C of A
(CRI) No.6 of 1989

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

JOHN T.
RALENGANA Appellant

v

REX
Respondent

Held at
Maseru

Coram:

Schutz P

Mahomed
JA

Ackermann
JA

JUDGMENT

Schutz P.

The
appellant John Ralengana was convicted in the High Court of armed
robbery, and was sentenced to six years' imprisonment. He
appeals
agtainst the conviction. Originally two other persons were joined
with him as accused numbers 2 and 3, but they were both
discharged,
the one during and the other at the end of the trial.

2

The issue
raised by the appellant on appeal is his identification as one of the
robbers, when a sum of between M30,000 and M40,000
was taken from the
Blue Mountain Inn at Teyateyaneng on 3 July 1988.

The
principal eye witness is Marai Retimeletsoe, who is also the one from
whom the money was taken. In the course of his duties
as assistant
manager, he was cashing up in the office after midnight, cash having
been brought in from various points of sale.
According to him a man
entered hurriedly, pointing a gun at him. Another man also entered
holding a butcher's knife. Both men had
white cloths across the lower
halves of their faces. The gunman Marai identified as the appellant.
He said that he was wearing
a white sporty hat, a blue lumberjacket
with a checked lining, blue jeans and white tackies. He was described
as tall and slender,
with a dark brown complexion, and was said to be
recognisable by that and by that part of his face which was not
completely covered.
Marai said that he had known him since 1978.

He said
that he focused his attention on the gunman, and only glanced at the
other robber who was holding the knife to his side.
Marai could
neither describe him, save to say that he was of average height, nor
say what clothes he was wearing.

Marai
conceded that he was "in a state of shock," surprised, and
in fear of his life. But, he added, "I managed to
see everything
that was happening because everything that I saw was putting my life
in danger."

3

The
gunman demanded money. Marai pointed to the locked safe. The gunman
demanded that he produce the keys, which he did, after which
he
opened the safe. The money was then taken, in two bags marked
respectively "Bottle store 1" and with a M on it, and

"Petty Cash", also with a M on it. These two bags were
later identified by the witness when they were shown to him in
the
possession of the police.

The
robbers then left. After a while the witness heard a gun shot, the
roaring of a car's engtine, and a woman's scream.

Warrant
officer Raleake of the R.L.M.P. described how, a day or two after the
robbery, he accompanied the appellant, who was then
in custody, to
the latter's home. The appellant asked his wife to bring the money he
had given to her. She fetched a screwdriver
with which she unscrewed
the back portion of a speaker. Inside were two white bags, one marked
"Petty Cash" and the other
"Bottle Store". Each
had a M on it. These were the bags later recognized by Marai. Inside
them was a sum of more than
M10,000.

The Crown
witness 'Mateboho Lebakeng, to whom I shall return, said that the two
bags found looked like the ones that had been used
at the hotel.

Another
witness Rebecca Hlokoane, who worked with the books and the money,
also identified the two marked

4

bags,
saying that the writing on them had been placed there by the manager,
Mr. Lee. She added that both the bags were in the hotel
on 3 January
1988, but had disappeared by the 4th.

In giving
evidence the appellant had a very different version. He said that at
his house the police opened his briefcase, where
they found money
amounting to some M3,6000. This he said he was keeping in order to
pay tax on his cars. The police then asked
for the other money, and
he said he kept it in the speaker. He then unscrewed the speaker. In
it was some M8,000 in two bags. He
told the police he got it from his
taxi business and from his flats. But his bags, he said, unlike the
hotels bags, had no writing
on them. The striking thing is that this
version of the finding of some of the money, which differed markedly
from that of the
warrant officer, was never put to him.

The
evidence as to the markings on the bags was strongly incriminatory,
and I find it quite astonishing that the denial of this
simple but
important point was not put. The clear impression I have is that the
appellant was making up his defence as he went
along. In addition I
agree with the comment of the trial judge that it is improbable that
he would keep so much cash under the
proverbial mattress when he had
three bank accounts with the three major banks in Lesotho.

I return
to the evidence of Ms Lebakeng. She worked as a receptionist at the
Blue Mountain Inn and knew the

5

appellant,
although she did not know his name. She says that on the night in
question the appellant arrived at the hotel at about
7 pm. She spoke
to him, passing on a message that a lady friend of his was already
there.

She said
that he wore a blue lumber jacket with a checked lining, blue jeans
and white tackies. Later in the evening she saw the
appellant again,
still on the premises.

Throughout
the evening his dress did not change. At a stage a number of people
came running out. One of them was the appellant.
He was holding a
gun, and "had covered his face with a cloth." When she
stood up in surprise he fired a shot upwards.
She screamed. One of
the escaping party was holding two bags. She then went to the office
to find the place in disarry. There was
a butcher's knife on the
floor.

The
appellant denied that he was dressed as described by the two
witnesses mentioned. He said that he was wearing a white jacket,
a
fawn shirt, trousers between fawn and white, and black shoes. He
denied owning a "sporty" hat. More generally he denied

being at the Blue Mountain Inn on 3 January 1988 at all.

Therefore
the defence is that Ms Lebakeng was not merely mistaken but actually
lieing. I say this because she had ample opportunity
to observe his
dress at a stage when there was no cause for alarm. Her observation
of the gunman's clothing was not confined to
seeing him when he ran
out. The learned trial judge found her to be a reliable and credible
witness. I see no reason for differing
from

6

that
view. It was put to her that it was very improbable that anyone would
have behaved as she said the appellant had behaved, risking
immediate
identification from a person who knew him, and who had seen his dress
earlier in the evening. She did not argue with
that proposition,
saying simply, in answer to the question. "I certainly agree
with you that no sensible person would do things
you say accused I
did," that, "I agree with you." Criminals often do
very silly things.

For the
appellant it was contended that the various witnesses had colluded,
and that the very similar descriptions of the gunman's
clothing by
two witnesses goes to show this. The fact that Ms Lebakeng was unable
to describe the former 3rd accused in any detail
does not necessarily
carry the matter further. Rather, if there had been collusion one
might have expected more perfect evidence.
I do not think that the
record affords evidence of collusion.

The point
is also raised that the clothes described by the witnesses were not
found when the appellant was arrested. But, nor was
a gun found. The
appellant had ample opportunity to rid himself of incriminating
items, other than, of course, the money.

The
learned judge described Marai as a forgetful person who must be
corroborated in all respects. However, he found that there was

sufficient corroboration, and that the appellant's evidence was so
improbable that it could not be treated as reasonably possibly
true.
I agree fully

7

with the
learned judge's reasoning. The evidence concerning the bank bags is,
in my opinion, quite damning.

In the
result the appeal is dismissed.

W. P.
SCHUTZ PRESIDENT

I agree:

I.
MAHOMED

JUDGE OF
APPEAL

I agree:

L.W.H.
ACKERMANN

JUDGE OF
APPEAL

Delivered
at Maseru this 27th day of July 1990.

For the
appellant: Mr. T. Monaphathi

For the
respondent: Mr. G. S. Mdhluli