IN THE HIGH COURT OF LESOTHO In the matter
TLELASE MOTSOAHAE JUDGMENT
Delivered by the Hon. Acting Mr. Justice M. Lehohlo on
the 22nd day of September, 1987.
The accused in the above case was charged with the crime
of rape in the Subordinate Court, Mafeteng.
He pleaded guilty to the charge. After accepting the
facts outlined by the public prosecutor the magistrate returned a
guilty as charged and committed the accused to the High
Court for sentence.
Evidence in the possession of the public prosecutor
showed that the complainant 'Mapheko Semala was going to church on
26th May 1987.
She had in her possession a provision box containing
two knives she intended handing over to someone at the church.
Along the way she met the accused who askedher to
stop but she did not stop. Then accused,armed with a stick, got
hold of the complainant andproposed love to her. His demands for
sexual favourswere turned down whereupon he hit the complainant
withthat stick at the back of the head and felled her to
theground. The things she wag carrying were scattered allover
the ground. They consisted of the provision tinwhich burst open
when she fell and the knives spiltout of it including her hymn
Accused ordered complainant to stand up and move into a
field nearby. She refused, but accused overpowered her and managed
her into the field and ordered her to pull off her panty to
moke ready for sex with him. She refused. Accused
infuriated by these series of refusals from complainant
drew a knife from his pocket, applied it liberally to rip
and cut her with it around the wars.
He raped her. In the process complainant became
unconscious and only come to when she was at Morija hospital where
treatment for two weeks.
Medical evidence revealed that the injuries were
dangerous to life. They consisted of a wound
on the head, lacerations around the region of both ears
and a Fractured skull.
There were also traces of dried sperm cells on the
parting of her legs including some positive signs observed by the
doctor that complainant
had been raped.
Another witness 'Mamahlomolo Selemela accompanied by two
young girls happened to be going along the same path that was used by
complainant. She also was going to the some church. She sow the
accused emerge from the field and was taken aback somewhat by the
sight of complainant's articles which were scattered on the ground.
She picked them up and immediately went to inform the church
about her unnerving discovery and her blood chilling suspicion. A
search was immediately mounted and in no time complainant
lying unconscious in the field just about a stone's throw from where
accused was seen emerging from the field. Complainant
was taken to
The matter was reported to the Mafeteng police. On Z5th
June 1987 Trooper Matoetoe confronted the acccused with the events of
May 1987 and having been warned of hie rights accused gave
him an explanation, following which he was given the charge of rape.
In due course accused appeared before the magistrate and was
It was revealed that accused is a first offender, is
unmarried and is only a herdboy. Asked if he was sorry for the deed
said he was not.
It has been repeatedly stated by this Court that rape is
a very serious offence. That it carries death penalty sufficiently
the fact. Complainant's torn pieces of clothing were
produced in evidence and marked "1" collectively in the
At the time of the instant offence accused was aged
twenty three. In other words though relatively young he had reached
the age of
discretion. The brutality that accompanied the offence,
the horror to which the girl was subjected including utter lack of
by accused even after he had been given an opportunity to
reflect on his circumstances three days after the event, can only
it and justify imposition of a heavy sentence.
I agree therefore with the magistrate that it wag
Fitting that the accused be committed for sentence before this Court
in terms of
section 293 and 294 of the Criminal Procedure and
Evidence Act, .1981.
The least sentence to be imposed is therefore six years'
ACTING JUDGE. 22nd September, 1987.
For the Crown : Mr. Mdhluli For the Defence: In
IN THE HIGH COURT OF LESOTHO
In the matter of:-
PHEELLO SELEA LETLOLA 1st Accused
TSELISO MOEPI MOPHETHE 2nd AccusedNEO
MOKHAHLANE 3rd Accused
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 21st day of September, 1987.
The accused are charged with murder it being alleged
that on or about the 6th day of November, 1985 and at or near Ha
Monyake in the
district of Mohale's Hoek the accused did one or other
or all of them unlawfully and intentionally kill Thabo Lenono
referred to as the deceased). In the alternative the
accused were charged with robbery.
