CRI/APN/397/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TSEKO
MOITHERI SEBOKA APPLICANT

V

DIRECTOR
OF PUBLIC PROSECUTIONS RESPONDENT

Before
the Honourable The Chief Justice Mr. Justice B.P. Cullinan on the
24th day of November, 1993.

For the
Applicant : Mr. M. Mafantiri

For the
Respondent : Miss N. Nku

JUDGMENT

The
applicant stands charged with two co-accused with murder and armed
robbery. It is alleged that on 31st May, 1993 they robbed
the
deceased of his motor vehicle, M4,554 in cash and his firearm, before
killing him.

In his
founding affidavit the applicant avers that on 30 th May he loaned
his firearm to one George who was searching for his missing
cattle.
George returned his gun on 1st June.

On 2nd
June en route to visit a friend, one Kheola, he was stopped by the
police while in the company of another friend, one Kuleile,
in a
motor vehicle at a road block. He

2

avers
that both he and his companion were found in possession of firearms.
He was arrested, as his firearm was unlicensed, his friend
being
released as his firearm was licensed. Thereafter he avers that the
police informed him "that the gun which was found
in the van we
have been riding was used to murder" the deceased. he took the
police to George's home but the latter could
not be found.

The
application is opposed by the Director of Public Prosecutions. The
investigating officer avers in para. 4(c) of his affidavit,
that,

"That deceased's gun was found on applicant at the road-block
and another gun S.L.R. a police gun which went missing was found
in
the vehicle in which Kuleile and applicant were and it was wrapped in
a blanket and put on a seat not on Kuleile (sic); none
of the guns
was found to be licensed ... after the commission of the offences
applicant hid a gun in a donga and it was later removed
by Kheola who
gave it to the applicant in Kuleile's presence."

The police officer goes on to aver that,

"The gun S.L.R. Rifle No.S/N AD 6903216 found on applicant
belongs to the police and it was only

3

after it was found on applicant that it was discovered that it went
missing."

The
Investigating Officer further avers that two other suspects are at
large in the Republic of South Africa. He avers also that
the
applicant had "killed the deceased with the gun and after that
ran him with a vehicle to make sure that he had killed
him."

The
applicant in a replying affidavit avers as to para.4(c) of the
Investigating Officer's affidavit, that,

"The contents are parfially admitted save to deny that there
were only two guns involved as Kuleile had a gun which was released

to him because it was licensed. I further say that I did buy the gun
from the policeman." (Italics supplied)

Thereafter
the applicant denies ever hiding any gun or receiving any gun from
Kheola at any time. He again denies all connection
with the offence.

It will
be seen that the applicant' s own affidavits give rise to query. It
is significant that he allegedly loaned his firearm
on the day before
the offences were committed. He volunteers no information as to why
he should possess a firearm, and again one
which was unlicensed.

4

There is
no explanation as to why both he and Kuleile were armed on 2nd June,
and it is again significant that his friend George
was not to be
found.

More
particularly, he does not deny that a stolen police rifle was found
in his possession. His only explanation is that he was
involved in
the illegal purchase thereof from a police officer. In his founding
affidavit he makes no mention of the fact that
his 'gun' was a stolen
Police rifle. He does not deny that it was wrapped in a blanket in
the vehicle. More importantly he does
not specifically deny a most
incriminating allegation, namely that the deceased's firearm was
found in the vehicle. He contents
himself with vaguely saying that,
as to para. 4(c) of the Investigating Officer's affidavit,

"The contents are partially admitted save to deny (sic) that
there were only two guns involved ..."

Suffice
it to say that the applicant's own affidavits have left many
questions unanswered, and I consider that there is a strong
priama
facie case against him. As I have said in other cases, the applicant
faces the gravest of charges. I am satisfied that if
released on bail
it is likely that the applicant would abscond and that it would not
be in the interests of the administration
of justice to grant the
application. The application is accordingly

5

refused.

Delivered
at Maseru this 24th day of November, 1993.

B.P.
CULLINAN

CHIEF
JUSTICE