HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 20th day of September,
charged the accused with having committed three criminal offences
enumerated in Counts 1, 2 and 3. The first two are of
the last is of theft.
deceased, husband and wife i.e. Lehlohonolo Moloche and Mannena
Moloche respectively are allegedly to have succumbed to injuries
inflicted unlawfully and intentionally on them on or about 18th March
1989 at a place known as Maqoala in the Mohale's Hoek district.
accused pleaded not guilty to both these charges.
content of the 3rd charge is that the accused intentionally and
unlawfully stole a wallet, a watch and a sum of M1-50 all belonging
to Lehlohonolo Moloche. This offence is alleged to have occurred
around the same time and place as the two other offences referred
pleaded not guilty to this offence as well.
witness for the Crown was PW9 number 1570 Detective Trooper Jonase
who testified that he is a member of the Royal Lesotho
stationed at Mohale's Hoek and is attached to the C.I.D. section.
1989 this witness was still at his Mohale's Hoek station. He
testified that on 20th March 1989 while at his duty station
received a report about two dead bodies which seamed to have suffered
death from unnatural causes.
a vehicle and made for the scene in the company of detective troopers
Seeiso PW10 and Moseli. On arrival at the scene PW9
saw the dead body
of a woman lying below a hill. The body was covered with blood all
over. PW9 saw three wounds on it. He saw a
wound on the left corner
of the head, another one below the left eye and the third was in the
form of a tear on the upper lip.
PW9 formed the opinion that the two
wounds on head and below the left eye respectively were caused by a
blunt instrument. They
were nonetheless open wounds. The one on the
upper lip seemed to have resulted from a sharp instrument.
PW9 and his colleagues were surprised that there was no evidence of
blood having collected underneath the body when they
shifted it to expose the
below it they started looking for clues from which to determine how
this body could have come to the place where it was found
Thus 20 paces away from this body PW9 and his colleagues saw a
footpath next to which were
stones with blood on thorn. The ground where the stones were had some
blood that appeared to have been covered with soil. Other
bushes nearby appeared to have borne some blood.
hundred yards away from this body PW9 was taken to the second body.
This was a man's body. It lay some 15 paces away from the
mentioned above. It appeared to have been pushed into and among some
high shrubs. This witness whose height is 5 feet
10 inches testified
that the shrubs where the body lay over-topped him in height by about
examining the scene PW9 discovered that the shrubs and grass were
broken. Around that area the grass was about an ankle high.
grass was broken from that point to some other point at the path.
examining the body two wounds were visible on the deceased's head.
One was in the middle of the head while the other was on the
corner of the head. Both appeared to have been caused by a blunt
instrument and. were open. There was no blood on the ground
where the boby was lifted by PW9 and his colleagues. Thus it was
PW9's conclusion that the body had been transported to the
the bushes after the blood had congealed. Following the lead of the
disturbance on the grass to the path PW9 found that
there was blood
on the ground and shrubs near and at the path.
testified that it appeared that soil had been used to cover the
blood. This view he came to for it seemed the soil had scattered
the path and on grass
examined the vicinity around this second spot and found a bamboo
coloured crook made of cane with a black plastic tip (apparently
purposes of protecting the tip from wear as it comes into contact
with the ground). Around the area where this crook was found
were neither foot prints nor signs of disturbance on the grass.
places along the path opposite the respective corpses PW9 collected
stones which were stained with blood. These respective
about five hundred paces apart. The dimensions of one of these stones
was given as about 1 ft by 6 inches by 3 inches.
collected these stones along with the cane stick and handed them
before the court below at the preparatory examination of this
However at one of the sittings of the High Court at Quthing PWS
discovered that the stones were all missing except the
handed in and marked Exhibit"1".
the dead bodies to the mortuary. These bodies did not sustain any
further injuries from where they were collected to the
they were taken for purposes of post mortem examination.
days thereafter following some information PW9 dispatched police to
arrest the accused and one Lebohang.
cross-examination PW9 testified that the ground at the scene was wet
and that he noticed human foot prints. PW9 couldn't discern
foot prints were of one pair of feet or of more because they seemed
to have been imprinted on broken grass which formed
a trail. He
further testified that there was a stream near where Lehlohonolo's
the tall shrubs. The woman's body too lay next to a stream. But this
is a different stream from the one next to which the
man's body was
found. These streams converge further down.
response to the question whether the grass from the path to the
respective bodies seemed as if something had been dragged
on it or
rolled said it did not seem as if anything had been dragged along
that grass. He said the soil used to cover the blood
in both spots
near the path appeared to have been liberally sprinkled.
explained that the stones he had collected were three in all - two
from the spot at the path near where the male deceased was
other from where the female deceased was found. All of these appeared
to have been freshly chipped and also to have
been knocked together.
There was no soil on any of these stones. In fact they seemed to have
been placed by some other agency than
natural where they were found.
elicited through cross-examination that PW9 had appealed to people
gathered at the scene that anyone who knew of whoever
for the deaths should report the matter to the police. PW9 was
however not informed there and then by anyone who
knew of who had
committed the offence even though Lebohang and 'Mampe had allegedly
been informed by the accused about this.
he knew that Lebohang had also been arrested as a suspect. He didn't
know if Lebohang was arrested before or after the
accused. In any
case Lebohang was not arrested by PW9. He said he didn't remember if
Lebohang's wife 'Mampe was also arrested.
put to PW9 that the accused was kept ten days in detention in a
matter investigated by PW9 but the latter replied that even
didn't remember. PW9 was informed that the accused would say
(presumably when testifying in his defence) that he was kept
detention and viciously tortured under PW9's command and by his
physical act too. PW9 denied this.
stated that he didn't believe the suggestion that the Court ordered
on 4th April 1989 that the accused be medically examined
the assaults he received in detention.. PW9 further stated he didn't
remember where he was when the accused was taken
to Court on 4th
put to PW9 that at Preparatory Examination he had said 20 paces away
from where he found the body of the male deceased there
of blood. PW9's answer was a virtual affirmation of this though he
seemed to make it appear that he had said differently
examination, His answer was:
"..........? I said from the body and not towards the corpse.
What is the difference.......? Yes there is the difference for there
was no blood at the place where the body was and along the
regard to the woman deceased PW9 testified under cross-examination
that there was no trail of blood from the rock on the blood
spot to where the body was.
there were signs of some struggle near where he found the stones
twenty paces away from the male deceased but none where
the body was
found. The same was the case around the blood soaked spot several
paces away from the female deceased.
he was shown items of property near each of the deceased. Near the
woman deceased he found a jersey and a shoe. This deceased
wearing the companion of this shoe on one of her feet. He also stated
that he saw near the stone at the path uprooted
senokonoko sheaf. In relation to the male deceased he found uprooted
sehalahala near the blood soaked spot. He also
found a cane stick in
the gulch some distance away from the male deceased.
witness was referred to the preparatory examination record where he
referred to two instead of the three stones he talked about
Court. He however insisted the stones were three and stated that he
couldn't remember if he referred to only two at the
his story in perspective at preparatory examination this witness said
at page 26
"........ stones had moved and brushes ......broken. The stones
had been freshly broken. Other stones had scratches. These
stones. I took two of them".
possible that the two of them referred to above are in reference to
the spot relating to the deceased 20 paces away from
the path. Thus
it seems to me the witness was not referring to the total number of
stones he collected from the respective spots
of both deceased. He
spoke in relation to the male deceased and was not led in relation to
the stone he picked in relation to the
female deceased according to
my reading of the relevant portion of the P.E. record. In this
context the witness's honesty was brought
to the surface when he said
he didn't remember if at P.E. he said he collected only two instead
of the three stones he referred
to in this Court.
told that he only mentioned footprints leading from the path to the
male deceased when he heard Counsel for the accused
mention it. PW9
replied that he had indicated that grass was broken along the "path"
leading to the body of the deceased
showing that it was trampled on.
