IN THE HIGH COURT OF LESOTHO
HON. MR JUSTICE S.N. PEETE ASSESSOR: MR M. NTSOELE DATE : 27th MARCH
accused, Keketso Lekota, a male mosotho adult aged about twenty one
years (21) appears before this court charged with the
murder, of robbery and of unlawful possession of a firearm to wit: a
pistol 9mm contrary to the provisions of section
3(1) and (2) of
Internal Security Act No. 17 of 1996 as amended by Arms and
Act No.4 of 1999, the crown alleging that on the 17th day of March
2004 and at or near Malealea in the district of Mafeteng,
acting in the course of armed robbery did unlawfully and
intentionally kill one Sabastian Horsten, a German national
Federal Republic of Germany; on count two it is alleged that on the
17 day of March 2004 the accused used force and violence
submission of one Tobias Aldenhoff, also a German national and did
then and there take and steal from his person certain
property to wit
a wallet containing M500.00 plus bank cards and identity cards; on
the third count it also alleged that the accused
provisions of section 3 (1) and (2) of the Internal Security Act No.
17 of 1996 (as amended by Arms and Ammunition
Act No.4 of 1999) by
unlawfully having in his possession a 7.65mm pistol serial No.E20016
and two rounds without holding a valid
firearm certificate in force
at the time.
have in the judgment upon application for discharge of this accused
commented about the inelegant manner in which the indictments
presented; according to the evidence, the accused did not act alone
but in concert with another man - Qenehelo Lillane - now
Whether dead or alive and thus not before court, the indictment ought
still to have alleged that the accused acted in
purpose) with the said Qenehelo Lillane. This omission was however
not fatal to the charge sheet inelegantly as
it stood and before
addressing court at the end of the proceedings, Mr Lenono made an
appropriate amendment and this was consented
to by Mr Phoofolo who is
appearing as Pro Deo counsel for the accused.
these charges, the accused, pleaded not guilty. Pleas of "not
guilty" were thus entered in respect of all counts
accused is facing in this trial.
Phoofolo then formally made certain admissions of the following facts
in terms of section 273 of the Criminal Procedure and
the deceased Sabastian Horsten died as a result of a gun shot wound
which caused a cardio pulmonary bleeding or haematoma
bullet having penetrated through the heart ventricles. These were the
results of an autopsy conducted on the 18th March
2004. This Report
was marked Ex"A".
admitted was a more thorough postmortem report by one Dr Patricia
Klepp in Gauteng in the Republic of South Africa. In
autopsy she reports that a spent bullet was found lodged in the neck
of Sabastian Horsten. This Report was handed
in as Ex "B".
Having made a brief opening statement, Mr Lenono, leader of the
prosecution team, called P.W.1 one Khahliso Raelia, a 22 year
school girl who informed the court that she knew the accused quite
well and that in March 2004 she was an attending scholar
Malealea Secondary School located on the westside of Malealea
and that on the 17th March 2004 after her school had closed for the
day, she was proceeding towards home in the company of
Majoalane Lesoma and Tsireletso Lesoma. It was in the afternoon.
Having passed a road culvert, they came upon the accused and one man
(later in this case identified as "Qenehelo Lillane")
sitting next to an embankment along the Malealea road near the
village of Ha Koepe. She says that Majoalane greeted the accused
then engaged her in some idle talk asking her the whereabouts of one
Lefa and one Rathebane - his friends. She says she knew
accused to be
then living in Mazenod near Maseru at the time.
says that having left the accused and his friend behind, a red car
then drove past going down towards the Malealea Lodge.
of this car were two white people who even merrily waved as they
says after a short while she then heard a very loud sound as if
something was falling and on looking back she saw the accused
friend hurriedly running towards Ha Koebe and then into a tree
plantation. From where they were she could not see the red
however proceeded homeward.
Whilst at the Paradise Pass she heard people shout calling Bereng
saying, "Bereng ....come down ... a white man is dead".
This Bereng, it came to pass, was a security guard employed by the
Malealea Lodge and was usually manning a shack at the pass.
continued to inform the court that later that afternoon, as she and
P.W.2 Majoalane were doing their school work and assignments
Sekhampane, they saw another man and the accused who was - now
wearing a white shirt - hurriedly walk past. They did not
them at this time.
During cross examination she agreed that when they heard the bang or
a loud sound they were then out of view and could not
see the red car
or the accused and his friend. She denied that she had been coached
to say that accused had changed clothes in
the late afternoon when
she again saw them at Ha Sekhampane.
called was Majoalane Lesoma, a 21 year old school girl. She informed
the court that she also knew the accused well; she
the accused along the Malealea gravel road and that they also passed
a red car which was travelling towards the
Lodge; and that after it
had disappeared from their view, they had heard a loud sound and that
they had seen the accused and another
man running from the direction
of the sound and were running fast toward Ha Tsoeunyane. She also
heard people shout "stop
them ...those thieves... !" She
says they then passed Matebele Cafe on their journey home.
Paradise Pass she also heard people shout "Bereng ... come down
...a white man is dead". As already alluded to
is a security guard stationed at the pass under the employ of the
also confirmed that later that evening they again saw accused and his
friend at Ha Sekhaupane - a village situated on the
western side of
the Paradise Pass and that accused then wore a whitish shirt; "they
seemed to be in a hurry" she said.
During cross examination, she agreed she could not see either the car
or the accused when she heard a loud sound. The inspection-in-loco
also confirmed this fact.
importantly, Mr Phoofolo then proceeded to put the version of the
accused to P.W.2 as follows:-
says it is true you passed them near the culvert and that he and his
mate were seated. Accused says his mate went
to relieve himself under
the culvert.... "
will also say that as a red car approached his companion Qenehelo
suddenly produced a gun and said "Let us stop
this vehicle ...I
want to hijack it and strip it for car parts"!
will say he told Qenehelo that he would have nothing to do with the
hijacking. He says Qenehelo then rushed into the
road and stood in
front of the vehicle pointing a gun as the driver approached, and the
red car suddenly accelerated and Qenehelo
jumped aside and
immediately shot at the car. Things happened very fast. The vehicle
went off the road and
Qenehelo then rushed to this vehicle and demanded a wallet and a
sports cap from the white man. Accused will say they
then ran away ".
told the court that the Malealea road is used frequently by tourists
going to the Lodge in the panoramic valley below the
It was then agreed by all that an inspection -in-loco was necessary
to visit the terrain at Malealea.
- 18th August 2005.
the 18th August 2005, the Court travelled to Malealea in the district
of Mafeteng for an inspection-in-loco and the following
The Malealea Lodge is situated in a beautiful valley on the foothills
of the Maluti mountain range in the district of
(b) It is
a renowned tourist attraction to many a tourist who visit the Lodge
and its surrounding valleys all year round.
Beyond the Paradise Pass, a gravel road then meanders down the hills
towards the Lodge below.
(d) At a
spot "X" along this road, the two girls pointed out the
place where they found the accused and Qenehelo seated
about 12 paces
from the culvert.
point "Y" some 212 paces up the road they pointed out a
spot from where they heard the loud sound.
spot "Y", spot "X" is out of view.
pointed out was the forest plantation into which the accused and his
friend were seen running after the loud sound was
girls also took the court to their home at Ha Sekhaupane from whether
they had seen the accused and his colleague later
on the evening of the 11 March 2004.
Trooper Moeketsi of the Lesotho Mounted Police Service also pointed
out to a spot in the field next to the road where he found
a red car
which had apparently capsized and rolled but was then on its wheels
with one tyre punctured. He also pointed to a spot
nextby where he
found the corpse of Sabastian Horsten lying prostrate."
the 22 August 2005, the court having reconvened in Maseru, the crown
called No.9181 Detective Sergeant Moeketsi who informed
that on the late afternoon of the 17/03/04 he was at the Matelile
Police Post when he received a report that a white
man had been
killed at Malealea. He immediately rushed to the scene with one
Sergeant Matjilo in a police van.
went to inform the court that at the scene they found many people
already gathered and amongst them was one white man Tobias
who then gave them a full account of the shooting incident; lying
next to the red corolla was the corpse of Sabastian
inspecting the corpse, he found an open wound between the shoulders
at the back. There was no exit wound.
the gravel road, Tobias indicated a spot where they were shot at and
upon inspection he found a bullet shell of a 7.65mm.
Having removed the punctured wheel of the red Toyota and fitted
another tyre, they drove it to Matelile Police Station, Tobias
been taken to the Lodge below, possibly to recover and rest after
what could have had been a harrowing experience.
says that the Matelile Police post, later that day, the accused and
Qenehelo arrived under a police escort. Qenehelo had
open wounds on
his head. Who caused these injuries will be a subject of yet another
inquiry. I have no commend to make at this
informed the court that the injured Qenehelo and the corpse were
transported to Mafeteng Hospital that very same day of
the 17th March
went on to inform the court that on the 18th March 2004, the accused
led him to a spot amongst the fields and in a donga
kilometers from the village, the accused lifted up a stone and picked
up a black wallet from thereunder.
wallet was found to contain some bank cards and identity documents
bearing the name of- "Tobias". No money was
found in the
went on to say at Malealea Lodge, on the 18th March 2006 Tobias
Aldenhoff later identified the wallet bank and the ID cards
property; he says these items were later released to Tobias as he was
about to leave for Federal Republic of Germany on
the very same day.
The red corolla CA562 - 449 (a Cape Town registration) was driven to
Mafeteng Police Station and later released
to the car rental company.
Under cross examination, he informed the court that he drew a sketch
map of the scene, having cordoned off the area of the
there were inquisitive onlookers milling around at the scene. He
admitted that the accused was not present when he
the question why he had not arrested the people who had allegedly
assaulted Qenehelo, he replied that the matter was still
The accused will say that they (villagers) assaulted Qenehelo because
they knew it was Qenehelo who had shot? ...even
the money was found
in Qenehelo's possession by Morai and Mokhachanel
Mokhachane will say Qenehelo took out the money?
Accused says Qenehelo was taken to hospital on the 18th March 2004 -
the following day?
Qenehelo was assaulted by police with a baseball bat? Answer: I don't
Where is Qenehelo's postmortem report? Answer: I will bring it. It is
in the docket at the DPP's office.
Accused says he was severely beaten by the police with a baseball
Accused will say that Qenehelo told you where the exhibits were?
When you took him to the donga, you forced him to go as Qenehelo was
Accused was not forced. "
admitted that he had not recorded in the Police Occurrence Book that
Qenehelo had been taken to Mafeteng Hospital on the
17th March 2004
but sought to explain this by pointing out that due to their hurried
departure for hospital, he had forgotten to
make the necessary
called was Trooper Morai P.W.4, a policeman stationed at Matelile
Police Post who informed the court that on the 17th
March 2004 as he
was driving his car down the Malealea road he was flagged
down by a
white man who made a report about a shooting that had just occurred.
