IN THE HIGH COURT OF LESOTHO
the matter of :
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
24th day of August, 1992
This is a summary trial in which the accused faces two
counts in respect of offences allegedly committed on 23rd March, 1991
Lebamang in the district of Maseru.
The first count charges that the accused did unlawfully
and intentionally kill Paul Mothabeng while the second count charges
with the crime of attempted murder wherein the
complainant Ntja Sele was shot with a pistol as a result of which he
The accused pleaded not guilty to both these charges of
murder and attempted murder.
The broad outline of the case for the Crown based on the
testimony of some of the sixteen witnesses called is that during day
on 23rd March, 1991 a group of musicians consisting
of young men led by PW4 Ntja Sele set out from Roma for
Ha Khanyetsi in PW4's kombi to stage a concert at the home and
of PW3 Pheello Tsoeu. The group arrived there late
in the afternoon.
The deceased Paul Mothabeng a policeman in the RLMP and
his cousin PW5 Tseliso Mothabeng who are not musicians joined the
group from Roma to their destination at Ha Khanyetsi where
they hoped to enjoy the concert music that the group would provide.
When this party arrived at Ha Khanyetsi it appeared that
a big crowd of people had already gathered in response to the
that had beforehand been displayed and disseminated by
word of mouth for the impending concert due to be staged at an
in the afternoon of the day in question.
Further advertisement of the music group's arrival and
presence at PW3's place was provided by radio cassette music blaring
group's kombi the immediate effect of which was, as if by
magic, to set the crowds breaking into vigorous dancing and ecstatic
Thus the entire atmosphere was transformed into a seething wave
of human delight.
But the accused, in the typical manner of a spoilsport
or the Biblical fly in the ointment and for no reason whatsoever,
PW6 Mphunyetsane Phoka slapped him in the face and ordered
him to stop positioning the speakers in preparation for the concert
ordered him to remove those things and go away. The deceased's
pleas to the accused to allow the concert to go on met with
dismissal manifested by the accused's throwing away the
deceased's Identity Card. PW4's attempts to persuade the accused to
the concert to go on equally fell on deaf ears. The result was
that PW4 and his group loaded their musical equipment into their
kombi and left after the accused had urged PW3 to drive what, in
reference to the group, he termed rags out of PW3's yard. When
group left or shortly afterwards it was necessary to switch the
headlamps of the kombi on as it was early dusk.
It is however important to point out that with regard to
the events which are alleged to have occurred at Ha Khanyetsi PW3
and contradicts the version given by other Crown witnesses.
Even though these witnesses give the impression that it was the
who thwarted the staging of the concert at his place, PW3
disputes this allegation. He further denies that the accused chased
of the music group away. It is significant that the Crown
made no attempt to have this witness impeached nor did it refer to
evidence during submissions and
addresses yet his version tends to support the accused's
version as to events which took place at Ha Khanyetsi. Thus his
emerging from the Crown itself, with no doubt full sense of
responsibility, cannot be ignored. However according to PW4 the
of a tent would pose no problem because it had been agreed
between him and PW3 that the latter would supply a make-do shelter by
means of some Canvas sails to enable the concert to go on. PW3 made
no mention of this, nor would it be proper to elicit it through
cross-examination by the Crown before and unless he had been
impeached by the Crown whose other witnesses' evidence is at variance
PW3 testified that the reason why the concert did not
take place was first that PW4 had failed to secure a tent wherein
this was to
take place, next that PW4 had failed to secure a permit
from the police or to obtain the local chief's permission to hold
He denies the allegation that the accused ordered him
to order "these rags out of his yard". Rags in this sense
by the other Crown witnesses who were at Ha Khanyetsi
at the time to mean PW4 and his group.
An important occurrence took place there at Ha Khanyetsi
according to those of PW4's group who testified. It is according to
that PW6 was grabbed by the accused before being slapped across
the face. But PW6 denies that he was ever grabbed by the
accused before being so slapped. It is therefore to be
wondered why PW5 Tseliso Mothabeng, PW7 Hlaeli, PW8 Tsokolo Sesha
the impression to the Court that PW6 had been grabbed
before being slapped in the face. It is equally to be wondered why
did not see the alleged slapping should take so long to admit
that he did not see the slapping despite his testimony that he only
heard the sound of the slapping effected some estimated distance of
10 paces away from him in the middle even of the loud music that
going on and the near hysterical noise of excited dancers around him.
The Crown submitted that the version put to PW4 of
insults uttered by his men and denied by Crown witnesses is not borne
out in evidence.
But DW2 'Machaka testified to hearing such insults.
Thus it cannot be correct that there is no evidence on record bearing
to the utterance of such insults. Whether the version so
put or the evidence supporting it is true or false is another matter.
In an attempt to show that the accused was deliberately
lying when he said he did not see any musical instruments when he
the scene at Ha Khanyetsi the Crown sought to rely on the
accused's sworn affidavit deposed to earlier when he applied for bail
Court. The deposition is to the effect that the
accused said he had "found a group of men
assembling musical instruments". The Crown relying on DW2's
evidence to expose
the accused's alleged untruths submitted that the
accordions and quitar were there and plainly visible to all and
sundry. The accused
sought to explain away the difference between
"finding" and "seeing" the men "assembling
by saying he had been informed that those
were the men who had been doing so but who had finished doing so and
were no longer doing
so when he found them. The text reads at 472 of
my notes :
"So you saw musical instruments at Ha Khanyetsi
I said so at that time in regard to the
of that time.
Why now vehemently deny what you said in this Court....?
I now talk of what I saw not what is supposed to have been given to
an interpretation of events observed by PW3 and PW4.
That's not answering my question....? That's how I take
it to be.
Why insist today you never saw any instrument...? This
time I talk of what I saw not what I was told others said 'we did
that' or 'saw this and that'.
Why did you deny seeing instruments there ?
Because today I am asked about what I saw not what I was
told others had done.
