CRI/A/44-45/86 IN THE HIGH COURT OF
In the Appeal of:
MOTLEPU NKONE 1st Appellant MOKONE NTILI 2nd
Delivered by the Honourable Acting Judge, Mr. Justice
M.L. Lehola, on the 17th day of August, 1986.
The Appellants appeared before the Resident Magistrate
Mafeteng on 7th February, 1986, charged with the crime of robbery.
The charge sheet set out that "the accused are
charged with the offence of robbery in that upon or about 29th
and at or near Mafeteng Urban Area, in the District of
Mafeteng, the said accused did one or other or both unlawfully
Tsehlo, George Seabata Ramarou and Thabo Sesinyi and
by intentionally using force and violence to induce submission by the
Tsehlo, Seabata George Ramarou and Thabo Sesinyi, did
take and steal from their person or their presece out of their
and protection certain property, to wit M23,319-59,
the property of Maluti Retailers Mafeteng Urban Area in their lawful
and did rob them
of the same.
accused pleaded not guilty. The Crown called evidence at the end of
which the accused were convicted as charged and sentenced
years' imprisonment each.
In a notice of appeal drawn by Mr. G.G.Nthetheaccused appealed against both conviction and sentence (with right
reserved to file further grounds of appeal when the records is
on the following grounds:-
1. The learned Magistrate erred inconvicting the
Appellants despitethe fact that the Crown evidence
did not beyond reasonable doubt prove
The learned Magistrate overlookedthe fact that the
identificationparade held was improperly held.
The learned Magistrate erred inrejecting
Appellants' story yetit was probable.
Suffice it at this stage that no supplementary grounds
had been filed when this matter was placed
before me on 14th July, 1986. for treatment in terms of
Sect.327 or 328 of the Criminal Procedure and Evidence Act 1981.
Having read the record I, acting in terms of 327 supra
dismissed the appeals summarily and ordered that the Registrar should
to the Subordinate Court Mafeteng the relevant returns to
ensure that Appellants are informed of the results of their appeals.
I was somewhat taken aback when a few days afterwards
the file was brought before me again with the request that
had come to argue the appeal for Appellants on
21st July, 1986. As the matter had been properly dealt with in terms
of the law and
finalised before that day, it appeared the matter
could not be carried any further. There was no notice of hearing for
that day in
the file when I dealt with the matter on 15-7-86. In any
case that would have been pre-mature as the right procedure is for
notice of hearing to be issued in terms of Sect. 328 supra only
after the determination by the Judge to that effect. Furthermore
indicated earlier when heads of argument for Appellants were filed on
21st July, 1986, in preparation or anticipation for the
would follow the matter had long been decided.
As a result of a mistake on the part of the Registrar's
office, to wit, setting the matter down on a future date before
Judge make a determination on the issue this file once
more found its way on the Honourable the Acting Chief Justice's desk
hearing. He rejected it on the grounds that the matter had been
finalised in terms of Sect. 327 supra.
It is on account of the irregularities pointed out above
that 1 decided to prepare a written judgment in this appeal. General
expressed in PHOHLO vs REX CRI/A/22/86 (unreported) at
Page 4 et sequel avail. MABOTE vs. REX CRI/A/55/83 unreported.
The evidence led before the Court a quo revealed
that P.W.1 Mats'eliso Chitja was an employee at Jandrell's. She works
as an accountant there. On the day in question she
arranged cash and
books to be conveyed to the bank. Her duty entails making entries in
a bank book in triplicate. The money is carried
along with two copies
to the bank while the first copy remains in the
bank book in her custody.
On the day in question she had counted the money
reflected in the cheques ready for depositing. It amounted to
M3509-57 and the bank
cash amounted to M19,810.00 making a total of M24.319-57
in all. She produced before Court photocopies of amounts of money
hoped to deposit in the bank that day. She detailed Thabo
Sesinyi, a fellow employee, to deposit the money in the bank in the
of the driver Ts'eliso Tsehio and Seabata Ramarou, the
P.W.1 also produced as exhibit the book from which
photocopies were made.
An hour after she had handed the money to P.W.2 Thabo
Sesinyi the latter entered the Jandrell's shop and gave P.W.I a
P.W.I went to the Charge Office where she found
Sesinyi wounded. She reported to the police that she had not
to divert the money from the bank or take it by
force or any means from P.W.2. P.W.1 was not cross-examined.
P.W.2 Thabo Sesinyi testified that on the 29-10-84
Ramarou, Tsehlo the driver and he left the shopping area at
Jandrell's and headed
for the bank in a light delivery van. The three
of them were sitting side by side in the van. He was flanked by the
driver of the
van and by Ramarou. He had been handed paper bags
containing what he believed to be money of unknown amount to him. He
to take this money to the bank.
The driver was the last to enter the van. P.W.2 did not
notice the presence of the accused as there was much traffic.
Their vehicle travelled about 100 yds along the tar road
after entering it. Suddenly, when it was about 8 paces from the
Bank where money was to be carried, it swerved to the right
taking the road leading to the bus stop. In this unexpected turn of
when P.W.1 turned his head and looked through the back window
of the van he saw that two people were occupying the buck of their
van. There and then he saw a person "pointing a gun next to the
driver." Before the vehicle branched off P.W.2 heard the
say "Is it not better to take them to Thabana-Morena?" At
the time P.W.2 did not see the face of the man holding
the gun. The
vehicle was then moving fast. The man holding the gun was shouting
and saying "Race this car you satan". He
was saying this
repeatedly with a raised voice. The vehicle went past the main
Mafeteng bus stop and moved fast in the direction
of the road leading
to Thabana Morena. P.W.1 questioned the driver about where he was
driving the vehicle to. The driver said "Don't
you see that
these people are carrying guns?" When P.W.2 turned his head to
the left he heard another man at the back saying
money you satans." This was Accused 1.