Having stopped and alighted from his vehicle, he was led by the white
man - Tobias Aldenhoff - to a damaged vehicle standing
in the field
next to the road. In the vehicle - which looked as if it had
overturned and rolled off the road - he found the dead
body of a
white man slumped on the steering wheel of the vehicle.
he and the other people was taking him out of the car, he was
informed by those rendering assistance in easing the deceased
the car, that he was perhaps already dead. The corpse had a wound at
says he then rushed back to Matelile Police Post where he made a
report to Inspector Matjelo.
says that later that day when he was driving his car at Ha Sekhaupane
village, he saw two boys running towards the T-junction
Sekhaupane Secondary School. They hailed him to stop and that as they
entered his vehicle, he recognized the accused
and his companion from
a previous encounter when they had asked to be transported to
Motsekuoa to convey a letter concerning some
bereavement a week
says that this time they again asked to be taken to Motsekuoa to take
a letter of bereavement. He says he suddenly and intuitively
suspicious and cautioned and arrested them. And that after some
prevarication, the accused told him he knew something and
him to the place where the property was hidden.
continued to say that the accused then asked him to proceed to
Moeaneng at the house of 'Maphakiso Mphomeli; and near a
house, the accused asked him to stop; many people had then gathered
and Trooper Mokhachane was present. One Thabang
Mphomeli came forward
exclaiming '''Here are these devils ...and they are even wearing my
shirts !"; and noticing Thabang's
anger, he says he then closed
the doors of his car.
says that Thabang then led him to his house and therein they found a
sleeping infant on some bedding and Qenehelo proceeded
to search for
something. He says the accused then took out a gun - a 7.65 9mm from
where the baby lay and gave it to him. He inspected
the gun and
discovered in the magazine some two rounds. It was serial number
E20016 w. He says the accused also took out a "sporty"
says it was at that time that Qenehelo suddenly bolted through the
door and started fleeing from the house where upon the
chased him in hot pursuit.
says he remained behind guarding the accused while Inspector Matjelo
also ran after Qenehelo.
says that when they brought Qenehelo back, he saw that Qenehelo was
limp and was being carried shoulder high by his pursuers;
says Inspector Matjelo ordered the people not to take law into their
hands and ordered the accused to be taken into the
awaiting car. The
accused and Qenehelo were then transported to Matelile Police Post.
told the court that at the Matelile police station, Qenehelo - then
unable to walk on his own - was carried out of the van
and was made
to sit on the stoep outside. It was then getting dark.
handed in the gun as "Ex 1".
his grilling cross examination, Mr Phoofolo sought to demonstrate
some inconsistencies and discrepancies between his evidence-in-chief
and his own written report which was admitted (undated) as "Al"
In your report you say the accused took the gun out in Thabang's
house...and Thabang says exactly the same.
What does Mokhachane say in his report?
He says accused and Qenehelo pointed out the gun.
You purposefully tallied the witness's statement with yours?
did not do that ...in fact the witness would come and controvert
that. A statement is often given to a witness to read
before he signs it.
The accused will say he never took out a gun and handed it to you?
He did so ...He knew Thabang's house ...Qenehelo did not know the
owner of the house. It was the accused who led us to Thabang's
and not Thabang and Mokhachane.
Did you body search the accused? Answer: Only at the police station.
Matjelo then cocked the gun at them and ordered them to raise their
hands up and lean against the vehicle?
Accused says the gun was handed by Qenehelo to Mokhachane?
Did you ask about ownership of the weapon and its registration
did. Accused just keep silent
In your statement, you say accused said it belonged to his friend
This was his ultimate explanation. Question: Did Qenehelo utter a
In the house he said nothing. Later he was in a bad state. Qenehelo
said the gun was his but he had no relevant papers.
You wish to implicate the accused falsely about the gun?
No ...Qenehelo confessed that the gun was his and that he had no
The accused will say Qenehelo picked out the gun as his own?
It was the accused who took it out.
Accused will say Qenehelo never ran away because they were then
harnessed with barbed wire?
Mokhachane in his statement says he remained and you joined the
Accused says you and Matjelo assaulted Qenehelo with a baseball bat
at Matelile Police Post?
Why did the people assault Qenehelo and accused?
People were saying that the accused and his friend had tarnished the
good image of their area.
The accused will say that because his shirt was dirty he went to the
house of Thabang to change a shirt?
That I don't know.
Accused says he went there to dissociate himself from Qenehelo who
was then armed with a gun ...he felt like a hostage?
will refute that... they were together when I found them.
Accused says at Thabang's house Qenehelo was wearing a greenish
trousers and a maroonish shirt and no white shirt?
deny that. Qenehelo had a grey flannel and a white shirt.
Accused refutes your evidence that a week before you took them to
certainly did. I even got paid M30.00 ...I was just helping them
because they had bereavement.
You run a taxi?
don't ....If I did I could have long been dismissed.
Accused says though he offered to make a clean breast of everything
but you continued beating him?
He speaks no truth. He gave me a light brown sporty hat and M410.00
Accused will say that prior to the shooting he never knew that
Qenehelo had a gun?
Tobias in his statement makes no mention of finding you at the scene?
Tobias told me that his property had been stolen by Basotho boys.
In his police statement Tobias says that he was stopped by a man
pointing them with a gun...Sabastian slowed the car down
and the man
shot from the right side and shot Horsten who then fell on to the
wheel and the car then capsized...the man pointed
him with a gun and
demanded money and that he gave him M400.00 and his bank cards and
one man said "Ho lekane" "that
The accused therefore says he is not responsible for the killing, the
robbery and being in possession of the firearm.
This court will decide.
called was P.W.5 No.9259 Trooper Mokhachane who informed the court
that on the 17th March 2004, he was on duty at the
Post at about 4 pm when a white man (Tobias Aldenhoff) in the company
of another white man Steven of Malealea arrived
at the station.
Steven reported about the Malealea shooting incident. Almost
simultaneously one Trooper Morai arrived in his Madza
him to join him to proceed to Malealea.
Mantseli Y-junction they found a green citi-golf car being driven by
one Moeketse who works at the Malealea lodge. He boarded
and all drove to Thabang's house at Moeaneng.
After waiting there for about an hour, they then converged towards a
car driven by P.W.4 from which the accused and Qenehelo
got out. One
Thabang Mphomeli suddenly exclaimed "Hei...Ebile ba apere
tsa ka? ...Ebe ba li nkile kael [Translated: "Hey...they even
have worn my shirts ...How come?]
says Trooper Morai then conducted a body search and M410.00 was
produced by Accused from his shoe. This happened outside
The people were angrily milling around and wanted to assault the two
Inside the house, Qenehelo proceeded to uplift the blankets on the
bed and then under the mattress, looking for the gun. He
Qenehelo took out skipper, a jacket and a sporty hat from under the
pillow. The accused then came forward and uplifted a gun
from under a
pillow. It was a 7.65 pistol. Accused gave the gun to Trooper Morai.
The firearm had two rounds of ammunition.
says that Qenehelo then suddenly bolted out running towards the road
and the villagers followed in hot pursuit. Qenehelo
was later brought
back now with head injuries and was covered with blood.
Having been transported to Matelile Police Post, the accused and
Qenehelo were transported along with the dead body of Sabastian
Horsten to Mafeteng Hospital where the latter was later certified
dead. He says this was on the evening of the 17 March 2004.
his cross examination, Mr Phoofolo established that there were in
fact two pillows on the bed in Thabang's house and that
the accused, had taken out the gun from under one pillow on which a
baby was then sleeping.
Trooper Mokhachane insisted that the R410.00 was taken out by the
accused before they went into Thabang's house and not in
the house as
stated by Trooper Morai and that when the accused was asked as to
whom the gun belonged, he replied it belonged to
Qenehelo and that it was Qenehelo who had shot.
Phoofolo went on to ask -
The accused will deny taking out the money but will state that it was
Qenehelo who took out the money at the car?
Not so. ...The accused took out the money after the gun had been
taken out by Qenehelo.
Accused's taking out the money never happened? Answer: It did.
Regarding the pointing out at the donga, questions proceeded thus:-
Accused says you forced him to pick out the wallet at the donga?
He himself picked it up...!
He says he told you that he had forgotten the place and the items
i.e. wallet and ID cards had been in possession of Qenehelo
deposited them at the donga?
Accused's defence is that he never killed the deceased? Answer: I
He never took anything from deceased or Tobias. And the gun belonged
to Qenehelo and not himself?
P.W.6 Thabang Mphomeli informed the court that on the 17th March 2004
towards evening, the accused and another man had arrived
at his house
in great haste reporting that they were being chased by boys from
Malealea with whom they had quarrelled at the shop.
They looked very
frightened, he said. The accused was wearing whitish boots. After
this the accused and his colleague went to snooker
After a while, a policeman had arrived looking for the accused who
and his companion were no longer at the snooker shop.
went on to tell the court that later that evening he found the
accused and his colleague now in police custody and that
was now wearing a white shirt which he recognized as his own and when
he asked the accused why he was wearing his shirt,
replied "Motsoalle o nkentse kahare..." (trans. "My
friend has put me in trouble") and he understood
that he was
referring to Qenehelo.
went on to tell the court that the accused had explained to him that
the gun was Qenehelo's and not his.
the house, Qenehelo pointed and took out a gun from under a bed; and
that the accused then bent down and took out some R300.00
After this, he says that the hands accused and of his colleague were
tied with wire; Qenehelo had been severely assaulted whilst
house. He says the accused then took out another Ml00 and gave it to
P.W.5 - after which he asked the accused to put off
his white shirt.
Mr Phoofolo's questions, he admitted that Qenehelo was being
assaulted by police in his house and explained that the police
even tried to persuade them to admit that they the villagers had
assaulted Qenehelo Lillane as he tried to run away.
Accused denies he took out money from his socks?
actually saw accused take out the money from his right shoe. He did
not take off the shoe. He merely pulled up the trousers
and took the
money from within his socks.
Accused says that from the moment the white man was shot, Qenehelo
held him hostage and had ordered him to concoct the
story that they
were being chased by Malealea boys.
Accused even later said "motsoalle o nkentse ka hare!"?
Again under threats of Qenehelo, accused was ordered to change the
shirt but at no time did he take out the money?
saw him take it out.
P.W.7, 'Maphakiso Mphomeli - wife of Thabang P.W.6 - also confirmed
what her husband had said, namely that on the evening on
March 2004, the accused and another man had arrived urgently
reporting that they were being chased by boys from Malealea;
appeared very, very frightened.
says that at one stage the accused and his colleague left her home
when she was escorting her visiting sister half-way
and P.W.6 Thabang
had gone to tend to his donkey that was grazing nearby.
says that after about an hour, accused and his colleague, now being
escorted by police arrived at her home and that she
later saw the
accused produce money from his shoes; the policemen were explaining
that the accused and his colleague had killed
a white man.
After all these, she says that the police then cut the fence wire and
harnessed both men with it.
