CRI/T/59/03

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU In the Matter of:-

Rex

V

Sebekela
Nkhapetla

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 30^th
November 2005

On the
25th October 2005, the accused appeared before me on a charge of
murder it being alleged that upon or about the 21st January
2002 he
unlawfully and intentionally assaulted one 'Mamolise Matele by
inflicting gunshot wounds on her which caused her death
on the 27th
February 2002.

The
accused pleaded not guilty to the charge and the crown led the
evidence of two (2) witnesses to support its case. P.W.I Thabo

Ramataboe testified that accused herein is his friend and that
sometime the police came to him and demanded that he hand over his

firearm, a 9MM Norinco pistol with serial numbers 308875. He told the
Court that at that time the pistol had six (6) rounds of
ammunition.

1

It was
his further testimony that the police informed him that the accused
had told them that he had used the same firearm to kill
the deceased.
The witness also the Court that accused had borrowed this firearm
from him and that this happened before the police
came to demand it.
The witness however testified that he is analphabetic and as such he
could not tell the Court the exact dates.
It was his further evidence
that after the accused returned the pistol he counted six (6) bullets
in the magazine.

P.W.2's
testimony was that he received a report concerning the shooting of
the deceased from Molise Matele the deceased's son who
also handed
over to him two empty shells and one lead which he picked at the
scene. P.W.2 testified further that he arrested the
accused and gave
him a charge of murder. It was this witness' further testimony that
the accused gave him an explanation that led
him to P.W.I and that
the latter did hand over the above mentioned firearm to him upon
request.

This
witness also testified that he counted only three (3) bullets at the
time the firearm was handed over to him. He seized the
pistol as an
exhibit and submitted it together with the spent shells and lead to
the firearms expert for

2

a
ballistics examination. The pistol and spent shells and lead were
handed over to the Court and were marked exhibit 1 collectively.

The
defence admitted the statements of five (5) witnesses namely, Sentso
Boy-Boy, the headman Johannes Ramataboe, Chaka Majalle.
Molise
Majalle and Phuthi Pali the firearms examiner. The first three of
these witnesses' evidence was that on the day in question
they heard
an alarm coming from the direction of the deceased's home and that
they went out there. Upon arrival, they found that
the deceased had
been shot on the buttocks.

The
admitted evidence of Molise Matele who is the deceased' son was that
on the night of the incident he was sleeping with the deceased
and
two of his children when he heard the report of gunshots two times.
Upon waking up he noticed that the house was full of smoke
and that
his mother reported that 'they had shot her' and upon examining her
he realized that she had sustained two wounds on the
buttocks and was
bleeding.

The
post-mortem report showed the cause of death to be septicemia
resulting from the gunshot wounds.

3

The
defence evidence on the other hand consisted of the accused"
sole testimony. He told the Court that while he does not deny
having
borrowed P.W.l's pistol he however never fired any bullets from it or
killed the deceased with it. It was also his evidence
that he
returned the pistol the same day still containing the six (6) bullets
as he had borrowed it.

The
accused also told the Court that when he was first arrested, he was
taken to the Pitso Ground Police Station whereby the police
demanded
that he hand over the firearm that he had used to kill the deceased.
It was also his evidence that one Thabo Ramataboe
(not P.W1) with
whom he had been arrested, persuaded him to hand over the firearm as
he knew where it was since he knew very well
that he had shot the
deceased.

The
accused further told the Court that he eventually led the police to
P.W.1 by calling the latter in the presence of his parents
and asking
him to hand over the pistol because he had been badly assaulted and
tortured whilst in police custody.

The
evidence on which the crown relies is mostly circumstantial. In his
submissions, Mr Mokoko Counsel for the defence quoting from
the case
of

4

R v Blom
1939 AD 188 at 202/2 showed that the proved facts in casu not exclude
the fact that the gun could have been in the hands
of another person
between the time when it was returned to P.W.I by the accused and
when the offence was alleged to have been committed.

While
this is possible, the evidence of P.W.I was that he never lent the
pistol to anyone else but the accused and this evidence
remains
unchallenged. In addition, whilst it is true that P.W.I does not know
the exact dale when the pistol was lend to the accused
due to the
fact of his illiteracy, he testified that it was before the police
came to him demanding same.