In the robbery charge it is alleged that upon or about
the 6th day of November, 1985 and or near Ha Monyake in the district
Hoek the said accused, one or other or all of them,
assaulted Thabo Lenono, and by intentionally using force and violence
submission by Thabo Lenono, took and stole from his
person or presence or out of his immediate care and protection
A battery torch, A knife and A handkerchief
his property or in his lawful possession and did rob him
of the same.
The accused pleaded not guilty to both charges. I may
mention that the accused are being tried summarily in this Court
without a preparatory
examination having being instituted against
them. In terms of section 144 of the Criminal Procedure and Evidence
Act 1981 the Director
of Public Prosecutions has deemed it to be in
the public interest to have the accused tried summarily.
At the commencement of this trial Mr. Monyako,
counsel for all the accused, informed the Court that the defence
admits the post-mortem examination report and two affidavits made
two South African police officers attached to the forensic Science
Laboratory in Pretoria. The documents were marked Exhibit A,
B and C
respectively. The report of the post-mortem examination (Ex. A)
revealed that the death of the deceased was due to haemorrhagic
due to punctured carotid artery and multiple punctured wounds on the
left lung. The doctor found six (6) penetrating wounds
on the left
scapular, deep laceration on the right palm 5cm long, three punctured
wounds on the left lung posterior, punctured carotid
pericardium was full of blood.
Regarding the affidavits of the South African police
officers (Ex B and C) their evidence was that they found human blood
on the cloths
of the deceased and no blood on the rest of the
articles including shoes and a blanket which the accused were
- 3 -
when they were arrested. It was found that the fibres of
the sling found tied around the neck of the deceased and of the sling
found in the possession of the accused are chemically and
optically comparable and thus could be from the same origin.
It is common cause that on the morning of the 7th
November, 1965 the deceased was found dead near the door of Mr.
Soakala's cafe where
he was employed as a night watchman. It was
clear that he had been murdered by a person or persons who broke into
the cafe and .
stole the sum of M70-00 which was kept in the cash
register, a knife engraved "Sable" on the handle and an off
with some soot on it. The goods in the cafe were
in disarray. Entry had been' made through the back door. The
deceased's torch could
not be found.
The first witness called by the Crown is 'Malerato Gracy
Sekese. She worked at Mr. Soakala's cafe as a saleswoman. She
on the 6th November, 1985 the three accused came to
the cafe at about 10.00 am or 11.00 a.m. They bought some bread and
sat at one of the tables in the cafe. Because they were
the only customers in the cafe at that time 'Malerato says that she
good opportunity to see the accused. They remained in the cafe
for about twenty (20) minutes. After they had left she continued with
her work and knocked off at 7.00 p.m. She left an amount of M70.00
(in the form of coins) in the cash register and took all the cash
the form of notes. She looked all the doors and left. The deceased
had already arrived when she left.
At about 6.00 a.m. on the following morning she received
a report concerning the cafe. As a result of that report she rushed
cafe. She found that the back door was broken and she saw the
deceased lying down near the front door. She was not sure whether the
dead or still alive but she did not touch him. She
borrowed a car from the church and went to Mr. Soakala's home and
made a report
to his wife. From there she travelled to Mohale's Hoek
police station and made a report to the police. On the way to
they passed the accused at Makhaleng Bridge heading for
Mohale's Hoek. She claims to have seen them well and recognised them
they were only about three (3) paces from her vehicle. She
estimated that Makhaleng Bridge is about twelve (12) kilometres from
cafe. Having made the report to the police she returned to
the cafe and on the way she passed the accused at Maphohloane's bus
They were about six (6) paces from her vehicle.
