CRI/T/44/2000 IN THE HIGH COURT OF LESOTHO
the matter of:
1. REFILOE MOKALANYANE
ANDREAS Van der MERWE
Delivered by the Hon. Mr Justice M.L. Lehohla on 27th
April, 2nd May,2001
For convenience the above accused who were formerly
charged jointly with three others who for some reason or other are
Court, shall be referred to as accused 1, 4 and 5
respectively thus retaining the numbers given to them while jointly
the other accused who are not before Court but who were
2 the numbers 2, 3 and 6.
Accused numbers 1, 4 and 5 pleaded not guilty to charges
of murder in Count I, murder in Count II and robbery in Count III.
In Count I the charge preferred against the accused
" upon or about the 21st day of June,
1995 and at or near Ha-
Lumisi in the district of Mafeteng, the accused, one, or
the others, or all of them, did unlawfully and intentionally kill
In Count II the specific terms are to the effect that
" upon or about the 21st day of June,
1995, and at or near Ha-
Lumisi in the district of Mafeteng, the said accused,
one or the others or all of them, did unlawfully and intentionally
In Count III the charge specifies that:
Lumisi in the district of Mafeteng, the said accused,
one or the others or all of them, did unlawfully and with intention
submission by the deceased, Sekoli A. Moeketsi and
Refiloe 'M. Mofolo to the taking by the accused of certain items of
(i) a motor vehicle Jetta (VW) GLX, silver grey in
colour (ii) a pair of black shoes(men's) (iii) a grey
(iv) a black leather jacket (v) a diary book
threaten the deceased persons herein that, unless they
consented to the taking by the accused persons of the said property
from offering any resistance to them taking the said
property, they would then and there shoot and or kill them; and did
thereupon take and steal from the persons of the said
deceased the said property, which was the property of the deceased
in their lawful possession, and did rob them of the same".
Needless to say at the end of the Crown case the
applications for the discharge of accused 1, 4 and 5 were refused in
terms of a ruling
delivered on 4th December, 2000,
whereupon only accused 1 and 5 gave evidence in their defence while
accused 4 on, no doubt, advice from his counsel
Mr Lesuthu opted to
exercise his right to remain silent.
At this stage of the proceeding the Court is called upon
to determine if the Crown has succeeded in discharging the onus
it to prove the individual accused's guilt beyond a
reasonable doubt in respect of one, more or all counts. This is the
test to be
applied even in respect of accused 4 who remained silent
even although the Court's finding had indicated that there was a case
answer. If in any of the charges preferred the determination is
that there is proof of guilt beyond doubt then it would mean that
respect of an accused person who remained silent the
4 prima facie case became conclusive in the absence of
the explanation the tenor of
evidence tendered required him to give in the sense that
it called for an answer. In an endeavour to prove its case the Crown
eighteen (18) witnesses.
The defence on its part relied on five witnesses
DW1 Moeketsi Sello DW2 Moeletsi Challa DW3 Rethabile
Mathetse who testified for DW4 No.l accused Refiloe Mokalanyane.
The last defence witness is DW5 No.5 accused Mokherane
Significantly accused 1's witnesses testified before
him. More of that later.
PW1 Litseko Julius Mosoeu having been given a warning
pertaining to accomplice witnesses testified on oath that he resides
Ha Seleso and has been living there even in 1995. He is
aged 38 and for the last 15 years he has been employed as a soldier
Lesotho Defence Force - LDF - where he is still an employee to
PW1 recalls that on 21-06-195 between 8 pm and 9 pm his
children drew his
5 attention to the lights of a vehicle outside the home.
He went outside and found that the vehicle was actually inside his
He told the Court that he saw two people alighting from this
vehicle. He approached them and inquired who they were. One of them
answered and said "it is me Mr Mosoeu" and indicated to PW1
that he was ACE. The name Ace was a nick-name of a fellow familiar
PW1 surviving under the name Moeketsi Mofihli.
PW1 didn't know Ace's companion who remained silent and
didn't say anything. Because PW1 knew Ace's parents' vehicle and
particular one was unfamiliar to PW1 he asked where they
got this vehicle from.
The explanation given while on face value appeared
plausible it later turned out to have been a mere ruse. This is the
came to make after his own arrest when the story put to
him by interrogators revealed to him that he had been given hold of
end of the stick.
The fanciful story that was related by "Ace"
Moeketsi Mofihli in the presence of accused 1 was that the duo
car from Mohale's Hoek. Asked how they managed to obtain
it, Moeketsi Mofihli stated that while he and accused 1 whom
6 PW1 got to learn was Refiloe on asking Mofihli who his
companion was, had been
drinking at a restaurant in Mohale's Hoek and they saw a
drunken man from whom car keys imperceptibly fell. Mofihli collected
keys and went to the parking area outside and kept on
reactivating the remote activator till the car to which the key
the positive reaction. This is how the duo were able to
find the Jetta car among many cars.
It is important to note from Pw1's evidence that he
testified to being told by Mofihli that the fallen keys were picked
up from the
floor by Mofihli from the drunken man and that Mofihli's
companion didn't say anything to gainsay what Moeketsi Mofihli was
See page 3 of Court's notes.
Having secured themselves the possession of this Jetta
car they travelled in it from Mohale's Hoek to Lithoteng at PW1's
this conversation took place.
It is during the course of PW1's evidence relating to
what Mofihli was telling him that he asked Mofihli who his companion
Mofihli said the companion is Refiloe. PW1 learnt from
Mofihli during the course of this conversation that Refiloe's home is
to Pita's shop.
7 Then PW1 addressed the question to the duo as to what
they said "about this
car. The reply was that they wanted to leave it at
my(PW1's) home while they were going to look for a place to hide it".
It appears patent that PW1 was prepared to go along with
the scheme that involved the "hiding" of this car. He thus
that it be driven closer till it reached the front door of his
home which is where PW1 indicated it should be parked.
It is at this stage that on noticing that this car is
new PW1 asked the duo to open it so that he could see it more
closely. As they
obliged he sat in the front passenger seat of the
car, opened the cubby hole and found a small note book in there with
names of people
written in it but forgets what these names were. He
also found a log-book in there whereupon he asked where the number
this car were for it had none. He was motivated to this
question by his experience that if a vehicle carries a log-book then
be a government vehicle. There upon he was told that the
vehicle had no number plates but a "temporary". By
he understood to be meant a piece of paper
reflecting [registration] numbers of that vehicle. In his experience
is usually fixed on the windscreen and back
8 PW1 told the Court that he pointed out that this
is a government vehicle and
the duo what they intended doing with it. The response he got
vehicle should remain in our hands and that it be
altered so that we can use it. They said it be changed from being a
into something else". I have italicised
the phrase above to indicate the fact that Pw1 does not seem to
exclude his participation
in and facilitation of the plan being
hatched to convert the government's possession in the car into some
collective possession of
individuals by means instantly proposed.
So willing Pw1 was to be part of this enterprise that no
doubt enticed by prospects of being an instant shareholder in the car
proceeds of its sale he made suggestion that the log book be
burnt; and it was. He tore the incriminating pages of the note book
referred to earlier or diary where names of persons appeared.
PW1 testified further that Moeketsi Mofihli asked if PW1
had a sail for purposes of covering the car. However PW1 had none and
that they could make do with his own mackintosh in reference
to which his actual words are "I took it from inside the house
and we covered the vehicle with it. The three of us (did)".
Emphasis supplied. He later indicated that the mackintosh managed
9 windscreen and back window of the car.
PW1 indicated that although he was unable under
unnatural light to identify the exact colour of this car it was
nonetheless dark in
colour; either green or blue. We know now that
the colour is a dark silver grey sometimes referred to by counsel who
at the inspection in loco as charred grey. PW1 noticed a
defect on the window or door on the passenger side of this car. The
he referred to consisted of a hole at the bottom of the door.
The hole seemed to him to have been of a punched type.
At the close of the events of that evening Mofihli and
his companion named Refiloe left taking the car keys with them as
so. PW1 was quick to add that he didn't know who between the
two had been driving for when he reached them they were already down
on their feet outside the car.
The following day Pw1 recalls that he was off duty. Thus
he went to Naledi to see friends and drink. When he arrived back home
small dusk he found the car still there. A short time afterwards
Moeketsi Mofihli and Refiloe arrived. The time of their arrival
roughly estimated at 7 pm. PW1 says on asking where this vehicle
10 was to be taken to whereupon Moeketsi suggested a
place at his uncle's at Ha
Tsosane, some vehicular lights shone above a hill some
short distance away from PW1's house. Shortly afterwards a priest
(now known as Moeletsi Challa) i.e. DW2 arrived at
PW1's place. It seemed to PW1 that DW2 came from that vehicle that
was at the
top of the hill. DW2 was at the time known to PW1 as a
priest with whom they previously discussed church matters at DW2's
and DW2 went some distance away from Refiloe and Mofihli to
talk about church matters once again.
When the private conversation had come to a conclusion
DW2 asked whose car this was parked in PW1's yard. He replied that it
by the two people standing next to it. PW1 told DW2 that
the two are used to him and that they had stolen it from somewhere.
by DW2 what they intended doing with the car PW1 told him "we
are still uncertain what to do with it". PW1 hastened to
if he could be of any help in finding a place where to hide this car.
This in my view marked a vast departure from church
which DW2 had come there. DW2 said he couldn't make any promise but
suggested that he had left a white man at the hill
lying over and
across perhaps he could be of some help as he is a motor-repairer.
DW2 invited PW1 to go and see the white man. Meantime
had remained at PW1's place.
On reaching the white man the discussion went on in
English between DW2 and the white man. However though PW1 does not
English very well he was able to gather that the vehicle
could be taken to 'Mamokhutsoane's place where the white man stayed.
DW2 told PW1 that the white man said they could go and place
the car there. The white man PW1 was referring to was later
before Court as accused 4.
DW2 and accused 4 joined the driver of a white Honda
while PW1 repaired to his house to inform his earlier visitors of the
There after the Jetta joined and followed the Honda
which had waited some 150 metres away from PW1's home. PW1 says he
was with Moeketsi
Mofihli and Refiloe in the Jetta. They followed the
Honda till they reached 'Mamokhutsoane's place lying some 1½
to 2 km away.
The garage was opened and Moeketsi Mofihli drove the
Jetta inside there. Thereafter Moeketsi Mofihli, Refiloe and the
driver of the
Honda drove till reaching
12 the earlier spot lying some 150 metres away from
PW1's home and the driver dropped his passengers there. Each
on foot to his home from that spot.
