CRI/T/31/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of

REX

v

RAMOSAMO
MAKHETHA RETSELISITSOE MOFELIKOANE

JUDGMENT.

Delivered
by the Hon Mr Justice J.L Kheola on the 19th day of September, 1985

The
accused are charged with the murder of Lekhetho Labane (hereinafter
called the deceased in that on or about the 21st October,
1983 and at
or near Tsiu's in the district of Maseru the said accused, one or
other or both of them, unlawfully and intentionally
killed the
deceased To this charge the accused pleaded not guilty

Dr
Moteetee deposed that on the 24th October, 1983 she performed a
post-mortem examination on the dead body of the deceased which
was
identified to her by one Liponto Makhetha. She formed the opinion
that death was due to cardio-respiratory failure caused by
internal
bleeding and the injury on the neck. The body had the following
injuries Lesions and burns on the right cheek, right side
of the
neck, behind the right ear and the right buttock A gaping wound
around the angle of the left jaw and neck Bullet wound lateral
aspect
of the left thumb and exit medially Rugged would distal phalanx left
index finger with fragmented bone. There was a commuted
compound
fracture of the left jaw, a piece of copper metal embedded in soft
tissue Entry bullet wound below rib cage posteriorly
right upper

2

quandrant
abdomen anteriorly Entry wound on the abdominal wall between the 10th
and 11th ribs penetrating into abdomen The spleen
was ruptured.
lacerations inferior surface right and left lobe of the liver
penetrating to superior surface Commuted fracture axis
3rd and 4th
cervical spinal bones A bullet was embedded between the 3rd and 4th
cervical spinal bones.

The
doctor told the Court that after taking out the bullet and the piece
of copper metal she gave them to a policeman, I must mention
that at
the trial the policeman in question said that no piece of copper
metal was given to him by the doctor The spent bullet
before the
court (Ex 1 ) was identified by the doctor as being similar to the
one she had extracted from the neck of the deceased.
Her report was
handed in as Exh A

'Matau
Makhetha is the mother of the accused 1 She was the first person to
see the dead body of the deceased on the morning of the
21st October,
1983 It was lying near the door of the house in which the deceased
used to sleep. In cross-examination she admitted
that there was great
animosity between her family and the family of accused 1 . The cause
of the animosity is the dispute concerning
certain fields at Tsilo's
which originally belonged to their grand­father The father of
accused 1 is the younger brother of
the father of the deceased The
witness deposed that when the father of accused 1 was murdered a few
years ago, the deceased and
his brother were charged with murder
before this Court but they were acquitted Regarding the dispute over
the fields she explained
that in 1954 the fields were awarded to her
by judgments or the courts but the father of-the accused 1
subsequently won the cases
and the fields were awarded to him The
deceased defied the judgments of the courts of law and continued to
plough the fields relying
on the 1954 judgments which had been set
aside She told the court that the deceased had a rifle ( 303 ) and
was in the habit of
shooting at night.

3

Kenene
Makhetha deposed that on the morning of the 21 st October, 1983 he
went to the deceased's house when he heard his (deceased's)
mother
scream. He entered into the house and saw the dead body lying near
the door It had several injuries. He also found a spent
bullet for a
pistol inside the house.. He found two empty shells of a pistol
bullet He also confirmed the evidence of Matau that
there was great
enmity between the families of accused 1 and the deceased caused by
the dispute over fields. He deposed that in
the murder trial in which
the deceased was charged he testified that the father of accused \
had been killed by the deceased in
present case He futher deposed
that three days after the killing of the deceased one 'Mataung
Malikeng (P W.3) came to him and
told him that it was likely that the
deceased had been killed by the two accused before court because on
the night of the killing
they came to her place and asked her some
questions about the deceased She explained that she was afraid to go
to the police. He
went to the charge office and reported what 'Matau
had told him.

