CRI/T/22/88

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

MOTAMO
SEHLABAKA

Held at
Butha-Buthe

JUDGMENT

Delivered
by Che Hon. Mr. Justice M.L. Lehohla on the,18th day of October,
1989.

The
admitted preparatory examination depositions of P.W.10 the headman of
Ra Sakoane, chief Ishmael Sakoane shows that in the morning
hours of
a day in October 1985 a a grim discovery of a dead body of an unknown
male adult was made in an open veld in an area called
Thaba-Bosiu.

The
headman raised an alarm and proceeded to report the matter to P.W.1
No. 2812 Detective Trooper Mpopo of the T.Y. Police C.I.D.
Section.

P.W.1
examined the body in the presence of P.W.1C and conveyed it to the
T.Y. mortuary in a police van.

Following
the investigations made by P.W.1 and his fellow members of the police
force i.e. P.W.12 Detective Warrant Officer Mokhele
and P.W.3
Detective Trooper Lelala a charge of the murder of the deceased Thami
Madona was ultimately preferred againsed the accused.

It is
important to show that no eye-witnesses were revealed by the
investigation nor direct evidence led in this Court. Hence the,

evidence on which the case facing the accused depends, is purely
circumstancial. The

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body was
lying some three paces away from a vehicular road which was not in
constant use. It is a dirt road.

Apparently
the period between the time prior to Che discovery of the deceased's
body and the eventual arrest of the accused occurred
during a rainy
season.

It is in
this connection that the questions put to P.W.1 and answers tendered
are of relevance, viz:-

"You said at P.E. there had been rain - ? Yes.

Evidence will show that the accused was trave­lling in a car; and
if he could have been at that spot on that day after the
rain you
admit there would be an indication that a car passed there - ?

If a vehicle had passed after it rained that would show. But if
before; then the rain would have washed away the traces of wheel

marks."

The
evidence of P.W.8 Sekonyela Ramaqabe and that of his mother P.W.11
'Malineo Ramaqebe along with that of the accused himself
lend support
to the fact of heavy down pour at Tsikoane in the Leribe district. By
my calculations this place is quite far away
from Ha Sakoane in the
Berea or T.Y. district where the body was found.

P.W.7
'Mamolefi Madona the deceased's wife tes­tified that on 27th
October 1905 at around 9 a.m. or 10 a.m. the accused called
at her
place in Che com­pany of another man whom she did not know. She
said they were travelling in a red car. The deceased
was at home.

The
accused and the stranger had come to fetch the deceased. The purpose
of the mission was to sell deceased's truck to a buyer
allegedly
secured on behalf of Che deceased by the accused. The transaction was
to take place at T.Y.

P.W.7 and
her husband stayed in a rented house at Upper Thamae. P.W.7 did not
know this truck because

3

since
having been bought by her husband a month before his death, it was
parked at Motimposo because the couple's yard at Upper
Thamae was too
small, therefore there was not enough space wherein to park that
truck in that area.

Although
P.W.7 acknowledged that at the Preparatory Examination she had told
the magistrate that the decea­sed's company had
left in a white
Toyota van in fact that was a mistake for she recalled that they had
left in a red car.

However
P.W.6's evidence which is common cause indicates that the deceased
and the accused were seen seated in a white Toyota van
belonging to
the accused outside the T.Y. hotel on a weekend between 5 p.m. and 6
p.m. They were drinking beer. P.W.6 is not certain
whether this was a
Saturday or a Sunday nor does he remember " the year. All he
remembers regarding the occasion is that it
was towards the October
Finals.

If by
Finals P.W.6 meant the national soccer finals which are usually held
at the beginning of October each year it would be worthwhile
bearing
in mind that the charge shows that the death occurred on or around
27th of October which is towards the end and not the
begi­nning
of that month.

However
of significance is the fact that after P.W.6 parted company with the
two he left the hotel at 7 p.m. of the same evening
never to see
either of them again that day.

Three
days afterwards he learnt from casual conversationists at the Lake
Side Hotel in Maseru that the deceased had died.

P.W.7
testified that the deceased was P.W.9's son i.e. Senekane Raliile's
son, but not his blood son. She told the court that the
accused used
to visit the deceased at their joint home at Upper Thamae. His visits
were so frequent that at times he called there
twice a week.

4

On the
27th October when the deceased left with his party for T.Y. he was
wearing a short-sleeved blue scotch shirt, a navy blue
pair of
trousers and a pair of black shoes.

P.W.7 was
always at her home that day but the deceased did not show up. Nor did
he the following day.

P.W.7
went about searching for the deceased. In pursuance of this she went
to P.W.9's home at Motimposo on 29th October 1985.

Having
failed to find the deceased there she asked for the use of the phone
and rang the accused's place of work at Lesotho Freight
Services in
order to inquire from him about the deceased's whereabouts. But the
accused was not there. Her reasons for trying to
contact the accused
was that when last she saw the deceased the accused was in his
company.

Her
attempts at locating the deceased by means of contacting his friends
produced no results.

One of
the deceased's friends whom P.W.7 questioned on 2nd November 1985
about the deceased's whereabouts was one Fani from whom
she once more
drew a blank.

Finally
P.W.7 heard of the deceased's death on 3rd November 1985 from P.W.2
Makhama Raliile. Mean­time the accused had not been
seen anywhere
near P.W.7's home. She immediately set out for T.Y. Charge Office in
the company of P.W.2, and one 'Malikeleli Mokokoana.

P.W.7
recognised the deceased's black pair of shoes at T.Y. Charge Office.

From
there she left with her party in the com­pany of some police
officers who led her to the T.Y. Government mortuary where
she
identified the body of the deceased dressed in the short-sleeved blue
scotch shirt and the navy blue pair of trousers. The
deceased was by
then not wearing any shoes.

P.W.7
testified that to the best of her knowledge

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the
deceased and the accused had never had any quarrel.

Even
though agreeing under cross-examination that since she had never seen
the truck that she said her husband bought she could
not be positive
that he had such a truck she was adamant that her husband would never
lie to her and say there was such a truck
if there hadn't been any.

In her
desparate search for the accused P.W.7 went at some stage to Lesotho
Freight Services Centre but once more found that the
accused was not
there. She however did not leave any message with the employees of
that company for the accused to contact her
because she intended
contacting P.W.2 and asking him to lead her to the accused's home
which was unknown to her.

Evidence
showed however that the accused's home is at Lithabaneng and that in
order to reach that place from T.Y. one has to go
through Upper
Thamae which is the village where the deceased's home is; therefore a
place to go to if one wished to inform the
deceased's wife about the
startling disappearance of the deceased from one's company
immediately after such disappearance - or
indeed to find out if
perchance the deceased being weary of the wait did not retrace his
steps home by some other means than the
Toyota van which had conveyed
him to T.Y. hotel.

I allude
to the question of the wait because in his evidence the accused said
at one stage the deceased left him remaining behind
in the Toyota van
where the ..... two had spent a long time drinking and went into the
.. hotel in the company of the stranger
who had come back from the
hotel where he had earlier disappeared after delivering beer to the
deceased and the accused. The accused
seized this moment of the
deceased's departure - . to go to a filling station in order to put
some petrol into the tank of the
Toyota van, and came back; waited ..
in the van for a long time for the deceased, alighted

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from the
van and went looking for the deceased in the hotel; and, failing him
there, decided to drive back to Lithabaneng in Maseru
without the
deceased.

Having
received the report of a dead body found in the veld at Ha Sakoane
P.W.1 set about making investigations.

On the
same day i.e. 28.10.85 he went in company of P.W.10 to the place
where the body was lying. The villagers were already gathered
some 45
to 50 paces away from the body.

The place
was free of stones but grassy. The body was lying three paces away
from the scarcely used road leading to Ha Rakolo in
the Leribe
district. The body was near a hill called Thaba Bosiu in the T.Y.
district.

P.W.1
approached the body and found it lying face up. Near it i.e. some
five inches away from it on either side were empty cartridges

numbering five in all.

It is my
considered opinion, buttressed by P.W.5 Lt John Hlabi Telukhunoana,
that the gun shot wounds sustained by the deceased
could not have
been inflicted at the place where the deceased was found or that the
cartridges fell when ejected from a fired gun
at the exact spot where
they were later found.

P.W.5
said if fired from a standing position the cartridges would fall some
two or three paces from the person holding the gun.
Hence if fired 5
inches away from the body one would expect them accordingly to fall
two or three paces away from the body. Furthermore,
basing myself on
the fact that the gun Ex."l" was seen by the Court and
estimated by P.W.5 who is very familiar with
firearms and ammunition
to be five inches in length, one would expect Che entry wounds to
reveal considerable burns and the shirt
to bear sizeable quantities
of soot opposite the entry wounds.

P.W.1
testified that with the exception of the gun

7

shot
wound apparently fired at the region of the decea­sed's mouth
there were no indications of exit wounds. P.W.4 Dr Totinkes
whose
P.E. depositions were admitted did not give evidence in this court.
He owned up though that he was not an expert on gun shot
wounds. He
however testified that he discovered the wound on the face to relate
to the one on the right side of the neck but could
not say which was
an entry and which an exit wound. P.W.1 said the exit one was that
which was on the right side of the neck.

It is not
clear what degree of thoroughness was employed by P.W.4 in an
endeavour to find bullets which must have remained in the
body in
view of the fact that P.W.1 found no exit wounds relating to the four
other entry wounds. It is thus startling to learn
from P.W.4's
evidence at P.E. that in his post mortem report regarding examination
of the body he is recorded as having said

"I did not find any bullet within the deceased's body."

His
evidence was too sketchy and lacking in necessary or useful details
to be of much help.

In his
post mortem report Ex."A" P.W.4 at P.E. indicated that
death was due to multiple gun shot wounds.

In the
remarks portion of the report form P.W.4 shows that

"death occurred apparently of gun shot wounds of which the most
lethal one is located in the head. No bullets could be recovered."

It would
appear therefore that from the last sentence it can safely be
concluded that attempts at recovering the bullets which were
in the
deceased's body were not successful. This is in stark contrast with
this witness's oral evidence that no bullets could be
found. At first
blush it implies that there were no bullets. The truth appears to be
that although bullets must have penetrated

6

the body
and got inbedded in it they were not retrieved. P.W.1's evidence then
is corroborated on this score that there were no
exit wounds in
respect of four other gun shot wounds.

P.W.4
further observed that the maxilla was destroyed and that the right
lung tissue was also destroyed. It is regrettable that
P.W.4 was not
questioned about his basis for saying in the Additional Observation
portion of the report form

"It seems that all the wounds except the one through the mouth
were caused by firing a gun from a dista­nce, and that
"the
work" was finished by a shot close through the mouth."

Although
on the basis that there is nothing in evidence to support the view
that the killing was effectively accomplished by means
of the gun
shot wound fired through the mouth , P.W.5's evidence lends support
to the view that the bullets fired at Che deceased
must have been
fired from a distance before the empty shells were later collected
and placed on either side of the body five inches
away.

Nothing
in the evidence shows the order in which shots were fired at the
deceased. But the fact that the post mortem report indicates
Chat the
pupils were wide, to me conveys the horror Chat remained indelibly
stamped on the deceased's eyes before life expired
from his body.

P.W.4
also observed

"multiple penetrations through the maxilla and upper lip; one on
the right infraclavicular region, one just above the right
hepa(?)
and right inguinal region and penis (small wounds) Outshot opening
visible on right side of neck behind right ear."

P.W.1
testified that he collected the empty shells which were lying on
either side of the body one by one. On each of this shells
he
observed that it was written 7.65.

9

From this
figure i.e. 7.65 he concluded that the shells belonged Co a 7.65
calibre pistol. He kept them in his possession.

Re
undressed Che body and observed a wound above the right breast. He
observed another wound on the right side of the chest. There
was
another in the pubic region. There was another on the lower inner
lip. He observed two other wounds behind the left ear.

All these
were small narrow and open wounds. This witness who has been in the
police force for upwards of 16 years concluded that
these were gun
shot wounds.

It should
be observed though that there are some discrepancies between his
evidence and Chat of P.W.4 as to the locality and number
of wounds
behind the ears. P.W.4 referred to only one wound behind the right
ear. P.W.I refers to two behind the left ear.

However
through my calculations I have been able to make out five entry
wounds from Che doctor's observations.

In
response to a radio message about the discovery of an unidentified
dead body kept at T.Y. Government mortuary of someone answering
Che
deceased's description P.W.2 set out for T.Y. in the company of Mrs
Malikeleli Mokokoana. P.W.2 in his evidence mentions only
Mrs
Mokokoana. It would appear then that P.W.2 wade a second trip Co T.Y.
in Che company of the deceased's wife and 'Malikeleli
Mokokoana on
Sunday 3.11.85. See page 40 of my notes regarding P.W.7's evidence.

According
to P.W.2 he went there with Malikeleli on Friday 1st November 1985.
This may account for his mentioning Malikeleli's name
only when the
first occasion for the identification took place. According to P.W.1
this was two days after the dead body had been
collected from the
veld. It would appear the body was

10

collected
from the veld on 28.10.85.

Indeed on
page 4 of my notes in reference to people who came to identify the
body P.W.1 mentions only two; namely P.W.2 and 'Malikeleli
Mokokoana.
P.W.1 went further to say "the two persons knew the deceased.
They were friends apparently."

I may
just add that on page 23 of my notes P.W.2 is recorded as having said

"The deceased owned a car and a Mercedes Benz truck. This was in
1985. I came to know on Friday 1st November 1985 that he
had died
when I went to T.Y. to identify his dead body. I was in company of
Mrs Mokokoana. I identified it before Mr. Mpopo P.W.1.
It was at T.Y.
I drove back to Maseru after identifying the body. I went to inform
the wife of the deceased at Upper Thamae where
they used to stay."
(Underlined for emphasis).

