C. of A.
(CRI) No. 11 of 1981

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

KHOTSO M.
MOKOENA Appellant

v

REX
Respondent

HELD AT
MASERU

Coram:

MAISELS,
P

GOLDIN,
J.A.

STEYN,
A.J.A.

JUDGMENT

Maisels,
P.

At the
conclusion of the hearing of this matter the Court dismissed the
appeal intimating that its reasons would be given later.
These now
follow.

The
appellant appeared in the High Court before Mofokeng J, sitting with
two assessors, charged with the murder on 18th April, 1979
of Ngaka
Moji, the attempted murder of Trooper Mahlo and with the
contravention of section 3(2)(a) of Act 17 of 1976 (Internal

Security) Arms and Ammunition. He pleaded not guilty to all these
charges but was found guilty, On the charge of murder no extenuating

circumstances having been found, he was sentenced to death. On the
charge of attempted murder or Trooper Mahlo he was sentenced
to six
years imprisonment and on the charge of contravening Act 17 of 1976,
to one year imprisonment.

Although
an appeal was noted both against the conviction; and sentences, Mr.
Unterhalter, who appeared for the appellant, confined
himself
entirely to the appeal against the convictions and made no
submissions with regard to the sentences.

2

It
should, I consider, be stated at the outset that it is clear and
indeed was common cause that if the appellant was correctly
found
guilty of murder, he was correctly convicted on the other charges
brought against him.

The
evidence establishes that on the morning of 18th April, 1979 the
police, under the command of Lt Shali, undertook a tax drive
in a
village not far from the De Beer's Diamond Mines. The appellant,
together with two companions of his, none of whom lived in
this
village, were found not to have paid their basic taxes. They were
placed under arrest by Sgt Mpholle, who requested Trooper
Mahlo to
escort them to a nearby charge office. This he did, the appellant and
his companions whose names are now known as Selala
and Khoabane
walking a few paces ahead of the trooper. According to the evidence
of the latter the word "Haiti" was uttered
and when he, the
trooper, who had apparently been reading from a white paper, looked
up, he saw a man in front of him, whom he
identified in evidence as
the appellant, holding a small firearm (with both hands) and pointing
it at him. The trooper who was
unarmed took 5 or 6 paces backwards.
The appellant, according to the trooper, then fired at him but
fortunately missed him. The
trooper almost simultaneously fell down
and began to somersault and roll on the ground. When he tried to get
up another shot was
fired in his direction but this also missed him.
The trooper again fell down and rolled over until he fell into a
ditch. He then
got up and ran away. He looked back and saw the same
man, i.e. the appellant, grappling with another man who it is now
known is
the deceased, Ngaka Moji. According to the trooper the
appellant felled the deceased, then stood astride him bending over
him with
his right hand stretched forward holding the firearm at a
very close range to the body of the deceased. The trooper says he
heard
two shots being fired coming from where the deceased and the
appellant were. Thereafter, according to the trooper, the appellant

left the deceased to join his two companions who had walked ahead of
him. When he joined them all three ran away.

It is
clear that the deceased died as a result of wounds caused by bullets
fired from a pistol and if the trooper's evidence is
accepted, there
could be no doubt that it was the appellant who shot the bullets and
caused the death of the deceased.

3

It is
common cause that the appellant on the day of the killing was wearing
a travelling rug, known in Lesotho as a "Scotland",
a brown
beret and black trousers. A witness, Thabisa Nchala, who knew the
deceased, who was employed at De Beer's mine as a compound
policeman
or guard, happened to be in the vicinity1 where the shooting took
place. I may mention that this witness was also employed
at De
Beer's. It would seem to me on a reading of the evidence that the
deceased who must have witnessed what had happened between
the
appellant and the trooper and occupying the position that he did, was
brave in that he endeavoured to wrest the pistol away
from the
appellant. Nchala corroborated the trooper's evidence in every
material respect and was accepted by the learned trial
judge,
correctly so it seems to me, as a truthful and trustworthv witness.
He was cross-examined at great length by the attorney
who appeared at
the trial for the appellant, but it seems to me to no effect. He was
in no doubt as to the identity of the man
who fired the shots which
killed the deceased. I mention this matter at this stage because the
defence was that it was not the
appellant but one of his companions,
Selala, who was shot at by Sgt Pekile in the circumstances which I
shall presently describe,
who was the man who shot and killed the
deceased and who had shot at the trooper.

Another
Crown witness, one Khutlisi and who also worked at the De Beer Mine
and who knew the deceased as a security man at the mine,
testified
that he saw the three men, i.e. the appellant and his two companions
being escorted by the trooper on the day in question.
He happened to
sit down to relieve nature at a short distance some 35 or 40 yards
away from where he heard a person shout "Halt!".
He then
gave an account of what he saw, which completely corroborates in all
material respects the evidence of Trooper Mahlo and
of Nchala. But
that is not all. Trooper Mahlo raised an alarm with the consequence
that the police and villagers began to chase
the three men, who were
running away. I should have said this all happened in broad daylight.

