CRI/T/9/84

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

REX

V

BOY PETER
MASEKO

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 29th day of October, 1984.

The
accused is charged with the murder of one Lebohang Oscar Leluma in
that on or about 8th February, 1984 and at or near the Stadium
area -
Maseru Reserve -in the district of Maseru he unlawfully and
intentionally killed the deceased.

Five (5)
witnesses were called to testify in support of the Crown case. The
defence called two witnesses and the accused himself
gave evidence on
oath.

The
evidence of PW.1, Moeketsi Tsatsanyane, was not rosily challenged by
the defence. I have, therefore, no good reason to doubt
it. It was to
the effect that he was the proprietor of a certain Ma-Africa Motor
Garage in Meseru. On 7th February, 1984, he was
away in Bloemfontein
in the Republic of South Africa from where he returned on the same
day. On the evening of the same day, the
deceased called at his house
and reported that he had left his (deceased's) mazda van, which he
wished to sell at the garage. It
was agreed that the deceased and
PW.1 would meet at the garage on the following morning 8th February,
1984, apparently to discuss
the details of the sale.

At about
10.00 a.m. on the morning of 8th February, 1984, the deceased duly
came to PW.1 at the garage. The deceased was then in
the company of
another person whom he said was prepared to buy the van for ready
cash. As he was not going to buy the van for ready
cash (he was
presumably going to pay the deceased after the van had been sold by
the garage) PW.1 had no objection to the

2

deceased
selling the van to the new prospective buyer. The deceased then
obtained the ignition key from PW.1 and together with the
prospective
buyer proceeded to the van. They started the engine of the van after
which they returned to PW.1 and handed back the
ignition key. Before
leaving with his companion, the deceased authorised PW.1 to do some
repair work on the van.

At about
12 noon on the same day, the deceased returned to PW.1 at the garage.
He was still in the company of the prospective buyer
and a third
person whom he said was the elder brother of the prospective buyer,
According to PW.1, the deceased told him that the
elder brother of
the prospective buyer also wanted to satisfy himself as to the
condition of the van. So, the deceased took the
ignition key from
PW.1 and proceeded to the van together with the prospective buyer and
his elder brother. PW.1 who had been talking
to the deceased and his
party outside the entrance of his office at the garage returned into
the office.

A minute
or two after he had returned into the office, PW.1 heard an explosion
outside. He at first thought it was the back-firing
of a vehicle
passing on the road. However, when the explosive sounds repeated in
quick succession, PW.1 had a mind that they were
gun reports and he
immediately went out of the office to see what was happening.

It is
perhaps necessary to mention at this juncture that according to the
evidence, the garage building is situated opposite the
Lesotho High
School in Maseru. Immediately on the southern side of the building
there is a caltex petrol service station. There
is then the main
tarred road leading from T.Y. to the main traffic circle in Maseru.
Beyond the tarred road is the Lesotho High
School. On the northern
side of the garage building, there is a gravel road running from east
to west towards the main bus stop
in Maseru, Across that gravel road
is the Metro wholesale. On the north-western side of the

3

garage
building is a yard used partly as a parking area for vehicles that
have come for repairs at the garage and partly as a scrap
yard. The
yard is, therefore, virtually littered with a number of vehicles. On
the western side of the garage yard,there is another
short gravel
road that links the main tarred road with the gravel road passing on
the northern side of the garage building. Next
to the short gravel
road that connects the tarred road with the road passing on the
northern side of the building but still within
the garage yard, there
is a peach tree. The entrance to PW.1's office is on the
north-western side of the garage building so that
one faces the
garage yard as one comes out of the office. Immediately outside
PW.1's office entrance, there was an E.20 combi which
had been parked
there for some days.

Now, PW.1
told the court that when he came out of the office and was next to
the E.20 combi parked outside his office entrance,
he saw a man
approaching in his direction about 10 paces (indicated) away. As soon
as he noticed him, that man raised his hand
and pointed a gun at him.
It was a hand gun or pistol with a darkish barrel. The moment he saw
the barrel of the gun being pointed
at him, PW.1 got a fright and
immediately took cover behind the E.20 combi. He had no time to
scrutinize the gunman so that he
was unable to identify him. As the
gunman went to one side, PW.1 moved to the other side of the E.20
combi. PW.1 eventually managed
to scape and ran away. He ran to the
southern side of the garage building and did not know what the gunman
remained doing on the
north-western side. However, soon after he had
come to the southern side PW.1 noticed the gunman appearing from the
eastern side
of the building. He immediately took to his heels and
hid among the vehicles in the garage yard from where he could see the
gunman
leaving the premises and going in the direction towards the
main tarred road. I shall return to PW.1's evidence later in this
judgment.

