IN THE HIGH COURT OF LESOTHO
In the matter of :
R E X
MOTAMO SEHLABAKA Held at Butha-Buthe
J U D G M E N T
Delivered by Che Hon. Mr. Justice M.L. Lehohla on
the,18th day of October, 1989.
The admitted preparatory examination depositions of
P.W.10 the headman of Ra Sakoane, chief Ishmael Sakoane shows that in
hours of a day in October 1985 a grim discovery of a dead
body of an unknown male adult was made in an open veld in an area
The headman raised an alarm and proceeded to report the
matter to P.W.1 No. 2812 Detective Trooper Mpopo of the T.Y. Police
P.W.1 examined the body in the presence of P.W.1C and
conveyed it to the T.Y. mortuary in a police van.
Following the investigations made by P.W.1 and his
fellow members of the police force i.e. P.W.12 Detective Warrant
and P.W.3 Detective Trooper Lelala a charge of the
murder of the deceased Thami Madona was ultimately preferred againsed
It is important to show that no eye-witnesses were
revealed by the investigation nor direct evidence led in this
Court. Hence the,
evidence on which the case facing the accused
depends, is purely circumstancial. The
body was lying some three paces away from a vehicular
road which was not in constant use. It is a dirt road.
Apparently the period between the time prior to Che
discovery of the deceased's body and the eventual arrest of the
during a rainy season.
It is in this connection that the questions put to P.W.1
and answers tendered are of relevance, viz:-
"You said at P.E. there had been rain - ? Yes.
Evidence will show that the accused was travelling
in a car; and if he could have been at that spot on that day after
you admit there would be an indication that a car passed
there - ?
If a vehicle had passed after it rained that would show.
But if before; then the rain would have washed away the traces of
The evidence of P.W.8 Sekonyela Ramaqabe and that of his
mother P.W.11 'Malineo Ramaqebe along with that of the accused
support to the fact of heavy down pour at Tsikoane in
the Leribe district. By my calculations this place is quite far away
Sakoane in the Berea or T.Y. district where the body was
P.W.7 'Mamolefi Madona the deceased's wife testified
that on 27th October 1905 at around 9 a.m. or 10 a.m. the accused
at her place in Che company of another man whom she did
not know. She said they were travelling in a red car. The deceased
The accused and the stranger had come to fetch the
deceased. The purpose of the mission was to sell deceased's truck to
a buyer allegedly
secured on behalf of Che deceased by the accused.
The transaction was to take place at T.Y.
P.W.7 and her husband stayed in a rented house at Upper
Thamae. P.W.7 did not know this truck because
since having been bought by her husband a month before
his death, it was parked at Motimposo because the couple's yard at
was too small, therefore there was not enough space
wherein to park that truck in that area.
Although P.W.7 acknowledged that at the Preparatory
Examination she had told the magistrate that the deceased's
company had left
in a white Toyota van in fact that was a mistake for
she recalled that they had left in a red car.
However P.W.6's evidence which is common cause indicates
that the deceased and the accused were seen seated in a white Toyota
belonging to the accused outside the T.Y. hotel on a weekend
between 5 p.m. and 6 p.m. They were drinking beer. P.W.6 is not
whether this was a Saturday or a Sunday nor does he remember
" the year. All he remembers regarding the occasion is that it
was towards the October Finals.
If by Finals P.W.6 meant the national soccer finals
which are usually held at the beginning of October each year it would
bearing in mind that the charge shows that the death
occurred on or around 27th of October which is towards the end and
not the beginning
of that month.
However of significance is the fact that after P.W.6
parted company with the two he left the hotel at 7 p.m. of the same
to see either of them again that day.
Three days afterwards he learnt from casual
conversationists at the Lake Side Hotel in Maseru that the deceased
P.W.7 testified that the deceased was P.W.9's son i.e.
Senekane Raliile's son, but not his blood son. She told the court
accused used to visit the deceased at their joint home at
Upper Thamae. His visits were so frequent that at times he called
twice a week.
On the 27th October when the deceased left with his
party for T.Y. he was wearing a short-sleeved blue scotch shirt, a
navy blue pair
of trousers and a pair of black shoes.
P.W.7 was always at her home that day but the deceased
did not show up. Nor did he the following day.
P.W.7 went about searching for the deceased. In
pursuance of this she went to P.W.9's home at Motimposo on 29th
Having failed to find the deceased there she asked for
the use of the phone and rang the accused's place of work at Lesotho
Services in order to inquire from him about the deceased's
whereabouts. But the accused was not there. Her reasons for trying
contact the accused was that when last she saw the deceased the
accused was in his company.
Her attempts at locating the deceased by means of
contacting his friends produced no results.
One of the deceased's friends whom P.W.7 questioned on
2nd November 1985 about the deceased's whereabouts was one Fani from
once more drew a blank.
Finally P.W.7 heard of the deceased's death on 3rd
November 1985 from P.W.2 Makhama Raliile. Meantime the accused
had not been
seen anywhere near P.W.7's home. She immediately set
out for T.Y. Charge Office in the company of P.W.2, and one
P.W.7 recognised the deceased's black pair of shoes at
T.Y. Charge Office.
From there she left with her party in the company
of some police officers who led her to the T.Y. Government mortuary
identified the body of the deceased dressed in the
short-sleeved blue scotch shirt and the navy blue pair of trousers.
was by then not wearing any shoes.
P.W.7 testified that to the best of her knowledge
the deceased and the accused had never had any quarrel.
Even though agreeing under cross-examination that since
she had never seen the truck that she said her husband bought she
be positive that he had such a truck she was adamant that
her husband would never lie to her and say there was such a truck if
hadn't been any.
In her desparate search for the accused P.W.7 went at
some stage to Lesotho Freight Services Centre but once more found
that the accused
was not there. She however did not leave any message
with the employees of that company for the accused to contact her
intended contacting P.W.2 and asking him to lead her to
the accused's home which was unknown to her.
Evidence showed however that the accused's home is at
Lithabaneng and that in order to reach that place from T.Y. one has
to go through
Upper Thamae which is the village where the deceased's
home is; therefore a place to go to if one wished to inform the
wife about the startling disappearance of the deceased
from one's company immediately after such disappearance - or indeed
out if perchance the deceased being weary of the wait did not
retrace his steps home by some other means than the Toyota van
which had conveyed him to T.Y. hotel.
I allude to the question of the wait because in his
evidence the accused said at one stage the deceased
left him remaining behind in the Toyota van where the
had spent a long time drinking and went into the .. hotel in the
company of the stranger who had come back from the hotel where
earlier disappeared after delivering beer to the deceased and the
accused. The accused seized this moment of the deceased's
departure - . to go to a filling station in order to put some petrol
into the tank of the Toyota van, and came back; waited .. in
for a long time for the deceased, alighted
from the van and went looking for the deceased in the
hotel; and, failing him there, decided to drive back to Lithabaneng
without the deceased.
Having received the report of a dead body found in the
veld at Ha Sakoane P.W.1 set about making investigations.
On the same day i.e. 28.10.85 he went in company of
P.W.10 to the place where the body was lying. The villagers were
some 45 to 50 paces
away from the body.
The place was free of stones but grassy. The body was
lying three paces away from the scarcely used road leading to Ha
Rakolo in the
Leribe district. The body was near a hill called Thaba
Bosiu in the T.Y. district.
P.W.1 approached the body and found it lying face up.
Near it i.e. some five inches away from it on either side were empty
numbering five in all.
It is my considered opinion, buttressed by P.W.5 Lt John
Hlabi Telukhunoana, that the gun shot wounds sustained by the
not have been inflicted at the place where the
deceased was found or that the cartridges fell when ejected from a
fired gun at the
exact spot where they were later found.
P.W.5 said if fired from a standing position the
cartridges would fall some two or three paces from the person holding
the gun. Hence
if fired 5 inches away from the body one would expect
them accordingly to fall two or three paces away from the body.
basing myself on the fact that the gun Ex."l"
was seen by the Court and estimated by P.W.5 who is very familiar
and ammunition to be five inches in length, one would
expect Che entry wounds to reveal considerable burns and the shirt to
sizeable quantities of soot opposite the entry wounds.
P.W.1 testified that with the exception of the gun
shot wound apparently fired at the region of the
deceased's mouth there were no indications of exit wounds. P.W.4
whose P.E. depositions were admitted did not give
evidence in this court. He owned up though that he was not an expert
on gun shot
wounds. He however testified that he discovered the
wound on the face to relate to the one on the right side of the neck
not say which was an entry and which an exit wound. P.W.1
said the exit one was that which was on the right side of the neck.
It is not clear what degree of thoroughness was employed
by P.W.4 in an endeavour to find bullets which must have remained in
body in view of the fact that P.W.1 found no exit wounds relating
to the four other entry wounds. It is thus startling to learn
P.W.4's evidence at P.E. that in his post mortem report regarding
examination of the body he is recorded as having said
"I did not find any bullet within the deceased's
His evidence was too sketchy and lacking in necessary or
useful details to be of much help.
In his post mortem report Ex."A" P.W.4 at P.E.
indicated that death was due to multiple gun shot wounds.
In the remarks portion of the report form P.W.4 shows
"death occurred apparently of gun shot wounds of
which the most lethal one is located in the head. No bullets could be
It would appear therefore that from the last sentence it
can safely be concluded that attempts at recovering the bullets which
in the deceased's body were not successful. This is in stark
contrast with this witness's oral evidence that no bullets could be
found. At first blush it implies that there were no bullets. The
truth appears to be that although bullets must have penetrated
the body and got inbedded in it they were not retrieved.
P.W.1's evidence then is corroborated on this score that there were
wounds in respect of four other gun shot wounds.
P.W.4 further observed that the maxilla was destroyed
and that the right lung tissue was also destroyed. It is
P.W.4 was not questioned about his basis for saying
in the Additional Observation portion of the report form
"It seems that all the wounds except the one
through the mouth were caused by firing a gun from a distance,
and that "the
work" was finished by a shot close through
Although on the basis that there is nothing in evidence
to support the view that the killing was effectively accomplished by
of the gun shot wound fired through the mouth , P.W.5's
evidence lends support to the view that the bullets fired at Che
must have been fired from a distance before the empty shells
were later collected and placed on either side of the body five
Nothing in the evidence shows the order in which shots
were fired at the deceased. But the fact that the post mortem report
Chat the pupils were wide, to me conveys the horror Chat
remained indelibly stamped on the deceased's eyes before life expired
P.W.4 also observed
"multiple penetrations through the maxilla and
upper lip; one on the right infraclavicular region, one just above
the right hepa(?)
and right inguinal region and penis (small wounds)
Outshot opening visible on right side of neck behind right ear."
P.W.1 testified that he collected the empty shells which
were lying on either side of the body one by one. On each of this
he observed that it was written 7.65.
From this figure i.e. 7.65 he concluded that the shells
belonged Co a 7.65 calibre pistol. He kept them in his possession.
Re undressed Che body and observed a wound above the
right breast. He observed another wound on the right side of the
was another in the pubic region. There was another on
the lower inner lip. He observed two other wounds behind the left
All these were small narrow and open wounds. This
witness who has been in the police force for upwards of 16 years
these were gun shot wounds.
It should be observed though that there are some
discrepancies between his evidence and Chat of P.W.4 as to the
locality and number
of wounds behind the ears. P.W.4 referred to
only one wound behind the right ear. P.W.I refers to two behind the
However through my calculations I have been able to make
out five entry wounds from Che doctor's observations.
In response to a radio message about the discovery of an
unidentified dead body kept at T.Y. Government mortuary of someone
Che deceased's description P.W.2 set out for T.Y. in the
company of Mrs Malikeleli Mokokoana. P.W.2 in his evidence mentions
Mrs Mokokoana. It would appear then that P.W.2 wade a second
trip Co T.Y. in Che company of the deceased's wife and 'Malikeleli
Mokokoana on Sunday 3.11.85. See page 40 of my notes regarding
According to P.W.2 he went there with Malikeleli on
Friday 1st November 1985. This may account for his mentioning
only when the first occasion for the identification
took place. According to P.W.1 this was two days after the dead body
collected from the veld. It would appear the body was
collected from the veld on 28.10.85.
Indeed on page 4 of my notes in reference to people who
came to identify the body P.W.1 mentions only two; namely P.W.2 and
Mokokoana. P.W.1 went further to say "the two
persons knew the deceased. They were friends apparently."
I may just add that on page 23 of my notes P.W.2 is
recorded as having said
"The deceased owned a car and a Mercedes Benz
truck. This was in 1985. I came to know on Friday 1st November 1985
that he had
died when I went to T.Y. to identify his dead body. I was
in company of Mrs Mokokoana. I identified it before Mr. Mpopo
It was at T.Y. I drove back to Maseru after identifying
the body. I went to inform the wife of the deceased at Upper
Thamae where they used to stay."
(Underlined for emphasis).