The police arrived at the cafe some time after she had
arrived. They examined the dead body of the deceased before they went
the cafe. She followed them into the cafe and she noticed that
the goods in the cafe were in disarray, the cash she left in the cash
register was missing; she also noticed that the handkerchief and the
knife with which she cut bread were missing. The handkerchief
small and off white in colour, it had some soot on the middle because
she used to clean the lamp with it. The knife was brown
in colour and
engraved "sable". She also noticed that the deceased torch
was missing. It was red and white with a big lamp
(head). On the 12th
November, 1935 she was invited to the charge office where she
identified a torch, a knife and a handkerchief
as the articles found
to have been missing from the cafe on the 7th November. 1985.
Under cross-examination 'Malerato Sekese said that she
did not remember which of the accused bought bread and oranges. The
facing towards her where they sat and ate their bread and the
light in the cafe was good because she had opened the
curtains. She does
not remember their attire except that one of them had a
scar on the
cheek; she vaguely remembers that A1 was wearing a
jacket. She says that she saw the faces of the accused when she
passed them at
or near Makhaleng Bridge because they all turned and
looked at the vehicle
when it passed them. She admitted that at that time she
did not suspect the accused having been involved in the murder of the
'Mapuleng Moeletsi (P.W.2) lives at Ha Moeletsi which is
the same village in which Mr. Soakala's cafe is situated. She told
that on the 6th November, 1985 she was travelling in a car
from Mafeteng to her village. When she passed Mpopo's bus stop she
three people going towards Mohale's Hoek. She later saw them
again in her village at her sister-in-law's house where there was
for sale. They bought beer and sat under the trees outside the
house and drank their beer. A1 and A2 were facing away from her while
A3 faced towards her. It was at about 11.30 a.m. when the three men
arrived and they left at about 12.30 p.m. Two of them wore tender
shoes with red stripes. On the 22nd December, 1985 she attended an
identification parade at which she was asked to pick the men she
seen on the 6th November, 1985. She identified A3 as one of them.
Under cross-examination 'Mapuleng said that when the
parade was formed she had not yet arrived from her home and when she
she was kept at a place where she could not see the
parade. She said that before she started to point out the suspects
never gave her the impression that the suspects could
or could not be in the parade. She denied that before she pointed out
policeman went to A3 and touched him on the shoulder saying
"when you see the suspect you should touch him like this".
She did not notice the marks/tattoo on the face of A3 because he was
some distance from her and estimated the distance to be twelve
P.W. 3 'Mantebaleng Moeletsi is the lady who was selling
beer at the house referred to by P.W.2 . She was selling beer on ,
of her sister, Mamokhutli Moeletsi. She said that when the
three strangers arrived she was impatiently waiting for her sister's
because she wanted to go away. It was A1 who came to her and
bought beer for M2-40 and that was the only time she looked at him.
A1 came for the second time and bought beer. On the 23rd December,
1985 she attended an identification parade at Mohale's Hoek prison
and she identified A1. When she arrived in Mohale's Hoek she went to
the charge office and from there she was taken to the prison
policemen. They left her about hundred or one hundred and fifty yards
from the prison on the other side of a rise. After
a short while a
policewoman called her and when she came to the parade she picked A1.
He was wearing brightly coloured pair of trousers
she was still
wearing in Court. She admitted that she was never asked to describe
the suspect at any time. When she was asked why
she could not see the
mark on the right cheek of A1, she said that she was scared of the
three men and never looked at them properly.
Molula Chaka (P.W.4) resides at Ha Maphohloane. She
testified that in 1983 she worked in Maseru and that A2 was her
lover. She returned
to Ha Maphohloane and is now living at her
parents' home. In 1985 she met A2 in the village of Ha Maphohloane at
a house where beer
was being sold. A2 was accompanied by A1 and A3.
The accused were: buying beer for themselves and for all the people
in the house.
They used coins when they bought beer. The accused
ended up sleeping at her parents' home on the ground that it was too
them to continue with their journey. When she asked A2 whore
they came from and where they were going, he said that they came from
Maseru and were going to Qacha's Nek. On the following morning they
went into the village and came back carrying a container full
beer. After drinking the beer
prepared to leave and put their articles on the table.
