roma police post and then to Mafeteng which was on the following day. It is apparent that the entourage (for absence of a better word) had arrived at Roma on the previous day where the witness says he made a recording of the necessary facts in his note book and occurrence book. Not only that the witness testified that there was yet another explanation by A2 at Roma on the 27th December 1992 following which a trip to Mafeteng was taken.
At Mafeteng one Mosa Khoaele was attended on. He handed over a 7.65 pistol to the witness. He was then put under arrest and charged, as the witness testified, with the murder of Rapeane and the robbery of his vehicle. Following on further explanation of A1 in particular the entourage proceeded on to a place called Ha Ntsane. There the witness was led by all accused "to a forest or a place full of trees." The place used to be a donga. Very far off the road the path goes through the forest. The road appeared not to be regularly used. There was a detour from the main road on to that path and there had to be a walk taken there from for a long time. The place or destination was about three to four kilometres as the witness testified.
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This was the general scene through which the accused led the witness including officers Motlatsi (PW 9) and Lechesa. The latter was a scene of the crime investigator.
The witness said the entourage arrived at that place which he estimated at three to four kilometres. They got a spot where they saw a white vehicle not far from the pathway. The vehicle was torched and lying flat. It had no wheels, nor bonnet, nor doors nor a gear box. A close look showed that only the cab remained. The engine and other parts were missing. There was no appearances of dents. There was no appearance that the vehicle might have capsized. The vehicle was later carried to Roma by means of a tow/breakdown vehicle. A1 explained that they burnt the vehicle and cannibalized it. A2 did not utter any words. He was quiet. A1 had explained that he and his colleagues were responsible for dismantling and burning the vehicle.
After the remains of the vehicle were carried to Roma police post one Libetsa Rapeane laid claim to the vehicle and confirmed that it was the one that he has all along reported as missing; whose papers he had all along been in possession of. Libetsa Rapeane later identified the burnt remains of a vehicle as belonging to that van of his which went missing together with his son to whom the vehicle had been lent. The witness knew that a certain Mr. Rapeane had been called to identify other parts of his vehicle which the witness was also shown. It was the windscreen, bonnet, two doors, engine and three wheels. All these had shown no signs of dents or damage.
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On the 29th December 1992 the witness was taken to Ha Khoeli where a spot was pointed out along the road and just five paces off the edge of the road. It was a little outside one village near a tree plantation. There were no houses near the spot which was focussed. An explanation was given following questions to A1 Rantuba and Khoaele the last two who were not in Court. A spot was pointed out at which there were dried blood stains. Nothing else was observed. The suspects were taken back to Roma. A1 indicated that he was once at that spot where blood stains were found.
The witness testified to his knowledge of PW 4 whose place he had visited at Ha Moitšupeli on investigation of the case. The witness said that before or around the pointing out at Ha Ntsane and Ha Khoeli no pressure had been put on A1 or any other suspects to extract the pointings out. It was voluntary. Indeed I made a finding that no such pressure was put and that the pointings out were done regularly and within the law. It was submitted by the Crown that the place at Ha Khoeli is the same place was described by PW3 and around where the deceased was seen beckoning and ultimately succumbed to injury.
PW 8 was cross examined by Counsel for A1. It was pertinent to note that the questioning was primarily in the nature of denying that A1 ever pointed out the various spots. That he denied ever directing the witness to the place of Mosa Khoaele. The witness said that he did. That A1 never volunteered and went with the witness and his colleagues where the vehicle was burnt. The witness disagreed. That A1 never volunteered nor suggested nor went with the witness to where the vehicle was found burnt. This the witness did not accept. That in going on to point out A1 was under
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pressure and he was choked with a tyre tube, he assaulted and furthermore that he acceded because of assaults. And most significantly:
"I put it to you that whatever you said against A1 he will deny because everything he said was under duress". (My underlining)
The witness denied the suggestion. While the questioning was matter of course and not backed up by facts over which to deny issuably it was worth noting the palpable difficulty of deciphering whether A1' s case was that he did not "point out" anything or that he "pointed out" somethings or some places but under extreme and bad pressure of his arrestors.
A2's Counsel's cross examination contained a persistent thread of A2 as having been a person who merely got involved without any guilty knowledge of unlawful conduct or of any nefarious circumstances but merely as a carrier hired for pay. Nevertheless the Crown sought to have regarded in as worthy of notice the following answer elicited through cross-examination.
"Q: A2 informs me that he never said anything about Khoaele to you.
A: He did say something - They did not shoot the deceased but rather the deceased was shot by Mosa - A2 said he knew and that his vehicle was hired t go and collect the parts of the vehicle - A2 said he knew because the accused had told him when they hired the vehicle - He (A2) said this in the presence
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of the other accused persons."
What is important is the doubtful and objectively suspicious circumstances of the places where the parts were collected and conditions of the vehicle and parts as against the preferred explanation by A2 that he had merely been hired to deliver the parts. This was against the following background on the facts. Firstly, that just a matter of hours after the deceased was robbed of his vehicle and shot the accused were "red-handedly" caught and arrested at a road block in possession of the dismantled car parts. Secondly, the dismantled car parts were still intact and showed no signs of dents. And as against an explanation preferred by A1 not less than on one occasion (one would suffice) that the vehicle parts belonged to his vehicle which had capsized on the mountain road. The spot where the vehicle capsized was never shown.