It was during the course of his investigations that
P.W.I eventually confronted the accused on 5th November 1985.
throughout the period between 27th October 1985 and Che
time of his arrrest on 5th November the accused had never set font at
home. His explanation was that he used to either knock
off late or had to put up some nights in the out-stations far away
Maseru in the course of his employment as a truck driver for
Lesotho Freight Services.
P.W.1 having identified himself to the accused at the
place of the latter's employment, informed him that he was
surrounding the deceased's death.
P.W.1 after giving the accused the usual warning took
him to T.Y. C.I.D. office for thorough interrogation concerning
The accused gave P.W.I an explanation following which he
led P.W.1 to Motimposo where they came face to face with P.W.2
at the latter's home.
This was on 9.11.1985.
P.W.I had already met P.W.2 for the time on the occasion
when P.W.2 had gone Co identify Che deceased's body at the funeral
P.U.1 formally told P.W.2 that he was a policeman and
had been led to him by Che accused. During this occasion P.W.1 was
in the company
of P.W.12 and P.W.3 Det/Tpr. Lelala.
According Co P.W.1 on arrival at P.W.2's place in the
company of the accused and Che two other policemen the accused spoke
Following that conversation P.W.2 produced a gun Ex.1 from
the grocery unit which was in a single roomed house serving as both a
kitchen and living room.
P.W.I then took this gun from P.W.2 and observed that it
was a 7.65 pistol.
This pistol actually belonged to P.W.2. It was a
licenced firearm. P.W.I opened the firearm: and noticed that it was
He showed It to the accused and asked him if it was the
firearm he had earlier spoken Co P.W.I about and the accused
it as such.
P.W.I cook the gun to T.Y. C.I.D. office. On arrival
there he gave the accused a charge of murder of the deceased Thami
It is to this charge before this Court that the accused
pleaded not guilty.
The gun and the five empty shells were sent Co P.W.5 for
ballistic examination in an endeavour to determine if Che shots
these shells were fired from this gun. The shells were
handed in by P.W.I marked exhibit 2. In his examination of the gun
cartridges P.W.5 was positive that Che cartridges were fired
from Ex."1". I have no hesitation in accepting his
on that score.
It is worth noting that at page 361 of his invaluable
book Firearms Investigation Identification andEvidence Major General Julian S. Hatcher says :
"Bulletsare slightly more important than cartridge
cases, since bullets actually do the physical injury."
I refer to this quotation only bearing in mind that no
bullets were extracted either from the deceased's body or collected
around the place where the deceased was found lying.
But taken along with the response elicited from P.W.I
under cross-examination the absence of the said bullets from the
course of investigation
till this trial to some extent makes Che
Crown's task less burdensome. In this connection P.W.1's response to
the question put will
help clarify the issue. This is at Motimposo
at the home of P.W.2:-
"You got there. The accused spoke to P.W.2 Makhama
there - ?
What did he say to Makhama - ?
He said to him 'the gun you had lent me is the one used
in the death of Thami Madona'"
The importance of the responses in the above quotations
cannot be overlooked first because they were elicited under
and secondly because in his submissions in argument
Counsel for the Crown pointed out that he delibertately refrained
this witness along such paths as he feared the contents
of the accused's reported statement hovered dangerously near
However if the words grounding the crown's fear were
rendered in P.W.1's examination in chief it would appear that such
fear was unnecessary
in view of the fact that the Court of Appeal
constituted by Schreiner P., Maisels J.A. and Milne J.A. (as they
then were) in a judgment
delivered by the last-named in David
Rex 1971 - 73 LL.R. at p. 85 held that
(i) The words used by the appellant should primafacie be given their ordinary, natural meaning and must
necessarily be the prime guide to the meaning of the person uttering
(ii) Although the surrounding circumstances may be
taken into account in deciding whether a statement
amounts to a confession, the fact that the appellant knew when he
the police were looking for him in connection with the
killing of the deceased could not have the effect of making his
confession of the offence with which he was subsequently
charged, as the statement did not exclude the possible defences of
or accident. Further, Che fact that it traspired at the
trial that if such defences had been raised they would not have been
could not operate to turn the appellant's statement to
the police into an unequivocal confession of murder."
Much was wade about the fact Chat things said in this
Court by P.W.1.do not appear in the P.E. record. But the text of the
if anything is very sketchy as against the record in the
instance court where more detailed questions were put Co the witness.
have no hesitation in finding that he is a truthful witness who
did not in my view try to say things which falsely implicate Che
accused.He mentioned that he has lost his note book on which he had
written serial numbers of the gun. He was taxed about the fact
nothing appeared on record to show he used his note book to refresh
or fillip his memory regarding numbers of the gun taken
But at page three of the P.E. record the numbers appear as reflected
on "Ex.1" itself. Regard being had
to the fact that the
P.E. was held almost nine months after the event and the figure is
so long i.e. No. 546547 the witness unless
he had a very good memory
for figures could not have landed on the correct figure of that
length after so long if he did not refer
Co the note book that he
told me he did. Moreover the record shows in respect of the wounds;
he referred to a note book. See page
2 of the P.E. record. I doubt
if he kept more than one note book for recording events surrounding
investigation of this case. In any event in relation to
the question that P.W.1 does not appeal on record to have refreshed
with respect to serial numbers of the gun, he did not say
yet another of his note books got lost, nor did he give me such an
when giving evidence in this court. This however is not
meant to encourage police to carelessly discard notebooks which they
later be called upon to resort to in an,attempt to substantiate
their testimony or test their memories.
P.W.12 corroborates P.W.1's evidence that the accused
was brought to C.l.D. office on 5.11.8b.
He told the court that he also participated in the
investigation of Che crime leading to today's trial. One other
On 9.11.35 Troopers Mpopo, LelalA and P.W.12 Det/W/O
following the explanation given to them by the accused set out from
Motimposo in Maseru.
They came to the home of P.W.2. Prior to that none of
them knew P.W.2's home except the accused who led them to it.
P.W.12 corroborates P.W.1's evidence with regard to
P.W.2 Caking the gun from the grocery unit and handing it over to
P.W.I in the
presence of the accused.
His own version of the words allegedly uttered by the
accused when coming face to face with P.W.2 is "Makhama bring
which you had lent me."
P.W.12 corroborated P.W.1 as to the identity of the
pistol namely that it was a 7.65 calibre gun bearing serial numbers
He further testified that on 11.11.85 he received
information regarding a Mercedes Benz Truck which was at Tsikoane.
This truck was parked at the homestead of Foto Ramaoabe
the husband of P.W.11.
AC this home P.W.12 found P.W.11 and her son P.W.8. The
truck was a drop-side white Mercedes Benz type bearing Maseru
Letter and Numbers A-4523. Its buck had been
removed. P.W.8 and P.W.11 confirmed Chat they told P.W.12 that the
Co the accused who had brought it there at night.
P.W.12 said he examined the truck and found nothing
untoward about it with the exception of the fact that its buck had
P.W.12 said he drove it to Hlotse police station. He
doesn't: remember where he got the keys from nor indeed if the truck
merely kept in motion by connecting its electrical wires. He
however recalls that it was push-started as the self-starter didn't
help turn the engine.
It turned out though that P.W.8 had been forced by
P.W.12 to drive that truck from his home up to a certain fraction of
the road leading
to Hlotse. P.W.8 who was not acquainted with
driving a truck switched places with P.W.12 who Cook the steering
wheel and drove the
truck to Hlotse Police Station.
P.W.12 Cold the court that on 12.11.85 he detailed P.W.3
who left T.Y. in the company of P.W.9 Senekane Raliile to fetch the
from Hlotse Police Station and bring it to T.Y. police station.
On 13.11.85 P.W.12 fetched the accused from the T.Y.
prison cells and questioned him about the truck.
The court was told by this witness that the accused said
he knew the truck and Chat it was the deceased's truck - further that
accused said he didn't know where it came from.
Thereafter the accused was returned to prison. Prior to
the investigations P.M.12 said he didn't know the accused. It was
that he gathered that the accused had been or was a
Under cross-examination P.W.12 said he must have made a
mistake when he said in 1985 he was stationed in Leribe and not T.Y.
he was stationed in T.Y. then.
Confronted with the legitimate question that at the time
of giving the evidence at the Preparatory Examination before the
events were relatively much fresher in his mind than today
he conceded that that was so but explained Chat the wrong information
supplied to the magistrate might have been a slip of the tongue -
this being that in 1985 he was still stationed in Leribe.
I think his explanation is reasonable regard being had
to the fact that in this court P.W.12 said under cross-examination
had been transferred from T.Y. to Leribe in July 1986.
Both this date i.e. July 1986 and the 24.12.87 appearing
on page 9 of the P.E. record the latter of which dates shows that the
at P.E. were postponed to 30.12.87 occurred before P.W.12
was called as a witness at the P.E.
Confusion may have arisen here because the P.E. record
appears to suggest that the accused at the completion of proceedings
level was committed for trial before this court on 16.6.86
whereas the truth of the matter is that proceedings at P.E. were only
started on that date i.e. 16.6.86. It is not shown when the
proceedings were completed.
However it is clear that at the time P.W.12 was giving
evidence as to events which occurred in 1985 while he was still
T.Y. he had subsequently been
transferred to Leribe.
P.W.12 was adamant that he was not present at the place
where and at the time when the body was found. He had only issued
from his office for the junior members of his staff to
attend to the matter.
P.W.12's attention was brought to a statement appearing
in the P.E. record on page 10 where this witness is recorded as
the following in reference to the accused "He
(meaning the accused) was not threatened or assaulted."
P.W.12 was asked if when he told the magistrate those
words in quotations he was at that stage being led by the public
or had uttered them voluntarily. He replied that he said
them on his own accord. He was told that he was prompted to say
words by the fact that he knew he had assaulted the accused and
was thus adopting a pre-emptive defensive attitude. P.W.12 denied
this accusation and explained that he volutarily uttered those words
to show that the accused had not been assaulted when he
made a statement before the police regarding the whereabouts of the
weapon alleged to have been used in the killing.
In the same manner that P.W.1 denied that he had
received information or clue from P.W.2 leading to accused's arrest,
denied this proposition when the question was put to him.
P.W.I had also denied that after arresting and
interrogating the accused he told the accused that P.W.2 had
told P.W.1 that
the accused was the one who had shot the deceased.
He further denied that the accused replied that since
P.W.1's informer told P.W.1 about the gun that informer would be a
person to reveal the whereabouts of the gun. He denied
the suggestion following from the above line of questioning that this
accounts for his party going to Motimposo. He
buttressed his denial by explaining that he went to Motimposo
following the explanation
given to him by the accused.
P.W.12 denied that his investigating team told the
accused through P.W.1 that P.W.2 had said the accused had shot the
He denied that during the investigations the
investigators asked the accused to produce the gun.
He denied that the accused said P.W.2 could know better
the whereabouts of the gun. He denied that it was on the basis of
obtained from P.W.2 that the party ended up at Motimposo.
Asked why he did not in his evidence in chief P.W.12 say
that the accused had said in reference to the gun "it was the
used to kill Madona" he replied that he thought he would
be disclosing a confession. Regarding this aspect of the matter
the authority of Petlane cited above is conclusive.
It seems from the above that P.W.12 has corroborated the
material and salient aspects of the evidence given by P.W.1.
The reason why P.W.12 set out for Tsikoane where he
found a truck was elicited from him in the form of a general
"Say what relevance had the truck to the death of
Madona - ?
Deceased Thami Madona left in a truck to go where the
accused had found a buyer for the deceased at T.Y.
You were terribly misinformed if this is Che type of
information you got - ?
It was correct information."
Under re-examination P.W.12 stated that the accused was
very free when he asked P.W.2 to bring the gun which P.W.2 had lent
with which he said he had killed
the deceased. He further stated that although it is
possible he didn't hear when P.W.1 asked the accused if that was the
question; whereupon the accused uttered his confirmation.
He stated that he might have not observed this because
it may have occurred at the time when he was confused by a soldier
a gun at him during that portion of the investigations.
He was adamant however that the confusion he felt was not such as
make him fail to see if the accused was not freely making his
statement at the time when he asked P.W.2 to produce "Ex.1".
P.W.2 Makhama Raliile testified under oath that he lives
at Motimposo, Maseru. He is an aircraft engineer working at
airport under the employment of Lesotho Airways Company.
P.W.2 and the accused are related. They are also known
to each other. Their fathers are brothers. He knew that the accused
a driver and had gone through various forms of employment. He
knew that at one stage the accused was employed by the Highland Water
Project. At another he used to work at Ficksburg. At some other he
was a soldier. P.W.2 does not know what the accused is employed
now; impliedly by "now" I am made to understand that the
witness refers to the period that the accused is spending on
while awaiting trial.
P.W.2 knows the deceased very well. He told the court
that the deceased and the accused were close friends.
The court learnt from P.W.2 that the deceased used to
repair and maintain motor craft. The deceased had a car and a
On Friday 1st November 1985 P.W.2 left for T.Y. to
identify the deceased's dead body.
On 9th November 1985 at about 1 p.m. or 2 p.m.