Under cross examination by Mr Phoofolo, she admitted that police
later visited the village several times after the 17th March
trying persuade her and other villagers to admit that Qenehelo had
been grievously assaulted by the villagers as he was attempting
In your statement you are alleged to have said that Qenehelo ran down
and was chased and assaulted by the villagers?
deny this ....my villagers never assaulted Qenehelo. At my house I
even heard the beatings and I even heard people say
will kill this person".
P.W.8 Trooper Ntlhanngoe was then called by the crown and he informed
the court that on the 17th March 2004 having received
report, he drove to the scene of the shooting where he found a red
car CA 562-449 in a field just off the road culvert.
He found a white
man (Tobias Aldenhoff) standing by and another white man lying
prostate in the field and appeared dead. The car
was damaged on the
roof and on windscreen. It appeared as if it had capsized and rolled
off the road.
says that later drew a map - Ex "B" - after Tobias
Aldenhoff had pointed out certain spots and paces had been
P.W.9 one Retselisitsoe Ntai aged about 17 was then called to give
evidence. He informed the court that on the 17th March 2004,
one Molefi had gone to cut fodder for his animals at Ha Koepe. He
says he had seen the accused and another man sitting on
embankment along the road.
After a short while, he saw a red car being driven by a white man and
they saw accused and his colleague "blockade"
it and soon
heard a gun shot and they saw the red car career off the road and
capsize into a nearby field.
went on to say that he saw the accused and his colleague rush to the
car and extend their hands as if demanding something.
some 200 to 300 metres away. After this the two men started to run
away towards Ha Koepe.
says that they then saw a white man emerge from the car and hurriedly
beckon them with his hands to come and when they arrived,
man shouted pleading "Malealea....Malealea Lodge ...!"
pointing towards the Lodge. They then ran to the Lodge
reported to one Steve who then immediately drove with them to scene
and then Steve drove alone to the Matelile Police
says later they saw a white man sitting prostate in the front seat of
admitted under cross examination that the police had taken down his
statement on the 17/3/04.
In your statement you never said two men blockaded the vehicle?
hear ... these things happened far back and I may have forgotten.
Even after a month, you still did not tell the police that they
blockaded the vehicle. You say this for the first time?
however deny that I have been influenced to say that they
blockaded,... this happened long time ago.
Accused denies stopping and shooting the vehicle or ever demanding
He denies what he did ...I saw it.... I was at the hillock. Question:
The other man not here shot ...they ran side by side away from the
P.W.10 one Tseliso Ntai aged 19 was then called by the prosecution to
give evidence. He told the court that they had just unspanned
animals when they heard a loud sound and when they approached they
saw two men running and one of them was the accused Keketso
they approached the vehicle having been beckoned by a white man, they
saw yet another white man, who appeared dead in
the red car with a
wound on the neck, and the car then stood on its wheels in a field
off the road.
other white man pleaded with them to run to Malealea Lodge to make a
Under cross examination he admitted that he was only told by the
police later what the names of the two men were and that he
did not witness the actual shooting at the scene.
Makoko then read out the finding of a Ballistic Report- Ex"D"
-authored by Inspector Pali of the Lesotho Mounted
Headquarters in Maseru. It confirmed that the spent bullet was fired
by the gun handed into court as Ex 1.
the 22/9/05 the crown then formally informed the court that Mr Tobias
Aldenhoff who was then living in Dusseldorff in the
of Germany had vowed never to set his foot in Africa again, let alone
Lesotho, and that he was however willing
to give evidence by
telephone. This was immediately queried by Mr Phoofolo,
understandably so indeed.]
Court then formally postponed the case to 25 October 2005 and
ultimately on the 27th October 2005 having heard argument
sides, the court decided that the evidence of Tobias Aldenhoff was
essential to the just decision of this case (section
202 of the
Criminal Procedure and Evidence Act 1981). It reads:
(1) The court may at any stage of the criminal trial subpoena or
cause to be subpoenaed any person as a witness or examine
in attendance though not subpoenaed as a witness, or recall and
re-examine any person already examined.
court shall subpoena and examine or recall and reexamine any
person if his evidence appears to it essential to the
of the case. "
court then considered all other options aimed at facilitating the
obtaining of the evidence of Mr Tobias Aldenhoff. For
section 211 of the Criminal Procedure and Evidence Act, this court
could have taken his evidence on commission
in the Federal Repubic of
Germany but the court ultimately decided that the only feasible
option was by video conferencing (see
the 6th December 2005 the Honourable Chief Justice having duly
appointed the National Convention Centre in terms of section
the High Court Act 1978 the court formally convened at 10 am at the
said National Convention Centre to hear over a video
satellite the evidence of Mr Tobias Aldenhoff who was then in
Dusseldorff in the Federal Republic of Germany. The exquisite
arrangements for this evidence to be heard through satallite video
link were expertly arranged by Ms Mosala of the Ministry of
Affairs and Mr Sehlooho and other officers and technicians of the
Ministry of Telecommunications. We thank them heartily
professionalism in putting together all the electronic gadgetry, thus
connecting our National Convention Centre in Maseru,
satellite with Dusseldorff in the Federal Republic of Germany.] Of
course, Mr Phoofolo has already made some reservations
method of procurement of evidence.
Having been duly sworn over the video link, Mr Tobias Aldenhoff, from
Dusseldorff then solemnly informed the court through
official interpreter that he was willing to give evidence about what
occurred on the 17th March 2004 along Malealea road
but then told the
that he was certainly not prepared to come to Lesotho to give
evidence under any circumstances. He was thus not a compellable
willing witness whose evidence was material and essential to the just
decision of the case.
must be made very clear that the court conscientiously exercised a
judicial discretion in this matter as it was entitled
to do so under
section 202 of the Criminal Procedure and Evidence Act of 1981.
must always balance the paramount interests of justice against any
possible prejudice to the accused in deciding whether
to call mero
motu a witness not subpoenaed by the crown in a criminal case. The
phrase "essential to the just decision of
the case" was
discussed in the Natal case of R v Singh 1943 NPD 232 where Selke J.
held that the question or calling a witness
not called by the crown
should be governed by the consideration that the primary function of
the court is to come to a just decision
of the case and if in doing
so this necessitated a departure from the usual order in which
evidence is always presented in a criminal
trial, then so long as the
departure did not prejudice the accused in the conduct or
presentation of his case ... "nor can
I discern anything in
section 210, nor in its context to indicate that different principles
should govern the operation of the
section where the evidence sought
to be admitted favours the crown, from those which should govern its
operation where the evidence
favours the defence. It seems to me that
the dominant consideration in either case is that justice should be
done between the crown
and the accused". See generally the full
note in Swift - The South African Law of Criminal Procedure - general
Hepworth - 1928 A.D. 267 at 277 per Curlewis J.A.; R v Majosi - 1956
(1) SA 167; R v Kubeka 195 (3) SA 691 at 694 per Ramsbottom
Tobias Aldenhoff then told the court over the video link that he was
a German national aged 30 years old and was unmarried
- and that in
March 2004 he had visited Lesotho with one Sabastian Horsten and had
arrived on the 17th March 2004. Having entered
Lesotho through the
Lesotho Maseru Bridge, they had travelled southwards towards Malealea
Lodge the district of Mafeteng in a hired
red Toyota corolla.
informed the court that they drove southwards till they turned
towards the Malealea Lodge in the Mafeteng district. Sabastian
Horsten was at the wheel. He went on to tell the court that having
taken some scenery photographs en route, that they were suddenly
confronted by two men one of whom jumped into the road blockading the
road suddenly pointing a pistol at their vehicle.
Horsten- at my urgent behest - then drove more slowly and drove past
the person with the pistol on the left hand
side. After we had
passed, the man with pistol I then heard a shot and I ducked and bent
down immediately and shouted to Sabastian
Horsten that he should
drive quickly away from this place but then I immediately saw that
his head was hanging and drooping over
the front safety belt and he
was no longer able to answer or to speak. The car continued to go,
obviously the gear was still in
is not in dispute that the red corolla went out of control, then
careered off the road and rolled over several times before
a standstill on its wheels on a field nearby. One of its tyres had
says all his attempts to get response from Sabastian Horsten were in
vain. He continues:-
short time later two men came down from the road ... and the person
who had shot then pointed the pistol at me over Sabastian
shouted something which I understood as "money" ... so I
handed over to him my purse which contained bank
cards and some money
and the man shouted something which I understood as "cell-phone".
I looked around the car but due
to the accident, I had dislodged my
glasses and because of pieces of broken glass and blood I could not
find the cell phone so
I could not give it to him ...One of the men
opened the back door and saw the rucksack of Sabastian Horsten and
having peered into
the car, to him he looked at the contents of the
ruck sack and the contents appeared to be of no value ...they left
the scene of
the crime. "
Questions by the Court:
"Who was this other man? You described two men; and that one
other man was holding a gun and had pointed it at you
...was it the
same man who was holding the gun or the other man who ransacked the
am unable to say this from my recollection. I don't remember anymore
and it could have been the man who was holding the
gun but I am not
sure...I am not sure....
How did you feel during this experience?
... What has to be added here is that my eye sight is very bad and on
top of that, I had dislodged my glasses as a result
of the accident.
Tobias Aldenhoff told the court that he succeeded to wriggle through
the car window and managed to beckon at some children
who were then
standing nearby at the scene horrified and when they ran towards him,
he loudly shouted "...Malealea ...Malealea
Lodge..." And he
says that these little kids ran to seek help. Upon turning to
Sabastian Horsten, he found that Sabastian's
face was now very pallid
and completely grey!
After some interval, a white man from Malealea (probably Steve)
arrived and with the help of a policeman, they managed to drag
Sabastian Horsten out of the car. Sabastian was then bleeding
profusely already on the throes of death.
says that having been transported to the Malealea Lodge he spent the
night at the Lodge and left Lesotho on the following
day. The police
at Matelile police post handed to him his purse containing bank and
identity cards but minus the money; he was
told the money had been
recovered but would later be used as an exhibit in the criminal
Mr Phoofolo's probing cross examination over the video link, Tobias
Aldenhoff admitted that he later made a statement to
the police and
that he had even signed it. He also recognized his own signature
video camera and admitted candidly that when the man who was
brandishing a gun stopped them, the other man had stood by
nothing. He told the court that he was just focussing on the
should be pointed out that Tobias Aldenhoff gave his evidence over
the video link quite candidly and lucidly. He clearly
that his eye-sight was bad and that having dislodged his glasses in
this encounter, he could not clearly distinguish
who of the two men
did what. Anyway, even though the accused was seated then in court at
the Convention Centre and clearly visible
to Tobias, Tobias was not
asked -and correctly so - whether he could identify or recognize the
accused as one of their attackers.
Indeed Tobias was very candid
enough to state that while the gun-toting man was shouting and
demanding money and cellphones, the
other man just stood by doing
response to the questions by Mr Lenono, for the Crown, Tobias
Aldenhoff insisted that it was the gun-toting man who was
demanding money after the corolla car had overturned and car had
stood on its wheels in the field.