The
evidence of PW.1 was, to some extent, corroborated by that of DW.3,
Thabo Matlole, who testified that on the

4

day of
the shooting he was employed at PW.1's garage. Just before the
shooting he had parked the truck which he was using for his
work and
wanted to do some minor repairs on it. He took a spanner from a tool
box at the garage and was removing a balt from one
of the old
vehicles in the yard when he heard footsteps of a person passing
behind him. He turned round and noticed a man who was
not one of the
workers at the garage. That man came from the direction of the tarred
road and was going among the many vehicles
that were parked in the
yard. At that time he also noticed, next to a mazda van, three men
(obviously the deceased and his two
companions). The man who came
from the direction of the tarred road went behind the three men. DW.3
then heard explosions "Qhoa!
Qhoa!" There were altogether 4
explosions which came in rapid succession.

As he
heard those explosions DW.3 looked around and noticed that the man
who had just passed behind him was holding something he
could not
clearly identify. The man was, however, facing towards the three men
next to the mazda van. The explosive sounds clearly
came from that
man.

As the
man was making the explosive sounds, the other three men ran away in
the direction towards the bus rank but as they were
running, one of
them fell to the ground. After one of the three men had fallen down
and the other two run away, the explosive man
who had been following
them returned.

DW.3 then
ran away and was joined by PW.1 who had just come out of his office.
They ran to the southern side of the garage building.

According
to. DW.3, when he ran to the southern side of the building with PW.1,
the latter was just coming out of his office and
the explosive man
never pointed a gun at him. The question that immediately arises is
why then did PW.1 ran away. It seems to me
DW.3 must be making a
mistake here and a reasonable explanation which I accept is the one
given by PW.1 namely that he ran away
because he saw that person

5

pointing
a gun at him.

Be that
as it may, the evidence of DW.3 confirmed that of PW.1 in that soon
after they had run to the southern side, the explosive
man emerged
from the eastern side of the building and they had to run back to the
north-western side from where DW.3 also saw that
man leaving the
premises and heading towards the main tarred road.

DW.2,
Lesupi Metsing, another employee at PW.1's garage, testified that on
8th February, 1984 he was cleaning an engine next to
the office
entrance when he noticed three men arriving in a redish vehicle.
After they had come to the garage,the three men went
to a mazda van
in the middle of the yard, a distance of about 12 paces (indicated)
from where he was working. As they stood next
to the van, they were
talking although he could not follow their conversation for he was
busy working, DW.2 then suddenly heard
gun reports. Three shots could
have been fired but as he was frightened DW.2 was not positive. The
gun reports came from the direction
of the mazda van and towards the
peach tree. . The three men who were standing next to the mazda van
then ran away in the direction
towards the bus stop.

Although
in his evidence he said the gun shots were from the direction of the
mazda van and towards the peach tree, DW.2 said he
did not actually
see anyone firing the shots. If he did not see the person who was
actually firing in the garage, I fail to understand
how DW.2 could
have been so certain that the shots were fired from the direction of
the mazda van towards the peach tree.

In any
event, DW.2 went on to say as the three men were running away, one of
them fell to the ground. It was then that he noticed
a man
approaching him from the middle of the yard. As he approached DW.2,
that man was holding a firearm which he pointed at him.
DW.2 then
quickly took cover behind a vehicle which was parked next to where he
was working. He eventually managed to escape and
ran across the
gravel road that passed on the

6

north
side of the garage building. He sat outside the gate of the Metro
Wholesale from where he could see the gunman leaving in
the direction
of the main tarred road. I shall return to DW.2's evidence in a
moment.

Now,
coming back to his evidence, PW.1 told the court that before the
deceased and his two companions arrived, PW.2, Tlhanka Metsing,
had
come to the garage asking for a brake-down to tow his vehicle which
was giving trouble. As the brake-down was out at the time,
P.W.2 had
to wait for its return.

After the
gunman had left, PW.1 looked around to find what had happened to his
employees. He then noticed PW.2 lying flat on the
ground next to the
peach tree in the garage yard. He called out at PW.2 and asked him
whether he had not sustained any injuries.
PW.2, however, got up from
the ground and suddenly took to his heels without saying a word. It
was not until four (4) days later
that PW.1 met PW.2 who then told
him that when he heard the gun reports he took cover by lying flat on
the ground where PW.1 had
found him.

PW.1
said, on the the day of the shooting, he had about 6 employees at his
garage. He tried to make inquiries from them about the
shooting
incident but, with the exception of DW.2 and 3 who said they too had
been chased around by the gun man, none of the employees
appeared to
have seen the shooting.

