CRI/T/15/85
IN THE HIGH COURT OF LESOTHO
In the Matter of .
REX
v
MALEFETSANE PHALA MABOPE
PITSO MAKHETHA
MOJALEFA MPOTA
SEMPE TAU
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 10th day of January, 1986.
The four (4) accused persons have appeared before me and pleaded not guilty to a charge of robbery. The
allegations disclosed in the charge sheet are as follows
"upon or about the 29th June, 1984 and at or near Hlotse Standard Bank in the district of Leribe, the above-named accused with 2 others namely Isaac Shemane Hatla and Lira Marai whose whereabouts are unknown did one or other or all of them unlawfully assault Paul Phafane and 'Musa Mangoaela and, intentionally using force and violence to induce submission of the said Paul Phafane and 'Musa Mangoaela, the accused and the 2 others, one or other or all of them did take and steal in their presence out of their immediate care and protection certain property to wit
revolver
M39,676-00
the property of the Standard Bank or in the lawfull possession of the said Paul Phafane and 'Musa Mangoaela, and did rob them of the same."
It may be pointed out from the word go that I have encountered problems with the procedure followed by the magistrate who presided over the Preparatory Examination proceedings. He appears to have neither
2/read the
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read the depositions back to the witnesses who testified before him nor called upon the witnesses to sign for their depositions as proof that they had been correctly recorded. Where there is a conflict between the statements made by the witnesses before this court and at the Preparatory Examination it is difficult therefore, to pin the fault on the witness who says his statement was not correctly recorded at the Preparatory Examination proceedings.
The court heard the evidence of P.W.1, Paul Phafane, and P.W.2, 'Musa Magoaela, who briefly testified that they were respectively employed as a teller and a waste clerk at the Hlotse agency of Maputsoe branch of the Standard Bank. At about 12.30 p.m. on 29th June, 1984, they were as usual on duty at the a-gency when they noticed about 4 or so men, in Police or Lesotho Paramilitary Force (L.P.F.) uniform or brown overalls entering into the bank. Some of those men were clearly carrying rifles. As members of the force often came to the bank and were served like any other members of the public, the witnesses were not much worried by the sight of men in police or L.P.F. uniform carrying rifles and entering into the bank.
At the time they expected the men to join in the queue of customers P.W.1 and P.W.2 noticed the man in front coming to the counter, suddenly pointing his rifle at and ordering them to raise up their hands. Realising that trouble was brewing, P.W.1 and P.W.2 got a fright and immediately complied with the order. The other gun men who had clearly not joined In the queue of customers angrily told all the customers in the bank to lie down on the floor and hide their faces. At that time P.W.2 managed to duck behind the counter and quickly crawled into the toilet room which was about 2 or 3 paces from where he had been standing behind P.W.1. He closed the door behind him for safety.
Whether or not the toilet door provided a real
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safety for P.W.2 against men armed with rifles is besides the point. The important thing is that in his evidence P.W.1 told the court that when P.W.2 escaped into the toilet room the gun man placed a bag, similar to the ones commonly used by bankers, on the counter and ordered him to hand over money.
Sensing immediate danger P.W.I complied. He was busy putting all the money he had in his possession into the bag when P.W.1 noticed that the other gun men had also moved to the counter and were pointing their rifles at him. He could see that only one of them had his face covered.
While the other gun men covered him with their rifles, the first gun man jumped over the counter and ran towards the toilet room. Finding the door of the toilet room closed, the gun man returned to P.W.I snatched the bank revolver from him and told him to make sure that all the money was put into the bag. When P.W.1 explained that all the money was in the bag, the gun man caught hold of, violently
shook and knocked him against the wall telling him to take out the keys to the strong room and open it as there must be money in there. P.W.1 assured the gun man that the place was no longer used as a bank branch. It was an agency and he kept no keys to the strong room which was no longer used to keep any money. The gun man then told his companions that there should be money in the strong room and instructed them to make sure that P.W 1 took all that money out.
P.W.I was re-assuring the gun men that no money was kept in the strong room and he thought they were about to leave when he heard shots being fired outside the bank building. He immediately took cover by ducking under the counter. After about 3 minutes the firing stopped and it was all quiet. He came out from his hidding place and found the gun men and the bag of money all gone.
/ P.W.1 then
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P.W.1 then called at P.W.2 to come out of the toilet room as the gun men had left. He also told the customers to get up and leave as he would no longer be able to serve them. He closed the door and in vain tried to contact the Maputsoe branch of the bank by telephone. He eventually got in touch with the bank headquarters in Maseru. He reported what had happened and requested the headquarters to relay the message to Maputsoe branch of the bank.
Shortly thereafter, the branch manager arrived at the agency from Maputsoe. P.W.I was instructed by the branch manager to balance the books to determine how much money had been stolen. He did and found that an amount of 39,676 was missing. The missing money was in denominations of M2, M5, M10.M20 and 50 notes
Both P.W 1 and P.W.2 told the court that they were unable to scrutinize the gun men and were not in a position to identify them.
The evidence of P.W.1 and P.W.2 that there was shooting at the Standard Bank agency on 29th June, 1984 was corroborated by that of P.W.7, W/0 Matobako. who told the court that she is attached to the Public Prosecutors' office which is next to the building of the Standard Bank agency at Hlotse. Around midday on the day in question she was in her office when she heard the sound of shooting outside. She immediately went out of the office and noticed people running in all directions on the main street which passes in front of the bank and the public prosecutors buildings. P.W.7 walked across the main street to the old Seana-marena shop from where she could see a man in brown police overalls and panama hat standing outside the Standard bank building. That man was holding a rifle and firing shots in the air. Although she did not identify the gun man, P.W./ believed he was one of the police officers going about his work. She again crossed the street and went towards the new Seanamarena shop next to the public prosecutors' office.
/Just after
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Just after crossing the street, the shooting stopped and P.W.7 met one of the police women by the name of Moorosi who gave her a certain report. Following that report, P.W.7 and police woman Moorosi proceeded to the premises of St. Saviour Mission behind the Standard Bank and the public prosecutors' office.
On one of the mission vegetable plots next to the wall that separated the mission premises from the Standard Bank and the public prosecutors building P.W.7 found a pink standard bank paper, a white standard bank money bag and a large amount of money. The money was scattered on the plot. It was in notes of different denominations i.e. M2, M5, M10, M20 and M50. Some of the notes were scatered loose on the plot, others were still in bundles or bound with money clips. P.W.7 and her companion collected all the money,the pink standard bank paper and the bag. They took them to the police charge office where the money was counted out and found to amount to M14,300. P.W.7 handed the M14.3OO to P.W.11 Major Ramakhula, who is the officer commanding police in Leribe.