Molula went on to say that the police arrived before the
accused departed and that when the accused saw the police A3 threw
wrapped in a handkerchief to the other side of the bed. She
drew the attention of the police to the fact that someone had thrown
something to the other side of the bed. One of the policemen took the
handkerchief. The accused were searched and three or four knives
found but the witness is not sure exactly how many knives; four
handkerchiefs and a triangular sling with some blood stains
found; four torches were also found but again the witness is not sure
of the number. Three handkerchiefs were taken out of the
bags ' while the fourth handkerchief was the one containing money
which A3 threw away. The torches were taken out of the
one which had been on the table. Because of fright the witness did
not see where the knives came from. One of the torches
was red with a
white head. Three of the knives were okapis with red handles; the
fourth was the one engraved "sable". The
out all articles she referred to in her evidence-in-chief.
Under cross-examination Molula said that there were two
navy blue handkerchiefs but she was able to identify the one that had
money and thrown behind the bed by A3 because it was
dirtier than the other one. She said that when the police entered
into her house
A2 was already outside where he was searched by other
After the accused were searched the police took them to
their vehicle. She was also taken to the vehicle because she was
having harboured insurgents. When it was put to her that
the accused knew nothing about the red torch and that they had their
torches, she said that it was placed on the table by one of them
although she did not
see which one of them. Molula says that they were all
taken to Mohale's Hoek charge office. It was on Friday when they were
and she was released on the following Tuesday.
Sgt. Jobo is the police officer who conducted the
identification parade. He testified that the fifteen people in
the parade were
of more or less the same appearance i.e. complexion
and height. However, they were dressed differently. He was adamant
the parade was lined up the witnesses were out of view
because they were on the other side of some buildings. It is to be
the identifying witnesses said they were on the other side
of a rise and did not refer to any buildings. Sgt. Jobo said that at
identification parade held on the 22nd and 23rd January,
1986 the identifying witnesses identified A1 and A3. It appears that
P.W.2 and P.W.3 were wrong to say that the identification parade was
held on the 22nd and 23rd December, 1985.
Warrant Officer Letsie (P.W.6) testified that on the 8th
November, 1985 he went to Maphohloane's village accompanied by Sgt.
(P.W.8), Sgt. Shelile (P.W.7) and Trooper Thapelo. They went
there because it had been reported to them that there were three
in the village who appeared to be insurgents. The Insurgents
were alleged to be in the house of P.W.4. P.W.6 says that he first
to P.W.4's house alone leaving his colleagues some distance from
the house. He found the accused in the company of P.W.4. He then
out and called his collegues. WHEN THey entered into the house A1 and
A3 threw some objects behind the bed. He asked them what
throwing away but got no answer from the accused. He checked the area
where the objects were dropped and found a navy blue
containing coins and a dirty yellow handkerchief also containing
coins. The navy blue handkerchief was found where A3
something and the yellow one
-9-where A1 had dropped something.
There was a bag infront of the accused. P.W.6 says that
he checked the contents of the bag and found the following articles:
blanket, a purse containing some money, four torches, a piece
of iron rod, an off-white handkerchief with brown stripes on the
two red okapi knives, a knife engraved "sable", a
white triangular sling and some packets of cigarettes. After he had
A1 and A3,Sgt. Manyeli (P.W.8) gave him a navy blue
handkerchief containing M4.90 (in coins only) and a red knife which
when he searched A2 outside the house. The handkerchief of
A3 contained M9.30 composed of M7.30 in coins and one M2 note; in
of A1 he found M17.12 composed of coins; in the black
purse he found M37.60 composed of M22 in M2 notes, M10.00 note, a M5
and sixty cents.
The evidence of Sgt. Shelile (P.W.7) is in substance the
same with that of W/O Letsie (P.W.6). He testified that they went to
village because a report had been made that there were
people suspected of being insurgents in that village. Under
he was asked to reveal what explanation the accused
gave; he then told the Court that the accused said they came from
and that they were going to Qacha's Nek; they further
explained that on their way they broke into a certain house at Taung.
as a result of this explanation that they handed them over to
the C.I.D. together with their property. They knew that the C.I.D.
men ware investigating a murder from Taung (Maphohloane's).