After the video evidence of Tobias Aldenhoff, and the crown having
previously closed its case (as already alluded to) Mr Phoofolo
made an application for the discharge of the accused in terms of
175 (3) of the Criminal Procedure and Evidence Act of 1981. This
application was, as we all know, dismissed by this court
stated in the judgment delivered on the 15th December 2005.
Section 12 (7) of the Constitution of Lesotho reads:-
person who is tried for a criminal offence shall be compelled to give
evidence at the trial"
provision is absolute in its terms. The accused is free to give
evidence at his trial or he can elect to remain silent.
Section 175 of the Criminal Procedure and Evidence Act No.9 of 1981
75 (4) At the close of the evidence for the prosecution the judicial
officer shall ask the accused, or each of the accused
if more than
one, or his legal representative, if any, whether he intends to
adduce evidence in his defence and if he answers in
he or his legal representative —
address the court for the purpose of opening the evidence intended to
be adduced for his defence without commenting thereon;
then examine his witnesses and put in and read any documentary
evidence which is admissible."
the 7th February 2006, the accused elected, as he was entitled to so
do, to give evidence on oath in his defence. He informed
he is 20
years old having been born on 16 June 1985 and that in March 2004 he
was attending school at the Maseru Academy English
Medium High School
below Khotso Hardware in Maseru.
informed the court that on the 17th March 2004 he had journeyed to
Malealea in the company of Qenehelo Lillane. The purpose
journey was to go to his aunt's place at Tsea'nku in Malealea and
that they travelled in a Teboho Bus Service going to Ribaneng
Sekhaupane village they alighted and decided to proceed to their
destination Tsea'nku on foot. Having passed the Paradise
walked down the gravel road winding down towards the Malealea Lodge
which is situated in the scenic valley below.
a culvert, he says Qenehelo went into a donga thereby to relieve
himself. Time was about 2.45 pm. He says that as he sat
from the culvert, three school girls came up along the road (probably
from Malealea Secondary School) and that he then
walked a short
distance with one of these girls - Khahliso chating to her.
he returned to where Qenehelo was standing, a red corolla car then
came down the Malealea road and as it approached Qenehelo
said "Hey man... I want to take this vehicle ... you know our
vehicle at home has problems"! To which he asked;
vehicle? ". Qenehelo; "This very one. "
says suddenly Qenehelo pulled out a gun from his waist, jumped into
the road pointing the gun at the oncoming car. Qenehelo
the door for these people!" The vehicle stopped momentarily and
started to move fastly forward. Qenehelo
jumped aside and shot at the
vehicle as it passed speeding towards the culvert. "I did not
know that he had a gun." so
says the accused.
car then careered off the gravel road and capsised and came to a
standstill on its wheels. "I felt like running away
... but I turned back to look at the vehicle now standing in the
field below ...I was very frightened and confused ...
I had not
expected this to happen ... we had not planned to do this." so
the accused says.
went on to say in the whole operation he did nothing or render
assistance to Qenehelo or take anything from the occupants
vehicle. It was Qenehelo, he said, who rushed after the car, peered
inside and opened the rear door. He says he witnessed
from a distance of about 29 paces. From the car Qenehelo came to
where accused stood and without further ado just
said "Let's go
" and he says he just followed Qenehelo as he started running
into a nearby donga and running to Ha Koepe.
Why run in the same direction as Qenehelo?
was afraid he would shoot me as well if I took another direction.
...He just said "let go" I was afraid of his
Why run away when you had not shot anyone?
was afraid that he would shoot me because there were only two of us I
was frightened and afraid of him -because he had
shot and that the
villagers would arrest me along because I was in his company. "
says they ran, until reaching Sekhaupane and boarded a taxi towards a
snooker shop and together with Qenehelo walked to
the house of
Thabang Mphomeli, his aunts' husband. He says Qenehelo was still
holding the gun covering it with his hat. He says
alighting from the taxi Qenehelo had said threateningly "If you
implicate me ... I will shoot you ...if
we are asked you should say
that we are being chased by boys from Malealea. "
conceded that this was an outright lie; but he nonetheless told the
concoction to 'Maphakiso Mphomeli. He says that inwardly
intended to go to Thabang's house in order to seek their help thus
extricate him from the mess.
described Thabang's house as a flat roofed house with a curtain
dividing the middle. One portion being the living room
and the other
says he proceeded to the sleeping room where he saw a child sleeping
on a bed and a whitish shirt was spread nearby; he
says Qenehelo then
said "take this shirt and wear it in order to disguise as people
of this area know you well" He says
he did as requested and left
his topper inside Maphakiso's house.
says having worn the shirt they left Thabang's house and went to the
snooker shop nearby where Qenehelo bought a litre
of coke with which
they quenched their thirst.
says having left Thabang's house he was not sure if Qenehelo still
had the gun on his person; and did not think it wise
to appeal to
Thabang to extricate him from the mess he was in.
From the snooker shop, he says Qenehelo led the way to a donga
amongst fields about two kilometers away in the veld, and that
the donga, he saw Qenehelo conceal a wallet under a stone. He says
Qenehelo never showed him the wallet, its contents or
anything. He says they continued walking down the donga till they
emerged below the Sekhaupane Primary School. It was
the bus stop Qenehelo stopped a 4+1 taxi in which they found two
gentlemen. "It was Morai and Matjilo ". On being
where they were destined to they said "to Motsekuoa";
explaining further that they had just delivered a letter
Having dropped a lady passenger, Morai then said "we are looking
for some boys-one with a blue/white top and the other
says that he did not confess then as to what had happened because he
still thought that perhaps Qenehelo still had a gun.
After they had alighted, he says they were immediately detained upon
suspicion that they had killed white man and Mokhachane
and found M20.00 in his hip pocket and Qenehelo produced a wad of
notes from his right shoe.
therefore refuted what Thabang and 'Maphakiso said about his taking
out money from his socks. On being later cross examined
he failed to
attribute any cogent reason that caused 'Maphakiso to wail bitterly
when she saw him take out the money.
continues to say that they all proceeded to Thabang's house where a
gun was to be searched for and that Morai even made
as if he was
hitting him with a metre long baseball bat but actually hit Qenehelo
quite hard on the shoulders. Qenehelo fell down
says Qenehelo rose and went to the bedding and took out a hat which
contained a gun.
explicitly denies that Qenehelo at one stage bolted and was chased by
the villagers and the police. He says in fact Qenehelo
beaten by police whilst in Thabang's house.
admits that on the 18 March 2004 - now without Qenehelo who then was
probably indisposed or already dead - he led the police
to a donga in
the veld below Ha Sekhaupane where he identified and pointed out a
stone under which a wallet concealed by Qenehelo
says that Qenehelo spent the night of the 17th March 2004 at the
police station and that he and another detainee carried
Qenehelo to a
police van which was to ferry him to the Mafeteng hospital early on
the morning of the 18th March. He denied that
Qenehelo had been taken
to the Mafeteng Hospital on the 17th March 2004; he pointed out that
the entry in the Mortuary Register
was a sham and was "cooked"
so as to show as if Qenehelo had died on the 17th March 2004.
says he was forced by the police to go to the donga and would not
have led them there because, as he puts it, he "had
the exact spot where Qenehelo had hidden the wallet under a stone.
Phoofolo then specifically asked the accused about the money
allegedly produced by him according to the police witnesses
'Maphakiso; and the accused persisted that only M20.00 was found from
his hip pocket.
In the house you are alleged to have taken money out of your boots?
That is not true ...It was Qenehelo who took out the money M500) from
his right shoe and gave it to Morai.
therefore refutes what Trooper Mokhachane testifies to that M410 was
produced by him, the accused, on being searched. He
is also fabricating against him.
never took any money from Tobias at the scene nor received any from
Qenehelo ... Qenehelo gave me nothing".
continued to say that before he led the police to the donga Morai had
clapped him "ka mpama". He says that he
could not have
taken the police to the spot otherwise because he had forgotten.
Cross examination by the Mr Lenono
cross examined by Mr Lenono for the crown he admitted that on the
17th March 2004 he had been in the company of Qenehelo
left Mantsebos in the Maseru district on that day. His errand was to
go to Tsea 'nku Malealea to fetch some school books
from one Tlali
Lebitsa - who also owed him some money.
explained that at the scene of the shooting, Qenehelo had said his
family car - a Nissan 1400 — had problems and
wanted to "take
the red car " for parts.
Question: You behaved most extraordinarily ... here's a man with
acts unexpectedly and you stand by just watching?
That is what happened ....because I was not associating myself
You did not call for assistance or intervention?
There were not options. He was my friend. I was very surprised. He
just followed the car...I saw him shoot at the car and
careered out of the road.
Your version is not possibly reasonably true but a distortion of
am speaking to truth.
You acted under compulsion from Qenehelo for everything you did that
Yes, that is so.
refutes what Tobias Aldenhoff stated over video link that the two men
approached the car; he says he watched everything
happen from a
distance of 29 paces and that he even took some two steps backwards
after the shooting.
also denies that he approached the car and as PW9 Ntai says extended
his hands into the car but he admits running away
from the scene when
Qenehelo started running and saying "Lets go ... I followed
because I thought he would turn on me and
explained that up to Thabang's house, Qenehelo was constantly at his
side and the fear continued because as they approached
house, Qenehelo actually threatened to shoot him if he revealed the
truth of what had happened.
Did Thabang's presence not reassure you when you arrived at his
No. They (Thabang and his wife) soon went out of the house. But no
one prevented me them from telling them ...Qenehelo was
too near! I thought he might shoot me in their presence.
explained that he changed into a shirt in Thabang's house because his
sweater because, as he put it, his sweater had got
soiled as they
climbed out of a donga in their desperate flight and also to disguise
further contends that even after they had departed from Thabang's
house, he still feared that perhaps Qenehelo had not
left the gun at
Thabang's house but had concealed it on his waist under the shirt.
Had he known that the gun lay behind concealed
under a pillow in
Thabang's house he says he could have immediately extricated himself.
It however should be here noted that it
required neither chivalry or
heroism to have thrown himself into the hands of Thabang and his wife
away from the bullish Qenehelo.
In fact that is the main reason he
had elected to go to Thabang's house.
Concerning the M20.00 he says was found on his person by Mokhachane
he conceded that he did not tell this to his counsel;
as a result
this fact was not put to Mokhachane, Maphakiso or Thabang.
conceded once again that 'Maphakiso had no good reason to falsely
implicate him and tell the court that he, the accused
produced some M410.00 from his socks!
Phoofolo did not re-examine and closed his case.
court then called one Thabo Makoko the keeper of the Mafeteng
Hospital morgue. He informed the court that his official
involve reception of corpses into the mortuary. Corpses are brought
either by police or by general public or by hospital
keeps an official registrar to make entries as to the dates, times,
names of the deceased, and persons who bring them.
