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C. of A
(CRI) No.4/92 CRI/T/10/1991

IN THE
LESOTHO COURT OF APPEAL

In the
Matter between:

VEDDIE
SELLO NKOSI Applicant

and

THE
CROWN. Respondent

HELD AT
MASERU

JUDGMENT

BROWDE
J.A.

On 4th
March, 1992 the Applicant was convicted in the

High
Court by Lehohla J. sitting with assessors on four counts, namely,

1. Murder

   
   

2. Robbery
   

   
   

3. Housebreaking
   with intent to steal and theft.

   
   

iv) Rape.

In
respect of count (i) , the appellant was sentenced to death. On count
(ii) he was sentenced to eight years imprisonment, on count
(iii) to
five years and on count (iv) to 7 years.

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It is now
common cause that the count of Housebreaking with intent Co steal and
theft was charged as an alternative to the Robbery
charge and it was
therefore not competent for the court to have found the Appellant
guilty on both counts. In the result the appeal
against Che
conviction in count (iii) must be upheld and the sentence sec aside.

The
undisputed facts which led to the arrest of the appellant are the
following'

On the
28th April, 1990 the deceased, Makamohelo Ts'ola, was found dead in
her home at Prison Gardens in Che district of Maseru.
She was found
lying naked in a pool of blood in her bedroom between the bed and the
wall. It was found at the post-mortem examination
that she had
sustained a broken jaw and two deep wounds on both sides of the
scalp. The right lobe of her liver had been ruptured
with bleeding
into the peritoneal cavity. P.W.I (Detective Lance Sergeant Selebalo)
and P.W.7 (Malebesi Likotsi), P.W.9 (Malinkile
Lerotholi) and P.W.10
(Detective Trooper Motlomelo) all testified to the condition of the
house where the body was found - it had
been ransacked and there was
blood spattered on the walls. The blood was of the "0" type
which coincided with that of
Che deceased. Vaginal swabs taken from
the body proved that shortly before her death male sperm had been
deposited in her vagina
- the

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semen
emanating from a male of Che blood group A. The latter blood group
coincided with that of the appellant as well as that of
the
deceased's husband., a well-known musician by the name of Ts'epo Mobu
Ts'ola (P.W.3).

On the
kitchen floor there was found a lumber-jacket (Ex 2) which was
identified by P.W.5 (Ntoetsi 'Mota) as hers. It is not disputed
that
P.W.7 (the deceased's servant) and P.W.9 (Che sister of the husband
of the deceased) noticed that many articles had been removed
from the
deceased's house apparently by the intruder who had gained entry
after P.W.7had gone off duty on 27th April, 1990 leaving
the kitchen
door locked and taking the key with her.

It is
further not disputed that on the 27th April, 1990 P.W.5 was accosted
in the street near the Maseru Club by a man wearing a
bluish-green
tracksuit, with spectacles and, slung over his shoulder, a black
sling-bag. P.W.5 described how she was threatened
by the man and
forced to accompany him. She said in her evidence that she had
previously seen the man from a distance of about
8 paces when she
passed him before sunset. When she was accosted, the sun had just set
but being very close to him she could see
him clearly - particularly
as there was a street light on the other side of the road. P.W.5
positively identified the appellant
as being that man and states that
an assault on her by the appellant ended with her grappling with him

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in a
furrow and ultimately making good her escape. She later gave a
description of her assailant to the police . Much was made by
Mr.
Maqutu, who in the court below and again in this court strenuously
defended the appellant, that in her evidence in chief P.W.5
described
her assailant as having had grey hair "at the back of his head".
It was

accepted
that at the time of the trial the appellant had no grey hair at the
nape of the neck and it was further scientifically
proved that he had
not dyed his hair. Mr. Maqutu submitted that this rendered the
witness's identification of the appellant suspect
and in the absence
of an identification parade it should not have been found that the
crown had proved that P.W.S's assailant was
the accused. On closer
scrutiny of the evidence, however, there seems to be little in this
point. What P.W.5 said in chief was
that "he had grey hairs
towards the back of his head" and as it is common cause that
there were some grey hairs on the
accused's head no valid criticism
of the identification can be made on this score. The witness had
ample opportunity over a sufficient
length of time to be able to
observe her assailant and even if it stood alone her word that it was
the appellant who accosted and
assaulted her might have been a
sufficiently good identification. However, as appears below, her word
does not stand alone. I wish
here to interpolate that this was a case
which called for an identification parade to be held. The fact that
it was not held demonstrates
that

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the
police work on the case was materially deficient which is further
evidenced by other omissions which will be referred to in
this
judgment.