P.W.1 and P.W.12 came to P.W.2's home in the company of
the accused. P.W.2 only got to know P.W.12 on that day whereas he
P.W.1 earlier when he reported himself at T.Y. Charge
Office before proceeding to the mortuary in his company on
It is common cause that the accused knew where P.W.2
After the police introduced themselves and produced
their identity cards for P.W.2's benefit the accused said to P.W.2:
"David hand over that family gun - I have already
killed Thami with it - which you had lent me."
The court learnt that David is P.W.2's Christian name.
Asked by P.W.2 why he did such a thing the accused is alleged to have
by only bending his head.
Then P.W.2 opened the kitchen unit or grocery unit, took
out the gun and handed it to the police.
P.W.2 told the court that this gun is a 7.65 calibre
pistol with 7/8 loading capacity. He related its serial number and
his licence for its possession. It appeared to have been
licensed in 1983. The purpose for owning a gun was the result of
robberies at his father's shop in Maseru.
P.W.2 said this gun was at one stage in the accused's
possession not as a loan but rather for safe keeping. This was in
P.W.2 entrusted the gun to the accused's custody
because there had been a misunderstanding in P.W.2's family after his
His younger sister aged 17 had become rebellious.
In fact she is said to be still in that condition even today
resulting from misunderstandings
following on her mother's death.
She manifested this rebellion and or nervousness by driving
a van at one lady trying to knock her down with it but
It is for this reason that P.W.2 decided to take the gun
to the accused for safe keeping, first because the accused had been a
and as such would presumably know how to keep it. Next,
because the accused was virtually P.W.2's brother and he trusted him.
It was drawn to P.W.2's attention that this gun was
taken to the accused almost a year after P.W.2's mother's death which
triggered the dangerous attitude that the 17 year old
sister manifested. P.W.2 replied that the degree and intensity of her
was only manifested when she missed the other lady with a van.
It was then that P.W.2 became even more aware that his sister's
might lead to the death of one of the members of the
family. Made aware that the robberies for which the gun had been
continue unabated if the gun was in the accused's
custody. P.W.2 said there would rather be robberies than death in
the family caused
by his sister with that gun.
P.W.2 said he learnt that P.W.7 had come to his place in
his absence looking for the deceased on 29.10.85. He took notice of
seriousness of the deceased's disappearance when P.W.7 came to
him crying and saying that her husband had gone missing. This was
Then at about 9 p.m. while P.W.2 who apparently does not
take liquor, was enjoying his soft drinks at the Lake Side Hotel in
he met P.W.6 Michael Matsai. He told P.W.6 that he was
looking for the deceased who had" gone missing. Then P.W.6
that he had last seen the deceased in the accused's
company at Blue Moutain Inn at T.Y. Further that P.W.6 had said it
8 p.m. on Sunday 27.10.85 when he last saw the accused with
When P.W.2 left the Lake Side Hotel for his home he met
with someone who intimated to him a death announcement
by the T.Y. police over the radio. The description
of the subject matter of the announcement left P.W.2
in no doubt that it fitted the deceased. The
following day i.e. Friday 1.11.85 P.W.2 asked to be
freed for a day from his work and left for T.Y. in
the company of Mrs Mokokoana. Apparently he had met
P.W.6 on Thursday 31.10.85 at the Lake Side Hotel.
On that Friday 1st November 1985 P.W.2 identified the
body of the deceased in the presence of P.W.1.
P.W.2 suspicious that his gun might have been the one
used to perpetrate the crime told me that he went to the accused at
Freight Services to retrieve it from him on 7.11.85.
The gun was duly handed over to him by the accused. It
however did not have the number of bullets it had had when first
to him for safe keeping. Only two live bullets out of
the previous seven were handed over along with the gun to P.W.2.
Asked where the rest of the bullets were the accused is
said to have said that he had them elsewhere and that he would
in due course.
P.W.2 said he did not believe his suspicion that his gun
had been misused. That is why he did not take the gun to the police
retrieving it from the accused.
It would appear that P.W.2 is not accurate concerning
the date that he says he retrieved the gun from the accused on.
There is incontrovertible evidence that on 7.11.85 the
accused was already in detention having been in police custody from
of his arrest on 5.11.85. Nohow therefore could he have been
at the Lesotho Freight Services, the place of his employment on that
In short P.W.2 took the gun to his place and placed it
hidden and unloaded back into the kitchen unit. He
hid Che two live bullets somewhere under the carpet in
the house. Thus rendered it ineffective even if it were to fall into
hands for ill motives.
Under re-examination P.W.2 indicated that the manner in
which he was asked questions at P.E. differed from the manner
asked in this court. He further stated that he was
questioned for a very brief period by the prosecutor who was leading
He further stated that the accused when handing the gun
back to him had undertaken to bring back the other five bullets
he stayed. However though he was at the time staying at
Lithabaneng the accused nevertheless did not bring them.
P.W.2 said he did not get an opportunity to ask when the
accused would bring back the other five bullets for on 9.11.35 he
Motimpcso at P.W.2's place in the company of police
P.W.2 was adamant that before Che accused asked him to
produce the family gun he had not discussed Che question of that gun
police, either at T.Y. or at Motimposo.
He conceded though Chat Mpopo and Mokhele the two
policemen spoke about the gun but only after the accused had
introduced that topic
about the gun. He also conceded that he has
related more things in his evidence in chief in this court than he
did at P.E.
This witness is abundantly corroborated in his
concession that more things were asked of him in his evidence in
chief today than in
the lower court. For instance with a view to
finding cut how the deceased could have fared in a man to man fight
with the accused
the court asked this witness how the deceased looked
physically and the answer which does nt appear in the P.E. record was
"He was a good looking guy. Well built physically and of
Confronted with the fact that things were closer to the
event then than they are now he said he had more time to prepare and
on them in the meantime. However I am satisfied that the
fact of the matter is that P.W.2 was asked to give more details today
than was the case at P.E. The only point where he faultered, as it
indeed even did escape the keen attention of the learned counsel
the Crown, is the date when he purportedly retrieved the gun from the
accused. In argument this discrepancy-was not exploited
by the other
side nor was the witness asked to explain it. The submission by the
crown seems legitimate that this was obviously
a mistake. It would
seem therefore that P.W.2 retrieved the gun before the accused's
The question of the accused's conduct when asked by
P.W.2 why he did what he said he did - that he bent his head and said
has a parallel in the well-known authority of Jacobs vs
Henning 1927 T.P.D. 324.
Referring to the same authority Hoffmann in Che 2nd
edition of South African Law of Evidence at p. 143 says:-
"Thus in Jacobs vs Henning the plaintiff's
father met the defendant and accused him of being Che cause of the
girl's pregnancy, at which the defendant lowered
his head and made no
reply. Tindall, J. said:-
In my opinion, an innocent man, however unassertive
he might be, would deny the charge as soon as the plaintiff's father
I have no doubt in my mind that P.W.2 stood the
cross-examination well. Some importance is Co be attributed to the
fact that he said
apart from him and the accused noone else knew
about the movements of the gun Ex."1".
P.W.5 gave his evidence in connection with the tests
Chat he undertook to determine whether Ex.2 were ejected from Ex."1"
when it was fired. I am
satisfied that his evidence left no doubt Chat this was
so. Much of the cross-examination to which he was subjected was
questioning his qualification to holding himself out as an
expert in this regard and the consequent reliability of the results
his tests in the event that he was shown to be an inexperienced or
only an amateurish tiro in his professed field.
He has been a member of the police force for upwards
of 12 years. He is attached to Che ballistic section of the Police
Service Department. He was trained as a firearms examiner
in the Republic of Ireland. Before then he trained as a Laboratory
His total qualifications consist of a certificate in
Laboratory Technology and a certificate in firearms examination. The
of his evidence was that no two firearms can leave identical
marks or impressions on cartridges fired from them.
His experience in the field as a qualified examiner as
at the time he conducted tests in this case was admittedly minimal,
previously dealt with only one case. However his overall
experience gained from his training and the manner he conducted tests
in the instant case leave me in no doubt Chat they admit of no error.
Of importance is that it is today common knowledge that
no two individuals dead or alive have exactly identical sets of
On the back of this Hatcher in his book
referred to earlier says at p. 377:-
"No two bullets from different barrels ever are
similarly marked. We cannot say this after examining all the
the world, any more than the Fingerprint Expert can say
from actual experience that no two sets of fingerprints are ever
However, bullets are even more variable in their
It was testified by P.W.5 that the range of Ex.1 is 40
metres. He also said that entry wounds are usually smaller than
irrespective of the range from which the gun has been
fired. He further stated that in order for a fired shot to exit
from a human
body, it would depend what part of the body is hit for
if the bullet hits a bone it may change direction and lose power of
penetration and thus remain in there. But if fired at soft
flesh the shot will penetrate and exit on the other side. P.W.5's
was largely scientific. It held the court spell-bound.
Even though he stood in solitary isolation in this court as a man who
some training in ballistics, the quality of his evidence however
showed that the description of a mere Triton among the minnows
not sit well on him. As I said earlier the evidence of this witness
is so satisfactory that it is accepted in its entirety.
P.W.8 Sekonyela Ramaqabe who was utterly at a
lossregarding dates when matters he testified to occurred,and
who further compounded this particular defect in histestimony by
denying that he gave evidence before amagistrate at the
preparatory examination of this casetold me that he has read only
up to standard 1. Hetold me he was notorious for forgetfulness
andattributes this handicap to motor accident whichhe was
However he said there are things which he remembers
perfectly well even if their occurrence is further removed from the
date he related
them at T.Y. than today in this court.
He told me he knows the accused. Further that the
accused is his brother-in-law. P.W.8 lives at Tsikoane in the Leribe
He said that the accused called at his place some time
in 1985 towards the end of October. The accused
there at about 9 p.m. driving a white
Mercedes Benz Truck.
P.W.8 only remembers that there was a letter "A"
preceding the registration numbers of this truck. He does not know if
accused owned a truck. However he knows that the accused has a
white Toyota van.
The accused came to P.W.8's home, blew his hooter and
the latter saw through the window that there was a truck outside.
outside and recognised his brother-in-law; the accused.
The accused told him; "Brother-in-law this vehicle
is about empty of fuel. 1 have thus come to leave it here."
The accused didn't say where he came from nor did P.W.8
inquire of him about that. The accused was alone when he thus
After leaving the truck there the accused went towards a
vehicle parked some 80 to 90 paces away from P.W.8's homestead.
P.W.8 did not bother to see what this vehicle was that
was parked at the T-junction 80 to 90 paces away, moreso because it
heavily. However the vehicle locked to be a kombi. The
accused didn't say in whose company he was save that the kombi had
The path leading from where the kombi was parked to
P.W.8's home was slippery but notwithstanding that it was so, P.W.8
said it was
nonetheless usable even granting that the truck had made
it somewhat more slippery. P.W.8 has a vehicle himself and usually
it on that path even though it is slippery.
Prior to the accused's coming there on that night he had
only come there driving a van a long time before and it was not
When the accused left P.W.8 with the truck it was
raining heavily but he nonetheless braved that heavy
down pour and made for the kombi parked 80 to 90 paces away,
P.W.8 fearing that he himself would get soaked didn't
ask why then the kombi couldn't come to rescue the accused from the
the accused had said this kombi was escorting him. The
accused was not putting on any rain cloths though.
The following day the accused having collected the fuel
for the truck came alone in his Toyota van. He filled the tank with
diesel and started the truck.
He then asked P.W.8 to accompany him to his parental
home at Hleoheng near Hlotse so that the latter could help him
remove the buck
of the truck as he wanted to convert it into an
However P.W.8 declined to accompany Che accused as
requested. The accused then asked P.W.8 if he could think of a spot
village where the buck of the truck could be removed.
The spot was located. Boys came and helped the
two remove the buck outside Che village. This having
been accomplished the buck was left there and Che truck driven to
in a cab and chassis form by the accused.
The accused said the truck was his and that he was
leaving it at P.W.8's home. He further said he would come and fetch
it for purposes
of mounting the improvised body for a bus next time
since P.W.8 failed to accompany him for Che purpose to Hleoheng.
The accused left the truck there and drove away in the
van. His promise to come and collect the truck never materialised.
Indeed a week even passed after the promised day of his
return. Then P.W.8 learnt that police had come to
his home in his Absence in connection with this truck.
Be it remembered that P.W.12 said he proceeded to Tsikoane on
11.11.85 to fetch
this truck; and that it was on Chat day that he
asked P.W.8 to drive it to Hlotse.
P.W.8 when coming back from his errands and on learning
that the police had left a message for him not to leave his home on a
date, complied. It can safely be inferred from this then that
the date in question was 11.11.85.
On that day the truck was driven to Hlotse. P.W.8 was
in the company of two police who had come Co fetch the truck from his
They were escorted by other police in meroon four-wheel-drive
van to Hlotse. The truck was parked at the Hlotse Police Station.
Police then drove P.W.8 in their vehicle to T.Y. where
he spent the day.