Later in the afternoon of the same day, P.W.7 went to the Standard Bank building and inspected the area. At the main entrance to the bank building P.W.7 found altogether 6 shells and a life bullet.
This in my view confirms the evidence of P.W.1 and P.W.2 that there was shooting outside the main entrance to the bank building on that day. Indeed, as it will become more apparent later in the judgement, apart from being heard by P.W. 11, the shooting was also actually witnessed by P.W.3 and P.W.5.
P.W.7 took possession of the shells and the life bullet. She later handed them to P.W. 14 Lt. Khoza, one of the senior police officers in Leribe. Her evidence that she handed the M14,300 and both the 6 shells and the life bullet to P.W.11 and P.W.14 respectively was confirmed by the two witnesses.
P.W.11 told the court that at about 3.30 p.m. on the day in question 29th June, 1984, he was in his
/ office ....
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office when he received a certain information following which he and other police officers left in a vehicle and went to a place called Matukeng along the tar road to Maseru. At Matukeng P.W.11 found a taxi which had stopped at a bus stop. He inquired from the driver of the taxi about a passenger he had allegedly picked up next to the garage of one Molefe outside Hlotse town. The driver pointed at a policeman by the name of Seshemane Hatla whom P.W.11 ordered out of the taxi together with his luggage.
On searching Hatla, P.W.11 found an amount of M157-92 on his person. He took possession of the money He then searched his luggage which was contained in a bag and found the following a pair of police black boots, police brown overall, police black rain coat, police brown panama hat, police stable belt, two magazines of an M16 rifle loaded with 29 rounds each, a paper bag, a small plastic,bag, a rifle sling and a green hand glove plus a large amount of money. P.W.11 brought Hatla together with his luggage to the police station at Hlotse where the money found in his luggage was counted and found to be M18,525. P.W.11 kept this money together with the other amount of M157-92 found on Hatla's person. The money found on Hatla and the amount received from P.W 7 were handed in as exhibit C and D respectively by P.W 11 who told the court that he had handed the other articles found in the luggage of Hatla to P.W.14.
In his evidence P.W 10, Mongale Khaebane, testified that he was the Bank Manager at Maputsoe branch of the Standard Bank in Leribe, he confirmed the evidence of P W 1 and P.W.2 that on 29th June, 1984, following a telephone message that robbery had been committed at the Hlotse agency of his bank, he immediately proceeded to the agency, found them still at the agency and instructed P.W.I to prepare a "specification of Teller's cash balance" for the day to determine how much money had been stolen. P.W.1's specification of cash balance
/ was checked
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was checked and certified correct by P.W.10 and the bank accountant A certified copy thereof was made and handed in as exhibit B by P.W.10 himself. It revealed that an amount of M39.676 had been stolen.
P W 10 further testified that on a subsequent occasion he went to the office of P.W.11 where the latter showed him some money which was allegedly part of the money that had been stolen at the agency on 29th June, 1984. This was confirmed by P.W.11 to whose evidence I shall later return in the course of this judgment.
It was not really disputed that on the day in question a number of armed men dressed in what appeared to be police or army overalls came to the Leribe agency of the Standard Bank. Some of those men entered into the bank and pointed rifles at P.W.2, P.W.1 and the customers who were at the time being served in the bank. The bank pistol which was in his possession was snatched away from P.W.1. He was physically manhandled and violently bashed against the wall while at the same time being ordered to produce the key to the strong room and hand over all the money. The amount of M39.676 was actually taken away by the gun men under cover of gun shots that were fired outside the main entrance to the bank building.
It seems to me that by pointing their rifles at P.W.1 and P.W.2 as well as violently bashing P.W.1 against the wall, the gun men committed an assault the aim of which was clearly to induce submission on the part of the two witnesses and deprive them, as they did, of the bank pistol and money then in their possession. That, in my view, constituted the offence of robbery
That being so, the only question that remains for the determination of the court is whether or not the offence thus established was committed by the accused persons It is basically a question of identification.
/ In this regard
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In this regard the court heard the evidence of P.W.3, W/0 Ntlama, who told the court that his home is here in Maseru, where he grew up and later joined the police force. In June, 1984 he was already stationed in Leribe. Prior to the events of this case he already knew two of the four accused now before court. They are accused 1 and accused 2.
P.W.3 had known accused 1 from about 1981 and on 25th June, 1984 accused 1 was in the company of one Hatla when they came to him at Leribe police station looking for a policeman by the name of Ralebea.
He remembered that in the early 60s accused 2' s parents arrived in Lesotho from the Republic of South Africa and opened a shop at Makhetheng here in Maseru. He had often seen and even talked to accused 2 here in Maseru. He believed that after his arrival in Lesotho accused 2 stayed with his parents at Makhetheng shop as there used to be dwelling quarters behind that shop.
In addition, P.W.3 also knew one Seshemane Hatla who was a co-accused at the Preparatory Examination proceedings but had since abseconded and was still at large. He had known Hatla as a member of the police force stationed at the Police Training College here in Maseru. He had known him for a period of about 5 years.
At about 12.30 p.m. on 29th June, 1984, P.W.3 was on duty at the Leribe Police station when he received a certain information following which he and one Sgt. Mothepu proceeded to the Standard Bank agency building just across the main street of Hlotse. As they approached the street P W.3 heard gun shots and immediately took cover. He then noticed two men with rifles standing outside the bank building. The two gun men stood one at the left and the other at the right corner of the bank building. The gun man on the right side of the building was wearing a pair of brown overalls similar to the one used by members of the police force or L.P.F. while the one on the left side
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was dressed in civilian clothes viz. a pair of fawn trousers and a black jacket.
From the spot where he was taking cover, P.W.3 positively identified the gun man on the right side of the bank building as Hatla. The gun man on the left side was a stranger to him and could not identify him. Hatla was holding an AK.47 rifle while the gun man on the left side of the building was holding what appeared to be either M65 or M16 rifle. As he saw them, Hatla and the other gun man were firing shots in the direction of the police station although their rifles were pointing in the air.
As the two gun men were firing shots, P.W.3 noticed a third man running from the back of the bank building towards the vehicles that were parked outside the building. He positively identified that man as accused 2. When he came to the vehicles outside the bank building, accused 2 got into one of them and drove off. It was a yellowish car which he believed was a Ford Granada.