PW 9 who was stationed in the Criminal Investigation Department of Royal Lesotho Mounted Police at Maseru in December 1992. One day during that month he received a report from his counterparts in Roma. It was about a person who had been shot. He became one of the investigating officers in the case. Following on that report which he received on the 19th December 1992 at about 6.00 p.m. he set in motion his investigations. He followed a report given by one Mothibeli Pheko concerning that man who had been found shot. The dead man's body had already been taken to Roma Hospital mortuary. At that hospital the witness examined a corpse of one Moeti Rapeane. The witness observed that the corpse had a wound on the chest and another wound on the kidney area. This witness who had been a police officer for ten years formed an opinion that the wound had been
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aused by gun shot.
The witness then proceeded to Maseru to continue with his investigations. There he contacted PW 8. The two of them then went to meet PW 7. Following their meeting they decided to proceed to the homes of the people who had been suspected in the killing and the robbery of the deceased in question. The meeting of these officers resulted in mounting an early morning mission on the following morning to the places of A1 and A2. It was at about 5.00 a.m. as the witness testified.
hey first attended at Ha Matala on the south of Maseru on the home of A1. He was found at his home where there were other family members. He had been sleeping. He was arrested by the witness and fellow officers. They then proceeded to Ha 'Nelese, a place on the South of Maseru and adjacent to Ha Matala. It was there where they found and arrested one Tšeliso Chaba and A2. That Tšeliso Chaba was never before Court. The witness did not recall when last he saw Tšeliso Chaba. All the three were arrested in connection with the charges now before Court. One Tsotang Phakane was also arrested. The witness did not know his whereabouts but remembered that he was released without having been charged. A1 and A2 were interrogated in connection with the death of Moeti Rapeane and the robbery of the vehicle in question. It was at Maseru Charge Office. PW8 had cautioned and charged A1 and A2.
rom Maseru Charge Office the witness and his colleagues and the three suspects went to Roma police post. There, after about an hour, there were further explanations from the suspects. That in particular A1 did
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specifically make the explanation. It was as a result of the explanation that the entourage proceeded to Mafeteng. It was on the 27th December 1992. It was to look for one Khoaele.
The witness testified that this group consisting of police officers and suspects duly arrived at Ha Mohlehli, at a shop said to belong to one Mosa Khoaele who has also been spoken about by PW 8. The witness and his colleagues duly introduced themselves as policemen. It was the first time that the witness saw that man known as Mosa Khoaele (Mosa) Mosa agreed that he be searched by the witness and his colleagues whereupon a 7.65 pistol was discovered. It had certain serial numbers which the witness did not recall but which he had recorded in his note book. Mosa produced the gun's licence. He was arrested. The gun was later taken in as an exhibit by PW 8 but disappeared in police custody. The witness testified that they had not forced nor tortured nor assaulted any of the suspects to give any explanation.
The entourage proceeded to Roma police post where further explanations were given by the suspects who included A1 and A2. This led to the entourage proceeding further to a place called Ha Ntsane on the following day (on the 28th December 1992). No pressure nor assaults had been applied on the suspects. This place was described as being in the direction of Nazareth on the left side before reaching Nazareth where a detour has to be taken to the left. Travelling had been done by a vehicle to that place through a tree plantation which is accessed through a narrow road way just wide enough to allow a vehicle to travel through for about four kilometres to a certain spot. The roadway seemed not to be in regular use.
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It was at a spot along the roadway of about four kilometres from the main road where a body of a vehicle was seen at the edge of the tree plantation and not quite inside the plantation. It had been pointed out by both accused as the witness testified. It was later identified by one Libetsa Rapeane as his own. It had signs of soot or tell tales of having been burnt. It had no wheels, doors, engine and other parts. It was just a shell. It showed no dents, no signs of damage except a dismantling of parts there from. The vehicle was later removed to Roma police post.
A1 had given an explanation as a result of which a tour was taken on the following day to Ha Khoeli one of the witness' colleague was officer Lechesa. A1, one Rantuba and Mosa were present but not A2. A spot not far from the road was pointed out. It was not far off from the next village. It was towards the middle of the road where stains from drops of dried blood were seen. From there Tsotang Phakane took the party to Ha Moitšupeli. It was at his brother's (Nkau) place. He said he had slept there on the previous day, that is on the day preceding the events. PW 3 was also present. The party went back to Roma police station.
The witness went on to testify that they had wanted to make A2 an accomplice and that all the accused were remanded and later released
on bail. The bulk of the cross examination by the Counsel for A1 included an attempt to deny any pointing out of all the incidents.
Alternatively a circumlocuted attempt to deny that A1 made certain explanations as a result of which a pointing out by him and others resulted. The witness repulsed all the challenges in his honest replies to the cross-examination. This included those from the Counsel for A2 who denied his involvement in the
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death or killing of the deceased in alleging that he was only doing his work as a goods carrier when the car parts were found and that A2 was present and part of the pointing out of the scrapped vehicle at Ha Ntsane.