The following day he made a statement to them. He was
confronted with the accused and they both admitted knowing each
P.W.8 was released to go home.
Under cross examination P.W.8 was told that at P.E. he
said the accused came to his home in November but today he said
in October. He replied that the Crown Counsel had said it
could have been in October or November whereas he himself thought it
have been in September. P.W.8 insisted that the accused when
he came back the following day after leaving the truck at his home
was driving a Toyota van bearing the letter "A" as against
"D" in front of the registration numbers.
He admitted not having told the magistrate that it was
raining heavily on the day the accused left the truck at his home.
is that he had forgotten about the heavy down pour.
Asked to account for the fact that he remembers today
what he had forgotten at P.E. when his testimony was closer to the
was testifying to he said
"it does happen that as you recall things gradually
there would be those which you find had occurred but you had
only to remember them now."
He testified that visibility extended only as far as 15
to 20 paces that night.
Asked how then he could have seen a kombi parked 80 to
go paces away he said the courtesy light inside it showed that it was
He went on in his explanation:
"that distinguishes between a big and a small
Asked to explain why the accused could have braved the
heavy rain despite having the escorting kombi in tow, he
said "I am still asking myself why it did not reach my, home."
Asked to account for the fact that despite his
insistence that he had previously made mention of the fact that there
was a kombi in
that vicinity such a statement does not appear in the
P.E. record he said he made only one statement; and it was before the
police. He said he doesn't remember repeating such a statement
"Is this the first time you remember giving
evidence before a court of law today apart from the police - ?
1 remember so.
There is a P.E. record here today. In it you are shown
as having given evidence before a magistrate - ?
I was called with my mother to Che office. I never gave
evidence in court.
In that office did you give evidence presided over by a
magistrate - ?
We were that day told of the hearing date and given our
Under re-examination P.W.8 told the court that prior to
the night the accused came driving a truck in a heavy rain fall the
had never come there during the night of a heavy rainfall;
nor did he come on any subsequent occasions at night driving a truck
He also said he remembered giving evidence only before
the police at T.Y. and that what he told them is substantially the
what he told this court, although he has been asked certain
other things here under cross-examintion including what he said he
told outside court. If anything this last bit serves to
highlight the degree of his naivety.
P.W.8 told me his accident which apparently affected his
memory occured in 1979. As a result of it he told me he even passed
and only came to in Hospital in the Republic. The accident is
said to have occurred at Hielbron.
He however said the statement he remembers giving before
the police was a sworn statement.
P.W.11 Malineo Ramaqabe is P.W.8's mother. The accused
is her son-in-law. She lives at Tsikoane.
She corroborates P.W.8's evidence that it was raining
heavily when a truck came to her forecourt at night on an
in October, she however recalls that it was during
the end of the month. She further said "I don't remember what
day of the
week it was. It was the end."
She also said the accused did not put up at her place.
Nor did the truck leave.
The following day the accused arrived in the morning.
P.W.11 corroborates P.W.8's evidence that the accused
had a van in which he arrived that morning.
The truck was driven away by the accused. When it came
back it was no longer having a buck mounted on its chassis.
The accused left the truck at P.W.11's home, and drove
away in the van. She says he didn't even greet her when during these
he saw her at her place on that day. Before then on
the occasions he used to come there he usually greeted her and come
house. She however did not ask him about this strange
During the second week of the accused's departure police
came. Since the accused's departure and before the arrival of the
the accused had not set foot at P.W 11's home. On the day the
police arrived P.W.8 was absent from home. P.W.11 told him that
had been there.
Then the following day which according to P.W.12 was
11.11.85 the police collected both Che truck and P.W.8. The truck was
by P.W.8 whom P.W.11 had never seen driving a truck
before. P.W.8 usually drives P.W.11's husband's van.
The police that came there that day according to P.W.11
were P.M.12 and P.W.6 Mokhele and Lelala respectively.
P.W.8 arrived back home at Tsikoane after three days of
his departure in the company of the police who had come to fetch the
P.W.11 told the court that she is now aware that P.W.8
is a forgetful person. She regarded herself as the one who is
Her evidence however showed the contrary at least in so
far as material issues are concerned.
Under cross-examination she said she did not remember at
P.E. being asked if it was raining heavily on the day in question.
remembers distinctly that it was.
She said Chat when Che accused arrived the following
day P.W.8 was not present. When told that P.W.8 said he was present
explained that she might have not been at the actual spot herself
because she keeps two places which are far apart. These are her
house and one of the houses belonging to her parents-in-law. She
occupies these places on an alternate basis; meaning that when
truck arrived she was at her in-laws place sleeping in there. Her
in-laws are no longer living.
Contrary to what P.W.8 said P.W.11 said that on the
following day when the accused arrived he was with some stranger.
There is also the discrepancy between P.W.8's and
P.W.11's evidence. P.W.8 said he was present when the accused
arrived that morning
but P.W.11 says P.W.8 was not there. Further
that when he drove away and came back with the truck without a buck
P.W.8 was not there.
But P.W.8 said he was actually with the accused
when going to dismount the buck and coming back after that.
However P.W.11 conceded that she may have forgotten for
these things happened a long time ago.
P.W.8 told me he gave evidence before a female member of
the police. I see on P.E. record that he gave it before Mr.
magistrate. At the same time I observe with regret
that the P.E. was conducted by no fewer than three different
of them is a lady magistrate. I should not be
understood to say it is regrettable that she conducted the P.E.
though. All I am trying
to say is that this may well account further
for the confusion that P.W.8 seemed to have laboured under in regard
to questions put
to him in an endeavour to establish if he was aware
what the sex of the magistrate who conducted the P.E. was. It
appears on P.E.
record that P.W.8's mother's evidence was taken
by a lady magistrate Mrs Machaha. Be it remembered that
P.W.8 and P.W.11 said they responded to Che subpoena together and
for each other after their evidence was taken at P.E.
P.W.9 Senekane Raliile testified that he resides at
Motimposo, Maseru. He is a businessman and knows the accused whose
P.W.9 knew the deceased also. He knew him from the time
when Che deceased and he used to live in Germiston together. The
was his employee driving his trucks from Lesotho to
Germiston and back conveying goods and groceries for P.W.9's shop in
He actually brought the deceasded to Lesotho and in this
respect regarded him as his own son.
Shortly before he died the deceased had vehicles of his
own; namely a Jaguar car and a 1417 Mercedes Benz Truck. The truck
had a buck and is described in commercial language as
The deceased used to park this truck at P.W.9's place at
When P.W.9 left Motimposo for Germiston on a Friday in
October the truck was still parked at his home. (It would seem
calculations this was on 25.10.85).
The deceased had intimated to P.W.9 that he intended
disposing of this truck by sale. Further that the accused had
secured him a
buyer for it. The deceased had told P.W.9 that the
accused and he intended going to T.Y. either the following day i.e. a
or Sunday to have the truck sold. The prospective buyer was
supposed to be at T.Y.
It was part of Che arrangement between P.W.9 and the
deceased that the deceased should meet P.W.9 in Germiston on the
the prospective sale of Che truck. However the
deceased never came to P.W.9 in Germiston.
P.W.9 learnt on a Tuesday that the deceased had died.
Then he proceeded from Germiston to Lesotho either on Wednesday or
He ultimately went to T.Y. where he also identified the
body of the deceased. Then he went to the police who had called him
T.Y. police station. They took him to Hlotse Charge Office where
he found the same Mercedes Benz truck which he knew parked at Hlotse
A word of caution here. Be it remembered that the truck
was only brought to Hlotse police station on 11.11.85 according to
Be it remembered also that P.W.2 only knew for certain that
deceased had died between 31.10.85 when he heard of the description
answering the identity of the deceased and 1.11.85 when he positively
identified the dead body at T.Y. mortuary. These factors taken
with P.W.9's reply to a question put by one of the gentlemen
assessors that he learnt from P.W.2 on a Tuesday following the
of the aborted meeting between P.W.9 and the deceased in Germiston,
would tend to show that P.W.9's recollection of the dates
inaccurate. If the Tuesday that immediately followed his parting with
the deceased is 29.10.85 (and I can think of no other) how
P.W.9 have learnt of deceased's death on that day from P.W.2 who only
knew of that death two or three days after it?
It is not clear though, how long the deceased's body
remained at the T.Y. mortuary. However I entertain no doubt that
P.W.9 saw it
at the T.Y. mortuary. But it seems it was much later
than the dates which the purport of his evidence tends to convey. I
to this end by the fact that he said the body was
already decomposing and smelly hence he could not examine it as
closely as he would
have desired. Whereas other witnesses who saw
it between 1st November and 3rd November had no complaint about the
stench of the
body. Moreover in his evidence P.W.9 makes no break
between his identification of the body and his setting out for
Hlotse Police Station where he identified the truck
without the buck.
Even at the cost of precious time I wish to repeat and
emphasise the point by reference to his evidence in chief, viz:
"I identified the deceased's body. I went to the
police who had called me to T.Y. police station. They took me to
I found the same mercedes benz truck which I knew at
Hlotse police station."
It should be borne in mind that the truck was brought
there only on 11.11.85 hence P.W.9 couldn't have seen it there before
Furthermore Che above extract from his evidence implies
that the events he relates i.e. identifying the body and the truck
a continuous occurrence.
Barring these discrepancies as Co Che date I have no
doubt concerning P.W.9's identity of the truck and its buck.
Moreover it had been suggested to him that the truck he
identified at Hlotse was different from Che one parked at his place
latter had not "budged" from his place. But
credible evidence showed Chat it had not only budged but had had its
stripped from it at one stage way cut near P.W.8's village at
Tsikoane. The same truck was identified by P.W.9 at P.E. as the one
that the deceased had parked at P.W.9's place.
Bearing in mind Chat both P.M.2 and P.W.9 are related to
the accused and no hostility surfaced as likely to have affected
with Che accused,the words of Schutz P. in C. of A.
(CRI) No. 3 of 1984 Thebe vs Rex (unreported) at p. 20 are
worthy of mention, namely:-
"To my mind the evidence should be accepted as
true. It is very difficult to believe that the witness
would have fabricated this story against his own cousin
to whom he bore no hostility."
It is also noteworthy that after confessing to the court
that he deliberately withheld the information that the deceased had
M10,000 on that truck as its prospective sale value he
divulged that information.
P.W.6 Michael Matsai gave evidence which showed that he
was the one who found Che deceased and the accused seated in the
van drinking beer near the Blue Moutain Inn at T.Y.. He
observed that they were engaged in a hearty conversation. It was
6 p.m. when he came next to the van and leaned against its
door to greet the occupants who were in its cab. He did not know if
the two were friends but, had seen them walking together on at least
four previous occasions.
P.W.6 went into the hotel leaving these two seated in
the accused's van. When he came cut of the hotel on his way home at
7 p.m. on Chat day he didn't see any of them, nor the van in
which they had been seated.
Although P.W.6 is not sure of the date, he remembers
that this was during a weekend in October. He does not remember the
But of significance is that some five days or so
thereafter he learnt that the deceased had died.
It is P.W.6 who, even though he hod known that P.W.2 had
intimated to him that he was looking for the deceased, did not inform
with whom he was at Lake Side Hotel that from a conversation
held by some people four paces away from where he was, he overheard
them say that the deceased was found dead somewhere. He however
stated that due to P.W.2's proximity to those casual
P.W.2 might also have heard the sad news.
P.W.6's failure to confirm that P.W.2 had heard the
startling news was based on the fact that he was staying
far in the mountains and because it had been raining
heavily the roads were very bad.
The startling thing about P.W.6's evidence is that in
answer to the following question
"you stayed for two hours after hearing the
startling news without telling P.W.2 notwith- standing that you
feared that the
roads were bad - ?"
he replied that
"Well when I heard the startling news P.W.2 was not
Then came the following :
"But did I hear you properly in answer to gentleman
assessor's question to say when you heard report of this news P.W.2
May be I didn't hear properly. The truth is that P.W.2
was absent when I learnt that the deceased had died."
If indeed this is the position one wonders what becomes
of this witness's elaborate and factual picture he painted of the
the following is revealed in his evidence under
"You said you later learnt after three days or so
at Lake Side that deceased had died - ?
Where was P.W.2 - ?
I was with him at Lake Side Hotel.
Could P.W.2 have heard - ?
He could have heard. The voice was loud. He was only
four paces away from me.
Was it before or after he said he was locking for the
deceased - ?
I don't remember. Did you approach him about the
you had heard - ? No.
(Court) Did it startle you - ? Yes.
(D.C.) Why did you not approach him in view of the
that .... he was looking for the deceased - ?
