CofA(CRI)No.
13 of 2006

IN THE
APPEAL COURT OF LESOTHO

In the
matter between:

MOILOA
TANKA FIRST APPELLANT

MOTLATSI
TANKA SECOND APPELLANT

LETSEMA
TANKA THIRD APPELLANT

AND

REX
RESPONDENT

CORAM:

RAMODIBEDI, JA

SMALBERGER, JA

HLAJOANE, JA

HEARD :
19 OCTOBER 2007

DELIVERED:
24 OCTOBER 2007

JUDGMENT

Summary

Appeals
against convictions of murder and assault with intent to do grievous
bodily harm and sentences imposed - single witness
-appellants
failing to testify consequence of such failure - trial court's
acceptance of evidence of single witness upheld - no
basis for
interfering with sentences imposed - appeals dismissed.

2

SMALBERGER
JA

[1] The
three appellants were convicted in the High Court (Teele AJ and
assessors) on 23 June 2006 of murder (count 1) and assault
with
intent to do grievous bodily harm (count 2). A fourth accused
(accused 1 at the trial) who was indicted with them was acquitted
on
both counts. The charges against the appellants arose out of events
which occurred on 23 February 1999 at Ha Tsoaleli in the
district of
Berea which led to the death of Ramonne Tanka ("the deceased")
and serious injuries being sustained by Mamphethe
Tanka ("PW1").
The appellants were each sentenced to 8 years imprisonment on count 1
and 1 year imprisonment on count
2, the sentences to run
concurrently. They appeal against both their convictions and
sentences.

[2] The
postmortem report relating to the deceased, which was handed in by
consent during the trial, showed that the deceased died
as a result
of sustaining multiple severe

3

injuries
including a fractured skull on the left temporal region, a fractured
mandible on the left side and wounds to the forehead,
left eye and
parietal region. It is common cause that after the assault upon him
the deceased's body was dumped in a river and
rocks placed on top of
it. The medical report relating to PW1, also handed in by consent,
revealed that she sustained a four inch
laceration to the forehead
and bruises to her right shoulder blade and across her left back. It
was recorded that her injuries
were caused by a stick (or sticks)
wielded with considerable force.

[3] PW1
was the only witness to the assaults upon the deceased and herself on
the night in question. She testified that she was
at home in bed when
the deceased knocked on her door. She arose, lit a candle and let him
in. Shortly thereafter the first appellant
entered the house and
attacked the deceased, striking him on the head with a small axe. The
first appellant was followed by the
second and third

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appellants
who proceeded to belabour the deceased. She too was attacked and
struck. At that point the erstwhile accused 1 kicked
open the door
and the candle was extinguished. She was unable to give precise
details of what happened in the hut thereafter. Eventually
she was
pushed outside where she fell. The deceased was placed on top of her.
She clung to him but then realized he was already
dead. She got up
and ran towards the home of Rabilisi Tanka (PW2). En route she
tripped over some wire and fell. She claimed that
while lying on the
ground first appellant struck her on the head three times. He then
left saying "This one I have finished,
lets go." She
eventually managed to crawl to PW2's hut. He confirmed in evidence
that PW1 arrived there bleeding from the
head. She reported what had
occurred to him but did not mention the names of all those allegedly
involved in the assaults. She
referred at that stage to the erstwhile
accused 1, the first appellant and "others" - without
specifically stating that
the others were not

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known to
her. It is common cause that the body of the deceased was found the
following day where it had been dumped in the river.

[4] It is
common cause that the three appellants are closely related to PW1 and
PW2 and well known to them. PW2 also testified to
the fact that on
the day preceding the assault upon the deceased the first appellant
had threatened to kill the deceased because
of a dispute with him
over some forest land. The three appellants and accused 1 elected not
to testify and closed their cases without
calling any witnesses.