The witness went about his evidence in chief very clearly and albeit inclined to linger on to details in my view in a way that showed
openness and candour. He answered questions put to him in a straight forward manner. He was a truthful witness. In most respects he corroborated PW8.
PW 6 had been stationed in Maseru during the month of December 1992. On the 19th December 1992, he happened to be on patrol outside Maseru. He then proceeded to Roma/Mountain Road. He was to go past a place called Mahlabatheng. He was accompanied by his superior Lieutenant Tšilo. It was after 12.00 to 3.00 a.m. There had been a road block manned by soldiers and the witness and his colleagues. A vehicle registration A3984 was stopped for purpose of search. It was a van and did not have a canopy. It had two occupants and a driver.
This van was familiar to the witness. He also knew the driver whose name was Malumane. It was A2 who was also the van's driver and A1 was seated on the passenger seat. First the occupants of the van were searched on their persons. Nothing was found on them. The witness also knew A1, Simon Sehloho. He did not know the third man. The witness and his colleagues afterwards looked into the back of the van which was loaded with vehicle parts. There was two white doors, one vehicle bonnet, an engine, three tyres, a gearbox and a seat.
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A1 volunteered an explanation while the loaded goods were being inspected. The goods were vehicle parts and included wheels, an
engine, gear box, doors, bonnet and a grill. The witness was not impressed with the explanation for the reason that the property was being carried at night. A1 said the parts belonged to his vehicle which had capsized at the mountain road. This he said in the presence of A2 and the other man. The parts did not show signs of any damage although purportedly belonging to a capsized vehicle. A2 indicated that he had merely been hired to carry the property. A question was asked by one of the witness' colleagues as to where particularly the property came from. There was no reply from the gentlemen suspects. The witness caused and charged the suspects with unlawful possession. The vehicle was taken away from control of A2 and detained. The suspects were taken in a separate vehicle, a police vehicle and driven off to Maseru and where they were put in a cell. The witness then went off to sleep and left the matter in the hands W/O Sehloho of the Car theft and Robbery Squad. It could have been around 4.00 a.m. on the 20 December 1992. He only came back to duty after 10.00 that morning. He found the suspects absent. There was an explanation about their absence. The witness was able to examine the seized vehicle parts in the light of the day. The witness had not been satisfied with the explanation proffered by the suspects that is why he duly arrested them and took them to Maseru Charge Office for further interrogation. The witness came to know that the suspects were ultimately charged with murder and robbery.
I made a finding that A1 and A2 were indeed arrested around along the road from the junction Roma/St. Michaels and Mahlabatheng which are not more than six kilometres apart. It was a clear moonlit night when the
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road block was mounted. Incidentally the accused did not deny such arrest. They were in possession of A2's van carrying vehicle parts which were ultimately proved to be not belonging to the accused because they did not claim them afterwards. It was at the earliest morning. But A1 had said they belonged to his capsized vehicle the circumstances of which were not suggested to the witness under cross examination. Much was made by A2's attorney that the witness when arresting A2 there was no reasonable suspicion on the part of the witness of wrong doing on the part of A2 and furthermore that the witness could have described the parts of the vehicle wrongly for example the grill. It has to be pointed out that the aspect whether or not PW 6 doubted A2's explanation would have been an issue concerning whether or not he was rightly arrested and whether there was a good basis for such arrest. It becomes immaterial where the real issue is proof of his complicity in the crime. I noted that A2 (through his Counsel) was not keen in the very least to inform the Court of the circumstances under which he was purportedly hired by A1 or someone else.
he witness who was regarded as Crown's star witness inasmuch as his evidence disclosed that A1 and A2 and another person not before Court were found in possession of the property allegedly traceable to the deceased, was subjected to a most able vigours and searching
cross-examination about the contention that A1 never volunteered or made any explanation at all concerning the presence of the property in A2's van. This was denied by the witness who reiterated that the explanation by A1 was voluntary. Furthermore that the arrest was made at Ha Matala at A1's residence. The answer thereto being that after his arrest at Mahlabatheng the accused was re-arrested subsequently because he had never come back after having
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removed from Maseru Charge Office on the morning of his arrest. I also noted a contradiction concerning A1's story or explanation about the vehicle parts. It was in one of his Counsel's questions and it was put as follows:
Q: "A1 will say that he has nothing to do with the parts. He never had any vehicle which capsized.
A: I say before this Court that this accused gave an explanation to that effect".
This was against the background that A1 had always and all along claimed the parts as those of his vehicle. I concluded that the witness was telling the truth about the events of the early morning when the accused were arrested and that the cross-examination by Counsel did not disturb him.
The evidence of PW 7 was that during the month of December 1992 he was attached to the Car Theft and Robbery Squad at the Maseru Central Charge Office of the Royal Lesotho Mounted Police. He had been on night duty on the 10th December 1992 together with one Trooper Khaele. It was around 3.00 a.m. when Lt. Tšilo and PW 6 arrived at the witness' office in company of A1, A2 and another man who was not before Court. A report was made by Lieutenant Tšilo to the witness as a result of which he went out of his office into the charge office premises. There he was shown a white Toyota Hilux van which was loaded with car parts. The van bore registration numbers A3984. It was not familiar to the witness who saw it for the first time. Among the loaded car parts were doors, an engine, wheels, windscreen, bear box and other parts which he recorded in his
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notebook.
