IN THE HIGH COURT
In the matter between:
v LEHLOHONOLO BERNARD CHEMANE MAHASE
Delivered by the Hon. Sir Peter Allen on the 18th day of
The accused is indicted on three counts, the first count
of the murder of one Mapukunyane Tente; the second count of the
one Motsieloa Hlapisi; and the third count of the theft of
a motor vehicle, registered number F.0876. All were alleged to have
on the 23rd July 1983 at Ribaneng in the district of
The first deceased, Mapukunyane, worked in the shop
belonging to the second deceased Motsieloa. The stolen vehicle was a
van which also belonged to Motsieloa.
The Crown listed. 16 witnesses for the prosecution. Of
these the evidence of ten witnesses given on deposition at the
Examination held at Mafeteng on 15 May 1986 was admitted
by the defence. Thus six prosecution witnesses testified at this
At about 7.00 p.m. on 23 July 1983 four men forcibly
entered the house of the second deceased Motsieloa where he
was present with varlos member of his family and
/who were ...
who were in different rooms in the house and kitchen. A
number of gunshots were heard from various types of guns, after which
blue Toyota van was apparently driven away by the gang.. They
left behind the body of the first deceased Mapukunyane and the
injured Motsieloa (the second deceased) who died at Morija
Hospital two days later, on 25 July 1983.
The arrival of the gang at the house and the shootings
were described from various viewpoints by the witnesses Mats'epang
(P.W.1), a niece of the second deceased Motsieloa; Moleboheng
Fosa (P.W.2) who worked in the shop; Hlapisi Hlapisi (evidence
the 18 years old son of the second deceased; Diako Sello
(evidence admitted), who lived in the house and Rosalea Manyeli
admitted), who lived in the servants' quarters. In
addition, the gunshots were heard by Troopers Masunyane and
well as ex-W.o. Mokone (all of whose evidence was
admitted) of Ribaneng Police Station. They went to the scene and saw
being driven away. On their arrival they found the body of
the first deceased Mapukunyane but Motsieloa had already been taken
hospital. They picked up three empty cartridge cases at the scene
(exhibit 1.) which consisted of two shot gun cartridges and one
an automatic rifle.
The post mortem examination reports concerning the two
deceased persons were prepared by Dr. S.W. Moore at Morija Hospital
in by consent (exhibits 'A' and 'B'). That of the first
deceased, Mapukunyane (aged 65 years) was dated 27 July 1983 and it
that his death was caused by a gunshot wound which penetrated
the left side of the chest at close range. There was an exit wound
the back and much
blood was lost. His body was identified by Thabo Tente
and Ketso Tente (evidence admitted), his nephew and son respectively.
of the second deceased Motsieloa (aged 43 years) (exhibit
'B') was dated 2 August 1983 and it reveals that there were two
wounds, one in the body penetrating both bowels and stomach
and the other in the left buttock fracturing the femur. He died in
on 25 July 1983 of septicaemia shock from the injuries. His
body was identified by his brother Moferefere Hlapisi (evidence
Tpr. Moreki (PW3) of Maseru Police testified that, two
days after the incident, on 25 July 1983, he received information .
CID as a result of which he recovered the Toyota van
F.0876 from a place called Khubetsoana, which was about a half
where the accused was living with his parents. No
examination was made by the police for fingerprints or anything
else on the
According to this trooper, on 27 July 1983 two
detectives came from Mafeteng and went with him to arrest the accused
at his above
home where they found him. The detectives were not
called as witnesses and there is no other evidence supporting this,
nor was it
revealed for what offence he was arrested. The accused
himself stated that he was not arrested until 10 October 1983, and
for another offence. According to Det. Lieut. Ramonate
(P.W.6 ), who was the investigating officer at Mafeteng, he
a report of the accused's arrest in Maseru on 16 November
1983 and he sent a detective to escort the accused to Mafeteng on the
day. The accused was then sent to prison in connection with
another case. It would thus appear that the earlier arrest (or
may not have been concerned with the present case. Lieut.
Ramonate knew nothing about them. The first time that the accused
to have been brought into the
present matter was when Lieut. Ramonate ordered Sgt.