Assuming
the correctness of PW.1's evidence on this point, I must say I find
it rather strange that people who were working on the
garage yard at
the time of the shooting could have failed to notice it. No doubt the
employees were deliberately concealling the
truth from PW.1.

Be that
as it may, PW.1 told the court that as PW.2 rose from the ground and
ran away DW.3 drew his attention to another person
who was lying
prostrate on the ground about 4 or 5 paces (indicated) from where
PW.2 had been lying. PW.1 went to that person and
identified him as
the deceased. That was confirmed by DW.3.

7

The
deceased was lying about 10 paces (indicated) from his mazda van.
Between him and the spot where PW.2 had been lying, there
was another
E.20 and the peach tree. According to PW.1, the deceased was clearly
seriously injured for he was bleeding and obviously
very tired.

PW.1
tried to raise the deceased from the ground but found him too heavy.
He then left the deceased and rushed into his office from
where he
tried to phone the police. The police telephone was, however,
engaged. He rushed back to where he had left the deceased
and with
the assitance of one Mike Thoahlane managed to carry him on to his
(PW.1's) panel van in which he rushed the deceased
to the casualty
department of the hospital. No additional injuries were sustained by
the deceased whilst being transported to the
casualty department.

Having
taken the deceased to the casualty department, PW.1 proceeded to the
police station to make a report. As he was trying to
make a report
about the shooting indicent. One Sergeant Mochema told him that the
culprit had already been arrested and pointed
out at the accused
person who was then standing behind the counter at the police charge
officer.

PW.1 then
returned with sergeant Mochema to the casualty department of the
hospital. They found the deceased still at the casualty
department
and he was clearly dead, PW.1 was present when sergeant Mochema
examined the injuries on the body of the deceased. He
noticed that
the deceased had sustained bleeding injuries on the back and the
chest.

In the
course of the trial, the court was informed by counsel for the crown
that the medical doctor who had performed the post-moterm
examination
on the body of the deceased was out of the country and, therefore,
not available to testify in this case. The defence
counsel was,
however, not opposed to the

8

to the
post-moterm examination report being handed from the bar as evidence
in this case since the contents thereof were not disputed.
Counsel
for the defence confirmed and the post-mortem examination report,
dated 15th February, 1984, was accordingly-handed in
and admitted in
evidence. It was marked Exhibit. B.

Briefly,
the evidence disclosed by Exhibit B was to the effect that the
deceased had sustained several bullet wounds on the body
and
consequently died of cardio-respiratory failure.

It was
further admitted by both counsels that there was no dispute as to the
identity of the deceased in this case where-for no
need to call as
witnesses the people who had identified his body before the medical
doctor at the post-mortem examination.

On the
evidence, I em satisfied that at the material time, there was a man
carrying a firearm and firing shots within PW.1's garage
yard. The
deceased was then hit and injured. It was not really disputed that
the deceased died as a result of those injuries.

The only
important issue for determination by the court is whether or not the
accused was the person who did the shooting and, therefore,
fatally
injured the deceased. In this regard, the court heard the evidence of
PW.2 who confirmed PW.1's testimony that on the day
in question, he
had come to the garage to hire a brake-down to tow his vehicle. He
was told that the brake -down was out but might
come in at any time.
PW.2. then decided to sit in the shade under the peach tree on the
garage yard waiting for the arrival of
the brake-down.

It was
while he sat in the shade under the tree that PW.2 noticed a person
already seated in a squatting posture next to him. He
was surprised
to see that person seated next to him because he had neither seen or
heard him arrive there and contrary to common
practice among people
in this country that person uttered no word of greeting when he came
and sat next to where PW.2 was seated.
PW.2 and that person glanced
at each other. He could see that he was the accused person and

9

even
noticed that his teeth on the upper row had a gap. Shortly,
thereafter, PW.2 heard a loud explosion behind him. When he tried
to
look at the accused to see if he too had heard what he had heard,
PW.2 noticed him swiftly passing in front of him. The accused
went to
the peach tree next to which they were seated and parted the branches
with his left hand. On his right hand the accused
was holding a small
gun of which PW.2 could see only the black barrel. PW.2 then clearly
saw the accused firing a shot in the direction
of the vehicles in the
garage yard. Out of fight he threw himself down and when another shot
was fired, PW.2 was lying flat on
the ground.

PW.2
confirmed the evidence of DW.3 and PW.1 that when the latter called
him out, he got up and ran away. He went to hide next to
a house
belonging to one Mapula from where he went straight home.

He
subsequently went to the police station and made a statement in which
he said he could positively identify the accused. He and
DW.2 were
later taken by two police officers to an identification parade at the
Central Prison in Maseru. It was explained to them
that they were
going to point out at the person they had seen shooting at PW.1's
garage if he were among the people on the line
up.