The witness testified that he subsequently confronted A1 and A2 about the van and the car parts. The two men were already known to the witness as Simon Sehloho and Malumane. He was related to neither of the accused. Different explanations were put forward by the accused. A1 replied that the car parts belonged to his vehicle which had collided and overturned at Ha Ntsi. That is why he had cannibalized the vehicle and removed the parts. A2's explanation on the other hand was that he knew nothing about the vehicle parts; and that he had merely been hired by A1 to deliver the parts from where the vehicle had capsized at or near Ha Ntsi.
It was after the explanation by A1 that he was asked by the witness to go and fetch his alleged capsized vehicle's documents and was released to go for that purpose. A1 had never come even at the time when the witness broke off from duty. Although A2 was allowed to remain outside the office. It looked like all the suspects ended up disappearing. That is why there was a search for A1 on the following day if not later on the previous day. There was a search for A2 at Matala on the following day. This was on the day that the witness became aware that others besides A1 had also gone. That A2 ever escaped was denied by his Counsel. Instead it was suggested that he had been allowed out or released until such time as A1 re-surfaced. It was suggested that the release could have been by one officer Toloane. The witness denied all these.
The search on the 26th December 1992 resulted in arrest of A1, A2 and another man after a combined search by the Maseru and Roma police.
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It was the arrest which has already been recorded in the judgment and as testified to by Crown witnesses. The witness was given no reason or explanation by A1 as to why he had disappeared as against his promise to fetch papers and report back. A1 did not respond. At the time of the arrest it was apparent that the information had filtered through that the deceased had died and his vehicle stolen. That was why the three men who included the two accused were escorted to Maseru Central Charge Office and were informed that their arrest was in relation to the death of the deceased for which they were suspected. The suspects were subsequently escorted to Roma police post.
I noted that there were occasions when A1 clearly sought to ride on two horses in his defence. The first was when he said that the vehicle parts were of his own vehicle parts which he took possession of after the damage to his vehicle. The second was when he suggested through his Counsel's cross examination that A1 never said the parts were his nor capsized vehicle the answer was that:
Q. "He said the parts were of his vehicle?
A. Yes I asked him. A1 said they dismantled the vehicle on the same day during morning hours ".
When another question was asked to suggest that A1 would deny that the vehicle was his it was added that even there had been no examination of the parts by experts. The witness reiterated that A1 had said the parts were those of his vehicle and furthermore as the witness added he (the witness)
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had even asked A1 about the registration numbers of the vehicle which had capsized at Ha Ntsi. A1's reply had been that they might have been lost at the time that they were collecting the parts. A1 was said to have kept quite when confronted with the information that he had no vehicle which was registered with the traffic department. At this point, that is during the Crown case, there was no mention of Mosa's name as having been owner of the parts or of the vehicle nor that he had been left near the place of one Ralitšotso. This contention only came up when A1 was in the box and was testifying. This being when the Crown witness had been disabled or given no opportunity to confer or affirm the contention or defences. Significantly Mosa was not before Court. The futility of dangling his name as a defence was well demonstrated in the circumstances of the late attempt to shift the blame onto him. PW 7 was a reliable witness who stood firm and who appeared to have no reason to fabricate. His evidence was in addition that A2 had initially been earmarked as an accomplice witness.
The Crown had then closed its case. Then the accused made an application for the discharge in terms of Section 175(3) of the Criminal Procedure and Evidence Act 1981 which I dismissed. This exercise in discretion was based on my feeling that the Crown case being based on circumstantial evidence the decision whether the discharge or not would have to be primarily geared towards avoiding failure of justice. As I have said before I dismissed the application. Only A1 elected to give evidence in his own defence.
The Crown urged me to reject the evidence of A1 as false beyond a reasonable doubt because it differed from what he had earlier advanced as
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his evidence when he indicated his defence to the various Crown witnesses. A1 testified that he had not known the deceased. He had
not stolen any vehicle nor extracted its parts. On the day suggested as the date of the murder and robbery with which he was charged he was at Thaba-Tseka where he had gone in a vehicle of his friend called John. From there they came very late on the same day.
A1 testified on their way from Thaba Tseka and near the village of Ralitšotso's they were stopped by the occupants of some
vehicle one of whom was Mosa Khoaele. His vehicle was a van. Mosa who was a relation of A1 had another name of Tsaka. Mosa told them that his vehicle had had problems and they needed someone to carry his parcels. At that time what the parcels were had not been specified except that an inspection was done which revealed vehicle parts. These included two doors, a seat and a gearbox. Mosa suggested that a carrier had to be found who would accept a M120.00 payment as a price. A1 agreed that he would speak to someone. A1 and John left for Masianokeng where they met and negotiated with A2 (who had transport) about carrying Mosa's vehicle parts. A2's other name is Mothibe Malumane. He was also referred to as Letsie. A1 had known A2 for a long time as a goods carrier. A2 asked to be shown where the goods to be carried were. In the meantime John was asked to go while A1 remained with A2. They later went with A2 where Mosa's vehicle was.