According to P.W.8, when he went to the bank he had thought there were "Tsotsis" at the bank. However, Then he saw Hatla and the other man firing shots with rifles, he realised that they were not just "Tsotsis" and the situation was definitely more serious than he had anticipated Although he himself was armed, P.W.3 decided to return to the police station and procure more bullets.
As he approached the bank building on his return from the police station, P.W.3 noticed that Hatla, the gun man in fawn trousers and two other men were then coming out of the bank. He was then about 30 paces (indicated) from them and could clearly see that as he came out of the bank Hatla was carrying a rifle and a bag similar to those used by the bankers.
Of the people who came out of the bank with Hatla, P.W.3 positively identified accused 1 While
/ Hatla and ....
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one of those men immediately ran towards the back of bank building and jumped over the wall that separated the bank building from the St.Saviour mission premises Accused 1 and another man ran along the main street in the direction towards the Spar shops and then followed a foot path leading to Linare football ground. P.W 3 chased after accused 1 and the other man. He simply had no chance to open fire as the place was milling with people running in all directions due to fear and confusion created by the firing of shots in the main street outside the bank.
During the chase, accused 1 even looked back and P.W.3 had no doubt whatsoever that one of the two people he was chasing was accused 1 who was wearing a brown overall and carrying nothing in his hands The man with whom accused 1 was running was wearing a black police overcoat commonly known as police cape waterproof.
When he came within view of the football field P.W 3 noticed that the yellow car driven by accused 2 had stopped and was waiting below the football field. After accused 1 and his companion had come to and boarded it, the car pulled off in the direction towards the Butha-Buthe/Maseru tarred road. At that time other police officers came to P.W.3 in a police van. He got onto the van and pointed out the direction taken by the yellow car. As there was no straight road to the football field, the police van had to deviate and join the main street in order to take the direction towards the Butha-Buthe/Maseru tarred road.
After joining the tarred road, P.W.3 could see the yellow car running in the direction towards Butha-Buthe. He and his party were joined by other police vehicles in the chase. The yellow car was all the time within his view until they came to Levy's Nek where it momentarily went out of view.
When P.W.3 next saw it, the yellow car was abandoned next to Tale tree plantation along the road
/ to Butha-Buthe
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to Butha-Buthe He and other police officers in vain searched for the occupants of that car in the tree plantation. They eventually had the car towed back to the police station where it had since been kept.
It may be mentioned that P.W.3's evidence was teaming with words like "I think, I believe, about, etc." which give the impression of uncertainty. Indeed, he was at one time asked under cross-examination whether he had signed for his deposition at the preparatory examination when he said he did and pointed out the signature which was clearly that of the presiding magistrate. He,himself eventually conceded that he was wrong for like all other crown witnesses at the preparatory examination he was never called upon to sign for his deposition. I watched the demeanor of P.W 3 as he testified from the witness box. Without saying he was a liar, he was such a witness whose evidence required to be approached with care.
In his evidence P.W.5, Captain Tlali, testified that on the day in question, he was in the armoury at the Leribe police station when he received a report following which he issued firearms and ammunition to police officers who were present at the police station. He then took his own gun and proceeded to the standard bank building across the main street.
To get to the bank building, P.W.5 had to go through the gate of the police station, pass through the premises of the Leribe Subordinate Court and cross the main street of the town. When he entered the premises of the Subordinate Court, he noticed that there was a commotion in the street as a result of a man in brown overalls standing in front of the bank building and firing shots in the direction of the police station. People were then running in all directions and police officers taking cover. He conceded that P.W.3's evidence that shots were actually fired in the air could be right as he was closer to the bank building than himself.
/Realising
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Realising that it would be unsafe to advance any further P.W.5 also took cover behind a stationary bus outside
the magistrate court building. From the spot where he was taking cover, P.W.5 could see the gun man but did not recognise who he was. He then noticed a man running to the vehicles that were parked on the street outside the bank building, getting into one of those vehicles - a yellowish Ford Granada - and driving off in it in the direction of Fairways or Spar shops. Unlike P.W.3 who said the man had appeared from behind the bank building P.W.5's version was that the man came from inside the bank.
Well, in his own words P.W.5 said in the event of conflict between his evidence and that of P W.3 the letter's evidence should be preferred on account of the relatively longer distance from which he was observing the events of that day. I see no good reason why I should not do so on this point.
P.W.5 further confirmed the evidence of P.W.3 that after he had seen a man driving away in a yellow Ford Granada car, four(4) other men came running out of the bank and were immediately chased by some of the police officers including P.W.3. One of the men that ran out of the bank was clearly dressed in civilian clothes.
P.W.5 then went to the bank and, after calming down people who appeared very frightened because of what had happened, boarded a police vehicle, proceeded to a place next to Makhakhane garage just outside the town where he and other police officers organised a road block on the Maseru/Butha-Buthe tarred road. Shortly thereafter P.W.5 noticed the yellow Ford Granada car coming at a high speed from the direction of the centre of the town.
When it approached the road block, the car deviated and followed a gravel road leading to the Linare football ground. Within a short time, the yellow car returned on the same gravel road. After
13/ After joining
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joining the Maseru/Butha-Buthe tarred road, it took the direction towards Butha-Buthe. It was followed by one of the police vehicles. P.W.5 and his party also got into their vehicle and joined in the chase. At Levy's Nek, the yellow car disappeared over a rise and was out of view for a short time. When P.W.5 next saw it, the car was abandoned next to Tale tree plantation. P.W.5 was one of the police officers who remained with the car while others entered the tree plantation and in vain searched for its occupants.
On examining the car P W 5 found that it had registration numbers FVG483T. The following articles were found inside the car a bundle of keys,an army coat, AK47 magazine loaded with 15 rounds of ammunition, 3 hand gloves, a brown hold-all bag, a brown overall and a panty hose hat. He had the car towed to the police station and took possession of all the articles. He subsequently handed them all to P.W.14, the investigating officer.
It is to be observed that while P.W.3 said he had seen two men firing shots outside the bank building P.W./'s evidence corroborated by that of P.W.5 was that there was only one man firing shots. However, P.W.7 herself told the court that on inspecting the area outside the bank building she found empty shells. As we shall see later in the judgment some of the shells were sent to a ballistic expert for examination. Mr. Basil Norman Young the expert who examined them found that the shells were of at least two types of bullets. In my view there could not have been different shells outside the bank building unless different firearms were fired by at least more than one person. For this reason, I am inclined to accept P.w.3's evidence as the truth on this point.