It was
during the course of his investigations that P.W.I eventually
confronted the accused on 5th November 1985. Significantly
throughout
the period between 27th October 1985 and Che time of his arrrest on
5th November the accused had never set font at deceased's
home. His
explanation was that he used to either knock off late or had to put
up some nights in the out-stations far away from
Maseru in the course
of his employment as a truck driver for Lesotho Freight Services.

P.W.1
having identified himself to the accused at the place of the latter's
employment, informed him that he was investigating circumstances

surrounding the deceased's death.

P.W.1
after giving the accused the usual warning took him to T.Y. C.I.D.
office for thorough interro­gation concerning the deceased's

death.

The
accused gave P.W.I an explanation following which he led P.W.1 to
Motimposo where they came face to face with P.W.2 Makhama
Raliile at
the latter's home.

11

This was
on 9.11.1985.

P.W.I had
already met P.W.2 for the time on the occasion when P.W.2 had gone Co
identify Che deceased's body at the funeral parlour.

P.U.1
formally told P.W.2 that he was a policeman and had been led to him
by Che accused. During this occasion P.W.1 was in the
company of
P.W.12 and P.W.3 Det/Tpr. Lelala.

According
Co P.W.1 on arrival at P.W.2's place in the company of the accused
and Che two other policemen the accused spoke to P.W.2.
Following
that conversation P.W.2 produced a gun Ex.1 from the grocery unit
which was in a single roomed house serving as both
a kitchen and
living room.

P.W.I
then took this gun from P.W.2 and observed that it was a 7.65 pistol.

This
pistol actually belonged to P.W.2. It was a licenced firearm. P.W.I
opened the firearm: and noticed that it was unloaded. He
showed It to
the accused and asked him if it was the firearm he had earlier spoken
Co P.W.I about and the accused acknowledged
it as such.

P.W.I
cook the gun to T.Y. C.I.D. office. On arrival there he gave the
accused a charge of murder of the deceased Thami Madona.
It is to
this charge before this Court that the accused pleaded not guilty.

The gun
and the five empty shells were sent Co P.W.5 for ballistic
examination in an endeavour to determine if Che shots matching
these
shells were fired from this gun. The shells were handed in by P.W.I
marked exhibit 2. In his examination of the gun and the
cartridges
P.W.5 was positive that Che cartridges were fired from Ex."1".
I have no hesitation in accepting his evidence
on that score.

It is
worth noting that at page 361 of his invaluable

12

book
Firearms Investigation Identification and Evidence Major General
Julian S. Hatcher says :

"Bulletsare slightly more important than cartridge cases, since
bullets actually do the physical injury."

I refer
to this quotation only bearing in mind that no bullets were extracted
either from the deceased's body or collected anywhere
around the
place where the deceased was found lying.

But taken
along with the response elicited from P.W.I under cross-examination
the absence of the said bullets from the course of
investigation till
this trial to some extent makes Che Crown's task less burdensome. In
this connection P.W.1's response to the
question put will help
clarify the issue. This is at Motimposo at the home of P.W.2:-

"You
got there. The accused spoke to P.W.2 Makhama there - ?

Yes.

What did he say to Makhama - ?

He said to him 'the gun you had lent me is the one

used in the death of Thami Madona'"

The
importance of the responses in the above quotations cannot be
overlooked first because they were elicited under cross-examination

and secondly because in his submissions in argument Counsel for the
Crown pointed out that he delibertately refrained from leading
this
witness along such paths as he feared the contents of the accused's
reported statement hovered dangerously near inadmissible
confession.

However
if the words grounding the crown's fear were rendered in P.W.1's
examination in chief it would appear that such fear was
unnecessary
in view of the fact that the Court of Appeal constituted by Schreiner
P., Maisels J.A. and Milne J.A. (as they then
were) in a judgment
delivered by the last-named in David Petlane

13

vs Rex
1971 - 73 LL.R. at p. 85 held that

1. The
   words used by the appellant should prima facie be given their
   ordinary, natural meaning and must necessarily be the prime
   guide to
   the meaning of the person uttering them.

   
   

2. Although
   the surrounding circumstances may be taken into account in deciding
   whether a state­ment amounts to a confession,
   the fact that the
   appellant knew when he made his statement that the police were
   looking for him in connection with the killing
   of the deceased could
   not have the effect of making his statement a confession of the
   offence with which he was subsequently
   charged, as the statement did
   not exclude the possible defences of self-defence or accident.
   Further, Che fact that it traspired
   at the trial that if such
   defences had been raised they would not have been maintainable could
   not operate to turn the appellant's
   statement to the police into an
   unequivocal confession of murder."

   
   

Much was
wade about the fact Chat things said in this Court by P.W.1.do not
appear in the P.E. record. But the text of the P.E.
record if
anything is very sketchy as against the record in the instance court
where more detailed questions were put Co the witness.
I have no
hesitation in finding that he is a truthful witness who did not in my
view try to say things which falsely implicate
Che accused.He
mentioned that he has lost his note book on which he had written
serial numbers of the gun. He was taxed about the
fact that nothing
appeared on record to show he used his note book to refresh or fillip
his memory regarding numbers of the gun
taken from Makhama. But at
page three of the P.E. record the numbers appear as reflected on
"Ex.1" itself. Regard being
had to the fact that the P.E.
was held almost nine months after the event and the figure is so long
i.e. No. 546547 the witness
unless he had a very good memory for
figures could not have landed on the correct figure of that length
after so long if he did
not refer Co the note book that he told me he
did. Moreover the record shows in respect of the wounds; he referred
to a note book.
See page 2 of the P.E. record. I doubt if he kept
more than one note book for recording events surrounding the

14

investigation
of this case. In any event in relation to the question that P.W.1
does not appeal on record to have refreshed his
memory with respect
to serial numbers of the gun, he did not say yet another of his note
books got lost, nor did he give me such
an impression when giving
evidence in this court. This however is not meant to encourage police
to carelessly discard notebooks
which they would later be called upon
to resort to in an,attempt to substantiate their testimony or test
their memories.

P.W.12
corroborates P.W.1's evidence that the accused was brought to C.l.D.
office on 5.11.8b.

He told
the court that he also participated in the investigation of Che crime
leading to today's trial. One other participant was
policeman Seboka,

On
9.11.35 Troopers Mpopo, LelalA and P.W.12 Det/W/O following the
explanation given to them by the accused set out from T.Y. for

Motimposo in Maseru.

They came
to the home of P.W.2. Prior to that none of them knew P.W.2's home
except the accused who led them to it.

P.W.12
corroborates P.W.1's evidence with regard to P.W.2 Caking the gun
from the grocery unit and handing it over to P.W.I in the
presence of
the accused.

His own
version of the words allegedly uttered by the accused when coming
face to face with P.W.2 is "Makhama bring that gun
which you had
lent me."

P.W.12
corroborated P.W.1 as to the identity of the pistol namely that it
was a 7.65 calibre gun bearing serial numbers 646547.

He
further testified that on 11.11.85 he received information regarding
a Mercedes Benz Truck which was at Tsikoane.

15

This
truck was parked at the homestead of Foto Ramaoabe the husband of
P.W.11.

AC this
home P.W.12 found P.W.11 and her son P.W.8. The truck was a drop-side
white Mercedes Benz type bearing Maseru district Registration
Letter
and Numbers A-4523. Its buck had been removed. P.W.8 and P.W.11
confirmed Chat they told P.W.12 that the truck belonged
Co the
accused who had brought it there at night.

P.W.12
said he examined the truck and found nothing untoward about it with
the exception of the fact that its buck had been removed,

P.W.12
said he drove it to Hlotse police station. He doesn't: remember where
he got the keys from nor indeed if the truck was not
merely kept in
motion by connecting its electrical wires. He however recalls that it
was push-started as the self-starter didn't
help turn the engine.

It turned
out though that P.W.8 had been forced by P.W.12 to drive that truck
from his home up to a certain fraction of the road
leading to Hlotse.
P.W.8 who was not acquainted with driving a truck switched places
with P.W.12 who Cook the steering wheel and
drove the truck to Hlotse
Police Station.

P.W.12
Cold the court that on 12.11.85 he detailed P.W.3 who left T.Y. in
the company of P.W.9 Senekane Raliile to fetch the truck
from Hlotse
Police Station and bring it to T.Y. police station.

On
13.11.85 P.W.12 fetched the accused from the T.Y. prison cells and
questioned him about the truck.

The court
was told by this witness that the accused said he knew the truck and
Chat it was the deceased's truck - further that the
accused said he
didn't know where it came from.

16

Thereafter
the accused was returned to prison. Prior to the investigations
P.M.12 said he didn't know the accused. It was only later
that he
gathered that the accused had been or was a soldier.

Under
cross-examination P.W.12 said he must have made a mistake when he
said in 1985 he was stationed in Leribe and not T.Y. He
maintained he
was stationed in T.Y. then.

Confronted
with the legitimate question that at the time of giving the evidence
at the Preparatory Examination before the magistrate
events were
relatively much fresher in his mind than today he conceded that that
was so but explained Chat the wrong information
supplied to the
magistrate might have been a slip of the tongue - this being that in
1985 he was still stationed in Leribe.

I think
his explanation is reasonable regard being had to the fact that in
this court P.W.12 said under cross-examination that he
had been
transferred from T.Y. to Leribe in July 1986.

Both this
date i.e. July 1986 and the 24.12.87 appearing on page 9 of the P.E.
record the latter of which dates shows that the proceedings
at P.E.
were postponed to 30.12.87 occurred before P.W.12 was called as a
witness at the P.E.

Confusion
may have arisen here because the P.E. record appears to suggest that
the accused at the completion of proceedings at that
level was
committed for trial before this court on 16.6.86 whereas the truth of
the matter is that proceedings at P.E. were only
started on that date
i.e. 16.6.86. It is not shown when the proceedings were completed.

However
it is clear that at the time P.W.12 was giving evidence as to events
which occurred in 1985 while he was still stationed
at T.Y. he had
subsequently been

17

transferred
to Leribe.

P.W.12
was adamant that he was not present at the place where and at the
time when the body was found. He had only issued instructions
from
his office for the junior members of his staff to attend to the
matter.

P.W.12's
attention was brought to a statement appearing in the P.E. record on
page 10 where this witness is recorded as having said
the following
in reference to the accused

"He
(meaning the accused) was not threatened or assaulted."

P.W.12
was asked if when he told the magistrate those words in quotations he
was at that stage being led by the public prosecutor
or had uttered
them voluntarily. He replied that he said them on his own accord. He
was told that he was prompted to say those
words by the fact that he
knew he had assaulted the accused and was thus adopting a pre-emptive
defensive attitude. P.W.12 denied
this accusation and explained that
he volutarily uttered those words to show that the accused had not
been assau­lted when
he in turn made a statement before the
police regarding the whereabouts of the weapon alleged to have been
used in the killing.

In the
same manner that P.W.1 denied that he had received information or
clue from P.W.2 leading to accused's arrest, P.W.12 also
denied this
proposition when the question was put to him.

P.W.I had
also denied that after arresting and inter­rogating the accused
he told the accused that P.W.2 had told P.W.1 that
the accused was
the one who had shot the deceased.

He
further denied that the accused replied that since P.W.1's informer
told P.W.1 about the gun that informer would be a better
able person
to reveal the whereabouts of the gun. He denied the suggestion
following from the above line of questioning that this

18

accounts
for his party going to Motimposo. He buttressed his denial by
explaining that he went to Motimposo following the explanation
given
to him by the accused.

P.W.12
denied that his investigating team told the accused through P.W.1
that P.W.2 had said the accused had shot the deceased.

He denied
that during the investigations the investigators asked the accused to
produce the gun.

He denied
that the accused said P.W.2 could know better the whereabouts of the
gun. He denied that it was on the basis of information
obtained from
P.W.2 that the party ended up at Motimposo.

Asked why
he did not in his evidence in chief P.W.12 say that the accused had
said in reference to the gun "it was the gun
I used to kill
Madona" he replied that he thought he would be disclosing a
confe­ssion. Regarding this aspect of the matter
the authority of
Petlane cited above is conclusive.

It seems
from the above that P.W.12 has corroborated the material and salient
aspects of the evidence given by P.W.1.

The
reason why P.W.12 set out for Tsikoane where he found a truck was
elicited from him in the form of a general question, namely:

"Say
what relevance had the truck to the death of Madona - ?

Deceased
Thami Madona left in a truck to go where the accused had found a
buyer for the deceased at T.Y.

You were
terribly misinformed if this is Che type of information you got - ?

It was
correct information."

Under
re-examination P.W.12 stated that the accused was very free when he
asked P.W.2 to bring the gun which P.W.2 had lent him
and with which
he said he had killed

19

the
deceased. He further stated that although it is possible he didn't
hear when P.W.1 asked the accused if that was the gun in
question;
whereupon the accused uttered his confirmation.

He stated
that he might have not observed this because it may have occurred at
the time when he was confused by a soldier who pointed
a gun at him
during that portion of the investigations. He was adamant however
that the confusion he felt was not such as could
make him fail to see
if the accused was not freely making his statement at the time when
he asked P.W.2 to produce "Ex.1".

P.W.2
Makhama Raliile testified under oath that he lives at Motimposo,
Maseru. He is an aircraft engineer working at Moshoeshoe
1 airport
under the employment of Lesotho Airways Company.

P.W.2 and
the accused are related. They are also known to each other. Their
fathers are brothers. He knew that the accused was a
driver and had
gone through various forms of employment. He knew that at one stage
the accused was employed by the Highland Water
Project. At another he
used to work at Ficksburg. At some other he was a soldier. P.W.2 does
not know what the accused is employed
as now; impliedly by "now"
I am made to understand that the witness refers to the period that
the accused is spending
on bail while awaiting trial.

P.W.2
knows the deceased very well. He told the court that the deceased and
the accused were close friends.

The court
learnt from P.W.2 that the deceased used to repair and maintain motor
craft. The deceased had a car and a Mercedes Benz
truck.

On Friday
1st November 1985 P.W.2 left for T.Y. to identify the deceased's dead
body.

On 9th
November 1985 at about 1 p.m. or 2 p.m.