When they arrived at the place they found one Rantuba Chaba who was with Mosa. A1 had known Rantuba Chaba for the first time that day. The two spoke to A2 to A2 and they were within A1's earshot. A2 asked where the goods were to be carried to. The reply was that it had to be at Ha
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'Nelese. The charge of M120.00 was agreed upon. The money would be recovered from Chaba Rantuba at his home. The goods were then loaded into A2's vehicle by Mosa, Rantuba Chaba and A1. It was accepted as common cause that the goods were the vehicle parts which were later exhibited before Court. A1 said they include four tyres. The three then took off in A2's vehicle to 'Nelese. It was at about 8.45 pm as A1 testified.
It was at Mahlabatheng where the accused met a police roadblock. They were stopped. A2 was the driver and he was asked for his driver's licence. That he produced. The police asked where the loaded property was destined to. A2 replied that the goods belonged to Mosa and said he A2 could not produce papers for the vehicle because the vehicle was not his but Mosa's. That as he testified they had just parted with Mosa for about four kilometres when they were confronted. When documents could not be produced the police resolved to seize the goods until relevant papers were produced. A2 was asked how he came to know that Mosa. A1 was asked about how he knew Mosa later on. That was after PW 6 had ordered them to drive to Maseru. A2 still drove his vehicle. The Accused and other suspects had then been placed under arrest. The police had intimated that they would release the property on condition that the papers were produced and pending that A1 and his companion would be placed under arrest.
A1's testimony had been that he had never been questioned by the police in connection with the issue. Its strangeness is clear when account is taken of the fact that during the Crown case and when witnesses were being cross-examined this aspect was not brought out. It will be remembered that there was later revealed a contradiction that A1 would
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deny that he said the property was his A1 had agreed that he did make the statement. He had earlier proceeded on the basis that he claimed the property was his. I concluded that he was able to make the statement because the police had questioned him. I disbelieved A1 therefore when he said he never claimed any property which was subsequently identified by PW2.
A1 further testified that when at the Maseru Central Charge Office to which place they proceeded after their arrest he was released by PW7 with a view to locating Mosa who would furnish the documents for the property A1 said he proceeded to Mafeteng on the following day where he located Mosa. He told him to go to the police to produce the papers. Mosa said A1 must go and he (Mosa) would bring the papers to the police. A1 said that he attended on the same day on PW7 to inform him of Mosa's promise. He was then released by PW7 following the report. It was not suggested then when that A1 should have reported. Incidentally this was not put to PW7. A1 further testified that he became surprised when a few days later that is on the 26* December 1992 he was placed under arrest on a suspicion of murder and robbery of the deceased. This he said to three police officers who included PW7, PW9 and PW8 that he had no knowledge of having shot and killed a person. Then an arrest a search was made of his premises for a gun. He was also beaten up by some officers who were reprimanded by PW7.
A1 said it was the police who caused their attendance first at Mafeteng where Mosa was arrested. Secondly at Ha Ntsane where he was also told to "point out" a burnt vehicle. Thirdly at Ha Khoeli where he was
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told to point out some dried blood stains. And fourthly at Ha Moitšupeli. A1's suggestion was that he was under pressure. This was short of saying that it was the police who guided the pointing out by reason of some foreknowledge on the part of the police. I have already indicated that the Crown witnesses could not be disbelieved on the question that the accused variously pointed out the different places which on most occasions A1 did.
A1 further testified that all along the property found in A2's vehicle had already been under the control of Mosa who they had just left before arrest by police at Mahlabatheng. This was clearly against his earlier indications to the Crown witnesses that he claimed the property as his. Like all allegation against him by the Crown witnesses he challenged same as untrue and without foundation.
My concern is now the cross examination of A1 by A2's Counsel. The Crown Counsel Mr. Thetsane urged the Court to note what he called a phenomenal observation on the cross examination of A1 by A2's Counsel. It was that at no stage did the Counsel directly or indirectly seek to deny or challenge the allegations deposed to by A1 regarding what was purported to have transpired from the time of the
arrest at the roadblock up to the Maseru Central Charge Office. Counsel submitted further that the Court should not only draw an
adverse inference to this absence of denial but should attach great significance to this failure by the defence to challenge the
prosecutions's evidence.
The cross examination of A1 by the Crown Counsel was both searching and taxing. It resulted in A1 being thoroughly exposed as a lying
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witness. Especially A1 was laid open to attack by reason of what he suggested would be his defence under cross examination of witnesses by his Counsel, as against what turned out to be his defence when he was in the witness box under oath. He was unable to reconcile the two. This inevitably lead to the Crown submitting that A1's denial of complicity in the commission of the offences charged could not be reasonable possibly true. He could not lend credence to any of his stones as this Court concluded.
The difficulty on the part of A1 to lend credence to his stories was pointed with validity in the following areas. Firstly A1 failedtoputtoPW6 so much of his case concerning the presence of the car parts in his possession which parts as this Court concluded was traceable of the deceased and the owner of the vehicle (his uncle). I noted it as very significant that more often than not A1's responses
to the challenge as to which certain issues were not put to witness was that he had left everything with his lawyer.