The following day PW1 reported on duty and had done so
for the next day or so when after knocking off he met the driver of
who was on foot this time at Ha Pita. The man asked PW1 to
stop. As PW1 did the man said to PW1 "Hey man that vehicle is
announced all over". PW1 took fright and asked "where
is it being announced". The man said "all over, over the
radios it is being announced".
PW1 testified that he understood his informer to be
referring to the Jetta car that PW1 and accused 1, and Moeketsi
Mofihli and indeed
accused 4 had left at 'Mamokhutsoane's place.
PW1 and the man parted. The following day amidst great
worries about the encounter with the previous driver of the white
felt he didn't know "how to carry this weight that was
on me". See pg 10 of court's notes. He was perplexed as he
have time to meet with the priest DW2 for he had to go to work
in the mornings and come back home late in the short winter days.
anxiety was not made any easier when the Honda driver told him also
that he had been trying to reach
13 him on several occasions earlier.
When PW1 came to work he learnt from one of his
colleagues who is senior that if the vehicle that was at his house is
the one in the
hands of a white man PW1 should know it is being
looked for; moreover it might well be that the white man has already
Later PW1 got a message that he was required at the
National Security Services NSS. He was questioned about the car and
that he knew about it.
He was referred to the CID where he gave his
explanations concerning his involvement in this unsavoury episode.
However the CID appeared
not satisfied with PW1's narration when it
made no mention of the use of the gun in the robbery and murderous
enterprise. The CID
police rejected his version that the vehicle had
been obtained from Mohale's Hoek. It was when PW1's story appeared to
have a ring
of truth in it that the CID accepted his story, namely,
that he didn't know for a fact if the car was obtained from Mohale's
but "according to people who brought it to my home I had
learnt that it came from Mohale's Hoek". If PW1's story is true
that he had been so told then it is clear that he had been deceived
by those people who had
14 brought the car to his home. That the truth emerged
as I have indicated at this stage of the inquiry was thanks to the
inquiry of the CID.
PW1 indicated that after some days he, accused 1,
Moeketsi Mofihli and accused 4 were driven to Mafeteng by the CID.
Before then PW1
had been taken out of his cell to go and identify the
car that had come to his home on the night of the events and he did
It was when PW1 and the above had been detained to
attend remands at Mafeteng prison that he had occasion to ask
Moeketsi and accused
1 what had exactly happened that they got to
acquire the car they brought to his house. He told the Court that
they informed him
that they had not in fact taken the car from
Mohale's Hoek but from Mafeteng. Asked how they did that they told
him that they had
asked for a lift from the driver/owner of the car
intending to come to Maseru. When the duo had secured themselves the
they shot and killed the driver and his female passenger;
and drove in the deceased's car till reaching PW1's home. PW1 didn't
where they did the shooting. He learnt however that Moeketsi
Mofihli and accused 1 had dumped the two deceased somewhere along the
way from Mafeteng to Maseru.
15 Under cross-examination by Mr Mosito for accused 1
PW1 was referred to the
statement he had made before the police. PW1
reiterated that he didn't know accused 1 before he arrived with
at PW1's place.
He conceded that when told a vehicle had lit up his
house by his children he came out with a galil gun measuring about a
He denied pointing it at the car coming to his house..
PW1 was taxed on the point whether his daughter said the
vehicle had come to the home or that there was light of car outside.
frankly don't think much should turn on this rather
petty-fogging form of cross-examination which could be indeed
when as in this occasion it was unnecessarily
indulged in at length.
It turned out also that the name of the person that PW1
gave to the police as the one who was accompanied by accused 1 when
into his yard was one Rantantu or Rantau. The fact that
the man Ace is the same person as Rantantu comes out in answer to a
put as shown at page 97 of the Court's notes as follows:
"You remember in your evidence-in-chief you said
the person who cameto you that evening was one Ace ? I said so.
Yet in your statement before the police you don't
mention this Ace.
You talk of different names. Rantau (for instance) ? Yes
Ace is his nickname which I called him by when bringing
him up as a child. His real name is Rantantu."
PW1 conceded he no longer remembers what name this Ace
alias Rantantu alias Moeketsi Mofihli identified himself by. But
had to the length of time that has passed between when
PW1 gave his statement to the police about this issue of the name and
he gave his evidence before this Court one can scarcely take him
to task for that. Moreso because one more factor of added impetus
the equation is that his true surname is Mahula. It was thus unfair
to suggest that PW1 was fabricating when he used the names
any case appear in the charge sheet in reference to Moeketsi Mahula
who it could correctly be suspected was responsible
for the supply of
the names appearing in the charge sheet. If there was anything wrong
then it should have been cured by simple amendment
to the charge
sheet had objection to the name been raised at that appropriate
While there may be a point that the first time when PW1
saw Mofihli's companion he could well not have been able to identify
he had never seen him before, it was dark and the man did
not speak; it seems to me that if in fact
17 he came again the following day as PW1 said and
PW1 met him again and thereafter
a couple of days when they lived together and conversed
in the Mafeteng prison, by that time accused 1 was fairly familiar to
and therefore no question of mistaken identity can arise in such
circumstances as to who had accompanied Mofihli to PW1's premises
the number of occasions this is said to have taken place.
Of importance under cross-examination which elicited the
information that PW1 was tortured while at the police detention is
told the court that the torture did not make him lie before
the police or before this Court.
It was put to PW1 that nohow could Ace Moeketsi have
said he was with accused 1, when the key to the car was taken for
accused 1 was
not there. PW1 countered by indicating that actually
accused 1 himself told him (PW1) this aspect of the matter at the
accused 1 and PW1 were in detention and were enjoying some
moments of leisure to speak to each other.
Mr Lesuthu for accused 4 briefly asked if it was PW1 or
some other witness who had said to the Court that the vehicle was
in some crime. PW1 replied "Not me". Apparently Mr
Lesuthu's confusion was generated by the fact that PW1
18 was ordered to stand down and let his evidence be
interrupted by no less than seven witnesses before he could be
Mr Mahlakeng appearing for accused 5 Mokherane
Tsatsanyane asked whether simply because PW1 was expecting visitors
on 21-06-95 he
should have been in the high state of alert that he
seemed to have been in. Accordingly he wished to know what was so
the evening of that day. The witness answered that
there was nothing special and seemed to be puzzled how it could be
said he was
in a state of alert. Thereupon a legitimate question was
put to him drawing attention to the fact that once it was reported by
children that a vehicle had come to his premises he came out with
a big gun to confront the occupants of the car. PW1 conceded that
is not used to being visited by people driving cars.
PW1 further indicated that even military vehicles never
go to his house. As a matter of fact he has never been escorted in
vehicle to his house in the 15 years he had hitherto
spent in the army. None ever did so in 1995.
Asked if he leads a scared life he answered yes. Further
that in 1995 he was already leading a scared life. The reason for
of life he said had nothing to
19 do with his being in court where he was giving
PW1's attention was brought to the discrepancy in his
statement wherein he indicated at page 4 he arrived home from Naledi
6 and 7 pm; in contrast with his testimony before this Court
that he arrived home between 7 pm and 8 pm. The witness indicated
in both occasions he was only giving his estimation of the time.
I accept the point that it having been in the middle of winter it
was, as the witness conceded, already dark. PW1 does not remember
what day of the week this was though.
In answer to the question put by one of my assessors why
PW1 did not report the matter to the police on noticing it was a
vehicle his disarming answer was that this sort of
stupefied him. As I said earlier because he associated himself with
acts of criminality
pertaining to this car to the extent that he
destroyed one of the means that identified it as a government vehicle
he was in fact
a participant in trying to foil means of establishing
its identity. To that extent it would be inconsistent with the
had adopted towards this car for him to report the
incident that a car belonging to government had just been stolen and
kept at his
house by others.
20 However in credit to PW1 he was agreeable to the
suggestion that 1995 was
marked by lawlessness in the history of this country.
The military were virtually untouchable in respect of breaches of the
were committing in this country. Indeed just a year before
the Deputy Prime Minister had been killed in circumstances pointing
the involvement of the military yet nothing happened to the
culprits. So when a government vehicle subsequently got stolen and
in the safe custody of a man belonging to the military the
enormity of the callousness that accompanied the act of stealing a
government vehicle paled into insignificance when compared to
events of the previous year. The Court takes judicial notice of the
fact that the prevailing atmosphere at the time spanning the years
1994 and 1995 was characterised by mutinies in the army, illegal
police strikes and teachers' strikes including indeed illegal strikes
by the prisons staff.
Sheer opportunism in the occurrence of the instant crime
could easily be regarded as a factor in the series of events that
the ugly mood of the time. Be that as it may.
PW2 Dr Mcpherson who performed post-mortem examination
on the bodies of the two deceased on 23-06-95 stated that he went
examination of each
21 body and reduced his findings to writing afterwards.
He formed the opinion that
injuries on both deceased were caused by bullets
discharged from fire-arm. The details of his findings are contained
in Exhibits A
and B handed in by this witness in respect of the
deceased Sekoli Armstrong Moeketsi and Refiloe 'Mamolulela Mofolo
Respective sketches with accompanying illustrations are
attached to Exhibits A and B.
PW2 determined that the cause of death in respect of
Sekoli Moeketsi was haemothorax whereas that in respect of
was a ruptured liver.
With respect to Armstrong Moeketsi's body PW2 indicated
that he found a wound on the right supra-clavicular region measuring
in diameter. He also found a superficial wound on left
mid-axillary region 2½ cm long.
In respect of 'Mamolulela PW2 found a wound 2½
cm in diameter on the right upper arm anterior aspect. Next to it was
another wound of the same dimensions. There was another wound
anterior axillary line.
Cross-examination revealed that only one bullet entered
the body of the
22 deceased Armstrong. The witness did not find any exit
wound; yet he couldn't say
any bullet remained in this particular deceased's body.
Asked by Court if he would have found it if there was
any; he said it is not always possible to trace a foreign body in the
a dead person.
I however am constrained to say what appears to be the
real reason for this unsatisfactory answer and state of affairs is
conveyed in this witness's reply that "sometimes we
don't feel the need to trace these things.
Ct: So in brief what you are saying is that you
didn't find the need ?