It was suggested to PW9 that grass or bush can be broken by anything
but he insisted that it appeared
to have been walked on.
admitted that he had heard about a watch removed or stolen from the
deceased's body. He further admitted about hearing as well
purse as/the Ml-50 stolen or removed from the deceased's body. He
also admitted hearing of the fact that the watch was
said to have
ended up in 'Mampe 'Mapane's possession.
denied ever being untruthful to this Court. He denied that he was
evasive on important aspects of the case. He told the Court
wasn't true that the accused was tortured by him or in his presence.
He denied that the accused was at all sent to a doctor
witness for the Crown was PW10 No. 5544 Trooper Seeiso who testified
that he set out for Maqoala where he received information
people who had died. He and PW9 made for the scene where they found
many people already seated. Among them already
were the Chief and
Sgt. Mphahama. The Chief took them to the body of a woman who was
lying face down. The number and positions
of the wounds . observed by
this witness Tend support to PW9's evidence on the relevant points.
There was a jersey near the body.
It had blood on it. The only blood
seen was near the footpath but none near or under the body. This
witness saw three broken stones
near the blood. They were stained in
blood and were about half the size of a foot-ball.
investigating team then headed for the body of a man some 400 paces
away from that of the woman. This body was among "kolitsana"
brushes. There were two open wounds on the head which was flattened
from front right to base. Teeth were protruding. At a point
foot path some distance away from the body PW10 observed blood which
seemed to have been spilled and later been covered
with soil. Near
the blood was a green bag made of wool described as the type of bag
used by old men. This was a sling bag the size
of this witness's
palm. There was a brown wallet also. These purses were both empty.
March 1989 PW10 set out for the accused's residence in the company of
Troopers Moletsane and Pheko. They found the accused
introduced themselves to him and PW10 showed him his I.D. Card and
gave him caution. Thereafter he charged the accused with
murders; arrested him and took him to the Charge Office at Mohale's
stated that either on 26th or 27th he and others were led by the
accused to a place where a handle of a knife was recovered
the two bodies had been found previously. This handle was of a knife
regarding which the accused is said to have made
a report to PW10.
The blade was broken and the accused's explanation of how it got
broken was that it got broken when he was stabbing
deceased. This handle was handed to the Clerk of Court Mohale's Hoek
but it went missing.
put to PW10 that the accused would say he never showed PW10 any knife
anywhere any time. PW10 denied this.
denied making the accused dig with his fingers for a knife at a spot
to which the accused was taken at the area where bodies
PW10 readily inclined to the inquiry whether the knife was picked up
on the surface of the ground covered with grass.
on the day the bodies were collected from the scene he had looked for
clues and suspicious objects that might have been
used to commit the
murders. He didn't find the knife handle that day. When discovered
this knife was lying some 45 to 50 paces
away from the woman's body.
He said he didn't know what happened to the blade. He said that the
question put to him that PW1 'Makamohelo
Moloche took the blade was
new to him. He said he never interrogated PW1 about the alleged
told that the accused would say he knew nothing about the knife,
further that PW10 took the accused to where the bodies
were found and
ordered/to look for the knife he know nothing about till he found it.
PW10 denied this. It was put to PW10 that
the accused dug with his
fingers into the ground. This too was denied by PW10. He also denied
that the knife handle was not above
the grass but dug under the
surface of the soil. He denied leading the accused to where the
bodies had been. Asked to explain
"What happened. Did you just say to him take us where the bodies
were .....? We were not going to the bodies but where he
said he had
thrown a knife. Meaning it was by coincidence that the knife handle
was found where the bodies had been found ........?
further stated that it was through investigations that he realised
five days after the bodies had been discovered that the
the culprit. He said he
know about the arrest of Lebohang but did see him at the police
station. PW10 despite having said that he had seen Lebohang
charge office and thus giving an impression that he did not know what
he had come to do there stated that he had seen him
at Maqoala at the
time when this witness was going to take a statement from him. This
time the accused was already under arrest.
conceded to the suggestion that the accused would say when he got to
the charge office after his arrest he found PW2 Lebohang
that PW1 handed a knife blade to him. He denied ever seeing the knife
blade described as rusty. He denied that the accused
last saw that
knife blade in PW10's possession at the police station. He further
denied that the knife blade was purposefully made
to disappear in
order to mislead the Court.
admitted that the accused was arrested on 26th March 1989. He however
did not know who took him before the Magistrate. He stated
would not be in a position to deny that the accused was brought
before a Magistrate on 4th April 1989. Nor would he know
magistrate ordered that the accused should go to see the doctor as he
had been assaulted.
reiterated his statement that the female deceased had one wound below
the right eye and another on the right side of the head.
there was a cut wound on the Tip but explained that because of the
clotting of blood it was not clearly discernible
if the cut was
incised or rugged. He held fast to his story that the male deceased
had two open
the head. Consequently Counsel for the accused withdrew a question
which initially was intended to show inconsistency
witness's testimony and the doctor's on the point.
admitted that at P.E. he had said he followed a trail to the man's
dead body. This he described as a narrow trail not in constant
It was covered with grass here and there and was wet at certain
points hence his ability to see footprints along it. It appeared
than one person had used it. He explained that some footprints
went even beyond the man's body but stated that one couldn't
determine if the footprints were in any way connected with the
conveyance of the body.
mind this should not be surprising because other evidence disclosed
that some boys who came to report to some villagers including
accused's aunt about their discovery of a dead body were advised not
to make any mention of that even though it had been realised
village that the two deceased's absence for days before was
unaccounted for. Not to mention that the accused's aunt including
and PW3 and one more women had allegedly heard the accused say he had
killed those deceased. PW2 and PW3 had not only heard
this but had
seen the two dead bodies allegedly shown to them by the accused
himself and had been allegedly forced to dispose of
stated that ho received a report about the watch, purse and M1-50
allegedly stolen by the accused from the dead man. His investigations
led him to the recovery of a purse though and not any of the other
items of property. This purse he said he found near the man's
body. He said he questioned 'Mampe about the watch he had learnt had
way to her possession but did not find it.
re-examination PW10 illustrated that the bodies appeared to have been
dumped where he found them for there was absence of signs
movements to the respective spots and of blood below where they had
further testified that of the three stones he alleged he found some
distance from where the woman's corpse was he took only two
only these were blood stained, and therefore vital to his case. He
said he was positive he was led by the accused to the
spot where the
accused retrieved the knife handle. He stated there couldn't have
been any reason why he would hide the knife blade
from Court. He
reiterated that all the exhibits which disappeared had been handed to
the Clerk of Court for safe keeping during
P.E. It was then that they
disappeared. He stated that the knife wound was the one on the dead
woman's mouth. He said this was
a knife wound because it was straight
and not rugged.
witness for the Crown was PW2 Lebohang Mafoso who was introduced to
the Court as an accomplice. After his rights had been
him and he had expressed willingness to give evidence he was sworn
and he testified that he could neither read nor
write. His home is at
Mpharane some distance from Maqoala. He said he knew the accused as
the latter used to come and stay at 'Mamotelele's
in the Ha 'Mapane
the two deceased. Asked if he could recall the events of 18th March
1989 he told the Court that this was a Saturday when
he and others
were at Ha Rampeli with the two
They had gone there for the ritual ceremony of the removal of a
mourning cloth. The two deceased had a daughter married
others spent their time at this place until after sun set when the
two deceased left him at late dusk. PW2 remained there
late. He only loft when the moon was up and around that period the
moon would set just before sun rise. When PW2 left
the two deceased
had long left. PW2 was in the company of PW3 'Mampe.
testified that when he and PW3 were at Hlabaneng-sa-Ha Rannoi heading
for their home they heard some (natural) whistle being
stopped when he heard this whistle. So did PW3. When PW2 looked back
he saw the accused appearing from the direction of the
waited for the accused because he knew him and was a follow-villager.