You deny saying you saw instruments....? I never said I
In affidavit you said you found men
assemblinginstruments ? I said I found men in the yard.
You said you found men who were assembling
instruments ? I said so.
What did you mean by saying you found them
assemblingthe instruments ? As I earlier said I found
crowds in the yard till I came to my vehicle and
ultimately got into the house. It only came to my attention through
PW4 that these
were done or had been done.
What is meant ordinarily by saying you found someone
doing something ? That you came where he is
alleged to have been doing something. The information
was - they had assembled instruments. I didn't see
with my eyes.
I am inclined to think that this explanation is
something in the nature of a fourflusher as indeed Mr. Phafane
for the defence when invited by Court if he could give any sensible
meaning besides that conveyed in the expression "I found
assembling musical instruments" or even doing a thing, candidly
stated that he didn't think he could be of any further
the Court in that respect. But it should not be overlooked that PW3
who was called to testify for the Crown said in
respect of this point
which seems to be regarded as crucial by the Crown "I had not
seen any musical instruments up to this
point". See page 41 of
PW3 supports the accused's version that the discussion
pertaining to the fate of the aborted concert went on harmoniously
PW4 and PW3 in the presence of the accused in PW3's house.
PW3 said he saw PW4 and his men depart in their kombi without an
He referred to having heard PW4 instruct his men to load
drums into the kombi. He says he did not see these drums though.
It is common cause that some one and half hours after
PW4 and his group had left Ha Khanyetsi the accused also left along
leading to Roma thus following PW4 and his men. While PW4
and his men might not have known the time when the accused departed
Ha Khanyetsi the evidence of PW3 is on hand to substantiate this
It is important to take note of places that lie ahead
between Ha Khanyetsi and Roma. Starting from Khanyetsi side these
are Ha Khanyetsi,
Likolobeng, Likatseng, Pheuoeng, Nyakosoba, Ha
Ngakane, Ha Lebamang and finally Roma.
It is at some of the above places that the Crown sought
to show that PW4 and his men stopped for a variety of all legitimate
purposes. Indeed looking at everyone of the stops made
by PW4 and his men it seems a reasonable explanation is tendered for
It is explained that at Likolobeng the group had stopped
to have a meal. On the face of it nothing sinister can be read into
PW4 testified that after crossing some stream while
heading for Likatseng the accused overtook him but shortly afterwards
the accused's vehicle at Khumamela where the accused had
slackened his speed as if to stop.
Thus when PW4 came to Pheuoeng he stopped shortly to
inform his brother by shouting to him that the concert had failed.
he didn't have to disembark in order to make this report
because his brother was standing next to the road. He said the
came and stopped his vehicle behind PW4's.
Then the vehicles started moving again at reasonable
speed regard being had to the nature of the road which is an
road that is not only narrow but also admits of
no high speed. PW4 could see the accused's vehicle coming behind
with its headlights
PW4 told the Court that when he reached Nyakosoba the
accused drove past him and headed for a T-junction one of whose
the left leads to Ha Ramabanta while the other to the
right leads to Roma.
PW4 said he chose a short cut road cutting through
Nyakosoba village and joining the Ramabanta-Roma road on the other
side of the
village and didn't see any vehicle coming from behind his
till he came to stop at Ha Lebamang where he parked his vehicle near
scene on the Khanyetsi side of the culvert which the
Court went to inspect during the course of this trial.
He said his purpose for so stopping was so as to relieve his bladder.
The accused's version on the other hand is that regard
being had to the head start PW4 had had of him when leaving Ha
was surprised to see PW4's vehicle just ahead of him
when he came to Likolobeng. He does not deny that the group could
there for some meals but he says that as soon as he was
near enough to see these men he saw them rush from either side of the
and get into their vehicle which drove off ahead of him before
he could come to stop; for he had observed that their vehicle had
stopped in the middle of the road. However PW4's vehicle drove ahead
of the accused's vehicle till reaching Likatseng where PW4's
started moving at painfully slow pace ignoring the accused's desire
to be given way. He said he signalled his intention
to pass by
blowing his horn and flickering his indicators to the right. DW2
Mosiuoa Phakane 'Machaka fully corroborates the accused
in this and
other material aspects of the defence case. An impression was sought
to be created by the Crown that DM2 must have sat
together with the
accused to concoct a false account of events which occurred on that
fateful day. But in my recollection of the
circumstances of this
case a good many questions had been put to the Crown witnesses
outlining the defence case in such a manner
that the Court was not
guessing what the defence was going to be and what the
accused was going to say when he came to testify. It was in a
that, I think the accused felt compelled to call
DW2 for he was asked by the Crown itself during the course of
whether he would call a witness to substantiate a
single and identified point raised. Being thus dared it seems that
being eager to be as good as his word for the benefit of
the Crown called DW2 who neither advanced the accused's version in
respects nor detracted from it at all judging the case as a
whole. The text in which the accused was dared to bring a witness
would support the side of his case where he himself testified he
never heard PW4 or any of PW4's group members swear at him is at
471 starting at 470 of my notes; and it goes :
"Other than the fact that PW4's face gave you the
impression that he was angry did he say anything
to say he was angry at Ha Khanyetsi ? He
didn't say anything.
Assuming he was angry; with whom would he havebeen
angry ? I didn't know.
It would not have been with you, would it ? No.
He wouldn't be angry with you for he was an observer.
He had no business to be angry with you for you were talking with the
I have no such knowledge. I don't know if he wouldn't
be angry with me.
But you were not talking with him. You weretalking
with the deceased ? Yes.
After this when he went away before he left(for
Roma) did you contact him ? No.
Before then what was the last thing that PW4 said to you
when you were with him....? He suggested that I should ask PW3 to
the concert to proceed; and at that point the deceased
intervened saying he was a policeman and would assume the
seeing to it that law and order were maintained.
Will you confirm that this being so PW4 thereforedid
not insult you ? I never said so.