He asked where I had seen deceased last. I said at
Whatever the case may be the upshot of this witness's
evidence is that he was the last man who saw the last man who was
with the deceased
before the latter was found dead the following day
P.W.3 Detective Trooper Lelala's evidence supports that
of P.W.12 as to the events which took place at Tsikoane on 11.11.85
Hlotse later that day. He is the one who clarified the
position by stating that whereas P.W.8 initially drove the Mercedes
he failed to maneuver it properly. Consequently P.W.12 took
over after some estimated distance of 200 metres. P.W.12 had said he
had driven it all the way. His lapse of memory in this regard is
pardonable. P.W.8 said he himself drove it all the way. His mother
carries modesty to excess when she holds her son's memory in higher
esteem than hers.
P.W.3 also supports P.W.9's evidence as to trips which
were taken the following day between T.Y. and Tsikoane for purposes
the buck from outside the Tsikoane vilage. That is
This is the witness who handed in the truck as exhibit
before the court below.
His evidence is important in that he maintained contact
with this truck and focused his gaze on it at three different places
at Tsikoane where it had been left without a buck; at Hlotse
where it was brought and taken back to Tsikoane to have the buck
T.Y. where he ultimately handed it in as an exhibit.
His evidence is important in that his contact with the
truck ensures that the truck that was exhibited is the same one that
seen in the various places. This evidence is important
standing as it does in stark contrast with that of the accused who
this court to entertain doubts that the truck that was
exhibited was merely similar to the one which had remained parked
a "budge" from P.W.9's home. The accused further
wanted the court to entertain doubts that the truck that was
at T.Y. was only similar to the one that he left parked at
It is common cause that P.W.3's evidence in this court
is more detailed than that which he gave in the court below. His
for this is most satisfactory; namely that the public
prosecutor in that court did not lead him on finer details of what he
knows. It is for this reason that he did not tell the court
below that he was among the party who went to P.W.2's home at
This is the summary of the crown evidence at the end of
which an application for the discharge of the accused was made but
down on two grounds :-
First that on the basis of the ruling in R vsHerholdt and 3 Others 1956(2) SA. the test to be applied
in deciding either to grant such an application or refuse it consists
in the view that if attendant
"might be such that a failure of justice could
possibly result if an accused person were to be discharged at the
close of the
prosecution even though (the prosecution) has failed to
present a necessary degree of evidence"
the application should be refused. Next that :-
"... the test to be applied in an application of
the present nature is not, whether there is evidence upon which a
appear he had met this stranger at the deceased's
Asked where he met the stranger the accused said
"I explained that after parking my vehicle in front
of the deceased's house I got into the deceased's house with him."
"The way you explained it I took it that it was in
the forecourt -?
I said it was in front of the house for I even said it
was as far as that table (i.e. estimated as 5 - 6 paces)
(the accused was in apparent agony and took an unduly
long time before giving this estimate).
You heard P.W.7 give evidence -?
She said you came in the same vehicle with the stranger
She has to say that because we got in together into
The witness did not say she supposed you came together
with the stranger. She positively said you came driving in the same
with the stranger -?
I don't deny she said that.
Nor do You deny the correctness of her statement - ?
That I came along with him in my vehicle I deny.
... Yet this witness was never challenged under cross
examination - ?
It is true but when I arrived P.W.7 was in the house not
outside. So she didn't see when I arrived in the vehicle.
Why didn't you gainsay her on that aspect when she gave
evidence - ?
I didn't get the chance for I was still in that dock.
What's the role of my learned friend on my left hand
side - ?
He is my counsel.
Then your saying that you didn't have the chance is
neither here nor there, for you should have told him
your own side of the story - ?
I didn't know that if someone lies about me Ihave to
call him to say that the witness is nottelling the truth ."
The accused answered that his counsel is compei-tent;
and 1 fully agree with him. For this reason it becomes doubtful if
would not have challenged P.W.7's version on behalf of
the accused if the accused's version before this court were true. It
to be wondered why a distance a fifth or sixth pace away from
Che front wall of Che deceased's house should not be regarded as part
of the deceased's forecourt.
In his evidence in chief the accused proceeded to say
that from the deceased's home the three of them left for T.Y. hotel
to check on P.W.2 who apparently was absent. They
reached T.Y. at 2.00 p.m.
On arrival at T.Y. they remained in the accused's van
for a while before the deceased asked the stranger to go and buy beer
accused and the deceased.
The stranger who had been given money for the purchase
of beer handed a dozen cans of beer to Che two who had remained in
The stranger went back to the hotel while the two remained
drinking the beer.
The deceased alighted from the van after the stranger
had deposited the purchase of beer in the cab. The deceased and the
went into the hotel. But before the deceased went into the
hotel P.W.6 had found Che accused and the deceased seated in Che van
After the deceased had gone into the hotel the accused
says he left in his van to fill in petrol about one kilometre or two
convict, but, whether the evidence presented by the
prosecution is such that a reasonable man, acting carefully, might
That application failed to meet either of the tests
referred to above, hence was refused.
The accused then gave evidence in his own defence.
By way of introduction to the accused's testimony
it is important to mention that during the course of his evidence the
revealed that the deceased used to deal in stolen vehicles.
Despite the accused's knowledge that this was the position he told
court that he nonetheless bought the mercedes benz truck from
the deceased. He did not bother to report these illicit transactions
to the proper authority because the police to whom the deceased was
used knew of this practice. It never occurred to the accused
report to the other police whom the deceased was not used to.
The accused told the court that he is 28 years of age;
and that he is a licensed lorry driver.
On a Saturday either in October or November 1985 the
accused met the deceased who asked him to accompany him to T.Y. where
had told the accused that he was due to meet someone who
was interested in buying the deceased's truck.
The accused and the deceased left for T.Y. in the
company of a stranger who appeared familiar to the deceased.
On page 125 of my notes on the accused's evidence he is
recorded as having said
"I met this unknown man on my way to the deceased's
place. He was next to the deceased's home. He asked if I was going
deceased's home. I said yes. So we proceeded together to the
The distance where the stranger was from the deceased's
home when the accused met him was estimated at 5 to 6 paces. Yet the
vehemently denied that it would
The accused then returned after some thirty minutes and
remained in the vehicle hoping that the stranger and the deceased
back to him in the vehicle where he had parked. He stayed
for a long time in that van till he decided to enter the hotel
for them but to no avail.
He then sat down and took some beer drinks. He no
longer saw P.W.6 in the hotel. The accused remained there until
11.00 p.m. when
he realised that the deceased and the stranger could
not possibly still be in the hotel hence left for Maseru in his van.
The following day (i.e. Monday) the accused left early
for Mohale's Hoek where he was to make some deliveries in the Lesotho
Services lorry. He didn't return till Tuesday the following
He explained that the Lesotho Freight Services trucks
one of which he drove, are not allowed to go anywhere besides where
assigned to go.
The accused never saw the deceased again after parting
with him at T.Y. He got to know about his death when he went to T.Y.
arrest. He was informed of this by P.W.I, The accused was
arrested at his place of work by P.W.1 in company of some two other
P.W.I took the accused to T.Y. while the other two
policemen remained at the Maseru Central Charge office.
When he and P.W.I came to T.Y. P.W.1 asked the accused
if he knew Thami. The accused said he did. P.W.12 and P.W.3 were
together with some other policemen at this stage.
The accused was asked where Thami was. He replied that
he didn't know. Further questioning revealed that the accused and
were last together at T.Y. hotel and that the accused
saw the deceased and the stranger get into the hotel there.
P.W.1 asked the accused if he knew Thami was dead. When
the accused replied that he didn't, P.W.12 said to him that he hod
told Che truth and that he was yet to tell it.
After a short break for the day meal the police resumed
the earlier questioning. When the same answers were given the police
ordered the accused to lie face down on a bench and assaulted
him. The accused said he was assaulted to Che extent that he was
to walk. When he asked P.W.12 Co allow him to consult a
medical doctor P.W.12 said he would shoot him if he could learn that
accused saw a doctor at all.
Then P.W.1 said the accused should admit that he had
killed the deceased for then the police would pardon him.
P.W.1 went further to tell the accused that he had
learnt from P.W.2 that it was Che accused who had killed Che
Che accused denied this allegation.
I need but at this stage just observe Chat it was never
put to P.W.12 when he gave his evidence Chat he at any stage
shoot the accused if he consulted a doctor about the
alleged assaults. I have earlier dealt with P.W.12's reaction to the
that he participated in Che assaults on the accused.
Then a somewhat curious and rather incomprehensible
statement was made by the accused allegedly being the answer he gave
when P.W.1 alluded to the fact that Che information that the
accused had killed the deceased was obtained from P.W.2.
The statement goes:-
"I told Mpopo that I didn't have any gun. Maybe the
person who Cold him that is P.W.2 for he is the one who owns a gun."
The accused's tale proceeds that thereafter he was taken
from T.Y. to Motimposo and he thinks that it was on the following day
he reckons was a Wednesday. But incontrovertible evidence by
P.W.12 P.W.2 and other witnesses shows that the trip from T.Y. to
was undertaken on Saturday 9.11.85.
When the party came to P.W.2's home at Motimposo, P.W.I
and some other man said to the accused that he should tell that man
P.W.2 to produce a gun. The accused complied with the
instruction. P.W.2 produced a gun and handed it to P.W.1. The
know this gun. The accused denies that P.W.I asked
him if that was the gun. He denies that he admitted it to have been
when P.W.2 handed it to P.W.1.
The accused denies that P.W.2 ever gave that gun to him
to hide from P.W.2's worrying sister.
He denies that the gun was fetched from him after the
owner suspected that it had been used for some unlawful purpose. He
that he was ever questioned about the five missing bullets
nor that he undertook to return them as he had left them at
In his evidence in chief the accused said they were friends
with the deceased. But at paragraph 6 of his affidavit in
CRI/APN/243/85Sehlabaka vs Rex (a bail application) the
accused said that he (the petitioner then) and the deceased were used
to each other but not friends. The
accused's attempt at reconciling
these starkly conflicting statements given by him both under oath to
this court at different times
was a pathetic welter of meaningless
verbiage. See page 157 of my notes. Contrast with 131.
The accused said the deceased had motor vehicles namely
a Jaguar car and three Mercedes Benz trucks.
Despite his denials that P.W.2 ever gave the gun to him
and later fetched it from him with only two bullets
cut of Che seven which P.W.2 said he had given to him it
was never put Co P.W.2 that his allegations Co that effect were
accused acknowledged that P.W.2's evidence in this regard
was not gainsaid but nonetheles wishes the court to reject it in
of his own fresh version of denials.
I may just make it plain that the court's credit to a
witness's testimony is never given cut with Che rations. Hence the
therefore say ditto to a submission seeking all Che same
to support the accused's wish.
It will be remembered in this connection that the court
had to read back Che entire evidence of P.M.2 under cross-examination
at Che end of it all Che purported challenge to P.W.2's
statement was found conspicuously wanting. Asked Co account for this
hollow in his defence Che accused embarked on a pitiable
exercise in evasion.
The accused admits as true the evidence that he was seen
at Tsikoane driving a Mercedes Benz truck.
He goes further to say when he left for T.Y. with Che
deceased and the stranger he had had this truck for two weeks . He
it for M7,000 from the deceased and had already paid
M4,000 in the transaction.
He also said that when he left for T.Y. he had already
left this truck at Tsikoane for about two weeks.
Under cross examination he admitted that it is possible
he could have bought this truck around 13th or 14th October 1985.
The accused is adamant though that when the deceased
died i.e. around 27th or 28th October 1985 Che truck had already been
for two weeks.
But incontrovertible evidence shows that the truck
was fetched from Tsikoane on 11.11.85. Further evidence
shows that by that date the truck was enduring the second week of the
of its stay there. Calculating backwards two weeks from
11.11.85 it would seem the first week of the truck's stay at Tsikoane
not have been far earlier if at all than 28.10.85. Regard
should also be had to the fact that on 26th October 1985 P.W.9 had
it still parked in his yard at Motimposo. Further that on
27.10.85 when the accused and the deceased left for T.Y. the truck
not "budged" from P.W.9's place.
It is palpably false therefore to say this truck had
been at Tsikoane two weeks before the accused and the deceased set
out for T.Y.
But is it the same truck?
The argument has merit that the accused was not obliged
to challenge P.W.12's evidence that P.W.9 identified the truck as the
because P.W.12's statement to that effect was in the
nature of hearsay. However in his turn P.W.9 positively identified
But again is it the same truck? The following will show
it is. At page 171 of my notes it appears that the accused admits
is the only one who speaks about the deceased having had
three trucks; namely
the one that used to be parked at P.W.9'splace;
the one sold to Khotso at Mohale's Hoek and
the one the accused says he bought.
He admits that if the deceased had three trucks P.W.2
and P.W.9 would know.
The verbatim account will help clarify the issue
"If deceased owned 3 trucks P.W.2 and P.W.9 would
know - ?
They know them very well.
P.W.9 only talks about a truck the deceased was running
and it was identified by him to the police. The other is the one the
had sold to Khotso in Mohale's Hoek - ?
He said so.
Can you say why P.W.9 subtracts one and says the
deceased had only two trucks - ?
I know the one I bought, another that was sold
to Khotso and the other one that the deceased ran.
(It should be clear that once more in this answer the
accused manifests his persistence in giving evasive answers).
