IN THE HIGH COURT OF LESOTHO In the matter between:
STEPHEN MATSELA NKHASI APPELLANT
MOTLALEPULA CHABALALA APPELLANT
V.R E X RESPONDENT
REASONS FOR JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo, on.
the 2nd November, 1995.
The appellants were charged in the Leribe Resident
Magistrate's Court on the 2nd August, 1995 it being alleged that both
did unlawfully and intentionally steal the sum of money
amounting to M3,578-00 the property or in the lawful possession of
They had been found not guilty, acquitted and discharged
by the Court a quo.
It was against the finding of the learned Resident
Magistrate that the Crown had appealed to this Court.
Amongst some of the reasons the Senior Public Prosecutor
raised were the following:
1. There was enough evidence against the accused.
There is evidence that the accused voluntarily pointed
out the monies to the police.
Money was found from awkward places - that is in the leg
of the table
Accused 2 had said to the police that the properties
that is the jacket. the hat and the blanket were his he gave them to
1 at the time or during the course of the offence.
When this appeal was about to be argued Mr. Thetsane for
the Crown indicated that he had no intention of supporting the appeal
was accordingly withdrawing it. It was a clever decision. I
dismissed the appeal and intimated that my reasons would follow.
From the record of proceedings it appears that P.W.1
Tlhoriso Taele had testified that police had come to his home in
company of accused
1 and had asked for permission to search accused
1. Permission being given accused 1 had asked his wife to produce
money which he
had instructed her to keep and in his (P.W.l's)
presence a sum of about M3,000-00 had been counted.
P.W.2 Aslam Hamekar and complainant had told the court
that a bag containing M3,589-00 had bean snatched away from him and
I saw a plastic bag on the floor and the bag in that
plastic bag had gone missing.
He had then raised an alarm shouting: tsotsi, tsotsi and
he had seen a man running away and two of his men had given chase.
a few days he had been called to the police who
showed me about two thousand maloti plus in cash
Questioned by Accused 1 P.W.2 had replied:
Q. So you know me.
Q. Did you ever see me at all anywhere in the streets?
A. He does not look familiar to me so I do not know his
face as I deal with many customers.
Questioned by accused 2 he had replied:
Q. Did you know me when I worked for you?
Q. Since I worked with you did you know me as a rascal?
A. I do not know that but you worked normally with me.
Q. Until I deported (presumably departed) with you did
I work well with you?
A. Yes I never found anything wrong with you.
P.W.3 Sgt. Lerotholi testified he had gone to appellant
2's home where appellant 2 handed him a sum of M1,013.16 from
leg of a kitchen table. Appellant 1 had also handed
him a sum of M1,474,41 and P.W.1 had identified the bag into which he
In the course of cross-examination by appellant 2 P.W.3
had said that
P.W.2 reported that it was the boy who worked for him
who stole his money.
Both Appellants had given evidence in their defence and
the learned Resident Magistrate had found both appellants not guilty
them. Primarily the Magistrate had found appellants not
guilty because they had not been positively identified as men who
Now, with regard to the Senior Public Prosecutor's 1st
ground of appeal, it will be seen that on the contrary there was no
against the appellants for P.W.1 did not identify the
culprit who snatched his bag. It appears for a conviction the Public
relied on the evidence of P.W.4 Sgt. Lerotholi who. on
being cross-examined by accused 2 to the effect:
0. Please give court evidence showing that I have
A. P.W.2 reported that it was the boy who worked for
him who stole his money.
We already know that this was not P.W.2's evidence and
it appears Sgt. Lerotholi being cornered preferred to lie to court.
is what the Public Prosecutor in bis reasons for appeal
called 'enough evidence!' I find this untenable.
Regarding the 2nd ground of the Public Prosecution
reason for appeal, it was held in R. v. Nhleko, 1960(4) S.A. 712
'The burden rests upon the Crown to prove that any
statement of accused which it tenders was freely and voluntarily made
and. if there
has been violence before the statement, it must satisfy
the trial Judge that the violence did not induce the statement,
it did not have an inducing tendency in the first
instance or because that tendency had in some way ceased to operate.'
Noticeably, it was both accused's defence that they were
tortured and assaulted resulting in the production of the money. It
therefore be said that the production of the money by the
appellants was a voluntary act on their part.
It was also held in Nhleko's case above that evidence on
a charge of murder that the accused had identified a certain point as
place where he deposited a body or the body, is inadmissible. Not
without cause because it depends to whom the accused was speaking
pointing out. In this case the accused purportedly pointed out to a
peace officer making the pointing out in the circumstances
6 In the State v. Gwevu and Another, 1961(4) S.A.
536 (E.C.D.) it was held:
'When the state wishes the court to draw an inference of
quilt solely from a pointing out by an accused, then the evidence of
out must be satisfactory in every respect beyond suspicion.
It must be such that it is beyond reasonable doubt that the only
which can be drawn is that the accused had knowledge of the
exact position of an implicatory spot because he took part in the
of the offence.
The penultimate and bottom line of the above quotation
is of importance. In this case there was no shred of evidence that
1 participated in the commission of the crime while accused 2
was falsely implicated by P.W.3 whose testimony did not tie up with
that of P.W.2. Concerning the 4th ground of appeal by the Public
Prosecutor concerning accused 2's clothing. this did not take the
case any stage further as accused 2 was not identified wearing the
clothing complained of during the commission of the crime.
P.W.3 Sgt. Lerotholi compounded this case and seriously
compromised the crown case by attributing words and statements
to P.W.2 which this witness did not testify to as for
example, in addition, by saving:
'P.W.2 identified the said bank money bag as one in
which he had put his money.
I accordingly dismissed the appeal and ordered that the
appeal deposits be refunded appellants.
JUDGE 2nd November. 1995.
For the Crown: Mr. Thetsane
Appellants: In Person
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