Court: Question was to invite you to confirm if
heinsulted you ? He never insulted me.
C.C Will you comment on what was put to PW4 by your
Counsel namely that 'There will be evidence that when you left Ha
were swearing and saying this boy is silly and we will
one day' ? I heard that but it was not said
Masupha the accused would say it.
If this type of witness is brought would his statement
be true....? It will be true depending on the testimony of that man
it at the place where he and PW4 were together and not
where I myself was.
Will you bring him to testify ? Yes."
It was submitted on behalf of the accused that at
Likolobeng where PW4 had stopped the other Crown witnesses in his
that they had seen the accused's vehicle approach
from behind theirs yet PW4 denies having, seen any vehicle or the
all. PW5 who is the deceased's relative agrees with the
accused's story to the effect that when the accused's vehicle got
vehicle the latter drove off.
I have already stated that the accused's version is that
from Likatseng to Ha Lebamang except for the round about way he took
his vehicle was always behind that of PW4.
The accused further testified that for the entire 15 to
20 km spanning the distance between Likatseng and Pheuoeng PW4 was
at a very slow pace ignoring the accused's pleas to overtake.
Significantly despite PW4's story to the contrary it was never put
to the accused that he in fact overtook PW4 who in turn overtook him
at Khumamela. However it was the accused's further story that
stopped in the middle of the road upon a cement bridge at Pheuoeng
thus making it impossible for the accused to pass. The accused
he waited patiently behind and had resigned himself to doing PW4's
bidding for he felt PW4 might have felt angry with him for
assist him with the result that the intended concert did not take
place at Ha Khanyetsi. With this in mind he decided
that he would be
patient and accept the slow pace inflicted on him by PW4. Thus for a
further 6 to 7 Km spanning the distance between
Nyakosoba he resigned himself to what seemed to be his fate that
night i.e. following slowly behind PW4.
PW4 admits that he had stopped at Pheuoeng but says his
vehicle was off the road. He also admits that the accused's vehicle
behind his though he gave no reason why the
accused would not pass yet there was nothing to obstruct
the passage of the latter's vehicle. While on the one hand PW4
least that the accused's vehicle had stopped behind his
kombi in this area, PW5 and PW6 on the other deny that the accused's
came anywhere near PW4's vehicle at that spot nor stopped
behind it. It is common knowledge as even experienced in CRI\T\22\88Rex vs Motamo Sehlabaka that witnesses sometimes contradict
one another in a manner that it becomes doubtful whether their side
of the story would carry
the day at all.
While PW4 and the accused and several other witnesses
testified that indeed PW4 pulled to the side at Nyakosoba with the
the accused was able to pass, PW5 denies that his group's
vehicle did so. He further denies that his group had stopped there
purposes of passing water.
The Crown witnesses denied that the road followed by PW4
from Nyakosoba to the Ramabanta-Roma junction is an old unused road.
is however common cause that this is a short road but which is in
an advanced state of disrepair with the result that negotiating
way in a motor vehicle on it is an extremely slow process. The
Crown's submission was consistently that no ill-motive could
ascribed to PW4 and his group for the slow rate at which their
vehicle was moving ahead of the accused's and
blames the state of the road for that. On the other
hand the defence submitted that PW4 and his men had hatched a plan to
the accused and refers to the concerted effort on their
driver's part to block the accused's passage as part of this
plan. The defence further indicated that the many
stoppages were in part to ascertain whether the accused was still
vehicle as they didn't want to lose sight of him for
whatever sinister motive they had against him.
The defence in making this submission relied on the fact
that though a considerable distance away from where PW4's vehicle had
to the side at Nyakosoba where the accused was able to pass
the place where PW4 and his men were gives on the Ramabanta-Roma
and that it would be possible even at that distance to
observe through the signalling effected by the accused that the
heading not in the Ramabanta direction but Roma, The
defence buttressed this argument by stating that it would in any case
that despite all appearances that the accused was
going home to Matsieng he could use a round about and very bad road
those two places instead of a much shorter, safer and
tarred road that leads to Matsieng via Roma.
I think the question is not necessarily whether PW4 and
his group did see that the accused turned in the Roma direction when
he came to the junction, but whether they could if they
looked. In my view if the T-junction is visible from where PW4 had
at Nyakosoba then nothing could prevent him and his group from
seeing which way the accused turned and headed when he came to the
PW4 testified that after joining the tarred road beyond
Nyakosoba he headed for Ha Lebamang where he stopped his vehicle
the tarmac to the left. The accused on the other hand
says that having followed the round about way he was surprised to
PW4 had once more stopped at a curve topping the start of
the descent into the Nyakosoba stream. However, he testified that
vehicle ahead of him moved at high speed and fell out of his
view. But, so his story went, he again found himself confronted by
PW4's vehicle which had stopped between the raised walls of the
culvert at Ha Lebamang practically making it impossible for him to
pass. He testified that all the doors of PW4's vehicle were open at
this stage. The accused said he stopped his vehicle to the
the road behind PW4's Kombi.
PW4 denies that he had parked his vehicle in the middle
of the culvert. Nor had the doors of his vehicle been left open at
The Court went on inspection to the scene and marked the
first point of reference as "A" signifying the
side of the road where the Court stood some 35 paces in the Roma
away from point point "B" which marked the
location of the culvert measuring 7 paces in breadth.