The accused reached and joined PW2 and PW3.
paces later the accused said "Ngdanabo I have done something
bad". PW2 asked what. The accused replied that he
Paballo and 'Mannena.
proceeded along their way.
further testified that although he had seen the accused at Ha Rampeli
at day time the accused was not at the house where the
and he were. The accused was at the old Mamalefana's house next door.
PW2 did not see when the accused left for their
when reporting his alleged act the accused was talking normally. He
was speaking not in whispers but in
voice. PW2 would not say if the accused sounded fulfilled in what he
reported he had done because he said he didn't know the
well as to make any such determination about him. He told the Court
that the accused has a big voice and that he was
speaking in his
usual big tone that he had heard him speak in to others.
moved along with the accused leading the way followed immediately by
PW2 they came upon the body of the deceased 'Mannena.
stood aside and pointed at the deceased and said "this is where
I killed 'Mannena".
deceased had lain across the middle of the path which measured about
a foot in breadth. The witness was positive that two people
walk abreast in that path.
accused ordered that PW2 should pick up 'Mannena's body and carry it
along with the accused to dump it off the edge of a ledge
ridge. The ridge was described as not far from the spot where the
body was picked up. The distance between these two points
estimated at between 40 and 50 paces. From the sound of the accused's
tone PW2 felt that he was not being requested to help
but was being
commanded to carry the body. When PW2 protested that he had never
carried a dead body before the accused ordered
him to quit his talk
and do as told.
he saw that this deceased was full of blood in the upper part of her
body. The accused ordered him to take the deceased
by the legs. The
two men lifted the body (the accused holding the head) and tossed the
body over the edge of the ridge.
he complied with the accused's order to carry the deceased by her
feet because he feared him and has all along been afraid
of him. He
testified that ho never exchange any words with the accused because
the accused never talks to him. Although their homes
are only 50 to
60 paces apart with the accused's aunt where the accused stays PW2
would rather communicate with the accused's aunt's
children if he
wishes to make a report about that household's stray stock or drive
the stock himself than alert the accused to
any such event.
the Court that the accused was threatening him with death if he did
not do as ordered. The words attributed by PW2 to the
"Hey, you fellow as you refuse carrying this person I kill you
here and now. I will kill you both with 'Mampe like this person".
he was besides himself with fear at this stage and feared that the
accused was going to kill him.
described the ledge where 'Mannena's body lay hidden from view as
shallow - only the height of the chair from the scat down.
the weight of this deceased's body PW2 said he was compelled to take
short unsteady strides.
clear to the Court that although the lodge was shallow it effectively
obscured the body thrown into it from the view of anybody
along the path from where it was picked up.
the accused picked up the deceased's jersey from the scene wiped
blood from the ground with it and rubbed off dirt from
stepping on it with his shoes. The accused then took this jersey and
threw it where 'Mannena
dumped. This time the accused went there alone. Then he came back and
placed stones on the blood which had collected in
the path where the
body had been.
when ha responded to the accused's whistle they were twenty paces
apart from each other.
the particular area where he saw the stones which were later dunked
into the blood was not rocky. He felt that these stones
been brought there by someone. He said 'Mampe didn't help carry the
deceased or even accompany the two men to the
edge of the ridge where
the body was dumped, but remained behind.
this then the trio picked their way along the path leading to their
village. They moved silently without talking. Then
they reached a
spot where Lehlohonolo's body was lying some 400 or 500 metres from
where that of 'Mannena's was found. Lehlohonolo
is also known as
Paballo. The accused is said to have said "here is this other
one of the man I killed". Only the legs
of this body were in the
path. The rest of the body was outside the path. The head was resting
near a "lengsna" bush.
accused pointed at this body and immediately searched the pockets of
its cloths. He thrust his hand up the deceased's inner
Apparently the deceased had strapped a sling purse to his body. The
accused, I am told extracted a palm sized brown purse
this woollen one. The accused further opened this brown purse from
inside which he took Rl-50. PW2 said he saw that
this was Rl-50
because he was next to the accused and because oven though he cannot
read or write he can count and identify money
through his constant
use of it. He told the Court
purse has a flap that goes over the mouth and gets secured to the
side of the purse by studs.
stated that the accused extracted white papers from the woollen purse
and took them into a field nearby and set them alight.
testified that the accused wont to the male deceased, removed that
deceased's watch and handed it to PW3. When PW3 asked
what she was to
do with this watch the accused said to her "Hey you I say you
should throw away this watch". PW3 then
did as ordered. PW3
hereself said she made as if to obey the order. As a concession to be
deduced from PW2's testimony on this
point the Court was to hear PW2
testify as follows "I only saw the hand move in a throwing
motion but did not see the watch
further informed the Court that the accused thrust his hand along the
male deceased's waist and extracted from a hand made sheath
knife. The accused pocketed this knife.
on to say the accused then ordered him to hold the male deceased by
the feet while the accused held him by the face-end.
They placed the
deceased among the bushes in the dingle near a brook. The accused
then uprooted the Senokonoko bushes. The deceased
had been carried
and placed about 4 paces away from where PW2 first saw him lying
across his path.
testified that the brook goes on the other side and the shrubs have
created a thick cluster of impenetrable curtain to sight.
this point he stated -
"No way can one passing along the path sue a body dumped on the
other side of the shrubs. The view is obstructed by a canopy
"Senokonoko" which the accused had uprooted the latter
using it as a broom swept the blood with it. This blood
was where the
deceased's head had rested four paces away from where the body was
stated that he complied with the order to carry this other deceased
also because he feared he would come to some harm if he
In this regard PW2 testified as follows :
"The accused asked me if I was still fooling when told to carry
the corpse. The same threat was used that I would be killed.
I was so
afraid that I felt I wouldn't have been able to run away. I said I
was scared. Then the accused said : Don't tell me that
S...... Then I
that when the accused realised that the "Senokonoko" was
not effective in sweeping the blood he kicked a chunk
of soil and
covered the blood with it.
the trio headed home.
PW2's testimony that in answer to PW3's question accused replied he
had killed both deceased because they were making life
his aunt. By accused's aunt PW2 understood that this was a reference
to 'Mantsie Moloche who lived some 20 paces
away from the deceased's
ho also is the accused's neighbour and swore that it was not true
that the two deceased made life unbearable for 'Mantsie,
reaching their home village a kilometre or less from
Sehlabane-sa-Rannoi the trio came to 'Mathoriso's house.
accused knocked at the door. PW4 'Mathoriso opened. She appeared to
know who was knocking. PW2 saw her at this stage holding
which he had seen the accused wearing during the day.
explained that PW4 and the accused are not related. However the two
are often seen together with 'Mantsie. Even that day they
testified that the accused is not married. PW4 is married and her
husband works in the mines.
accused, we were told, reported to PW4 that he had killed Paballo and
'Mannena. PW2 said he heard this for he and the accused
when the accused said this. Asked to say the actual words PW2 said
the accused said "'Mathoriso I have killed
Poballo and 'Mannena
just now". Then PW4 said "I would rather you had not killed
'Mannena". PW2 said he saw PW4
shedding tears at this stage and
observed that she was crying.
further to say that the accused asked PW4 to join him, PW3 and PW2 to
PW5's place where the accused said they should go.