Trooper Mafereka (P.W.9) testified that he is attached
to C.I.D. at Mohale's Hoek. On the 7th November, 1985 he attended the
of a crime at Ha Monyake at the cafe of one Mr. Soakala. He
found the deceased lying infront of the cafe. His neck was tied with
a triangular sling,
there were six (6) wounds at the back of the left
shoulder and a wound in the right palm. The deceased was wearing a
blanket, a yellow
skipper, a brown skipper and a vest. He found
tender shoe prints around where the deceased lay and at the back of
the cafe near the
door. The back door was broken. Inside the cafe he
noticed that the goods were in disarray and P.W.1 reported to him
that an amount
of M70.00 which was in the cash register, a knife
engraved "sable" and the deceased's red and white torch
together with an off-white handkerchief with brown
stripes on the sides with which she cleaned the lamp. The dead body
to Mohale's Hoek mortuary; a post-mortem examination was
When he came back to his office on the 8th November,
1985 the accused were already under arrest and were handed over to
him by War.
rant Officer Letsie together with their property. A1
selected the following articles as his own property: the off-white
with stripes on the sides and with soot on the
middle, a maroon knife, a torch-silver in colour, a maroon knife, a
colour, he wore brown and black tender shoes which
had prints similar to the prints he found at the scene of the crime.
9 collectively). A3 selected the following as his own
property; a white triangular sling similar to the sling found around
of the deceased, a green blanket with what looked like blood
stains, a red knife, (Exhibit 11 collectively). A2 selected the
as his own property; a black and red torch, a red and white
torch, a red knife, a knife engraved "sable", a short iron
rod. He wore tender shoes with prints similar to the prints found at
the scene of the crime and one shoe had something like a blood
(Exhibit 10 collectively).
The accused admitted that they selected the articles
(Exhibits 9, 10 and 11) because they were badly assaulted by the
P.W. 9. The truth is that they do not know anything
about the articles exhibited before this court. They were shown to
them in the
C.I.D. office and forced to admit that they were theirs,
A2 testified that they left Maseru intending to visit Matsatseng
not far from Maphohloane's village. They travelled by bus.
When they came to Maphohloane's village they alighted and went into
village to look for beer because they were thirsty, They bought
beer and kept on drinking until they met P.W.1 who was his lover
1983.. They finally decided to spend the night at the home of P.W.4.
On the following day policemen came and arrested them. He
only one who had a bag, it was yellow and contained one jacket. He
denies that when the police searched him they found any
in a handkerchief and a red knife. He said he was wearing a brown
overall, a yellow track suit, brown shoes and socks.
A1 was wearing a
dark brown blanket, a sandringham blanket, brown shoes, a white
trousers with some stripes and a blue skipper. A3
was wearing a black
track-suit, a brown blanket, a green shirt, a white vest and black
shoes. He said that his lover (P.W.4) was
falsely implicating him
because she was taught by the police to tell lies against him.
A3 testified that they were going to Matsatseng so that
he could place a stone on his grandfather's grave in accordance with
custom, A1 and A2 were accompanying him for this purpose. He
had no luggage at all when they arrived at P.W.4's house and denies
that when the police arrived he threw away money wrapped in a
handker. chief. In all other material respects his evidence is the
same with that of A2 except that A2 had his own torch in the bag.
The evidence of A1 is substantially the same with that
of A2 and A3. They deny that they were ever in the village of
They deny that they committed the offences with which
they are charged.
The witness called by the Court Andrease Serame is a
senior prison officer at Mohale's Hoek prison. He brought a prison
which the cloths the accused were wearing when they were
admitted were recorded. I deliberately called the witness from the
to come and tell the Court what kind of attire the accused
were wearing when they arrived with particular reference to footwear.