When they
came to the Central Prison, PW.2 and DW.2 were taken to one room from
which they were called out one by one, to the place
where the parade
was assembled. PW.2 had no difficult in pointing the accused as the
person he had seen seated next to him and
firing shots within PW.1's
garage premises. Although he could not dispute that the accused was
wearing a blue track suit, PW.2
denied that he had been told by the
police to point at a person wearing a blue track suit in the line up.

Returning
to his evidence, DW.2 confirmed PW.2's evidence that following the
shooting incident at the garage he and PW.2 were taken
in a police
vehicle to an identifica­tion parade at the Central Prison in
Maseru. According to

10

him, DW.2
had told the police that due to fear,he had not clearly seen the
gunman and could not, therefore, identify him. He was,
nonetheless
taken to the Central Prison.

I must
say I find it highly improbable that DW.2 had told the police that he
would not be able to identify the gunman and yet they
took him to the
identification parade. That would clearly serve no purpose. In all
probabilities DW.2 was being untrustful on this
point. However, DW.2
went on to say, immediately on arrival at the prison, one of the
police officers who were accompanying them
told him and PW.2 that
they should point at a man wearing a blue track suit in the line up.
DW.2 and PW.2 were then taken to a
certain room from where PW.2 was
the first to be called to the parade. When PW.2 returned into the
room DW.2 himself was called
to the parade. He found ten (10) men on
the line up. Only one of them was wearing a blue track suit. In
accordance with the police
instructions, he pointed at that man.

Although
he did not know the person he had pointed at the parade, DW.2 was
certain that it was not the accused who is now in the
dock. After he
had pointed out that person DW.2 was taken not to the room but to the
vehicle and then back to his place of work.

As has
been pointed out earlier, PW.2 categorically denied the suggestion
that before he and DW.2 went to point out at the gun man
in the
parade, the police officers had told them to point at a person
wearing a blue track suit. In this regard, PW.2 was support
by PW.4,
W/O Ts'otetsi, who told the court that in February, 1984, he was
attached to the Traffic Section of the Police Force and
stationed in
Maseru. He was not involved in the investigations of this case. On
29th February, 1984, he was, however, requested
by the C.I.D. police
to hold an identification parade at the Central Prison here in
Maseru. Two (2) people were to identify a person
at the Central
Prison.

11

At about
10 a.m. he and D/Sgt Matamane drove in a police vehicle to the
Central Prison. PW.2 and DW.2, the two people who were to
identify,
were also in that vehicle. Before coming to the prison D/Sgt Matamane
explained to PW.2 and DW.2 that following a crime
which had been
committed at the garage on 8th February, 1984, they were going to the
Central Prison to point at a person they knew
was involved in the
commission of the crime. This was said in the presence and hearing of
PW.4.

After
dropping them at the Central Prison, D/Sgt. Matamane left and told
PW.4 that he would return later. PW.4 then informed one
of the prison
warders that he had people who were to identify a person. The prison
officer then took PW.2 and DW.2 into one of
the offices while PW.4
proceeded to a place where the parade was to be assembled. That place
was whithin wall-enclosures and out
of view from the room into which
PW.2 and DW.2 had been taken.

PW.4 then
asked another prison officer to bring the suspect and 9 other people
of more or less the same hight and complexion. It
was only then that
the accused and 9 other people were brought to PW.4 who asked them to
form a line up. He explained to the accused
what charge he was facing
and that he could choose any position in the line up. Accused did and
said he was satisfied with the
way in which the parade was arranged.
PW.2 was then called from the room. PW.4 told him to look at the
people in the line up and
touch the suspect if he could see him. PW.2
went and touched the accused.

According
to PW.4, after pointing at the accused, P.W.2 was taken not to the
room but to the vehicle which was parked outside. Before
DW.2 was
called, accused who had been wearing a greenish shirt wished to
exchange clothes with another person in the parade. He
did not,
however, wish to change his position in the line up. He was allowed
to exchange clothes with another person but

12

keep the
same position in the parade. When DW.2 was called to the parade PW.4
gave him the same explanation as he did to PW.2. After
looking at the
people on the parade DW.2 pointed at a person with whom the accused
had exchanged clothes. The parade was then dismissed,,
It may be
observed that although PW.4 says after he had pointed out the
accused, PW.2 was not take back to the room where D.W.2
was waiting,
DW.2 and PW.2 say he was. They do not, however, say when he returned
into the room. PW.2 told DW.2 to point at a person
wearing a blue
track suit. In that event the irregularity cannot, in my view, be
fatal to the identification parade.

