CRI/T/22/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of .

REX

v

TAELO
KALAILE

JUDGMENT

Delivered
by the Hon. Acting Judge J.L. Kheola on the 9th day of April, 1984.

The
accused is charged with the murder of Moholobela Moholobela
(hereinafter called the deceased). It is alleged that on or about

31st July, 1982, and at or near Bolahla in the district of Leribe,
the accused unlawfully and intentionally killed the deceased.

The
accused pleaded not guilty to the charge.

At the
commencement of the trial Miss Moruthoane, counsel for the Crown,
indicated to the Court that Mr. Tsotsi, counsel for the
defence, had
indicated to her that he would admit all the depositions by the
witnesses at the preparatory examination. Mr. Tsotsi
confirmed that
the defence admitted all the depositions as evidence before this
Court in terms of section 273 of the Criminal Procedure
and Evidence
Act of 1981. At the same time he indicated that he would like to
cross-examine Sgt. Raleaka (PW.8 - P.E.).

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Under
cross-examination Sgt. Raleaka explained that when he arrested one
Tsepe Motoai who was accused No.2 at the preparatory examination,
he
found blood stains of his boot and he suspected that the blood had
something to do with the death of the deceased. He considered
it
important to send the blood found on the boot for analysis in
Johannesburg but declined to do so because at that time cooperation

between the Lesotho Mounted Police and the South African Police was
at its lowest ebb. He said that the accused was taken to the

magistrate to make a confession by a police woman. He denied that the
accused was assaulted in order to force him to make a confession.

In his
deposition Sgt. Raleaka said that on the 4th August, 1982 he attended
the scene of a crime at Bolahl River where he found
the dead body of
a boy in a small lake near the river. The body was wearing a cloth
know in Sesotho as "Leqapa". A big
stone was placed on the
corpse. It had a wound above the right eye, a small laceration on the
mouth and bruise on the forehead.,
Ho found three stones with blood
stains some distance from the dam where he found the body,, Hidden
under a tree was a blanket
which was later identified as that of the
deceased. About 30 paces from the corpse he found a pair of gumboots
which were identified
by the accused as his.

The
depositions which were admitted as evidence in this Court were those
of magistrate Motinyane (PW.1), Letsabisa Makhibaneng (PW.2),
Leeto
Makhibaneng PW.3),

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Lekhotla
Moholobela (PW.4), Simon Kapane (PW.5), Mpeko Rathebe (PW.6),
Rejeleng Thaate (PW.7), Merkins (Medical Officer) (PW.9),
Sebakeng
Mataeka (P.W.10), 'Malesema Rathuntsane (PW.11) and Lekhanoi Motsoene
(PW.12).

Mr.
Motinyane (PW.1) testified that the 5th August 1982 the accused
appeared before him in Court for the purpose of making a confession.

The accused appeared to be in his sound and sober senses. He
cautioned him that he was not bound to make a confession and that

should be make a statement it would be taken down in writing and
could be used in evidence against him at a later stage. He then

investigated the intention in accordance with the questionaire
provided in the form. The accused then made a statement in which
he
exculpated himself but he inculpated Tsepe Motoai by saying that he
killed the deceased while he (accused) and the deceased
were still
bathing in the Bolahla river. He says that while they were still
bathing Tsepe Motoai threw a stone at the deceased
and hit him on the
jaw. Deceased fell down, Tsepe dragged him into the pool and immersed
the body by placing a big stone on it.
Tsepe hid the gumboots of the
deceased amongst poplar trees after ho had killed him. During the
evening Tsepe arrived at his (accused's)
home and asked him to keep
deceased's gumboots and he promised that he would be coming to fetch
them. On the morning of the 4th
August, 1982 the chief's messengers
arrived at his house and found the deceased's gumboots in his
possession. When the policeman
arrived and asked him where he got the

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gumboots
he lied and said he bought them at Tau's.

Letsabisa
Makhibaneng (PW.2) deposed that one day he and the deceased were
ploughing the chief's field. At midday they decided to
stop and they
unspanned the oxen the deceased crossed to the other side of the
river where his other cattle were grazing and sat
down with the
accused. Later on when he decided to go home he called the deceased
so that they could go home together. The deceased
did not come, so he
went home with the accused. On the following day (Sunday) he met
accused at the veld and asked him the whereabouts
of the deceased.
The accused said that the deceased said he was going to the
cattle-post. After that accused and Tsepe said they
were going to the
concert and walked in the direction of Thoteng. On the following
Tuesday he was returning from school when he
heard the accused
shouting that the deceased had fallen into the water. He says that
when he saw the accused and the deceased on
the other side of the
river they were playing and accused was covering the deceased with a
blanket, they were lying down. At that
time Tsepe was not there.