20

P.W.1 and
P.W.12 came to P.W.2's home in the company of the accused. P.W.2 only
got to know P.W.12 on that day whereas he had known
P.W.1 earlier
when he reported himself at T.Y. Charge Office before pro­ceeding
to the mortuary in his company on 1.11.1985.

It is
common cause that the accused knew where P.W.2 stayed.

After the
police introduced themselves and produced their identity cards for
P.W.2's benefit the accused said to P.W.2:

"David hand over that family gun - I have already killed Thami
with it - which you had lent me."

The court
learnt that David is P.W.2's Christian name. Asked by P.W.2 why he
did such a thing the accused is alleged to have responded
by only
bending his head.

Then
P.W.2 opened the kitchen unit or grocery unit, took out the gun and
handed it to the police.

P.W.2
told the court that this gun is a 7.65 calibre pistol with 7/8
loading capacity. He related its serial number and produced
his
licence for its possession. It appeared to have been licensed in
1983. The purpose for owning a gun was the result of frequent

robberies at his father's shop in Maseru.

P.W.2
said this gun was at one stage in the accused's possession not as a
loan but rather for safe keeping. This was in April 1985.

P.W.2
entrusted the gun to the accused's custody because there had been a
misunderstanding in P.W.2's family after his mother's
death. His
younger sister aged 17 had become rebellious. In fact she is said to
be still in that condition even today resulting
from
misunderstandings following on her mother's death. She manifested
this rebellion and or nervousness by driving

21

a van at
one lady trying to knock her down with it but missed her.

It is for
this reason that P.W.2 decided to take the gun to the accused for
safe keeping, first because the accused had been a soldier
and as
such would presumably know how to keep it. Next, because the accused
was virtually P.W.2's brother and he trusted him.

It was
drawn to P.W.2's attention that this gun was taken to the accused
almost a year after P.W.2's mother's death which presumably
triggered
the dangerous attitude that the 17 year old sister manifested. P.W.2
replied that the degree and intensity of her danger
was only
manifested when she missed the other lady with a van. It was then
that P.W.2 became even more aware that his sister's
disturbance might
lead to the death of one of the members of the family. Made aware
that the robberies for which the gun had been
bought would continue
unabated if the gun was in the accused's custody. P.W.2 said there
would rather be robberies than death in
the family caused by his
sister with that gun.

P.W.2
said he learnt that P.W.7 had come to his place in his absence
looking for the deceased on 29.10.85. He took notice of the

seriousness of the deceased's disappearance when P.W.7 came to him
crying and saying that her husband had gone missing. This was
on
30.10.85.

Then at
about 9 p.m. while P.W.2 who apparently does not take liquor, was
enjoying his soft drinks at the Lake Side Hotel in Maseru
he met
P.W.6 Michael Matsai. He told P.W.6 that he was looking for the
deceased who had" gone missing. Then P.W.6 told P.W.2
that he
had last seen the deceased in the accused's company at Blue Moutain
Inn at T.Y. Further that P.W.6 had said it was about
8 p.m. on Sunday
27.10.85 when he last saw the accused with the deceased.

When
P.W.2 left the Lake Side Hotel for his home he met with someone who
intimated to him a death announcement

22

by the
T.Y. police over the radio. The description of the subject matter of
the announcement left P.W.2 in no doubt that it fitted
the deceased.
The following day i.e. Friday 1.11.85 P.W.2 asked to be freed for a
day from his work and left for T.Y. in the company
of Mrs Mokokoana.
Apparently he had met with P.W.6 on Thursday 31.10.85 at the Lake
Side Hotel.

On that
Friday 1st November 1985 P.W.2 identified the body of the deceased in
the presence of P.W.1.

P.W.2
suspicious that his gun might have been the one used to perpetrate
the crime told me that he went to the accused at the Lesotho
Freight
Services to retrieve it from him on 7.11.85.

The gun
was duly handed over to him by the accused. It however did not have
the number of bullets it had had when first handed over
to him for
safe keeping. Only two live bullets out of the previous seven were
handed over along with the gun to P.W.2.

Asked
where the rest of the bullets were the accused is said to have said
that he had them elsewhere and that he would produce them
in due
course.

P.W.2
said he did not believe his suspicion that his gun had been misused.
That is why he did not take the gun to the police after
retrieving it
from the accused.

It would
appear that P.W.2 is not accurate concerning the date that he says he
retrieved the gun from the accused on.

There is
incontrovertible evidence that on 7.11.85 the accused was already in
detention having been in police custody from the date
of his arrest
on 5.11.85. Nohow therefore could he have been at the Lesotho Freight
Services, the place of his employment on that
day.

In short
P.W.2 took the gun to his place and placed it hidden and unloaded
back into the kitchen unit. He

23

hid Che
two live bullets somewhere under the carpet in the house. Thus
rendered it ineffective even if it were to fall into his
sister's
hands for ill motives.

Under
re-examination P.W.2 indicated that the manner in which he was asked
questions at P.E. differed from the manner questiions
were asked in
this court. He further stated that he was questioned for a very brief
period by the prosecutor who was leading him
then. He further stated
that the accused when handing the gun back to him had undertaken to
bring back the other five bullets from
where he stayed. However
though he was at the time staying at Lithabaneng the accused
nevertheless did not bring them.

P.W.2
said he did not get an opportunity to ask when the accused would
bring back the other five bullets for on 9.11.35 he came
to Motimpcso
at P.W.2's place in the company of police investigators.

P.W.2 was
adamant that before Che accused asked him to produce the family gun
he had not discussed Che question of that gun with
the police, either
at T.Y. or at Motimposo.

He
conceded though Chat Mpopo and Mokhele the two policemen spoke about
the gun but only after the accused had introduced that topic
about
the gun. He also conceded that he has related more things in his
evidence in chief in this court than he did at P.E.

This
witness is abundantly corroborated in his concession that more things
were asked of him in his evidence in chief today than
in the lower
court. For instance with a view to finding cut how the deceased could
have fared in a man to man fight with the accused
the court asked
this witness how the deceased looked physically and the answer which
does nt appear in the P.E. record was that
"He was a good
looking guy. Well built physically and of medium size."

24

Confronted
with the fact that things were closer to the event then than they are
now he said he had more time to prepare and reflect
on them in the
mean­time. However I am satisfied that the fact of the matter is
that P.W.2 was asked to give more details today
than was the case at
P.E. The only point where he faultered, as it indeed even did escape
the keen attention of the learned counsel
for the Crown, is the date
when he purportedly retrieved the gun from the accused. In argument
this discrepancy-was not exploited
by the other side nor was the
witness asked to explain it. The submission by the crown seems
legitimate that this was obviously
a mistake. It would seem therefore
that P.W.2 retrieved the gun before the accused's arrest.

The
question of the accused's conduct when asked by P.W.2 why he did what
he said he did - that he bent his head and said nothing
has a
parallel in the well-known authority of Jacobs vs Henning 1927 T.P.D.
324.

Referring
to the same authority Hoffmann in Che 2nd edition of South African
Law of Evidence at p. 143 says:-

"Thus in Jacobs vs Henning the plaintiff's father met the
defendant and accused him of being Che cause of the girl's pregnancy,

at which the defendant lowered his head and made no reply. Tindall,
J. said:-

In my opinion, an innocent man, however un­assertive he might be,
would deny the charge as soon as the plaintiff's father made
it.'"

I have no
doubt in my mind that P.W.2 stood the cross-examination well. Some
importance is Co be attributed to the fact that he
said apart from
him and the accused noone else knew about the movements of the gun
Ex."1".

P.W.5
gave his evidence in connection with the tests Chat he undertook to
determine whether Ex.2 were ejected from Ex."1"
when it was
fired. I am

25

satisfied
that his evidence left no doubt Chat this was so. Much of the
cross-examination to which he was subjected was devoted
at
questioning his qualification to holding himself out as an expert in
this regard and the consequent reliability of the results
of his
tests in the event that he was shown to be an inexperienced or only
an amateurish tiro in his professed field.

He has
been a member of the police force for up­wards of 12 years. He is
attached to Che ballistic section of the Police Technical
Service
Department. He was trained as a firearms examiner in the Republic of
Ireland. Before then he trained as a Laboratory Technician.
His total
qualifications consist of a certificate in Laboratory Technology and
a certificate in firearms examination. The thrust
of his evidence was
that no two firearms can leave identical marks or impressions on
cartridges fired from them.

His
experience in the field as a qualified examiner as at the time he
conducted tests in this case was admittedly minimal, having

previously dealt with only one case. However his overall experience
gained from his training and the manner he conducted tests
in the
instant case leave me in no doubt Chat they admit of no error.

Of
importance is that it is today common knowledge that no two
individuals dead or alive have exactly identical sets of finger
prints. On the back of this Hatcher in his book referred to earlier
says at p. 377:-

"No two bullets from different barrels ever are similarly
marked. We cannot say this after exa­mining all the bullets
in
the world, any more than the Fingerprint Expert can say from actual
experience that no two sets of fingerprints are ever identical.

However, bullets are even more variable in their characteristics than

fingerprints."

26

It was
testified by P.W.5 that the range of Ex.1 is 40 metres. He also said
that entry wounds are usually smaller than exit wounds
irrespective
of the range from which the gun has been fired. He further stated
that in order for a fired shot to exit from a human
body, it would
depend what part of the body is hit for if the bullet hits a bone it
may change direction and lose power of further
penetration and thus
remain in there. But if fired at soft flesh the shot will penetrate
and exit on the other side. P.W.5's evidence
was largely scientific.
It held the court spell-bound. Even though he stood in solitary
isolation in this court as a man who had
some training in ballistics,
the quality of his evidence however showed that the description of a
mere Triton among the minnows
would not sit well on him. As I said
earlier the evidence of this witness is so satisfactory that it is
accepted in its entirety.

P.W.8
Sekonyela Ramaqabe who was utterly at a loss regarding dates when
matters he testified to occurred, and who further compounded
this
particular defect in his testimony by denying that he gave evidence
before a magistrate at the preparatory examination of
this case told
me that he has read only up to standard 1. He told me he was
notorious for forgetfulness and attributes this handicap
to motor
accident which he was involved in.

However
he said there are things which he remembers perfectly well even if
their occurrence is further removed from the date he
related them at
T.Y. than today in this court.

He told
me he knows the accused. Further that the accused is his
brother-in-law. P.W.8 lives at Tsikoane in the Leribe district.

He said
that the accused called at his place some time in 1985 towards the
end of October. The accused

arrived
there at about 9 p.m. driving a white

27

Mercedes
Benz Truck.

P.W.8
only remembers that there was a letter "A" preceding the
registration numbers of this truck. He does not know if
the accused
owned a truck. However he knows that the accused has a white Toyota
van.

The
accused came to P.W.8's home, blew his hooter and the latter saw
through the window that there was a truck outside. P.W.8 went
outside
and recognised his brother-in-law; the accused.

The
accused told him; "Brother-in-law this vehicle is about empty of
fuel. 1 have thus come to leave it here."

The
accused didn't say where he came from nor did P.W.8 inquire of him
about that. The accused was alone when he thus arrived.

After
leaving the truck there the accused went towards a vehicle parked
some 80 to 90 paces away from P.W.8's homestead.

P.W.8 did
not bother to see what this vehicle was that was parked at the
T-junction 80 to 90 paces away, moreso because it was raining

heavily. However the vehicle locked to be a kombi. The accused didn't
say in whose company he was save that the kombi had escorted
him.

The path
leading from where the kombi was parked to P.W.8's home was slippery
but notwithstanding that it was so, P.W.8 said it
was nonetheless
usable even granting that the truck had made it somewhat more
slippery. P.W.8 has a vehicle himself and usually
drives it on that
path even though it is slippery.

Prior to
the accused's coming there on that night he had only come there
driving a van a long time before and it was not raining.

When the
accused left P.W.8 with the truck it was

28

raining
heavily but he nonetheless braved that heavy down pour and made for
the kombi parked 80 to 90 paces away, P.W.8 fearing
that he himself
would get soaked didn't ask why then the kombi couldn't come to
rescue the accused from the rain yet the accused
had said this kombi
was escorting him. The accused was not putting on any rain cloths
though.

The
following day the accused having collected the fuel for the truck
came alone in his Toyota van. He filled the tank with some
diesel and
started the truck.

He then
asked P.W.8 to accompany him to his parental home at Hleoheng near
Hlotse so that the latter could help him remove the buck
of the truck
as he wanted to convert it into an improvised bus.

However
P.W.8 declined to accompany Che accused as requested. The accused
then asked P.W.8 if he could think of a spot outside the
village
where the buck of the truck could be removed.

The spot
was located. Boys came and helped the two remove the buck outside Che
village. This having been accomplished the buck was
left there and
Che truck driven to P.W.8's home in a cab and chassis form by the
accused.

The
accused said the truck was his and that he was leaving it at P.W.8's
home. He further said he would come and fetch it for purposes
of
mounting the improvised body for a bus next time since P.W.8 failed
to accompany him for Che purpose to Hleoheng.

The
accused left the truck there and drove away in the van. His promise
to come and collect the truck never materialised.

Indeed a
week even passed after the promised day of his return. Then P.W.8
learnt that police had come to

29

his home
in his Absence in connection with this truck. Be it remembered that
P.W.12 said he proceeded to Tsikoane on 11.11.85 to
fetch this truck;
and that it was on Chat day that he asked P.W.8 to drive it to
Hlotse.

P.W.8
when coming back from his errands and on learning that the police had
left a message for him not to leave his home on a certain
date,
complied. It can safely be inferred from this then that the date in
question was 11.11.85.

On that
day the truck was driven to Hlotse. P.W.8 was in the company of two
police who had come Co fetch the truck from his home.
They were
escorted by other police in meroon four-wheel-drive van to Hlotse.
The truck was parked at the Hlotse Police Station.

Police
then drove P.W.8 in their vehicle to T.Y. where he spent the day.

The
following day he made a statement to them. He was confronted with the
accused and they both admitted knowing each other. Thereafter
P.W.8
was released to go home.