Throughout the trial A2 and A1 denied that they were wearing the
tender shoes exhibited in this Court, A2 said he was wearing the
black shoes he is wearing now in Court and this was put to the Crown
witnesses and . A1 said that he was wearing brown shoes at the
they were arrested. The evidence of A2 and A1 that they were wearing
black shoes and brown shoes respectively when they were
borne out by the records of the prison. If the police witnesses
especially P.W.9 Trooper Mafereka is telling the truth
accused were wearing tender shoes when they were handed over to him
by Warrant Officer Letsie and that he seized) the tender
the accused ought to have been bare-footed when they were taken to
the magistrate for remand. They would still have been
when they arrived at the prison.
Alternatively, there would have been evidence by the
police especially Trooper Mafereka that after he had deprived the
their shoes their relatives brought some other pairs of
shoes. In other words Trooper Mafereka ought to know if the relatives
the accused brought the pairs of shoes the accused are now
wearing, because the accused were in his custody all the time before
were taken to prison. The accused's version is that they found
the tender shoes in the C.I.D. office and that they were assaulted
and forced to admit that the tender shoes were theirs. It is also
surprising that the two star witnesses
in this case, P.W.1 and P.W.4, do not make any reference
to the accused's attire especially their footwear when they saw them
village. P.W.1 did not remember at all what the accused were
wearing when she allegedly saw them in the cafe, at Makhaleng bridge
and at Maphohloane's bus stop. It is unbelievable that she saw them
on three occasions that day but she does not remember anything
their dress. P.W.4 was not even asked what the accused were wearing
I am of the view that the Crown has failed to prove
beyond a reasonable doubt that on the 8th November, 1985 the accused
the tender-shoes before Court when they were arrested.
The Crown would have easily rebutted the defence story by showing
accused were supplied with different pairs of shoes while
they were in the custody of the police.
The next crucial point in the present case is whether
the identification of the accused at the identification parade held
Hoek Prison on the 22nd and 23rd January, 1986 was done
in a fair and proper manner. It is a regrettable fact that the
officer did not find it necessary to call P.W.1 to
the identification parade. Her evidence would have been very
the identification parade was held in strict
compliance with the rules prescribed in numerous cases of this Court.
Her evidence has
very little weight regarding the identity of the
accused because she merely pointed them out or identified them in the
gave me the impression that she is incapable of making a
proper observation. I came to this conclusion because she could not
remember whether any of the people she saw that day were wearing
blankets or jackets. The trousers A1 was wearing has very conspicuous
check colours which strikes
one's eye as soon as one looks at him. I cannot
understand why P.W.1 does not remember that trousers.
P.W.2 and P.W.3 say that the accused were with them for.
about an hour but they do not remember their dress, P.W.2 only
that two of the accused wore tender shoes. They did not
even see that one of the accused has a scar on the left cheek while
have some tattoos on their cheeks. Although at the
identification parade P.W.2 identified A3 and P.W.3 identified A1
that piece of
evidence is entirely useless because Sgt. Jobo (P.W.6)
failed to observe the rules set down by the Courts. Such rules were
and clearly set out in the case of Teboho Mohajane and
another v. Rex, C. of A (CRI) No.7 of 1984 dated the 26th
July, 1985 (unreported) as follows:
The prospective witness should be asked to givehis
description of the alleged offender at theearliest opportunity
to avoid the risk offaulty recall and the risk of discussing
recollections with other potential witnesses (R v.
Y1959 (2) S.A. 116 (W) ).
The identification parade itself should forthis
reason be held as soon as is reasonablypossible.
There must be a sufficient number of personspresent
on the parade to make any consequentidentification significant.
8 or more personsare generally necessary. (Hoffman South
AfricanLaw of Evidence 2nd Edition p. 438).
4. The persons present on the parade must be
substantially similar in appearance and dress. If by appearance,
dress or otherwise,
the accused stands out conspicuously, the
identification of the accused might not only be unfair to him, but of
value. More particularly, where the culprit is
alleged to have worn attire of a distinctive colour or design at the
time of the offence,
there would be little significance in an
identification taking place at a parade where the accused alone is
attired in such colours
R v. Masemang 1950 (2) S.A. 488 (AD) S v.