Leeto
Makhibaneng (PW.3) testified that he was the head of the group that
went to search the home of the accused. They found deceased's

gumboots in his house but accused said he bought them on Saturday.
When later accused's gumboots were found near the scene of the
crime
accused said he knew nothing about them. It was Tsepe who said he had
been with the deceased.

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Lekhotla
Moholobela (PW.4) deposed that he is the father of the deceased. One
day he bought gumboots for himself but when he came
home he found
that they were too small. He gave them to the deceased.

Simon
Kapane (PW.5) testified that on the 31st July, 1982 he was at the
veld with some herdboys when Tsepe came to them. He was
shaky and
frightened. When asked why he appeared to be frightened he denied
that he was shaky and frightened. He says that on the
same day he
noticed that Lekhanoi (PW.12) was wearing new gumboots. Lekhanoi's
deposition confirms that the new gumboots had been
lent to him by the
accused because he said they were a bit too tight. He returned them
to the accused before he heard about the
death of the deceased. He
says that he was in the company of the deceased and Letsabisa (PW.2)
when they were still ploughing and
that when they went home they left
the accused and the deceased sitting together on the other side of
the river. He did not see
Tsepe Motoai on that day.

Sebakeng
Mataeka (PW.10) says that when accused's gumboots were found at the
scene of the crime he (accused) denied any knowledge
about them.
Accused's grandmother (PW.11) denied that he gave accused R10. She
says that she gave him R8 but she does not know
what he did with it.

At the
close of the Crown case Mr. Tsotsi applied for the discharge of the
accused on the ground that the Crown had failed to establish
a prima
facie case. The application was refused on the following grounds (a)
the accused was the last person to be seen in the
company

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of the
deceased alive; (b) the gumboots of the deceased were found in the
possession of the accused immediately after his death;
(c) in his
confession accused refers to a plan in which he agreed to entice the
deceased to accompany him to the river so that
he could be robbed of
his new gumboots; (d) after the deceased had been murdered in his
presence the accused made no attempt to
report the matter to anybody.

After
this application for the discharge of the accused was refused the
accused elected to give an unsworn statement from the dock.
He says
that he left his home taking a piece of soap with which he intended
to bathe at the river. On his way he met with Tsepe
Motoai; the
latter asked him where he was going to. He said he was going to wash
himself at the river. Tsepe followed him. He (accused)
found the
deceased herding his father's cattle in the veld. He asked the
deceased where he got the new gumboots he was wearing,
the latter
said that they belonged to his father. He then asked the deceased to
gave them to him and he agreed. They exchanged
their gumboots After
the exchange of gumboots Tsepe Motoai arrived. He (accused) left for
his home. The deceased reported to him
that he was going to the
cattle post.

A few
days after he had been using deceased's gumboots he exchanged them
with Lekhanoi (PW.12) but the latter returned them after
two days.
One day Tsepe Moto came to him and reported that deceased had drowned
in the river. He (accused) raised alarm and he
subsequently went

7

to the
river and saw that deceased was drowned. He returned to his home but
during the night three men came to his home and asked
him whether he
had any gumboots. He said he had them. They asked him where he got
them from. He said he bought them at Tau's with
the money given to
him by his grandmother (PW.11). He lied because he was afraid that if
he told them that the boots belonged to
the deceased they would say
that ho is the one who killed him.

Accused
says that he was eventually arrested and taken to Hlotse police
station together with Tsepe Motoai. During the night he
was taken out
of his cell and assaulted by the police. They compelled him to admit
that they had killed the deceased. On the following
morning he was
taken to the magistrate and ordered by the police to tell the
magistrate that they (accused) had killed the deceased.
He says that
when he came to the magistrate he told him that Tsepe Motoai had
killed the deceased. He said this because he left
the deceased in the
company of Tsepe Motoai.

At the
close of the defence case I came to the conclusion that the evidence
of Tsepe Motoai appeared to me to be essential to the
oust decision
of this case and in terms of section 202 (2) of the Criminal
Procedure and Evidence Act 1981 I ruled that he should
be subpoenaed.

The
evidence of Tsepe Motoai amounted to a total denial of any
involvement in the killing of the deceased. On the Saturday in
question
he went to London to fetch a horse which had been ridden by
his father. When he returned

8

from
London he tethered the horse on the other side of Bolahla river
before he went to the concert. On the following Monday he heard
a
woman raise alarm that a person had drowned in the river. He says
that as they did not hear well what the woman said accused
explained
that the deceased had fallen into the river. He denied that he went
to the concert with the accused. He also denied that
on Saturday he
was shaky and frightened when he met Simon Kapane (PW.5). He
explained that the blood found on his boot came from
the bird he had
killed because at one stage he put its gizzard on the boot. Part of
the blood came from the wound on his left ear
lobe which he sustained
when the chief's messengers who arrested him assaulted him. There was
blood on his blanket as well but
the police did not ask him anything
about the blood on the blanket.