Now, returning to his evidence, P.W.11 testified that at about noon on 29th June, 1984, he was in his office at the Leribe police station when he received a certain information following which he proceeded to the gate of the police station. As he approached the
14/ gate he
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gate he could hear gun reports from the direction of the Standard bank. From the gate of the police station, P.W.11 actually saw two men in brown overalls running
from and disappearing behind the Standard bank. One of those men was clearly carrying a rifle.
He then went back to the police station and procured the assistance of other police officers with whom he followed the people he had seen fleeing. They went to Lisemeng village and in vain searched for those men. At about 3.00 p.m., they returned to the police station where he stayed in his office.
After about 30 minutes, he received another information as a result of which he proceeded to the bus stop at Matukeng. I have already dealt with what happened at Matukeng.
According to his evidence, P.W.4 Thabang Longoasa had known accused 1 for 6 years He had a flat roofed house with a number of separate rooms at Maputsoe where he lived with his mother D.W.5, his wife and his child. One night at about 3 a.m. in June, 1984, accused 1 came to his home. He was in the company of 2 other men. As P.W.4 met accused 1's companions for the first time that night he would not be in a position to identify them positively.
When he and his friends arrived at P.W.4's house that night, accused 1 explained that they were from the Republic of South Africa. They had crossed the boarder too late to find taxies going to Maseru. Accused 1, therefore,asked P.W.4 to accommodate them for the night. To this request P.W.4 obliged. He opened one of the rooms at his house for accused 1 and his two friends.
At about 5 a.m., P.W.4 was woke up by accused 1 and his companions. After thanking him for the night accommodation, accused 1 told P.W.4 that he and his friends had some property which they had to leave next to the boarder post because the paper bag in which
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they were carrying it had broken. He was, therefore, borrowing from him (P.W.4) a bag in which they could carry the property on their way home in Maseru. Accused 1 assured P.W. 4 that the bag would be returned. P.W.4 then lent to accused 1 and his friends the shopping bag, Exh 26, which is the property of his mother, D.W.5. The bag had, however, never been returned as promised.
P.W.4 thought the names of his mother "'Mathabo Lengoasa" had been written inside the bag. On being allowed to examine the bag, he conceded that only the surname "Lengoasa" is written outside and not inside the bag. He was, however positive that Exh 26 is the bag he had lent to accused 1 on the night in question.
P.W.8, Monne Majalle, testified that until December, 1984 when he retired he was a lieutenant in the police force and attached to the C.I.D. in June, 1984, he was already stationed in Maseru.
On 4th July, 1984. P.W.8 received an information in consequence of which he met accused 3 at the C.i.D. office here in Maseru. Accused 3 made certain explanations following which he took P.W.8 and other police officers to a house used by his father, D.W.9 at the Central Prison quarters. On arrival at the house accused 3 led P.W.8 and the other police officers to his bedroom in the house. D.W.9 who had been standing outside the house also followed them into accused 3's bedroom. In his bedroom accused 3 took down and opened a brief case from which he produced a pistol. He handed it to P W.8 in the presence of the other police officers and D.W.9. ON examining it, P.W.8 found that it was a 9 mm pistol number 245PM63241. He took possession of it and returned to the C.I.D. Office where he handed it together with accused 3 to P.W.14, who, as we have seen was stationed in Leribe.
P.W.9, Captain Mosoatsi, told the court that she was the second in charge at the armoury section of the L.P.F. Of the four(4) accused persons before Court, she knew two viz. accused 3 and accused 4 who
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were privates in the L.P.F. Accused 3 was attached to the transport section of the L.P.F. Accused 4 was
attached to and working under her supervision at the armoury section. As such accused 4s responsibility was to issue firearms to L.P.F. members going out on duty. He had to see to it that firearms issued out were recorded and signed for by officers to whom they were issued.
Some time in 1984, she received a message following which she went to C I.D. Leribe where she was shown a P.35 browning pistol and asked whether she could recognise it To her recollection the L P.F. did use pistols of that calibre. She, therefore, noted down its numbers and returned to L.P.F. headquarters to verify against the records kept by the Armoury Section of the L.P.F. She found that under the calibre "P.35 browning pistol" the pistol number 245PM63241 which is Exh.2 before court was reflected. (The witness has prepared a certified copy of the page on which this information is reflected in the record book and this copy was handed in as Exh. A). There was no indication from the records that after it had been returned to the armoury on 23rd April, 1984, the 9mm pistol number 245PM63241 was ever issued out to anybody. How then it found its way out of the armoury was explained by the two brothers viz. P.W.12, Lt.II, Thaane and his younger brother P.W.6, Private Malefetsane Thaane, both of the L.P.F., who were declared accomplice witnesses and accordingly warned in this case.
It is trite law that accomplice witnesses are not merely witnesses with possible motive to tell lies about innocent accused but are as such witnesses peculiarly equipped, by reason of their inside knowledge of the crime, to convince the unwarry that their lies are the truth. In dealing with the evidence of these two accomplice witnesses, 1 accordingly warn myself against the dangers that are always inherent in the evidence of such witnesses.
/ In his
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In his evidence P.W.12 told the court that around April, 1984, one Lira Marai approached him with a request for his (P.W.12's) firearm in order to carry out a robbery in the district of Mafeteng. Because of a reward which Marai promised to pay him if the intended robbery were to succeed P.W.12 was willing to assist although he explained that the firearm was not in his possession at the time. On the suggestion of Marai, P.W.12 undertook to approach Accused 4, as we have seen, a member of the L.P.F. attached to the armoury,for a firearm. As accused 4 was not his personal friend, P.W. 12 approached him through his (P.W.12's) younger brother P.W.6 who was used to him.
According to P W 12 both P.W.6 and accused 4 subsequently came to his house when he clearly explained to the latter that the firearm was in fact required by Marai who was planning to carry out a robbery in one of the banks in the district of Mafeteng. Accused 4 agreed to the proposal and intimated his willingness to render assistance. Indeed later on, P.W.12 received a 9mm pistol from P.W.6 who said he had obtained it from accused 4. He was sure that that pistol was Exh. 2 before court and he subsequently handed it to Marai.
According to him, notwithstanding his involvement, P.W.12 was never arrested in connection with the offence against which the accused now stand charged. Marai, who was also a member of the L.P.F. was at that time on bail and under an interdiction following his involvement and arrest in a different robbery. That was the reason why it was not so easy for him to personally meet and negotiate with accused 4 for the smuggling of firearms from the L.P.F armoury.