Under
cross examination P.W.8 was told that at P.E. he said the accused
came to his home in November but to­day he said it was
in
October. He replied that the Crown Counsel had said it could have
been in October or November whereas he himself thought it
could have
been in September. P.W.8 insisted that the accused when he came back
the following day after leaving the truck at his
home was driving a
Toyota van bearing the letter "A" as against "D"
in front of the registration numbers.

He
admitted not having told the magistrate that it was raining heavily
on the day the accused left the truck at his home. His explanation
is
that he had forgotten about the heavy down pour.

30

Asked to
account for the fact that he remembers today what he had forgotten at
P.E. when his testimony was closer to the events
he was testifying to
he said

"it does happen that as you recall things gradually there would
be those which you find had occurred but you had forgotten
but only
to remember them now."

He
testified that visibility extended only as far as 15 to 20 paces that
night.

Asked how
then he could have seen a kombi parked 80 to go paces away he said
the courtesy light inside it showed that it was a kombi.
He went on
in his explanation:

"that distinguishes between a big and a small vehicle."

Asked to
explain why the accused could have braved the heavy rain despite
having the escorting kombi in tow, he said "I am
still asking
myself why it did not reach my, home."

Asked to
account for the fact that despite his insistence that he had
previously made mention of the fact that there was a kombi
in that
vicinity such a statement does not appear in the P.E. record he said
he made only one statement; and it was before the
T.Y. police. He
said he doesn't remember repeating such a statement anywhere else.

"Is
this the first time you remember giving evidence before a court of
law today apart from the police - ?

I
remember so.

There is
a P.E. record here today. In it you are shown as having given
evidence before a magistrate - ?

I was
called with my mother to the office. I never gave evidence in court.

In that
office did you give evidence presided over by a magistrate - ?

We were
that day told of the hearing date and given our allowances."

31

Under
re-examination P.W.8 told the court that prior to the night the
accused came driving a truck in a heavy rain fall the accused
had
never come there during the night of a heavy rainfall; nor did he
come on any subsequent occasions at night driving a truck
in heavy
rains.

He also
said he remembered giving evidence only before the police at T.Y. and
that what he told them is substantially the same as
what he told this
court, although he has been asked certain other things here under
cross-examintion including what he said he
was told outside court. If
anything this last bit serves to highlight the degree of his naivety.

P.W.8
told me his accident which apparently affected his memory occured in
1979. As a result of it he told me he even passed out
and only came
to in Hospital in the Republic. The accident is said to have occurred
at Hielbron.

He
however said the statement he remembers giving before the police was
a sworn statement.

P.W.11
Malineo Ramaqabe is P.W.8's mother. The accused is her son-in-law.
She lives at Tsikoane.

She
corroborates P.W.8's evidence that it was raining heavily when a
truck came to her forecourt at night on an unremembered date
in
October, she however recalls that it was during the end of the month.
She further said "I don't remember what day of the
week it was.
It was the end."

She also
said the accused did not put up at her place. Nor did the truck
leave.

The
following day the accused arrived in the morning.

P.W.11
corroborates P.W.8's evidence that the accused had a van in which he
arrived that morning.

32

The truck
was driven away by the accused. When it came back it was no longer
having a buck mounted on its chassis.

The
accused left the truck at P.W.11's home, and drove away in the van.
She says he didn't even greet her when during these two
occasions he
saw her at her place on that day. Before then on the occasions he
used to come there he usually greeted her and come
into her house.
She however did not ask him about this strange attitude.

During
the second week of the accused's departure police came. Since the
accused's departure and before the arrival of the police
the accused
had not set foot at P.W 11's home. On the day the police arrived
P.W.8 was absent from home. P.W.11 told him that police
had been
there.

Then the
following day which according to P.W.12 was 11.11.85 the police
collected both Che truck and P.W.8. The truck was driven
by P.W.8
whom P.W.11 had never seen driving a truck before. P.W.8 usually
drives P.W.11's husband's van.

The
police that came there that day according to P.W.11 were P.M.12 and
P.W.6 Mokhele and Lelala res­pectively.

P.W.8
arrived back home at Tsikoane after three days of his departure in
the company of the police who had come to fetch the truck.

P.W.11
told the court that she is now aware that P.W.8 is a forgetful
person. She regarded herself as the one who is forgetful.
Her
evidence however showed the contrary at least in so far as material
issues are concerned.

Under
cross-examination she said she did not remember at P.E. being asked
if it was raining heavily on the day in question. But
she remembers
distinctly that it was.

33

She said
Chat when Che accused arrived the follo­wing day P.W.8 was not
present. When told that P.W.8 said he was present she
explained that
she might have not been at the actual spot herself because she keeps
two places which are far apart. These are her
own house and one of
the houses belonging to her parents-in-law. She occupies these places
on an alternate basis; meaning that
when the truck arrived she was at
her in-laws place sleeping in there. Her in-laws are no longer
living.

Contrary
to what P.W.8 said P.W.11 said that on the following day when the
accused arrived he was with some stranger.

There is
also the discrepancy between P.W.8's and P.W.11's evidence. P.W.8
said he was present when the accused arrived that morning
but P.W.11
says P.W.8 was not there. Further that when he drove away and came
back with the truck without a buck P.W.8 was not
there. But P.W.8
said he was actually with the accused when going to dismount the buck
and coming back after that.

However
P.W.11 conceded that she may have forgotten for these things happened
a long time ago.

P.W.8
told me he gave evidence before a female member of the police. I see
on P.E. record that he gave it before Mr. Motinyane the
magistrate.
At the same time I observe with regret that the P.E. was conducted by
no fewer than three different magistrates. One
of them is a lady
magistrate. I should not be understood to say it is regrettable that
she conducted the P.E. though. All I am
trying to say is that this
may well account further for the confusion that P.W.8 seemed to have
laboured under in regard to questions
put to him in an endeavour to
establish if he was aware what the sex of the magistrate who
conducted the P.E. was. It appears on
P.E. record that P.W.8's
mother's evidence was taken

34

by a lady
magistrate Mrs Machaha. Be it remembered that P.W.8 and P.W.11 said
they responded to the subpoena together and waited
for each other
after their evidence was taken at P.E.

P.W.9
Senekane Raliile testified that he resides at Motimposo, Maseru. He
is a businessman and knows the accused whose mother is
P.W.9's aunt.

P.W.9
knew the deceased also. He knew him from the time when the deceased
and he used to live in Germiston together. The deceased
was his
employee driving his trucks from Lesotho to Germiston and back
conveying goods and groceries for P.W.9's shop in Lesotho.
He
actually brought the deceasded to Lesotho and in this respect
regarded him as his own son.

Shortly
before he died the deceased had vehicles of his own; namely a Jaguar
car and a 1417 Mercedes Benz Truck. The truck was white,
had a buck
and is described in commercial language as drop-side type.

The
deceased used to park this truck at P.W.9's place at Motimposo.

When
P.W.9 left Motimposo for Germiston on a Friday in October the truck
was still parked at his home. (It would seem according
to
calculations this was on 25.10.85).

The
deceased had intimated to P.W.9 that he intended disposing of this
truck by sale.

Further
that the accused had secured him a buyer for it. The deceased had
told P.W.9 that the accused and he intended going to T.Y.
either the
following day i.e. a Saturday or Sunday to have the truck sold. The
prospective buyer was supposed to be at T.Y.

It was
part of the arrangement between P.W.9 and the deceased that the
deceased should meet P.W.9 in Germiston on the Monday following
the
prospective sale of Che truck. However the deceased never came to
P.W.9 in Germiston.

35

P.W.9
learnt on a Tuesday that the deceased had died. Then he proceeded
from Germiston to Lesotho either on Wednesday or Thursday.
He
ultimately went to T.Y. where he also identified the body of the
deceased. Then he went to the police who had called him to
T.Y.
police station. They took him to Hlotse Charge Office where he found
the same Mercedes Benz truck which he knew parked at
Hlotse Police
Station.

A word of
caution here. Be it remembered that the truck was only brought to
Hlotse police station on 11.11.85 according to P.W.12.
Be it
remembered also that P.W.2 only knew for certain that deceased had
died between 31.10.85 when he heard of the description
answering the
identity of the deceased and 1.11.85 when he positively identified
the dead body at T.Y. mortuary. These factors
taken along with
P.W.9's reply to a question put by one of the gentlemen assessors
that he learnt from P.W.2 on a Tuesday following
the Monday of the
aborted meeting between P.W.9 and the deceased in Germiston, would
tend to show that P.W.9's recollection of
the dates is inaccurate. If
the Tuesday that immediately followed his parting with the deceased
is 29.10.85 (and I can think of
no other) how could P.W.9 have learnt
of deceased's death on that day from P.W.2 who only knew of that
death two or three days
after it?

It is not
clear though, how long the deceased's body remained at the T.Y.
mortuary.

However I
entertain no doubt that P.W.9 saw it at the T.Y. mortuary. But it
seems it was much later than the dates which the purport
of his
evidence tends to convey. I am fortified to this end by the fact that
he said the body was already decomposing and smelly
hence he could
not examine it as closely as he would have desired. Whereas other
witnesses who saw it between 1st November and
3rd November had no
complaint about the stench of the body. Moreover in his evidence
P.W.9 makes no break between his identification
of the body and his
setting out for

36

Hlotse
Police Station where he identified the truck without the buck.

Even at
the cost of precious time I wish to repeat and emphasise the point by
reference to his evidence in chief, viz:

"I identified the deceased's body. I went to the police who had
called me to T.Y. police station. They took me to Hlotse Charge

Office. I found the same mercedes benz truck which I knew at Hlotse
police station."

It should
be borne in mind that the truck was brought there only on 11.11.85
hence P.W.9 couldn't have seen it there before that
date. Furthermore
Che above extract from his evidence implies that the events he
relates i.e. identifying the body and the truck
constituted a
continuous occurrence.

Barring
these discrepancies as to the date I have no doubt concerning P.W.9's
identity of the truck and its buck.

Moreover
it had been suggested to him that the truck he identified at Hlotse
was different from the one parked at his place for
the latter had not
"budged" from his place. But credible evidence showed that
it had not only budged but had had its
buck stripped from it at one
stage way cut near P.W.8's village at Tsikoane. The same truck was
identified by P.W.9 at P.E. as
the one that the deceased had parked
at P.W.9's place.

Bearing
in mind Chat both P.M.2 and P.W.9 are related to the accused and no
hostility surfaced as likely to have affected their
relations with
Che accused,the words of Schutz P. in C. of A. (CRI) No. 3 of 1984
Thebe vs Rex (unreported) at p. 20 are worthy
of mention, namely:-

"To my mind the evidence should be accepted as true. It is very
difficult to believe that the witness

37

would have fabricated this story against his own cousin to whom he
bore no hostility."

It is
also noteworthy that after confessing to the court that he
deliberately withheld the information that the deceased had placed

M10,000 on that truck as its prospective sale value he divulged that
information.

P.W.6
Michael Matsai gave evidence which showed that he was the one who
found Che deceased and the accused seated in the accused's
van
drinking beer near the Blue Moutain Inn at T.Y.. He observed that
they were engaged in a hearty conversation. It was around
6 p.m. when
he came next to the van and leaned against its door to greet the
occupants who were in its cab. He did not know if
the two were
friends but, had seen them walking together on at least four previous
occasions.

P.W.6
went into the hotel leaving these two seated in the accused's van.
When he came cut of the hotel on his way home at around
7 p.m. on
Chat day he didn't see any of them, nor the van in which they had
been seated.

Although
P.W.6 is not sure of the date, he remembers that this was during a
weekend in October. He does not remember the year either.
But of
significance is that some five days or so thereafter he learnt that
the deceased had died.

It is
P.W.6 who, even though he hod known that P.W.2 had intimated to him
that he was looking for the deceased, did not inform P.W.2
with whom
he was at Lake Side Hotel that from a conversation held by some
people four paces away from where he was, he overheard
them say that
the deceased was found dead somewhere. He however stated that due to
P.W.2's proximity to those casual conver­sationists
P.W.2 might
also have heard the sad news.

P.W.6's
failure to confirm that P.W.2 had heard the startling news was based
on the fact that he was staying

38

far in
the mountains and because it had been raining heavily the roads were
very bad.

The
startling thing about P.W.6's evidence is that in answer to the
following question

"you stayed for two hours after hearing the startling news
without telling P.W.2 notwith- standing that you feared that the

roads were bad - ?"

he
replied that

"Well when I heard the startling news P.W.2 was not there".

Then came
the following :

"But did I hear you properly in answer to gentleman assessor's
question to say when you heard report of this news P.W.2 was
present
- ?

May be I didn't hear properly. The truth is that P.W.2 was absent
when I learnt that the deceased had died."

If indeed
this is the position one wonders what becomes of this witness's
elaborate and factual picture he painted of the scene
where the
following is revealed in his evidence under cross-examination :-

"You
said you later learnt after three days or so at Lake Side that
deceased had died - ?

True.

Where was
P.W.2 - ?

I was
with him at Lake Side Hotel.

Could
P.W.2 have heard - ?

He could
have heard. The voice was loud. He was only four paces away from me.

Was it
before or after he said he was locking for the deceased - ?

I don't
remember.

Did you
approach him about the startling information

39

you had
heard - ?

No.

(Court)
Did it startle you - ?

Yes.

(D.C.)
Why did you not approach him in view of the

fact that
.... he was looking for the deceased - ?

He asked
where I had seen deceased last. I said at T.Y."

Whatever
the case may be the upshot of this witness's evidence is that he was
the last man who saw the last man who was with the
deceased before
the latter was found dead the following day i.e. 28.10.85.

P.W.3
Detective Trooper Lelala's evidence supports that of P.W.12 as to the
events which took place at Tsikoane on 11.11.85 and
at Hlotse later
that day. He is the one who clarified the position by stating that
whereas P.W.8 initially drove the Mercedes Benz
he failed to maneuver
it properly. Consequently P.W.12 took over after some estimated
distance of 200 metres. P.W.12 had said he
had driven it all the way.
His lapse of memory in this regard is pardonable. P.W.8 said he
himself drove it all the way. His mother
carries modesty to excess
when she holds her son's memory in higher esteem than hers.