Yes, but also taking into account the state of our
I must confess to my perplexity and bewilderment that
because of the attitude revealed in the testimony of this witness
runs the risk of frustration due to inadequate
presentation of evidence before court while abundant amount of vital
was readily available to medical practitioners who
performed post-mortems remains entombed along with the deceased in
This is unacceptable. Proper sanctions should be in
place immediately to curb this surest
23 descent to the destruction of what criminal justice
system stands for namely to
and eradicate crime by thwarting any attempts to frustrate detection
In answer to Mr Mosito PW2 said the wound on Armstrong
was not caused by dumping but by a bullet. With respect to
'Mamolulela he said
he was positive there were two entry wounds and
one exit wound. He was not sure if there still was another bullet
imbedded in the
body of 'Mamolulela.
Given that PW2 said the wounds on the arms of the
deceased 'Mamolulela had nothing to do with the liver; it could
safely be concluded
that the rupture of the liver given as the cause
of death was caused by dumping.
I was puzzled though that the doctor said both the entry
and exit wounds on 'Mamolulela measured the same. This defies all
which is to the effect that exit wounds are usually larger
than entry ones in missiles fired from fire-arms. But again I formed
view that the doctor's mind was not totally focussed on what was
required of him to do. No attention was given by him to requirements
to be fulfilled in terms of notes 7 and 8 of Exhibits A and B.
Note 7 says "give cause or causes of death as
evidenced solely by objective appearances. If more than one cause,
No opinion has been expressed by Pw2 as to what could
have been responsibly for the rupture of the liver.
Note 8 respecting which no attempt has bee made to fill
"These [REMARKS(8)] should always include a brief
statement of the circumstances in which death is reported to have
Appearance which raise (sic) a presumption of
criminality or of culpable neglect, should also be briefly referred
to here. See also
PW3 Mookameli Mantutle testified that he works at the
Ministry of Education; and was already doing so in 1995. He is known
deceased. Both of them also worked for the Ministry of
Education. 'Mamolulela was PW3's immediate superior. On an
in 1995 'Mamolulela told PW3 about a trip she was to
undertake. It seemed that 'Mamolulela on this trip was to give a lift
employee of the Ministry bound for Mohale's Hoek.
PW3 parted company with 'Mamolulela at around 12.50 pm
when each went
25 for lunch. That was the last time PW3 saw
'Mamolulela alive. A day or two
afterwards PW3 recalls the deceased's husband coming to
inquire about his wife's whereabouts as she hadn't spent the night at
on the day she had intimated to PW3 that she was going on a trip
connected with duty.
During the course of this inquiry another Education
Ministry employee from Mohale's Hoek broke the sad news that she had
bodies of both deceased near Ha Likupa - a little distance
after passing Mafeteng town en-route to Maseru.
PW3 went to the scene described and afterwards went and
saw the two bodies at the Mafeteng Mortuary.
PW4 Dt Tpr Chonelanka testified on oath that he had been
a detective since 1993. In 1995 he was stationed at Mafeteng. On the
of 22nd June 1995 a Sgt Ntlama, policeman Tseloa
and PW4 left in a police vehicle intending to go to Mathebe. Along
the way and at a place
called Santeng at Ha Lumisi this posse of
police saw a group of people gathered along side the road. The police
went to the group
to find out what was happening.
26 On the right hand side of the road leading from
Mafeteng to Maseru, some 20
paces from the shoulder of the road in a shallow furrow
were lying two dead bodies. One was male the other female. The male
lying face down while the female was lying on her back. There
were traces of blood on some spot along the road. These traces of
drops led to where the bodies were found. More blood drops were
observed where the bodies were resting.
PW4 having been satisfied that the bodies were in fact
dead and that foul play was involved in the deaths , immediately
office to report. The trip to Mathebe was thus abandoned
in favour of attending to this new and unexpected discovery of
An order was issued to go and fetch Dt Lt. Mothibeli
from the office. Only part of the posse went while trooper Tseloa
the scene. On Dt Lt. Mothibeli's arrival the bodies were
undressed and examined by the police.
Before the bodies were undressed PW4 had in fact
examined them. It was PW4's evidence that the male deceased had a
jersey, a white shirt and a grey pair of trousers
on. Of significance even at this early stage of adducing
27 evidence is that this deceased was not wearing shoes.
(See page 24 of the Court's notes). The witness indicated though
deceased had socks on though he can't say what colour. The
deceased was also wearing a tie. This deceased's clothes were soaked
PW4 testified that having undressed this deceased he
observed an open wound on the right side of the neck. The witness
spot by pointing at the right side of his own neck
just on the side of the ridge of his shirt collar.
This witness indicated also that this deceased had an
open wound at the back of his right shoulder and another under the
It was his satisfactory testimony as far as the Court
was able to assess it that opposite all areas where this deceased had
wounds his clothes had holes. He indicated that the wounds
appeared to have been effected with a piercing instrument or a fired
He proceeded to testify in relation to the female
deceased concerning whom PW4 said this deceased had a cream white
jersey on with
navy blue stripes around the wrists and buttons. She
also had a multicoloured floral brown blouse, a pair of black boots,
blue skirt, a lady's fawn vest and a white bra on. PW4
testified that the
28 female deceased's clothes had blood on them too.
On undressing this deceased PW4 observed two open wounds
on the right upper arm. The witness said that these wounds were
the back of the upper arm.
This witness indicated that he also observed on the
right breast the female deceased had an open wound. He showed further
was an open wound under the right arm-pit.
This witness was so thorough in his observations backed
up by holes on clothes the deceased is said to have been wearing,
with the locations where the deceased sustained the
injuries that the Court accepted it as credible. For instance PW4
an open wound which he observed on the left hand side of
the deceased's rib cage. The Court observed corresponding holes on
deceased's clothes. The doctor said nothing about this
particular injury in his evidence. But in fairness to him his sketch
well-mapped out in the fourth diagram though it is again not
labelled. It is merely represented by a broad dot. To compound his
about the way the doctor went about his work one observes in
his schedule of
29 observations relating to this deceased that he
indicates that in right lung he observed "haemothorax" yet
as far as his
sketch goes wounds on the right are those on the upper
arm only. One is left wondering what became of the bullet that his
indicates entered the left rib cage.
The male deceased's clothes were handed in marked Ex "1"
collectively. See page 25 of the Court's notes.
With regard to the female deceased's clothes the Court
observed that of the three holes on the jersey two were on the sleeve
the other was on the arm-pit. The Court observed three holes on
the floral blouse. The fawn vest too had three holes. Two on the
right sleeve and one on the arm-pit area. The bra had a hole on the
right breast. The female deceased's clothes were handed in marked
I may just indicate at this stage that the Court feels
more comfortable with the location of the wounds as described by the
officer whose description is supported by the deceased's
clothing than by the doctor who, as I said earlier, doesn't seem to
devoted sufficient attention to the serious duty he was required
30 perform on the flimsiest of reasons that he didn't
see the need.
After examining the bodies PW4 and others conveyed them
to Mafeteng Government Mortuary. It was his testimony that the bodies
sustain any further injuries during their conveyance till the
autopsy was performed on them.
PW4 further testified that on 9th July 1995 a
team of policemen from Maseru led by police officer Raleaka came in
company of two men who it was maintained could help
throw some light
on how the deceased met their fate.
Indeed according to PW4 the Maseru team of police,
accompanied by the two men joined the Mafeteng police who drove to
Ha Lumisi. Along the way towards there the two men gave
explanations about what happened at various points along the way on
night. Indeed a few paces away from the left shoulder of
the road following an explanation given by the two men a 9 mm shell
found. This is shown in the album Exh "E" at page 2
"B". On the opposite side of the road some hundred metres
away was a donga a waist deep into which it was learnt the deceaseds'
bodies had previously been discovered dumped therein.
31 PW4 said he couldn't remember if any of the two men
he talked about were
He indicated that he collected the deceaseds' clothes
and sent them for forensic tests at the Police Laboratory at
Under cross-examination by Mr Mosito he indicated that
since he was unable to remember the two men who were pointing out
likewise he wouldn't be able to remember which one of
them was making explanations. Mr Mosito's question in this regard
confine the question of explanations to one man whereas the
witness had indicated that the two men were both making the
and pointing out though he can't remember who these
PW5 Thabang Mofolo is the husband of the deceased
'Mamolulela. Having not had the company of his wife the previous
evening he went
about making inquiries about her whereabouts at her
place of work. He sadly learnt that his wife had died. He there and
for Mafeteng government mortuary where he identified the
dead body of his wife. He went to the police Charge Office Maseru
he identified his wife's clothes. Notably among these was his
wife's black leather
The Court was to learn later that along with other goods
belonging to both deceased this leather jacket was found at the home
PW6 Andres Makoebu Andreas having been sworn testified
that he resides at the stadium Area and had been doing so even in
Of the accused before Court he knows accused 5 who is
his nephew and accused 4 who used to stay at his home between 1995
if his memory serves well.
PW6 had occasion in 1995 to drive to DW2's place. PW6
was in the company of friends namely Moeketsi Tjamela and Bafokeng
when they left in PW6's white Honda Ballade car for DW2's
place. DW2 stated that he could help PW6 and his party secure a place
could be run as a Tavern. Thereupon PW6 and his party were led
by DW2 to Ha Pita where PW6 was told by DW2 that they would find
4 who knows of someone who could be of help.
33 It was suggested to accused 4 that the place for
use as a Tavern was urgently
needed. At the place where accused 4 was staying a grey
Jetta car was found. It was at night but PW6 was able to see that it
dent and a hole in it. One of the things PW6 observed was
either that the window was missing or not closing.
Accused 4 and Moeketsi Tjamela were driven in the Honda
car while PW6 and the owner of the Jetta car and the driver thereof
in the Jetta car to 'Mamothutsoane's place where accused
4 stayed at Lithoteng around Ha Abia area. PW6's car was being driven
PW6 testified that accused 4 asked of 'Mamokhutsoane to
have the Jetta parked at her garage for the night while assuring her
it would be removed soon thereafter because it had to be
repaired. 'Mamokhutsoane was agreeable.
PW6 and some of his party drove the owner of the Jetta
car who he believed was PW1 to his place. Everyone went his way after
Days afterwards PW6 heard an announcement over the radio
that the Jetta car which coincided in general description with the
had seen was being sought
PW6 said he immediately went to accused 4 to tell him
about what he had heard concerning the Jetta car. PW6 also says he
4 to return that car to the people who had brought it
Under cross-examination by Mr Lesuthu PW6 indicated he
was not the one who had made the deal with accused 4 for the repairs
Jetta car. PW6 said he didn't know why this car was driven to
accused 4's place.
