CRI/T/15/85

IN THE HIGH COURT OF LESOTHO

In the Matter of .

REX

v

1. 
   MALEFETSANE PHALA MABOPE

   
   

2. 
   PITSO MAKHETHA

   
   

3. 
   MOJALEFA MPOTA

   
   

4. 
   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

1. 
   revolver

   
   

2. 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

-2-

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

/safety for

-3-

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

-4-

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

-5-

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 ....

-6-

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

-7-

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

-8-

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

/9 was dressed

-9-

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 ....

-10-

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

-11-

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

-12-

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

-13-

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

-14-

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

/ they were

-15-

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

/were

-16-

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

-17-

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

18/ friend

-18-

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
plantation
and 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.

My assessor agrees

B.K. MOLAI 13th January, 1986.

For Crown Mr. Kalamanathan

For Accused 3 Mr. Kolisang

For
Accused 1,2 & 4 Mr. Sooknanan.