Secondly, at the roadblock where a search was made which led to discovery of the car parts A1 must have sensed that he was in jeopardy. But still he did not mention the afterwards alleged relationship of the goods to Mosa. His response on this query was that he had not been asked who the owner of the property was. This explanation about Mosa at that crucial time would have stood in favour of A2, that is to say that he A2 had no relationship of a questionable kind with A1 but was connected to A1 in nothing else but as an innocent agent of Mosa. Perhaps equally more so A2 could have explained he was no agent of A1 but of Mosa. This would have been most tactful when that Mosa was not even before Court. The logic in
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there being that A2 could not be suspected as having guilty knowledge even though he associated with people who may have committed a crime. That he denied knowledge that a crime had been committed can only be most fanciful and puerile. If had no knowledge why did he not give evidence in his defence. In S v ROSSI-CONTI 1971(2) 62 (AD) failure to give evidence made an inference of knowledge based on participating in some way in commission of an offence (as accessory), on the accused's part inescapable. I observe a similarity to the present case.
Thirdly, if it were to be assumed that there was truth in A1's story that they had left Mosa hardly three or so kilometres behind it became unimaginable that A1 could have omitted not only to speak about Mosa but to volunteer information that he was prepared to take police to the place where Mosa had allegedly been left. Even if the place where Mosa had been left was much farther than three or so kilometres that could not lesson the urge to refer to Mosa as having been left at a particular place. That A1 had to do by way of explaining being wash his hands of suspicion of culpability.
Fourthly, is A1's attitude when in the box when he effectively reneged his previous statements under oath. As a sign of consistent behaviour showing unreliability and to show my awareness of it only I accepted what was pointed out by the crown in relation to a bail application in CRI/APN/14/92 when A1 was applying for bail. It was that when he was confronted with a statement he had made earlier in the application all he could say was that he had earlier been read the statement by the police. And that it in their quest to have the accused incriminate himself and to that to
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that end he was told to repeat the incorrect statement before the Court. It was no surprise therefore that A1 disowned the statement or his story inasmuch as he must have suspected that it would amount to an admission that he killed the deceased if it was admitted, even though it showed circumstances that would remove the unlawfulness of the killing. I did not rely on the application in any was except as proof that A1 had a tendency to deny statements previously made under oath. Most typical was his denial under cross-examination that he had anything to do with the property found in his possession which was a dramatic shift from his position that the property had been his. I accepted legal position or test, on whether an accused's denial of complicity was being unreasonably possibly true, as the one aptly shown by the learned author LN Hoffman in his SOUTH AFRICAN LAW OF EVIDENCE Third Edition at page 409. There he showed the unanimous view of judicial authorities that:
"No onus rests on the accused to convince the Court of the truth of any explanation even if that explanation is improbable the Court is not entitled to connect unless it is satisfied not only that the explanation is improbable, but that beyond any doubt it is false. If there is any reasonable possibility of the explanation being true, then he is entitled to an acquittal."
It was common cause that A1 was under cross examination and suggesting that the parts belonged to his own vehicle which had capsized which version held onto most steadfastly. I did not make much of a statement that A1 may have suggested that he was not arrested at the roadblock but later after a day or two. What remained important to me was that in another version A1
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appeared to have dramatically shifted from his position when his Counsel was cross-examining witness over a latter version in which he alleged that the property in issue belonged to that Mosa who had since disappeared.
So that following on the new version we came to a point that as respect the older version there was no cross examination of the crown witness over the issues or the defence that had been raised anew. It is trite law that if a party wishes to lead evidence to contradict an opposing witness he should first cross examine him upon the facts which he intended to prove in contradiction, so as to give the witness an opportunity for an explanation. The Crown referred me to the following statement in the work of Hoffman SOUTH AFRICAN LAW OF EVIDENCE (supra) at page 356 where it is said that:
"Similarly if the Court is to be asked to disbelieve a witness he should cross examine upon the matters which it will allege to make his evidence unworthy of credit."
That failure would be said to have been a feature of A1's conduct in relation to the Crown witnesses. This would take the ground from under the case of the accused is so far as he wanted to impeach the reliability of the Crown witness. This would cast a serious doubt on the accused's story which he did not put to Crown witnesses. I was referred in this regard to SMALL v SMITH 1954(3) SA 634 at 438 and PHALOANE v REX 1081(2) LLR246 at 252.
Tied up with the failure of an accused to put his case to the Crown
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witness is the question of an accused's story which he puts to the Crown witness by way of his questions. This may be to suggest what story the accused will tell in the witness box or what defence he will put forward. These cannot be taken lightly by suggesting a wide latitude to the accused to say or act against such statements or questions put to Crown witnesses as if they should be regarded as not those of the accused. There is also authority for the proposition that the accused's legal representative is his mouth-piece and that until the mandate is withdrawn the accused is bound by what his Counsel says on his behalf. (See REX v LAWRENCE PHASUMANE AND OTHERS CRI/T/184/1984)
Related to the problem of where a story or defence is put to Crown witness is a situation where questions or a defence is not put to Crown witnesses. One instance may be in a case where in all the versions of A1 there are areas in which A2 should have stood up to suggest a contrary version or an explanation without leaving everything to his Counsel. None of the accused can be heard to say that Counsel omitted to put certain issues pertaining to his defence in the case.
