CRI/T/89/94 IN THE HIGH
COURT OF LESOTHO
In the matter between:
Delivered by the Honourable Mr. Justice W.C.M. Maqutu on
the 15th day of May, 1995.
The Accused is charged with the crime of murder;
"In that upon or about the 8th of March 1990 and at
or near Matebeng in the district of Thaba-Tseka, the said accused
and intentionally killed TIPI MOHLOKO-HLOKO."
Accused, who was represented by Mr. T. Hlaoli pro-deo.
2 pleaded not guilty.
P.W.1 Seepa Motlomelo in his evidence said he saw
Deceased Tipi Mohloko-hloko being assaulted by the Accused. Before he
this assault, Accused had passed P.W.I who was working in
his field. Accused was going in the direction of Ha Sefako. P.W.1
he did not see Accused return, he only saw Accused chasing and
assaulting Deceased. This was in the afternoon. P.W.1 was some
away across the river. He went to where Accused and Deceased
When P.W.1 got there, P.W.1 asked Accused what was going
on. Accused said "you have come here in order to become a
As Accused was saying this, he was still assaulting
Deceased. P.W.1 says he told Accused to leave Deceased alone.
"Now that you have seen me I will kill you, burn
your house and open your animal kraal."
P.W.1 says he ran away leaving Accused there. Accused
continued with the assault. P.W.I never reported what he saw for fear
from Accused and the fear that Accused might carry out
his threat to kill him.
Under cross-examination P.W.I admitted that at the
preparatory examination he had said that although there were no
there were some people on a hillock some distance away
and they could have seen what was going on. P.W.I said he could not
them because he cannot see and hear properly. In answer to
questions P.W.I said he was not frightened of Accused because they
now before the Court, which is a place of intervention.
During cross-examination, P.W.I further added that after assaulting
Deceased, Accused himself went and surrendered to the police but
later ran away from the police. It is important to note that this
Court was extensively referred to the record of the preparatory
Before this Court P.W.I omitted (what he had said at the
preparatory examination) that is to tell the Court that he could not
see the person who was being assaulted. Consequently P.W.I had
to ask Accused who was the person being assaulted. Accused replied
was the Deceased Tipi.
The next witness was Thatho Salemane P.W.2. He told the
Court that he lives in the same village with the Accused. He had by
the case was heard forgotten
when the events he was testifying about had occurred.
The reason for this was, among other things, his illiteracy.
According to him,
the Chief had raised an alarm as a result of which
they went to the Chief who told him and other men to go to the home
of the Accused
to go and arrest him. They did not find the Accused.
It was already in the evening. They then went to the Deceased's body
it the whole night.
On Thursday Accused had in the evening called at the
home of P.W.2 and said he had fought with a man. Accused was drunk
and had only
laughed when P.W.2 asked him the name of the person with
whom he had fought. P.W.2 was on fairly good terms with the Accused.
In cross-examination, it emerged that he learned of the
death of Deceased on Friday. That was the day the chief called them.
how the Chief knew that Deceased had been killed, P.W.2 said
the Chief said he had been told by Fonane of Tjonti. The record of
evidence at the preparatory examination was extensively used
The case was adjourned because the Crown wanted to
subpoena Fonane of Tjonti. The Court entertained this
application of leading this witness who had not given
evidence before the preparatory examination. In any event no strong
was raised. A postponement was also necessary because
Thapelo Setumo and other witnesses who gave evidence at the
had not responded to their subpoenas because
he had not been served.
All witnesses that the Crown had postponed the case in
order to secure their attendance did not come. The preparatory
deposition Thamathu Soai was admitted by consent and it
was made P.W.3 for convenience. Thamathu Soai had only stated that as
of a report received, he went to where Deceased was lying
dead in a field. He was there when the body was carried to the police
The medical report was admitted by consent. It merely states
that the body of Deceased had deteriorated so much that the
of death could not be determined.