P.W.3
also supports P.W.9's evidence as to trips which were taken the
following day between T.Y. and Tsikoane for purposes of collecting

the buck from outside the Tsikoane vilage. That is 12.11.85.

This is
the witness who handed in the truck as exhibit before the court
below.

His
evidence is important in that he maintained contact with this truck
and focused his gaze on it at three different places i.e.
at Tsikoane
where it had been left without a buck; at Hlotse where it was brought
and taken back to Tsikoane to have the buck mounted;
at

40

T.Y.
where he ultimately handed it in as an exhibit.

His
evidence is important in that his contact with the truck ensures that
the truck that was exhibited is the same one that he had
seen in the
various places. This evidence is important standing as it does in
stark contrast with that of the accused who wanted
this court to
entertain doubts that the truck that was exhibited was merely similar
to the one which had remained parked without
a "budge" from
P.W.9's home. The accused further wanted the court to entertain
doubts that the truck that was exhibited
at T.Y. was only similar to
the one that he left parked at P.W.8's home.

It is
common cause that P.W.3's evidence in this court is more detailed
than that which he gave in the court below. His explanation
for this
is most satisfactory; namely that the public prosecutor in that court
did not lead him on finer details of what he otherwise
knows. It is
for this reason that he did not tell the court below that he was
among the party who went to P.W.2's home at Motimposo
on 9.11.85.

This is
the summary of the crown evidence at the end of which an application
for the discharge of the accused was made but turned
down on two
grounds :-

First
that on the basis of the ruling in R vs Herholdt and 3 Others 1956(2)
SA. the test to be applied in deciding either to grant
such an
application or refuse it consists in the view that if attendant
circumstances

"might be such that a failure of justice could possibly result
if an accused person were to be discharged at the close of
the
prosecution even though (the prosecution) has failed to present a
necessary degree of evidence"

the
application should be refused. Next that :-

"... the test to be applied in an application of the present
nature is not, whether there is evidence upon which a reasonable
man
should

42

appear he had met this stranger at the deceased's forecourt.

Asked where he met the stranger the accused said

"I explained that after parking my vehicle in front of the
deceased's house I got into the deceased's house with him."

"The way you explained it I took it that it was in the forecourt
-?

I said it was in front of the house for I even said it was as far as
that table (i.e. estimated as 5 - 6 paces)

(the accused was in apparent agony and took an unduly long time
before giving this estimate).

You heard P.W.7 give evidence -?

I did.

She said you came in the same vehicle with the stranger -?

She has to say that because we got in together into deceased's house.

The witness did not say she supposed you came together with the
stranger. She positively said you came driving in the same vehicle

with the stranger -?

I don't deny she said that.

Nor do You deny the correctness of her statement - ?

That I came along with him in my vehicle I deny.

... Yet this witness was never challenged under cross examination - ?

It is true but when I arrived P.W.7 was in the house not outside. So
she didn't see when I arrived in the vehicle.

Why didn't you gainsay her on that aspect when she gave evidence - ?

I didn't get the chance for I was still in that dock.

What's the role of my learned friend on my left hand side - ?

He is my counsel.

Then your saying that you didn't have the chance is neither here nor
there, for you should have told him

43

your own
side of the story - ?

I didn't
know that if someone lies about me I have to call him to say that the
witness is not telling the truth ......."

The
accused answered that his counsel is compei-tent; and 1 fully agree
with him. For this reason it becomes doubtful if his counsel
would
not have challenged P.W.7's version on behalf of the accused if the
accused's version before this court were true. It is
also to be
wondered why a distance a fifth or sixth pace away from Che front
wall of Che deceased's house should not be regarded
as part of the
deceased's forecourt.

In his
evidence in chief the accused proceeded to say that from the
deceased's home the three of them left for T.Y. hotel via Motimposo

to check on P.W.2 who apparently was absent. They reached T.Y. at
2.00 p.m.

On
arrival at T.Y. they remained in the accused's van for a while before
the deceased asked the stranger to go and buy beer for
the accused
and the deceased.

The
stranger who had been given money for the purchase of beer handed a
dozen cans of beer to Che two who had remained in the van.
The
stranger went back to the hotel while the two remained drinking the
beer.

The
deceased alighted from the van after the stranger had deposited the
purchase of beer in the cab. The deceased and the stranger
went into
the hotel. But before the deceased went into the hotel P.W.6 had
found Che accused and the deceased seated in Che van
and drinking.

After the
deceased had gone into the hotel the accused says he left in his van
to fill in petrol about one kilometre or two away.

41

convict, but, whether the evidence presented by the prosecution is
such that a reasonable man, acting carefully, might properly

convict."

That
application failed to meet either of the tests re­ferred to
above, hence was refused.

The
accused then gave evidence in his own defence.

By way of
introduction to the accused's testi­mony it is important to
mention that during the course of his evidence the accused
revealed
that the deceased used to deal in stolen vehicles. Despite the
accused's knowledge that this was the position he told
the court that
he nonetheless bought the mercedes benz truck from the deceased. He
did not bother to report these illicit transactions
to the proper
authority because the police to whom the deceased was used knew of
this practice. It never occurred to the accused
to report to the
other police whom the deceased was not used to.

The
accused told the court that he is 28 years of age; and that he is a
licensed lorry driver.

On a
Saturday either in October or November 1985 the accused met the
deceased who asked him to accompany him to T.Y. where the deceased

had told the accused that he was due to meet someone who was
interested in buying the deceased's truck.

The
accused and the deceased left for T.Y. in the company of a stranger
who appeared familiar to the deceased.

On page
125 of my notes on the accused's evidence he is recorded as having
said

"I met this unknown man on my way to the deceased's place. He
was next to the deceased's home. He asked if I was going to
the
deceased's home. I said yes. So we proceeded together to the
deceased's home."

The
distance where the stranger was from the deceased's home when the
accused met him was estimated at 5 to 6 paces. Yet the accused

vehemently denied that it would

44

The
accused then returned after some thirty minutes and remained in the
vehicle hoping that the stranger and the deceased would
come back to
him in the vehicle where he had parked. He stayed for a long time in
that van till he decided to enter the hotel looking
for them but to
no avail.

He then
sat down and took some beer drinks. He no longer saw P.W.6 in the
hotel. The accused remained there until 11.00 p.m. when
he realised
that the deceased and the stranger could not possibly still be in the
hotel hence left for Maseru in his van.

The
following day (i.e. Monday) the accused left early for Mohale's Hoek
where he was to make some deliveries in the Lesotho Freight
Services
lorry. He didn't return till Tuesday the following day.

He
explained that the Lesotho Freight Services trucks one of which he
drove, are not allowed to go anywhere besides where they are
assigned
to go.

The
accused never saw the deceased again after parting with him at T.Y.
He got to know about his death when he went to T.Y. under
arrest. He
was informed of this by P.W.I, The accused was arrested at his place
of work by P.W.1 in company of some two other policemen.

P.W.I
took the accused to T.Y. while the other two policemen remained at
the Maseru Central Charge office.

When he
and P.W.I came to T.Y. P.W.1 asked the accused if he knew Thami. The
accused said he did. P.W.12 and P.W.3 were present
together with some
other policemen at this stage.

The
accused was asked where Thami was. He replied that he didn't know.
Further questioning revealed that the accused and the deceased
were
last together at T.Y. hotel and that the accused saw the deceased and
the stranger get into the hotel there.

45

P.W.1
asked the accused if he knew Thami was dead. When the accused replied
that he didn't, P.W.12 said to him that he hod not yet
told Che truth
and that he was yet to tell it.

After a
short break for the day meal the police resumed the earlier
questioning. When the same answers were given the police then
ordered
the accused to lie face down on a bench and assaulted him. The
accused said he was assaulted to Che extent that he was
unable to
walk. When he asked P.W.12 Co allow him to consult a medical doctor
P.W.12 said he would shoot him if he could learn
that the accused saw
a doctor at all.

Then
P.W.1 said the accused should admit that he had killed the deceased
for then the police would pardon him.

P.W.1
went further to tell the accused that he had learnt from P.W.2 that
it was Che accused who had killed Che deceased. Nonetheless
Che
accused denied this allegation.

I need
but at this stage just observe Chat it was never put to P.W.12 when
he gave his evidence Chat he at any stage threatened
to shoot the
accused if he consulted a doctor about the alleged assaults. I have
earlier dealt with P.W.12's reaction to the charge
that he
parti­cipated in Che assaults on the accused.

Then a
somewhat curious and rather incomprehensible statement was made by
the accused allegedly being the answer he gave to P.W.I
when P.W.1
alluded to the fact that Che information that the accused had killed
the deceased was obtained from P.W.2.

The
statement goes:-

"I told Mpopo that I didn't have any gun. Maybe the person who
Cold him that is P.W.2 for he is the one who owns a gun."

46

The
accused's tale proceeds that thereafter he was taken from T.Y. to
Motimposo and he thinks that it was on the following day which
he
reckons was a Wednesday. But incontrovertible evidence by P.W.12
P.W.2 and other witnesses shows that the trip from T.Y. to
Motimposo
was undertaken on Saturday 9.11.85.

When the
party came to P.W.2's home at Motimposo, P.W.I and some other man
said to the accused that he should tell that man meaning
P.W.2 to
produce a gun. The accused complied with the instruction. P.W.2
produced a gun and handed it to P.W.1. The accused didn't
know this
gun. The accused denies that P.W.I asked him if that was the gun. He
denies that he admitted it to have been the one
when P.W.2 handed it
to P.W.1.

The
accused denies that P.W.2 ever gave that gun to him to hide from
P.W.2's worrying sister.

He denies
that the gun was fetched from him after the owner suspected that it
had been used for some unlawful purpose. He denies
that he was ever
questioned about the five missing bullets nor that he under­took
to return them as he had left them at home.
In his evidence in chief
the accused said they were friends with the deceased. But at
paragraph 6 of his affidavit in CRI/APN/243/85
Sehlabaka vs Rex (a
bail application) the accused said that he (the petitioner then) and
the deceased were used to each other but
not friends. The accused's
attempt at reconciling these starkly conflicting statements given by
him both under oath to this court
at different times was a pathetic
welter of meaningless verbiage. See page 157 of my notes. Contrast
with 131.

The
accused said the deceased had motor vehicles namely a Jaguar car and
three Mercedes Benz trucks.

Despite
his denials that P.W.2 ever gave the gun to him and later fetched it
from him with only two bullets

47

cut of
Che seven which P.W.2 said he had given to him it was never put Co
P.W.2 that his allegations Co that effect were false.
The accused
acknowledged that P.W.2's evidence in this regard was not gainsaid
but nonetheles wishes the court to reject it in
favour of his own
fresh version of denials.

I may
just make it plain that the court's credit to a witness's testimony
is never given cut with Che rations. Hence the court cannot
therefore
say ditto to a submission seeking all Che same to support the
accused's wish.

It will
be remembered in this connection that the court had to read back Che
entire evidence of P.M.2 under cross-examination and
at Che end of it
all Che purported challenge to P.W.2's statement was found
conspicuously wanting. Asked Co account for this painful
hollow in
his defence Che accused embarked on a pitiable exercise in evasion.

The
accused admits as true the evidence that he was seen at Tsikoane
driving a Mercedes Benz truck.

He goes
further to say when he left for T.Y. with Che deceased and the
stranger he had had this truck for two weeks . He had bought
it for
M7,000 from the deceased and had already paid M4,000 in the
transaction.

He also
said that when he left for T.Y. he had already left this truck at
Tsikoane for about two weeks.

Under
cross examination he admitted that it is possible he could have
bought this truck around 13th or 14th October 1985.

The
accused is adamant though that when the deceased died i.e. around
27th or 28th October 1985 Che truck had already been at Tsikoane
for
two weeks.

But
incontrovertible evidence shows that the truck

48

was
fetched from Tsikoane on 11.11.85. Further evidence shows that by
that date the truck was enduring the second week of the duration
of
its stay there. Calculating backwards two weeks from 11.11.85 it
would seem the first week of the truck's stay at Tsikoane could
not
have been far earlier if at all than 28.10.85. Regard should also be
had to the fact that on 26th October 1985 P.W.9 had left
it still
parked in his yard at Motimposo. Further that on 27.10.85 when the
accused and the deceased left for T.Y. the truck had
not "budged"
from P.W.9's place.

It is
palpably false therefore to say this truck had been at Tsikoane two
weeks before the accused and the deceased set out for
T.Y. on
27.10.85.

But is it
the same truck?

The
argument has merit that the accused was not obliged to challenge
P.W.12's evidence that P.W.9 identified the truck as the deceased's

because P.W.12's statement to that effect was in the nature of
hearsay. However in his turn P.W.9 positively identified it.

But again
is it the same truck? The following will show it is. At page 171 of
my notes it appears that the accused admits that he
is the only one
who speaks about the deceased having had three trucks; namely

1. the
   one that used to be parked at P.W.9's place;

   
   

2. the
   one sold to Khotso at Mohale's Hoek and

   
   

3. the
   one the accused says he bought.

   
   

He admits
that if the deceased had three trucks P.W.2 and P.W.9 would know.

The
verbatim account will help clarify the issue therefore :

"If
deceased owned 3 trucks P.W.2 and P.W.9 would know - ?

49

They know
them very well.

P.W.9
only talks about a truck the deceased was running and it was
identified by him to the police. The other is the one the deceased

had sold to Khotso in Mohale's Hoek - ?

He said
so.

Can you
say why P.W.9 subtracts one and says the deceased had only two trucks
- ?

I know
the one I bought, another that was sold to Khotso and the other one
that the deceased ran.

(It
should be clear that once more in this answer the accused manifests
his persistence in giving evasive answers).

You
forgot the one that you said was left at P.W.9's place - ?