It was the latter version which A1 took to be a story that he stands by in the witness box and that would appear to be near to or holding the seeds of a possible complete defence. It was for the accused to have proffered the story at the earliest, possible and relevant opportunity as Counsel for the Crown eloquently stated in his submissions. The Crown Counsel said very correctly that there were two crucial and pertinent questions to pose in that regard. Firstly, why did the accused not come out with the nature of the explanation he was seeking to proffer at the time of his arrest at the
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roadblock. And secondly and as a sequel to the first: Why did he "omit" or "inadvertently fail" to put this crucial aspect of his defence to PW6, the prosecution's most crucial witness? That the conclusion that the accused's story is false beyond a reasonable doubt is proper in the circumstances is well supported. (See also MALEFETSANE POTLAKI v REX C of A CRI/NO12 OF 1979 7/09/1979 (Unreported at page 7). I agreed with the Crown Counsel.
That the accused's story came on the last turn when it should have come earlier supports an inescapable inference that the accused's
explanation was clearly an afterthought and should be rejected in its entirely. To borrow the words of Malan JA in R v MLAMBO 1957(4) 728 AD at page 738 B-C:
"...........if an accused deliberately takes the risk of giving false evidence in the hope of being convicted of a less serious crime or even per chance escaping conviction altogether and his evidence is declared to be false and irreconcilable with proved facts a Court will in suitable be fully justified in rejecting an argument that not withstanding that the accused did not avail himself of the opportunity to mitigate the gravity of his offence, he should nevertheless receive the same benefits as if he had done so."
The proved facts or those which the Crown relies upon in the mileau of circumstantial evidence on which the Crown case rests are those facts from which reasonable inferences may be drawn. In the circumstances of the
37
accused's irreconcilable stories it was correctly submitted in my respectful view that the accused person's story of denial of complicity in the commission of the offences charged cannot be reasonable possibly true.
It has to be recalled once again that the case for the Crown rested on circumstantial evidence. The crucial issue had therefore been whether the prosecution had proved that the deceased was murdered and that the accused persons were responsible were responsible for his death. I agreed that the facts to be proved had to be established as a matter of inference from the proved facts. In that regard the Crown referred me to TATOLO PHOOFOLO v REX 1963-66 HCTLR at page 64 as cited in REX v MOTAMO SEHLABAKA CRI/T//22/88 at page 64 where it was stated that circumstantial evidence consisted of:
" ....... evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the
accuracy of mathematics."
I was also referred to R v VILLIERS 1944 AD 493 at 508). I also took note of the requirement that:
"A trier of fact is not obliged to isolate each piece of evidence and test it by the test of reasonable doubt." R v MTHEMBU 1951(4) SA 670 AD.
"It is the cumulative effect of the items of circumstantial evidence that is cogent. See also R v HLONGWANE 1953(A)
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SA 332 AD at 340 & 341where the approach to the defence of alibi in the light of the totality of this evidence in the case and the Count's impression of the witness." (My underlining)
An equally similar approach is urged here.
The two accused denied complicity in the commission of the offences they are facing. A number of proved, unchallenged and unchallengeable facts were cited in order to invite the Court to draw inferences which were said to be the only reasonable inferences. See R v BLOM 1939 AD 188. As Muray AJA said in R v MTHEMBU case (supra) at page 680
".........circumstantial evidence, of course rests ultimately or direct evidence and there must be a foundation of proved or probable facts from which to work. But the border-line between proof by a balance of probabilities and prove beyond a reasonable doubt. Just as a number of lines of inferences, non of them decisive may in the total effect lead to a moral certainty (REX v DE VILLIERS 1944 AD 493 at p. 508) so, it may fairly be reasoned, a number of probabilities as to the existence of the facts from which inferences are to be drawn may suffice, provided in the result there is no reasonable doubt as to accused's guilt."
All the facts from which inferences are sought have been recorded and commented on in this judgment. All that the following treatment
should constitute is a compendious statement of an extremely brief kind.
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The deceased was Moeti Rapeane. On the 19th December 1992 deceased borrowed a white Toyota Hilux bearing foreign registration number
from his uncle PW2 for the purpose stated in the judgment. When the deceased was last seen he was attired in the summer clothing and push-in shoes. He was similarly described by another witness other than his uncle and that a person of similar description and attire was attended to at Ha Makhalanyane petrol filling station. He was driving that Toyota van when he was seen by PW1 at the filling station. He was then accompanied by three gentlemen. After being served by PW1 the young man (who was the driver) and the three gentlemen drove in the direction of Roma. That somewhere at or near Ha Khoeli (at or near a spot which coincidentally A1 pointed out) the deceased was robbed or his vehicle and shot by the gentlemen he was in company of The shooting was not seen by any of the witnesses That no sooner had he been shot he was assisted by PW3 to whom he related what transpired. As the deceased related the events PW3 saw a white van being driven away from the direction of the deceased. The deceased who was mortally injured was subsequently conveyed to the Roma Hospital where he subsequently died on the 19th December 1992. Just a matter of hours after the deceased was robbed of his vehicle and shot the accused were red-handedly caught and arrested at a roadblock in possession of the dismantled parts of the vehicle. The dismantled parts were still intact and did not show any signs of damage or "dents". A1 then proffered on explanation that the parts belonged to his vehicle which had capsized on the mountain road. A2 on the other hand proffered an explanation that he had merely been hired to deliver the parts by A1.