During
her struggle with her assailant P.W.5 dropped her lumber-jacket which
later was recovered in the deceased's kitchen and was
produced in
Court as Ex 2. This piece of evidence makes it virtually certain that
P.W.5's assailant was the rapist and killer of
the deceased In
describing the man whom she first saw before sunset and who later
assaulted her, -P.W.5 told the police and subsequently
the court a_
quo that he was dressed in a bluish-green track-suit and carried a
black sling-bag slung over his shoulder. It is
of significance in my
opinion that the appellant admitted to owning such a track-suit and
such a sling-bag. This materially reduces
the chances that P.W.5
erred in her identification of the appellant.

P.W.6
(Lucy Matsopa) gave evidence regarding the fact that she and the
appellant were lovers. She said that on Saturday, April 28th,
1990
the appellant gave her a ladies' wristlet watch as a present. She
said the watch did not look new to her so she questioned
the
appellant about it. He said he had bought it from a shop in Mafeteng
and that because the watch strap was too large for her,
the appellant
then and there adjusted it. This watch was later handed over to the
police when, on the 2nd May the

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appellant
had been arrested and brought by the police to P.W.6's place of
residence. Subsequently the watch was identified by the
deceased's
husband as being the property of his wife but in cross-examination he
agreed that he could not be certain of this but
that it was similar
to a watch which belonged to his wife and which was stolen by her
assailant on Friday 27th April. This is a
further fact which, even if
by itself it is not of great significance, nevertheless adds to the
probabilities regarding the

correctness
of P.W.5's identification of the appellant:. It is worth adding that
it was the evidence of P.W.6 that she handed the
watch to the
appellant in the presence of the police because, having heard he was
a suspect in connection with the death of the
deceased, she
associated the death of the deceased with the watch - hence her
desire to return it to him who had given it to her.
The appellant
disputed having given the watch to P.W.6 on 28 April and stated it
was earlier in April. He gave no specific date.
Despite some
criticism arising from the fact that when first asked when she
received it she mentioned May it seems that she immediately
corrected
herself. It was such an obvious error that the interpreter did not
repeat it to the court a quo and it consequently does
not appear in
the record. P.W.5 was adamant that it was on Saturday the 28th that
she received the watch because, so she said in
evidence, she worked
backwards from the day on which the appellant was brought to her
under arrest to the first Saturday (she knew

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she
received it on a Saturday) and that was 28th April , 1990. In any
event the fact that she associated the watch with the deceased
adds
to the probability that the watch was given to her after the death of
the deceased had been made known to the public.

The
appellant was arrested by P.W.2 Trooper Molibeli at Butha-Buthe on
1st May, 1990. This was as a result of a phone call which
P.W.2
received from the Maseru police who directed him to the Crocodile
Inn. At the Inn he, in the company of a sergeant, met the
appellant
in the reception area. The appellant was informed that he was wanted
by the Maseru police "in connection with a
murder". P.W.2
gave evidence that the appellant pointed out his luggage which was
taken, together with the appellant, to the
charge office at
Butha-Buthe. P.W.2 said he examined the luggage and among other
things he saw ,he identified some "Sankomota
T-Shirts, a black
radio and a photograph of Ts'epo Ts'ola (the deceased's husband)
which he said was found inside one of the bags
which had been claimed
by the appellant as his property. This photograph was subsequently
handed into court as Ex 34. Unfortunately
P.W.2 made no list of what
he took from the appellant nor was the latter given any receipt for
what was taken from him. It is a
matter for adverse comment that the
work of the police was tainted by the failure of all the officers
involved in the investigation
to carry out their elementary