I can't
say if it is the one at (T.Y.) Charge Office.

Are you
not somersaulting now - ? No.

I thought
you said the truck left at P.W.9's place never 'budged' from there -
?

I said I
didn't know if it moved from there for I have not gone there since.

And you
knew it - ? Yes.

Why then
wouldn't you be able to identify it at Charge Office as a truck that
you left when you and deceased went to T.Y. -?

I saw a
truck similar to the one left at P.W.9's place.

Why then
when I asked if the truck at P.W.9's place had moved, didn't you say:
'I saw a si­milar one at the Charge Office -
Similar to that I
left at P.W.9's' - ?

I saw one
similar at Charge Office. (Question Repeated - ?

It didn't
occur to me to say so."

In his
haverings and evasions the accused is hard put to it to deny that he
has now forgotten the truck which he said was left parked
at P.W.9's
place. This truck would bring the total of the trucks he mentioned to
four. Be it remembered that the one he says he
bought

50

from the
deceased he mentioned used to be parked at Masianokeng - hence P.W.9
or anybody would not know about it.

I should
mention here that the court was informed from the bar that this truck
was released by order of the High Court to the purported
owner from
the Republic of South Africa. Unfortunate as that seems to be it does
not seem to affect the identity of this truck
because the various
places it was taken to provide an unbroken silver thread through
evidence before me.

Finding
that he has hopelessly entangled himself in a web of lies of his own
making he impliedly admits that the truck parked at
P.W.9's had
"budged" from its parking place by saying

"I
can't say if it is the one at the charge office.

But it is
now known that the one at charge office is the one that was once at
Tsikoane driven there by the accused and later brought
to Hlotse
Charge Office by P.W.8 and P.W.12; then ultimately to T.Y. Charge
Office by P.W.3, P.W.9 and another policeman..

Meantime
the accused denies, even in the face of this admission forced on him
by very rational and logical questioning by Crown
Counsel, that he is
somersaulting. This obviously placed the accused in a cleft stick and
he couldn't say why P.W.9 should not
be believed when he said the
deceased had this truck that the accused claims as his and the other
that was sold to Khotso and none
else. Hence the one that he could
possibly sell at the time was the former and not the latter.

Why then
should the accused purvey all this tissue of lies regarding the truck
that was at Tsikoane?

It seems
to me that the reason for lying thus can be none other than that the
accused wishes to show

51

that
during the last two weeks or more of the deceased's life the
accused's title to this truck was never dis­puted by a man
who
could possibly have had the right to do so. In an attempt to buttress
this attitude the accused seeks to create and convey
an impression
that, if during the two days he was seen with this truck at Tsikoane
even treating it as his own by openly dismantling
it, unchallenged by
the man from whom he purportedly bought it, who then would be there
to challenge his right to it after the
deceased's death? and on what
grounds.

Be it
remembered that at page 173 of my notes the accused says he had
bought it 2 weeks before leaving it at Tsikoane for two weeks
before
the deceased's death. This would mean he bought it around the
beginning of October. All this has been shown to be false
beyond
doubt.

The
portion of the accused's alleged statement which was elicited from
P.W.12 by the defence in its cross examination of that witness
was
corroborated by P.W.2 to the extent and effect that the accused said
he had used "Ex."l" to kill the deceased.

When the
accused allegedly made this utterance and the one preceding it namely
that P.W.2 should produce Ex."1" which
P.W.2 had lent him
the accused was not being assaulted.

There was
persistently a suggestion put to crown witnesses concerned that they
had learnt from P.W.2 that the accused is the culprit
in the killing
of the deceased. This suggestion, it is alleged, derives from the
fact that P.W.2 had had previous contact with
the police when he had
gone to identify the body at T.Y., thus implicitly this suggestion
derives from the fact that P.W.2 said
he suspected that his gun had
been used in the commission of a crime.

52

The first
branch on which this suggestion is based is flawed on the ground that
if the police had had such prior contact with P.W.2
on the basis of
which they would have known it was his gun which had been used they
would not have required the accused to lead
them to P.W.2's place,
for by its nature the type of information they would have got from
him would have required them to find
out his residence from P.W.2
direct.

The
second branch is self-defeating because if P.W.2 suspected that his
gun had been used mischievously then he took steps to ensure
that it
did not cause any further mischief. In his own words when his nose
was rubbed in it that through his negligence his gun
had been
misused, P.W.2 said "once beaten twice shy".

It was
never put to P.W.1 that he promised the accused that the police would
pardon him if he admitted that he had killed the deceased.
This was
heard for the first time in this court when he gave evidence in his
defence.

As proof
that the accused was prevaricative when giving evidence, he admitted
that the simple answer to have given to the police
— who he
alleges told him -that P.W.2 had told them that the accused had
killed the deceased - would have been "he is
lying. I didn't,"
instead of the one that he allegedly gave, namely "(Mpopo) I
don't have any gun. Maybe Makhama who
told you that is the one who
owns a gun." He admits that it would have been easy to say the
former statement.

Asked
then why he didn't give that simple answer but instead introduced the
question of the gun he said

"I said he might be having a gun because police said he said I
had a gun."

The
question was repeated and his answer was :-"Because he
implicated me about the question of the gun so I also had to
introduce
it."

53

Asked
again if it was not easy to have said "Makhama was lying. I
didn't shoot a person" he admitted it was easy.

"Why
didn't you say so then - ?

I don't
know why I answered that way.

I have an
answer; it is because if this is

what you
told the police then you knew the gun was at some stage in your
possession - ?

That is
not so. It never.

I'll
show: Following the reply you gave to the police, would they have
taken you to Makhama - ?

Still
they would have taken me to Makhama for they said Makhama said I shot
the deceased.

Why would
they have to go in your company to Makhama - ?

They
required to go in my company because I said I had no gun maybe
Makhama -----

By Court:

Why would
they have required you to lead them to Makhama's place when from your
own version they must be spoken to Makhama about
you in which case
they must have known the identity or locality of Makhama's place - ?

I don't
know.

By C.C.:

What did
you say to Makhama - ?

That he
should produce a gun.

Stopped
there - ?

Yes.

Did you
know him to own a gun - ?

No.

Why did
you say he should produce one then - ?

Because
he said to the police I had shot a person."

The
defence did not challenge the evidence of P.W.12 which showed that
the accused said P.W.2 should produce the gun. The only challenge

that emerged was in regard to the fact that P.W.12 had not in his
evidence in chief stated that the accused had also said he had
killed
the deceased with it. Cross examination is in many ways similar to
the art of fishing. Sometimes it is the fish that takes
the bait, at
other times it is the serpent.

54

In both
cases the fisherman should be content with the catch with which he is
saddled. Taking the fish and the serpent thread and
thrum is the rule
of the game.

The
accused said he and P.W.12 are not enemies and could not say why
P.W.12 should implicate him falsely.

He
acknowledged contents of his affidavit which he swore to in an
application for bail heard by the High Court on 15.11.85. He
acknowledged that in paragraph five of that affidavit he had sworn
that he parted with the deceased very late at night on 27.10.85
- Yet
in these proceedings today he said he last saw the deceased only at 6
p.m.

The court
took judicial notice of the fact that the hour six strikes while it
is still very light on 27th of October. See "Time
of sunrise and
sunset at Johannesburg Standard Time of South Africa" in the
Hortors' Legal Diary for South Africa for 1985
page 18. The time
difference in sunrises and sunsets between Johannesburg and T.Y.
would be a matter only of seconds.

Confronted
with the two conflicting sworn statements as to when he parted
company with the deceased he gave a garbled account of
the issue
mixing it with rambling irrelevancies.

"Paragraph
five reads '

'I parted
with the deceased very late' - ?

That late
was when I left because of not seeing where he was.

How do
you part company with one who is not with you - who was not
physically present - ?

I was
with him. Till going. I don't deny that I parted with him but
....(inarticulate mutterings followed by silence showing obvious

inability to give satisfactory reply).

Why deny
the obvious. Isn't it because you bear a hand in the death of the
deceased - ?

No."

55

The
accused said he was concerned about the welfare of the deceased when
he left T.Y. at 11.00 p.m. Yet he did not report either
to the
hoteliers there or to the police charge office which is near by that
he was worried that the deceased was nowhere to be
seen. He said he
didn't do this because he thought the deceased had hired transport
and left for Maseru. In the same breath he
said he thought the
deceased was with friends at T.Y. Asked why he didn't then go to the
deceased's house to at least let his wife
know about this matter
which had aroused his anxiety he said it was ton late; moreover he
did not want to "fink" on (meaning
inform on) the deceased
in case he bad : slipped off to spend the night with girl-friends.

Confronted
with the question that the lateness of the hour didn't appear to
bother him for he had, according to his version, spent
no less than
five hours awaiting the deceased's re-surfacing at the T.Y. hotel -
so how could a further fifteen or so minutes affect
him if he spent
that amount of time reporting to the deceased's wife at Upper Thamae
on his way to Lithabaneng, he said this did
not occur to him.

Granting
then that he went to Mohale's hoek on Monday and did not come back
till Tuesday in the evening he was asked why he didn't
that Tuesday
or on any subsequent days before his arrest take steps to either find
out from the deceased's wife if he had ultimately
surfaced, or inform
her of the circumstances under which the deceased and he had parted,
he said he was usually tired as he knocked
off around 6 p.m. or 7
p.m.

It would
seem then that the accused valued his sleep or leisure far above his
so-called friend's welfare or the letter's wife's
anxiety. Thus it
would seem the deceased's wife's anxiety would be an unwelcome
infliction on his leisure or sleep. Regard being
had to the fact that
unassailed evidence showed that the accused used to visit the
deceased's home once or twice a week, and that
more than a week

56

interspersed
by a weekend had elapsed before the accused's arrest, his failure to
show up at the deceased's home could not be solely
attributable to
exhuastion after work or the baseless belief that the deceased might
have surfaced. Especially when account is
taken of the circumstances
he alleges he parted with the deceased under. Hence the submission is
legitimate that the accused avoided
going to the deceased's home
because he knew what had occurred to him.

In my
view it cannot do to say the accused need not have got unduly
flustered about the deceased's non-appearance because in Maseru
he
and the deceased used to part without any ceremony or ritual. T.Y. is
not Maseru. T.Y. is more than 25 km away from Maseru.
The accused
knew that to get to T.Y. the deceased depended entirely on the
accused's transport. Likewise, to get back from T.Y.
to Maseru he
should have expected that the deceased would depend on the same
transport. In this connection the accused's attitude
towards the
deceased smacks of unwholesome callousness. Such callousness coupled
with the fact that the accused did nothing for
more than a week to
allay P.W.7's fears or P.W.2's anxiety about the deceased is not
inconsistent with the proposition that the
accused knows more than he
is willing to reveal about the deceased's fate.

Of a
piece with his prevarications, when asked :

"According
to you who led the police to Motimposo - ?" he replied

"I
went with them."

It was
after the question was repeatedly put and only when the court warned
him to answer it that he said

"I
led them".

"For
what purpose - ?

Mpopn
said Makhama had said I had shot a person. I said it was Makhama who
had a gun.

57

Why did
you say so - ?

Because
police said Makhama said I had shot a man and I said he might be the
one who had a gun.

Court :

But
police were not asking if Makhama had a gun - ?

No.

C.C.

The
problem is; What you say is illogical and untenable - ?

To me it
is logical."

The
accused wants the court to believe that it was out of his concern for
preservation of the deceased's marriage that he did not
wish to say
anything about the deceased's disappearance lest he arouse suspicion
in P.W.7 about the deceased's deviation from the
path of marital
virtue, yet for a whole week and some days he didn't bother to at
least meet the deceased and admonish him about
the awkward position
the deceased had put him in by his philandering habits.

The
accused told me that he was careful not to go got drunk because he
knew he was going to drive from T.Y. to Maseru before giving
up hope
that the deceased would join him. On his own evidence it would seem
he was not drunk that day despite the intake of beer
he had had. It
may be so in view of the length of time spent in drinking the
quantity given.

It is
interesting or even amazing to note that at page 64 of my notes when
being cross-examined about the kombi that P.W.8 said
had escorted the
accused to Tsikoane it was vehemently put to him that

"the allegation that there ever was a kombi in the vicinity is a
figment of your imagination - ?

I deny what you say. I am telling the truth.

Moreso because before the magistrate you did not say there was a
vehicle in the vicinity - ?

At the place where I made my statement I said the

58

accused had left a vehicle on the way. I even said I didn't know in
whose company he had been in that vehicle."

Yet on
page 175 in sharp contrast to the question that one would expect the
accused to back up about the absence of the kombi in
the vicinity,
the accused nevertheless under cross examination reacted as follows
to the question put :-

"You
were being escorted by a kombi - ?

It never
escorted me. What happened is that when I came to Tsikoane I asked
the owner of the kombi to wait for me so that I could
park my truck
which was in distress, as I wanted to go with him for he was going to
Maputsoe."

It stands
to reason that the accused's counsel in telling P.W.8 that there was
no kombi in the vicinity had been given false instructions
by the
accused.

This
coupled with the fact that P.W.8 is still puzzled to this day why the
accused braved a heavy down pour even though there had
been a kombi
escor­ting him would lead to only one conclusion that an attempt
by the accused was made to hide the identity
of this kombi and the
identities of its occupants or occupant.

The fact
that the accused on that day was in the company of at least two
different strangers at different times but comfortably
travelled with
them without inquiring about their identities makes his conduct
highly suspect. It would be a different thing if
he said the
identities were revealed but unfortu­nately forgotten through the
lapse of time.

Earlier
in this judgment I charitably took for granted that the accused set
out early on Monday for Mohale's Hoek on his master's
errands and did
not come back until Tuesday. But credible evidence shows that he was
on the same Monday at Tsikoane where he arrived
in the course of the
morning and spent the day disman­tling the buck of the truck.

59

Be it
remembered that he seized on this trip to Mohale's Hoek in an attempt
to escape the question why he didn't take steps to report
to P.W.7
about the disappearance of her husband from his company.