You forgot the one that you said was left at P.W.9's
place - ?
I can't say if it is the one at (T.Y.) Charge Office.
Are you not somersaulting now - ? No.
I thought you said the truck left at P.W.9's place never
'budged' from there - ?
I said I didn't know if it moved from there for I have
not gone there since.
And you knew it - ? Yes.
Why then wouldn't you be able to identify it at Charge
Office as a truck that you left when you and deceased went to T.Y. -?
I saw a truck similar to the one left at P.W.9's place.
Why then when I asked if the truck at P.W.9's place had
moved, didn't you say: 'I saw a similar one at the Charge
Office - Similar
to that I left at P.W.9's' - ?
I saw one similar at Charge Office. (Question Repeated -
It didn't occur to me to say so."
In his haverings and evasions the accused is hard put to
it to deny that he has now forgotten the truck which he said was left
at P.W.9's place. This truck would bring the total of the
trucks he mentioned to four. Be it remembered that the one he says
from the deceased he mentioned used to be parked at
Masianokeng - hence P.W.9 or anybody would not know about it.
I should mention here that the court was informed from
the bar that this truck was released by order of the High Court to
owner from the Republic of South Africa. Unfortunate
as that seems to be it does not seem to affect the identity of this
the various places it was taken to provide an unbroken
silver thread through evidence before me.
Finding that he has hopelessly entangled himself in a
web of lies of his own making he impliedly admits that the truck
parked at P.W.9's
had "budged" from its parking place by
"I can't say if it is the one at the charge office.
But it is now known that the one at charge office is the
one that was once at Tsikoane driven there by the accused and later
to Hlotse Charge Office by P.W.8 and P.W.12; then ultimately
to T.Y. Charge Office by P.W.3, P.W.9 and another policeman..
Meantime the accused denies, even in the face of this
admission forced on him by very rational and logical questioning by
that he is somersaulting. This obviously placed the
accused in a cleft stick and he couldn't say why P.W.9 should not be
when he said the deceased had this truck that the accused
claims as his and the other that was sold to Khotso and none else.
the one that he could possibly sell at the time was the former
and not the latter.
Why then should the accused purvey all this tissue of
lies regarding the truck that was at Tsikoane?
It seems to me that the reason for lying thus can be
none other than that the accused wishes to show
that during the last two weeks or more of the deceased's
life the accused's title to this truck was never disputed by a
could possibly have had the right to do so. In an attempt to
buttress this attitude the accused seeks to create and convey an
that, if during the two days he was seen with this truck
at Tsikoane even treating it as his own by openly dismantling it,
by the man from whom he purportedly bought it, who then
would be there to challenge his right to it after the deceased's
on what grounds!
Be it remembered that at page 173 of my notes the
accused says he had bought it 2 weeks before leaving it at Tsikoane
for two weeks
before the deceased's death. This would mean he
bought it around the beginning of October. All this has been shown
to be false
The portion of the accused's alleged statement which was
elicited from P.W.12 by the defence in its cross examination of that
was corroborated by P.W.2 to the extent and effect that the
accused said he had used "Ex."l" to kill the deceased.
When the accused allegedly made this utterance and the
one preceding it namely that P.W.2 should produce Ex."1"
had lent him the accused was not being assaulted.
There was persistently a suggestion put to crown
witnesses concerned that they had learnt from P.W.2 that the accused
is the culprit
in the killing of the deceased. This suggestion, it
is alleged, derives from the fact that P.W.2 had had previous contact
police when he had gone to identify the body at T.Y., thus
implicitly this suggestion derives from the fact that P.W.2 said he
that his gun had been used in the commission of a crime.
The first branch on which this suggestion is based is
flawed on the ground that if the police had had such prior contact
on the basis of which they would have known it was his gun
which had been used they would not have required the accused to lead
to P.W.2's place, for by its nature the type of information they
would have got from him would have required them to find out his
residence from P.W.2 direct.
The second branch is self-defeating because if P.W.2
suspected that his gun had been used mischievously then he took steps
that it did not cause any further mischief. In his own
words when his nose was rubbed in it that through his negligence his
had been misused, P.W.2 said "once beaten twice shy".
It was never put to P.W.1 that he promised the accused
that the police would pardon him if he admitted that he had killed
This was heard for the first time in this court when
he gave evidence in his defence.
As proof that the accused was prevaricative when giving
evidence, he admitted that the simple answer to have given to the
who he alleges told him -that P.W.2 had told them that the
accused had killed the deceased - would have been "he is lying.
I didn't," instead of the one that he allegedly gave, namely
"(Mpopo) I don't have any gun. Maybe Makhama who told you
is the one who owns a gun." He admits that it would have been
easy to say the former statement.
Asked then why he didn't give that simple answer but
instead introduced the question of the gun he said
"I said he might be having a gun because police
said he said I had a gun."
The question was repeated and his answer was :-"Because
he implicated me about the question of the gun so I also had to
Asked again if it was not easy to have said "Makhama
was lying. I didn't shoot a person" he admitted it was easy.
"Why didn't you say so then - ? I don't know why I
answered that way.
I have an answer; it is because if this is what you told
the police then you knew the gun was at some stage in your possession
That is not so. It never.
I'll show: Following the reply you gave to the police,
would they have taken you to Makhama - ?
Still they would have taken me to Makhama for they said
Makhama said I shot the deceased.
Why would they have to go in your company to Makhama - ?
They required to go in my company because I said I had
no gun maybe Makhama -----
Why would they have required you to lead them to
Makhama's place when from your own version they must be spoken to
Makhama about you
in which case they must have known the identity or
locality of Makhama's place - ?
I don't know.
What did you say to Makhama - ?
That he should produce a gun.
Stopped there - ?
Did you know him to own a gun - ?
Why did you say he should produce one then - ?
Because he said to the police I had shot a person."
The defence did not challenge the evidence of P.W.12
which showed that the accused said P.W.2 should produce the gun. The
that emerged was in regard to the fact that P.W.12 had
not in his evidence in chief stated that the accused had also said he
killed the deceased with it. Cross examination is in many ways
similar to the art of fishing. Sometimes it is the fish that takes
the bait, at other times it is the serpent.
In both cases the fisherman should be content with the
catch with which he is saddled. Taking the fish and the serpent
thrum is the rule of the game.
The accused said he and P.W.12 are not enemies and could
not say why P.W.12 should implicate him falsely.
He acknowledged contents of his affidavit which he swore
to in an application for bail heard by the High Court on 15.11.85.
that in paragraph five of that affidavit he had sworn
that he parted with the deceased very late at night on 27.10.85 -
Yet in these
proceedings today he said he last saw the deceased only
at 6 p.m.
The court took judicial notice of the fact that the hour
six strikes while it is still very light on 27th of October. See
of sunrise and sunset at Johannesburg Standard Time of
South Africa" in the Hortors' Legal Diary for South Africa for
18. The time difference in sunrises and sunsets between
Johannesburg and T.Y. would be a matter only of seconds.
Confronted with the two conflicting sworn statements as
to when he parted company with the deceased he gave a garbled account
issue mixing it with rambling irrelevancies.
"Paragraph five reads '
'I parted with the deceased very late' - ?
That late was when I left because of not seeing where he
How do you part company with one who is not with you -
who was not physically present - ?
I was with him. Till going. I don't deny that I parted
with him but ....(inarticulate mutterings followed by silence showing
inability to give satisfactory reply).
Why deny the obvious. Isn't it because you bear a hand
in the death of the deceased - ?
The accused said he was concerned about the welfare of
the deceased when he left T.Y. at 11.00 p.m. Yet he did not report
the hoteliers there or to the police charge office which is
near by that he was worried that the deceased was nowhere to be
He said he didn't do this because he thought the deceased had
hired transport and left for Maseru. In the same breath he said he
thought the deceased was with friends at T.Y. Asked why he didn't
then go to the deceased's house to at least let his wife know
this matter which had aroused his anxiety he said it was ton late;
moreover he did not want to "fink" on (meaning
the deceased in case he bad : slipped off to spend the night with
Confronted with the question that the lateness of the
hour didn't appear to bother him for he had, according to his
no less than five hours awaiting the deceased's
re-surfacing at the T.Y. hotel - so how could a further fifteen or so
him if he spent that amount of time reporting to the
deceased's wife at Upper Thamae on his way to Lithabaneng, he said
not occur to him.
Granting then that he went to Mohale's hoek on Monday
and did not come back till Tuesday in the evening he was asked why he
that Tuesday or on any subsequent days before his arrest take
steps to either find out from the deceased's wife if he had
surfaced, or inform her of the circumstances under which
the deceased and he had parted, he said he was usually tired as he
off around 6 p.m. or 7 p.m.
It would seem then that the accused valued his sleep or
leisure far above his so-called friend's welfare or the letter's
Thus it would seem the deceased's wife's anxiety
would be an unwelcome infliction on his leisure or sleep. Regard
being had to
the fact that unassailed evidence showed that the
accused used to visit the deceased's home once or twice a week, and
that more than
interspersed by a weekend had elapsed before the
accused's arrest, his failure to show up at the deceased's home could
not be solely
attributable to exhuastion after work or the baseless
belief that the deceased might have surfaced. Especially when
account is taken
of the circumstances he alleges he parted with the
deceased under. Hence the submission is legitimate that the accused
going to the deceased's home because he knew what had
occurred to him.
In my view it cannot do to say the accused need not have
got unduly flustered about the deceased's non-appearance because in
he and the deceased used to part without any ceremony or
ritual. T.Y. is not Maseru. T.Y. is more than 25 km away from
The accused knew that to get to T.Y. the deceased depended
entirely on the accused's transport. Likewise, to get back from T.Y.
Maseru he should have expected that the deceased would depend on
the same transport. In this connection the accused's attitude
the deceased smacks of unwholesome callousness. Such
callousness coupled with the fact that the accused did nothing for
a week to allay P.W.7's fears or P.W.2's anxiety about the
deceased is not inconsistent with the proposition that the accused
more than he is willing to reveal about the deceased's fate.
Of a piece with his prevarications, when asked :
"According to you who led the police to Motimposo -
?" he replied
"I went with them."
It was after the question was repeatedly put and only
when the court warned him to answer it that he said
"I led them".
"For what purpose - ?
Mpopn said Makhama had said I had shot a person. I said
it was Makhama who had a gun.
Why did you say so - ?
Because police said Makhama said I had shot a man and I
said he might be the one who had a gun.
But police were not asking if Makhama had a gun - ?
The problem is; What you say is illogical and untenable
To me it is logical."
The accused wants the court to believe that it was out
of his concern for preservation of the deceased's marriage that he
wish to say anything about the deceased's disappearance lest
he arouse suspicion in P.W.7 about the deceased's deviation from the
path of marital virtue, yet for a whole week and some days he didn't
bother to at least meet the deceased and admonish him about
awkward position the deceased had put him in by his philandering
The accused told me that he was careful not to go got
drunk because he knew he was going to drive from T.Y. to Maseru
up hope that the deceased would join him. On his own
evidence it would seem he was not drunk that day despite the intake
he had had. It may be so in view of the length of time spent
in drinking the quantity given.
It is interesting or even amazing to note that at page
64 of my notes when being cross-examined about the kombi that P.W.8
escorted the accused to Tsikoane it was vehemently put to
"the allegation that there ever was a kombi in the
vicinity is a figment of your imagination - ?
I deny what you say. I am telling the truth.
Moreso because before the magistrate you did not say
there was a vehicle in the vicinity - ?
At the place where I made my statement I said the
accused had left a vehicle on the way. I even said I
didn't know in whose company he had been in that vehicle."
Yet on page 175 in sharp contrast to the question that
one would expect the accused to back up about the absence of the
the vicinity, the accused nevertheless under cross
examination reacted as follows to the question put :-
"You were being escorted by a kombi - ?
It never escorted me. What happened is that when I came
to Tsikoane I asked the owner of the kombi to wait for me so that I
park my truck which was in distress, as I wanted to go with him
for he was going to Maputsoe."
It stands to reason that the accused's counsel in
telling P.W.8 that there was no kombi in the vicinity had been given
by the accused.
This coupled with the fact that P.W.8 is still puzzled
to this day why the accused braved a heavy down pour even though
been a kombi escorting him would lead to only one
conclusion that an attempt by the accused was made to hide the
of this kombi and the identities of its occupants or
The fact that the accused on that day was in the company
of at least two different strangers at different times but
with them without inquiring about their
identities makes his conduct highly suspect. It would be a different
thing if he said the
identities were revealed but unfortunately
forgotten through the lapse of time.
Earlier in this judgment I charitably took for granted
that the accused set out early on Monday for Mohale's Hoek on his
errands and did not come back until Tuesday. But credible
evidence shows that he was on the same Monday at Tsikoane where he
in the course of the morning and spent the day dismantling
the buck of the truck.