The chase
went on for a distance of about 2 - 2½ miles. Sgt Mokata, one
of those who joined in the chase, appeared to be
the fastest runner
and was gaining on the three men. One of these disappeared from his
sight but he continued to chase

4

the other
two. He shouted to them to stop. Only one did so -the other continued
to run. The one who stopped was ordered to raise
his hands and he was
arrested. He wore a Scotland rug, a dark pair of trousers and a brown
beret. (The other persons who had accompanied
him were differently
clad). The witnesses I have so far mentioned all stated that this was
how the appellant was dressed, and this
was the person before the
Court as the accused. Another police officer who joined in the chase
was Sgt Pekile. He had followed
Sgt Mokata and when he arrived where
the appellant had been stopped by Sgt Mokata he retrieved a pistol
and a plastic piece of
paper which contained bullets of different
size from the ground. These articles, according to the evidence of
Sgt Mokata, had been
placed there by the appellant on the orders of
Sgt Mokata. Sgt Pekile unloaded the magazine of the pistol and found
bullets in
it of different size. Sgt Pekile reloaded the pistol and
left in pursuit of the other man, who was running away( taking the
pistol
and bullets with him. This man we now know was Selala.

Sgt
Pekile passed a trooper, Phakoe (who has since died) and tried to
fire at Selala with the pistol, but it jammed. He obtained
a .303
rifle from the late Trooper Phakoe and fired at Selala, killing him.
A knife was found where Selala had been seen hiding
prior to his
being shot.

At the
post mortem examination of Ngaka Moji a bullet was found. This was
examined by a ballistics expert, a Mr van der Merwe, and
it was
proved beyond doubt that this bullet was fired from the pistol which
Sgt Mokata stated he had found in the possession of
the appellant.

On this
evidence given by the witnesses for the Crown the case against the
appellant would seem to have been proved beyond any reasonable
doubt.
The appellant's case is really that this is a case of mistaken
identity. It was not he who killed the deceased but Selala.
It was
not he whom the police took the pistol from which the fatal shots
were fired. It was not Selala near whose body a knife
was found. It
was found near the appellant. Put quite shortly, the defence is that
the Crown witnesses, independent observers,
as well as the police
must have conspired wickedly to put the blame on him, an innocent
man. Indeed, as was put to Crown witness
after another, "Everything
you have told the Court is a figment of your imagination".

5

Mr
Uhterhalter correctly in my opinion stated the three central issues
(as he called them) in this case. They are :

1. Whether
   it was the appellant wearing the brown travelling rug (described as
   a "Scotland") who fired the shots at Trooper
   Mahlo and who
   killed Moji, as the Crown alleges.

   
   

2. Whether
   it was the appellant in whose possession Sgt Mokata and Sgt Pekile
   found the pistol and bullets, as the Crown alleges.

   
   

3. Whether
   the person concerned in the killing was not the appellant but Selala
   wearing a greyish and red travelling rug, as the
   appellant alleges,

   
   

Mr
Unterhalter also correctly pointed out that this Court will interfere
with the finding of a lower court, where the probabilities
of the
case or other factors in favour of an accused have clearly been lost
sight of. He then suggested certain alleged probabilities
and factors
in favour of the appellant of which the learned trial judge was said
to have lost sight. I have examined each one of
these alleged
probabilities and factors - they consist in the main of minor
discrepancies in the evidence of certain of the Crown
witnesses. None
of these, nor a compound of them, appears to me to be of any real
substance, and certainly not of such a nature
as would justify
interference of this Court with the findings of the learned trial
judge in his carefully and fully reasoned judgment.
The observations
that I have just made apply equally to certain alleged
improbabilities in the Crown case.

There are
two arguments put forward by Mr. Unterhalter to which I should refer.
Mr. Unterhalter submitted, as indeed he was obliged
to, in the face
of the Crown evidence that there was a conspiracy between the
villagers and Nchala and Khutlisi on the one hand,
and the police on
the other to implicate the appellant. Quite apart from the fact that
there is in my opinion not the slightest
ground of any value upon
which this argument can be based, Mr. Unterhalter, in reply to a
question by my Brother Steyn as to when
this conspiracy was hatched,
was not surprisingly unable to deal with this point. This was not
surprisingly in view of the fact
that on the evidence, the conspiracy
must have occurred on the same day between the disparate
participants. I say on the same day

6

because
the defence elicited testimony that on that day Sgt Mokata recorded
in the occurrence book the items he found on the appellant
and which
were then in his, the witness' possession. These include three
bullets and a pistol holster, but not the pistol, Exhibit
1, which
was in the possession of Sgt Pekile. However, again in support of his
submission that there was a conspiracy, Mr Unterhalter
stated, and I
quote :

"That, as with accomplice evidence, a convincing corroborative
account was given by the Crown witnesses of the attack on Mahlo
and
the killing of Moji and that it was the simplest of stratagems to
substitute the accused(appellant) in a brown travelling rug
for
Selala in the greyish and red travelling rug, as the person
committing the crime".

I regret
to say that the logic of this argument escapes me. One knows that an
accomplice sometimes or perhaps frequently attempts
to shift the
blame for his own conduct upon the shoulders of an accused, or shift
the blame of one accused upon another. How it
can possibly be
suggested that this can apply to the evidence of any of the Crown
witnesses I simply cannot understand. In my judgment
the finding of
Mofokeng J cannot be faulted. A reading and re-reading of the record
satisfies me that the Crown proved the guilt
of the appellant beyond
all reasonable doubt - the evidence against him was overwhelming and
in my judgment there could not possibly
have been any other verdict
than that he was correctly convicted and sentenced on all counts.

I.A. Maisels

Signed: ....................

I.A. MAISELS

President

I.A. Maisels

I agree
Signed: for. B .Goldin.......

B. GOLDIN

Judge of Appeal

I.A. Maisels

I agree
Signed: for J.H. Steyn

J.H. STEYN

Acting Judge of Appeal

Filed
this 8th day of May 1982 at MASERU

Mr.
Unterhalter for Appellant

Mr.
Kamalanathan for Respondent