(P.W.4) to conduct an identification parade with the
accused being brought from prison in order to take part on 21
There was no explanation of how or why the accused
became a suspect involved in this case.
The identification parade was held four months after the
incident at Ribaneng and three alleged eye-witnesses were asked to
identify anyone who had taken part in that incident.
Moleboheng (P.W.2) and the boy Hlapisi (evidence admitted) were
unable to identify
anyone at all, although the accused stood in the
line up of ten other men. Only Mats'epang (P.W.I) identified the
accused at that
and she remains the sole identifying witness in this
The parade was conducted by Sgt.KHITLANE(P.W.4)assisted
Pomela (evidence admitted) and other police officers at
the back of the charge office at Mafeteng Police Station. Sgt.
identification parade written report (exhibit 'C') shows
that the parade took place at 10.30 a.m. on 21 November 1983. It
only to the witness Mats'epang (P.W.1) and there is no mention
of the other two witnesses. There were a number of other defects
deficiencies in the conduct of this identification parade which I
find to be most unsatisfactory. The report did not state that
accused was asked if he agreed to take part in the parade and that he
had so agreed.
According to the Sgt. he had served in the police for 15
years and yet this was his first identification parade. He had either
no training in this important police duty or he had forgotten
what he had been taught. In any case, he clearly should have been
supervised by a more experienced officer; because the procedure is
not simple and there are certain rules to be followed.
/The first ...
The first error was made before the parade commenced. In
these cases the suspect should already be held in the police cells or
room ready to be brought out as soon as the other people are
lined up. This is so as to ensure that he cannot be seen by the
witnesses before the parade starts. Unfortunately in this
instance the witnesses were already sitting outside the police
when the accused was brought down the road from the prison.
According to the Sgt. the accused was brought in a
vehicle and could not be seen, but the accused denied this and
described how he
was brought on foot along the road in handcuffs. If
this was so then it was clearly possible for anyone, including
to see him and to know that he was a prisoner
or suspect. This should have been avoided.
The printed pro forma of the identification parade (exh.
'C') used by Sgt. Knitlane has on it the words "The parade
of the following persons who were similar to the suspect."
It then names 10 men. This requirement appears to have been ignored
by Sgt. Khitlane because he stated in Court that the men were of
different heights and appearances and that each wore different
The accused was apparently wearing quite distinctive
clothing consisting of blue jeans and a grey long-sleeved T-shirt,
'skipper', with the word OLYMPIC printed across the chest in
large letters, and no hat. What the others were wearing was not
Now, it is a standard requirement in such parades that
all of those taking part should be of similar age, height and
shape as the suspect, and that they should be dressed in
similar clothes and that their facial appearances should be alike.
if the suspect has a moustache or beard or spectacles then so
should all the others in the line up.
It is for the suspect to choose what clothes to wear '
and the police should then ensure that the others on the parade are
dressed. In this case they should all have been in T-shirts
or sports shirts and jeans or similar trousers. The witness must not
be told that a suspect is definitely present and should be pointed
out. Instead the witness should be asked to point out the suspect
"if such a person is present on the parade."
In this way the witness will be faced by a line of men
all with facial appearance and clothes of a similar type. She then
has to make
a real effort to locate and identify the suspect and
there will consequently be much more centainty and credibility in
such an identification.
If she is hesitant or doubtful,or unable to
point him out, then this will be revealed and it should be noted down
by the police
officer conducting the parade; who himself must not
have been involved in the actual investigation of the crime
If a suspect has any limb missing or other deformity,
and it is not possible to find sufficient people with similar bodily
then the solution is for all of them to hide that part of
the body. If it is a leg deformity then they can all stand behind
or covered tables so that none of their legs can be seen. In
this case the witness Mats'epang (P.W.I) said that the man had a
or something wrong with one eye. The accused has no squint in
fact, but his right
eye does have what is called a lazy eye-lid. The eye-lid
keeps closing by itself which tends to make him lift his head up to
as he probably finds it hard to control the continual
drooping of the eye-lid. In such a case the proper course is for the
to give each man oh the parade a small square of cardboard or
stiff paper with which to cover one eye.