The accused did
not say why they should make for PW5's though.
rolling volcanic mud the initial party of three collected PW4 on
their way to PW5's.
accused knocked at the door of the hut there. PW5 'Mantsie asked if
the accused wanted the key. The key in reference according
to PW5 was
that of a nearby flat of hers normally used by the accused for
the accused replied that indeed he wanted the key. However the
accused, it is said, invited PW5 to
for as he suggested PW5 had visitors. PW2 said he had never intimated
to the accused that he wanted to go to the accused's
by visitors PW2 understood the accused to include him among these
others who did not stay at PW5's place.
opened the door to the flat roofed hut and asked these people to go
inside. They sat down in there. Then the accused said to
have killed Paballo and 'Mannena just now". PW5 said "if
only you hadn't killed 'Mannena". Saying this
PW5, the Court was
told, started crying; ana that she appeared frightened to PW2's
observation when this report was made to her
by the accused.
PW5 why the accused had killed 'Mannena also, it is said he said "I
killed her because she shouted my name".
Asked to explain what
harm there could have been in 'Mennena shouting the accused's name
the Court was told that the accused replied
as follows :
"Aunt I killed her for she had said Sosolo I know you. You are
the one killing my husband".
accused is known as Sosolo.
the presence of PW2 advised the accused to go and report himself at
the police station at sunrise. To this suggestion it
is said the
accused asked why he should go to the police and who in any event
would have revealed this whole matter. When PW5 suggested
and PW2 would the accused is said to have said "if they dare
reveal it I'll kill them". It is said that when
that she knew that these children don't keep secrets and that they
would reveal this the accused sold if he did not
kill PW2 and PW3
then on reaching the charge office he would report that PW3 and PW2
had already killed the two deceased.
and PW3 left for their own home. The accused did not stop them. PW2
said Ha Rampeli is closer to Sehlaba-sa-Ha Rannoi than
the latter is
to Ha 'Mapane the home village of PW2.
morning according to his version PW2 went to the home of PW7 one
Chiriki in an attempt to report about these two deceased.
of the matter is corroborated by PW7 as follows :-
"On Sunday PW2 came to me. He told me about the fact that the
two deceased had died and how he came to know about it from
PW7 following this report took some steps to inquire from the
deceased's children about the deceased's whereabouts
as well as to
PW5's place where the accused stayed. PW5 gave him a report. The
following day being a Monday PW7 said he went to
place but on the way he saw people from chieftainess 'Mabatho's place
moving in the opposite direction in search
of the deceased.
the bodies were found on that Monday. Apparently when he saw this
search party he didn't proceed to the chieftainess's place
went there on Tuesday the day following the discovery of the bodies.
He said he reported to the chieftainess what he had
been told by PW2.
corroborate PW2's story as to the utterances made by the accused
during the night at both the scene and at the homes of
PW4 and PW5.
There was however some element of discrepancies about the fate of the
watch that the deceased Paballo was stripped
of by the accused.
thrust of the Crown evidence is that on the Saturday when there was a
ritual feast held in observance of the removal of the
the two deceased were seen leaving the place of the feast at Ha
Rampeli for their home. PW2 and PW3 hod been in that
village and at
the home where this feast was held.
deceased asked PW2 and PW3 to accompany them back home but PW2 and
PW3 declined to do so saying they were still busy drinking.
the Court that PW5 whom she had wanted to go back home with had
disappeared in the village. So because she wanted to go
home to Ha
'Mapone she asked the accused to accompany her. When the two had
approached Ha 'Mapano within such distance that PW4
felt safe the
accused went back to Ha Rampeli.
PW3 testified that they left Ha Rampeli at around 11.00 p.m.
while they were at Khalong-la-Rannoi a place nearer to Ha Rampeli
than to Ha 'Mapane that they heard a whistle which they
came from the accused. I may just attach some significance following
on the relative distances between Ha Rampeli
and Ha 'Mapane to the fact that instead of running towards Ha 'Mapane
which is her home 'Mannena fled from
her husband towards Ha Rampeli
which was nearer to Sehlabana-se-Rannoi than was Ha 'Mapane.
PW3 heard the accused say he had done something bad and a short
distance ahead of them they discovered the body of 'Mannena
accused ordered PW2 help carry and
of, When he expressed his fear and disinclination to do so PW2 was
threatened by the accused, PW3 supports this version
body of 'Mannena had been disposed of her jersey which had been left
at the scene was taken by the accused who flung it
in the deceased's
accused took "Senokonoko" shrubs and swept the blood left
where the deceased had been removed from and further placed
there. These two witnesses support each other again up to this point
testified that from there they proceeded to the second body. There
they saw the accused search the deceased's body for
items of property
referred to earlier.
was ordered to carry the dead body and when he objected he was once
more threatened with death by the accused, he said.
He told the Court
that he carried the body by its foot while the accused held it by the
head-end. PW2 is again supported by PW3
in this regard.
Crown's evidence further indicated that the second deceased's watch
was taken from the dead body by the accused and given to
PW3 who was
asked to throw it away but she only effected a mock execution of that
movement. After the body was deposited in the
tall bush the shrub was
uprooted to sweep blood from where the body had been lying before
being hidden behind the bush. As this
make - shift broom was not
equal to the task the accused used his feet to kick sods on to the
case further indicated that the accused
that this party which/had joined should go along with him home. The
first port of call was PW4's place where the accused
called out PW4's
name and gave her a report about the fate of the two deceased. PW4
testified to this report and PW2 and PW3 confirmed
that such a report
was made within their hearing by the accused to PW4.
people were then asked by the accused to go to PW5's place. The
accused using these people to entice PW5 to come out as he
said they were her visitors obtained entrance into PW5's flat roofed
hut as well as her audience. Thus within the hearing
of PW2, PW3 and
PW4 he repeated what he had reported to PW4 that he had killed the
he did so he is said to have replied that Paballo was making life
difficult for him. Asked why 'Mannena also was killed
he is said to
have replied that 'Mannena had seen him kill Paballo so he feared
that she had recognised him for she even called
out his name. The
Crown submitted that it would seem the main or only reason 'Mannena
was killed was to silence her. Witnesses
who had testified up to this
point are agreed on it including the accused's aunt PW5 who is not
only his relative but appears to
have also boon the accused's bread
ticket as well as providing him with shelter for evidence showed that
in those rare intervals
when he could be said to be working he would
be selling oranges for PW7 a mean job that could hardly meet a man's
wonder that most of the time ho was seen ordering
drinks on tick at PW4's beer selling place. It is difficult to see
how in the
absence of bad blood between PW5 and the accused she could
come and lie about him as it was
through cross-examination on the accused's behalf.
further mark of absence of any grudge borne the accused by PW5 when
she heard the accused's story she advised him to surrender
the police. But the reply, I am told, was "why go to the police?
who would reveal this?" I was further told
that the accused wont
further to threaten that whoever would disclose his secret would
suffer the consequences for the accused
would turn state witness and
the culprit would find himself charged with the murders committed.
accused who the witnesses say had reported that he had killed the two
deceased had threatened that he would turn state witness
whoever would reveal this dark secret.
Qhomane accordingly submitted that it would appear a scare had
surrounded these people for none of them reported quickly.
earlier one positive proof of a report made was by PW2 whose act is
confirmed by PW7. The latter said he in turn took
this up with the
chieftainess though only the following day. In the sharp twists and
turns of events PW7 failed to achieve his
mission which would have
helped discover the dead bodies before anybody else had done so
because when he went to the chieftainess's
he followed the clarion
call stating that the bodies had been discovered. He only went a day
after the discovery to the chieftainess's
place about what PW2 had
had been on Saturday. The bodies were discovered on Monday. This is
the day which the police
they came to the scene on and found people already gathered at the
scene. It would seem despite the vigorous cross-examination
subjected to as to dates PW7's story is consistent with the true
sequence of events and dates of their occurrences.