The road is a gentle slope and consists of a gentle
curve to the right as one proceeds from the Khanyetsi direction to
point "C" uphill in the Khanyetsi direction
where the road falls out of view to point "B" the culvert;
is 127 paces long. From Point "A" to "D"
down hill in the Roma direction where the road falls out of view the
length of the road measures 84 paces. Thus the distance between the
two extreme points "C" and "D" totals 246
The nearest visible houses from point "B" lie
North East some estimated distance of 500 paces as the crow flies.
is in a gorge flanked by a steep bushy and rocky hill on
the South West side and an even thicker and denser growth of vast
of bush fanning out from immediately below the culvert to the
foot of another rising hill 400 paces on the North East side of the
Without exception PW4 and the occupants of his vehicle
who testified before this Court professed their ignorance of a place
in their view would be suitable for highwaymen to waylay
their victims. Their ignorance of a place that could be
ideal for waylaying is based on their claim that each of them had not
waylaid in their lives. In my view one doesn't have to be
waylaid before having a physical or even a mental perception of a
where one can lie in wait for one's intended victim. the
question arising is why these Crown witnesses should behave in this
but strikingly uniform manner in a situation which admits of
a variety of common sense possibilities. Any of the following
would adequately pass for the description of a place
which is ideal for waylaying, viz, remote, obscure, bottle-necked,
boggy or simply dark.
From point "A" to where PW4 says his vehicle
was parked measured 44 paces. This was marked "E". From
to the accused's vehicle point "F" the
distance measured 13 paces. From "E" to "G"
where PW4 said
he stood passing water the distance measured 10 paces.
This is a point on the Khanyetsi side of the culvert on the North
shoulder of the road.
From point "E" to the opposite side the
gradient is quite steep.
From "G" to "H" a distance measuring
12 paces signifies the distance traversed by the accused and PW4
From "H" to "I" a distance measuring
11 paces is a distance where PW4 says he and the accused rolled.
"J" lying 5 paces from "H" signifies
where PW4 says someone from among the accused's men came and pulled
"J" to "K" 2 paces apart signifies
the spot where PW4 came to stop after being pulled from the back as
above. "K" also signifies the spot at which PW4
says he was when he got
Point "L" lies 6 paces away from "K"
signifying where it is alleged the accused was standing when he fired
PW4 said he was at "K" when the deceased
emerged from point "M" 36 paces away.
PW4 stated that the deceased was at point "N"
21 paces away from "M" when the latter got shot.
PW4 said the deceased started raising his hands while at
point "0" some 10 paces away from "N".
It was at the inspection in loco where Mr. Phafane
asked the Court to observe that at point "G" and the area
immediate vicinity where PW4 said he stood passing water
when accosted by the accused there was no bush. Indeed the Court
noted this observation.
The Court relying on spots identified by PW4 marked
point "P" 4 paces deep into the road to signify the
position or location
of the right set of PW4's vehicle's wheels while
"Q" signified the location of the left set of wheels direct
on the edge
of the tarmac.
The Court observed that immediately to the left of "E"
where PW4 says he had parked his vehicle there is an open space and
that the edge of the road falls gently to the left suggesting that if
PW4 had had concern for the interests of other road users he
have had no difficulty making use of that space even if he had
experienced a sudden need to pass water for in any case he moved
paces away for the purpose, whereas if indeed he was under such
pressing need he would have directed his spray on the front wheel
on the ground below the driver's door.
The Crown expressed its wish to have the space referred
to as a furrow. the Court observed that it is indeed a water course
enough to accommodate Mr. Nthethe's private car which
experienced between 25 degree and 30 degree tilt when the
right set of its wheels were on the edge of the road;
and further that there was no question of the under carriage of that
the ground even when the left set of its wheels were on
the deepest portion of that water course while the right were on the
of the road.
However the Court through the Crown's invitation
that immediately to the left of "E" but
slightly to the front there were holders in the bed of the water
the Crown wished the Court also to observe that at this
point the road is 8 paces broad i.e, from "P" to "R".
The Court observed that from "E" the front of
PW4's vehicle to "S" the mouth of the culvert on the
measures 10 paces.
The Court also observed that "T" to "U"
signifying the right hand side of the road as one faces Roma falls
off the edge of the tarmac.
The Court observed the spots demonstrated by the accused
and to avoid confusion identified them numerically.
Point "One" is marked as more or less the
middle of the road
-22-lying between the raised edges of the culvert.
Point 2 lies on the edge of the tarmac but a pace from
the left shoulder of the road.
Point 3 lies at the end of the Roma side of the right
hand side of the culvert as one makes the observation facing Roma,
Point 4 lies about 6 paces away from point 3 and falls
steeply to the right off the culvert.
Point 5 lies 21 paces away from point 4.
Point 6 lies 8 paces away from point 5 and on opposite
Point 7 lies 16 paces away from point 6 in the direction
from Roma to Khanyetsi.
The Court observed that, facing Roma, on the right
handside wall of the culvert on the Roma side of the culvert the
inner upper edge
showed that a stone which appeared to have been
cemented there seemed to have been dislodged leaving a marked
the hollow space and the cement finish on the
neighbouring stones. It was at this juncture that the Court
observed the accused picking up and holding a stone 5
paces away at the bottom of the slope abutting the culvert wall in
The Crown wished it to be observed that the defence pointed
at 7 spots without making any comment thereon. This was a welcome
insofar as it referred to the figure 7 because it
effectively clears some confusion arising from the impression gained
by the defence
that the place of the dislodged stone on culvert wall
was marked 8.
It should be clear from the reference points mentioned
above that there is a dispute as to where PW4's vehicle was parked.
also controversy regarding where the accused found PW4.
There is also controversy regarding the places where the first and
shots were respectively fired from and also regarding whether
or not each shot found its independent target.
While giving his evidence the accused stated that one of
the things he noticed while driving along the road following PW4's
he saw PW4 patting the side of his vehicle through the window
while someone in the passenger seat was raising and lowering his
hand outside the window. Aware that this was never put to the
Crown witnesses yet the accused tended to attach importance to it
Court put questions to him; and this is how the text reads:
"Why did you tell the Court that ? Because I
the Court to know of it.
Didn't you think those gestures were important
your case ? I now realise they are important.
When did you realise their importance ? After
the occurrence of the incident that brought us before
If they are important do you recall your Counsel
putting them to Crown witnesses at all ?
I can't recall them distinctly.
Don't you think you would have recalled if they
put ? I wish I could remember but
because of the length of the case I can't remember.