It was suggested to PW6 all that accused 4 needed for
the repairs of the car was M3500 not M9000; but PW6's response was
that if that
is what accused 4 is going to say it so happens that
that was not what he said at the time.
PW7 Tankiso Mokhobatau is a thirty year old who at the
time was staying and working at the home of PW8 'Makabi Kabi at
She testified that one day in June accused 5 Mokherane
Tsatsanyane arrived at dusk at this residence in the absence of PW8
gone away on a trip to
Accused 5 was someone well-known to Pw7 because he was a
frequent visitor to this home. When accused 5 knocked at the door PW7
for him to enter but he didn't. Instead he pointed out to PW7
that he had only come to leave his car there. PW7 noticed that
5 had already driven this car because the garage door had
PW7 saw accused 5 close the garage door and head for
another car apparently that had escorted him to the home. This other
remained parked on a tarred road that has been cut off by a
fence and thus stopping it being used as a thoroughfare any longer.
PW7 told the Court that the car that was parked in her
employer's garage that night was a grey Jetta car.
On the day PW8 arrived from Durban, and when she made
for the garage to open it intending to park her own car in it PW7
that there is another car in there parked by accused 5.
PW8 let that be. PW7 helped her unload the luggage
36 and haul it into the house.
The following day PW8 went early to work. At day time
when PW7 came from fetching a child from school she observed a car
the drive way leading to PW8's premises. This she recalls
was a station waggon cream white in colour.
On the back seats of this car were loaded car doors. PW7
doesn't remember how many though. But certainly they were, she said,
than one. She went past it and made for the door to the house.
But before she could open it she could hear voices of people in the
garage though the garage was closed.
On opening the garage door PW7 found 3 people in there
consisting of accused 5, a boy called Khosi and accused 4.
PW7 noticed that a car door was leaning against the
garage wall inside there.
PW7 having seen that it was people she knew inside there
except accused 4 went back to her household chores. This was around
37 In the late afternoon when PW7 was going to collect
wood for building the
evening fire she recalls that this car was still there.
There is an element of astonishment in the way this struck her though
speaking it was none of her business for what purpose this
car was there: she said relating to conclusion of events surrounding
lunch hour -
"That's all for that Friday. But in the afternoon
when I went to the
garage to collect fire wood the vehicle was still
It is PW7's testimony that this car remained there
throughout Saturday and Sunday.
On Monday morning which was a holiday and PW8 was not
going to work but instead was still enjoying her sleep, people came
at the door. These were police according as they identified
themselves. PW7 reported to PW8 that police had come.
PW8 came to open for them. They spent a long time
speaking with PW8 in PW7's absence. She had remained outside during
all the time
that PW8 was being interrogated. PW7 had told them at
the door step when they asked when the Jetta car
38 had arrived there that it had done so on the previous
Wednesday night. She told them further that it had been brought there
accused 5 who had said it was his and had come to ask that he be
allowed to leave it there.
The next thing that PW7 recalled is that the police
asked Pw8 to go and show them accused 5's home as well as his
parents' home. Thus
PW8 left in the company of two or so police. One
of the police who had come there remained on the premises while Pw7
her normal chores.
After a long time PW8 arrived. PW7 recalls that though
she didn't know with whom accused 5 came there but at the same time
saw him, she also saw accused 4 arrive with police as well
as Khosi. More and more civilians came as well as police who kept
to that place.
Among things PW7 saw happening was the Jetta car being
driven out of the garage and being inspected. She also heard one of
addressing himself to accused 4 and saying "Andre did
you do this?" Saying so the policeman was pointing at the seat
the car on which appeared to have been poured some dark substance.
PW7 also heard the policeman ask if that was beet-root or not.
reply accused 4
39 said he didn't know. PW7 had learnt for the first
time that moment that accused 4 to whom she had been referring as the
was called Andre.
PW7 noticed that the door on upper side of the garage
which is on the same side as driver's door had been removed.
Under cross-examination by Mr Lesuthu, PW7 was adamant
that what she saw on the seat in question was dark and appeared as if
been poured there. She didn't recall though what colour the
seats were. She further stated that she was not sure if one wouldn't
have seen the dark spot unless pointed out to one. She conceded that
it was possible she might have thought of it as dirt.
Mr Mahlakeng closely cross-examined this witness. It was
in the course of this cross-examination that it was revealed that PW7
been staying at PW8's home for two years prior to the incident.
She testified that accused 5 was no stranger to her and that he had
been visiting PW8's home frequently. She conceded that she herself
was much used to accused 5. She however rejected the invitation
say this was not the 1st time accused 5 had left a car there.
40 It however turned out that PW7 remembered times when
PW8 would use some
of the vehicles brought to the premises by accused 5
save that she was quick to say these would be done with PW8 being
she wouldn't know under what terms.
PW7 said she does not remember accused 5 leaving a
vehicle in June 1995 in PW8's premises with instructions that a
friend would come
and collect it the following day.
Though she stated that she never came to know that
accused 5 was related to PW8 she nonetheless thought their
relationship was a family
one because Pw8 used to visit accused 5's
On her part PW8 denied that accused 5 or his parents are
related to her. She only regarded accused 5's parents as friends who
her political interests.
When referred to her statement to the police PW7 readily
conceded that she made a mistake when in this court she failed to
after going past the station waggon with nobody in it she
saw Mokherane nearby and outside the garage.
41 She again stated that she could no longer be sure
if the day she referred to as
was the day when PW8 went to work early.
She conceded that she got confused by the question of
dates as the matter occurred a long time ago.
However in my view the substance of this witness's
evidence as opposed to fine details is quite satisfactory and has the
being from a person who is not bent on misleading the Court
or showing positive bias towards any of the parties to whom she made
I also find that without appearing to be alive to the
implication of her testimony before this Court the picture she has
to paint of accused 5 is of a sinister nature when she
suggested that accused 5 was in the closed garage when she arrived
a child from school. However the overall picture
supplied by PW15 Thabang Lentjeka who was assigned the task of
removing the doors
from the Jetta car by accused 5 quickly sets at
naught what accused 5 would stand to gain from the removal of the
of PW7's evidence towards him.
42 PW7 conceded that the vehicle had been brought to the
premises and driven
into PW8's garage by Khosi at accused 5's instructions.
PW8 'Makabi Kabi testified that in 1995 she used to stay
at Maseru West at the British High Commissioner's flats owned by
She is a Lecturer at the National University of
In June 1995 she went to Durban to collect Industrial
Cleaning Products that she sold.
She thinks that she returned at night on a Thursday.
When she arrived at her flat she wanted to park her van in the garage
told by PW7 that accused 5 had parked a car in there. She
shrugged off the information and took her products into the house,
the van where she had been unloading her stuff.
She told the Court that she was surprised that there was
a car parked in her garage. The following morning she went to work to
on with the unfinished field-work.
43 She knew accused 5 as the son of her political
colleagues. She explained that
her surprise that the car was parked in her garage
stemmed from the fact that there hadn't been any prior agreement that
She vehemently asserted that before then accused 5 had
never parked any vehicle in her garage except when his parents had
her brand new van in exchange for something that his parents
would leave for PW8 to use. The van it was said was bought in January
(presumably of the year in question).
The witness sought to make the Court to understand that
while this would be the case between her and accused 5's parents at
was there an arrangement between her and accused 5 to leave
his vehicle on her premises.
PW8 says that on her way back from work she went via
accused 5's father's home. She found accused 5 and told him to go and
his vehicle from her garage as she needed to use it for her
Meantime PW8 had to send her van for a minor repair to
accused 5's father. Notwithstanding that PW8 had told accused 5 to
car from her garage she discovered even as late as on
Sunday that this car was still in there. All this while she
44 couldn't have access to her garage. Nor did she care
to look what kind of car was
reputed to be in her garage.
Then on Monday morning she was woken up by what she
described as a hard knock at her door. It turned out that police had
come to her
home that morning and sought to have some talk with her.
They told her their mission and she explained to them that she had
told there was a car in her garage. The police went with her to
check. As they opened the garage she saw a car bearing Botswana
She says this was the first time that she had seen this
car since it was left in her garage. The car was a Jetta car which
she doesn't remember if it was grey or bluish.
Police asked her to take them to accused 5 and she
obliged. They came back together to PW8's home in the company of
accused 5 whom
PW8 had identified to the police.
Accused 5 was asked to produce the key for the car to
have it driven out of the
45 garage but because he had none the car had to be
An inspection of the car was thus done by police under
day light. The driver's door was not in place.
The police called PW8 closer to the car and informed her
that this was the car which was used by Mr Moeketsi and Mrs Mofolo
killed in it. PW8 observed dark maroonish stains on
passenger door of this car. These stains were on greyish black back
found the stains easily discernible. She saw these on the
floor behind the front seat. There was debris of broken glass. Police
picked up a spent bullet from the floor. The debris of broken
glass was lying under the driver's seat.
Accused 5 was present throughout police activity that
took place there consisting of photographing the car and video-taping
says accused 5 was asked by police whose this car was and he
said it was his.
PW8 said accused 5 when asked why the vehicle came
there, said that he had tried to leave it at his grandmother's home
at Maseru East
but for some reason or
46 other he failed and thus brought it to PW8's place
because he recalled PW8 had a
garage; and thus decided to park it in it.
Of course the Court recalls that when giving evidence in
his own words accused 5 said he had intended leaving this car at his
elder sister Mrs Mosala in Maseru East but found that the
garage was full and couldn't leave the car in the premises outside a
in case it rained bearing in mind that it was without a
Among people who kept being brought to the premises of
PW8 was a white man accused 4 according to PW8. If this is true one
why when it was proposed that an inspection in loco be held
on those premises it was stated on his behalf that accused 4 would
find the place as he had never been there before. In fact PW15
who testified that accused 4 was one of the persons who were in the
closed garage in which he had been ordered to remove the Jetta car
doors, was told that this could not be so, moreso that accused
would come and deny it.
Needless to say accused 5 himself testified that accused
4 has previously been to the premises and was puzzled at the
he had never been there.
