C. OF A. (CRI) NO.4/89
IN THE LESOTHO COURT OF APPEAL
In the Appeal of:
PHEKO JOSEPH MAFATLE 1ST APPELLANT
LIKOTSI VICTOR LESETELI 2ND APPELLANT
TUMAOLE JOHANNES TANYELE 3RD APPELLANT
MOETI JOHANNES MOTHIBA 4TH APPELLANT
V
REX
HELD AT MASERU CORAM:
MAHOMED P.
KOTZE J.A.
LEON J.A.
JUDGMENT
Kotze J.A.
Four men were tried and convicted by KHEOLA J. and assessors, on a charge of robbery. The allegation was that on 31st January, 1988 at Maluti Retailers Supermarket in the Quthing district they robbed V.M. Holder, his wife, members of the staff of the Supermarket (of which Holder was the proprietor) of M47,501-94 in cash and cheques, motor car GOO 28 with its keys,
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certain door and safe keys. a black executive brief case. documents and letters -all of which was the property of Holder. The four accused referred to in the trial and for reasons of convenience also in what follows as A1, A2, A3 and A4 appealed to this Court against their convictions. A2 and A3 were each sentenced to 7 years' imprisonment but have withdrawn their appeals. A1 and A4. each of whom were sentenced to 9 years' imprisonment persist in their appeals. A Mazda motor vehicle (exhibit 10) was forfeited to the Crown.
There is no dispute in regard to the commission of the crime. It was conclusively established at the trial that during the night of 31st January, 1988 at the place alleged five men came to Holder's house, held him and the persons referred to in the indictment at gunpoint, took from them the property mentioned in the indictment and made their getaway in the motor car referred to.
A1, A2, A3 and A4 all denied participation in the commission of the crime and raised alibi defences. The only issue to be determined in this appeal is whether the participation of A1 and A4 in the commission of the crime was proved beyond reasonable doubt. A large volume of evidence was adduced at the trial. In the view that I take of the appeal it is unnecessary to canvass the said evidence in all its detail since the guilt or otherwise of A1 and A4 depends on a small portion of the evidence led at
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the trial.
An important part of the Crown case concerns two identification parades held on the 10th February, 1988 at Quthing police station. At the first parade the men on parade were clothed in camouflage uniform and at the second parade they were clothed in private garb. At the first parade Holder, Julia Thakalekoala (assistant manager at the Supermarket) and Ma-Austin Thakalekoala (a staff member) identified A1 as one of the five perpetrators of the crime. At the second parade Ma-Austin pointed out A1 whilst Holder and Julia did not do so.
I deal first with the appeal of A1. In his own evidence he denies having been at or near the scene of the robbery. That evidence is in direct conflict with that of Sello, an accomplice. The learned trial Judge found Sello to be a reliable witness. In doing he revealed a full appreciation of the need to heed the cautionary rule enunciated over the years by the South African courts as inter alia summarised by Holmes J.A. in S v. Hlapezula 1965 (4) S.A. 439 at 440.
Sello's evidence, on its own, I regard to be of insufficient cogency to reject the alibi evidence of A1 despite the trial Court's view as to its reliability. But taken in conjunction with the identification of A1 by Holder, Julia and Ma-Austin Sello's testimony receives convincing corroboration which fully
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justifies rejection of the alibi. I conclude, therefore, that the trial Court was fully justified in finding the guilt of A1 established beyond reasonable doubt. In so concluding I have not overlooked Counsel's well presented argument that, notwithstanding the regularity of the identification parade and compliance with the guidelines propounded in Teboho Mohajane v. Rex, C. of A.(Cri) No.7 of 1984, the identification by Holder and Julia should be disregarded by reason of their failure to repeat their earlier identification at the second parade. Counsel's submission cannot be upheld since it disregards the reasonable explanation offered by Holder and Julia that even though A1 was present at the private clothes parade they did not make a repeat identification because they had done so shortly before during the first parade. The evidence adduced at the trial established that the identifying witnesses had favourable opportunities of observing the features of the culprits during the commission of the crime -hence my confidence in the adequacy of the corroboration which the identification lends to the evidence of Sello.
I turn now to the appeal of A4. He was not identified in the manner in which A1 was identified. The only witness who implicated him directly was the accomplice. Counsel for the Crown's contention is that in regard to A4, Sello's evidence is adequately corroborated by the evidence of Sergeant Mokeretla in regard to the finding of the stolen black executive brief case
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in the possession of A4. He testified that he and other members of the police force went to a certain masonite house at Tsosane at 6 a.m. on 4th February, 1988. After demanding and obtaining entry he found A1 and A4 inside. Next to a mattress in their close vicinity he noticed the executive brief case with portion of the stolen money inside it. In response to a question by the sergeant each of A1 and A4 claimed it to be the property of the other. Cross-examined at the trial, Mokeretla denied that one of his colleagues, Private Sebeso, clothed in a blanket under which the brief case was allegedly hidden "planted" the brief case inside the masonite house. This version advanced on behalf of A4 at first glance appears suspicious and farfetched. It can, however, not be rejected out of hand for the reason following. Mokeretla denied during cross-examination that he and his men assaulted A4 after the visit to the masonite house with a view to inducing him and the other suspects to disclose the whereabouts of the stolen motor car. The trial Court appears not to have accepted Mokeretla's denial - the relevant passage from the judgment being as follows:
"I cannot rule out the possibility that the accused were assaulted but not to the extent they want this Court to believe. When A4 was examined by Dr. Choi on 8th March, 1988 eighteen (18) whip marks were found on the back, both wrists and on the right big toe. There were healed fractures of the bones of the right hand ....."
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It follows from the Court's finding that the police evidence is not untarnished and that it cannot be accepted at face value. Indeed a witness prepared falsely to deny an assault of this nature might well stoop to dishonest fabrication of evidence. To regard Mokeretla's
evidence as corroborative of that of the accomplice would, in these circumstances, be dangerous. In my view the trial Court erred in finding that A4
"is not only implicated by the accomplice but was also found in possession of the black brief case ....."
In the result I am of the view that the accomplice evidence incriminating A4 is uncorroborated and that in the absence of such corroboration his guilt is not established beyond all reasonable doubt.
With reference to the confiscation order relating to the Mazda, Crown Counsel concedes that the order was improperly made.
The following order is made:
The appeal of A1 (Pheko Joseph Mafatle) is dismissed.
the appeal of A4 (Moeti Johannes Mothiba) is upheld and his conviction and sentence are set aside.
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The order of forfeiture of Mazda motor vehicle exhibit 10 is set aside.
G.P.C. KOTZE
JUDGE OF APPEAL
I agree
I. MAHOMED
PRESIDENT OF THE COURT OF APPEAL
R.N. LEON
Delivered at Maseru this 16th day of July 1993.