Did you tell your Counsel about this ? I recall
I don't recall him putting them to these witnesses but
if it happens they were not put to them would
you say why ? (Obvious uncertainty and
appearance of perplexity in the accused's face observed
coupled with silence)".
the Crown took over -
"At what point did you say you saw PW4 with
hishand out ? At Likatseng.
What was he doing ? Patting the side of
Did you take this as anything of significance
the time ? I didn't know what it signified.
You saw left arm on passenger side as well.....? Yes
Did you attach any significance to this gesture ?
Nothing at the time. It didn't occur to me how
important it might be but I saw it.
How long did these go on for ? I don't remember
it didn't take long.
These gestures were spontaneous actions of response
to the music that was being played in there ?
I don't want to deny that"
With reference to the authority of Phaloane v. Rex
LLR at 246 the above text would tend to show that the
accused was fabricating, indulging in afterthoughts and manufacturing
as the case progressed for it is inconceivable that he
could have omitted to put to the other side so important a feature in
defence as this one that should serve to give the Court an
insight into his state of mind from the time when he saw these
till when he suddenly realised what they portended.
In Phaloane above Maisels P. said :
"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
the case for
the accused. Moreover, even making due allowance for
certain latitude that may be afforded in criminal cases for failure
the defence case to the Crown witnesses, it is important for
the defence to put its case to the prosecution witnesses as the trial
court is entitled to see and hear the reaction of the witness to
every important allegation".
There is no doubt in my mind that this was an important
allegation by the accused. It would have been necessary and indeed
to see and hear PW4's reaction to it and to the suggestion
that the accused interpreted it, while at the scene, as the gallows
or some bizarre precursor to the fate that was awaiting him
But "Lo and behold" the crown in its wisdom
demolished the essence of the question whose effect was
to show that the accused's reference to the gestures was an
indeed it was heard and seen for the first time when
the accused was giving evidence in his defence and when no crown
witness could be called to react to it any more.
Thus even if this appeared to be an afterthought, once
the crown suggests, as it happened here, that such a thing took
if it didn't, the accused cannot be faulted for saying he
observed it. But that is not the end of the story. It goes further
shows that once it is accepted that he saw it he cannot be
faulted for interpreting it the way he did, given the circumstances
said he was in when he called it to memory and its full
significance dawned in his mind while at the scene; for then it
what accounted for the milk in the coconut. This looms into
greater perspective when looked at against the background he based
fear on and supported in this regard in part by PW4 who testified
that even at spot "E" where he had parked his vehicle
had effectively blocked the accused's path. The picture that one has
of the accused then is of a man whose path is blocked at
and remote area way up in the mountain at night by a group of young
men who entertained the perception that the accused
had deprived them
of their means of livelihood and done such further acts of contempt
to them by harassing the policeman who was
trying to persuade him to
the concert to take place, referring to them as rags and
slapping one of their companions on the face simply because he is a
One cannot help feeling that the group members were smarting
under this insufferable behaviour of the accused even at this point.
PW4 who is a licensed driver and who had used the road
past the scene at Ha Lebamang many times before,told the Court that
at that spot where he had parked does not admit of two
vehicles going past each other either in opposite directions or
He said the drivers confronted with any of these
situations stop and wait for each other.
I agree with him because I personally saw that at point
"E" where he says he had parked his vehicle occupied 4 of
paces that constitute the entire breadth of the road there.
The road on the culvert is even a pace narrower. Even while
that the road at the particular spot is 8 paces broad the
crown, as if to cock a snook at its own evidence, put to the accused
because PW4's vehicle had occupied only 4 paces of the road the
other 4 paces were free for the accused to utilise if he genuinely
wanted to pass and was not merely spoiling for trouble as it had been
his attitude throughout the way from Khanyetsi to Ha Lebamang.
would in part flow from the question put to the accused that if he
had not done what he is alleged to have
done at Khanyetsi events at Ha Lebamang would not have
taken place. The logical analysis of this question leads to the
that despite their denial the group from Khanyetsi had
done something at Ha Lebamang to warrant some reaction by the
being had to the fact that the group in kombi left
Ha Khanyetsi a good while before the accused did, and that this group
ahead of the accused it is to be wondered how he would
know while at Ha Khanyetsi and coming along the way what was going to
at Ha Lebamang. To me this appears to be an oblique
concession by the crown that despite their protestations to the
and his group behaved in a manner that could in the
circumstances inspire fear in the accused that he was being waylaid
at Ha Lebamang.
It is trite that a cross-examiner has the latitude to
cross-examine on a wide range of things even those not directly
having a bearing
on a case. But when he puts to opposite witnesses
the case which is counter to the one adduced by his own witnesses
then it means
the train has left the metals.
In my humble view it seems that one need not be a
driver to realise that two vehicles cannot share equal halves of a
road 8 paces
broad without them scraping the sides of each other.
Again looking at the evidence before Court as to the
credibility of witnesses on either side it seems
important to consider what motive could have prompted the crown
witnesses to nurse
a grudge against the accused, or prompted the
accused to act in the manner he is alleged to have done.
The Court has observed with astonishment the impression
created by the crown witnesses who had gone to Ha Khanyetsi that they
not unhappy that the accused had in their perception caused
their concert to fail. It took a very long time and an equally large
degree of patience through repeated questioning by the defence
counsel to make some of them realise the ridiculousness of their
The evidence led made it understandable that if theirs
was the perception of the accused's conduct it would be only natural
to have a motive to retaliate.
The apparent humiliation of the deceased by the accused
who it is alleged threw away the deceased's ID Card and threatened
would deprive the deceased of his employment also furnished
the motive to retaliate.
The testimony by the accused and the perception by the
music troupe that he declined to persuade PW3 to allow the group to
with the concert also provided the motive to retaliate.