47 I can only surmise that this suggestion was made
on accused 4's behalf because
PW8's premises, especially the interior of her closed
garage where work was being done on the Jetta car was felt to be not
place to be nor one which anybody would wish to be
associated with. But why? That's the question.
PW8 also was closely cross-examined by Mr Mahlakeng for
PW8 denied that she is related to accused 5's mother.
She admitted knowing Matsobane Putsoa and told the Court that he is
Told that Matsobane Putsoa is related to the mother of
accused 5 she replied "Him not me".
But closer cross-examination indicated that before the
police PW8 had said she had grown up at Quthing with accused 5's
her sisters and that she is related to them. The Court
gained a distinct impression that she was trying to somersault and
vainly out of an awkward situation when she started saying the
statement was not written by her yet she signed it after it had been
read back to her. Not only that, but she gave as her reason for
failing to correct her statement the fact that she was shocked and
that this happened a long time ago. I don't see though how one can be
so shocked as to claim that one is related to another with
48 together if no such things are true. It cannot be
true therefore that PW8 got to know accused 5's mother in 1992 when
was drawn to her and her sisters. These vain and
unwholesome attempts to distance herself from people she has known
for long compounded
by her belief that she could be allowed to ride
off on such implausible statement detract from her station as a
Lecturer at a place
of Higher Learning.
Mr Mahlakeng further succeeded in highlighting the
facile manner in which PW8 would improvise and give what on the face
of it could
pass for a plausible story on her part only to be shown
later to be without substance.
For instance learned counsel was able to elicit from
this witness an admission that she did not spend a week-end in Durban
which she facilely sought to persuade the Court to accept
that it occurred because she had to go and hold some discussion with
sister during that time which being a week-end was just about
I thus think the admonition by learned Counsel was most
appropriate, namely"when you forget things you shouldn't
just invent when you didn't
49 remember you shouldn't have said you spent the
week-end in Durban but just say you don't remember".
The upshot of this then is that the true position is PW8
left for Durban on Monday and returned on Thursday.
PW8 insisted that at no time during the month of June
1995 did accused 5 park and leave a van belonging to Archie on PW8's
on account of the fact that this vehicle had a broken
window. After ducking and twisting and indeed fencing with a simple
whether she doesn't know because she can't remember or
because this didn't happen she ultimately said that she knew of no
Mr Mahlakeng referred her to an occasion during 1995
Easter when accused 5 left a motor car at PW8's place and she said
Prodded further, when prudence dictated she should have
been let be at that point, by suggesting that this was when accused 5
for school at Thaba 'Nchu thus leaving the Hi-Lux for PW8's use
she suddenly remembered with clarity and answered, in my view
"I am sorry. This carries many years. What could
50 have happened to my van which was bought on
20-01-1995 which was still new and
had low milage. How could have I been using somebody
This in my view demolished what good inroads Mr
Mahlakeng was making into PW8's evidence.
Learned Counsel deftly left that point in favour of the
well-harped theme of PW8 trying to shy away from being a relative of
5. But unfortunately a serpent instead of haddock had been
caught in the learned Counsel's net. One other thing is that although
PW8's evidence remained unchallenged regarding the fact that the
vehicle in her garage was wearing Botswana Registration numbers
she and the police saw it, in the absence of any corroborating
evidence, regard being had to that facile manner in which she
gaps in her evidence, it would be unsafe to accept that aspect of her
PW5 Thabang Mofolo was recalled for purposes of
identifying his wife's jacket. The Court at a later stage when it was
handed in observed
the bullet holes which were on it but were not
easily discernible because of the colour and texture of this garment.
For the moment
it was marked "ID I" for identification
only. See page
51 130 of the Court's notes.
PW9 Philip Masoabi presently an inmate in the Central
Prison but otherwise till then a lance seargent who in 1995 was
Robbery and Car Theft squad of Lesotho Mounted
Police/Lesotho Police Services, testified that he was stationed in
Maseru in 1995.
On 21-06-1995 while on duty he read a message from
Mafeteng police referring to two dead bodies of a man and a woman
the way leading from Mafeteng to Maseru at a place
called Ha Lumisi.
He was appointed an investigating officer into this
incident. He operated as a team consisting of major Raleaka who was
the team leader,
W/O Makhetha, Sgnt Mpopo, Trooper Pitso and some
three or four others.
PW9's investigation led him to PW8's garage where he
found parked therein a Jetta saloon or sedan car of the description:
HV082705 Chassis No. AVZZZ 16ZJKU036941.
52 Shed of the details and elaborate background accorded
evidence in this Judgment, PW9's evidence shows that
accused 5 handed to him a wheel, three keys of a Jetta car with an
a right front door with side mirror still attached to it
and another door with a hole in it plus a car radio. The Court had
to see all these items.
It was PW9's further evidence that there were glass
fragments on the mat below the driver's seat. The car was devoid of
front door. He observed that there was a dead bullet on the
mat next to the driver's seat. There were blood stains on both front
seats as well as on the seat behind the front passenger's seat. There
was another bullet on the mat on the driver's side. Two other
bullets were found on the floor of the garage next to where the Jetta
had been parked.
This witness said that PW1 handed to him green diary
which 1 referred to earlier i.e. the one that had the pages bearing
some persons ripped off by PW1.
On going to the home of accused 1 and upon conducting a
search there this witness says he and his companions found one pair
shoes coloured black,
53 a grey jacket and a black leather jacket with holes
on the right hand side in accused 1's possession.
The Court recalls as earlier intimated that the black
leather jacket was identified by PW5 as belonging to his wife the
Mofolo. It was handed in by PW9 and marked "Exh
3". See page 144 of Court's notes.
PW9 indicated that at one occasion PW12 Mabokang
Moeketsi identified the green diary, the grey jacket and black shoes
as having belonged
to her husband the deceased Sekoli Armstrong
Moeketsi. Unfortunately the grey jacket was mislaid before being
produced before Court
as an exhibit.
Pw9 also testified that accused 1 and Moeketsi Mofihli
took him along with the Mafeteng police to a place near Ha Lumisi. At
spot along the road at that place accused 1 explained that
he had pointed a gun at the two deceased who were still in the Jetta,
ordered them to get out of the car and shot them when he saw them
hesitating. Accused 1 and Mofihli showed PW9 the furrow where they
said they had dumped the bodies of the two deceased.
54 PW9 further said that Mofihli and accused 1 said
they had afterwards stripped
the two bodies of the leather jacket belonging to the
female deceased and a jacket and shoes belonging to the male
deceased. The fact
that the items of property referred to were found
in possession of accused 1 is a matter that this court is unable to
It in fact corroborates PW9 in very material respect
that also appears to incriminate accused 1. PW9 also said accused 1
the Jetta in question as it remained parked at Police
Headquarters as one that he and Mofihli had taken and driven away
the two deceased who had been in it.
PW9 showed the photographs contained in Exh "E"
collectively being albums compiled by W/O Selebalo who had taken
of the scene both at Maseru and at Mafeteng at Ha Lumisi.
The photos were handed in by PW10 Sub.Insp Hlaahla because W/O
had since died.
However PW9 told the Court that the photographs depict
the likeness of what he himself saw while attending the respective
Ha Lumisi Mafeteng and Maseru West. The Court was able to
see gory scenes of blood in the Jetta car, on the seats, door frame
the car and outside.
55 PW9 further told the Court that accused 4 told
him that he had seen the blood
in the car and had said to him that DW2 and a soldier
had come to him and asked him to keep the Jetta car which he had
forcefully been taken from some people. PW9 said that
accused 4 had been asked to try and sell it for them.
The Court is keenly aware that though the soldier
referred to here can mean no one but PW1 the latter none the less did
not in giving
his evidence say direct that accused 4 was to find
immediate means of selling the car for him and the two visitors who
came in the
car at his place at the occasion when he first clapped
his eyes on it. For that reason the Court would be very wary of
that because PW9 said accused 4 is alleged to have
known that the car was taken forcefully from some people then he must
as an accessory to the crime of robbery where forceful
taking is an essential element.
PW9 was subjected to lengthy cross-examination. His
replies indicated that he had given the accused warning that is
self-incrimination. In the ruling made after the
application for discharge at the close of the Crown case I dealt with
the more serious
aspects of challenges which are liable to be raised
as inadmissible evidence against the accused but which were
56 Milne J.A. in David Petlane vs Rex 1971-75 LLR85. The
learned Judge of Appeal
in that case had crisply dispelled any myths regarding
so-called inadmissible confessions before police officers by saying -
"Although the surrounding circumstances may be
taken into account in deciding whether a statement amounts to a
fact that the appellant knew when he made his
statement that the police were looking for him in connection with the
killing of the
deceased could not have the effect of making his
statement a confession of the offence with which he was subsequently
the statement did not exclude the possible defences of
self-defence or accident. Further, the fact that it transpired at the
that if such defences had been raised they would not have been
admissible could not operate to turn the appellant's statement to
police into an unequivocal confession of murder".
PW9 denied ever torturing any of the accused. He stated
that at no stage did he witness any use of third degree methods being
on any of the accused. However the Court is not unmindful of
PW1's statement that he had been tortured while in police custody;
he didn't say how. He indeed said the torture did not dissuade
him from telling the truth as he knew it.
PW10 Sub/Insp Hlaahla as stated earlier handed in the
photo albums with the photographs collectively marked Exh "E".
57 PW11 Bulara Khomohaka is a forensic biologist whose
testimony showed that
he examined the Jetta car and swabbed up several
brownish stains on various parts of this car both inside and outside.
He took nine
samples which turned out to be of human origin of blood
Following from the tests which he conducted on specimens
collected from the car and items of clothing which were blood-stained
concluded that the deceased 'Mamolulela Mofolo could be the source
of blood V8 while Sekoli Armstrong Moeketsi could be the source
blood V9. It is once more unsatisfactory that given the fact that
when this witness conducted his tests the bodies of the deceased
available and could even be exhumed if need be he should content
himself with what appears to be possible sources of the blood
instead of striving for positive identification which could only be
obtained by extracting blood from the respective deceased.
PW12 'Mabokang Moeketsi testified that on the morning of
the fateful day she had seen her husband putting on the black Watson
Exhibit "4" which she indicated were worn-out.
Apparently she and her deceased husband cared very much about how the
appeared in public. I say this because the shoes as far as I
58 could see were practically new except for appearing
to be slightly scuffed on the
outside edges of the heels. The Court had also learnt
from PW9 that the grey jacket looked very nice with leather patches
on the elbow
PW12 indicated that before testifying in this Court she
had identified the above items of property as her husband's including
green diary when the police had brought them to her.