[5] In
dealing with the evidence of PW1 the learned trial judge was mindful
of the fact that she was a single witness whose evidence
was not
entirely without blemish. In a careful and well-reasoned judgment,
and with due regard to the approach laid down in S v
Sauls and Others
1981 (3)

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SA 172
(A) at 180 when dealing with a single witness, he came to the
conclusion that PW1 was a reliable, credible and trustworthy
witness
whose evidence could be relied upon as the truth. There is nothing on
the record to show that he may have erred in this
regard, nor has he
been shown to have misdirected himself in any respect. Any suggestion
of possible mistaken identity on her part
can be ruled out. The
appellants were well known to her, there was a light on in her hut
when the attackers entered and commenced
their attack on the deceased
as well as on her and she would have had sufficient opportunity to
recognize them. She fairly conceded
that when the light went out
after the arrival of accused 1 she was unable to say who did what. It
was her inability to identify
accused 1 with any attack upon the
deceased or on her that led to his acquittal. Furthermore, the
presence of the first appellant
is consistent with the threat uttered
against the deceased the previous day, as testified to by PW2.

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[6] The
main criticism in argument of the evidence of PW1 was that when asked
by PW2 who had attacked her she mentioned accused
1 and the first
appellant by name, but failed to make specific mention of the second
and third appellant. The trial judge was fully
alive to this
criticism and concluded as follows:

"While I was of the impression that this might be a
contradiction I think this is more apparent than real. That is so
because
PW1 told PW2 that she was attacked by accused 1 and 2 and
many others. He did not go further to say that she told him that she
did not know the others. I should believe that PW1 was still
traumatized by the experience and she could not be expected to
narrate
with all detail what had transpired. I note that PW2 did not
say he asked for the names of all those that she identified."

[7] I
agree with the conclusion reached. In my view the failure of PW1 to
mention the second and third appellants specifically by
name in the
circumstances existing in the aftermath of the attack when PW1 would
have been suffering from her injuries and the
consequences of the
traumatic events that had occurred does not in my view

8

impugn
her credibility or detract from the clear evidence she gave in court.
Significantly she never excluded their presence at
the scene of the
attack.

[8] Faced
with the evidence of PW1 the appellants elected not to give evidence
or call any witnesses. They were entitled to exercise
their right to
remain silent and no adverse inference can be drawn against them for
doing so. The onus remained upon the Crown
to prove their guilt
beyond all reasonable doubt. In this regard the remarks of Langa DP
in the case of S v BOESAK 2001 (1) SACR
1 (CC) at 11 (para 24) are
apposite:

"The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to
a decision to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain
silent in the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of
an explanation to prove
guilt of the accused. Whether such a conclusion is justified, will
depend on the weight of the evidence."

9

See also
in this regard S v BOESAK 2000 (3) SA 381 (SCA) at 396E where it was
stated:

"It is trite law that a court is entitled to find that the State
has proved a fact beyond reasonable doubt if a prima facie
case has
been established and the accused fails to gainsay it, not necessarily
by his own evidence, but by any cogent evidence."

[9] In
the circumstances, and in the absence of any misdirection, the trial
court correctly concluded that PW1 was a credible and
reliable
witness and its finding that the appellants were involved in the
attack upon the deceased and PW1 was fully justified.
As stated by
Ramodibedi JA in Pelea v R LAC (2000-2004) 223 at 232C:

"Now it has long been the law that where a trial court's
findings on credibility are in issue on appeal, as in this matter,

then, unless there has been a misdirection on facts, the presumption
is that the conclusion is correct and that the appellate court
will
only reverse it if convinced that it is wrong. See R v Dhlumayo and
Another 1948 (2) SA 677 (A)."

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[10] As
correctly held by the trial judge, PW1's evidence reveals that the
three appellants acted in concert and with a common purpose
in
attacking the deceased and anyone who stood in their way. Having
regard to the circumstances and nature of the attack, and the

injuries inflicted upon the deceased and PW1, the trial judge was in
our view entirely justified in coming to the conclusion that
the
appellants had the necessary intent in the form of dolus evantualis
to kill the deceased and seriously injure PW1. On appeal
it was not
seriously contended to the contrary.

[11] As
far as sentence is concerned, no valid grounds exist for interfering
with the sentences imposed. If anything, the appellants
can consider
themselves fortunate in having had a relatively lenient sentence
imposed in respect of count 1.

[12] In
the result the following order is made:

"The appellants' appeals against their convictions and sentences
are dismissed."

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J W SMALBERGER

Justice of Appeal

I agree:

M M RAMODIBEDI

Justice of Appeal

I agree:

A M HLAJOANE

Justice of Appeal

FOR
APPELLANTS: ADV H. NATHANE

FOR
RESPONDENTS: ADV L. MAKHOLELA