In casu
the offence was allegedly committed on the 21st January 2002. The
accused was arrested and charged on the 1st February'
2002 which
means that at the time of his arrest, the offence had already taken
place about two weeks earlier. At any rate, the
indictment reads on
or about the stated date which means that although P.W.I cannot
remember the exact date, the fact that it was
around the date in
question suffices, (my underlining)

It was
also the defence' submission that the evidence as is stands cannot
exclude the possibility that the gun was fired to reduce
the number
of bullets

5

from six
to three rounds. Once again while this is possible, P.W. 1 testified
that he never lent the pistol to anyone else and it
was never
suggested to him under cross-examination that he could have fired the
gun to reduce the number of bullets thus denying
the Court the
opportunity to hear what his response might have been.

Further,
this witness testified that he is the accused's friend and it would
not make sense to this Court why he would fire the
pistol to reduce
the number of bullets this would definitely incriminate either him or
the accused, something he would have no
reason for doing unless there
was evidence placed before the Court to establish this. Their
friendship is evidenced by the fact
that he actually lent the firearm
to the accused. People do not normally lend such things to anyone or
casual acquaintances.

True
enough, P.W.I testified that the pistol still had six bullets in it
but the Court cannot ignore the fact that it would not
be in his
interests or that of his friend, the accused to state otherwise.
P.W.2, a neutral person testified that there were only
three bullets
at the time he seized the firearm and this number tallies with the
spent bullets and lead which were found at the
scene.

6

This
being the case the Court rejects this part of his evidence as a
blantant lie for the simple reason that he wanted to protect
his
friend.

If the
Court were to believe that the accused is not the one who shot the
deceased this in turn would beg the following questions;

1. Why
   did he borrow the pistol in the first place?

   
   

2. Why
   did the other Thabo Ramataboe with whom he was arrested urge him to
   tell the police where the firearm and at the same time
   suggest that
   the accused knew very well that he had shot the deceased?

   
   

3. Why
   would the spent cartridges match the same firearm that he borrowed
   from P.W.I around the time the offence was committed?

   
   

4. Why
   did he lead the police to P.W.I whose pistol he had borrowed matched
   the spent bullets found at the scene?

   
   

With
regard to the first question, the accused' s explanation was that he
borrowed the firearm just to boast. However, the Court
finds this
explanation highly improbable for the simple reason that people do
not usually brandish pistols around, especially those
not licensed to
them like they would a toy and by some coincidence someone gets shot
with bullets

7

that
match same. The Court therefore rejects this explanation as totally
false.

On the
second question, it is the opinion of this Court that Thabo Ramataboe
would not have just told the accused to point out the
firearm and
also allege that the accused knew where it was since he had shot the
deceased. This Court believes he said so because
he knew that as a
fact that the accused had not just borrowed the pistol for fun or as
he said to boast, but that he borrowed it
for a purpose which he
actually carried out i.e. to shoot and kill the deceased.

On the
third question, the pistol turned out to match the spent cartridges
found at the scene and also tallied with the number of
bullets that
were in the pistol when P.W.2 seized it because it is the one that
was used to shoot the deceased by the accused.
On the basis of the
circumstantial evidence placed before the Court, the Court believes
that he borrowed it for a purpose which
he carried out, believing he
had a fool-proof plan. That is why him and his friend P.W.I lied to
this Court that when he returned
it, the pistol was still loaded with
all of the six bullets inside.

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Although
this Court believes in coincidences, in cusu there is one too many
for this Court to accept them as being just that, coincidences.
The
cases point is that of Tatolo Phoofolo v Rex 1963-66 H.C. T.L.R p5 at
p5 quoted with approval by the learned Lehohla J (as
he then was ) in
R v Moramo Sehlabaka CRI/T/22/88 p 64 wherein in explaining
circumstantial evidence Lord Watxin Williams P. was
quoted as having
said:-

"It is evidence of surrounding circumstances which by
undersigned coincidence is capable of proving a proposition with the

accuracy of mathematics"

It is my
opinion that the above quote aptly captures the circumstances in
casu.

On the
issue of pointing out, the Defence referred the Court to the case of
R v Mohapi Felemane 1982-84 LLR 314 where the learned
Kheola J (as he
then was) stated that 'for a confession to be admissible it has to be
proven to have been freely and voluntarily
made by a person in his
sound and sober senses and without having been unduly influenced
thereto.

9

The
defence' submission was that the accused herein could not have made
the confession freely and voluntarily because he testified
that he
had been assaulted by the police. This fact was denied by P.W.2 under
cross examination. The accused's evidence did not
specifically say it
was P.W.2 who assaulted him but he made a general accusation of
assault without alleging that this was actually
carried out by the
person to whom he did the pointing out.