Seeing that the Jetta car leaves no doubt that it is the
one in which the deceased had been travelling in and of which they
only to be found later at PW8's garage, it is
sufficient at this stage to indicate that the Court accepts as a
whole PW13 Mary Masupha's
evidence as to the identity of this car.
PW14 Asst/Compol John Telukhunoana is an experienced
firearms examiner responsible for examination of firearms and items
of having been used in commission of crime. He dealt with
this type of examination since 1985 doing an average of 100 firearms
He examined the items consisting of a cartridge case and
a dead bullet and gave
59 them identification marks.
He handed in 2 dead bullets, a bullet jacket, one core
of a bullet and two cartridge cases making a total of 6 items
marked Exhibit "10". These were handed in but
ordered to be retained by the witness for his further use.
PW14 told the Court he was not able to say how far the
shooting was effected from because of what to me appeared to be
and unnecessary bickering in the police force where, as
PW14 stated regretfully, it is not deemed necessary that expert
should, even when circumstances allow attend the scene. He
appealed to the Court to exercise what power it has to disabuse his
of this unsavoury attitude. He was of the opinion that the
bullets and shells were of 9 mm calibre firearm.
PW15 Thabang Lentjeka testified that accused 4 and 5
took him to a residence in Maseru West in a white Corolla Station
arrived at a garage which was opened by accused 5. In the
garage was the charcoal Jetta car.
Accused 5 told PW15 to take out and fix the doors on the
right hand side of this
60 car. PW15 had noticed that the right front door had a
damaged lock. There was a tear measuring about five centimetres in
on this lock. The window was broken and there were glass
fragments inside the car. The rear door had a hole in it that
have been made by a sharp piercing instrument.
PW15 indicated that he detected a pungent smell in the
vehicle. He said this smelled like old blood. He was taken to task by
on how old blood smelled and he said it smelled like a
body which had been in the sun for three or four days.
PW15 said that despite this smell accused 5 would not
allow him to open the garage door for fresh air while he worked.
Indeed he painted
a picture of accused 5 manifesting feverish urgency
and pressurising him to get the job done and completed in no time.
PW15 says he managed to take out the two doors on the
right hand side of the car. Meanwhile accused 4 is said to have been
with his back towards the wall on which the garage door is
hung reading a newspaper by aid of some natural light coming in
the chink allowed by the slightly opened garage door which
61 otherwise appeared to be virtually closed. The Court
tested the degree of opening
the witness said the door had remained open and was
satisfied that even though the garage door appeared closed the light
in was enough to enable the reading of a newspaper print.
PW15 said accused 4 took out a number plate from the
front of the Jetta car. He indicated to the Court where he brazed the
the door lock which he had repaired.
This witness was also taken to task in cross-examination
but the tenure of his testimony had a ring of truth in it from which
not shaken. Indeed there were discrepancies in his evidence
including that he was able to work in the garage by aid of light
from the window.
It turned out that this garage had no windows. For this
disparity he was taken to task and held up as someone who had come to
the Court. However if it turned out that the garage had
windows but PW15 created the impression that it had none and by
the absence of the windows the culprits had secured
themselves an ideal hideout in which to work without detection of the
62 to commit in there, I have no doubt in such
circumstances PW15 would deserve the
condemnation that he had come to court to mislead it to
the detriment of the accused. But in the opposite circumstances
now the same cannot be said. It would be reckless to paint
him in the same brush regardless of the alteration of circumstances.
am thus prepared to accept his explanation that he made this
mistake because the occurrence when he found himself in that garage
took place long time ago and furthermore he hardly had an opportunity
to take in his surroundings in the environment where he was
pushed to the limit of his ability to finish the job at hand within
the minimum length of time.
PW17 Ngoajane Mohapi's evidence was to the effect that
the duplicate original registration certificate of the Jetta car
its Chassis number as Chassis No. AAZZZ 16ZKUO36941 and the
Engine number as Engine No. HV 082705 while its make is a 1990
PW18 Senior Inspector Thibeli was called to identify his
signature on Exh "D" constituting Submission of Articles
Form. He duly identified the signature on Exh "D"
as his and said he had signed his name at the time to acknowledge
by him of items therein mentioned. He identified Ex 10
collectively as the items he had received.
The Crown closed its case and DW1 Moeketsi Tsehlana gave
I should from the outset at this stage indicate that the
Court warned that if accused 1 was going to give evidence after his
or witnesses then his evidence would run the risk of not
having sufficient weight attached to it in view of the natural
discouraged by Courts that a party to litigation in such
circumstances would tailor his or her evidence according to the
that he or she listened to and heard when being adduced
while he or she is sitting in Court. Indeed it is deemed a salutary
that even where there are two or more parties jointly
charged or jointly laying charges then if they are to give evidence
do so before any of the co-defendants' or co-accused's or
co-plaintiffs' witnesses can give their evidence for the same reason
it is highly undesirable that any of the co-accused should
tailor their evidence according to the witnesses of their preceding
However DW1 gave evidence the first day but had to stop
because he appeared not fit due to insobriety. The Court had felt
might just unwittingly prejudice the serious case facing
accused 1. He was in brief a perfect spectacle who should have been
64 The next day when he truly testified to having
taken proper food he told the
that he knew accused 1 and his father (accused 6 in the charge
He testified that on 21-06-1995 he was at Ha Mantsebo
where he lives. He said he was with Thabo Lefalatsa and Hareteke
drinking at Ha Mantsebo Bus stop.
He testified that as the drinking was going on accused 1
arrived with a friend. The friend bought DW1 beer. He says the time
9 am and 10 am when this occurred.
They kept drinking till sunset. Towards sunset DW1
accompanied accused 1 to the Bus stop near by. Accused 1 wanted to go
A vehicle approached from Mafeteng direction. Accused 1
raised his hand to stop it. The car stopped and accused 1 went on
DW1 and accused 1's friend there. The colour of this
car is said to have been greyish yellowish. However DW1 pointed to
as approximating the colour of that car he spoke about.
Under cross-examination DW1 said that he often went to
drink at that beer
65 place at Ha Mantsebo in 1995. He however said it was
not normal to sit drinking
there the whole day except that when beer is available
there would be no point leaving it behind.
He pointed out that it was the first time he saw accused
1 at Ha Mantsebo. DW1 reiterated that when the car from Mafeteng
it was at sun set and not dark. It was possible to see a
person clearly 22 paces away. He could not only discern a figure but
a person as so and so in that light and at that distance. He
said the vehicle that approached did not have its lights on for it
not yet dark. He said in that light he was able to see that the
colour of the vehicle was greyish, yellowish.
He further said he didn't see accused 1 after that day.
Asked which day, he was clearly in a cleft stick and he settled for
21st August 1995.
Asked why he had earlier accepted 21-06-1995 as the day
in question he said he was only estimating. Asked further why he
counsel he was not clear of the day he said that didn't
occur to him.
66 DW2 Moeletsi Challa gave evidence on oath. The
essence of his testimony is
that accused 4 and PW6 and another arrived at his home
and they all proceeded to PW1's home. He learnt from PW1 that two
left a Jetta car with him and that PW1 wanted some help
whereby this car could be kept somewhere. He said it was explained
car came from Mafeteng or perhaps Mohale's Hoek. There was
no clear explanation given about the car. Nonetheless accused 4 who
says is innocent was asked to fix the car, particularly the
DW3 Rethabile Mathetse said that PW1 told him that on 23
June 1995 a white man had been arrested. He said PW1 said he and his
had stolen a VW vehicle in Mohale's Hoek after its owner had
dropped his car keys.
Under cross-examination he said that when PW1 returned
from detention the latter explained to him that the vehicle had been
to him by two boys. He said unlike in the previous occasion
this time when PW1 said this he was not confused but seemed relaxed.
DW3 admits that if the white man had not been arrested on 23rd
June 1995 neither he nor PW1 would have heard of his arrest being
announced over the radio that day.
67 DW4 Refiloe Mokalanyane who is accused 1 gave
evidence on oath and said
he is illiterate. He said his mother told him in 1999
that he was then 25 years old. He told the Court that he met DW1 one
1995 and drank with him until just after sunset. They were
drinking at Ha Mantsebo.
The evidence of DW1 and accused 1 on just this point
PW1 indicated that the car that came to his house on
21-06-95 arrived there between 8 pm and 9 pm. Given that Ha Lumisi is
6 km shy of Mafeteng which is about 80 km from Maseru, it
would mean that this car left Mafeteng between 7 pm and 8 pm assuming
was travelling at 80 km per hour which is normal high speed on
that road. But if on the other hand this car reached Ha Mantsebo -
km from Maseru -just after sunset and given that on that day
according to my Hortor's Diary the sun set at about 17 - 25 pm it
would mean that this car that accused 1 claims he went on board at
about sun set at Ha Mantsebo had left Mafeteng and Ha Lumisi long
before sunset. This in turn would mean that the two deceased that it
conveyed were shot in broad day light at the spot where the
shell was found lying some 100 paces away from where the bodies were
dumped. The empty shell provides an objective fact from
inference can be made.
68 On this aspect of the matter alone and given that
Ha Lumisi village is not far
from where the incident of shooting and conveying two
bodies a distance of 100 metres from the road and thereby travelling
of no less than 400 metres in total to dispose of the
bodies it would be underrating the intelligence even of criminals to
that they could risk arrest by brazenly doing two things which
would immediately draw attention to them and their sordid act. i.e.
cause repeated explosive sound of gun fire near a village in broad
day light and go to and fro not less than twice huffing and puffing
to dispose of two dead bodies 100 metres away each time next to a
high way carrying busy traffic at such time of day. I boggle to
made to think that darkness is no longer a trusted ally to
mischievous breakers of the law bent on avoiding detection of their
I have no hesitation therefore in rejecting as not only
false but false beyond reasonable doubt any evidence that hinges on
that the Jetta car came to collect accused 1 from Ha
Mantsebo where he and Dw1 had been drinking.
It is indeed fundamental in our law that an accused
person wishing to have his story accepted by the court has to
it is reasonably possibly true. If his story is not
reasonably possibly true then it is false beyond doubt and the Court
69 is not obliged to accept it. See R vs Difford 1937 AD
370 at 373 saying if the court is satisfied not only that the
by the accused is improbable but beyond any reasonable
doubt false the court is entitled to convict.