The
evidence of PW.3, Molahli Molahli, was that on 8th February, 1984 he
was working for Radio. Lesotho. On that day he went for
shopping at
one of the shops next to Ma-Africa Motor Garage. He used a Government
car to go to the shop, When he got out of the
shop and before he
could get into his car he noticed two men run­ning from the
direction of the garage towards the centre of
the town. After the two
men had passed, he again noticed another person running towards the
town from the same direction i.e. from
the Ma-Africa Motor Garage.
PW.3 entered into his car and started the engine. The three people
who were running away were still
within his view.

Before he
could engage the forward gears, PW.3 noticed a police officer,
Sergeant Mochema, also coming running from the direction
of the
garage. The police officer immediately opened the door, got into the
car and told PW.3 "Let us go, we are chasing that
person."
He was referring to the person whom PW.3 had seen running from the
direction of the garage towards the centre of
the town after the
other two had passed. The first two persons were by then out of view
but the third one was still within PW.3's
sight. PW.3 then drove the
car and followed that person

13

who was
running along the T.Y. tarred road. When he came to the cover of
Oxford furniture shop, that person turned to the right
towards the
bus stop. PW.3 also turned his car to the right towards the bus stop.
That person who was still within his view then
crossed the road and
turned towards Co-op Lesotho offices. PW.3 also turned his car and
drove in the direction of that person.
When he was next to him, PW.3
stopped the car and heard Sergeant Mochema ordering that person to
stop. The person complied and
placed his hands on the waist. PW.3
clearly saw him as the accused. Sergeant Mochema was already-holding
a firearm which he pointed
at the accused. He ordered him to hand
over his gun and the accused did hand over a revolver which Sergeant
Mochema took possession
of. PW.3 then got out of the car and opened
the rear door. The accused got into the car and PW.3 immediately
drove straight to
the police charge office. He was present at the
charge office when Sergeant Mochema handed the accused and his
revolver to the
police at the Central Charge Office. Accused's
revolver was also opened in his presence when PW.3 noticed 4 empty
shells being
taken out, PW.5, Major Manamolela, testified that on 8th
February, 1984, she was at her office at the Police Headquarters in
Maseru
when she received a report following which she rushed to the
Central Police Charge office in Maseru. She arrived at the charge
office simultaneously with PW.3, who was with the accused and
Sergeant Mochema. Sergeant Mochema who is now late then handed to
her
a .38 special revolver with the explanation that he had taken the
revolver from the accused. When she opened it, PW.5 found
four (4)
empty shells and one life bullet in the revolver. She took possession
of the revolver, the four (4) empty shells and the
life bullet. She
subsequently sent the revolver and the (4) empty shells to a
ballistic expert in Pretoria in the Republic of South
Africa for
examination. Later on,

14

the
revolver and the four (4) empty shells were returned together with
ballistic expert's report. The revolver, the four (4) empty
shells,
the life bullet and the expert's report had since been in the police
custody. She formally handed them in as exhibits in
her evidence and
were respectively marked Exhibits 1,2,3 and A.

According
to Exhibit A which was duly sworn to by the Ballistic Expert
Detective Sergeant Gary Charles Arntsen of the South African
Police
Force in the Republic of South Africa, both Exh. 1 and 2 were
subjected to expert examination. The results were that Exh.1
was in
working conditions and Exh. 2 had been fired from Exh. 1.

In his
evidence, the accused told the court that his home was at Clemont in
Durban (Natal) in the Republic of South Africa. In December,
1983 he
and his wife left the Republic of South Africa for a visit in
Lesotho. They entered Lesotho through Ficksburg Boarder post.
After
crossing the boarder they went to accused's maternal grandmother in
the village of Ha Nkuke at St. Monica's in the district
of Leribe.
After greeting the grandmother,the wife left on the same day for her
maiden home at Chebiri village in the Mohale's
Hoek district while
the accused himself remained at St. Monica's. However, on 8th
February, 1984, the accused left St. Monica's
to go and see his wife
in Mohale's Hoek. He was travelling by taxis. On the way he got off
the taxi and went to see a friend of
his one Jersy Ramakatane at the
village of Ha Mabote on the out skirts of Maseru. He was running shot
of money and wanted his friend
to advance him with some cash for
paying the taxi fares. He was given R50. Jersy Ramakatane then took
him in his car and dropped
him at Ken Turky where he (accused) wanted
to buy chicken and some other food stuff for his wife in Mohale's
hoek. Ken Turky shop
is opposite a certain school of which he did not
know the name.