He told the court
that when the police bring corpses they always sign "Matelile
Mortuary register exhibited before the court showed that he made some
entries on the 17 and on the 18 March. He went on
to say that he
knocked off from work at 4.30 pm on the 17th and started work on the
18th March 2004 at 8 am.
Mortuary register indicates that corpses of Qenehelo Lillane and of
Horsten Sabastian were received at the mortuary on
the 17 March 2004
at 21.30pm and signed for by "Matelile Police". He says he
also had seen a body of a white man in the
mortuary on the morning of
the 18th and also that the body of Qenehelo Lillane had injuries.
pointed out that one Ntate Letsosa, now deceased, usually work on
night shift at the mortuary and that according to the
Sabastian Horsten was later collected by the German Embassy officials
on the 20th March 2004 after a post mortem examination
Under cross examination by Mr Phoofolo, he admitted that between 6 am
and 8 am on the 18th March 2004 Letsosa and himself
were not at the
February, 2006 - Final Addresses.
Lenono, for the crown, addressed the court in support of the three
counts. In the main he submitted that the accused was
willing and cooperative partner in crime. He had been in the company
of Qenehelo Lillane since they left Mantsebo
on the morning of the
17th March 2005.
categorized his witnesses into three i.e. "scene"
witnesses; flight witnesses and police witnesses.
relied upon the evidence of PW9 Ntai to submit that the accused was
not just an innocent observer who stood some 29 paces
about what Qenehelo was doing but did in fact approach the fallen
vehicle immediately after the shooting. He submits
approaching is in fact confirmed by Tobias Aldenhoff who stated in
his evidence that the two men came down from the road
fallen car and that the gun-toting man demanded money and cellphone.
earnestly urged the court to accept the evidence of these boys to the
effect that after the car had careered off the road,
the accused and
Qenehelo had approached the car and that the version that the accused
had stood some 29 paces be rejected as false.
also argued that even though the accused did not fire the fatal shot,
he had been proved to have made common purpose with
being had to the subsequent conduct of the accused i.e. running
closely after or side by side with Qenehelo, leading
him to Thabang's
house where a gun was concealed by Qenehelo after a concocted story
of being chased by Malealea boys had been
proferred, together going
to a lonely donga some two kilometers out of the Sekhaupane village
and there Qenehelo concealing a wallet
containing Tobias's cards;
walking briskly there after till they were arrested.
Lenono further argues that despite certain inaccuracies or
discrepancies as to when, and how the money was produced, it
clear that the money - a wad of notes - had been produced by the
accused - and at least not by Qenehelo. It was not the
that the money was planted by police.
argues that the production of the money even caused Maphakiso to wail
and cry bitterly about what she witnessed. No motive
implicate was suggested either to Maphakiso or to Thabang, though the
accused belatedly did suggest such motive when
he was being cross
examined by the crown.
More importantly, it was only as he was giving evidence in chief that
the accused pointedly told the court that only M20.00
was found on
his back pocket when he was being searched by Mokhachane. Mokhachane
was however not confronted with this version;
indeed so, because even
Mr Phoofolo had no instructions relating to this aspect. Mr Lenono
described it as a fabrication recently
made by the accused in
manufacturing what he called a web of lies and was a figment of his
asked the court to accept the evidence of Maphakiso and Thabang as
truthful and honest. They had no cause to implicate
relative in these dramatic events.
lastly urged the court to reject as false the version given by the
accused that he was but an innocent companion whose
companion suddenly went beserk and started shooting at a passing
Lenono further submits that despite his plea of compulsion at the
instance of Qenehelo, the accused had ample opportunity
himself from Qenehelo who, according to the accused, only began
actual threats as they neared Thabang's house. He
submits that he
could have easily given himself in to Thabang - an older man - if at
all he was being coerced.
the law, Mr Lenono, relying on Snyman - Criminal Law (1996),
submitted that where two or more persons are charged with
the crime under common purpose, it is not necessary to show that each
accused causally contributed to the act. He cited
the often quoted
cases of S v Sefatsa - 1988 (1) SA 868 and of S v Mgedezi - 1989 (1)
submits that irrespective of who fired the fatal shot, the accused is
liable under common purpose because he actively
with the perpetrator.
further submitted that the acts and behaviour of the accused were
throughout queer and bizarre and unworthy of credence
and seem to be
a ruse well calculated and fabricated after Qenehelo's untimely
Lenono concluded by saying that the accused must be convicted of all
three counts as a socius criminis and not as an accessory
fact, or receiver of stolen goods.
Phoofolo, on behalf of the accused, in the main submitted that the
evidence adduced by the crown failed to demonstrate
beyond doubt that
it was the accused who shot the deceased but instead, the crown
evidence clearly pointed that it was Qenehelo
Lillane who shot at the
car on the 17th March 2006.
submits further that in this trial, no prior agreement or plan was
proven and that liability of the accused, if any, that
may attach may
only arise from the fact of his presence at the scene, awareness on
Qenehelo had a gun he might use with fatal consequences, intention to
make common purpose and "performing some act
to manifest his
intention to actively associate" himself with the perpetrator. R
v Mgedezi (supra)
Phoofolo went on to clarify that coercion or compulsion that is
pleaded by the accused relates "only to the events
shooting perhaps as being related to the issue of being accessory
after the fact ... his compulsion is not raised in
relation to the
death of Sebastian Horsten"
submits that in the absence of proof that prior agreement existed
between accused and Qenehelo to rob or waylay the motorists,
accused can only be liable if it is shown that he knew that Qenehelo
had a gun and foresaw that Qenenelo would use that gun.
submits that the evidence in court of PW9 that he saw two men
"blockade" the car is not to be relied on because
not mention this in his statement to the police and that Tobias
Aldenhoff stated that a the man pointed a gun at the car
other man just stood by.
submits therefore that the crown had totally failed to prove any
active association before and during the shooting, and
that what the
crown had succeeded only to do was perhaps to show that the accused
associated himself with Qenehelo after as an
accessory to which the
accused pleads compulsion.
the meantime, the court had brought to the notice of both counsel the
judgment of the Full Bench of the Constitutional
Court of South
Africa in S v Thebus 2003 SA 505 (6) SA 505 - per Moseneke J. His
learned dictum postulates thus:
doctrine of common purpose is a set of rules of the common law that
regulates the attribution of criminal liability to
a person who
undertakes jointly with another person or persons the commission of a
crime''' Para  - Burchell and Milton - Principles
doctrine of common purpose dispenses with the causation requirement.
Provided the accused actively associated with
the conduct of the
perpetrators in the group that caused the death and had the required
intention in respect of the unlawful consequence,
the accused would
be guilty of the offence. The principal object of the doctrine of
common purpose is to criminalize collective
criminal conduct and thus
to satisfy the social need to control crime committed in the course
of joint enterprises. [R v English
-  4 All E.R. 545]. The
phenomenon of serious crimes committed by collective individuals,
acting in concert, remains a significant
societal scourge. In
consequence crimes such as murder, robbery ... it is often difficult
to prove that the act of each person
contributed causally to the
criminal result. Such a causal prerequisite for liability would
render nugatory and ineffectual the
object of the criminal norm of
common purpose and make prosecution of collaborative criminal
enterprises intractable and ineffectual
" - p 527. [Para 34]
S v Nooroodien - 1998 (2) SACR 510.
importantly, the learned Judge stated that whether or not active
association has been appropriately established will depend
factual context of each case - p.531.
Phoofolo argues that "active association is a converse to
passive association" and he quotes R v Ndebu 1986 (2)
SA 133 per
McNally JA at 136; and that whereas the accused in the present case
was admittedly present at the scene, without prior
Qenehelo, he had just beheld the brutal events taking place before
his eyes; and that the accused could neither
stop Qenehelo before
events happened fast and he was also frightened and confused.
"Accused never expected these events ...
there being no prior
agreement ...Accused did not know that Qenehelo had a gun. "
submits in the circumstances that the accused only became aware of
the gun when Qehenelo suddenly declared his intention
the car" and forthwith produced the gun. His was only "mere
presence" and nothing else.
further argued that the criminal liability, if any, of the accused's
version must be treated individually and weighed against
evidence; and that if there is a reasonable possibility of its being
true, regardless how slightly so, the accused must
Phoofolo submits that in standing petrified as events occurred before
his eyes, the accused might indeed have not acted
certainly he had not acted illegally. He was under no obligation to
stop Qenehelo from committing these crimes (Nkau
Majara v Regina -
1954 HCTLR 38 (HL) or to come to the aid of the victim.
Phoofolo further submits that even having witnessed the shooting by
his colleague, his flight from the scene does not suffice
having done something". Accused did not ask Qenehelo to run away
nor he did not advise Qenehelo to hide the
murder weapon in Thabang's
Phoofolo then sought to distinguish the case present case from the R
v Monaleli - C of A (CRI) No.6 of 2004 where defence
has been raised by the accused. He pointed out that in the case of
Monaleli, a clear prior plan to rob a shop at
Maputsoe had been
established and that when the fatal shots were fired at the shop
assistant, the accused and his accomplice had
stood together and were
then demanding money. His plea was dismissed by the trial court and
by the Court of Appeal of Lesotho.
submits that in the present case there being no prior agreement there
is no subjective foresight (dolus eventualis) and
that the requisite
mens rea is lacking and a verdict of murder or even culpable homicide
is not possible upon the evidence adduced.
citing the case of R v Ndebu - 1986 (2) SA 133, Mr Phoofolo submits
that "for there to be dissociation there must
be a prior active
association and that since there is no clear evidence that the
accused associated himself before or during the
shooting, we cannot
talk about dissociation."
Instead, he continues, much of what the accused is supposed to have
done, was done only after the shooting. Active association,
argues, means doing something in furtherance of the execution of the
unlawful objective. Standing by and doing nothing is not
something, he expostulates!
further argues that it is wrong for the crown to contend that
"accused did not do this and that ... therefore he thereby
associated himself" The hard-core evidence - as he puts it - is
that the accused did nothing that manifested a common purpose
act of killing the deceased Sabastian Horsten.
regards the second count of robbery, Mr Phoofolo, upon the same
reasoning, argues that the crown evidence, especially of
indicated clearly that it was Qenehelo who committed the robbery
-though he conceded that in law the accused's liability
may rest upon
common purpose and degree of his association or participation.
argued that the evidence of PW7 Maphakiso that accused produced money
was not satisfactory in many respects and was confused
corroboration or confirmation before it could be relied on; and that
Thabang's testimony on this aspect was also suspect
in that he first
says accused produced M300 and then later produced M100.