Makhaola
Makhetha deposed that one day during the trial of the deceased and
his brother in 1982 for the murder of the father of
accused 1 , he
witnessed a fight between the deceased and the accused 1 . He had
been lying near the fence some distance from the
courtroom when he
heard a quarrel of people at the forecourt of the High Court He came
and saw that the deceased and the accused
1 were fighting and the
police were separating them lie saw a knife in the hand of the
accused 1 . He put it into his pocket and
said, "I shall kill
you, I am not my father you killed " He saw very well that
accused 1 was addressing those words to
the deceased Under
cross-examination it was put to him that the quarrel he is referring
to was actually between the deceased and
the son of accused 1 named
Phillip. The witness denied this but he could not explain why the
police who were stopping the fight
did not arrest accused 1 or at
least dispossess him of the knife

4

Before I
deal with the evidence of the only witness whose evidence implicates
the accused, one 'Mataung Molikeng, I would like to
say a few words
about the evidence of the police who were involved in the
investigation of this case W/0 Polanka told the court
that on the
24th October, 1983 he was present when the doctor performed a
post-mortem examination and that the doctor gave him
the bullet (Ex.1
), he later gave it to Sgt. Maluke who took it to Pretoria for
examination by a ballistic expert The report of
the ballistic expert
was handed in and marked Ex.B. In the report Bazil Norman Young
states that he received from Sgt Maluke the
following (1 ) IX 303
"Enfied" Rifle No. 69420 with magazine, (2) IX 303 spent
bullet (badly damaged). He found the rifle
to be in good working
order, due to damage and lack of the necessary marks used for
identification purposes, it was not possible
for him to determine
whether the spent bullet had been fired from Rifle No 69420. It was
also negative with outstanding cases.

W/0
Mokone deposed that on the 21st October, 1983 Piti Mothabeng arrived
at the charge office and made a report concerning a dead
person at
Tsilo's. He gave him an empty shell of a 7.65 pistol. At the scene of
the crime he found another empty shell of the same
size outside the
house He also saw a spoor of blood from the house of the deceased
leading towards the home of the chief but it
stopped at the school.
The two empty shells were marked Ex 3 collectively and the spent
bullet (7 65) was marked Ex 4

Sgt
Mokeretla told the court that on the 30th January, 1984 he searched
the home of accused 1 and found Rifle No 69420 and five
live bullets
The accused 2 claimed that the rifle and bullets had been law­fully
issued to him as a member of L.M P The witness
seized the Rifle (Ex
5) and the bullets (Ex 6 collectively) and also charged accused 2
with murder and arrested him. S/Lt Rikabe's
evidence was that as an
officer in charge of the

5

armoury
and a keeper of the arms register, his records reveal that Rifle No
G9420 was newer issued to accused 2. It was quite clear
from the
evidence of this witness that the charge office has its own books in
which they record when a firearm is issued to an
officer. Accused 2
was working at the charge office, so the Crown has failed to rule out
the possibility that the rifle (No. G9420)
was issued to him by the
people in the charge office who use a different set of books to issue
firearms In any case even if accused
2 stole the rifle, that fact
alone dues not prove that he was involved in the murder of the
deceased. Moreover, the evidence of
the ballistic expert did not show
that the bullet found in the body of the deceased was fired from the
rifle in question

The
deposition of S/Sgt. Mothabeng at the preparatory examination, was
admitted by the defence. He is the police officer who conducted
an
identification parade on the 17th November, 1984 in which the
witness, 'Mataung rtolikeng identified accused 2

'Mataung
Molikeng testified that on the night of the 20th October, 1983 she
was sleeping in the same house with one Tsepiso Molikeng.
At about
midnight he heard a knock at the door and asked who was there That
person ordered her to open the door as he was from
the mines. She
says that because she was expecting her husband from the mines, she
ordered Tseliso to open the door but she first
of all lit a paraffin
lamp with a glass The two accused entered into the house and accused
1 introduced himself and said his name
was Ramosamo. He did not tell
her the name of his friend. She had last seen accused 1 when she was
about 12 years old (the witness
is now 23 years old), however she
easily recognised him because he bears great resemblance to his
children who are well known by
her Accused 1 asked her if she had
seen the deceased that day She said that she saw him during the day.
He asked her whether the
deceased usually comes out of his house when
his horse neighs or when his dogs bark at night She said that she did
not know because
she does not go about at night The accused were
wearing grey (donkey) blankets Accused 1 was