Having
considered the position of the defence after Tsepe Motoai had given
evidence Mr. Tsotsi applied that he should be allowed
to call the
accused to give evidence on oath in order to rebut what the witness
called by the Court had said. The application was
granted. (See R. v.
Simelane 1958 (2) S.A. 302(N). In his sworn statement the accused
repeated most of what he had already said
in his unsworn statement.
He said it was Tsepe who told him chat the deceased had drowned in
the river.

The case
for the Crown depends entirely on circumstantial evidence and on the
ground that the accused lied when he was asked to
account for his
possession of

9

deceased's
gumboots. As regards the approach of the Courts to circumstantial
evidence I shall quote the well known words of Watermeyer,
J.A. in
the case of R. v. Blom 1939 A.D. 188 at pages 202-3 where he said

"In reasoning by inference there are two cardinal rules of logic
which cannot be ignored –

1. The
   inference sought to be drawn must be consistent with all proved
   facts. If it is not the inference cannot be drawn.

   
   

2. The
   proved facts should be such that they exclude every reasonable
   inference from them save the one sought to be drawn. If they
   do not
   exclude other reasonable inferences, then there must be a doubt
   whether the inference sought to be drawn is correct."

   
   

In the present case the proved facts are

1. The
   last person to be seen in the company of the deceased is the
   accused. At the time he was seen the accused was playing with
   the
   deceased and covering him with a blanket,

   
   

2. The
   gumboots of the accused were found near Bolahla river where the dead
   body of the deceased was immersed in a pool,

   
   

3. The
   gumboots of the deceased were subsequently found in the possession
   of the accused;

   
   

4. When
   asked to account for his possession of the deceased's gumboots
   accused lied that he had bought the gumboots at Tau's with
   the money
   given to him by his grandmother;

   
   

5. The
   accused made a "confession" to the magistrate that the
   deceased was killed by one Tsepe Motoai.

   
   

The
accused person has admitted that on Saturday (31st July, 1982) he was
in the company of the deceased near Bolahla river but
he says that
when he left for his

10

home the
deceased was in the company of Tsepe Motoai. None of the Crown
witnesses, particularly Letsabisa (PW.2) and Lekhanoi (PW.12)
saw
Tsepe Motoai at the time the accused was playing with the deceased on
the other side of the river. It is clear to me that Tsepe
Motoai was
not there at that time because the two Crown witnesses would have
seen him. They were only about 200 yards away from
where the deceased
and the accused were. Letsabisa says that before he went home he
called the deceased and said that they should
go home. The deceased
did not come so he went home with the accused. The impression I get
from the evidence of Letsabisa is that
when he went home with the
accused the deceased remained alone. On this point his evidence
conflicts with that of Lekhanoi who
says that they left the deceased
with the accused.

If the
accused went home with Letsabisa, was he already wearing the gumboots
of the deceased? If he was already wearing them this
would confirm
his story that he exchanged his gumboots with the deceased. If he was
still wearing his own gumboots when he went
home with Letsabisa then
that would mean that after parting with Letsabisa he returned to the
deceased at the river. This crucial
point has not been clarified and
the fact that the accused was the last person to be seen with the
deceased does not help the Crown
case in any way because he
subsequently

left him
(deceased) alone when he went home with Letsabisa. If the Crown
realized that there was a conflict in the

evidence
of Letsabisa and Lekhanoi it was their duty to subpoena the two
witnesses to come and give viva voco

11

evidence
before this Court because one of them could be mistaken. It is not
the work of the Court to call witnesses to come and
support the case
of any of the parties before it. It was with some great reluctance
that I decided to call Tsepe Motoai whose evidence
appeared to be
very essential for the just decision of this case. That witness ought
to have been called by the Crown because the
defence of the accused
as it appeared in the "confession" was that Tsepe had
killed the deceased. The Crown did nothing
about that even after the
Court had made some insinuations about the sudden disappearance of
Tsepe who was accused No.2 at the
preparatory examination.

When the
gumboots of the deceased were found in his possession the accused
said that he had bought them at Tau's, he repeated the
same story to
the police (PW.6). In his so called "confession" he said
the gumboots were given to him by Tsepe Motoai.
In his evidence
before this Court he said he exchanged gumboots with the deceased.
The first two explanations have been proved
to be false. The question
is what inference is to be drawn from a false statement by an accused
person? It has been held in a number
of cases that such a false
statement is not proof of guilt, but it may show disbelief in his own
innocence and throw light on his
credibility. (See R. v. Simon, 1929
T.P.D. 328; R. v. Makobu, 1938 T.P.D. J/C. 184/38). In R. v. Nel,
1937 C.P.D. 327 it was held
that

"In a criminal case the question is not whether the evidence is
consistent with the accused's guilt but whether it is wholly

inconsistent with his possible innocence. Where, therefore

12

in a criminal case evidence is led of acts of conduct of the accused
which have been committed after the alleged offence and which
are
apparently incompatible with innocence, care must be taken not to
allow such evidence to have an exaggerated effect because
there may
always be the possibility that the conduct of the accused may have
been caused by fear owing to the consciousness that
appearances have
been suspicious even where suspicion has been unwarranted."