Accused 1 said that having got into this vehicle which
was driven by Mofihli he felt cold and Mofihli lent him a jacket
greyish brown in colour with leather patches on the elbows.
He observed that Mofihli was wearing a black leather jacket similar
one that PW5 said belonged to his wife. He denies that the jacket
that belonged to the deceased Mamofolo was retrieved during the
search from his possession. Asked why PW9 could falsely say he
obtained from him that jacket and the black shoes belonging to the
deceased Armstrong he proffered the explanation that PW9 was capable
of doing so because he had tortured him while in detention.
But most significantly this explanation appears to have
been mulled for sometime because when cross-examination was going on
it seemed to have eluded accused 1.
At page 371 learned Counsel for the Crown referring to
PW1's version said to accused 1
"He says he did talk to you and says you told him
that you asked for a lift from occupants of the vehicle and that you
this vehicle from its occupants and that after shooting
them you dumped these people somewhere and proceeded with the vehicle
Maseru. What do
you say to that ? He is committing me(falsely) I never
such a thing with him in prison.
PW9 Sgnt Masoabi also says you related a similar story
to him. He says you told him you had asked for a lift from people who
riding in a vehicle. That on the way to Maseru you asked that
the vehicle be stopped. That you shot the occupants of the vehicle,
bodies and proceeded to Maseru. What do you say to
that ? He
committed me for he didn't want to accept the report I
gave him. I don't know that one.
Here are two people PW1 and PW9 with whom you had had no
previous quarrel. They tell the Court the same story about what
Ct: Didn't you find this that they say strange ? No. I
Because it is normal and true ? No it is not true.
Do you know what is meant by something being strange.
Here are two people telling the same thing about you learnt from two
places ? With PW9 I am not surprised for he had hit me
PW1 ? He is the one who I am surprised with".
71 I need go no further in expressing my satisfaction
with PW1's story which
surprises accused 1 for supported as it is by PW9's
version it illustrates beyond doubt that any protestations to or
denials of its
veracity cannot be true. I reject therefore those
denials and protestations in favour of the credible story narrated by
PW1 who enjoys
the support of PW9 in this very crucial respect-It is
accused 1's further testimony that the vehicle that Mofihli was
the day in question looked like the one that the Court
went to inspect at the inspection in loco i.e. the Jetta car Mofihli
went to PW1's home in. When they arrived accused 1 stood some
distance away from PW1 and Moeketsi Mofihli and thus could not hear
what the two were saying. He eventually left without any further ado
seeing that the two had gone into the house and he didn't know
long they were going to go on further.
Under cross-examination he indicated that he didn't
bother to thank Mofihli for the lift or tell him that he was leaving.
the Court that only Moeketsi Mofihli gave explanations at the
scene in Mafeteng.
have already indicated that PW9's story and I should add taken along
with that of
72 Chonelanka which indicated that the two men who
arrived with police from Maseru
kept on indicating what happened at various places along
the way from Mafeteng to Ha Lumisi, though Chonelanka couldn't say if
of the two men is in Court, yet by simple deduction and given
that other evidence including that of accused 1 himself indicates
on a particular day when police from Maseru joined with those
from Mafeteng as photographs amply illustrate, went together to the
scene at Ha Lumisi and the two men gave explanations at the scene,
such men can be none other than accused 1 and Mofihli. Thus although
Chonelanka is unable to identify the two men his evidence against
them is indeed damning beyond redemption for it cannot even be
why Chonelanka should lie about people he cannot even identify. Thus
on this aspect of the matter where accused 1 wants the
believe that he kept mum and said nothing in the face of credible
evidence to the contrary deserves rejection as false beyond
It is his further story that he didn't hear the
explanations that Mofihli gave to the police. But in this regard
accused 1 is treading
what by now appears to be his familiar path and
singing his pat theme. It should be recalled that at PW1's he said he
did not participate
in the discussion that he said was going on
between PW1 and Mofihli yet credible evidence pointed to the contrary
as I earlier indicated.
73 Furthermore he said he never talked with PW1 while in
prison about how he and
Mofihli had come by the vehicle they came driving in to
PW1's home. One more strange thing that he expects the Court to
that when he left Mofihli, as he claims he did, at PW1's
place he never bothered to bid him farewell or alert him to the fact
the car that remained outside PW1's place had remained without
him keeping an eye on it in case something happened to it while the
duo inside basked in the false hope that the man outside would raise
an alarm should any such mishap threaten to happen.
He said he didn't bother to ask Mofihli what happened
when he obtained this car at Mafeteng. It is strange that he should
the blood seen on photographs taken days after the
incident could have escaped him entering the car while such blood was
and while it was still bright not necessitating the
lighting of motor vehicles travelling on the high-ways.
It indeed strains credulity to expect that the court
should even remotely regard it as reasonably possibly true that
give a lift to anyone so soon after he had killed two
people in that blood-splattered vehicle with bullet holes including
and shattered window all of which factors would have
been enough to
74 arouse the curiosity of an innocent hitch-hiker as to
what the matter could have been that this car was in this condition.
curiosity moved PW6 to indicate that the cold draught coming
in through the window of this car made him feel that he missed his
Honda greatly. PW1's impression had been that this car was new
and he wondered why its window wouldn't close. Yet well accused 1
I accept Miss Maqutu's submission that accused 1 after
being given a lift by Mofihli, would not have simply left without
or thanking the man who had done him all the favour
that one could expect from a friend. For instance he kept the warm
days on end without any thought about the need or use that
"the owner" Mofihli would wish to put it to. On leaving the
least he could have done according as common sense dictates would be
to alert Mofihli that he was then leaving.
I accept Miss Maqutu 's further submission that there is
no evidence to suggest that PW1 would lie about what happened and
was subsequently told by accused 1 and Mofihli whilst in
jail. It is also significant that PW9 found the items of clothing
to the two deceased in accused 1 's possession before the
75 I have paid particular attention regarding
accused 1 's evidence that it came after his own witnesses had given
evidence and that
it would therefore not be surprising if his
evidence is streamed-lined to fit in with that of his witnesses. I
have formed an opinion
that the evidence revolving around the two
murders insofar as it relates to accused 1 is purely circumstantial.
The commission of
those crimes including indeed robbery involved no
eye-witnesses. To that extent I don't think the authority of Tseliso
Lempe vs Rex
C. of A. (CRI) No.7 of 1996 (unreported) which relates
to the defence of alibi is of much use. I would rather rely on
Rex vs Veddie Sello Nkosi which like the instant matter
was based on circumstantial evidence where like in the instant matter
belonging to or under the control of the deceased was traced
to the accused thereby connecting him inseparably from accountability
for the crime committed. I have no doubt that robbery was the motive
for the murders committed.
With regard to accused 5 Mokherane Tsatsanyane the
evidence tendered by this accused is that accused 4 came to him and
asked him to
fix a car for him but not at the workshop belonging to
accused 5's father because accused 4 owed him moneys he was unable to
and thus feared that accused 5's father might impound this car on
learning that it belonged to his debtor.
76 Accused 5 pointed out that on the following day in
the evening they went to
Lithoteng where the car was to be parked. The car was
fetched from there in another evening and eventually parked in PW8's
Accused 5 says he saw no blood on this vehicle. He only saw
blood when the police pushed the car outside the garage. Indeed even
PW15 who had been working on the vehicle didn't see the blood until
this was pointed out to him by a fellow-worker.
Accused 5 indicated that even if he saw blood he would
not think of anything untoward because the work of a panel beater
with blood-sodden vehicles. This appears to me to be
Accused 5 further indicated that he detected no fetid
odour issuing from this vehicle.
He further stated that he had been on a wrong trail
looking for a 4 x 4 vehicle he thought 'Mamolulela Mofolo was riding
in when she
met her ill-fate. He testified that 'Mamolulela is his
relative against whom he could not mean any harm.
As a matter of fact he was present during funeral
arrangements for 'Mamolulela
77 and he eventually attended the funeral. He laboured
under the false belief that what was being looked for was a 4 x 4 and
Jetta that was in his possession. He didn't bother to inquire
from the Ministry of Education what progress was being made towards
finding the 4x4. He never asked his father about the circumstances
leading to 'Mamolulela's death. He never heard people at the funeral
or in casual conversations during arrangements leading to the funeral
or afterwards remarking about the fact that this time 'Mamolulela
travelled in a different vehicle. Although in looking for
'Mamolulela's vehicle he maintains he was assisting with police
it didn't occur to him to alert them in that regard
nor did he feel the need to exchange notes with them.
He said he didn't work on this vehicle at Lithoteng
because there was no electricity. But he acknowleged that at the
place where he
was working on it electrical work was not required nor
indeed needed doing on the vehicle.
Seeing that electricity could not have been the reason
the car was removed from Lithoteng where it had been kept, he quickly
that accused 4 had rented the premises where he lived at
Lithoteng therefore the car could not have easily stayed there. It is
be wondered whether he was certain PW8 was not paying rent at the
78 British High Commissioner's flats. It should also be
borne in mind that he had earlier intimated that the Jetta had been
from Lithoteng because of lack of electricity at that place.
Strangely it was taken to PW8's garage where there was no electricity
He further indicated that accused 4 was having some
business to do at Quthing and it was feared it might be inconvenient
to come to
his rented premises in his absence. But indeed accused4 on
credible evidence has been observed sitting behind the Jetta car in
semi-closed garage at Maseru West scores of kilometres away from
Quthing. PW15 testified to this that he was even reading a newspaper
when so observed. This seems to give a lie to the urgency pressing on
his time at Quthing for the reading of a newspaper on any account
a leisurely form of pass-time. So nothing in truth seems to me to
have been pressing accused 4 at Quthing such that the car could
be repaired where he stayed at Lithoteng.
One significant thing which cuts a wide swath on accused
5's innocence regarding his connection with this car is that at no
it been shown that this car, since arriving in Maseru at
night, ever moved from place to place in daylight. It has been moving
cover of darkness from point to point. Furthermore accused 5
79 not asked for permission to keep this car in PW8's
It is not denied that PW8 asked accused 5 to remove this
car from her garage. Even though it turned out that the date PW8 said
made this demand could be wrong the fact remains accused 5 never
obliged till police came and moved it out of that garage. This
that accused 5 felt that this was the best place this car
could be kept in from prying eyes which might raise eye-brows
its similarity to the car being sought after. No reason -
palpable reason is given why the car was not worked on in the open
still relatively secure and fenced in space opposite PW8's gate
now that she was in dire need of using her garage.