6

holding a
small gun (possibly a revolver or a pistol) while accused 2 was
carrying a 303 rifle with a strap The accused remained
in her house
for about an hour and she saw their faces well because of the light
from the lamp

At one
stage accused 1 asked her to come out with him She compiled. He then
asked her to help his friend (accused 2) to have sexual
intercourse
with him. She refused saying that she was sick They had remained
outside the house for about 15 minutes. After that
the two accused
left. After a fairly long time they came back and repeated to ask her
the same questions they had earlier asked
her about the deceased She
gave them the same answers This time they remained in her house for
about 10 minutes Before going away
accused warned her and Tseliso not
to report to anybody about their presence in the village that night,
if they did, they would
kill them Immediately after the accused had
left she heard three gun reports in succession. On the following
morning an alarm was
raised and she rushed to the home of the
deceased and found that he was dead. She, however, did not tell
anybody about the visit
of the accused to her place on the previous
night. Two days later she reported to one 'Matlohang Makhetha (P.W.4)
about the visit
of the accused at her house and their questions
concerning the deceased. 'Matlohang promised that she would seek
advice from one
Jafeta. The witness says that after three days she
reported the matter to Kenene Makhetha (P W.3) who immediately went
to the police.

The
witness further deposed that on the 14th November, 1983 she came to
Maseru where an identification parade was conducted by the
late Sgt
Mochema. She pointed out accused 1 as the person who was at her house
on the night deceased was killed She and Tseliso
were kept together
in a certain room and Tseliso was the first to go to the
identification parade After that he did not return
to the room in
which she was kept.

7

Under
cross-examination she admitted that despite the fact that in 1983 the
L.L.A. was very active in Lesotho, she easily opened
the door of her
house at night because she was expecting her husband and that that
person said he was coming from the mines. She
knew the voice of her
husband very well. She denied that the person she saw was not accused
1 . It was not true that she conspired
with some other people to
implicate the accused falsely When it was put to her that at the
preparatory examination she never said
that when 'Matlohang Makhetha
failed to give an advice she reported to Kenene and that she was
mentioning the name of Kenene for
the first time, she said she did
mention it at the preparatory examination. I think this cannot be
true because at the preparatory
examination she is recorded as having
said

"P W 5 called me on the evening, that he (sic) did not get an
advice from Jafeta 'Makhetha but I should wait for the police.
I
waited for police till when I was read a letter at the place of P.W 1
that I was wanted at police station Morija. I went to Morija
Police "

She
denied that she saw accused 1 at any time before she entered into the
hall in which the identification parade had formed. She,
however,
admitted that at one time before she went to the hall she had been
standing near the gate

At the
close of the Crown case the defence applied for the dis­charge of
the accused on the following grounds

1. Even
   if the evidence of 'Mataung is believed that the accused came to her
   house that night, there is still no connection between
   their
   presence and the death of the deceased, for the simple reason that
   the bullet found in the body of the deceased has not
   been connected
   with the rifle before court,

   
   

2. That
   'Mataung is an unrealiable witness because she did not do anything
   for 3 days after the murder

   
   

8

3. That
   there was no proof that the identification parade in respect of
   accused 1 was conducted properly because the policeman who
   conducted
   it is dead,

   
   

4. That
   there was no proof of common purpose.

   
   

At this
stage of the proceedings the well-known test is whether there is
evidence on which a reasonable man acting carefully might
convict,
not should convict (R. v Herholdt and others, 1956 (2) S A 722, R v
Sikumba, 1 955 (3) S A 1 25, R V. Kritzinger and others,
1952 {2)
S.A. 401) In R v Dladla and others, 1961 (3) S.A 921 it was held that
in considering the application for the discharge
of the accused at
the close of the Crown case, the credi­bility of the witnesses
should not be taken into account. Applying
these principles to the
present case I came to the conclusion that the prosecution evidence
was not so patently unworthy of credit
that a reasonable man acting
carefully might not convict. I disallowed the application The defence
closed their case without calling
any witness

The
crucial point is whether failure by the accused to testify will in
any any make the prima facie evidence conclusive evidence
of their
guilt The law was stated in S v Theron, 1968 (4) S.A 61 at p 64 B
where Trollip and Trengove, J J said

"Similarly in (ii) the inference of the accused's guilt or
innocence can be drawn with the requisite degree of certainty,
the
accused's silence is unimportant. It is only of importance if,
although there is prima facie proof of guilt , some doubt exists

whether that proof should be now regarded as conclusive, that is,
that the only reasonable inference from the facts is one of guilt.