The
accused in this case has been proved to be a liar but that does not
necessarily mean that he is guilty He has explained all
along that he
lied because he thought they would hold him responsible for the death
of the deceased.

The fact
that he has lied should not be over-emphasisedo Despite the fact that
he has lied it is still the duty of the Court to
find if there is any
other evidence implicating the accused. In Tumahole Bereng and Others
vs. The King 1926 - 1953 H.C.T.L.R.
123 at page 138 Lord MacDermott
said :

"Corroboration may well be found in the evidence of an accused
person, but that is a different matter, for there confirmation
comes,
if at all, from what is said, and not from the falsity of what is
said. It is, of course, correct to say that these circumstances
- the
failure to give evidence - or the giving of false evidence -may bear
against an accused and assist in his conviction if there
is other
material sufficient to sustain a verdict against him. But if the
other material is insufficient either in its quality
or extent they
cannot be used as a make-weight." (My underlining) .

In the
present case there is practically no other material sufficient to
sustain a conviction of the accuse if his false and conflicting

statements are not used as a

13

make-weight.

The
correct procedure is that if the defence intends to object to the
admissibility of a confession the Crown must be notified at
the
commencement of the trial so that arrangements for a trial within a
trial may be made. In a trial within a trial the issue
of the
admissibility of a confession or admission by the accused should be
decided by the judge in the absence of the assessors
(See R. v.
Dunga, 1934 A.D. 226). In the present case Mr. Tsotsi formally
admitted the evidence of the magistrate who recorded
the confession
but he indicated that he would like to cross-examine Sgt. Raleaka
(PW.8). He did not indicate what aspect of Sgt.
Raleaka's evidence he
was challenging. The first part of the cross-examination concerned
Tsepe Motoai and the last part showed
that the accused would say that
the police assaulted him and compelled him to go and make a statement
to the magistrate in which
he should incriminate himself. Sgt.
Raleaka denied this. Mr. Tsotsi has submitted that even if he did not
follow the usual procedure
the Crown must have realized when he
cross-examined Sgt. Raleaka that he was challenging the admissibility
of the statement and
that they should have called rebutting evidence.
In any case, he says, the statement was an exculpatory one and not a
confession
governed by section 228 of the Criminal Procedure and
Evidence Act 1981. I agree that the statement is not a confession.
Miss Moruthane
has submitted that the confession "places the
accused at the

14

scene of
this crime." In other words, the accused was present when Tsepe
killed the deceased; he was the person who enticed
the deceased to go
to the river so that he could be killed and his gumboots taken. In
deciding the guilty or innocence of the accused
the 'confession'
should be taken as a whole, in the sense that the portions favourable
to the Crown and the portions favourable
to the accused should be
taken into account (See S. v Bruce 1972(4) S.A.547). The statement
made by the accused is a lie as it
is not consistent with the proved
facts. The gumboots of the accused would not have been found as the
scene of the crime if the
statement were true. Tsepo was not at the
scene of the crime that day according to Crown evidence.

Lastly, I
would like to commend on the evidence of Tsepe Motoai. He struck me
as being a very untruthful witness who denied almost
everything about
the death of the deceased.

Some of
the things he denied had been well proved by the Crown, for instance,
that on the fateful day he came to a group of herdboys
at the veld
and that he appeared to be so frightened that his body was shaking.
In his evidence he first denied that he was anywhere
near Bolahla
river on that fateful Saturday, but later it appeared that when he
returned from London he crossed Bolahla river and
tethered the horse
beyond the river. It is improbable that the police could see the
blood on his boot and say nothing about the
blood that he alleges

15

was on
his blanket. If he ever had a wound on the ear, in my opinion, there
would have been more blood on his blanket than on his
boot. His whole
account of the presence of blood on his boot seems to me to be a
figment of his imagination and far-fetched.

For the
reasons appearing above I am of the opinion that the circumstantial
evidence upon which the Crown has relied is totally
unsatisfactory.
The Crown has failed to prove its case beyond a reasonable doubt. The
accused is found not guilty and he is discharged.

My
assessors disagree with me.

ACTING
JUDGE.

9th
April, 1984.

For the
Crown : Miss Moruthane

For the
Defence: Mr. Tsotsi