Mhlati 1984 (4) S.A. 629 (AD)
5. The accused person, on an identificationparade
should be given a fair opportunity
if he chooses, to change his or her position on the
6. An identifying witness should not be requiredto
make his identification on the assumptionthat the culprit
concerned is in fact on theparade. The witness should be asked to
. out the person concerned "if such person is
present" on the parade. (R v. Nara Sammy 1956 (4) SA 629
(T) S.A.L.J. 2879.
Care should be taken to ensure that theidentifying
witness does not see the accusedbefore the identification parade
isassembled, particularly in circumstanceswhere he can get
the impression that he isindeed the person suspected by the
police.(kola v. R 1949 (1) P.H.H. 100 (AD).
Where there is more than one potentialidentifying
witness, steps should be takento ensure that such witnesses do
not havethe opportunity of discussing theidentification. ( R
v. W 1947 (2) S.A. 708 (AD)at 712).
It would often be salutory to hold morethan one
identification parade, and toinclude a "blank parade"
on which theaccused is not present at all.(Hoffman
(supra) p. 440).
10. Contemporaneous notes of any relevantcircumstances
accompanying any identification at such a parade, should be
keptwhere it is possible e.g. if the witnessshows hesitation
or passes the accused
a few times before finally identifying him or if he uses
words indicating some uncertainty such as "I think it is him".
11. It is undesirable that the officer who
isinvestigating the case should also be incharge of the
parade (S. v. Nara Sammy (supra).
12. A photograph of the persons assembled on the
parade, preferably in colour, should be made available to the Court
so as to enable the Court to appreciate the
significance of the identification or any objection thereto."
Sgt. Jobo failed to observe a number of these rules.
There is no evidence that at the earliest opportunity the identifying
were asked to give a full description of the suspects. The
truth is that the witnesses were at no time asked to describe the
There is evidence that the people who were in the parade
were wearing different dress. I have mentioned above that the pair of
A1 was wearing has very conspicuous colours and he was the
only one wearing such a trousers. He stated that that was the
he was wearing on the day he was arrested, which means
that if the identifying witnesses saw him in their village that day,
would have no difficulty to identify him in a parade where the
rest of the people wore different dress.
The identifying witnesses were given the impression that
the people they were to point out were in fact on the parade. They
to have been asked to point out the people concerned "if
such people were present in the parade."
After P.W.2 had identified A3 she was allowed to go home
where she could easily meet P.W.3 who attended the identification
the following day.
In the result I am not satisfied that the identification
parade was conducted in a fair manner to the accused, and it
in a number of ways. I shall not attach any weight to
I now deal with the evidence of Molula (P.W.4). Her
evidence is being challenged by the defence on the ground that the
her what to say. According to the evidence of the
police witnesses the accused were arrested on the 8th November, 1985
and on the
evening of the same day they confessed to have committed
housebreaking with intent to steal and theft in the Taung area. If
evidence on this point is to be taken as true why did they have
to detain P.W.4 from the 8th to the 12th? Taking a statement from
would not have taken five days if she was willing and freely and
voluntari giving it. No explanation has been advanced by the
why P.W.4 was detained for such a long time bearing in mind that the
accused are alleged to have confessed on the same day
that they were
arrested. The allegation by the defence that P.W.4 was drilled cannot
be ignored in the light of the fact that she
was detained for a long
Secondly, there are some disturbing contradictions in
the evidence of P.W.4 and the police officer (P.W.6). She says that
police entered one of them shouted and said "hands up".
At that moment A3 threw something to the other side of bed. According
to her only A3 threw away something. According to P.W.6 A1 also threw
something to the other side of the bed. It is unbelievable
did not see A1 throw something away because he sat same distance on
bench while A3. sat on the bed.