His silence then becomes a factor to be considered along with the
other factors, and from that totality the Court may draw the

inference of guilt The weight to be given to the factor in question
depends upon the circumstances of each case," (See S v

Masia,1962 (2) S.A 541 at p. 546)

It is
common cause that the evidence implicating the accused in the present
case is circumstantial 'Mataung Molikeng did not see
the

8

accused
fire the shots that killed the deceased, nor did the accused tell her
that they were going to kill the deceased. All what
they said or
asked was the reaction of the deceased when his horse neighs and when
his dogs bark at night, whether he comes out
of his house. After they
had left she heard gun reports and on the following morning the
deceased was found dead in his house from
gunshot wounds The Crown
has argued that the only reasonable inference from these facts is
that the accused murdered the deceased.
The first task that I wish to
do is to analyse the evidence of 'Mataung Molikeng and find out
whether she is a credible and reliable
witness. She told the Court
that she knew the voice of her husband very well and yet on this
occasion she opened the door for a
stranger without making sure that
the person who was knocking at the door was her husband It was agreed
by the Crown and the defence
that in 1983 the L L A was very active
in Lesotho and the people in Lesotho were on their guard every night.
It is therefore unlikely
that the witness could have opened the door
without making sure who was there

She
deposed that when she asked who was there, that person said that he
was coming from the mines It was revealed that her husband
usually
uses the passwords "open, I come from the mines " I find it
very strange that accused 1 knew the password It
has not been
explained how he could have known that her husband uses that password
Moreover, she knew her husgand's voice and must
have hoard that it
was not her husband's voice. It is entirely unbelievable that despite
the fact that she saw that the accused
were armed with guns, she
readily opened the door for them when they returned to her house

According
to the evidence of 'Mataung the accused planned to go and murder the
deceased, they decided to go to Tsilo's village at
midnight for the
simple reason that they did not want to be seen by any person in that
village that night It must also be remembered
that one of the accused
is a trained policeman who cannot behave in the stupid way

9

we are
expected to believe 'Mataung says that accused 1 said his name was
"Ramosamo" and that they did not disguise themselves
in any
way, for about one hour they spent in her house they did not cover
their faces with any­thing There was sufficient light
from the
lamp enabling her to see them well. It is just unbelievable that
people who were going to commit murder could behave in
such a stupid
way. It is not even clear what they were doing in her house for the
whole hour Why should accused 1 tell the witness
that his name is
"Ramosamo" and he actually turns out to be "Ramosamo"?
Is it not possible that whoever was
at the home of the witness (if
there was anybody at all) decided to implicate accused 1 by saying
his name was "Ramosamo"?
Is it not possible that the
witness is merely associating accused 1 with this crime simply
because the person who was at her house
said his name was "Ramosamo"7
I am posing all these questions for the simple reason that not even a
fool could have behaved
in the stupid way we are asked to believe the
accused did The evidence of this witness is not only unbelievable but
improbable.

It was
submitted by the defence counsel that this is a case of mistaken
identity In R. v Shekelelo, 1953 (1) S A 636 (T) at p. 638,
Dowling,
J said

Witnesses
should be asked by what features, marks or indications they identify
the person whom they claim to recognise Questions
relating to height,
build, complexion, what clothing he was wearing and so on should be
put. A bald statement that the accused
is the person who committed
the crime is not enough. Such a statement unexplained,untested and
uninvestigated, leaves the door
wide open for possibilities of
mistake."