During
cross-examination, when asked if he ever went to see a doctor for the
injuries since he was allegedly so badly assaulted,
the accused
replied that he saw a traditional healer and as such could not
furnish any proof for the alleged injuries. Unfortunately,
in the
absence of such proof, and for the reason that it is his word against
that of P.W.2 it is difficult for the Court to accept
that he was
indeed as badly assaulted as he alleges leading him to do the
pointing out under duress.

In my
opinion, even if he did not have proof from a medical doctor that he
was so badly assaulted, he could have brought evidence
to support
this allegation either in the form of a person who saw him while he
was still in police detention or immediately after
his release such
as his parents and/or

10

the said
traditional healer. He however chose not to and in such
circumstances, the Court has no reason to believe that he only
did
the pointing out because he was indeed assaulted.

At any
rate, he happened to point out the same firearm which he borrowed
from P.W.I and which matches the spent cartridges found
at the scene.
This is too overwhelming to be regarded as a mere coincidence.
Further, the Court takes judicial notice of the fact
that no two
firearms can match the same spent cartridges not to mention that this
was not suggested by the defence. They only denied
having used the
borrowed firearm to shoot the deceased. But the big question remains,
why did he borrow it? As already shown above,
this court rejects as
palpably false, his explanation that he did so just to boast.

Even if
this Court could believe that the pistol was fired by someone else,
the fact that the other Thabo Ramataboe persuaded the
accused to
produce the firearm and that the latter pointed out the same firearm
he had borrowed around the time of the incident,
which also happened
to match the spent cartridges found at the scene leads this court to
draw only one inference to wit, that the
accused is indeed the
culprit.

11

In the
case of R v Blom 1939 AD 188 at 210 when dealing with the question of
the crown's burden of proof Centlivres A.J.A had this
to say;

"...but usually the Crown sets out to do this in order to
connect the accused with the death. When it succeeds in proving
the
specific cause of death and in proving that the accused not only had
in his possession the means to bring about that specific
cause of
death as well as the opportunity then a reasonable man may draw the
inference from these facts and other circumstances
which are proved
that it was the accused that killed the deceased. "

By the
same analogy, having regard to all the circumstances of this case, I
find that there is enough evidence upon which a reasonable
man could
reach the conclusion that the accused is the one who fired the shots
that eventually led to the death of the deceased.

Whilst it
is true that the crown's evidence had some flaws in that P.W.I
testified that when the pistol was returned to him it still
had six
bullets in it, the Court cannot ignore the fact that the two are
friends. It would therefore

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not be
impossible for P.W.I to want to vindicate his friend especially since
he is the one who lent him the same pistol.

P.W.2
testified that at the time he seized it, the pistol had only three
bullets and this was not challenged by the defence. They
only
suggested that someone else might have fired the pistol between the
time the accused returned it and the time of the incident.
The Court
might have accepted this suggestion if the other surrounding
circumstances did not point to the accused herein.

For all
the above reasons, it is my humble opinion that on the whole, the
Crown has discharged its onus of proof beyond a reasonable
doubt for
as it was correctly stated in the case of Rex v de Villiers 1944 AD
493.-

"In a case depending on circumstantial evidence...the court must
not take each circumstance separately and give the accused
the
benefit of the doubt as to the inference to be drawn from each one
taken. It must carefully weigh the cumulative effect of
all of them
together and it is only after it has done so that the accused is
entitled to the benefit of any reasonable doubt which
it may have as
to whether the inference of

13

guilt is the only inference which can reasonably be drawn. To put the
matter in another way. the crown must satisfy the court,
not that
each separate fact is inconsistent with the innocence of the accused,
but that the evidence as a whole is beyond a reasonable
doubt
inconsistent with such innocence"

For these
reasons, I accordingly find the accused guilty of the offence of
murder as charged.

My
assessors agree.

SENTENCE

In
considering what should be the appropriate punishment in casu, the
Court takes into account all the personal circumstances of
the
accused as were raised by his defence Counsel. He is a young man of a
tender twenty (20) years and the sole breadwinner of
his family
inclusive of his five (5) younger siblings.

In
addition, this matter has been hanging on his head since the year
2002 and has as such negatively affected him both emotionally
and
psychologically.

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This
Court has a duty to show its displeasure towards this type of
attitude and to punish those who believe they can take others'
lives
with impunity. The punishment therefore has to be exemplary in order
to also serve as a deterrent to other would be murderers.

For all
the above reasons, the accused is accordingly sentenced to
imprisonment for a period of ten (10) years.

N. MAJARA

JUDGE

For the
Crown : Ms Kanono

For the
Defence : Mr Mokoko

Assessors
: Mr Ntsala

Mr
Monyane