Another Deposition from the preparatory examination was
that of a policeman Trooper Lithebe. This was admitted and called
shows Deceased had eights cuts on the head with a sharp
instrument. The body was carried to Sehonghong mortuary and did not
any injuries on
the way. Then the deposition of a policeman Trooper
Pitso was admitted and it was treated as P.W.5. It shows how the
Accused was arrested
and charged with murder after having been
cautioned following the explanation he gave. The deposition of the
wife of Deceased Makalimo
Mohloko-hloko was also admitted as P.W.6.
She says her husband left home on the 8th March, 1990 but did not
come back. She learned
of his death on the 10th March, 1990. He had
been in good health. Chopho Mohloko-hloko was the one who identified
the Deceased and
his deposition was also admitted by consent and made
It seems there is only the evidence of P.W.I that
directly links Accused with the death of Deceased. The Court can
convict on the
evidence of a single witness, see Section 238
of the Criminal Procedure and evidence Act of 1981. Such evidence has
to be scrutinized with care because there was no corroboration
might have provided an insurance that a wrong conviction might
not take place. That is how the cautionary rule was born.
is nothing else but to give the court a feeling of certainty that the
Crown has proved its case beyond reasonable doubt.
In R v Mokoena
1956 (3) SA 81 at page 85 Fagan JA quoted with approval the following
passage from the case of R v Mokoena 1932 OPD
79 at page 80 where
7 De Villiers JP said:-
"In my opinion that section should only be relied
on where the evidence of the single witness is clear and
in every material respect. Thus the section ought not to
be invoked where for instance,...he made a previous inconsistent
he has not had proper opportunities for
Fagan JA was at pains to emphasise that De Villiers JP's
judgment should not be "read as laying down a requirement of law
must be strictly complied with" he was:-
"uttering what may be a useful warning that the
right to convict on the evidence of a single witness, stated without
words in the section, should not be regarded as putting
the evidence of one witness on the same footing in regard to cogency
evidence of more than one." R v Mokoena 1956(3) SA at
What the courts are saying is "The court may be
satisfied that a witness is speaking the truth notwithstanding that
he is in
some respects not a satisfactory witness". In that
event the court may convict. See R v Abdoorham 1954(3) SA 163 at page
This the Court can do so, so long as it has warned itself of the
dangers of convicting on the evidence of a single witness. The
of a single witness has to be satisfactory in material
respects. Such evidence does not have to be satisfactory in each and
8 every respect.
What has come to be known as the cautionary rule is seen
by Holmes JA as a requirement that the Court insists upon, realising
danger inherent in the evidence of a single witness. They
"Require some safeguard reducing the risk of wrong
conviction, but if corroboration is relied upon as a safeguard, it
to the length of implicating the accused in the commission of
the crime." S v Artman 1968(3) SA 339 at 340 H.
Although there is a tendency to regard failure by a
court to expressly caution itself of the dangers of convicting on the
of a single witness as a misdirection, that approach is not
strictly correct. It happens time and time again that lip service is
paid to the cautionary rule when in fact the trial court has not
exercised that caution. Holmes JA crisply stated there is no rule
law requiring that courts should caution themselves on evidence
of a single witness. "There is a cautionary rule of
See the case of S v Artman & Another 1968(3) SA 339 at 340. All
that Section 238 of the Criminal Procedure and Evidence Act of
1981 provides is that
"any court may convict any person of any offence
alleged against him in the charge on the single evidence of any
What is required by the courts is only that the evidence
be satisfactory in all material respects.
P.W.I gave his evidence well and his demeanour was
highly satisfactory. Accused on the other hand lied in a detectable
He denies he was anywhere near where the Deceased
could have been nor did he see Deceased that day. He denies saying to
he had fought with anybody P.W.2 like P.W.I had a very
satisfactory demeanour and gave his evidence well.
The Court in this case as in all cases is always obliged
to carefully analyse evidence of identification. In this case there
additional reason that P.W.I is the only witness who gives
evidence linking Accused with the assault of the Deceased. As an
requirement this Court is obliged to exercise a
great deal of caution.