It may be
mentioned that in Maseru there is only one Ken Turky shop which is
next to Ma-Africa motor

15

garage
opposite the Lesotho High School. The court, therefore, takes
judicial notice that the school which the accused is talking
about is
the Lesotho High School.

Having
bought the chicken and some other food stuff at Ken Turky, the
accused then walked to the bus stop in Maseru. He never went
to a
garage with many-vehicles. He did not know PW.2. From Ken Turky shop,
he walked along side the main tarred road leading from
T.Y. When he
came to the robots, the accused turned right and went to the bus
stop, where a policeman arrested him saying he suspected
him of
having killed a person. He believed the policeman picked on him
because he was not wearing a blanket. He walked with the
policeman to
the charge office. PW.3 was, therefore, telling a lie when he said he
drove him in a car to the police station. The
accused said he did not
have a firearm with him and did not even know what it was. PW.3 was
again deceiving the court when he testified
that he (accused) had
handed a revol­ver to the police officer.

According
to the accused, he did know PW.5 and had seen her for the first time
when she and another police officer took him in a
car to the garage
with many vehicles next to Ken Turky shop.

Accused
told the court that he was kept at the police charge office for about
2 days during which he was assaulted by the police
officers in an
attempt to force a confession from him. He was then taken to court,
hospital and finally the prison. He confirmed
that whilst at the
prison, the identification parade was held when PW.2 pointed at him.
After he had changed his clothes with another
person in the parade,
DW.2 also came but pointed at the person with whom he had changed
clothes, DW.2 and PW.2 could have been
told by the police how he was
dressed and that he had two front teeth missing on the upper row of
his teeth.

I do not
see how, even before they had met and seen him, the police could have
known the way in which the

16

accused
would be dressed at the parade. I have no hesitation, therefore, in
rejecting the suggestion that the police had told PW.2
and DW.2 how
the accused was dressed.

The
accused conceded that prior to the shooting incident he had had no
dealing with the Lesotho Police. He did not know PW.2, PW.3
and PW.5.
He had never clased in any way with those witnesses and no grievances
existed between him and the witnesses.

That
being so, I find it difficult to imagine any good reasons why the
witnesses should fabricate against the accused in this case.
They
cannot, even by any stretch of imagination, be said to have an
interest or bias adverse to the accused.

The
accused suggested that the police officer who arrested him at the bus
stop picked upon him because, as a person from outside
Lesotho, he
did not put on a blanket. Although it is often said the Basotho
people traditionally put on blankets, anyone who has
been at the bus
stop in Maseru will know that that place is milling with hundreds and
hundreds of people who are not wearing blankets.
The accused's
suggestion cannot, therefore, hold water.

In my
view, the real important question is whether or not the witnesses who
say they identified the accused had proper opportunity
to do so.
PW.2's evidence is that at about 12 noon on the day in question, he
noticed the accused already seated in a squatting
posture next to
where he was seated in the shade under a peach tree. His attention
was attracted to the accused by the fact that
he had not seen or
heard him coming. He only noticed him already squatting next to him.
Contrary to common practice among the local
people, the accused did
not even greet him when he came and squatted next to him. He,
therefore, looked at the accused and when
he also looked at him, PW.2
noticed accused's rather conspicuous gap on the upper row of his
teeth. He was then startled by an
explosive sound and when he tried
to look at the accused to find out if he too had heard the explosion,
he noticed the accused
quickly passing in front of him,

17

parting
the branches of the peach tree and firing a shot with a gun he was
holding in his hand.

It seems
to me under the circumstances, PW.2 did have a good opportunity to
observe the accused and was testifying to the truth
when he said he
positively identi­fied him.

PW.3's
attention was also attracted by the sight of two people followed by a
third running away. Then a policeman hurriedly got
into his car and
told him to chase after the third person who was still within his
view. He drove the car and followed that person
who never got out of
his view until he stopped the car next to him. That person was
immediately disarmed of a revolver which he
had in his possession and
put into the car. PW.3 then drove to the police charge office where
the person whom he clearly identified
as the accused was handed in.

Although
the accused said he walked to the police station and was not taken
there in PW.3's car, the evidence of PW.3 was in a way
corroborated
by that of PW.5 who told the court that she arrived at the charge
office simultaneously with PW.3 who was with the
accused and the late
Sgt. Mochema. I find no good reasons to doubt PW.3's evidence
supported by that of PW.5 on this point and
I am prepared to accept
it as the truth.

Considering
the evidence as a whole, I am satisfied that the accused is the
person who was carrying Exh. 1 from which shots were
fired on the
premises of PW.1's garage on 8th February, 1984. There is no evidence
that besides the accused any other person carried
a gun from which
shots were fired. The question whether or not the accused was the
person who did the shooting and, therefore,
fatally injured the
deceased must in my judgment be answered in the affirmative.