P.W.6 confirmed that some times in April, 1984, he was approached by P W.12 with a request to negotiate with accused 4 for a 9mm pistol which Marai needed to carry out a robbery at Mathebe in the district of Mafeteng As he was promised a financial reward, P.W.6 agreed. He subsequently met and pursuaded his
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friend, accused 4 to release the firearm which he (P.W.6) passed on to P.W.12 two days later. The firearm released to him by accused 4 was a 9mm pistol No. 245PM63241. It was the Exhibit 2 before court. He considered it important to remember the number of that pistol because he knew that P.W 12 also had a 9mm pistol and did not want it to be mixed with the one he had received from accused 4.
P W.6 was later approached by Marai who requested him to again negotiate with accused 4 for a bigger firearm as the 9mm pistol in his possession was not powerful enough to carry out a robbery. He agreed to do so and after discussing the matter with him accused 4 was willing to assist and did give him an AK47 rifle. P.W.6 took the rifle to his house from where it was collected by Marai on the evening of the following day. The rifle was, however a single pisten crip and not the double pisten crip one before court.
Later on, P W.6 and Marai met at Kingsway Cinema where the latter told him that on proper consideration of the whole matter he was of the opinion that more firearms were in fact needed to carry out the robbery. On the suggestion of Marai, P.W.6, therefore, returned to accused 4 and negotiated for yet another rifle. The AK47 before court was then released by accused 4 to P W.6 who again passed it on to Marai. He also gave Marai another rifle which was his own personal issue.
P.W.6 later had the occasion to go out to Mafeteng on duty in the company of one Col. Ramaema. On their return to L.P.F , P.W.6 learned that a robbery had been committed in Leribe. A few days later he met Marai and asked him about the alleged Leribe robbery. After he had told him about it, P.W.6 demanded his rifle from Marai and the latter assured him that it would be safely returned.
19/ Subsequently
-19-
Subsequently P.W.6 called at the house where Marai stayed in Maseru West He was worried about his rifle and wanted it back. On his arrival at the house he found Marai in the company of accused 2 who was also P.W.6's friend. This was confirmed by accused 2 himself who told the court that they even practised "Karate" together in the past. When P.W.6 asked the whereabout of the money for the Leribe robbery, accused 2 replied that Hatla would be coming with it. P.W.6 told accused 2 and Marai that his information was that Hatla had been arrested and it was possible that he could well have been still in possession of the money at the time of his arrest. On hearing this both accused 2 and Marai clearly appeared dejected.
P.W.6 then demanded his rifle from Marai and the latter said they should all go to the main bus stop in Maseru where he would give it to him. The three of them proceeded to a bus stop next to Tlelai cafe in the village of Ha Hoohlo from where they boarded a taxi to the main bus stop.
At the bus stop Marai told accused 2 and P.W.6 to wait while he was going elsewhere. On his return he was carrying a brown shopping bag with the name "Lengoasa" written on it. He handed the bag to P.W.6 saying it contained his firearm. That bag was exh. 26 before court. After opening the bag and verifying that it contained his rifle P.W 6 carried it. They then parted company. Marai went his way. P.W.6 and accused 2 boarded a taxi to the letter's house at Ha Tsosane. Later P.W.6 and accused 2 returned to town where they also parted company.
Back at the L.P.F., P.W.6 returned his rifle to the
armoury and kept the brown shopping bag at his house from where he learned it was taken by P.W.9 and some other police officers whilst he was in detention.
P.W.6, accused 4 and a number of other members of the L.P.F. were subsequently arrested and, detained
at the maximum Security Section of the Central Prison
20/ where they
-20-
where they were joined by accused 3.
For the first two days at the Central Prison, they used to be allowed out of the cells in a group to busk in the sun. They would then chat about what had happed to them. From the third day they were, however, no longer allowed out of the cells in a group. They were taken out one at a time. Although they were kept in separate cells from which they could not see each other they were nonetheless able to speak to each other by raising their voices.
Whilst at the maximum Security Section of the Central Prison, P.W.6 was thus able to speak to accused 3 and asked him how it came that they went to Leribe since he had known that the robbery was to be carried out at Mathebe in the district of Mafeteng. Accused 3 told him that when they realised that the Mathebe robbery was not going to succeed it was decided that they should move to Hlotse in the district of Leribe. About the shooting incident, accused 3's explanation was that the police at Leribe were the first to open fire. They (accused 3 and his party) then had to shoot to protect themselves as they ran away.
P.W.6 told the Court that whilst at the prison he also asked accused 4 whether he was aware that they were in trouble about what they did with firearms, All that accused 4 said was that it did not matter as it had already happened.
As has been pointed out earlier, P.W.6 and P.W.12 are accomplice witnesses whose evidence must be approached with caution in order to lessen the risk of a wrong conviction. Their evidence that accused 4 supplied firearms for the purpose of carrying out robbery and thus associated himself in the commission of the offence has, however not been challenged by accused 4. I have observed P.W.6 and P.W.12 as they testified before me especially P.W.6 who was subjected to a rigorlous lengthy cross-examination that lasted almost full two days. They acquitted themselves well, in my view.
/ No convincing
-21-
No convincing reason has been advanced why P.W.6 who was admittedly a friend of accused 2 and a colleague of accused 3 at the L.P.F. would falsely implicate them in this case. Mindful that they were accomplices I am satisfied that P.W.6 and P.W.12 were witnesses of the truth in this case.
The conversation between accused 4 and P.W.6 that they were in trouble because of what they had done with firearms implied, in my view, the possibility that accused 4 might well have not been at the actual place of robbery. That does not, however mean he did not smuggle out firearms. His participation by smuggling out firearms for the people who actually carried out the robbery nonetheless put him in at least as a socius criminis.
Returning to his evidence, P.W.6 further testified that on his sixth day at the Central Prison he was escorted out of his cell at night and
subjected to most inhuman treatment by members of the Intellegence Branch of L.P.F. in an attempt to force him to admit knowledge of firearms allegedly given to him by one Nqosa, also that Marai stayed at his house and that he was one of the people who carried out the Leribe robbery. The ill-treatment only stopped when Col. Ramaema confirmed over the telephone that he (P.W.6) was with him in Mafeteng on the day of the alleged Leribe robbery.
P.W.6 was finally shown the brown shopping bag (Exh. 26) which then contained two firearms of which one was the 9mm pistol Number 245PM63241 and questioned about them.