Be it remembered that he seized on this trip to Mohale's
Hoek in an attempt to escape the question why he didn't take steps to
to P.W.7 about the disappearance of her husband from his
It does appear that it cannot be true that the accused
had gone to Mohale's Hoek early on Monday never to come back the
day for evidence shows on the morning of that Monday he was
at Tsikoane where he surprised P.W.11 by failing to say good morning
to her. I need not mention that Mohale's Hoek is 214 km distant
from Tsikoane and no man can be at two different places at once.
The accused's falsehood as to the time frame within
which the truck remained at Tsikoane, the fact that he dismounted its
the chassis - no doubt for purposes of confusing or
destroying its identity -coupled with various instances of what
to be after thoughts in his evidence; and the fact
that he has been shown to have lied in his denial that he was in
P.W.2's gun which on retrieval had only two live
bullets out of the seven which had originally been given to him;
buttressed by five
empty cartridges near the deceased's body nut in
the veld; his falsehood as to the time of his parting with the
deceased as shown
in his affidavit that conflicted with his testimony
in this court, plus the fact that those shells were ejected when no
than Ex."l" was fired, culminating in the
discovery of the deceased's body killed from gun shot wounds; and
that he was
the last man seen with the deceased before he met his
tragic death all account for the milk in the coconut; namely that he
how the deceased met his death.
I am strengthened in this view by the fact that in his
own words the accused said he knew the deceased to deal in underhand
sales. Further that he remained in the van and hotel for not
less than five hours. Surely through common sense the long passage
of time should
have made the accused stir because often in the shady
deals violence or trickery in the form of drugging is used. Hence
should have prevailed over the fanciful restraint
based on the imagined fear that the deceased might get embarrassed or
enfuriated if it turned out that the report about the
deceased's disappearance would lead to the discovery that he was
compromising circumstances with girl friends that night.
Credible evidence shows that the deceased was tempted to
go to T.Y. that day at the instance of the accused who had told him
he had secured him a buyer for the truck. If there was such a
buyer or not an inference remains irresistible that the accused lured
the deceased to his fate.
P.W.9 told the court that the deceased used to attend
auction sales for motor vehicles in Johannesburg; and that he bought
from there including the truck in question.
P.W.12 testified that the accused was confronted with
this truck on 13.11.85 at T.Y. and the accused identified it as the
further that he did not know how it came to be there.
This evidence went unchallenged. It should not be overlooked that
of the accused at P.W.11's and P.W.8's place at Tsikoane
in October or November 1985 occurred a long time since he had last
at that place. It seems that the accused was eager to keep this
truck at an obsure place where it would be difficult to trace coupled
with the fact that the removal of its buck would serve to disguise
its identity. An attempt was made to tell P.W.9 that the truck
the accused's, but that was ton late because the crown was at that
stage denied the chance to lead evidence in rebuttal by asking
whether he took every step to ascertain that it was the deceased's.
Be it remembered in this connection that the court heard
for the first time when the accused was in the witness's box that he
kept documents proving his ownership of the truck in its cubby
hole. Yet when P.W.12 testified that the accused said the truck was
the deceased's at that stage there was no suggestion that the accused
was laying any claim to it supported perhaps by the documents
to have been kept in its cubby hole.
Even the incoherent statement that "(it) maybe it
is Makhama for he might be the one who has a gun" implies that
knew that P.W.2 had a gun. Yet when asked if he knew the
gun before court or whether he knew P.W.2 to possess one he said no.
It would seem from the position of the wounds that the
deceased sustained that the assailant was on his right hand side for
as shown in the medical report were on the right .
That the cartridges were collected and placed near the
body of the deceased suggests that the shooting was effected with the
some light that enabled the killer to collect them after
being ejected from the gun. It is not far-fetched then to imagine
the shooting was effected in some lighted enclosure. It is
significant that neither the accused's white toyota van is available
nor is the kombi he travelled in from Tsikoane traceable.
With regard to pointing out, it should be recalled that
on 9.11.85 P.W.I, P.W.12, and P.W.3 proceeded to P.W.2's home led by
This was consequent upon an explanation given to them
by the accused. Over and above the pointing out reliance was reposed
crown on evidence elicited from crown witnesses under
The legal position with regard to pointing out is that
the pointing out has to be satisfactory in every
respect. To satisfy this requirement it is necessary to
show beyond reasonable doubt that the only inference to draw is
the accused had foreknowledge because he took part in the
offence. See State vs Gwevu & Another 1961(4) SA. 536.
See CRI/T/41/88 R vs Mafatle & Others (unreported) at 24.
Significantly then the police officers who proceeded to P.W.2's home
with the accused did not know that place.
Suffice it to say then
because of his foreknowledge the accused led them there and the
gun was produced through his own request
from P.W.2. None of them
except P.W.1 knew P.W.2.
It was contended on behalf of the accused that
when P.W.2 deposed that on arrival at his place the
accused said P.W.2 should produce the gun he had lent him P.W.2 and
must have put their heads together to implicate the
accused falsely and must have planted the gun there. But P.W.2's
this view went unchallenged.
See Small vs Smith 1954(3) SA at 434 saying:
"It is, in my opinion elementary and standard
practice for a party to put to each opposing witness so much of his
own case or
defence as concerns that witness, and if need be, to
inform him, if he has not been given notice thereof, that other
contradict him, so as to give him fair warning and an
opportunity of explaining the'contradiction and defending his own
It is grossly
unfair and improper to let a witness's evidence go
unchallenged in cross-examination and afterwards argue that he
must be disbelieved."
See also Phaloane vs Rex 1981(2) at 246 saying :
"It is generally accepted that the function of
counsel is to put the defence case to the crown witnesses, not only
to avoid the
suspicion that the defence is fabricating, but to
provide the witnesses with the opportunity of denying or confirming
for the accused. Moreover, even making due allowances for
certain latitude that may be afforded in criminal cases for a failure
to put the defence
case to the crown witnesses, it is important for the
defence to put its case to the prosecution witnesses as the
is entitled to see and hear the reaction of the witness
to every important Allegation."
The logic of the submission therefore based on the
proposition that the court should believe the
implication that the gun was planted at P.W.2's place with the
collusion of the police
Indeed the fact that the accused had no prior quarrel
with the deceased is a factor in his favour. But it in no way
evidence showing he nonetheless manifested an
attitude that shows that considerations on which friendship is based
sit loosely on
Indeed the fact that he converted the deceased's vehicle
into his own and that he made no scruple to refrain from reporting
about the deceased's disappearance are factors by means of
which it can be said he showed his cloven hoof towards the deceased
The crown submitted that by some strange coincidence
the empty shells found near the body showed when examined by the
"expert" P.W.5 that they were fired fromono other
gun than Ex."l". It submitted further that P.W.5's
was backed up by scientific tests that he carried out.
His conclusion was correct. Possible error in the results obtained
his tests was excluded by experience gained during his training.
Any doubt concerning his expertise would be entertained only by
evidence adduced in rebuttal by the party holding otherwise.
The possibility that empty shells were planted around
the body by someone wishing to implicate the accused is excluded by
of the crown witnesses.
In Marcus Leketanyane vs Regina 1956 H.C.T.L.R.
Elyan quoting with approval the dictum in Rex vs de
Villiers 1944 AD 493 said :-
"In a case depending upon circumstantial evidence
... the court must not take each circumstance separately and give
the benefit of any reasonable doubt as to the inference
to be drawn from each one so taken. It must carefully weigh the
cumulative effect of all of them together
and it is only after it has done so that the accused is
entitled to the benefit of any reasonable doubt which it may have as
the inference of guilt is the only inference which can
reasonably be drawn. To put the matter in another way, the
satisfy the court, not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole
is beyond reasonable doubt inconsistent with such
Put in another way by Darling J. in Rex vs Armstrong,
Herefordshire Assizes, April, 1922 the position is :-
"Circumstantial evidence going to prove the guilt
of a person is this : One witness proves one thing and another
thing, and all these things prove to conviction
beyond a reasonable doubt; but neither of them separately proves the
guilt of the
person. But taken together they do lead to one
In Tatolo Phoofolo vs Rex 1963-66 H.C.T.L.R. 5 at
6 Watxin Williams P. as he then was reported Lord Hewart L C J as
having said in relation to circumstantial
"It is evidence of surrounding circumstances which
by undesigned coincidence is capable of proving a proposition with
See Taylor and Others vs Rex (21 C.A.R. 20).
Compare the shells with the gun and consider the fact that within the
time frame of the incident in the instant
case both the gun and seven
bullets were in the accused's possession. But later though not before
the deceased's death, only two
live bullets were returned with the
to P.W.2 while five empty shells were found around the
body of the deceased who was last seen alive in the company of the
When the body was discovered on 28.10.89 P.W.1 said it
had rained the previous night. By some strange coin -cidence on the
when the accused came to P.W.8's place at 9.00 p.m. it was
raining heavily. P.W.6 had seen the accused and the deceased
at 6 p.m. When he came out at 7 p.m. they were no longer
there. Where could they have been between the time preceeding 7 p.m.
9 p.m. The deceased was definitely not with the
girl-friends. The accused was shown to have lied regarding the time
parting with the deceased as amply shown by his affidavit when
contrasted and compared with the evidence he gave before this Court.
It thus was by token of this fact conclusively established that it
cannot be put past him to give false testimony if he thinks
falsity cannot be discovered.
In this regard the words of Lord Devlin in Broadhurst
vs Rex 1964 AC 441 at 457 are worthy of
"It is very important that the jury should be
carefully directed on the effect of a concusion, if they reach it,
that the accused
is lying. There is a natural tendency for a jury to
think that if an accused is lying, it must be because he is guilty
to convict him without more ado. It is the duty of
the judge to make it clear to them that this is not so. Save in one
a case in which an accused gives untruthful evidence is not
one in which he gives no evidence at all. In either
case the burden remains on the prosecution to prove the guilt of the
But if on the proved facts two inferences may be drawn
about the accused's conduct or state of mind, his untruthfulness is a
which the jury can properly take into account as strengthening
the inference of guilt. What strength it adds depends of course on
all the circumstances and especially on whether there are reasons
other than guilt that might account for untruthful-ness."
In Rex vs Blom 1939 AD 188 at 202 Watermeyer
J.A's direction is both enthralling and unassailable. He
"In reasoning by inference there are two cardinal
rules of logic which cannot be ignored :
The inference sought to be drawn must beconsistent
with all proved facts. If itis not, the inference cannot be
The proved facts should be such that theyexclude
every reasonable inference fromthem save the one sought to be
drawn. Ifthey do not exclude other reasonable inferences.
then there must be a doubt whetherthe inference sought to be
drawn is correct."
In V vs A The Zimbabwe Law Reports 1984
(Part 2) McNally J.A. demurring application of'dicta to facts in
piecemeal and mechanical manner taking no account of the totality
the facts said at 143
"The proper approach, it seems to me, is to look at
the totality of the surrounding circumstances and independently
Mr. Thetsane for the crown submitted that the
motive for the crime seems not to have been proved, and contended
however that this can be inferred
from the facts.
To my mind the concession made by the crown seems more
than charitable to the accused for the truck in this proceedings,
out like a sore thumb. If it does not provide the motive
for the crime committed then there is no need to engage in
what possible motive there was because in R vs
Mlambo 1957(4) SA. at 737 Malan J.A. points out that
"Proof of motive for committing a crime is always
highly desirable, more especially where the question of intention is
Failure to furnish absolutely convincing proof thereof,
however, does not present an insurmountable obstacle because even if
is held not to be established there remains the fact that an
assault of so grievous a nature was inflicted upon the deceased that
death resulted either immediately or in the course of the same night.
If an assault ... committed upon a person causes death
either intanteneously or within a very short time thereafter and no
is given of the nature of the assault by the person
within whose knowledge it solely lies, a court will be fully
justified in drawing
the inference that it was of such aggravated
nature that the assailant knew or ought to have known that death
In making the submission aforementioned the crown relied
on CRI/T/37/88 Rex vs Molahlehi Ramatla (unreported at 13
where this Court said
"Motive for the killing has hot been established in
this trial. The fact that the bag the deceased was last seen
disappeared without trace may provide the motive for the
killing as robbery but there was no evidence of this."
It was shown in R vs Ndhlovu 1945 AD 369 at 386
that legal authorities disapprove of indulgence in speculation.
"on possible existence of matters upon which there
is no evidence, or the existence of which cannot reasonably be
In submitting that absence of motive should redound to
the accused's benefit the defence relied on C of A CRI No. 2 of 1983Letsosa Hanyane vs Rex by Schutz J.A. as he then was. At
page 8 the learned judge (now President of the Lesotho Court of
"The one real difficulty that there is
in'Mamaipato's evidence is the lack of motivefor the
appellant's attack. It is truethat it is not essential for the
crown toestablish motive, but its failure to do somay cast
doubt upon its case "
I am not unmindful of the remarks of the learned judge
in the above case at page 7 where in considering the fact that it had
urged on him obviously by the crown that the other side had not
put its case to the crown witnesses said :
"From the above analysis it emerges that many at
least of the trial court's criticisms of the appellant may properly
his counsel at the trial (I do not say that they do). But
when at least one instance seems to have been shown to be the fault
counsel, I think that it would be dangerous to embark on the hip
and thigh smiting of the appellant that the trial court embarked
But in this trial as I earlier pointed out the defence
counsel conducted the defence of the accused in a manner that left me
doubt that he was utterly faithful to the instructions he had
received from his client.