Evidence showing that the deceased had made more than
two attempts to appeal to the accused to persuade PW3 to allow the
take place is on hand. This question of crown witnesses
acting on perceptions is demonstrably accentuated in PW4's conduct.
he did not see the accused slap PW6 as far as he was
concerned the accused had done so. It should not be forgotten that
of his status in regard to members of the music group PW4
had considerable influence over them. He supplied them with
for free from place to place in pursuit of their musical
performances. He felt that he had responsibility towards their
in regard to the group members' own welfare. Thus because of
this high degree of care towards his group it is not inconceivable
that PW4's wish to them was as good as their command.
The Court has observed that while it was easy for them
to pointedly say the accused was lying whenever his version
their own, they would not be so forthright in
discounting PW4's version in preference to theirs. Thus PW4's
that the accused had slapped PW6 could easily
have had an infectious effect on his men in other respects as has
by their unwillingness to assure the Court that
their individual versions when at variance with his,are preferable to
they tended to feign stupidity and to claim that
they did not understand the question which had to
repeated five or more times sometimes.
PW5 who is the most educated of the group which had gone
to Ha Khanyetsi having testified that he went as far as Form 5 owned
whenever his story was shown to be illogical he would claim
that he did not understand the question.
These witnesses said that the accused chased them from
Ha Khanyetsi but wish to say that such a thing would not make anyone
revenging one way or the other.
The financial loss and expenses incurred in the
preparation for a concert whose failure occurred through the apparent
of the accused, and the consequent loss of a good
name and future reputation of the music group all because the accused
was the driving
spirit; would in my view provide a fertile ground for
the motive to revenge.
On the other hand one would be hard put to it to find
what further motive the accused would have had against the members of
which he was coming behind from Likatseng where he had
caught up with it, when his desire to disrupt the concert had been
without resistance. This question assumes an even greater
importance considering that he could not possibly hope to catch up
them any where along the way when they had had no
less than one and half hours' head start of him.
Even granting that the road followed was narrow it is
not understandable why the accused was made to stop time after time
being let pass for so long a distance.
It was said his path was blocked at Ha Lebamang because
PW4, according to PW4's own testimony, wanted to pass water. But
kilometre into the tarred road from the junction joining the
bad dirt road to Ramabanta-Roma road the same vehicle had stopped,
as suggested by Mr Lenono for the Crown, to enable the
group to pass water yet hardly a kilometre back into the Nyakosoba
village it was said the group had
stopped for the same purpose.
Again looking at the conflicting versions among the
Crown witnesses as to why there had to be a stop at Ha Lebamang one
impression that either the true reason has been forgotten
or hidden. PW4 said it was solely for the purpose of his passing
as he had been terribly pressed yet only 20 paces ahead of him
and therefore beyond the culvert there is a wide space to the right
to reach which by kombi it would have taken him less than a quarter
of the time he spent moving on foot 10 paces away for purposes
relieving his tight bladder. On
the other hand it is stated that he stopped there
because it was members of the group who wanted to pass water. If so,
there is far
less excuse for his failure to move ahead or at least to
ensure that he was well clear of the culvert, for the plight of his
could not hold any risk to the safety of his kombi or lives in
it which otherwise would be the case if the driver was faced with
such predicament as a sudden need to answer the call of nature.
Mr. Phafane submitted that if one is confronted
with conflicting stories on so important a stage in the evidence as
this the safest way would
be to reject both as false, otherwise
spinning the coin to decide which version to accept would be as
precarious as relying on guesswork.
I have indicated that it is not unusual for witnesses to
contradict each other and also for their versions to contain
yet at the end of the day find that their side of
the story is upheld in judgment as in Sehlabaka above. Yet,
however as illustrated at the inspection, PW4 who had earlier said
his vehicle was parked slightly off the road indicated
spanned by both axles were on the tarmac. Other crown witnesses say
the vehicle was outside the road or 3\4 - way off
PW4 said there was "khotolia" bush where he
But the Court saw none at the area yet he insisted in
Court after being to the scene that there was "khotolia"
Mr. Phafane accordingly submitted that PW4 was
not at point "G" but "3" when the accused found
him at the culvert as testified
by the accused. From this
observation he submitted that the motive was clearly to waylay the
accused. Indeed as properly brought
to the court's attention by Mr.
Lenono for the crown, it appears there is nothing magical about
the notion "waylay". You waylay a person if you stop him
to him, to obstruct him or even to injure. Any of this can
be effected by concealing one's presence at the spot found suitable
the purpose or by affecting an act of friendliness before showing
one's true colours, or by feigning distress as the accused claims
was his impression that PW4's vehicle was in distress hence his
alighting and going to inquire of PW4 "what now could be
The mystery of the way the encounter took place deepens
as one nears the climax. PW4 says the accused grabbed him about the
area and pointed a gun at him. But PW5 and PW8 say that did
not happen for had it happened they would have seen it. Further what
does it make of PW4's many contradictions? One would be tempted to
rely on PW5 in as far as his version is not exaggerated despite
deceased was his relative. But
conflicting versions relate to the question whether PW4
and the accused pushed each other or wrestled to point "3".
this regard PW4 and PW5 are opposed to PW6, PW7 and PW8.
Again PM4 says at the time he was wrestling with the
accused the accused's men were sjambokking him. But this is denied
by all other
eye-witnesses. The question becomes persistent; why
should PW4 say things under oath which people who had the opportunity
deny ever having taken place.
The accused denies that he rolled with PW4 down the
steep slope to point "4". The crown witnesses who were
give conflicting accounts of how the accused and PW4
came up and climbed back to the road. PW4 says the accused did not
until they got to the road. He says the accused was walking
backwards thus the two were facing each other as PW4 climbed facing
forward after the accused. PW5 says the accused emerged facing
forward and was not holding PW4 nor was the latter holding onto the
accused. PW6 makes no mention of any of this. But the same incident
viewed by PW8 at the same time with these others who have also
contradicted one another shows that "the accused was holding PW4
under the armpits with both hands while PW4 held the accused
the accused had held him with both hands". Whatever this means!