It is when the evidence of P.W.I is carefully
scrutinised that hairline cracks begin to appear. P.W.I has a bad
eye-sight. He claims
he saw the fight. P.W.4 says wounds were
consistent with a sharp instrument. P.W.I does not say much about the
nature of weapon used
at the trial and he was not led on this. It is
that at the preparatory examination and in his
evidence-in-chief he did not say his eye-sight was bad. He only said
so when it emerged
during cross-examination that P.W.I had said
people at the hills could see this assault on the Deceased that he
At the preparatory examination he was
specific that a stick was used in the assault.
At the preparatory examination P.W.I says he could not
identify the person that Deceased was assaulting, he had to ask
that person was and Accused said the person was Tipi, the
Deceased. This difference between what was said here and at the
examination makes me worry whether P.W.I is telling
us what he really know.
There is something suspect about the story that the
Accused (who did not want that there should be any one (who would
about this assault) volunteered the name of the victim.
P.W,1 who was at pains to emphasise his timidity possibly might have
the assault at a distance but avoided going nearer. At the
preparatory examination he said this was the Accused and that it was
who told him that his victim was the Deceased, Before this
Court he improved his version
further by saying he went near enough to identify both
the Accused and the Deceased. I consider this aspect of the case to
of the material aspects of the evidence of P.W.1.
It does not help for P.W.I to say at the trial that
Accused surrendered to the police when the police do not corroborate
Perhaps if they had attended trial they could have helped
to corroborate P.W.I on the fact that this did in fact happen. At the
examination P.W.I does not say that he saw Accused at the
police station. Indeed his presence at the police station cannot be
because P.W.I says he kept what he saw to himself and told
what he had seen to nobody. Nowhere does he say he unburdened himself
to the police. It remains a mystery how he came to be a witness at
all. Surprisingly he was asked the question whether he told
anybody that he saw Accused assault Deceased several
times. If he told anybody about this assault, even to the police he
P.W.2 also, for the first time at the trial, says when
the chief had called them, he told him and the men he was with to go
Accused. He never said this at the preparatory
examination. P.W.2 at the preparatory examination said Accused came
to his home on
the same day Deceased died. At the trial it seems the
Accused came on Thursday while an alarm was raised on the evening of
It is therefore apparent that P.W.2 is not really certain
about this. He kept the whole incident to himself, according to
evidence. It is therefore clear that it is hard to be certain
when Accused said he fought with someone. It may or may not be on the
day Deceased died. Even if he did that does not connect him to the
death in any significant way. If Accused was from the very beginning
a suspect and when the alarm was raised the chief ordered his arrest,
why did P.W.2 not say so at the preparatory examination? In
this query I am mindful of the fact that evidence is sometimes badly
led and badly recorded at the preparatory examination.
Accused says he was arrested for the first time after
two years from the possible date of death of Deceased.
The year of remand is 1992. He said he never surrendered to the
is nothing concrete that could be relied upon to
suggest that the did surrender. Even if he had surrendered himself to
that would not necessarily connect him with the death of
It is trite law that the Crown has the onus of proof.
The Crown has to discharge this onus. Accused should not be convicted
because he is a liar as this one appears to be.
He is usually treated as if he has not given evidence at
all, if he lies. In R v Nel 1937 CPD 327 at 330 Davis J dealing with
lies of the accused said:
"It was no doubt reprehensible and foolish for the
accused to have tried to make his case better in this way, just as it
to tell untruths... But there is always a possibility that his
conduct in both respects may have been caused by fear,
his innocence of the present charge."
As Hoffman in South African Law of Evidence 2nd
Ed. at page 431 has put it; "But the court is not entitled to
say that because he has been
proved a liar, he is therefore likely to
be a criminal". There are situations in which
the Accused's lies can lend the evidence of Crown
witnesses a certain complexion. For an accused person to lie is
therefore a dangerous
With the evidence such as I have before me, I feel that
this is a case in which the Accused should be given the benefit of
The Accused is therefore found not guilty and is
My Assessor agrees.
W.C.M. MAQUTU JUDGE
For the Crown : Miss N. Mokitimi For the Accused:
Mr. H. Hlaoli
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