18

There is
no doubt in my mind that by shooting the deceased several times with
a leathal weapon such as Exh. 1, the accused had the
requisite
subjective intention to kill. I accordingly convict him of murder as
charged.

My
assessor entirely agrees with this decision,

B.K.
MOLAI

JUDGE.

29th
October, 1984.

For Crown
: Mr. Kalamanathan,

For
Defence : Mr. Sello.

19

CRI/T/9/84

EXTENUATING
CIRCUMSTANCES

The court
has rejected as false the Defence's story that the accused did not
kill the deceased and accepted as the truth the crown
version that he
did. Consequently the accused was convicted of the murder of the
deceased.

Having
convicted him of murder, the question that now arises is whether or
not there are any factors, connected with the commission
of the
crime, tending to reduce the moral culpability of the accused. In
this regard the court has had the benefit of able and
eloquent
addresses from counsel on either side.

It is
trite law that the onus is on the accused to establish, on a
preponderance of probabilities, the existence of extenuating

circumstances. In the present case the accused himself did not give
evidence on extenuating circumstances. However, the defence
called
two witnesses, 'Manchakha Tsosane and Jersy Ramakatane to testify in
that regard. The gist of their evidence was that to
the best of their
knowledge, the accused and the deceased did not know each other.

According
to her evidence, 'Manchakha Tsosane lived in Butha-Buthe and was the
wife of a certain Thabo Eliot Motloung. After 12
midnight on 31st
December, 1983, the deceased, Oscar Lebohang Leluma, came to her
house desperately looking for her husband, Motloung,who
was here in
Maseru at the time. When he could not find Motloung, the deceased
left. 'Manchakha Tsosane, to whom the deceased was
well known,
believed that the latter was leaving for Maseru. She, therefore, told
the deceased to give her regards to her husband,
Motloung. The
deceased, however, told her that she would never see her husband
again. On Monday, 2nd January, 1984, she received
the news concerning
the death of her husband. The matter was reported to the police but
as far as she was aware, the murderer has
not been traced up to now.
She was positive that she did not know the accused person who was a
complete stranger to her.

20

In his
evidence, Jersy Ramakatane told the court that he had been sitting in
the court room throughout the proceedings in this trial.
His evidence
must, therefore, be approached with caution.

He said
he was a businessman in Maseru. He knew the accused and the late
Motloung who was his partner in business. The late Motloung
was
renting a room at his (Ramakatane's) place at Ha Mabote on the
outskirts of Maseru where he stayed while in Maseru. Although
he knew
him, the deceased was not a friend of his. The deceased was,however,
a friend of the late Motloung.

Following
certain reports, the details of which were clearly hearsay and,
therefore, inadmissible evidence, Ramakatane went to the
mortuary
where he found the dead body of Motloung. He noticed about 4 bullet
wounds on the body.

'Manchakha
Tsosane also reported to him what had happened at her house in
Butha-Buthe on the night of 31st December, 1983. He informed
the
police about what 'Manchakha Tsosane and other people had reported to
him.

Notwithstanding
the information he gave to the police, the latter have, to the best
of his knowledge, never detained the deceased
for interrogation in
connection with the death of Motloung. However, because of what
'Manchakha Tsosane and other people had told
him, Ramakatane believed
that Motloung had been killed by the deceased, Oscar Lebohang Leluma.
That was also the general belief
among the acquaintences of the late
Motloung.

Although
it was not clear from the evidence of Ramakatane whether it was
before or after the burial, the accused who was also a
friend of
Motloung did come to him before the 8th February, 1984 when he and
other people "obviously" said something
concerning the
death of Motloung.

I am not
so sure that I understand what the witness means by the term
"obviously". Whatever that means the accused who
gave
evidence in his defence never told the court that following the death
of Motloung he had said anything of the sort to Ramakatane.

21

In his
able address the defence counsel referred the court to a number of
autorities, both in the Republic of South Africa and in
Lesotho, all
of which indicated that where an accused person had killed a deceased
following his belief that the latter was causing
harm to him or a
close relative of his, extenuating circumstances were found to exist.
(Rex v. Fundakubi and Others 1948(3) S.A.
810, Mokola Ramone v. Rex
1967-70 LLR. 31, S.v Ndlovu 1970 (1) S.A. 430, Rex v. Rai Manyangaza
and Other 1971-73 LLR. 171 etc.)