In this instance nothing like that was done and it
appears that the accused may have been the only one there with a
visible eye defect.
At any rate the witness (P.W.1) said she noticed
it and looke straight at the accused as soon as she was brought in
front of the
line-up. The accused in Court confirmed that he saw her
look straight at him. She was told to walk along the line so she went
and back again and then touched the accused who stood at number
2 position in the line. She said nothing, and this was wrong too.
She should have been previously asked to say something like "This
is the one" or "This is the man" if she saw
that it could be recorded, as well as why she was able to recognise
In her testimony P.W.1 said, "As I inspected them I
immediately spotted the man. I pointed at him on my way back again
the line. I did not concentrate on their clothes, but on their
faces." This remark was very significant and I shall refer
it again later on. But she picked him out solely because there was
something wrong with his eye. She had no regard to his height,
shape or clothing. There are very many people with eye defects and
there was thus no other confirmation of her identification
resulted in more certainty. There was clearly a danger
here of making an erroneous identification.
The witness Moleboheng (P.W.2) had told the police, and
later the Court, that she was completely unable to identify any of
men in the gang. This was rather strange because she was
standing facing one of them at the window of the kitchen and only a
inches away from him. Much closer than P.W.1 in fact, and so she
ought to have been able to describe and identify that man especially
if he had an eye defect. At any rate, she did not see him in the line
up and so walked past the accused. She identified nobody and
nothing about any eye defect.
The witness Hlapisi, the boy whose evidence was
admitted, was also in the kitchen with the other witnesses and he was
unable to identify
or describe anyone. There were two other adults in
that kitchen, James Matla and 'Mahlapisi, the wife of the second
was produced as a witness and it would appear that
no police statements were obtained from them. Thus of five people in
only one, the witness Mats'epang (P.W.1), who was 16
years old at the time, claimed to be able to identify the man whom
apparently saw and looked at.
There is another strange aspect to this case concerning
identification. In most cases, when the police question several
they obtain from them various descriptions of the facial
features, if they are not covered up, as well as the clothing of
But, in this case, although the faces of the four men were
visible, not one of the seven people said to have been present, was
to describe a single face. Three of the five whose evidence was
recorded all gave
descriptions of their clothing only. This is most
unusual because there were lights on in the house and some of the
extremely close to, even touching, some of the gang.
It seems incredible that they only looked at the men's clothing.
no mention of beards, moustaches, bald heads, big ears, or
any other easily recognisable features.
' Mats'epang (P.W.1) testified that the man at the
kitchen window, whom she later identified as the accused, wore a
up to his forehead and a blue moholu blanket.
Another man had on a green blanket and another wore military
camouflaged jacket and
trousers. The fourth wore an unspecified
blanket. She said only two wore balaclavas. At the P.E. she said
first, "I don't know
how they were dressed" and later that
one wore "soldier's comouflage" and "the others seemed
to be wearing blankets."
The man in the blue moholu blanket had
a "skullcap" on his head. There was no mention of
balaclavas at all and no facial
Moleboheng (P.W.2) testified that she was pulled from
the kitchen into the bedroom and there she was beaten with plastic
by three of the men while the fourth stood in the doorway.
They wanted to know where the second deceased kept the keys of his
motor vehicles. She showed them the keys on a table in that
room. But there was a paraffin lamp lit in the room and. she was very
close to the men yet she could only describe their clothing.
According to her the one by the door wore brown overalls with a black
blanket and face uncovered. Another wore a blackish moholu blanket
and a balaclava. The third wore a green blanket and the fourth
khaki dust coat. At the earlier P.E. she said she did not see what
the man at the kitchen window was wearing.
/She added ...
She added that one man who came into the kitchen wore a
black blanket and another wore an old moholu blanket. She could not
anyone. It seems strange that both of these witnesses were
able to give more detailed descriptions at the trial than they could
the much earlier P.E.
The boy Hlapisi (whose evidence was admitted) described
one man in overalls, another in a black blanket, the third in a green
spotted overall and the fourth was wearing a brown coat. The "green
spoted overall" may have been military camouflaged
The witness Diako Sello (whose evidence was admitted)
gave no descriptions at all and said she could not identify anyone
yet she saw
them in the passage and the kitchen, both of which were
lit. She may not have been questioned properly.