Again in
R v. Turnbull (1976) 3 All E.R 549 at p. 552, Lord Widgery, C J. said

"Secondly, the judge should direct the jury to examine closely
the circumstances in which the identification by each witness
came to
be made How long did the witness have the accused under observation?
At what distance7 In what light7 Was the observa­tion
impeded in
any way, as for example by passing traffic or a press of people7 Had
the witness ever seen the accused before7 How often7
If only
occasionally, had he any special reason for remebering the accused7
How long elapsed between the original observation and
the subsequent
identification to the police7 Was there any material discrepancy
between the description of the accused given to
the police by the
witness when first seen by them and his actual appearance7 If in any
case, whether it is

10

being dealt with summarily or on indictment, the prosecution have
reason to believe that there is such a material discrepancy they

should supply the accused or his legal advisers with particulars of
the description the police were first given In all cases if
the
accused asks to be given particulars of such descriptions, the
prosecution should supply them Finally, he should remind the
jury of
any specific weaknesses which had appeared in the identification
evidence. Recognition may be more realiable than identification
of a
stranger, but, even when the witness is purporting to recognise
someone whom he knows, the jury should be reminded that mistakes
in
recognition of close relatives and friends are sometimes made."

The fatal
defect in the present case is that the policeman to whom 'Mataung
made the description of the people who were at her house
that night
has not told the court how the witness described the two men. This
piece of evidence was very important because the
person who was at
the witness's house said his name was "Ramosamo". It was
very important that before the police arrested
"Ramosamo"
(accused 1) should have demanded a thorough description from the
witness of how the man who claimed to be
"Ramosamo" looked
like. The possibility is that as soon as the witness said the man
said he was "Ramosamo",
the policeman did not bother to
have a description of the man because accused 1 is well known. It is
not even known how accused
2 was arrested, i e. there is no evidence
that as a result of an explanation from accused 1, accused 2 was
arrested

It was
also submitted on behalf of the accused 1 that the identi­fication
parade held on the 14th November, 1983 was conducted
in an unfair
manner in that the two witnesses were kept together just before they
entered into the hall where the parade had formed.
At one time the
two identifying witnesses were deliberately left near the gate where
the accused alleges that they saw him. The
witness denied that she
saw the accused but admitted that at one time she and Tseliso were
near the gate although Tseliso was some
distance from her. The Crown
was not in a position to rebut these suggestions because Sgt. Mochema
who conducted the identification
parade is late. The possibility that
the witnesses saw the accused 1 when he went to the hall has not been
completely ruled out.
Regarding the identification parade in respect
of accused 2 on the 17th November, 1983 the evidence of S/Sgt. Mo
thabeng has not
been

11

challenged.
But one of the identifying witnesses pointed out the wrong man
because he was looking for a bearded man, light in complexion
Accused
2 has no beard.

It was
argued on behalf of the Crown that the evidence of 'Mataung Molikeng
is corroborated by the fact that the bullets and shells
found at the
scene of the crime were consistent with her statement that the
accused were armed with a rifle and a pistol or revolver.
It is true
that the two shells and a spent bullet were those of a 7.65 pistol
and that the spent bullet found embedded in the cervical
spine was
that of a .303 rifle However, it must be borne in mind that this
witness was one of the people who were at the scene
of the crime
early that morning She saw all the exhibits found there. She made her
statement three days after she had seen all
these exhibits. Her delay
to report that the accused were at her house on the night the
deceased was killed was seriously criticised
by the defence as an
indication that she was unreliable. It was pointed out that at the
preparatory examination she never said
that after three days she
reported to one Kenene Makhetha who eventually made a report to the
police. She never mentioned the name
of Kenene Makhetha at all at the
preparatory examination. This criticism is not proof that the witness
is unreliable because at
the preparatory examination she was led by a
public prosecutor who may not have given her the chance to mention
that fact I have
seen numerous cases where the deposition of a
witness at the preparatory examination covers only half a page but at
the trial the
same witness's evidence may cover several pages In such
a case it cannot be said that the witness is telling a lie. The whole
question
is dependent upon the experience of the public prosecutor.
The delay to make a report earlier is also explainable, it may be she

was afraid that the accused would carry out their threat and kill
her.

For the
reasons I have attempted to give above I came to the conclusion that
the evidence of this single witness was neither

12

reliable
nor satisfactory in all material respects (R. v. Mokoena. 1932 O.P.D.
79). The accused are given the benefit of doubt.
They are found not
guilty and discharged.

My
assessors agree.

J.L.
KHEOLA

JUDGE

19th
September, 1985.

For Crown
Miss Moruthoane

For
Defence Mr Maope and Mr. Matlhare.