P.W. 14 testified that he was the investigating officer in this case. On 29th June, 1984 he met Hatla who, following interrogation, took him to an old stable where he produced an M16 rifle. He took possession of the rifle which he handed in as Exh. 1 in this case.
On 4th July, 1984 he met accused 1 and accused 2
on their arrival at Leribe police station from Maseru.
/ Following
-22-
Following interrogation, accused 1 took him to his house in Maseru where he in vain searched the house for the missing Standard Bank revolver. They then
returned to Leribe. He and accused 1 subsequently went to Tale tree plantation. Accused 1 showed him the place where the yellow Ford Granada car was abandoned next to the plantation. He also showed him a spot in a donga in the tree plantation where he said they went and sat after abandoning the car. According to P.W. 14 the grass was somewhat disturbed at that spot as though something had been lying thereon. The donga itself was about 150 yards (indicated) from the place where the car had allegedly been abandoned and the spot in the donga was quite secluded. P.W.14 then returned with accused 1 to the police station.
On the same day accused 2 also took him to Tale plantation and pointed out the place where the yellow car had been abandoned as well as the spot in the donga where he said they had been sitting after abandoning the car. Accused 2 pointed at exactly the same places that had earlier been pointed by accused 1. In addition, accused 2 pointed at a place in the tree plantation where he said he had thrown away the ignition key of the yellow car. A search was carried out but they could not find the key. They then returned to the police station
P.W.14 confirmed the evidence of various witnesses who had earlier testified that they had handed certain articles to him. The articles were handed in as exhibits in this case. He told the court that he later sent some of the exhibits for expert examination in Pretoria through W/0 Raleaka who was however not called as a witness in this trial. He later received the Expert report compiled by one Mr Basil Norman Young.
Mr. Young's expert report was, by consent, handed in from the bar as Exh.B. In his report, which is in the form of an affidavit, Mr. Young briefly says on 24th October, 1984 he received from W/0 Raleaka of
23/ the Lesotho
-23-
the Lesotho Mounted Police in Maseru a parcel containing M16 rifle No. 9486983, AK47 rifle No. 121295C, 1 x 5,56mm fired cartridge case and 3x 7,62 x 39 mm fired cartridge cases. He examined the two rifles and found them in good working conditions. He subjected the fired cartridges to microscopic examination and found that 1 x 5,56mm fired cartridge had positively been fired from the M16 rifle referred to above. The 3 x 7, 62 x 39 mm.fired cartridge cases were negative with outstanding cases and the two rifles could not be connected with outstanding cases.
Coming back to his evidence P w.14 testified that following the explanation of accused 1 and accused 2, he went to the Centra) Prison to see Lira Marai who also gave him an explanation as a result of which he proceeded to the home of one 'Maphoka Lesoli (who is Marai's mother in law) in Butha-Buthe. He carried out a search and found the AK 47 rifle Number 121295C together with 3 magazines. They were wrapped in a towel and hidden under a bed. He took possession of them and handed them as exhibits in this case.
On 16th July, 1984, P.W.14 met accused 3 and accused 4 at the Central Prison and following the explanation they gave him, he and others went to the house of P.W.6 where they took possession of the brown shopping bag which he handed in as Exh. 26. He showed Exh 26 to accused 3, accused 4, P.W.6 and Lira Marai all of whom claimed knowledge of it.
On 26th July, 1984, P.W.14 brought accused 3 and Lira Marai to Leribe police station together with the pistol (Exh.2) which he had obtained from P.W.8 on that day and not on 4th July, 1984 as P.W.8 had suggested. At Leribe he showed the yellow ford Granada car to accused 3 and Marai. They gave him certain explanation. Asked (by Mr. Kolisang) under cross examination what explanation it was, P.W. 14 told " the court that accused 3's explanation was that he and the other accused as well as the two who are not before
court left Maseru in that car to carry out the Leribe robbery.. In my view accused 3's explanation to P.W.14
/ which
-24-
which was otherwise inadmissible confession became admissible confession by reason of its being introduced under cross examination. However, this affects only accused 3 and not the other co-accused.
Following the explanation of accused 1 and accused ?, P.W.14 met P.W.4 and his mother D.W.5 both of whom identified the shopping bag Exh.26 as D.W.5's property which P.W.4 had lent to accused 1 and his two fiends on the day they called at his (P.W.4's) house in June, 1984.
Finally the evidence of P.W. 13 W/0 Lebusa was that on 8th August, 1984 he was instructed to proceed to the Central Prison and hold an identification parade in respect of accused 1,2,3, Marai and Hatla who were all suspects. He accordingly proceeded to the Central Prison where he requested to be shown the suspects so that he might see how they look to enable him to find people resembling them to take part in the parade. When he got to the cells he found Hatla who was already known to him. He was with three other people he did not know. He was, however, positive that accused 2 was one of those three people. He explained his mission to them but Hatla and accused 2 refused to have anything to do with the identification parade. Their objection to the parade was that the police in Leribe had told them that witnesses were going to identify them regardless of the identification parade. Another reason advanced by Hatla was that they wanted their lawyer to be present when the identification parade took place. Asked who their lawyer was they declined to disclose his name. One of the suspects, namely, accused 3, was however willing to take part in the identification parade. P.W.13, therefore abandoned the idea of identification parade in respect of Hatla and the other two men including accused 2. He proceeded to organise a parade in respect of accused 3 only. After the identification parade was arranged P.W.4 was called as the identifying witness. P.W.I3 explained
25/ to P.W.4
-25-
to P W 4 that the purpose of the parade was to identify the people who had paid him a visit at his house one night prior to 8th August, 1984. P.W.4 then went to the line up and pointed at a person in position 3. The pointing was however wrong for that person was not accused 3 The parade was then dismissed.
It seems to me that, properly conducted, an identification parade can assist the court in arriving at a fair decision as to the identity of an accused person. I am surprised therefore that it can be so easily frustrated by a suspect refusing to participate in it. However, as in this case P.W.4 said he had met the people who called at his house in the company of accused 1 only once so that it was not possible for him to identify them and it would have been a useless exercise to hold identification for him to identify accused 1 whom he knew very well, it was perhaps unnecessary to pursue the matter any further
With the exception of accused 4, all the accused gave evidence on oath and raised the defence of alibi.