Phoofolo could not however explain satisfactorily why his client at
that point in the case failed tell him timeously that
only M20.00 was
him by Mokhachane. He however stoically argued that the weaknesses of
the accused's version must be carefully pitted against
contradictions in the crown's case.
lastly argued that since Qenehelo was dead, the accused was being
falsely connected with the finding of the gun and Mr
therefore prayed for an acquittal on the third count.
conclusion, Mr Phoofolo formally placed it on record that the court
in ordering for the evidence of Mr Tobias Aldenhoff
to be taken
through a video link amounted to a fatal irregularity because it
sought not only to clarify issues but to establish
a fact material to
the crown's case (R v Jonathan - 1932 TPD 44).
in all criminal cases, the onus is on the crown to prove its case
beyond a reasonable doubt i.e. that the accused committed
the act or
acts charged as the actual perpetrator or as socius criminns and that
all requisite elements of criminal liability have
been proven, [cf
Para 87 (supra)]
onus that is cast upon the prosecution is premised upon section 12 of
the Constitution of Lesotho 1993 under which "every
is charged with a criminal offence shall be presumed innocent until
he is proved or has pleaded guilty ".
Each case must, of course, depend upon its own particular facts and
circumstances i.e. facts (or evidence) adduced by the
support of the charge or charges, its credibility and reliability.
Thus, for example, where a crown witness saw an accused
stabbing the deceased and the witness is honest and reliable, it is
not difficult for the court to conclude that the
crown has discharged
the onus that rests upon it. (Section 238 of Criminal Procedure and
Evidence Act No.9 of l981)
this criminal trial, it is fair from the onset to state that the
inquiry will be a rather limited one because the accused
presence -i.e. being in the company of one Qenehelo Lillane -when the
latter shot at the car being driven by the deceased
on the 17th day of March 2004 along Malealea road in the district of
Mafeteng. The inquiry will be limited to
active association, if any,
on his part.
There is no direct evidence that prior to the shooting, the accused
and Qenehelo Lillane had formed any agreement to rob or
hijack any motor vehicle along the Malealea road on the 17 March
2004. If any agreement existed, it was not proved nor
can this court
legitimately infer such plan from the proven facts of the case.
cannot however be lost sight of the fact that the accused was not
just a bystander at the scene, but had been in the close
his friend Qenehelo Lillane from Mantsebo in the Maseru district till
they reached the lonely Malealea road in the district
of Mafeteng. He
his constant companion for the whole day of the 17th March 2004 till
the moment of their arrest in the evening.
court of law should realize that in a robbery or hijacking case, it
is not very frequent to have garnered before it, reliable
about any prior agreement to commit the robbery or hijack. It is
often from the acts and from the conduct of the participants
and after the perpetration of a crime that a common purpose can be
inferred by the court. Magmoed vs Janse van Rensburg
- 1993 (1) SA
777 at page 810 (H). [See our para 228]
my view, the concept of "active participation" as a basis
of criminal liability of a socius criminis who does
commit the crime (actus rens), must not be given too narrow an
interpretation such as to require a positive act
being done in
furtherance of the common objective otherwise a devious socius may
escape liability nor should this association be
given too wide an
interpretation because the other innocent persons can be caught in
Wisdom commends the middle approach which, in my view, should be
determined by or depend upon the circumstances of each particular
case e.g. whether the accused actively associates himself with the
commission of the offence will depend upon many a factor such
presence at the scene which is not innocent, accompanying the
perpetrator after the commission, sharing the spoils of the crime,
and failing to dissociate himself at earliest opportunity or by
rendering assistance to perpetrator to evade justice. It is the
which leads from one incident to the other that should be looked at.
instance, in the case of S v Petersen 1989 (3) SA 420 it was held
that where two persons take part in a robbery and one
of them fatally
injures the victim and the other acts in a manner which indicates
that he associates himself with what has happened,
such later conduct
can often be used as a basis of an inference that he foresaw the
possibility of the victim being killed and
acted in a reckless
disregard thereof. But whether such an inference is justified depends
on all circumstances of the particular
case. See also R v Jama - 1989
(3) SA 420 - R v Monaleli - C of A (CRI) No.6 of 2004 - CRI/T/64/01
has been stated by some South African Courts as trite principle that
where it is sought to hold one person liable for murder
another on the basis of common purpose as outlined in S v Mgedezi
-1989 (1) SA 687, the court must not adopt a global
view of the
totality of the defence evidence and impute liability but should
consider the criminal responsibility of the accused
subjectively. In the case of R v Ramonyatsi 1980-84 LAC 251 this was
confirmed and Schultz JA went even further
to define the separate or
unique liability of an accessory after the fact as being someone who
after the commission of the offence
knowingly joins or intervenes to
help the perpetrator evade or escape justice. A distinction must
indeed necessarily be drawn between
a socius criminis and an
accessory after the fact. A socius criminis as a co-perpetrator may
also aid and assist the actual perpetrator
even after the commission
of the offence to
justice; he does not thereby ipso facto become an accessory after the
fact. He remains a socius criminis throughout - S v
Dlamini - 1984
(3) SA 360 where it was held that an accomplice in a murderous
assault should not escape conviction for murder simply
fortuitously the injury which causes death has been inflicted before
his participation commenced. Where therefore
an accomplice therefore
joins in a common purpose to kill, his liability for death of the
deceased caused by the perpetrator depends
on whether, at the stage
when he commences to perform an act in furtherance of the common
purpose, the deceased is still alive
even though the act which causes
his death may have been completed. In the case of R v Mtembu 1950 (1)
SA 670 Schreiner J.A. had
this to say-
person may be liable for a crime actually perpetrated by another
without having agreed with him or given him a mandate to
crime; as a rule assistance and agreement may go together; but there
may be cases where the assister is liable for the
act of the
perpetrator without any agreement with the latter at all, even such
agreement as may have arisen on the spur of the
moment and may be
inferred from the fact of more or less simultaneous attack upon the
purposes of record, the following are the facts which this court find
on the 17th March 2004 accused and Qenehelo Lillane were in the
company of each other from Mantsebo in the
district till they reached Malealea road in the Mafeteng district a
distance of many kilometers.
the afternoon of that day the accused, still in the company of
Qenehelo Lillane were seen sitting on the kerb or embankment
Malealea road on the hillside.
two girls having walked past, a red corolla car drove towards the
accused and Qenehelo and it was being driven by one Sabastian
Horsten, Tobias Aldenhoff as passenger.
Qenehelo then suddenly ran into the road brandishing a gun and
blockading the vehicle which as it attempted to drive past was
at and bullet mortally injuring Sabastian Horsten. Sabastian died
red corolla careered off the gravel road and capsized in a nearby
field and having stood still it was immediately approached
by the two
Tobias Aldenhoff was robbed Qenehelo Lillane of money and his wallet
containing ID and bank cards.
accused and Qenehelo Lillane were then seen running away from the
scene of the shooting.
Accused and Qenehelo then later arrived at the house of Thabang
Mphomeli (PW7) in the village of Sekhaupane a few kilometers
Accused and Qenehelo then concocted a story to Thabang that they were
being chased by some boys from Malealea.
Accused then changed into a white shirt.
(k) A gun
- a murder weapon - was then by Qenehelo hidden somewhere in
Accused and Qenehelo then walked out of the village
and in a
donga some two kilometers away there hid a wallet containing ID and
bank cards belonging to Tobias Aldenhoff.
two men were later arrested and at or near the house of Thabang the
accused produced some money from his socks and Qenehelo
gun inside Thabang's house.
Qenehelo suffered some grievous injuries during or after his arrest
and these resulted in his untimely death.
is against the backdrop of these salient facts that the cogency of
the evidence of the crown, and of the defence should
be weighed and
assessed bearing in mind throughout that the paramount onus lies and
rests upon the prosecution to prove as in this
case - that the
accused actively associated himself in the execution of the crimes
have already said something about the tenuousness of the phrase
"active association" and that care should be taken
it extend it to mean "active participation" or
"cooperation" as requiring a commission of a positive
Care must also be taken to avoid blindfoldedly treating each
witness's testimony singly or in isolation from the rest of the
evidence led throughout the trial. Such piecemeal approach often
fails to take cognizance of other proven facts of the case. In
case of R. v Mtembu it was stated by Schreiner J.A. at p.679-680:
in any event it is not clear to me that the crown's obligation to
prove the appellant's guilt beyond reasonable doubt
required it is
negative beyond reasonable doubt all
evidence favourable to the appellant. I am not satisfied that a trier
of fact is obliged to isolate each piece of evidence
in a criminal
case and test it by the test of reasonable doubt ...But that does not
necessarily mean that every factor bearing
on the question of guilt
must be treated as if it were a separate issue to which the test of
reasonable doubt must be distinctly
dictum often cited from S v Singh 1975 (1) SA 227 has stood the test
of time and is worth reciting. It reads-
is quite impermissible to approach such a case thus: because the
court is satisfied as to the reliability and credibility
witnesses that therefore, the defence witnesses including the accused
must be rejected. The proper approach in a case
such as this is for
the court to apply its mind not only to the merits and demerits of
the state and defence witnesses but also
to the probabilities of the
case. It is only after so applying its mind that a court would be
justified in reaching a conclusion
as to whether the guilt of an
accused has been established beyond reasonable doubt. The best
indication that a court has applied
its mind in the proper manner in
the above-mentioned example is to be found in its reasons for
judgment including its reasons for
the acceptance and rejection of
statement was followed by the Court of Appeal of Lesotho (per
Trengove JA) in Nkoli v R - 1990-94 LAC 113.
brisk question in casu should and must be: Upon the totality of
evidence and probabilities, was the accused probably and
an innocent companion of a bullish Qenehelo who suddenly buttressed
and coerced him into cooperation on that eventful
without any coercive order from Qenehelo did he
the brutal killer in approaching the fallen car and thereafter
joining in Qenehelo in his desperate flight? Why did he
Qenehelo to the house of Thabang, and there concoct a false story of
being chased by boys from Malealea? Why did he fail
to confess all in
the presence of Thabang, a much older person? Why did he fail when
Thabang and Maphakiso were testifying to assert
that only M20.00 was
found on his back pocket? Instead, in my view, the accused's version
and explanation is replete with stories
that are vocal now because
Qenehelo is dead. Dead people speak no more.
- plea of
Whereas our common law recognizes the defence of compulsion or
coercion duress, as a matter of judicial policy the courts
necessarily must adopt a cautious approach in assessing reliability
of this plea, and thus the courts are always careful
to balance this
plea against the greater interest of the public to be protected from
criminals who can sometimes later assert that
they acted under
compulsion to commit crimes which violate the mortal interests of
innocent beings. See generally R v Damascus
- 1965 (4) SA 603; R v
Chipesa -1964; (4) SA 474 (SR); 1967 SALJ 145.
Robbery and hijacking by their evil nature necessarily involve
elements of secrecy and surprise. The police, let alone courts
can never know what really happened immediately before the
perpetration of the crime. An assertion by one person in the
that he merely stood by doing nothing or had disavowed the
criminality, or that had associated only under compulsion should
can be shown on a balance of probabilities that he was an innocent
by-stander or was present at the scene against his
will - R v Botso
Mashaile - 1971-73 LLR 148 at 163 C.