With regard to the inculpatory statement which the
accused is said to have made at P.W.2's place, and the fuller text of
not have been admissible except as it had been elicited
from the police under cross examination it would seem provisions
section 228 and 229 of the Criminal Procedure
and Evidence Act 1981 suffice to cover the
C/F CRI/T/18/84 R vs Lawrence Phasumane
(unreported) at p. 39 paragraph 2.
Submitting that the test to apply in order to determine
whether the accused's alibi might possibly reasonably be true counsel
the crown urged that the court is enjoined to consider the entire
evidence led. Reference in this regard was made to R vs Hlongwane1959(3) SA at 370-1 where it is stated:
"The legal position with regard to an alibi is that
there is no onus on an accused to establish it, and if it might
be true he must be
acquitted But it is important to point out
that in applying this test, the alibi does not
have to be considered in isolation The
correct approach is to consider the alibi in
the light of the totality of the evidence in the
case, and the court's impression of the witnesses."
Arguing in the same vein Hoffmann and Zeffert at p. 407
of South African Law of Evidence 3rd Ed. say
no onus rests on the accused to convince
the court of the truth of any explanation which he
gives. If he gives an explanation, even if that explanation is
court is not entitled to convict unless it is
satisfied, not only that the explanation is improbable, but that
doubt it is false. If there is any reasonable
possibility of his explanation being true, then he is entitled to his
But Mlambo at 738 is authority for the view that
"An accused's claim to the benefit of a doubt ....
must not be derived from speculation but must rest upon a reasonable
foundation created either by positive evidence or
gathered from reasonable inferences which are not in conflict with,
by the proved facts of the case."
Urging the court that the accused should be given
benefit of doubt the defence buttressed its case by relying on a
passage where the
danger of convicting an innocent man was
highlighted as follows in Khotso Mahata vs R 1926 - 53
H.C.T.L.R. at 178 :-
".... If there had been definite evidence that his
father died before 1941, then his story that he inherited these
from his father cannot be true. But as stated, the
difficulty is that there is something wanting in the evidence. When
that he inherited it from his father and it was found
that the cartridges were made in 1941, there would have been no
to obtain evidence to show that his father died in 1941,
but that evidence was not produced. There is thus possibility that
story as it stands may be true. In the circumstances the court
can't convict a man upon evidence which is doubtful, which
the possibility that he is innocent ...."
I have also had regard to Scoble's words in The Lawof Evidence in South Africa 3rd Ed. at 250 in relation to
the possible factors which might have led the accused to make the
statement he is alleged to have made
at P.W.2's house at the time the
gun was produced. They read:-
"the statements, although actually made as deposed
to, may be false, for the prisoner, oppressed by the calamity of his
may be induced by motives of hope or fear to make an
untrue confession, and the same result may have arisen from a morbid
to obtain an infamous notoriety ... or from
anxiety to screen a comrade .... or it
may even be the result of the delusion of an
overwrought and fantastic imagination."
But reliable and available evidence in the instant case
excludes the above set of possibilities.
In S vs Jaffer 1988(2) SA 84 at p. 88 Tebbutt J.
(previously a Judge of our Court of Appeal) in dealing with the
question of probabilities extracted
a passage from the magistrate's
court and criticised it. It went
"Now the court has now two single witnesses telling
different stories in certain aspects. The court must now decide
one of the stories can be rejected. If the court now looks
at the probabilities, the State's version seems to be the most
The learned judge pointed out that
"This approach by the magistrate was incorrect. It
is, of course, always permissible to consider the probabilities
case when deciding whether an accused's story may
reasonably possibly be true. .."
The story may be so improbable that it cannot reasonably
be true. It is not, however, the correct approach in a criminal case
weigh up the State's version, particularly where it is given
by a single witness, against the version of the accused and then
accept or reject one or the other on the probabilities. This
approach was considered by Van der Spuy A.J. in S vs. Munyai
1986(4) SA. 712 at 715 where he said :
'There is no room for balancing the two versions, i.e.
the State's case against the accused's case and to act on
Dealing with (S vs Singh 1975(1) SA 277) Van der
Spuy A.J., with whom Klopper A.C.J. concurred, said that the proper
approach was for a court to apply its
mind not only to the merits and demerits of the State
and the defence witnesses, but also to the probabilities of the case.
was to ascertain if the accused's version was so improbable as
not reasonably to be true. This, however, did not mean a departure
from the test as laid down in R vs Difford 1937 AD 370 at 373
that, even if an accused's explanation be improbable, the court is
not entitled to convict unless it is satisfied
not only that the
explanation is improbable but that beyond any reasonable doubt it is
false. If there is any reasonable possibility
of his explanation
being true, then he is entitled to his acquittal.
Van der Spuy A.J. went on to say at 716 B-C:
'The fact that the court looks at the probabilities of a
case to determine whether an accused's version is reasonably possibly
is something which is permissible. If on all the probabilities
the version made by the accused is so improbable that it cannot be
supposed to be the truth, then it is inherently false and should be
rejected. But that offers no answer to the approach adopted,
view quite properly, by Slomowitz A.J. in the case of S vs Kubeka
In S vs Kubeka 1982(1) SA. 534 (W) at 537 F - H,
Slomowitz A.J. said in regard to an accused's story:
'Whether I subjectively disbelieve him is, however, not
the test. I need not even reject the State case in order to acquit
I am bound to acquit him if there exists anreasonable
possibility that his evidence may be true. Such is the nature
onus on the State :
Referring to this passage Van der Spuy A.J. said at 715
'In other words, even if the State case stood as a
completely acceptable and unshaken edifice, a court must investigate
case with a view to discerning whether it is demostrably
false or inherently so improbable as to be rejected as false.'
I agree. The test is, and remains, whether there is a
reasonable possibility that the appellant's
evidence may be true. In applying that test one must
also remember that the court does not have to believe her story;
has it to believe it in all its details. It is
sufficient if it thinks there is a reasonable possibility that it may
true (R v M 1946 AD 1023 at 1027)".
The accused acknowledged albeit grudgingly and with
great reluctance that he would not be surprised if the deceased's
him inquiring about his non-appearance regard being
had to the fact that she knew that the deceased and the accused left
It follows from this that likewise P.W.2's suspicion
that his gun had been misused was reasonable as it arose from his
it had been in the accused's possession and only after
his hearing of P.W.7's anxiety.
The words appearing as a quotation in Leketanyaneabove at p. 3 in relation to circumstantial evidence are worthy
of mention. They read :-
".... Such evidence is more aptly compared to a
rope made up of strands twisted together. The rope has strength more
to bear the stress laid upon it, though no one of the
filaments of which it is composed would be sufficient for that
Mr. Nathane relying on S vs M 1946 AD 1023
at 1028 urged that the court has the discretion to consider whether
evidence left unchallenged is worthwhile or not.
Referring to Small vs Smith he also made a submission
with which I agree, namely that where a point is deliberately left
unchallenged the party calling
the witness who so testified can
assume that his story is true unless no credence can be attached to
In his reply to the defence's submissions Mr. Thetsanepointed out that the defence cannot be heard to raise
possibilities as to the conduct of the accused by explaining at this
that the accused didn't
go via Upper Thamae or Motimposo because possibly he did
not want to disturb the deceased's wife at some late hour.
He submitted that this should have been given as
evidence by the accused himself.
He buttressed his submission by relying on CR/T/37/88Rex vs Molahiehi Ramatla (unreported).
In this regard he told the court that
"a criminal trial is not a game where one side is
entitled to claim the benefit of any omission or mistake made by the
See Rex vs Hepworth 1928 AD 265 at 277.
He challenged the submission that the accused's story be
regarded as reasonable possibly true by reposing his reliance onMiller vs Minister of Pensions 1947(2) ALL. E.R. 372 and 373
where Lord Denning warned that fanciful explanations should not be
allowed to deflect the course of
justice. It is my considered
opinion that the accused's version has been shown to be false beyond
a reasonable doubt and hence
Having considered all the evidence and authorities
referred to including the submissions made by both counsel I have no
doubt in my
mind that the accused is guilty of the murder of the
deceased Thami Madona and I so find him.
The gun is forfeited to the crown.
J U D G
E. 17th October, 1989.
JUDGMENT ON EXTENUATING CIRCUMSTANCES
In CRI/T/59/88 R vs Thembinkosi Yawa (unreported)
at p. 26 it was observed that :
"It is trite law that the onus of showing, on a
balance of probabilities, the presence of ex-tenuating circumstances
the defence. The test to be applied by the court in
deciding whether (extenuating circumstances) exist is a
In S vs Letsolo 1970(3) SA 476(A) at 476E to 477B
Holmes J.A. summarised the position relating to the subject of
extenuating circumstances as follows:-
"Extenuating circumstances have more than once been
defined by this court as any facts, bearing on the commission of the
which reduce the blameworthiness of the accused, as distinct
from his legal culpability. In this regard a trial court has to
whether there are any facts which might berelevant
to extenuation, such as immaturity,intoxication or provocation
(the list isnot exhuastive).
whether such facts in their cumulative effect,probably
had a bearing on the accused's stateof mind in doing what he
whether such bearing was sufficiently appreciable
to abate the moral blameworthineso ofthe accused's doing what
Even though the accused was entitled to give evidence in
extenuation of the crime of which he has been convicted he entrusted
task to the eloquence of his counsel. In the result the court
was denied the opportunity to determine whether money ever exchanged
hands between the purported buyer of the deceased's truck and the
deceased. This then would in my view dispose, as baseless,
the submission by the crown that perhaps out of jealousy of the
amount scored by the deceased the accused decided to kill the
deceased in order to pocket the proceeds of the sale; for this
submission is based on sheer speculation.
It was urged on me that the accused had consumed
good quantity of beer - hence on that score his moral
blameworthiness was reduced. But in Yawa above this court
gave very stern warning that it is wrong to believe that intoxication
always extenuates for
"It would be a sad day when .... innocent lives can
be randomly taken away by drunks who embark on the senseless killings
a full assurance that the law would not subject them to the same
fate that their victims suffered."
The judgment that the court is enjoined to deliberate on
at this stage, as properly submitted by both counsel is a moral one.
the court is called upon to exercise its discretion judiciously
to come to a final decision. In that regard then, if there is no
limit to the horror that murderers subject their victims to why
should justice impose on itself limits beyond which a perpetrator
a murder on an innocent victim should be absolved from consequences
of his acts?
A moral absolute is erected around the sanctity of life.
Is it not Utopian and even dishonest to remove the infallible checks
preserve that sanctity and replace them with something which
undermines the absolute deterrence against perpetration of murder?
I have been asked, against manifest pointers in
evidence, not to infer that the accused even before taking drinks at
T.Y. had already
made up his mind that the deceased was going to meet
his death that day.
How can I help making such an inference in the face of
the fact that the accused has not come forth to say that in fact the
buyer was there at T.Y.? Surely the onus is on the
accused to establish this. Failing that then an adverse inference
him is not out of step.
It would seem to me to follow that when the accused
the deceased to go and meet a non-existent
prospective buyer his malicious intent had become
manifest at the time he made the proposition to the deceased to go
and meet this
buyer. The question of drinks which the accused and
the deceased were seen taking was part of the cunning plot to make
think that all was right whereas the worst fate was to
befall him later at the hands of his own friend against whom he would
no suspicion that the 27th October 1985 would be his last
day this side of the grave.
With regard to the accused's conduct after the
commission of the offence it seems authorities suggest that this can
be taken into
account in considering whether his moral
blameworthiness can be said to have been reduced, for in S vs X
1974(1) SA (R. AD) 344 at 348 Beadle C.J. said
"One thing, however, seems to me to be quite clear
and that is that where the acts performed by an accused after
of the murder indicate what the state of mind of the
accused was at the time when he committed the murder, then these acts
be taken into account in considering the moral
blameworthiness of the accused at the time when the murder was
In the main judgment the accused's state of mind after
the commission of the crime was shown to have been bristling with
I have had regard to authorities cited. They indeed
make instructive reading but hardly have relevance to what appears to
me to be
the focal point in this inquiry, namely whether any factor
even if remotely related to the accused's subjective state of mind
be said to be sufficient to reduce his moral blameworthiness.
Learned Counsel for the crown told me he thought there
were some extenuating circumstances. Learned Counsel for the defence
that it would be better to err on the side of liniency. Very
grudgingly I feel I
should accept these final submissions on the ground that
the breadth of a hair's difference may not be equated to the length
hangman's noose around a man's
to 25 years' imprisonment.
My assessors agree.
J U D G E. 18th October. 1989.
For Crown : Mr. Thetsane For Defence : Mr.
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