Thirdly, P.W.4 is adamant that when the police entered
into the house A2 was already outside where he was searched by other
On the other hand P.W.6 says that A2 was taken out of the
house by P.W.8 after they had been in the house for short time.
Fourthly, P.W.4 says that when A2 went out on his own
before the police arrived he took his bag. P.W.6 and P.W.8 say that
A2 had no
bag when he was taken out of the house by P.W.8. A2
confirms the evidence of the police officers that he had no bag at
all when he
went out. His bag was left on the table. According to
P.W.4 each of the accused had a bag.
Fifthly, P.W.4 refers to cloths or slings that were
found in the bags of the accused. But the evidence before the Court
is that there
was only one sling found amongst the property of the
The impression I had of P.W.4 is that she is an entirely
unreliable witness. It would be very dangerous and unwise of this
rely on her evidence. Throughout her evidence-in-chief she
gave me the impression that she was not sure of what happened in her
She was not sure whether three or four knives were found when
the accused were searched and she did not see where the knives came
from. She was not sure how many torches were found but she says that
the red torch with a white top (deceased's) was on the table
the accused were searched, however, she does not know who put it
there. According to P.W.4 three handkerchiefs came from the
bags while the fourth handkerchief which contained money was the one
thrown to the other side of the bed by A3. On the
other hand the
police witnesses say that two handkerchiefs were those thrown away by
A1 and A3, the third was found in the possession
of A2 when he was
searched outside the house, the fourth was found in the bag. The
last-mentioned handkerchief is claimed by P.W.1
as hers which was
missing from the cafe on the morning of the 7th November, 1985.
Because of the contradictions stated above and the fact
that P.W.4 was detained for five days for no apparent reason it is
rely on her evidence. The only reasonable inference
which can be drawn from her long detention by the police is that she
to give her statement. The allegation by the accused
that during her detention she was being drilled is not altogether
Under cross-examination the police witnesses were asked
by Mr. Monyako to reveal what explanation the accused gave to
them. In answer to this question the police revealed that the accused
that they committed housebreaking in the Taung area
which happens to be the area where Mr. Soakala's cafe is situated. It
unwise of the defence counsel to elicit a confession
from witnesses who would otherwise have not been in a position to
kind of evidence. Under the circumstances the confession
was admissible hut the Court is still under a duty to satisfy itself
the confession was freely and voluntarily made. The accused have
persisted in their allegation that they were assaulted by the police
while in detention and forced to admit that the articles they found
in the C.I.D. office were theirs. It may be that the accused
telling the truth but there are two matters which have not been
property explained. The allegation by the police is that
confessed on the night of the 8th November, 1985 and yet they were
taken to the court for remand on the 13th or 15th
November, 1985 long
after forty-eight hours had expired. When P.W.9 was asked why he
detained accused for such a long time before
he took them to a
magistrate, he said they were still being interrogated. People who
confessed on the first day could not again be
interrogated for seven
days. When the accused were later taken to a magistrate in terms of
section 228 (2) of the Criminal Procedure
and Evidence Act No.7 of
1981 they refused to make a statement. This tends to show that the
statement they made to the police if
they made it at all - was made
The second matter is that the accused were never
cautioned in terms of the Judges' Rules.
In a criminal trial the Crown must prove its case beyond
a reasonable doubt; the accused bears no onus to prove anything
defence of insanity and other statutory offences. In R.
v. M., 1946 A.D. 1023 at p. 1027 Davis, A.J.A. said:
" the court does not have to believe the defence
story, still less does it have to believe it in all its
details; it is sufficient if it thinks that there is a reasonable
that it may be substantially true."
I am of the opinion that there is a reasonable
possibility of the accused's explanation being true. My assessor was
of the opinion
that the accused were guilty of robbery. I cannot
agree with him for the reasons given above.
In the result I found that the Crown has failed to prove
its case beyond a reasonable doubt.
The accused are found not guilty and are discharged.
J.L. KHEOLA JUDGE.
21st September, 1987.
For Crown - Mr. Thetsane For Defence - Mr.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law