Whether an acquittal should occur on the grounds of compulsion in any
given case should necessarily depend on the particular
of each case and the whole factual complex of the case must be
carefully examined and adjudicated with greatest of
care -Rex v
Goliath 1972 (3); SA R v Petersen 1980 (1) SA 938; Snyman - Criminal
Law p. 115; Hunt - SA Criminal Law and Procedure
Vol. 1 page 288.
Indeed, in my view, there must always be evidential foundation that
the accused was caused by someone to do something against
The compulsion may range from a gentle or subtle persuasion or
exhortation to actual threats of immediate death or serious
injury. (S v Mucherechedzo - 1982 (1) SA 215 (ZS)
Perhaps a decision to rob or hijack was made by Qenehelo on a spur of
the moment as a red corolla came into view and approached
without any communication whatsoever or concurrence on the part of
the accused, but an association is proven when one
has regard to the
fact the accused, at a mere invitation "lets go" and
without any overt threat, immediately joined the
in his flight from the scene. It is from the events that occurred
before, during the hold up and at the shooting
and afterwards that a
court of law can
make an inference that the criminal conduct in this case was a
concerted or collective one.
Indeed the defence of compulsion has been considered in several cases
- R v Werner - 1947 (2) SA 828 at 837 (per Watermeyer
JA); R v Mneke
- 1961 (2) SA 243-4; S v Bradbury - 1967 (1) SA 446. In an old
(liretlo) Lesotho case of Khotso Sephakela v Regina
1954 HCTLR 60 at
62-64 (Privy Council - H.L) Lord Keith had the following to say about
murder committed under compulsion:-
remains however the question whether there was any evidence on which
it could be held that the appellant acted under
compulsion. In their
Lordship's opinion the evidence falls far short of what is necessary
in law to establish such a defence. They
consider it clear that the
appellant was present on the night of the 20th August as a
participant in what he knew was to be an
act of murder. That he
himself struck none of the fatal blows, or indeed none of the blows
at all, is nothing to the point. He
was one of a party engaged in the
common purpose of murder. There is nothing to suggest that he
dissociated himself from that purpose
by attempting to escape before
the attack on the deceased had begun and the plot had passed from
preparation to perpetration. Whether
when he did attempt to run away
he did so from fear, or from repentance, or for some other reasons,
their Lordships do not know,
because he gave no evidence in that
matter. But on any view there is nothing in the evidence relied on to
show that the appellant
was brought to the scene of the murder under
compulsion or came to the scene accidentally and was made to take
part in the attack
on the deceased under compulsion. Whether the
restraint used upon the appellant could have been relied on as
dissociating him from
the murder if exercised before the act of
murder had been entered upon is a matter upon which their Lordships
find it unnecessary
to express an opinion. In their Lordships' view
there is nothing, in the evidence on which it could be held that
appellant was in such fear of death or serious bodily injury as to
establish the defence of compulsion. Even if the appellant's
to escape proceeded from repentance it came when the murder had
reached a stage of perpetration and too late to dissociate
appellant from the consequences of the criminal design. "(My
Whereas according to the jurists of the classical Roman Dutch law,
the question of compulsion was left open - Digest 18.104.22.168;
Commentary on the Pandects - Gane's Translation - the question crisp
today should be whether the compulsion, legally or
considered, should be exculpatory or be merely mitigatory. This
necessarily involves a value judgment upon facts and circumstances
Even Professor Gordon in his Criminal Law of Scotland (p.373)
suggests that there should always be a fine balancing of interests
an innocent deceased and those of an accused who is subjected to
compulsion; consequently issues of disproportionateness of
to the harm threatened come to the fore.
the case of R v Hercules 1954 (3) SA 826 at 831H-832 832 it was held
(per Van den Heever J.A.) that upon the ground of
human life, a killing of a human being can never be justified even in
the circumstances in which the accused was
compelled by threats of
immediate death or serious injury. Kenny - Criminal Law postulates an
extreme view that compulsion does
not excuse murder and the court
will not readily accept that coercion existed unless it is a case of
absolute coercion. The plea
of compulsion is therefore, as a matter
policy, to be jealously and carefully scrutinized. An inquiry
certainly should involve a subtle comparative evaluation
interests and, as already stated, a value judgment over a conflict of
the present case whilst it can and must be assumed in the accused's
favour that he was not the one who pressed the trigger
of the lethal
weapon, his criminal liability depends and has to be considered upon
what happened at the scene and indeed afterwards.
The evidence of
P.W.9 and of Tabias Aldenhoff is there crucial.
belated version that only M20.00 was found on his back pocket
demonstrates him to be an outright liar who concealed this
from his counsel or fabricated it at the very late stage. This
negatively far outweighs any apparent discrepancies in
of Thabang and 'Maphakiso, whose evidence this court nonetheless
believes on this aspect of the production of money.
They had no
motive or reason at all to implicate their young relative.
demeanour of these witnesses is even fortified further by their
outright condemnation of the apparent attempt by police
them to say that Qenehelo had been brutally assaulted by the
villagers after Qenehelo had allegedly tried to flee following
their arrest. Furthermore, no plausible motive was shown why they
would falsely implicate their cousin on a so serious a matter!
grudge was belatedly raised by the accused only under cross
already stated, the parameters of the defence of compulsion must be
prescribed and confined within strictest and narrowest
because of the danger attendant upon allowing a plea of compulsion to
excuse criminal acts. Voet 4.2.1 states that as
a general principle
that whereas fear of death or injury induced by one person is no
excuse for injuring another, it operates in
mitigation of punishment.
Compulsion needs not just to be alleged but, in my view, it must also
pass the usual test of reasonable possibility; and in
whether the accused acted throughout under duress or compulsion can
be inferred from the cumulative circumstances of
the case, and from
his associative conduct from the time of the shooting up until the
moment they were arrested later that evening.
Under our jurisprudence, the line between a socius criminis who is
present when his accomplice executes the plot and they
both flee and
assist each other and that of an accessory after the fact who only
after the event only aids and abets the perpetrator
to evade justice
is a clear one - the former actively associates before, during and
after the commission of the crime while the
latter, "knowing of
the commission only comes into the picture after the commission"
and aids the perpetrator to evade
justice. R v Ramonyatsi (supra).
Phoofolo, never relenting, again ably submitted that the plea of
compulsion raised only related to what the accused is
alleged to have
done or said after the shooting; but even then, he submitted that the
accused even then could still not be found
guilty as an accessory
because such compulsion exonerates him; the next pertinent question
would again be: wholly or partially?
is rather ingenious to suggest that the inquiry should disregard,
divide or separate the association before shooting and
cooperation between the two men. The court can infer common purpose
if after the commission of the crime, two persons
cooperate with one
another - R v Petersen (supra); to fail to so infer would allow
fanciful pleas such as compulsion, fear, revulsion,
etc. to exculpate criminals.
Phoofolo disparaged the evidence of the police witnesses, their
integrity, demeanour and reliability. The duty of police
Constitution of Lesotho 1993 and the Police Service Act No.7 of 1998
is to maintain law and order in Lesotho and to investigate
committed and to bring culprits to justice. Theirs is a very onerous
job often performed under the very trying and sometimes
difficult of circumstances. Under all civilized systems, police
violence or high handedness wherever it occurs is always
by the courts of law - Sello v Commissioner of Police -1980 (1) LLR
158 at 168 (per Mofokeng J.); the police investigators
seek to diligently discover the truth of what happened without
violence, distortion or fabrication. Distorted or fabricated
- regardless of motive — often can result in a miscarriage of
justice e.g. an innocent man may be convicted and,
be hanged or the guilty may go scot-free! I can only go this far,
casting any blame or censure in this trial. Any censure may if
necessary become appropriate in another forum if an inquiry
death of Qenehelo Lillane is instituted.
Phoofolo, in his most powerful cross examination of some of these
police witnesses, sought to demonstrate that some of
witnesses's statements were shown to have been cunningly modelled in
a way; and this he did by showing stark differences
these witnesses mentioned in their police statements and what they
stated before this court under oath. Some of these
quite apparent and glaring from the very record of this case which is
quite lengthy; I however need not burden
this judgment with their
citation. Suffice it to state that where in this trial a witness has
in his or her evidence-in-chief differed
from his or her police
statement, his or her evidence does not deserve an outright rejection
but has to be treated with due caution
and circumspection; for
example, the evidence of Maphakiso and Thabang as well as of PW9
needed to be carefully treated and not
to be relied upon unless
Most of the witnesses' written police statements were not made on
oath and to say the least, they are very, very brief; there
inexplicable cancellations; there are some police statements which do
not even show who took them down. In passing, I
should mention that
since, under new practice, of late all police statements in the
police dockets are always to be availed the
defence, it is only
proper that these statements must always be taken down on oath and
with all meticulousness and without any
additions or subtractions.
deficiencies in the statements may demonstrate a dire need for an
intensive police training in statement-taking, this ineptitude
sometimes facilitate for distortions of facts and indeed the untruths
to occur. I make no judgment on this aspect save to say
throughout treated the police statements and evidence with due
caution in the face of the apparent embellishments and untruths.
must however mention the most intriguing features of these police
statements. There are statements which state that the
out a gun in the house of Thabang whereas this was proved not so; and
the one which states that the villagers assaulted
Qenehelo after he
had bolted away whereas Maphakiso and Thabang deny this; another
states the money recovered was handed over to
whereas Tobias told the court that no money was given to him and was
told that it would be held as an exhibit.
All these smack of
Omissions should however always be distinguished from distortions or
falsities. The omissions can be explained away by the
the latter may stick out like a sore thumb! This is what happened in
this case. Qenehelo, and not the accused,
picked out the gun in
Thabang's house; Maphakiso and Thabang vehemently deny that the
villagers ever assaulted Qenehelo that the
local chief never made a
report to the police about the death of Qenehelo. It is improper that
police should build up a case with
fabrications. Police should always
investigate with all honesty and report the truth without any
While Morai and Mokhachane state both in their reports and in their
evidence before this court that the accused produced money
and Qenehelo were arrested, they differ as to where and how the money
was produced. But all these apparent discrepancies
do not extinguish
the fact that it was the accused who produced money from his person
and that it was not only the M20.00 as the
accused later sought to
my view, it was not necessary in order to be liable under common
purpose that he accused must have "blockaded"
because that would be requiring "active participation" in
the execution of the plot.
must be noted that in their statements recorded on the 19th March
2004 both Ramolefi Ntai and Retselisitsoe Ntai mention
that they saw
two men "run towards the car..." that had just overturned.
This was confirmed by Tobias Aldenhoff who from
Germany stated that, as he remained trapped inside the vehicle, he
saw two men come down from the road and one of
them demanded money
and cell phone.
critical importance of the cumulative evidence of these witnesses is
that it shows that the accused was not, as he alleges,
petrified with fear some 29 paces away. I have no reason to doubt the
evidence of the two boys in this regard because
they harboured no
improper motive against the accused and because their evidence is
furthermore confirmed by Tobias Aldenhoff.