The witness Rosalea Manyeli (whose evidence was
admitted) heard voices and sounds but apparently saw nothing as she
the servants' quarters. I do not know why she was
included as a witness.
The main witness Mats'epang (P.W.1) made no mention of
anyone wearing overalls or a dustcoat, both of which were seen by
(P.W.2) and the boy Hlapisi. These are very distinctive
types of clothing.
Although the witnesses seem to have taken some trouble
to notice the clothing of the four men, the accused was not in fact
by his clothes.
It appears that before the shooting started, and at the
time of the arrival of the four men at 7.00 p.m., there were four
the kitchen. Against one wall was a coal stove and seated
near that were the two people who were
not listed as witnesses, James Matla and 'Mahlapisi, the
wife of the second deceased. They were eating.
In the next wall there was a large window divided into
three upright sections each of which could be opened separately. Two
were closed and only the right hand section was partly open.
On the window sill in front of the middle closed window there was a
lighted candle. Outside there was moonlight. Below the left section
of the window was a sink on a wooden stand.
At this sink stood Moleboheng (P.W.2) washing some
dishes.' In the middle of the room, sitting on the floor, was
who was aged 16 years and busily engaged in
feeding her baby with soft porridge and milk. She was using her
hands and a spoon and
so was looking carefully to see that the food
went into the baby's mouth. She testified that she "was
concentrating on feeding"
her child. This has to be borne in
mind when considering her later testimony. She also said that "there
was not so much light
from the candle in the kitchen."
There was primus stove alight and smelling which was why
the window was slightly open. Otherwise there was no other light but
from the candle in the window. One of the men in the gang
appeared at the open window and looked in. He was carrying a rifle of
sort. According to P.W.1 he stared at her and she stared at him
for between 5 to 10 minutes and nobody said a word. This is so
that I cannot believe that statement. She went on to say
that P.W.2, standing by the sink, then noticed the man and screamed
"here is a person" and then the man slammed the window
closed and P.W.2
dropped down and hid under the sink. The others in the
kitchen all saw the man also, but they do not seem to have reacted at
It is clear that P.W.1 did not stare at the man for 5 to
10 minutes through the open window as she claimed because, on being
cross-examined, she admitted that she only saw the man
peeping inside when P.W.2 screamed and drew everyone's attention to
In addition, she had admitted that she was concentrating on
feeding,her baby at the time and so she had to watch where she was
the spoonsful of food. Furthermore, P.W.2 testified that, as
soon as she saw the man, he closed the window as she screamed. So
could only have seen him through the closed window or just as
he closed the window.
This would have been difficult because the moonlight
outside would probably have lit up the back of him but caused his
face to be
in shadow. The candle, further along the inside of the
window, would have reflected its light in the glass making it rather
to see through to the outside. The man was wearing a
rolled up balaclava which would have thrown some shadow on to the top
of his face. Thus the circumstances and conditions, on the
whole, would not have been the best for distinguishing features and
making a clear identification.
In Court P.W.1 insisted that the man at the window had a
squint in his eye or something peculiar about his eye. She did not
eye. She said she also saw him again inside the house in
the passage wearing a moholu blanket. She insisted several times in
testimony that she told the police that the man at the window had
what she called a
Now, at the P.E. it is the job of the prosecutor to take
each of the prosecution witnesses through their evidence as it was
in statements to the police. Since the record of the P.E., and
no doubt the police file, is used by the Crown Law Office when
whether to bring the accused to trial, it is obviously
important and necessary for all relevant evidence to be produced at
As this case for the prosecution depends entirely upon
the identification of the. accused by Mats'epang (P.W.1) one would
to see the manner of identification emphasised to the police
and again in the P.E. record of her evidence. In fact all she said
it at the P.E. was this:
" The person who pointed the gun through the
kitchen window was another one of them. I saw him wearing a,blue
I saw well He was wearing a skullcap on the head
...... I'pointed out a person
in the identification parade:
There was absolutely no mention about his eye or of
anything anusual. about it or him. Apart from the' blanket and
skullcap she mentioned
no other means of identification.