According to him, accused 1 was never anywhere near the Leribe Standard bank building, or in Leribe district for that matter, on 29th June, 1984. He was in Maseru where he spent greater part of the day trying to buy mealie meal for his girl friend with whom he lived at Ha Mabote on the out skirt of Maseru. P.W.3 was therefore not telling the truth when in his evidence he said he had identified him as one of the people who committed the Leribe robbery on 29th June, 1984 Furthermore, he denied the evidence of P.W.3 that prior to the events of this case he had known him and on 25th June, 1984 he and Hatla called on him at the police station looking for one Ralebea.
Accused 1, however, conceded that on 3rd July, 1984, P.W.8 and other police officers arrested him. He was then subjected to most inhuman treatment in the hands of police officers both here in Maseru and Leribe The purpose of the ill-treatment was to force
/ him to
-26-
him to admit participation in, and knowledge of whereabouts of the Standard bank firearm allegedly stolen during the robbery. As a result of the ill-treatment he sustained injuries for which he was given treatment by D.W.4, Elliot Khotle, one of the prison officers in Leribe local prison D.W.4 confirmed that on his arrival at the local prison, accused 1 had injuries which he treated at the prison dispensary. He, however, conceded that the injuries were minor for otherwise he would have referred accused 1 to a qualified medical doctor for treatment.
Accused 1 further conceded that he knew P.W.4 but denied that he and two other people had called at his house one night in June, 1984 when P.W.4 lent them the brown shopping bag Exh. 26 which allegedly belonged to his(P.W 4's) mother 'Mathabo Lengoasa who was D.W.5 in this case.
1 must say D.W.5 was not an impressive witness before me. She said Exh 26 was not her bag. She however conceded that she claimed it as her property before the police and the magistrate who conducted the Preparatory Examination. The reason that she was not told to have a close look at the bag is not convincing because she herself said her bag was old in appearance while Exh. 26 was new in appearance. How then could she confuse the two when they were different even by mere appearance?
In his evidence, accused 2 also denied that prior to the events of this case P.W.3 knew him. He, however, conceded that he had lived in Maseru since 1970. He worked as a hawker for a living. Yet he had no licence for the business. He often went to Johannesburg in the Republic of South Africa to buy soft goods with which he traded in his business.
On 15fh June, 1984, he, as usual, passed through the Maseru boarder post on his way to Johannesburg for shopping He spent an amount of M7Q0-00 on his purchases. He, however, had no receipts as proof thereof
/ for he
-27-
for he did not keep any books of account in the operation of his business. On 30th June, 1984 he returned to Lesotho again through the Maseru boarder post. He did not, however, declare the goods he had bought to the officials of Customs and Excise Department at the boarder. He deceived them by saying he had bought nothing to declare and was allowed to go through without much ado. Well, in his own words, accused 2 is a cheat and a liar.
Now, it is a well established principle of our law that in all cases that turn on identification, the greatest care should be taken to test the evidence. Mindful of this 1 found no convincing reason why if he were a liar and did not know them P.W.3 picked upon accused 1 and accused 2 to pin them with a robbery committed in Leribe, several miles away from Maseru where they lived. Why couldn't he look for some one nearer home in the district of Leribe and blame him for the robbery That was, in my view, the simplest thing for P W.3 to do if he were such a liar. It seems to me there is some element of truth in P.W.3's evidence that he did identify accused 1 and accused 2 as people he'already knew prior to the events of 29th June, 1984 and in denying it the accused were not being candid with this court.
Granted that when he saw them on 29th June, 1984, P.W.3 already knew accused 1 and accused 2 it seems to me that chances (if any) of a mistaken identity were very slim, particularly so if it were borne in mind that he was looking at the accused from a relatively short distance and on a broad day light.
True, accused 1 denied to have been in Leribe on 29th June, 1984 but the evidence of P.W.4 who said accused 1 and two other men were at his house at Maputsoe in the district of Leribe one night towards the end of June, 1984, seems to me to lent strong support to P.W.3's story that accused 1 and a group of other people were in Leribe on that day. 1 find
/ no convincing
-28-
no convincing reason why P.W.4 an acquaintance of
accused 1 should falsely incriminate him on this point.
As regard accused 2, one Stephanus Johannes Smith, a passport official on the South African side of the Maseru boarder post was called as D.W.6 to confirm that according to the endorsements in accused 2's passport Exh. 'L' the holder thereof entered the Republic of South Africa through the Maseru boarder post on 15th June, 1984 and again passed through the same boarder post into Lesotho on 30th June, 1984. D.W 6 personally made the endorsement of I5th June, 1984 but not the one of 30th June, 1984. On this evidence accused 2 contended that he was out of Lesotho during the period between 15th June, 1984 and 30th June, 1984. As he was not in Lesotho during that period P.W.3 could not, therefore, be telling the truth in his evidence that he had identified him as one of the robbers on 29th June, 1984.
In my view the most that can be said about the endorsements in Exh 'L' is that they are prima facio, but not conclusive, evidence that the holder thereof was in the Republic of South Africa during the period between 15th June, 1984 and 30th June, 1984. Accused 2 himself has told the court that he is capable, contrary to the law of the land to carry on trade in this country without a licence and import goods he had purchased outside the country without declaring them to the officials of Customs and Excise Department at the boarder post.
Although he admitted to have gone to Tale tree plantation according to accused 2 (and indeed also accused 1) the police had taken him there to show him the place where he and others had allegedly abandoned the yellow Ford Granada car (Exh.4) and the spot where they subsequently hid in a donga. I must say P.W.14 impressed as me as a reliable witness who, despite lengthy cross-examination lasting many days, gave his
/ evidence
-29-
evidence in an unshaken and straightforward manner.
I am inclined to believe his story that it was accused
2 (and accused 1)who said he would go to Tale tree plantationand point out at the various places he had pointed out to him.
There was also the evidence of P.W. 6 who testified that when he asked him, at Marai's house in Maseru West, about the Leribe robbery money accused 2 told him that Hatla would be coming with it. Wo know that according to P.W.11's evidence, which I have no reason to doubt, when he was found at Matukeng bus stop, Hatla was in possession of a large amount of money. It seems accused 2 was, therefore, right in telling P.W.6 that Hatla would be coming with the money. The question that immediately arises is how accused 2 came to know about it. An irresistable inference is that he knew about it because he was in the group that was with Hatla when the money was taken at the Leribe agency of the Standard bank on 29th June, 1984. This in my view fortifies P.W.3's evidence that accused 2 was one of the robbers he saw in Leribe on 29th June, 1984. Accused 2 could not, therefore have been in the Republic of South Africa at the same time. As to what he did after crossing the boarder to enter the Republic of South Africa and before re-crossing it to return to Lesotho on 15th June, 1984 and 30th June, 1984, respectively, it is anybody's guess for only the Almighty God knows.