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exercise
of listing the articles found in the appellant's possession and of
writing out a receipt in respect of such articles. Had
this been done
proof of the appellant' s guilt would have been made much easier for
the Crown. Nonetheless P.W.2's evidence regarding
the photograph of
the deceased's husband (exh 34) and indeed the other items was
corroborated by P.W.I to whom P.W.2 handed them
over. P.W.I entered a
description of what he received in the Exhibit Register on May 2 and
although the photograph was not among
them there were many articles
which were subsequently identified by Ts'epo Ts'ola himself as having
been stolen from his house
when his wife was murdered. A great deal
of criticism has been levelled at the police by Mr. Maqutu, and for
reasons which I have
referred to, the criticism is not all without
substance. Mr. Maqutu pointed out that P.W.I was the nephew of P.W.6
and that this
affects the reliability of the latter's evidence
regarding the watch and throws doubt on P.W.1's honesty regarding,
inter alia,
Exh 34. It is indeed undesirable that police officers be
employed on an investigation if they are of the family of important
witnesses
and in this case P.W.I should, if possible, have been taken
off the investigation when his relationship to P.W.6 was discovered.

In order
to overcome the combined effect of all the police evidence, Mr.
Maqutu was driven to submit that there was a conspiracy
to involve
the appellant in the crimes charged.

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The only
reason for this conspiracy, so counsel submitted, was the fact that
the appellant was a foreigner in Lesotho. Why, of all
the foreigners
in this country, the police should have picked on an innocent person,
remains unexplained. In fact the theory of
a conspiracy is really
destroyed by the following. When the police went through the property
taken from the appellant, that which
was identified by Ts'epo Ts'ola
was retained and the balance was given back to the appellant. It
stretches credulity too far to
accept that the police, having
obtained the stolen articles from the real culprit (that is according
to Mr. Maqutu a person other
than the appellant) then "planted"
them on the appellant and not content with that the police then
sorted out the property
and returned his property to the appellant.

This is a
case in which the crown relies on circumstantial evidence of which it
was stated in Best, Evidence (5th Edition, Sec.
298)

"Not to speak of greater numbers, even two articles of
circumstantial evidence - though each taken by itself weigh but as
a
feather - join them together, you will find them pressing on the
delinquent with the weight of a millstone ... It is of the utmost

importance to bear in mind that, where a number of independent
circumstances point to the same conclusion the probability of the

justness of that conclusion is not the sum of the simple
probabilities of those circumstances, but is the compound result of
them."

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This
passage was cited with approval by Davis A.J.A. in Rex v_ de Villiers
1944 A.D 493 at 508.

In my
view the identification by P.W.5, the finding of the latter's jacket
in the deceased's kitchen, the admitted ownership by
the appellant of
a track-suit and bag as described by P.W.5, the property found in the
possession of the appellant and P.W.6'5
evidence regarding the gift
by the appellant of the watch all together are a very heavy millstone
indeed. I have deliberately refrained
from taking into account,
although it could properly be a circumstance that could weigh against
the appellant, that the latter
on several matters admittedly lied. I
agree with Mr. Maqutu that accused persons often tell untruths for
reasons unconnected with
the case and as was said by Jacobs C.J in R
v Moroka Mapefane CRI/T/60/71(unreported) " An accused, giving
evidence from the
shadow of the gallows so to speak, should not and
cannot be convicted merely because he is a liar."

SENTENCE

No
evidence in extenuation was lead by or cm behalf of the appellant. I
can find no fault with the sentence.

In my
judgment, the case against the appellant was proved beyond reasonable
doubt. I accordingly order that:-

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1. The
   appeal of the appellant against the conviction and sentence on the
   count of Housebreaking with intent to steal and theft is
   upheld and
   this conviction and sentence are set aside.

   
   

2. The
   appeal of the appellant against his conviction and sentence on the
   remaining counts is dismissed and these

   
   

convictions and sentences are confirmed.

J. BROWDE

JUDGE OF
APPEAL

I agree.
It is so ordered.

Signed

I MAHOMED

PRESIDENT
OF THE COURT APPEAL

I agree.
It is so ordered

Signed

R.N. LEON

JUDGE OF
APPEAL