It does
appear that it cannot be true that the accused had gone to Mohale's
Hoek early on Monday never to come back the following
day for
evidence shows on the morning of that Monday he was at Tsikoane where
he surprised P.W.11 by failing to say good morning
to her. I need not
mention that Mohale's Hoek is 214 km distant from Tsikoane and no man
can be at two different places at once.

The
accused's falsehood as to the time frame within which the truck
remained at Tsikoane, the fact that he dismounted its buck from
the
chassis - no doubt for purposes of confusing or destroying its
identity -coupled with various instances of what palpably appear
to
be after thoughts in his evidence; and the fact that he has been
shown to have lied in his denial that he was in possession
of P.W.2's
gun which on retrieval had only two live bullets out of the seven
which had originally been given to him; buttressed
by five empty
cartridges near the deceased's body nut in the veld; his falsehood as
to the time of his parting with the deceased
as shown in his
affidavit that conflicted with his testimony in this court, plus the
fact that those shells were ejected when no
other gun than Ex."l"
was fired, culminating in the discovery of the deceased's body killed
from gun shot wounds; and
that he was the last man seen with the
deceased before he met his tragic death all account for the milk in
the coconut; namely
that he knew how the deceased met his death.

I am
strengthened in this view by the fact that in his own words the
accused said he knew the deceased to deal in underhand motor
sales.
Further that he remained in the van and hotel for not less than five
hours. Surely through common sense the long passage
of time should

60

have made
the accused stir because often in the shady deals violence or
trickery in the form of drugging is used. Hence this consideration

should have prevailed over the fanciful restraint based on the
imagined fear that the deceased might get embarrassed or his wife

enfuriated if it turned out that the report about the deceased's
disappearance would lead to the discovery that he was engaged
in
compromising circumstances with girl friends that night.

Credible
evidence shows that the deceased was tempted to go to T.Y. that day
at the instance of the accused who had told him that
he had secured
him a buyer for the truck. If there was such a buyer or not an
inference remains irresistible that the accused lured
the deceased to
his fate.

P.W.9
told the court that the deceased used to attend auction sales for
motor vehicles in Johannesburg; and that he bought some
vehicles from
there including the truck in question.

P.W.12
testified that the accused was confronted with this truck on 13.11.85
at T.Y. and the accused identified it as the deceased's
further that
he did not know how it came to be there. This evidence went
unchallenged. It should not be overlooked that the presence
of the
accused at P.W.11's and P.W.8's place at Tsikoane in October or
November 1985 occurred a long time since he had last been
at that
place. It seems that the accused was eager to keep this truck at an
obsure place where it would be difficult to trace coupled
with the
fact that the removal of its buck would serve to disguise its
identity. An attempt was made to tell P.W.9 that the truck
was the
accused's, but that was ton late because the crown was at that stage
denied the chance to lead evidence in rebuttal by
asking P.W.12
whether he took every step to ascertain that it was the deceased's.

61

Be it
remembered in this connection that the court heard for the first time
when the accused was in the witness's box that he had
kept documents
proving his ownership of the truck in its cubby hole. Yet when P.W.12
testified that the accused said the truck
was the deceased's at that
stage there was no suggestion that the accused was laying any claim
to it supported perhaps by the documents
said to have been kept in
its cubby hole.

Even the
incoherent statement that "(it) maybe it is Makhama for he might
be the one who has a gun" implies that the accused
knew that
P.W.2 had a gun. Yet when asked if he knew the gun before court or
whether he knew P.W.2 to possess one he said no.

It would
seem from the position of the wounds that the deceased sustained that
the assailant was on his right hand side for most
wounds as shown in
the medical report were on the right .

That the
cartridges were collected and placed near the body of the deceased
suggests that the shooting was effected with the aid
of some light
that enabled the killer to collect them after being ejected from the
gun. It is not far-fetched then to imagine that
the shooting was
effected in some lighted enclosure. It is significant that neither
the accused's white toyota van is available
nor is the kombi he
travelled in from Tsikoane traceable.

With
regard to pointing out, it should be recalled that on 9.11.85 P.W.I,
P.W.12, and P.W.3 proceeded to P.W.2's home led by the
accused. This
was consequent upon an explanation given to them by the accused. Over
and above the pointing out reliance was reposed
by the crown on
evidence elicited from crown witnesses under cross-examination.

The legal
position with regard to pointing out is that the pointing out has to
be satisfactory in every

62

respect.
To satisfy this requirement it is necessary to show beyond reasonable
doubt that the only infe­rence to draw is that
the accused had
foreknowledge because he took part in the offence. See State vs Gwevu
& Another 1961(4) SA. 536. See CRI/T/41/88
R vs Mafatle &
Others (unreported) at 24. Significantly then the police officers who
proceeded to P.W.2's home with the accused
did not know that place.
Suffice it to say then because of his fore­knowledge the accused
led them there and the gun was produced
through his own request from
P.W.2. None of them except P.W.1 knew P.W.2.

It was
contended on behalf of the accused that when P.W.2 deposed that on
arrival at his place the accused said P.W.2 should produce
the gun he
had lent him P.W.2 and the police must have put their heads together
to implicate the accused falsely and must have
planted the gun there.
But P.W.2's evidence contradicting this view went unchallenged.

See Small
vs Smith 1954(3) SA at 434 saying:

"It is, in my opinion elementary and standard practice for a
party to put to each opposing witness so much of his own case
or
defence as concerns that witness, and if need be, to inform him, if
he has not been given notice thereof, that other witnesses
will
contradict him, so as to give him fair warning and an opportunity of
explaining the'contradiction and defending his own character.
It is
grossly unfair and improper to let a witness's evidence go
unchallenged in cross-examination and after­wards argue that
he
must be disbelieved."

See also
Phaloane vs Rex 1981(2) at 246 saying :

"It is generally accepted that the function of counsel is to put
the defence case to the crown witnesses, not only to avoid
the
sus­picion that the defence is fabricating, but to provide the
witnesses with the opportunity of denying or confirming
the case for
the accused. Moreover, even making due allowances for certain
latitude that may be afforded in criminal cases for
a failure to put
the defence

63

case to the crown witnesses, it is important for the defence to put
its case to the prose­cution witnesses as the trial court
is
entitled to see and hear the reaction of the witness to every
important Allegation."

The logic
of the submission therefore based on the proposition that the court
should believe the implication that the gun was planted
at P.W.2's
place with the collusion of the police escapes me.

Indeed
the fact that the accused had no prior quarrel with the deceased is a
factor in his favour. But it in no way prevails against
evidence
showing he nonetheless manifested an attitude that shows that
considerations on which friendship is based sit loosely
on him.

Indeed
the fact that he converted the deceased's vehicle into his own and
that he made no scruple to refrain from reporting to P.W.7
about the
deceased's disappearance are factors by means of which it can be said
he showed his cloven hoof towards the deceased
or his wife.

The crown
submitted that by some strange coinci­dence the empty shells
found near the body showed when examined by the ballistic
"expert"
P.W.5 that they were fired fromono other gun than Ex."l".
It submitted further that P.W.5's conclusion
was backed up by
scientific tests that he carried out. His conclusion was correct.
Possible error in the results obtained from
his tests was excluded by
experience gained during his training. Any doubt concerning his
expertise would be entertained only by
evidence adduced in rebuttal
by the party holding otherwise.

The
possibility that empty shells were planted around the body by someone
wishing to implicate the accused is excluded by the credibility
of
the crown witnesses.

In Marcus
Leketanyane vs Regina 1956 H.C.T.L.R. at 2

64

Elyan
quoting with approval the dictum in Rex vs de Villiers 1944 AD 493
said :-

"In a case depending upon circumstantial evidence ... the court
must not take each circumstance separately and give the accused
the
benefit of any reasonable doubt as to the inference to be drawn from
each one so taken. It must carefully weigh the cumulative
effect of
all of them together and it is only after it has done so that the
accused is entitled to the benefit of any reasonable
doubt which it
may have as to whether the inference of guilt is the only inference
which can reasona­bly be drawn. To put the
matter in another way,
the crown must satisfy the court, not that each separate fact is
inconsistent with the innocence of the
accused, but that the evidence
as a whole is beyond reasonable doubt inconsistent with such
innocence."

Put in
another way by Darling J. in Rex vs Armstrong, Herefordshire Assizes,
April, 1922 the position is :-

"Circumstantial evidence going to prove the guilt of a person is
this : One witness proves one thing and another proves another
thing,
and all these things prove to conviction beyond a reasonable doubt;
but neither of them separately proves the guilt of the
person. But
taken together they do lead to one inevitable conclusion."

In Tatolo
Phoofolo vs Rex 1963-66 H.C.T.L.R. 5 at 6 Watxin Williams P. as he
then was reported Lord Hewart L C J as having said
in relation to
circums­tantial evidence :

"It is evidence of surrounding circumstances which by undesigned
coincidence is capable of proving a proposition with the
accuracy of
mathematics."

See
Taylor and Others vs Rex (21 C.A.R. 20). Compare the shells with the
gun and consider the fact that within the time frame of
the incident
in the instant case both the gun and seven bullets were in the
accused's possession. But later though not before the
deceased's
death, only two live bullets were returned with the gun

65

to P.W.2
while five empty shells were found around the body of the deceased
who was last seen alive in the company of the accused.

When the
body was discovered on 28.10.89 P.W.1 said it had rained the previous
night. By some strange coin -cidence on the night
when the accused
came to P.W.8's place at 9.00 p.m. it was raining heavily. P.W.6 had
seen the accused and the deceased together
at 6 p.m. When he came out
at 7 p.m. they were no longer there. Where could they have been
between the time preceeding 7 p.m. and
9 p.m. The deceased was
defi­nitely not with the girl-friends. The accused was shown to
have lied regarding the time of his
parting with the deceased as
amply shown by his affidavit when contrasted and compared with the
evidence he gave before this Court.
It thus was by token of this fact
conclusively established that it cannot be put past him to give false
testimony if he thinks
the falsity cannot be discovered.

In this
regard the words of Lord Devlin in Broadhurst vs Rex 1964 AC 441 at
457 are worthy of note, namely :-

"It is very important that the jury should be carefully directed
on the effect of a concusion, if they reach it, that the
accused is
lying. There is a natural tendency for a jury to think that if an
accused is lying, it must be because he is guilty
and accordingly to
convict him without more ado. It is the duty of the judge to make it
clear to them that this is not so. Save
in one respect, a case in
which an accused gives untruthful evidence is not different from one
in which he gives no evidence at
all. In either case the burden
remains on the prosecution to prove the guilt of the accused. But if
on the proved facts two inferences
may be drawn about the accused's
conduct or state of mind, his untruthfulness is a factor which the
jury can properly take into
account as strengthening the inference of
guilt. What strength it adds depends of course on all the
circumstances and especially
on whether there are reasons other than
guilt that might account for untruthful-ness."

66

In Rex vs
Blom 1939 AD 188 at 202 Watermeyer J.A's direction is both
enthralling and unassailable. He said

"In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored :

1. The
   inference sought to be drawn must be consistent with all proved
   facts. If it is not, the inference cannot be drawn.

   
   

2. The
   proved facts should be such that they exclude every reasonable
   inference from them save the one sought to be drawn. If they
   do not
   exclude other reasonable infe­rences. then there must be a doubt
   whether the inference sought to be drawn is correct."

   
   

In V vs A
The Zimbabwe Law Reports 1984 (Part 2) McNally J.A. demurring
application of'dicta to facts in piecemeal and mechanical
manner
taking no account of the totality of the facts said at 143

"The proper approach, it seems to me, is to look at the totality
of the surrounding circumstances and independently established
facts
...."

Mr.
Thetsane for the crown submitted that the motive for the crime seems
not to have been proved, and contended however that this
can be
inferred from the facts.

To my
mind the concession made by the crown seems more than charitable to
the accused for the truck in this proceedings, truly sticks
out like
a sore thumb. If it does not provide the motive for the crime
committed then there is no need to engage in speculation
about what
possible motive there was because in R vs Mlambo 1957(4) SA. at 737
Malan J.A. points out that

"Proof of motive for committing a crime is always highly
desirable, more especially where the question of intention is in

issue. Failure to furnish absolutely convincing proof thereof,
however, does not present an insurmountable obstacle because even
if
motive is held not to be established there remains the fact that an
assault of so grievous a nature was inflicted upon the deceased
that
death resulted either immediately or in the course of the same night.

67

If an assault ... committed upon a person causes death either
intanteneously or within a very short time thereafter and no
explanation
is given of the nature of the assault by the person
within whose knowledge it solely lies, a court will be fully
justified in drawing
the inference that it was of such aggravated
nature that the assailant knew or ought to have known that death
might result."

In making
the submission aforementioned the crown relied on CRI/T/37/88 Rex vs
Molahlehi Ramatla (unreported at 13 where this Court
said

"Motive for the killing has hot been established in this trial.
The fact that the bag the dece­ased was last seen carrying

disappeared without trace may provide the motive for the killing as
robbery but there was no evidence of this."

It was
shown in R vs Ndhlovu 1945 AD 369 at 386 that legal authorities
disapprove of indulgence in speculation.

"on possible existence of matters upon which there is no
evidence, or the existence of which cannot reasonably be inferred

from the evidence."

In
submitting that absence of motive should redound to the accused's
benefit the defence relied on C of A CRI No. 2 of 1983 Letsosa

Hanyane vs Rex by Schutz J.A. as he then was. At page 8 the learned
judge (now President of the Lesotho Court of Appeal) said.

"The one real difficulty that there is in 'Mamaipato's evidence
is the lack of motive for the appellant's attack. It is true
that it
is not essential for the crown to establish motive, but its failure
to do so may cast doubt upon its case......."

I am not
unmindful of the remarks of the learned judge in the above case at
page 7 where in considering the fact that it had been
urged on him
obviously by the crown that the other side had not put its case to
the crown witnesses said :

68

"From the above analysis it emerges that many at least of the
trial court's criticisms of the appellant may properly belong
to his
counsel at the trial (I do not say that they do). But when at least
one instance seems to have been shown to be the fault
of counsel, I
think that it would be dangerous to embark on the hip and thigh
smiting of the appellant that the trial court embarked
on."