I however place no
at all upon the evidence that both the accused and Qenehelo jointly
"blockaded" the car before the shooting.
my view, although the evidence adduced in this long trial shows no
proof that Qenehelo and the accused had a prior plan
or agreement to
waylay passing motorists and to rob them or hijack their cars; it is
clear that a spur-of- the-moment operation
was immediately hatched
and carried into execution. I reject as false that the accused was an
innocent companion who stood petrified
when Qenehelo blockaded the
car and shot at it. He, the accused, also approached the vehicle
after it had been shot and had capsized.
The fact that he without
furtherado immediately joined Qenehelo in advancing upon the fallen
car demonstrates beyond doubt that
the accused had just foreseen what
would immediately happen and had reconciled himself therewith - S v
Talane -1986 (3) SA 196.
am satisfied therefore that in advancing to the fallen car, with
Qenehelo the accused was joining and associating himself
furtherance of this criminal objective. Indeed a wad of notes
(certainly taken from Tobias Aldenhoff by Qenehelo Lillane) after
few hours were produced by himself later that day. He was sharing or
keeping the spoils. The accused never ventured to say in
Qenehelo had forced him also to conceal the money in his socks;
instead he contends that his own R20.00 was found by
the latter searched him.
Qenehelo Lillane brazenly committed murder in his presence and
proceeded immediately to commit robbery after they had reached
fallen car. The accused clearly associated himself with what Qenehelo
did. In my view it was not necessary that he should have
anything positive e.g. opening the car door or uttering a threat to
the occupants or ransacking through their bags or
rucksacks. I find
that theirs was nefarious plot hatched on a spur-of-the moment and
that even though the accused did not blockade
the red corolla car or
shoot at it, the only inference reasonable and irresistible is that
the accused actively demonstrated his
association in the operation in
running or advancing towards the fallen car. His conduct thereafter
confirms this overt association
in cooperation. Common purpose arose,
in my view, upon an impulse without prior consultation or agreement
and as Corbett C J. put
it in the case of Magmoed v Janse van
Rensburg - 1993 (1) SA 777 at page 810 (H):
is seldom that there is direct evidence of such agreement Usually the
court is asked by the prosecution to infer it from
as false his plea that he was overtaken by sudden events and was
compelled or threatened by the now late Qenehelo into
throughout the whole saga.
: Guilty as charged. Count two : Guilty as charged.
three: I however acquit the Accused on count three on
ground that there is insufficient evidence that he ever possessed or
handled this gun or ought to have had a firearm licence
accused who has been convicted of murder by the High Court may be
sentenced to any sentence other than death if the court
is of the
opinion that there exist extenuating circumstances relating to the
accused and commission of the crime of murder - Section
297 (3) of
the Criminal Procedure and Evidence Act of 1981.
Persons convicted of murder who are under the age of 18 years can
only be sentenced to be detained during the King's pleasure
297 (2) (b) of the Act (supra))
Extenuating circumstances have been generally defined as those
factors not too remotely connected with the offence which tend
reduce the moral — and not legal - blameworthiness of the
accused in the commission of the crime. They palliate the ultimate
sentence of death - Lefaso v R - 1990-94 LAC 44 at 49 per Schutz P.
Phoofolo relied on only one factor - youthfulness of the accused at
the time he committed the act. He relied on the recent
Appeal case of Phamong Mohale v Rex C of A (CRI) 4 of 2005 in
youth was considered an extenuating circumstance.
court agrees that this factor plus other factors such as lack of
premeditation, lesser degree of participation all tend to
accused's moral blameworthiness of this accused and these factors are
quite apparent from the record of the case. The
finds that extenuating circumstances exist which oblige the court to
impose a sentence other than death.
The accused has no previous convictions.
1. As in
almost every criminal case, sentencing of an accused is now at the
judicial discretion of the court. In the exercise of
- there being no fixed guidelines except from cases decided by the
High Court and the Court of Appeal, the trial
court always has to
consider the seriousness, brutality or heinousness of the crime and
the public's revulsion to its commission;
its prevalence and need for
deterrent punishment are also paramount considerations. As it is
said: the sentence must fit the offence,
the offender and society at
Personal circumstances of the accused such as youth, state of mind
and others only serve to reduce the quantum of punishment
to be meted to an accused. We often speak of "balancing"
but the right phrase should be "considered along
this case the callousness and brutality of the offences committed
upon the two unwary tourists dumbfounds one's conscience.
there is no evidence that it was a planned plot, its execution showed
utter disregard to the sacrosanctity of human lives.
Horsten was brutally shot and he lost his dear life; his colleague
Tobias Aldenhoff at gun point was robbed of his material
He is lucky that he survived the terrible ordeal.
crimes committed were indeed repulsive to the local Malealea
community who offer their traditional Basotho hospitality to
tourist. These crimes have tarnished the good name of the Malealea
Lodge, its locals, and Lesotho as a tourist destination.
punishing the accused, the court however must be careful not to
unduly punish him for the grievous sins of Qenehelo Lillane,
he were still alive, the court would not have hesitated to impose the
ultimate sentence of death upon him!
accused, as a socius criminis must however receive his just deserts;
evidence clearly showed that he did not press the trigger
the lethal gun; indeed it seems that Qenehelo exercised some great
influence over him to induce his fateful cooperation
day. Indeed at one stage he lamently bitterly "Oho ... Motsoalle
a tla nkenya ka hare!!!" His youthfulness
perhaps made him
vulnerable to the bullish Qenehelo. The stupidity and
their plot are indicative of this immaturity. His guilt as socius
criminis has already been proven before this court.
court is deeply conscious of the grave loss the family and all
friends of Sabastian Horsten have suffered, and indeed the
Republic of Germany has lost a citizen and an aspirant law student.
The trauma felt has vibrated to this court through
the sad words of
Tobias Aldenhoff when he said that he would never again set foot in
criminality that was perpetrated in this sad case merits all
condemnation from all the right-thinking Basotho. In the case
of S v
Motolo - 1998 (1) SACR 206 Lombard J. in sentencing the accused
convicted of murder and robbery had this to say-
cases like the present the interests of society is a factor which
plays a material role and which requires serious consideration.
country at present suffers an unprecedented, uncontrolled and
unacceptable wave of violence, murder, homicide, robbery and
blantant and flagrant want of respect for the life and property of
fellow human beings has become prevalent. The vocabulary
courts to describe the barbaric and repulsive conduct of such
unscrupulous criminals is being exhausted. The community craves
assistance of the courts: its members threaten, inter alia, to take
the law into their own hands. The courts impose severe
the momentum of violence continues unabated. A court must be
thoroughly aware of its responsibility to the community,
acting steadfastly, impartially and fearlessly, announce to the world
in unambiguous terms its utter repugnance and contempt
in considering a possible sentence of life imprisonment, the court
has to assess whether the conduct of an accused in,
preceding the commission of the offence was of so grave and repulsive
a nature, that the community has to be protected
onslaughts of such an unscrupulous aggressor by his removal from
society for the rest of his life. "
accused was just over 18 years and a first offender at the time of
the commission of this crime. He was also an attending
scholar at a
local English Medium School in Maseru. These personal factors are
however outweighed by the heinousness of the crime.
the case of Motlatsi v DPP - 1995-1999 LAC 653 Gauntlett
this to say:-
sentence, it is well established, must balance the personal
circumstances of the accused, the nature of the crime and
of the community. Even allowing for each of the personal factors set
out above, in my judgment the brutality of the offence
and the need
to protect the community and to give effect to its repugnance against
such abuse of power as we have here require
a far heavier sentence. "
11. I am
of the view that the sheer brutality and the callousness of the fatal
shooting, and revulsion it invokes all call for a
death of Qenehelo indeed changed the ugly face and complexion of this
case which has left many questions unanswered; were
he before the
court, the direction taken by the case could have been even more
uglier. Agreement between the two could have perhaps
and the issue of compulsion negated.
13. To a
court of law, sentencing is usually not an easy but an agonizing task
because of the conflicting interests that come to
the fore with some
decrying certain sentences as being too lenient and a travesty of
justice and clamouring for more stiffer penalties:
Hopefully in the
very near future, there shall be put in place "Sentencing
Guidelines" for use by the courts in sentencing
Justice must be blended and tampered with anera when appropriate.
Indeed our Great Moshoeshoe I - once called the "Bismark
South Africa" - was very magnanimous and forgiving in instances
such as these.
though the Federal Republic of Germany is a frontline state of the EU
which is totally opposed to the imposition of death
punishment is labelled cruel, inhuman and violative of human dignity,
I would have had no qualms or hesitation in
very easily imposing
death sentence in this case - because of the sheer brutality and
callousness of the crimes committed on innocent
and unarmed tourists
have spent a sleepless night agonizing and meditating over sentence.
I even considered give the accused a very long salutary
imprisonment. But the death of Qenehelo changed his fate. What
actually transpired between him and Qenehelo shall for ever
mystery - the truth shall for ever remain in conscience of the
accused. The evidence that has been adduced before this
that accused's role was relatively minimal — he was under what
one can call a spell in Qenehelo's presence.
He is young but he
stupidly let himself into an abominable plot in which an innocent
young German tourist lost his precious life
over a mean triviality.
His parents are not proud of him and his nefarious acts.
regards sentencing, I am of a steadfast view that the prosecution
must always state their view and not always sublimely recline
"we leave everything in the hands of the court" and then
after the court has imposed a sentence then rise and
lodge an appeal
against the sentence! Crown Counsel are "officers of court"
whose duty to assist the court ends not at
conviction but extends
even up to sentence. The next of kin of the deceased play no role at
all - we can all but empathise! Indeed
the late Mofokeng J (then a
senior prosecuting counsel) once boldly stood up in court and
earnestly submitted that extenuation
existed in a proceeding case on
appeal -whilst the defending counsel sat mesmerised at the bar!
always feel a deep sense of admiration of my Brother Molai J's
appreciation of the sacrosanctity of human life because this
has been entrenched in the Bible (I hope even in the Koran) and is
firmly enshrined in our Constitution of Lesotho. A sentence
-regardless how long — can never replace and reparate life of a
human being because such life is irreplaceable and sacrosanct.
SENTENCE: Count 1: Fifteen (15) years
sentences to run concurrently and effective from the date of arrest.
1. Gun Ex "1" to be forfeited to the State.
to be returned to Tobias Aldenhoff through the German Honorary Consul
law the accused has the right which is exercisable within 6 weeks of
today to appeal against both or either the conviction
to the Court of Appeal.
Court indeed the whole Bench of the High Court of Lesotho also takes
this opportunity to express its condolences to the
Sabastian Horsten for the great loss and due sympathies to Tobias
Aldenhoff for the hurts caused to him whilst in our
commend Mr Phoofolo for his advocacy and fine skill in representing
the accused Pro Deo; Mr Lenono, leader of the prosecution
team is to
be lauded to have traversed through what was a difficult case.
Gentleman Assessor agrees.
: Mr Lenono and Ms Makoko
Defence : Mr H. Phoofolo (Pro Deo)
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