The crown sought to make capital out of the fact that in
his perceived apprehension that the accused was attacked, and
that he should defend himself he sustained no
injuries. With respect, the fact that an accused person successfully
quells an attack
mounted against him and suffers no injury in the
process is no proof that he was not attacked. It may only serve as a
the degree by which, in an appropriate case, he has
exceeded the bounds of self-defence.
The accused's story as opposed to PW4 who referred to a
nonexistent "khotolia" bush as the place of his first
with the accused is that the place was not point "G"
but point "3" and backs his story by pointing out where
stone got dislodged when rushed on and pushed by PW4 down the slope.
He explains that his left: leg got hitched on the stone in
and broke it free as a result of the push from PW4 who remained on
top of the road and never rolled down with him to point
He said from the first encounter to the end it took not more than a
minute. Indeed regard being had to the length
of the distance he
indicated he traversed between point "3" below where he
says he fired into the air, via point "4"
to point 5 where
he says he fired in the general direction of his pursuers who were
gaining on him, giving him no opportunity to
defend himself any other
way except by shooting, it does not seem to be inconsistent with
reasonable possible truth that the fight
took that length of
time. He said he had to ensure that he ran where there
was light from the vehicles on the road but the lights of the
not follow the curvature of the road. It is common
knowledge and scientific fact that light travels in a straight line.
the portion on which the headlamps of the vehicles gave was
up a steep mountain on his left. To seek refuge there would be to
himself a lame duck.
The crown sought to make much of the fact that it turned
out that PW4 and his men were not armed. But in my view the question
whether given the circumstances of the case, and the fact that it
was at night the accused if he is to be believed acted reasonably
not. He said he fired the first short into the air to scare away
what he perceived to be a group bent on causing him harm. When
did not help, he ran away but was pursued; whereupon fearing that if
caught up with by his pursuers he would come to some harm
hands; and fortified in this belief by the fact that they didn't seem
to relent in their pursuit of him as he was tiring,
he did the only
reasonable thing to ensure his safety: shot in the general direction
of his pursuers and did so with the only available
weapon in his
possession. See R. vs Patel 1959(3) SA 121 saying :
"An accused is entitled to an acquittal on
theground that he was acting in self-defence if itappears as
a reasonable possibility on the evidencethat he had been
unlawfully attacked and had reasonablegrounds for thinking that
he was in danger of death orserious injury "
Again it is said:
"Men faced in moments of crisis with a choice of
alternatives are not to be judged as if they had both time and
weigh the pros and cons. Allowance must be made for
the circumstance of their position"
PW12 Major Telukhunoana a firearms expert testified that
at a given range suggested to him in this Court it would be possible
a single round of ammunition to travel through one target to the
next provided it does not get diverted as it would when it hits
something like a bone. It was suggested and in fact established in
PW1's evidence that the part of PW4's hand affected by the fired
was mainly tissue. The examination conducted on the deceased showed
that there were only the entry and exit wounds suggesting
one round of ammunition entered and exited from the body. Thus in
doing so it could have hit PW4 afterwards or if it hit
him first it
could possibly have hit the deceased afterwards.
Anyone of the two possibilities in whatever order it
could have occurred, does not seem to me to be excluded by factors
on this case from the realm of being reasonably possibly
true, although surprisingly it took a lot of coaxing for PW12 to
this otherwise obvious possibility - given that the
distance between the two targets purportedly hit by the same bullet
close range of hardly four paces away, was
barely five paces and regard being had to the fact that
PW12 himself said unobstructed a bullet fired from a gun of this
hit a target more than 500 metres away.
Mr. Phafane attacked the crown case on several
fronts. He suggested that because the deceased before he died was
taken to hospital at St. Joseph's
Roma yet no evidence has been
adduced of what form of treatment was administered and the
qualifications are of people who treated
him then novus actus
interveniens cannot be excluded. That may be so. But Thabo
Tsomela vs Rex 1974-75 LLR at p.99 is authority for the view
expressed as follows by Cotran CJ:
"I am unable to subscribe to the view that a court
of law is precluded from coming to a conclusion about the cause of
reason only that no medical evidence was available, or if
available, was not satisfactory or not (scientifically) conclusive.
are numerous cases of convictions for murder or culpable
homicide where no body was found at all, much less medical evidence
it, so also where a body was so decomposed that the cause
of death could not be ascertained".
In CRI\REV\1\86 Rex vs Phate Mabilikoe and 5 Others(unreported) at 8 this Court said :
"In other words novus actus interveniens was
shown to be a positive act based on a demonstrable action by a
participant whose attempt at bringing about relief to the deceased
could not be excluded as a new thing that caused the death of the
independently of the accused's initial act. In other
words if sought to be relied on novus actus interveniens must
be shown to have been effective cause not imagined or invented".
In R. vs Adams 1957 CRLR 365 in his charge to the
jury Devlin J as he then was said :
"Cause means nothing philosophical or technical or
scientific. It means what you twelve men and women sitting as a jury
jury box would regard in a commonsense way as the cause".
To hark back to evidence on contradictions and
conflicts, Mr. Phafane made an important observation and in
turn submitted that there couldn't have been an occasion when the
deceased pleaded with the
accused pointing out he had shot a man
meaning PW4 if PW4 had not done anything to show that he had been
shot, for according to his
evidence it took him quite a while before
he realised he had been injured in his hand by a gunshot. The other
point submitted byMr. Phafane has merit that in order to have
observed the events well people who observed them should have done so
from a point of vantage. In
the circumstances of this case such a
place happens to have been the seat immediately behind the driver's
seat. It is amazing that
no less than 3 eyewitnesses make a
frantic scramble to jockey for this particular position and each
claims that when a particular
event common to all of them such as the
firing of the first shot, he was seated on this very seat. This is a
blatant untruth. Another
which becomes even more inexcusable as a sign that
witnesses have concocted their story is when they testify alike on
is not real or true, such as was the case in the
matter of CRI\T\3\86 Rex vs Mafole Sematlane (unreported).