Seeiso testified that subsequently the accused took him to a spot
around the scene and pointed out a knife handle which
said was used in the killing of 'Mannena. Ah attempt was made to
disallow the evidence relating to the accused's alleged
that he used this knife to kill 'Mannena but it appeared that the
Authority of Rex vs Petlane 71-73 LLR 85 militated
attempt for no evidence showed that in making the statement the
accused conveyed the meaning that he did so intentionally
or not for
purposes of defending himself.
accused had according to Trooper Seeiso indicated that this knife had
got broken in the process of use in the killing of 'Mannena.
also subjected to vigorous cross-examination the tenor of which was
that the accused denies meeting PW2 that day at the
that the accused denies having been at the scene at all. His shield
against PW2's implications against him being
that he had accompanied
PW4 and never came back there.
accordingly expressed the view that with this background and
consistently with questions put to the Crown witnesses one
expect the accused to rise to the occasion and tell the Court
differently from the Crown witnesses to whose testimony his
through his Counsel suggested these Crown witnesses were framing him.
places no burden on the accused to prove his innocence. The onus is
on the Crown throughout to prove the accused's guilt
reasonable doubt. Even if the Crown's evidence is an unshakeable
edifice of truth any reasonable doubt that can arise is
to redound to
the accused's benefit which should lead to his acquittal.
pointed out that PW2 was adamant that the accused wes there and he
saw him as well as heard him say things he is alleged
to have said
and do things he is alleged to have done.
alleged that PW2 had falsely implicated the accused because PW2 had
designs over a girl the accused loved. But PW2 said he
had no such
intentions towards that girl. He explained that the accused is merely
making a scape-goat of him.
PW2 and PW3 can be said to have some motive to implicate the accused
falsely PW4 and PW5 cannot, because PW5 is the accused's
aunt who has
been shown to live with the accused providing him with shelter and
who has been shown to be particularly favoured
by the accused who it
has been shown would suffer nobody to make her life difficult. Thus
PW5 and the accused are shown in these
proceedings as people who
maintained very cordial relationships. Likewise PW4 cannot be
accused of bearing the accused any
bad blood for their relationships
have been shown as friendly so much so that the accused was allowed
to drink at PW4's place on
credit. Furthermore evidence of his having
left his hat at PW4's has been established. No suggestion has been
made that he had
been forced by PW4 to pledge that hat because of his
failure to pay up for drinks at her place.
submitted on behalf of the Crown that the evidence adduced must be
considered in its totality instead
piecemeal in order to determine its credibility. It was pointed out
that time and again the Crown witnesses were taunted as to
lengths of distances and their respective differences. The,submission
made in the circumstances was that the Crown evidence
unchallenged and further that it is also credible. The Court was told
that all of the Crown witnesses acquitted themselves
well with regard
to credibility contrary to suggestions made on behalf of the accused.
credit is well - earned by the defence Counsel's ability to perform
the task of putting the accused's version to the Crown
consistently with the principle laid down in Phaloano vs Rex 1981(2)
LLR at 246 and Small vs Smith 1954(3) at 434.
version thus put was that the accused was going to say he was never
there and that there were never any meetings at PW5's and
he participated. The Crown contended that even if it were to be
assumed that there were contradictions in the Crown's
events they were of such a minor nature as not to detract from the
main thrust of the Crown case and the underlying
substratum of the
truth upon which it is based. The Crown submitted that contradictions
pointed out as to what was said at PW5's
or PW4's were so minor as
not to be lightly allowed to deflect the course of justice.
response to the defence's attempt to discredit as lies PW5's version
on the basis that what she had said at P,E. fell far short
she said before this Court I was referred to CRI/T/73/89 Rex v.
Lephoto (unreported) cited with approval by this Court
Rex v. Mohola.
Crown submitted that in this case whatever can be said to be some new
matter cannot properly be regarded as an afterthought
because it was
elicited under cross-examination. Thus the perennial adage is in
point here namely that a fisherman should not blame
his nets if in
sinking them in the water with the hope of catching fish they come up
containing serpents instead.
submitted that the crux of the matter is that the Crown witnesses'
version is not only credible but is corroborated in all
respects. PW2 has been corroborated by PW3 about the events that took
place at the scene. PW4 and PW5 corroborated them
that the accused
admitted having killed the two deceased. Therefore any apparent
contradictions are of no significance.
cross-examination of the Crown witnesses it appeared that the accused
denied everything. At the end of the day, as indeed is
his right, he
chose not to go into the witness's box and testify. The Crown
submitted that if indeed the Crown's evidence is credible
strong prima facie case was made by the Crown it would have been to
the accused's credit if he made an attempt to answer
what the Crown
witnesses said against him more especially, if I may add, that his
story need not be true as long as it is reasonably
out that silence is no admission of the commission of the offence the
Crown submitted that however, if the Crown's case
was made at that
time the accused should have stood up to rebut it. In doing so,
provided the Crown had made its case at that stage,
it could not be
said that the Crown was looking forward to having its case
supplemented by the defence's version.
submitted that the accused was perfectly entitled to remain silent if
he thought the Crown had not made out a case against
him. But the
Crown had in this case, Mr. Qhomane submitted.
support of the above submission the Crown reposed its faith in the
statement appearing in Criminal Law and Procedure Through
Mofokeng J as he then was) at page 216 where under the title
ACCUSED'S RIGHT TO SILENCE AND INFERENCE WHICH MAY BE DRAWN
appears the following ;
"..... The failure of an accused to give evidence may, in
certain circumstances, be taken as a factor in determining whether
his guilt has been proved beyond reasonable doubt."
in S. vs Khomo & Others 1975(1) SA 344 at 345-346 shows that :-
"It is well known that an accused person, although not obliged
to say anything, may nevertheless assist the State case when
remains silent. When I say he may assist the State case, I mean no
more than that his silence is one of the factors which may
into account in assessing the weight of the evidence in its totality,
and may be given some weight, depending upon the
circumstances. In general, greater weight will be attached to silence
where there is direct testimony implicating the
accused, which the
Court could reasonably expect he would explain away if it were not
true, than in a case where there is no such
direct evidence, and
where the question of his guilt or otherwise depends upon inferential
reasoning........ In such a case an
accused person might well take up
the attitude that he concedes all the facts proved, but he challenges
the ability of the Court
to draw an inference of guilt from the
facts, and, if that is his view, his failure to give evidence may not
be attributable to
any consciousness of guilt on his part, but to his
confidence that the evidence does not establish guilt and does not
accordingly submitted that the accused's failure to testify has
assisted the State case within the qualified meaning of
in the above authority but in so saying Mr. Qhomane was quick to say
the accused's silence had not helped supplement
the Crown's case
because at the close of the case for the Crown strong prima facie
case was already firmly in existence.
addressed the Court on burden of proof learned Counsel for the Crown
submitted that such proof rests on the Crown but there
is also the
question of evidential burden in respect of which the Court was
referred to Evidence by S.E. van der Merwe et al at
page 417 saying :
"The State will have established a prima facie case; an
evidential burden (or duty to adduce evidence to combat a prima facie
case made by his opponent....) will have come into existence i.e. it
will have shifted, or been transferred, to the accused. In
words, a risk of failure will have been cast upon him. The onus still
rests on the State; but, if the risk of losing is not
to turn into
the actuality of losing, the accused will have the duty to adduce
evidence, if he wishes to be acquitted, so that,
at the end of the
case, the Court is left with a reasonable doubt.............."