It is to
be observed, however, that in the present case, there is no evidence
that the accused is a relative of Motloung nor is
there any evidence
that he had a belief that the deceased was causing harm to him or a
close relative of his. All that the evidence
of Ramakatane, if it
were to be believed, points to, is that the accused was a friend of
Motloung. The decisions to which this
court has been referred are,
therefore, no authority that even where the belief is that the
deceased had killed a friend the court
should find that extenuating
circumstances exist.

It was
argued, however, that the underlying philosophy in all these
decisions was not so much that the deceased had harmed the accused
or
a relative of his but that he had harmed a beloved one and the
principle should, therefore, be extended to cases where a belief
that
the deceased had harmed a friend existed.

Assuming
for the sake of argument that it is so, the difficulty in this case
is, however, that the accused has taken the line that
he did not kill
the deceased and the court found otherwise. The accused has not gone
into the witness box after conviction to tell
us that Motloung was
his friend or beloved one and what his state of mind was after he had
learned of his death.

I do not
conceive it to be the duty of this court to speculate as to what the
accused's state of mind was at the

22

time of
the killing. The one person who could have enlightened the court and
whose vital interest it was to do so was the accused
who has,
however, chosen to conceal the truth. That being so, the argument
does not,in my view, advance the case for the accused
any further.

It was
further argued that the court should take into consideration the
probability that the accused was not alone in the commission
of this
offence. He was with some other persons and he played a minor role.

This
argument was based on the evidence of PW.2 who had said while he was
sitting in the shade of the peach tree on the garage premises
he
heard a gun report behind him. It was contended that someone other
than the accused himself must have fired that shot and probably

fatally injured the deceased. I am not persuaded. The evidence of
PW.2 was that when he heard that first shot he tried to look
at the
accused who had been squatting next to him but at that time noticed
him swiftly passing in front of him and parting the
branches of the
peach tree from where he fired another shot with the gun he was
holding in his hand. It seems to me, therefore,
that at the time PW.2
heard the first shot behind him, the accused was no longer squatting
next to him. He was already on his feet
and that explains why the
moment PW.2 turned to him, the accused was already passing in front
of him.

The
second ground on which the argument was based is that according to
the post-mortem examination report, the deceased had 5 bullet
wounds.
The firearm alleged to have been found on the accused had the
capacity to load five rounds of ammunition. When it was opened,
only
four (4) empty shells and a life bullet were found thus suggesting
that only four shots had been fired from the gun. If the
accused
fired only four shots, he could not have inflicted five (5) bullet
wounds on the deceased. Another person must, therefore,
have fired
the fifth shot which may well have caused the fatal injury on the
deceased. The argument that the deceased had sustained
five (5)
bullet wounds was

23

based on
the fact that according to the post-mortem examination report, there
seems to have been 5 entry and 5 exit wounds on the
body of the
deceased.

It may be
mentioned that at the time the post mortem examination report was
admitted in evidence and handed in as an exhibit, I
pointed out the
difficulty involved in handing in from the bar documents such as this
post-mortem examination report which are,
more often than not,
written not only in scientific language but also in an illegible
handwriting and asked that it be explained
to the court. None of us
could explain with any certainty what is meant for instance, by
"31CS" and "81CS"
or "T12" and "L2".
Only the doctor who performed the post mortem examination could
explain this and how the
5 entry and exit wounds were made on the
body of the deceased. Particularly so because according to
Ramakatane, there were only
four (4) bullet wounds on the deceased.

Be that
as it may, there was no doubt in my mind that considering the
totality of the evidence particularly that of DW.3 who actually
saw
the gun man firing shots in the direction of the deceased and the two
people with whom he was going only one person fired the
shots.
Wherefor I found as a fact that no other person beside the accused
had fired the shots that fatally injured the deceased.

If there
were people with whom the accused was committing this offence, it may
be argued that they were the two people with whom
the deceased was
going. It is, however, unlikely that either of those people actually
shot at the deceased for DW.3 told the court
that as the shots were
fired, he positively saw those two people running away in the same
direction with the deceased who shortly
therafter fell to the ground.
In my view the deceased could not have run away together with the
people who were shooting at him.
If the argument is intended to
suggest that in committing this offence the accused acted in concert
with the two men with whom
the deceased was going then on the
evidence it would appear that the role played by the two men was
merely

24

to decoy
the deceased to the garage where the accused would do the actual
shooting. I am unable, therefore, to accept the argument
that the
role played by the accused in the commission of this crime was a
minor one.

In the
light of all that has been said, it is clear that I take the view
that no extenuating circumstances exist in this case and
the proper
verdict is, therefore, that of guilty of murder with no extenuating
circumstances.

My
assessor entirely agrees with this finding.

B.K.
MOLAI.

20th
November, 1984.

For Crown
: Mr. Kalamanathan

For
Defence : Mr. K. Sello.