But why the inability on accused 5's part to readily
comply with the demand to remove this car from PW8's garage?? The
Court is not
unmindful of the observations it made about the locality
of PW8's home. It is in an obscure area, accessed by a round about
which leads into a cluster of houses butting on a narrow path
giving an impression to a casual stranger chancing along that path
that he is encroaching. As if that is not enough at the far end to
this avenue-like setting is a gate that leads to even more secluded
area consisting of some five or six flats hemmed in by trees on the
other side of the path. Entry through this gate imposes an even
greater awe to a
80 stranger that he is encroaching on private property.
Along side the road-way serving these flats are gates leading to each
individual flats. Going past that gate one gets into a
high-walled unroofed car-port further opposite whose entrance is a
without windows. The only light getting in there being when
the garage door is tipped. This is indeed a secretive mind's haven.
Thus it is an ideal destination for the type of car
which travels under cover of darkness.
Accused 5 told the Court that when accused 4 arrived
asking that he should fix this car for him his father was not there
be away for a whole week. He and accused 4 agreed that the
vehicle should be finished in two days. Once more given that accused
knew that his father would be away for a whole week the work that
needed to be completed in two days could have easily been effected
accused 5's father's workshop with upwards of three days to spare.
Indeed accused 5 agrees that he could have fixed this car there
instead of parking it at PW8's place.
He further said they took this car to PW8's garage at
night and only told PW7 that he was parking it there.
81 Given the above factors I find that the submission is
well-founded that the only
reason this car was not taken to Lower Thamae workshop
was that accused 5 and 4 were intent on hiding it. The axiom
element of dishonesty prevalent in their dealing with
this car is unanswerable that they removed it from Lithoteng under
darkness and hid it at PW8's garage without her knowledge.
Accused 5 indeed made much of the fact that he was a relative of the
'Mamolulela and could mean her no harm. But I take it that
in hiding the car she had been travelling in he was not doing his
any harm but disobliging the Government which is the owner.
I am not unmindful of the explanation given why the
vehicle ended up going to Lithoteng in darkness. Indeed it was stated
5 had to go to Ladybrand to fetch a gear box and this
took a long time. One nonetheless wonders why every other vehicle
or at accused 5's behest travels at any other time while
the Jetta car is confined to movement at night always.
Accused 5 maintains that PW15 is changing his story when
he says the garage door was closed while they were working on the
buttresses this contention by intimating fairly late in the
day when PW15 can no longer be cross-examined that
82 just before the trial PW15 was approached by certain
persons and told to lie. This contention is in sharp contrast with
laid down in Small vs Smith 1954(3) SA 434 that:
" It is grossly unfair and improper to let a
go unchallenged in cross-examination and afterwards
argue that he must be disbelieved"
See also Phaloane vs Rex 1981(2) LLR at 246 where
Maisels P endorsed the principle enshrined in the above authority.
But apart from the fact that PW15 was steadfast in his
contention that the garage door was closed, he even placed this in
made to the police dated 7th July 1995 -
long before the trial and hardly two weeks after the incident. The
Court puts a premium on the fact that there is no
PW15 and accused 5. Why then would PW15 lie about him. With regard to
accused 4 it would suffice to indicate that
in the face of whelming
evidence against him he preferred to remain silent. But it is not the
position in law that silence is equal
to guilt. The Crown has to bear
the onus to prove the case against every accused beyond a reasonable
doubt. In going about this it
is important to bear in mind the import
of the discussion by learned authors Hoffmann and Zeffertt in The
South African Law of Evidence
at 598 that :
"If a witness has given evidence directly
implicating the accused, he can seldom afford to leave such testimony
evidence does not have to be accepted merely
because it is uncontradicted, the court is unlikely to reject
evidence which the accused
himself has chosen not to deny. In such
cases the accused's failure to testify is almost bound to strengthen
the case for the prosecution".
PW15, PW6 and PW1 gave evidence implicating accused 4
but he chose not to give an explanation regarding his role in the
As a starting point I think in order to determine what
offences accused 4 and 5 have committed it should the proper
use to find out what PW1 the accomplice could be said
to be guilt of.
Credible evidence indicated that when he got involved in
the crimes charged PW1 had been duped into believing that what he was
getting himself embroiled in was theft simpliciter. It had
not been disclosed to him that the car had been forcefully taken from
its lawful custodian. In fact he was deceived into believing that
keys belonging to this car had dropped imperceptibly from a driver
who was worse for drink.
84 It was not disclosed to him that the occupants of
the car had given a lift to two
rogues who shot and killed those occupants. In short it
was not suggested to PW1 that violence was an element in the taking
of this car.
The highest water-mark of accused 4's knowledge i.e.
guilty knowledge or mens rea was what was supplied to him by Pw1 who
is an essential
Bench-mark if the situation being dealt with here is
to be seen in proper perspective. The acknowledgement of this fact
instant case outside the purlieus of R vs Jongani 1937 AD
400 where the facts were :
Jongani was the leader of a criminal gang. He could have
been charged with theft or receiving stolen property knowing it to be
The gang killed the deceased in Jongani's absence and without
his knowledge. After the murder the gang told him what they had done.
He took possession of the deceased's personal belongings. He was
convicted by the Appeal Court as an accessory after the fact in
respect of the murder"
C/F R vs Nkau Majara 1954 HCTLR pg 38.
In the instant case guilty knowledge seems to be
confined to a lesser crime of theft only.
Under such circumstances it would seem PW1 would be
guilty only of Theft. But the charges here are of two murders and
not theft. To my
85 understanding of the law one can only be convicted as
an accessory to crimes
charged. But in the instant case Theft has not been
preferred as a charge therefore it would seem in such circumstances
this logic PW1 would have to be acquitted. But can he
really. I think not.
A careful consideration of sections 140(1), 182(2), 197,
198, 185 and 345 of our Criminal Procedure and Evidence Act No. 7 of
seem to fortify me in the view that I entertain.
Section 140 provides that -
"(1) Any number of persons charged with -
(a) committing or with procuring the commission of the
sameoffence, although at different times, or with having after
thecommission of the offence harboured or assisted the offence;
may be charged with substantive offences in the same
charge and may be tried together, notwithstanding that the principal
or the person who obtained the property is not included in
the same charge or is not amenable to justice".
Section 182(2) provides that -
"Any person charged with an offence may be found
guilty as an
accessory after the fact in respect of that offence if
such be the facts proved, and shall, in the absence of any penalty
provided by law, be liable to punishment to which the
principal offender would under any Law be subject".
Section 197 provides that -
"If in any other case not mentioned in this Act the
commission of the offence with which the accused is charged as
the law creating or as set forth in the charge, includes
the commission of any other offence, the accused person may be
of any offence so included which is proved, although the
whole offence charged is not proved".
If one can pause here a moment it would seem plain that
if by the whole offence charged one could take robbery
for an example and that robbery is not proved then it would further
the interpretation does no violence to this section if
theft is nonetheless proved, for in the scheme of things it is in
because in its commission an element of dishonesty is
included just as well as it is defined as an essential element in the
and charge of robbery.
Section 198 rams the point home by neatly providing even
in more clear terms than the preceding section, that -
"If the evidence on a charge for any offence does
not prove the commission of the offence so charged but proves the
of an offence which by reason of the essential elements of
that offence is included in the offence so charged, the accused may
guilty of the offence so proved".
Thus if the accused is charged with robbery, and it is
shown that only the element of dishonesty is proved while that of
is not then it seems conviction
87 for theft would be a proper verdict according to the
spirit if not letter of this section read with the above cited ones.
Section 185( 1) is also worthy of consideration insofar
as subsection(d) thereof relates to the exercise I am presently
Subsection (1) provides that -
"If upon the trial of any person on a charge for
robbery it appears upon the evidence that the accused did not commit
of robbery but that he did commit -
an assault with intent to rob; or
an assault with intent to do grievous bodily harm, or
A common assault; or
theft forming part of the offence of robbery charge; or
an offence under section 343,
the accused may be found guilty of an assault with
intent to rob, or of an assault with intent to do grievous bodily
harm, or of a
common assault, or of theft or of an offence under
section 343 as the case may be". Emphasis supplied by me.
Clearly the invisible offence is created here that if
Robbery is not proved but theft is proved then it is fitting that a
for theft be returned.
See also section 343 which talks of failure to give
satisfactory explanation for possession. Such could have either been
the police or to this Court. In my view accused 4 and 5
failed to meet the minimum requirement needed of them by this
This in my opinion is the offence PW1 would stand to be
convicted of in terms of the sections set out above read with each
and of nothing else.
In the light of the fact that PW1 was the linchpin
working vigorously to attract the desire to have on the part of
accused 4 who in
turn lured accused 5's greed, yet the maximum crime
he is shown to have committed is theft under the sections considered,
in my view accused 4 and 5 go any higher.
It should be recalled that credible evidence revealed
that in his eagerness to reap where he had not sown PW1 brazenly said
"the two boys you see near
89 the car have stolen it we want to make it ours. Can
you think of anybody who could help us hide it".
It can be rightly presumed that the conversation that
was engaged in by DW2 and accused 4 though conducted in a language
knows little of, if DW2 was faithful to what PW1 said to him
then accused 4 would have been told nothing concerning the violence
that accompanied the taking of the car resulting in two deaths. In
fact PW1 got to learn of the true position long after he learnt
accused 4 had been laid by the heels and even if he could have learnt
of it before accused 4 was arrested it appeared that PW1
had lost the
opportunity to meet with him. Regarding accused 5 PW1 knew nothing of
his involvement in the desire to unlawfully possess
this car. What
knowledge accused 5 had of the dishonour tainting this car could not
have been more than accused 5 had or in turn
more than PW1 had.
Accused 4 and accused 5 are acquitted of murder in Count
I, murder in Count II and Robbery in Count III.
They are convicted of theft both of them in terms of the
provisions of above quoted sections read together.
90 PW1 is freed from liability in respect of all
charges preferred in this
Accused 1 is found guilty of murder in Count I, murder
in Count II and Robbery in Count III.
My assessors agree.
27th April, 2001
For Crown : Miss Maqutu For Accused 1 : Mr MositoFor Accused 4 : Mr Lesuthu For Accused 5 : Mr Mahlakeng
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