In C. of
A. (CRI) No.5 of 1980 Khoabane Sello vs Rex (unreported) at p.4
Schutz J.A., as he then was, said :
"There was therefore, in my view, not merely a prima facie Crown
case, but one of considerable weight to which a reasonably
answer could be expected. But then the appellant did........ fail to
give evidence which would have left the Court to
speculative explanations could reasonably possibly be true...."
also had reference to SOUTH AFRICAN LAW OF EVIDENCE by HOFFMANN 3rd
Ed. at p.386 where the question of onus as distinct from
burden has been discussed.
accordingly submitted that the accused had a duty to rebut evidence
adduced by the Crown in order for the evidential burden
shifted to him to be discharged.
argued by the Crown that even assuming the tenor of his instruction
to his Counsel had an element of truth in it to the effect
was not there (meaning he pleads an alibi) the accused should have
called evidence supporting him. I doubt the validity
submission. In support of the other proposition regarding failure to
give evidence I was referred to page 470 of the invaluable
Hoffmann. See S. vs Theron 1968(4) SA at 61. In support of this
proposition Hoffmann and Zeffertt say :
"If a witness has given evidence directly implicating the
accused, he can seldom afford to leave such testimony unanswered.
Although evidence does not have to be accepted merely because it is
uncontrodicted, the court is unlikely to reject evidence which
accused himself has chosen not to deny. In such cases the accused's
failure to testify is almost bound to strengthen the case
An accused's failure to testify can be used as a factor against
him......... only when...... the State has prima facie discharged
onus that rests on it ....... it cannot, therefore be used to supply
a deficiency in the case for the State ....... where there
evidence on which a reasonable man could convict".
important to note that going further the
authors say at 470 :-
"The situation is rather different when the evidence against the
accused is not direct but circumstantial. If the prosecution
proved suspicious circumstances which the accused, if innocent, could
reasonably be expected to answer or explain, his failure
will strengthen any unfavourable inferences which can properly be
drawn from the prosecution evidence".
further reposed some reliance on consequences of failure to call
witnesses and accordingly submitted that even if the
testified his explanation would not carry weight unless he explained
where he was and doing at the time in question. See
Beguidenhout 1954(3) SA at 188.
was referred to State vs Kelly 1980(3)(AD) at 301 to counter-attack
the defence's criticism of Crown witnesses as unimpressive.
famous statement to be extracted from this authority is that
credibility cannot be a substitute for evidence adduced. Learned
Counsel for the Crown invited the Court so to find. See also R. vs
Ramatla CRI/T/15/88 (unreported).
learned Counsel for the Crown submitted that on the basis that the
accused foiled to avail himself of the opportunity to explain
serious allegations made against him by Crown witnesses who outlined
circumstances in which the accused's conduct was at issue,
inference should accordingly be drawn against him.
PW2 was introduced as an accomplice who acted as an accessory after
the fact in both murders. See Section 239 of our Criminal
and Evidence. However in his final address Mr. Qhomane submitted that
ample evidence showed
is the accused alone who is accountable for the two murders. He
further stated that even if PW2 whom he reluctantly refers
to as an
accomplice was the only one who testified the Court would have been
entitled to convict on his sole evidence. But as a
credit to the
Crown's case PW2 has been corroborated by three other independent
witnesses besides PW3.
88 of Mofokeng J's reference where the position extracted from
statute is laid down at page 89 as follows :
"Any Court which is trying any person on a charge of murder or
any offence may convict him of any offence alleged against
him........ on the single evidence of any accomplice.
Provided that the offence has, by competent evidence, other than the
single and unconfirmed evidence of the accomplice, been proved
satisfaction of such Court to have been actually committed".
submitted that PW2 should be regarded as a reliable witness who stood
vigorous cross-examination for two days without
his credibility being
shaken. Instead he was corroborated by other independent witnesses.
has been alive to the submission by the Crown that while treating
PW2's evidence with due caution the Court should not
existence of other corroborative evidence.
should point out that references,/submissions, to portions of an
affidavit deposed to by the accused when applying for
bail and which
tended to cotradict the version put to Crown witnesses that he was
not at the scene are ruled
because the Crown did not bring this by way of evidence which the
accused should properly have felt disposed to challenge if
nonetheless submitted that even without reference to that affidavit
the Court should find that its case stood on firm
common cause that the defence closed its case immediately at the
close of the Crown case.
Phoofolo in reply to the submissions made by the Crown submitted that
the case being dealt with here is a circumstantial one
in that nobody
witnessed the killings; or found the accused at the scene, nor were
there any tell tale indications in accused's
possession to link him
with the deaths of the two deceased. He submitted that from the
manner described of how the deceased were
carried and the fact that
they were said to have been bloody one would have expected the
witnesses at PW4's and PW5's to have noticed
blood on the accused.
respect to the deceased Paballo Lehlohonolo Moloche the medical
report which was handed in marked "B" just before
closed its case and in terms of Section 223(7) of the Criminal
Procedure and Evidence Act it was shown that death was
due to open
head injury. As to external appearances the doctor observed an open
cut wound on fore head. The skull was cracked on
left side and the
mandible was fractured. The doctor's observations concerning the
skull are that the left temporal bone was grossly
cracked up, and
extending to frontal bone. There was extensive damage to brain
regard to the death of Mannena the doctor's post mortem report shows
that it was due to an open head injury.
appearances revealed cracked skull on left side and laceration of the
upper lip. The report further indicated that the
left temporal bone
was grossly cracked with brain tissue sticking out.
Phoofolo took issue with the police who testified for the Crown on
the question of the nature and number of injuries observed
by them as
against those observed by the doctor and recorded in his two post
mortem reports. The learned counsel submitted that
between the doctor's version and these two witnesses' versions was
submitted that because the doctor's finding as to the cause of death
in both cases was most perfunctory describing the cause
of death in
both cases as an "open head injury" learned counsel
submitted the examination was not satisfactory therefore
in the event
the Court concluded that the accused was liable the scales must be
tilted in his favour because the doctor had failed
thorough forensic examinations of the dead bodies. It was pointed out
the doctor did not say where exactly the injuries
which caused the
deaths were. See Letuma vs Rex 1976 LLR(l)at 11.
indicated that while PW10 at PE said the woman's body was found in a
stream among bushes, under cross-examination he said
it was found
below the stream. PW9 on the other hand denied that it was in a
stream, and stated that it was outside the stream.
PW7 said it was in
a stream called Mohlakolaneng.
issue was made of the disparities about the testimony of various
witnesses regarding how far opart the bodies were. The estimated
distances ranged from TOO to 500 paces. I must say with regard to the
reckoning of distances by witnesses who time and again give
in this Court vast differences in that regard are very common.