A1 was released by the police on the mistaken belief that he was the
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genuine owner of the dismantled car parts and that he would later bring the necessary documents for the vehicle parts. A1 did not report until a search for him and arrest resulted. In the meantime or during intervening period the dismantled vehicle parts were positively identified by PW2 as the car parts belonging to his vehicle which he had lent to the deceased, Shortly after this arrest the accused led the police to Ha Ntsane where they were pointed out a burnt vehicle, cab, and chassis which were similarly identified by PW2 and were traceable to the deceased. A1 led the police to Ha Khoeli where he (A1) "pointed out" a dry blood stained spot on the ground next to the edge of the road. Then A1 led the police to Mafeteng area where Mosa, the man who had absconded was arrested.
There was evidence that A2 and his colleague who has since been at large escaped from lawful custody of the police pending return of A1 who was to bring necessary documents. A1's explanation that the dismantled vehicle parts found in his possession were acquired from Mosa was shattered beyond doubt. This was so because PW6 was not challenged in regard to what happened at the road block where the accused were red handedly caught by the police. At least I believed the Crown witnesses as to what is said to have transpired and what the two accused said at the roadblock.
A2's explanation on the other hand was that he had merely been hired to carry the goods for a price. It was submitted in my view correctly that this story was greatly unsubstantiated when regard was being had to his silence in the face of the following: Firstly that credible evidence that he was found in possession of property recently robbed called for a plausible
41
explanation from him. Unless he forgot that the Crown case has been said to be one based on circumstantial evidence. Secondly, A2 did not attempt in any way remotely or otherwise to challenge the obviously untruthful version regarding the incidents at the roadblock. Thirdly, in the circumstances A2's association with wrongdoers even for what he called a benefit of his own and his possession of the car parts was clearly with a guilty knowledge. To conclude otherwise would be most fanciful and would remind one of the words of Lord Denning in MILLER v MINISTER OF PENSIONS 1947(2) ALL ER 372 where he said:
"Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would not protect the community if it
admitted fanciful possibilities to defeat the course of justice:" (My underlining)
A2's claim that he participated for a benefit is based on pure speculation. The core issue being here that he knew that a crime had been committed and he thus participated and at least was a socis criminis. See COSTA PETER SABA v REX LLR (2) 1991-1996 1379 at 1384 where it was stated that:
".......a totality of evidence will lead to a conclusion that or accused knew certain things as a matter of inference, knowledge of that a crime was committed."
Regardless of whether his purpose is to benefit himself of the principal offender. "And where one intervenes to help the perpetrator to evade justice" is itself a crime"
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of the principal offender. See KHATAMPI RAMONYATSI 1980-1984 LAC 251. Lastly a sworn statement by A1 in the bail application "left him between two horns" as Crown Counsel submitted. In my view it showed a propensity on the part of the accused to make conflicting
statements under oath. That was the relevance I attached to the bail application in CRI/APN/14/92. Indeed A was undoubtedly exposed as a dishonest witness.
It was submitted finally that the sum total of the facts listed above should persuade the Court to draw the following inferences most inevitably. That A1 and A2 acquired the vehicle belonging to the deceased by robbing him of the same and murdering him. The accused have failed to explain plausibly how they came by the vehicle parts in issue and thing ought to be believed in their stories. Secondly, that after robbery of the deceased of his vehicle and mortally injuring him, the accused dismantled the car parts and burnt the body with a view and motive to destroying the evidence.
I accepted in my judgment that given the above listed proved facts inescapable inferences ought to be drawn that A1 and A2 wrongfully
and unlawfully acquired the vehicle in issue that was in lawfully in possession of the deceased Moeti Rapeane by robbing him of the same and murdering him. The accused have failed to explain how they came by the vehicle parts in issue in that their stones ought to be disbelieved as being false beyond a reasonable doubt. Again after robbing the deceased of the vehicle and mortally injuring him the accused dismantled the car parts and burned the vehicle body with a view and motive to destroy the evidence. Counsel for the Crown referred me to the following authorities: R v KUMALO 1930 AD
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193 AT 213 S v SCREECH 1967(2) 407 AT 409 JOSEPH MAQAPHALLA AND ANOTHER v REX 1971-1973 LLR 39 at 42, CRIMINAL LAW THROUGH CASES - Mofokeng J page 172, R v BLOM AD 188 at 202-3, CLEMENT KOBEDIGHOFAMODIMO v STATE Appeal caseNo.4/1984,
a Botswana case at pages 34-35.
I accordingly found the two accused guilty as charged and my assessor agreed. That is that the accused intended to rob the deceased of the vehicle and did rob him of the same. In addition they had legal intention to kill the deceased.
T. MONAPATHI
JUDGE
3rd February 1999
For the Crown : Mr. Thetsane
For 1st Accused : Mr. Monyako
For 2nd Accused :Mr. Khasipe