P.W.2 slammed with his foot on the brakes of the vehicle
and it stopped. That time they had moved about half a mile from
shop which is not far from the Bank.
Giving P.W.2 the rough side of his tongue the driver
asked if P.W.2 didn't see that he would overturn the vehicle.
Thus roundly reprimanded P.W.2 removed his foot from the
brake paddle and the vehicle once more moved at high speed. When the
demand for money was made by the man in the buck of the van
P.W.2 handed the first bag to Ramarou who in turn gave it to that man
through the left handside of the vehicle. Amidst all the swearing by
the accused and the noise caused by them rapping on the roof
vehicle, P.W.2 handed over to Ramarou the second money bag when the
accused protested that "this is not all the money,
money you satans."
Ramarou escaped through the door while the vehicle was
in full motion. The vehicle stopped. He collected stones and started
them at the accused occupying the buck of the van. P.W.2
alighted when the vehicle stopped. He picked up a stone and
heard a gun report. Accused 2 was carrying a gun. When
P.W.2 was about 8 paces from him accused 2 fired the gun at him and
under the right arm-pit. This time P.W.2 and Accused 2 were
in a donga. Accused 1 and the driver had disappeared into the donga
Ramarou was trying to cross Accused 2's path. Ramarou was being
urged to catch Accused 2 by P.W.2 who was telling Ramarou that
2 had fired his last
shot. As P.W.2 was wounded Ramarou decided to hurry him
to the hospital. Ramarou thus drove the vehicle first to the Charge
and next to the Hospital where P.W.2 was treated.
In trying to cross examine this witness the two accused
seemed intent merely in making game of him. For instance Accused 1
said "Did you want to give me money ....? No.
What forced you to give me the money ...? I was afraid
because you were swearing at me.
Ware you satisfied with the insults Idirected at you
Why did you not close the windows ...? I was afraid.
Were you instructed to give the moneyto a person who
came and insulted you ? No.
What insults did I utter ? Devil.
Is that an insult ? It is because
I am not one."
Accused 2 merely contented himself with saying P.W.2 was
P.W.3 Seabata Ramarou gave evidence corroborating that
of P.W.2 in all material respects. He is a security guard and was a
of long standing well trained in the use of fire-arms. That
he sustained no injury on bailing out of a vehicle
moving at high speed is comment enough on the benefit he
derived from the training he underwent as a policeman. He had heard a
report from Accused 2 but nonetheless came face to face with him.
That Accused 2 was pointing a gun at him did not make him flinch.
this sensitive situation, he scared Accused 2 out of countenance with
the result that the latter even asked him "Sir, would
I killed you for this white man's money..?" turned tail and
fled. It should be remembered P.W.3 was not armed with
weapon. Thus his valour, gallantry and disregard of personal safety
in adversity are commendable.
At a subsequent parade held on 26-11-84 P.W.3 was able
to pick out both accused without any difficulty. He was able to do so
because he had had enough opprotunity to take a good look at
them during their encounter with him. In the words quoted from the
learned Magistrate's judgment "P.W.3 Seabata Ramarou is positive
that he identified them ...... He says he took a long time
with them and that they will remain in his memory. The
evidence of this witness was not shaken." With this finding I
After the fashion of questions put to P.W.2 Accused 1
once again put questions to P.W.3 the purpose of which if anything
was to redicule
witness. For instance,
"Do you say Thabo P.W.2 said you should give me the
money and you did so ...? Yes.
Was it lawful for Thabo to tell you
to give the money ....?That was an easy
way of saving our lives.
Why did you agree with Thabo to give us
money ? Because our lives were in
Do you say I asked for money holding thegun ? No.
Do you say I ran away with the money ...? Yes."
Accused 2's cross examination did nothing to shake
"I say you are telling a lie when you say
I was carrying a gun that day ? I
am sure you were carrying a gun that day.
Why did you fail to identify me at the'
parade ? I identified you, I know
Are you sure 1 fired the gun that day....?
P.W.4 Trooper Lephoto had seen the two
accused jump into the vehicle before it gained
day speed that/and because this appeared an innocuous
he did not attribute any sinister motive
to it. He later identified the two accused by their
facial appearances and the clothes they were wearing thus
and to some extent P.W.2.
Accused 1 gave evidence on oath which did not allude to
the events of that day from the time he and Accused 2 jumped into the
to the time he was seen running away with the money. He
merely confined himself to what happened at the Charge Office after
Whatever prima facie evidence was made against him became
conclusive evidence against him on account of his failure to rebut
This of course should not be understood to say there is any onus
on him to establish his innocence. The onus rests on the Crown
Accused 2 having opted to give sworn testimony contented
himself with saying he would not say anything before Stanley Tsehlo
before Court. That was all his evidence in chief.
In this regard the Appellants failed to raise any
defence against the charge laid against them. They had been
recognised and identified.
The events took place in broad day-light
and their defence was in the circumstances a mere sham. The accused
were properly convicted.
Regarding sentence, it is important to point out that in
carrying out their robbery,
the Appellants used a firearm not only to threaten, but
did actually shoot at and wound P.W.2. No portion of the amount
been recovered. Any crime involving use of or threats to
use violence will always be looked at in very serious light. The
against sentence are equally dismissed.
M.L. LEHOHLA ACTING JUDGE
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