However the Court having paid particular attention to the
agonised attempts to give a fair estimate of those distances it was
persuaded to take 400 to 500 paces as the fair estimate
distance between the bodies.
the distances between the respective pools of blood on the path and
the places where these bodies were disposed of, through
demonstration made by PW2 who was actually holding each body it would
seem the woman's body was disposed of 20 paces away from
while the man's was disposed of only 5 paces away from the path.
had benefit of considering heads of arguments prepared and argued
with commendable thoroughness by learned counsel for defence.
arguments raised therein are centred mainly on contradictions and
conflicts in the Crown evidence all of which relate to credibility
11 of his heads Mr. Phoofolo contended that the Crown had failed to
dispel the following improbabilities
what good reason did the accused acting alone and unseen by anyone,
could he have elected to remain in the scene only to confess
enemies that he had done the deed, and to point out the bodies to
if he did "confess" to PW2 and PW3, why did he and PW2
hide away the bodies, and nonetheless go on to report his
PW4 and PW5, instead of urging PW2 and PW3 to keep it their own
did the accused decide, if at all, to steal Paballo's money, purse
and a watch in the presence of both PW2 and PW3,
knowing full well that PW2, PW3, PW4 and PW5 know about his misdeed
was the accused visibly present at the scene while police
and removed the bodies.
had the accused the audacity to remain in the village until his
arrest almost six days after the incident.
with the lost question it is not unknown for criminals to put on acts
question (d) it is not to be ignored that even though the accused was
making public to them what he is alleged to have
done, he had dared
them to go and report to the authorities and later face the
consequences. PW2 and PW3 had actually seen the
dead bodies whose
fate they would suffer if they did not toe the line. PW4 and PW5 had
apparerntly believed that the accused's
threats that he would frame
anyone with commission of the crimes, were capable of execution and
they feared the prospects of being
sent to jail. REgard being had to
the fact that they said they had never been to jail their fears are
not to be brushed aside as
regard to questions (a) (b) - which in part has been covered in the
answer to the question in (d) – and ; the words
of Schutz J.A.
as he then was in C. of A. (CRI)
1982 Khokoane Manamolela & 8 Others vs Rex (unreported) at page
34 may be instructive in that :
"Moreover, it would have been a singularly stupid way of trying
to throw people off the track if it was indeed immediately
that the injuries had been so caused. Suspects do, of course, do
stupid things in moments of panic or desperation"
At page 35 of the same case the learned Judge said -
"Again, of course, I must concede that suspects sometimes do
behave stupidly under the pressure of events".
CRI/T/8/8S Rex v. Naro Lefaso (unreported) at p.12 in response to a
statement postulated by Counsel that "it would be doubtful
a man who is said to have used the weapon "Exhibit 1" could
leave it at his house and make no attempt to dispose
of it, and
further that there was no drop of blood on it yet it is shown in
evidence that the deceased was bleeding" this
Court said ".....
it is not unusual for people who commit crimes to do strange things..
Next, absence of blood from a blunt
instrument cannot serve as proof
that it was not used".
relation to the instant case one may go further and state that
absence of blood from the accused's clothes would only serve to
that they did not come into contact with any. Gut with regard to
blood which was likely to stain the hands which handled the
there was no suggestion that the accused had held them out to the
witnesses to see them for themselves.
consequently derive comfort from the words of Malan J in R. vs Mlambo
1957(4) SA 727 at 73% relied on by NaiseTs P. (sitting in
Republic of Botswana) in APPEAL case no.4/1984 Clement Kobedi
Gofhamodimo vs The State (unreported) at 11 that -
"it was unrealistic to have regard to the realms of conjecture
when there was at hand material which furnished'a perfectly
rational, common sense solution of the problem'".
regard to the count involving theft I take solace in the words of
Malan J.A. in Mlambo above at 737 that, in response to the
that after killing the male deceased the accused stole his
"The only objection to this conclusion may be the fact that the
stolen articles were of comparatively small value, but it
that murders are frequently committee for very small gains".
regard to the plea of alibi that was raised it is trite that the
accused bears no onus to prove his alibi, but taking into
fact that credible evidence was adduced and corroborated in the
important respect that he was near the scene when PW2
and PW3 were
approaching it, an inference can justifiably be drawn that he prefers
to place himself as far away from the scene
as possible. In my view
that plea must fail.
range of possibilities was raised in the detaile heads of arguments
applied to the Court in an endeavour to create doubt
redound to the accused's benefit. The Crown was criticised as having
failed to address itself to these in evidence
and law. Hut again
Malan J.A. at 738 says
"In my opinion, there is no obligation upon the Crown to close
every avenue of escape which may be said to be open to an accused.
is sufficient for the Crown to produce evidence by means of which
such a high degree of probabilities is raised that the ordinary
reasonable man, after mature consideration, comes to the conclusion
that there exists no reasonable doubt that an accused has committed
the crime charged".
on the evidence adduced that the accused was closer to the scene
where 'Mannena had laid than where Paballo had, it would
unfair to infer that 'Mannena was caught in her flight from where she
had been when she alerted the accused that she had
seen him kill her
husband. It was logical that in her flight she would head for the
village nearest to the scene of her husband's
death, namely, Ha
for argument's sake, it could be said the evidence led as to motive
for the killing was false there is authority for the
view that -
"Proof of motive for committing a crime is always highly
desirable, more especially so where the question of intention is
issue. Failure to furnish absolutely convincing proof thereof, does
not present an insurmountable obstacle because even if motive
not to have been established there remains the fact that death
resulted either immediately or in the course of the same
in similar vein Schutz J.A. as he then was in Sello above at 4 said
"...... there is no room in the circumstances of the case before
the Court to embark upon speculative inferences in favour
reply Mr. Qhomane emphasised that contradictions in the Crown case
were minor and that the law lays down that in a case based
circumstantial evidence the best approach is not to treat evidence
piecemeal but to have regard to the cummulative effect of
totality of evidence adduced.
proof of the actual killings is based on circumstantial evidence the
question of the accused's reporting to various witnesses
is a matter
of direct evidence.
In S. vs
Masin 1962(1) SA 541 it is stated
"Each item of evidence is not to be taken in isolation".
In R. vs
De Villiers 1944 AD 493 at 508 it is said
"Evidence as a whole is inconsistent with innocence".
submitted in response to the charge levelled at the Crown that its
evidence is full of inconsistencies.
further stated that the argument on behalf of the accused as to
improbabilities and inconsistencies was based on speculative
assumption that the credibility of the Crown's witnesses had been
shattered. But Kelly above shows that credibility is no substitute
for evidence. Credibility serves as a yardstick in weighing up the
merits and demerits of either side. But in this case the accused
stuck by his right to remain silent. In the result only one side was
matched against questions left hanging in the air. It is fundamental
that a criminal trial cannot be decided on speculation. With regard
to the test applied concerning credibility the Court is left
Crown's witnesses to go by.
charge that PW2, PW3, PW4 and PW5 are all accomplices it was
contended that the Court should determine that by looking into
minds of these witnesses. The Court should then be able to appreciate
that they were so terrified of the accused that their
free will was
suppressed. Therefore it must be concluded that they did not conceal
the matter of the unlawful killing wilfully.
Duress under which they
were had vitiated their free will.
regard to probabilities and improbabilities to be weighed and
considered in making a determination in criminal proceedings
reference to CRI/T/22/88 Motamo Sehlabaka (unreported) at 70 onwards
would be productive.
alive to the statement of Scoble in The Law of Evidence in South
Africa 3rd Ed. at 250 that -
"the statements, although actually made as deposed to, may be
false, for the prisoner, oppressed by the calamity of his situation,
may....... be induced by motives of hope or fear to make an untrue
confession and the same result may have arisen from a morbid
to obtain an infamous notoriety..... or from anxiety to screen
....... a comrade ...... or it may even be the result of
of an overwrought and fantastic imagination".
and available evidence in the instant case excludes the above set of
possibilities. The accused confessed to Crown witnesses
killed Paballo. His reason for doing so was that Paballo was making
life difficult for the accused's aunt PW5. The accused
'Mannena because it was necessary to silence her for the accused
feared she would expose the culprit who perpetrated
the crime against
seeiso testified that accused took him to the spot where he pointed
out the knife handle. The cut on female deceased's lip
with use of a sharp instrument. Inferential reasoning leads to this
conclusion. R. v. Samhando 1943 AD 608 shows
that evidence of
pointing out will be admitted as showing that an article used to
commit a crime or itself a subject of crime,
was discovered as a
result of the accused's pointing it out. This leads the
pointing out being linked with the offence being investigated.
accused is found guilty of the unlawful and intentional killings of
Moloche in Count l;and
Moloche in Count II. He is also found guilty of theft preferred
against him in Count III in respect of woollen purse
and the M1-50
freed from any of the crimes charged.
accused after conviction on all counts gave evidence in an attempt to
establish on a balance of probabilities that in respect
of Counts I
and II involving the deaths of Lehlohonolo and 'Mannena respectively,
extenuating circumstances exist..
factors that the Court takes into account in an endeavour to see
whether the reprohensibiiity of the offence committed,
and in respect
of the accused having been found guilty, can be palliated morally
to reason therefore that the test to apply in order to make a
determination in that regard is a subjective one.