Here in Court in her examination in chief by the
prosecutor this witness described the man at the window as follows:
" He wore a hat and a moholu blanket. The hat was
a balaclava helmet. It was folded up above his forehead."
There was no mention of the man's eye in her testimony
at all until she had been cross-examined by defence counsel at some
On the second day of this cross-examination Mr. Sooknanan
asked her if there were any distinctive features about the man at the
She had not mentioned any until then. She said there were
none and counsel then asked if there was nothing special about the
"legs, hands. eyes, ears, chin or lips." She replied
that there was nothing except that one man was tall. Then she added
" I said one wearing comouflage was tall, another
one not so tall - he had a squint eye. Something was peculiar with
That was the first mention of anyone's eye defect and I
believe that if defence counsel had not brought it up and pressed for
she would not have mentioned it at all. She further stated
that she had given a description of the man to the police.
Then in re-examination of P.W.1 by the prosecutor she
repeated that "the man at the window had a squint-eye and he
wore a moholu
blanket." She went on to say, "At the P.E. at
Mafeteng I was not asked the same questions about it as defence
here in Court." '
The only way in which the prosecution has been able to
connect the accused with this offence is by Mats'epang's
him. If she gave a facial description of him to
the police it certainly was not revealed at the P.E. nor in the
in this Court. At the identification
parade she did not say to the police, "I recognise this man
because of his squint eye"
or anything like that. Her mention of
the accused's eye in cross-examimination
appears to me to be something of on afterthought. It
most certainly, is not a convincing identification because it raises
of doubts. I find it difficult to believe that she told the
police about his eye.
She said in cross-examination that at the identification
parade line-up, she did not concentrate on the men's clothes but on
faces. Yet it is strange that she kept so quiet about the man's
eye that even the prosecutor did not get any reference to it from
in her examination-in-chief. The accused in his defence on oath
denied being at Ribaneng at-any time and he denied participating
the offences charged.
In her final address Miss Moruthoane repeatedly stressed
that the witness Mats'epang was credible, unshaken, steadfast and
in her identification of the accused. I do not agree.
In fact she was shaken in cross-examination. She first insisted that
stared at the man for 5-10 minutes through an open window. When
she was cross-examined about this she admitted that she was busily
engaged in feeding her baby and watching where she put the spoonsful
of food into its mouth. Furthermore, she agreed that her attention
was only drawn to the window when Moleboheng (P.W.2) screamed and,
according to P.W.2 herself, that was when the man closed the window.
It was therefore most unlikely that there was any long period of
staring at each other by P.W.1 and the man at the window.
The accused is indicted on three counts before this
Court, two of which are of the very serious crime of murder. The
Court has to
be satisfied beyond all reasonable doubt that the
prosecution has proved the guilt of the accused, in this case by his
I am well aware of
/the provisions ...
the provisions of S.238(1) of the C.P.&E. Act that
an accused may be convicted on the sole evidence of only one
credible witness. But that witness has to be completely
credible and convincing. There must be no doubt at all and no
that she was mistaken. The Assessors were convinced by
P.W.1's identification evidence and they gave it as their opinion
accused should be convicted.
For the reasons which I have already explained at length
I am unable to agree with them. I cannot say that there are no
my mind about the identification of the accused by this
young girl. I find it difficult to understand just how she was able
the accused with any certainty at all. Even if she was
honest she could easily have been mistaken. Nobody else noticed any
men in the gang with a squint and this witness did not mention
it until quite late in her testimony, so it cannot have appeared to
be important either to her or indeed to the prosecution.
In my opinion it would be most unsafe and irresponsible
for any reasonable Court to convict an accused person on such flimsy
and unreliable evidence, and I shall not do so.
Accordingly, the accused is acquitted on all three
in the indictment and he' is to be released forthwith.
P. A. P. J. ALLEN JUDGE
18th August, 1987
Mr. Sooknanan for the Defence Miss Moruthoane for
three empty cartridge cases (exh.1) are to be handed over to the
police for destruction.
P. A. P. J. ALLEN
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