Coming to his evidence, accused 3 told the court that on 29th June, 1984 he was not working as he was already under an interdiction. For the whole of that day he was at the official quarters of his father D.W.9 at the Central Prison. He could not therefore, have been at the Leribe robbery.
After he had heard about the Leribe robbery over the radio accused 3 was, however, arrested at his home by P.W.8 and other police officers. He was taken
to C.I.D. office for questioning. This is confirmed
/ by his . ..
-30-
by his father D.W.9
P.W. 8 then took him back to D W.9's house where he (P.W.8) carried out a search. In the course of the search a
9mm pistol was found in his brief case. He admitted knowledge of it as it was his service pistol. However, P.W.8 took possession of it. According to accused 3 the pistol was not Exh.2 before court. Although he no longer remembered them its numbers began with 25C.
Well, as we have seen from his evidence, P.W.8 noted and still remembered that pistol's numbers as being 245PM63241. He subsequently handed the pistol to P W.14 who also noted ana still remembered the numberes of the pistol to be as described by P.W.14. Indeed, the pistol was positively identified by P.w.6 and P.W.9 I find no good reason, therefore, why the identity of this pistol can be questioned. To my mind the suggestion that exhibit 2 has been swapped for another pistol that was found in accused 3's brief case simply has no evidential basis and cannot hold water.
Be that as it may, accused 3 told the Court that he was then returned to C.I.D. office from where he was taken to the Central Prison. He was also interrogated and subjected to ill-treatment similar to the one already described by other witnesses. He was later on taken to Leribe police station where he and Marai were shown Exh. 4 of which they denied all knowledge. This is of course directly the opposite of what P.W.14 told us when he was cross-examined by accused 3's legal representative viz that it was the car he and his party used to goto Leribe for the commission of this robbery. I have already said P.W.14 was by a far a more impressive and reliable witness than accused 8 in the witness box and I am prepared to accept his version on this point Indeed, this goes a long way to support the evidence of P.W.b that whilst at the Central Prison accused 3 did tell him that he was in the group of people who went to carry out the Leribe robbery.
/Accused 3
-31-
Accused 3 confirmed the evidence of P.W.I3 that on 8th August, 1984 he agreed to participate in the identification parade in which P.W.4, the only identifying witness, failed to point him. While pre pared, therefore to accept that there is no conclusive evidence that accused 3 was one of the two people who were with accused 1 when the latter visited P.W. 4's house one night towards the end of June 1984. I am,however, satisfied that accused 3 did participate in the commission of this robbery.
I have already found that, on the evidence, accused 4 supplied firearms that were to be used to carry out bank robbery and thus involved himself at least as a socius crinums. It has been contended in argument that accused 4 may have known only about the robbery that was to be carried out in Mafeteng and not in Leribe He, therefore lacked the mens rea for the Leribe robbery.
This may well be so in some cases. Thus, for instance, if A supplies a firearm to B in order that the latter may shoot and kill C who is, for one reason or another, their common enemy but instead of killing C, B shoots and killes D, an innocent person, as far as A is concerned, it may be rightly contended that A had no intention to kill D and should not, therefore, be found guilty of murder as a socius criminis.
I agree that in the present case accused 4 may well have supplied firearms with knowledge that robbery was to be carried out at a bank in Mathebe, in the district of Mafeteng. There is, however, nothing in the evidence to indicate that there was anything special about the Mathebe bank so that if the robbery were committed in any other bank accused 1 would not be imputed with the requisit subjective intention to rob. In my view, all that mattered to accused 4 was an effective execution of a robbery so that he might receive his promised reward. Whether the robbery was carried out at Mathebe or elsewhere could not have been so important to him..
/ In the light
-32-
In the light of all that has been said above, it is obvious that the view that I take is that the question 1 had earlier asked viz. whether or not the robbery that has been established by the evidence in this case was committed by the accused persons must be answered in the affirmative I would, therefore, find all the accused guilty of robbery as charged.
My assessor agrees
B.K. MOLAI,
JUDGE
13th January, 1986
For Crown Mr. Kalamanathan
For Accused 3 Mr. Kolisang
For Accused 1,2,& 4 Mr. Sooknanan.
-33-SENTENCE CRI/T/15/85
After the crown had stated that there were no previous convictions against all the accused, the defence counsels, on behalf of the accused, invited the court to consider a number of mitigating factors. Those have been eloquently enumerated by counsels for the accused and 1 need not go over them again. I may, however, add that it emerged, during the course of this trial that accused 2 is a married person. He has a wife and child against whom there is no evidence that they are not law abiding citizens of this country. The disturbing thought about it is that in attempting to punish accused 2,it is his innocent wife and child who are likely to suffer most.
It may perhaps be argued that accused 2 should have thought of it before and at this stage what the court should really concern itself with is the seriousness of the offence against which he and his co-accused have been convicted to determine the appropriate sentence to be imposed in the circumstances.
Lesotho is working against the odds of a developing country to attract foreign investors for the im, provement of her economy. But no foreign investors are likely to invest in a country where robbery is rife and the security of their money is lacking Viewed against this background, the offence with which the accused have been convicted is a serious one calling for a commensurately serious punishment if only the repetition of this sort of a thing is to be brought to a halt.
I must say I find it rather disturbing to learn that some of the accused persons before me are members of the L.P.F. I would have expected them to know better that their duty is to protect Lesotho and the property of her people. Certainly not to do acts that are bound to ruin the economy of their country. They must be a disgrace not only to the country but also to the army in which they serve
2 / I have ....
-34-
I have given thought to the question of whether accused 4, who on the evidence appears to have participated in the commission of this crime as a socius criminis, does not deserve a linient punishment. It seems to me, however, that were it not because of accused 4, the other accused, especially accused 1 and accused 2 who are admittedly not members of the L.P.F. would not have had easy access to the firearms which facilitated the commission of this robbery. On this ground alone I am of the opinion that the part played by accused 4 in the commission of this crime must likewise be viewed in a very serious manner. There would be no justification, therefore, in singling him out for a lesser punishment.
I come to the conclusion that, in the circumstances of this case the appropriate sentence is that of 12 years imprisonment and each of the four (4) accused is accordingly sentenced. The sentence is, however, to operate with effect from July, 1984,the mounth on which the accused were all taken into custody and have since remained.
B.K. MOLAI 13th January, 1986.
For Accused 1,2 & 4 Mr. Sooknanan.