J.A. in S. vs Letsolo 1970(3) SA 476-477 enumerated samples of
factors which can be relevant to extenuation in a case and
that the list thereof is not exhaustive. It was with this in view
that when Mr. Qhomane sought to rise and raise an objection
hearsay evidence that the accused embarked on when giving
evidence that the Court urged patience on the part of the Crown
case the hear-say would help the accused unwind and perhaps in the
course of doing so alight on what could be regarded as extenuating.
accused told the Court that he was born in 1962. He said relations
between him and PabaTlo were cordial. The person to whom
is related and who was not in good terms with the deceased Paballo
was the accused's aunt 'Mantsie PW5. He further
stated that the fact
that this was so, did not affect him.
the accused referred to an occasion when PW5's stock were impounded
from the reserved pastures by the deceased Paballo. The
this occasion was, as far as I could determine, that PW5 would have
had cause to dislike Paballo because Pabalio's
stock was never
impounded by him for the same tresspass as had been committed by
PW5's stock. One would have expected that the
accused would detest
this unfair treatment given to his aunt but he did not refer to it as
having soured relations between him
upshot of the accused's evidence has not helped us know any more than
what the cross-examination in the main trial exposed.
It is strange
that despite having undertaken when led that he was going to make a
clean breast of what occurred on 18th March 1989
Hlabaneng-sa-Rannoi, he stuck to the version that was advanced on his
behalf through cross-examination.
If as he
stated the Crown witnesses including his aunt were lying about him
when their evidence associated him with the crime, the
he gave in his affidavit when applying for bail would scarcely lie
about him because it was given by him to his
lawyer Mr. Mda and sworn
to before a Commissioner of Oaths - an officer Commanding at the
Mohale's Hoek prison on 29th May 1989
as borne out by the date stamp.
accused acknowledged the hand-writing of the deponent's name as his
but said he was made to sign in a case where his lawyer
had said he
was going to fight for him to get bail even though the accused had
told that lawyer that he had not killed the two
this a pathetic lie. The accused acted out his drama of lies before
this Court by also suggesting that even though he instructed
present Counsel Mr. Phoofolo to bring a witness who would support his
alibi his Counsel did nothing about it.
statement made in the accused's application for bail was put to him.
He denied its contents save that he told this Court
that his then
lawyer had received from
of the two deceased and the name of the place Ha Maqoala which
appeared in the charge facing him. With regard to the rest
statement appearing in his affidavit he said he did not know where
his lawyer got the story from that tended to place him
at the same
place as the deceased along the way to Ha 'Mapane, He denied the
sworn version ascribed to him that he had been challenged
deceased Paballo during the course of whose struggle with him
Paballo's wife 'Mannena entered the fray and held the accused
testicles as well as hitting the accused with a stone on the arm.
both Counsel submitted before me resort can be and is often had to
evidence in the main trial even at this latter stage
main trial reference was made to the fact that PW5 and PW4 asked why
'Mannena was also killed. This would give credence to
the fact that
understandably even though not reasonably it was not that
reprehensible morally if Paballo died. This is an important
when determining the question of extenuating circumstances because
the question of the social melieu of which the accused
is a product
importance subjectively speaking. The only problem that the accused
is faced with regarding Paballo's death is that in
his web of lies he
told this Court that he never attacked or even killed Paballo. The
Court is however not bound to go by false
evidence in the face of the
evidence that it accepted as true.
Phoofolo argued that there was no premeditation in these killings.
Indeed no evidence showed any scheming of any kind to suggest
premeditation. The type of premeditation that one can discern is of a
general nature, namely that the accused was not happy in
that Paballo was behaving towards his aunt. This is a factor that
would serve neutralise the learned Counsel's attempt
to advance the
question of beer drinking as having played a part in the killing of
the two deceased. In any event the accused said
he had taken very
little drink while PW4 who knows him very well and had been
accompanied by him said the accused did not appear
drunk at all.
accused was asked why in particular PW5, his aunt, should join forces
with PW4, PW2 and PW3 in lying about him. His answer was
are implicating me". The Crown accordingly submitted that PW5
was the accused's aunt and their relations were good.
to a more or less similar situation Schutz P in C. of A. (CRI) No.3
of 1934 Vincent Monaheng Musetse Thebe vs. Rex (unreported)
"He was then asked whether the witness had anything against him
to which the answer was 'NO'. The trial court by clear implication
accepted the evidence of this witness. To my mind the evidence should
be accepted as true. It is very difficult to believe that
would have fabricated this story against his own cousin to whom he
bore no hostility".
case the evidence of PW5 was expressly accepted as true. The accused
enjoyed her hospitality.
Phoofolo in argument submitted with greatest respect that the Court
had not stated whether murder convictions were on the basis
directus or dolus eventual is. To highlight the importance of these
two elements of criminal liability Schutz P. in Sello
above said at 6
"That would lead to a finding of dolus eventual is. Such a
finding is sometimes a basis for finding extenuation, but in my
it is not sufficient in this case".
that the motive would appear to be theft from the deceased's person
would not ordinarily reduce the accused's blameworthiness.
there was evidence that the accused had complained that Poballo made
life difficult for the accused's aunt PW5. The plunder
effected seems to me to have been secondary.
extent I would be inclined to think extenuating circumstances existed
in respect of the killing of the deceased Paballo,
respect to the killing of the deceased 'Mannena the position seems
different. Abundant evidence shows that she was killed because
would report the culprit in her husband's death to the authorities. I
am far from being inclined to think that even in the
background from which the accused comes a killing effected in such
circumstances could be said to palliate the moral repre-hensibility
of such act. On the contrary it would aggravate it.
CRI/T/19/74 Rex v. Kopo (unreported) at 24 Cotran C.J. as he then was
"The subjective test to the accused's state of mind is of
paramount importance for not only is it a factor to be taken into
account, but is indeed a more important one to consider in this
regard than the objective test for the factual basis for this state
Ndlovu 1970(1) SA 430 at 433 Holmes J.A. said :
"there must be a factual foundation for a trial court's finding
of such circumstances, on a preponderance of probability ......
does not necessarily mean the accused must give evidence : in a
proper case the trial court may be able to find the required
of probability from the evidence as a whole or from so much thereof
as it has accepted. Gut there must always be a foundation
probability before the court can exercise what is in effect a moral
judgment in the matter of extenuating circumstances".
CRI/T/38/78 Rex v. Sello Lemphane & 2 Others (unreported).
been referred to CRI/T/40/90 Rex v. Sekhobe Letsi and Another
(unreported) where I was told the facts relating to 'Mannena
similar to those relating to some of the victims in the above case.
I am of
the firm opinion that there are no extenuating circumstances in
respect of the killing of the deceased 'Mannena.
respect of Count I accused sentenced to
III sentenced to threat 3) months' imprisonment (suspended for a year
on condition that he be not convicted of a crime
committed during period of suspension.)
will accused say why death sentence should not be passed
"I wish to be given prison term. I ask for mercy."
COURT : In respect of Count II the sentence of the Court is that you
will be removed from the box in which you are and taken to
a place of
custody where on an appointed day and time you shall suffer death by
hanging by your neck until you are dead.
have mercy on your soul.
: Mr. Qhomane
Defence: Mr. Phoofolo
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