But in
this trial as I earlier pointed out the defence counsel conducted the
defence of the accused in a manner that left me in
no doubt that he
was utterly faithful to the instructions he had received from his
client.

With
regard to the inculpatory statement which the accused is said to have
made at P.W.2's place, and the fuller text of which might
not have
been admissible except as it had been elicited from the police under
cross examination it would seem provi­sions of
section 228 and
229 of the Criminal Procedure and Evidence Act 1981 suffice to cover
the point.

C/F
CRI/T/18/84 R vs Lawrence Phasumane (unreported) at p. 39 paragraph
2.

Submitting
that the test to apply in order to determine whether the accused's
alibi might possibly reasonably be true counsel for
the crown urged
that the court is enjoined to consider the entire evidence led.
Reference in this regard was made to R vs Hlongwane
1959(3) SA at
370-1 where it is stated:

"The legal position with regard to an alibi is that there is no
onus on an accused to establish it, and if it might reasonably
be
true he must be acquitted...... But it is important to point out that
in applying this test, the alibi does not have to be considered
in
isolation.....The correct approach is to consider the alibi in the
light of the totality of the evidence in the case, and the
court's
impression of the witnesses."

Arguing
in the same vein Hoffmann and Zeffert at p. 407 of South African Law
of Evidence 3rd Ed. Say

"... no onus rests on the accused to convince

69

the court of the truth of any explanation which he gives. If he gives
an explanation, even if that explanation is improbable, the
court is
not entitled to convict unless it is satisfied, not only that the
explanation is improbable, but that beyond reasonable
doubt it is
false. If there is any reason­able possibility of his explanation
being true, then he is entitled to his acquittal."

But
Mlambo at 738 is authority for the view that

"An accused's claim to the benefit of a doubt .... must not be
derived from speculation but must rest upon a reasonable and
solid
founda­tion created either by positive evidence or gathered from
reasonable inferences which are not in conflict with,
or outweighed
by the proved facts of the case."

Urging
the court that the accused should be given benefit of doubt the
defence buttressed its case by relying on a passage where
the danger
of convicting an innocent man was highlighted as follows in Khotso
Mahata vs R 1926 - 53 H.C.T.L.R. at 178 :-

".... If there had been definite evidence that his father died
before 1941, then his story that he inherited these cartridges
from
his father cannot be true. But as stated, the difficulty is that
there is something wanting in the evidence. When he said
that he
inhe­rited it from his father and it was found that the
cartridges were made in 1941, there would have been no difficulty
to
obtain evidence to show that his father died in 1941, but that
evidence was not produced. There is thus possibility that his
story
as it stands may be true. In the circumstances the court can't
convict a man upon evidence which is doubt­ful, which
leaves the
possibility that he is innocent ...."

I have
also had regard to Scoble's words in The Law of Evidence in South
Africa 3rd Ed. at 250 in relation to the possible factors
which might
have led the accused to make the statement he is alleged to have made
at P.W.2's house at the time the gun was produced.
They read:-

"the statements, although actually made as deposed to, may be
false, for the prisoner, oppressed by the calamity of his situation,

70

may be
induced by motives of hope or fear to make an untrue confession, and
the same result may have arisen from a morbid ambition
to obtain an
infamous notoriety ... or from anxiety to screen ..... a comrade ....
or it may even be the result of the delusion
of an overwrought and
fantastic imagination."

But
reliable and available evidence in the instant case excludes the
above set of possibilities.

In S vs
Jaffer 1988(2) SA 84 at p. 88 Tebbutt J. (previously a Judge of our
Court of Appeal) in dealing with the question of probabilities

extracted a passage from the magistrate's court and criticised it. It
went

"Now the court has now two single witnesses telling different
stories in certain aspects. The court must now decide whether
one of
the stories can be rejected. If the court now looks at the
proba­bilities, the State's version seems to be the most

probable."

The
learned judge pointed out that

"This approach by the magistrate was incorrect. It is, of
course, always permissible to con­sider the probabilities of
a
case when deci­ding whether an accused's story may reasona­bly
possibly be true. .."

The story
may be so improbable that it cannot reasonably be true. It is not,
however, the correct approach in a criminal case to
weigh up the
State's version, parti­cularly where it is given by a single
witness, against the version of the accused and then
to accept or
reject one or the other on the probabilities. This approach was
con­sidered by Van der Spuy A.J. in S vs. Munyai
1986(4) SA. 712
at 715 where he said :

'There is no room for balancing the two versions, i.e. the State's
case against the accused's case and to act on preponderances!'

Dealing
with (S vs Singh 1975(1) SA 277) Van der Spuy A.J., with whom Klopper
A.C.J. concurred, said that the proper approach was
for a court to
apply its

71

mind not
only to the merits and demerits of the State and the defence
witnesses, but also to the probabilities of the case. This
was to
ascertain if the accused's version was so improbable as not
reasonably to be true. This, however, did not mean a departure
from
the test as laid down in R vs Difford 1937 AD 370 at 373 that, even
if an accused's explanation be improbable, the court is
not entitled
to convict unless it is satisfied not only that the explanation is
improbable but that beyond any reasonable doubt
it is false. If there
is any reasonable possibility of his explanation being true, then he
is entitled to his acquittal.

Van der
Spuy A.J. went on to say at 716 B-C:

'The fact that the court looks at the probabilities of a case to
determine whether an accused's version is reasonably possibly
true is
something which is permissible. If on all the probabilities the
version made by the accused is so improbable that it cannot
be
supposed to be the truth, then it is inherently false and should be
rejected. But that offers no answer to the approach adopted,
in my
view quite properly, by Slomowitz A.J. in the case of S vs Kubeka
(supra).'

In S vs
Kubeka 1982(1) SA. 534 (W) at 537 F - H, Slomowitz A.J. said in
regard to an accused's story:

'Whether I subjectively disbelieve him is, however, not the test. I
need not even reject the State case in order to acquit him.
I am
bound to acquit him if there exists anreasonable possibi­lity
that his evidence may be true. Such is the nature of the
onus on the
State :

Referring
to this passage Van der Spuy A.J. said at 715 G

'In other words, even if the State case stood as a completely
acceptable and unshaken edifice, a court must investigate the defence

case with a view to discerning whether it is demostrably false or
inherently so improbable as to be rejected as false.'

I agree.
The test is, and remains, whether there is a reasonable possibility
that the appellant's

72

evidence
may be true. In applying that test one must also remember that the
court does not have to believe her story; still less
has it to
believe it in all its details. It is sufficient if it thinks there is
a reasonable possibility that it may be substantially
true (R v M
1946 AD 1023 at 1027)".

The
accused acknowledged albeit grudgingly and with great reluctance that
he would not be surprised if the deceased's wife approached
him
inquiring about his non-appearance regard being had to the fact that
she knew that the deceased and the accused left together
for T.Y.

It
follows from this that likewise P.W.2's suspicion that his gun had
been misused was reasonable as it arose from his knowledge
that it
had been in the accused's possession and only after his hearing of
P.W.7's anxiety.

The words
appearing as a quotation in Leketanyane above at p. 3 in relation to
circumstantial evidence are worthy of mention. They
read :-

".... Such evidence is more aptly compared to a rope made up of
strands twisted together. The rope has strength more sufficient
to
bear the stress laid upon it, though no one of the fila­ments of
which it is composed would be sufficient for that purpose."

Mr.
Nathane relying on S vs M 1946 AD 1023 at 1028 urged that the court
has the discretion to consider whether evidence left unchallenged
is
worthwhile or not. I agree. Referring to Small vs Smith he also made
a sub­mission with which I agree, namely that where
a point is
deliberately left unchallenged the party calling the witness who so
testified can assume that his story is true unless
no credence can be
attached to it.

In his
reply to the defence's submissions Mr. Thetsane pointed out that the
defence cannot be heard to raise possibilities as to
the conduct of
the accused by explaining at this late stage that the accused didn't

73

go via
Upper Thamae or Motimposo because possibly he did not want to disturb
the deceased's wife at some late hour.

He
submitted that this should have been given as evidence by the accused
himself.

He
buttressed his submission by relying on CR/T/37/88 Rex vs Molahiehi
Ramatla (unreported).

In this
regard he told the court that

"a criminal trial is not a game where one side is entitled to
claim the benefit of any omission or mistake made by the other
side
..."

See Rex
vs Hepworth 1928 AD 265 at 277.

He
challenged the submission that the accused's story be regarded as
reasonable possibly true by reposing his reliance on Miller
vs
Minister of Pensions 1947(2) ALL. E.R. 372 and 373 where Lord Denning
warned that fanciful explanations should not be allowed
to deflect
the course of justice. It is my considered opinion that the accused's
version has been shown to be false beyond a reasonable
doubt and
hence reject it.

Having
considered all the evidence and authorities referred to including the
submissions made by both counsel I have no doubt in
my mind that the
accused is guilty of the murder of the deceased Thami Madona and I so
find him.

The gun
is forfeited to the crown.

JUDGE.

17th
October, 1989.

74

JUDGMENT
ON EXTENUATING CIRCUMSTANCES

In
CRI/T/59/88 R vs Thembinkosi Yawa (unreported) at p. 26 it was
observed that :

"It is trite law that the onus of showing, on a balance of
probabilities, the presence of ex-tenuating circumstances rests
on
the defence. The test to be applied by the court in deci­ding
whether (extenuating circumstances) exist is a subjective
one."

In S vs
Letsolo 1970(3) SA 476(A) at 476E to 477B Holmes J.A. summarised the
position relating to the subject of extenuating circumstances
as
follows:-

"Extenuating circumstances have more than once been defined by
this court as any facts, bearing on the commission of the crime,

which reduce the blameworthiness of the accused, as distinct from his
legal culpability. In this regard a trial court has to consider

1. whether
   there are any facts which might be relevant to extenuation, such as
   immaturity, intoxication or provocation (the list
   is not
   exhuastive).

   
   

2. whether
   such facts in their cumulative effect, probably had a bearing on the
   accused's state of mind in doing what he did;

   
   

3. whether
   such bearing was sufficiently appre­ciable to abate the moral
   blameworthineso of the accused's doing what he did."

   
   

Even
though the accused was entitled to give evidence in extenuation of
the crime of which he has been convicted he entrusted that
task to
the eloquence of his counsel. In the result the court was denied the
opportunity to determine whether money ever exchanged
hands between
the purported buyer of the deceased's truck and the deceased. This
then would in my view dispose, as base­less,
of the submission by
the crown that perhaps out of jealousy of the amount scored by the
deceased the accused decided to kill the
deceased in order to pocket
the proceeds of the sale; for this submission is based on sheer
speculation.

It was
urged on me that the accused had consumed

75

good
quantity of beer - hence on that score his moral blameworthiness was
reduced. But in Yawa above this court gave very stern
warning that it
is wrong to believe that intoxication always extenuates for

"It would be a sad day when .... innocent lives can be randomly
taken away by drunks who embark on the senseless killings
with a full
assurance that the law would not subject them to the same fate that
their victims suffered."

The
judgment that the court is enjoined to deliberate on at this stage,
as properly submitted by both counsel is a moral one. Hence
the court
is called upon to exercise its discretion judiciously to come to a
final decision. In that regard then, if there is no
limit to the
horror that murderers subject their victims to why should justice
impose on itself limits beyond which a perpetrator
of a murder on an
innocent victim should be absolved from conse­quences of his
acts?

A moral
absolute is erected around the sanctity of life. Is it not Utopian
and even dishonest to remove the infallible checks which
preserve
that sanctity and replace them with something which undermines the
absolute deterrence against perpetration of murder?

I have
been asked, against manifest pointers in evidence, not to infer that
the accused even before taking drinks at T.Y. had already
made up his
mind that the deceased was going to meet his death that day.

How can I
help making such an inference in the face of the fact that the
accused has not come forth to say that in fact the prospective
buyer
was there at T.Y.? Surely the onus is on the accused to establish
this. Failing that then an adverse inference drawn against
him is not
out of step.

It would
seem to me to follow that when the accused asked the deceased to go
and meet a non-existent

76

prospective
buyer his malicious intent had become manifest at the time he made
the proposition to the deceased to go and meet this
buyer. The
question of drinks which the accused and the deceased were seen
taking was part of the cunning plot to make the deceased
think that
all was right whereas the worst fate was to befall him later at the
hands of his own friend against whom he would entertain
no suspicion
that the 27th October 1985 would be his last day this side of the
grave.

With
regard to the accused's conduct after the commission of the offence
it seems authorities suggest that this can be taken into
account in
considering whether his moral blameworthiness can be said to have
been reduced, for in S vs X 1974(1) SA (R. AD) 344
at 348 Beadle C.J.
said

"One thing, however, seems to me to be quite clear and that is
that where the acts per­formed by an accused after the
commission
of the murder indicate what the state of mind of the accused was at
the time when he committed the murder, then these
acts can clearly be
taken into account in considering the moral blameworthiness of the
accused at the time when the murder was
committed."

In the
main judgment the accused's state of mind after the commission of the
crime was shown to have been bristling with wickedness.

I have
had regard to authorities cited. They indeed make instructive reading
but hardly have relevance to what appears to me to
be the focal point
in this inquiry, namely whether any factor even if remotely related
to the accused's subjective state of mind
can be said to be
sufficient to reduce his moral blameworthiness.

Learned
Counsel for the crown told me he thought there were some extenuating
circumstances. Learned Counsel for the defence urged
that it would be
better to err on the side of liniency. Very grudgingly I feel I

77

should
accept these final submissions on the ground that the breadth of a
hair's difference may not be equated to the length of
a hangman's
noose around a man's

neck.

Sentenced
to 25 years' imprisonment.

My
assessors agree.

JUDGE.
18th October. 1989.

For Crown
: Mr. Thetsane

For
Defence : Mr. Nathane.