Regrettably this Court has had about a surfeit of that kind of diet
in the instant case.
In S. vs Jaffer 1988(2) SA 84 at p.88 Tebbutt J
a Judge of the Lesotho Court of Appeal) with regard to
probabilities permissible in a criminal case criticised a
which went -
"Now the court has now two single witnesses telling
different stories in certain respects. 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 cautioned that :
"This approach by the magistrate was incorrect.It
is, of course, always permissible to considerthe probabilities of
a case when deciding whetheran accused's story may reasonably
possibly betrue ..."
In S. vs Munyai 1986(4) SA 712 at 715 van der
"There is no room for balancing the two versions
i.e. the State's case against the accused's case and to act on
SeeS vs Singh 1975(1) SA 277.
The approach whereby the court applies its mind not only
to the merits and demerits of the crown and the defence witnesses,
to the probabilities of the case is helpful in ascertaining
if the accused's version is so improbable as not to be reasonably
R. vs Difford 1937 AD 370 at 373 laid down the
rule 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.
At 716 Van der Spuy proceeded and said :
"The fact that the court looks at the
probabilitiesof a case to determine whether an accused's
versionis reasonably possibly true is something which
ispermissible. If on all the probabilities theversion made
by the accused is so improbable thatit cannot be supposed to be
the truth, then it isinherently false and should be rejected "
In S. vs Kubeka 1982(1) SA 534 at 537 it was said
"Whether I subjectively disbelieve him is, however,
not the test. I need not even reject the State case in order to
I am bound to acquit him if there exists a reasonable
possibility that his evidence may be true. Such is the nature of the
on the State".
As Van der Spuy 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 demonstrably
false or inherently so improbable as to be rejected as false".
An attempt was made by the Crown to prove the accused a
liar by bringing what was properly objected to as hearsay evidence in
a relative of the deceased had learnt that the relatives of the
accused whom he had not seen had allegedly taken a beast for
or some other purpose at the deceased's funeral. Despite
that this attempt was foiled as inadmissible the Crown in a last
sought to cross-examine the accused on the bewyses of
which the accused was not shown to either be the author or to have
by evidence placed before court through crown
witnesses. Despite that one Nkau Nkuebe's name was mentioned as a
sent to deliver any such ox no such attempt was
made to call him to testify on behalf of the crown. The crown should
at all times
show familiarity with the nature of the case it seeks to
present before court and avoid giving the impression that it is
last ditch attempt at clutching at straws as was the case in
Another vital area where the crown evidence was
resoundingly contradictory relates to the events at the charge office
the accused's mood was painted as overbearing, haughty,
pompous arrogant and brassy and setting himself above the authority
police according to PW4 and the group of musicians yet it is
the same accused who even let his vehicle to be driven by one of them
to convey the deceased to hospital for treatment. The group's
evidence is in sharp contrast with that of the police who were in
charge office at the same time with PW4's group. Those police
described his attitude as courteous, polite and cooperative. Of
course the accused denied that he was any of the things, portrayed by
PW4 and his group. This in itself projects a motive to revenge
putting the accused in as bad light as they possibly could.
If this sharp contrast typifies on the one hand the
observation of an isolated event witnessed at the charge office by
PW4 and his
group at the same time as by the other crown witnesses on
the other hand; it cannot be wrong - when evaluating and assessing
disparity in observation - to adopt the attitude, in those
circumstances where the accused happened to have fallen under the
focus of PW4 and his group that their evidence is not above
suspicion. By token of the same rule then it would seem that in all
the isolated instances where PW4 and his group claim what the accused
and his witness deny, the evidence of PW4 and his group has
taken with a pinch of salt and therefore treated with great caution.
Indeed the events surrounding this case were even in the
most serious aspects of it verging on the comical.
First the Court heard the evidence of the 1st doctor
whose sketch contradicted the evidence of the complainant who
the Court the hand on which he had sustained gun shot
Next came that of a doctor who under cross-examination
it appeared he was not qualified to perform post-mortem examinations
he had not yet registered as required by the law.
Afterwards came the testimony of a firearms expert who
submitted an affidavit and claimed that the contents in it were the
of the tests he performed while in fact after he had been
recalled and made to appear in Court for the third time it was
that for his findings he relied on notes prepared by someone
other than himself. See Regulation 7 of Government Notice No.80 of
Finally as if to put a coping stone to the drama in the
scenario no less than two witnesses came to testify about the
the deceased and none came any near saying at least
someone identified the body to the doctor for post-mortem
I couldn't help therefore calling in mind the fable
whose pungency improves with the narration. It goes thus :
In one country a certain reserve was declared a bird
sanctuary. The inhabitants of this country offered the necessary
to the birds which nested and lived undisturbed in that
reserve. But one day a night-watchman who woke up in his sleep at 12
only to find that stars had come out in the sky - unknowingly
to him because of the dust storm which had obscured the sun - rose
and made for his place of work.
Along the way he witnessed a crime being committed
against the birds. Quickly he went and laid a complaint against the
His charge was concisely and briefly that at night when
he went past the bird sanctuary he saw a man throw a stone at a bird
on a tree and kill it.
The case was brought before court where it turned out
that the stone he attested to was not a stone but in fact dry cow
time of the incident was in fact not at night but midday;
The tree was in fact a datura plant; The offender was not a man but
fact a hermaphrodite; The bird happened not to be one but a bat.
I am satisfied that the accused has given a plausible
and easy-to-follow account of the events which occurred and which is
by inferences properly to be drawn from reliable
evidence led and substantive facts of the case as a whole regard
being had to the
fact that -
" the court does not have to
believe his story; still less has it to believe
it in all its details".
See Sehlabaka above.
The accused is acquitted and discharged in both counts.
Exhibit "1" and the rounds of ammunition are restored to
My assessors agree.
For Crown: Messrs Lenono and Semoko For Defence:
Messrs Phafane and Nthethe
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