C. of A.
(CRI) NO. 14 of 1979

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

1. THAMSANQA ADAMS)

2. DLADLA NONQAUZA)

3. VUYO FETCHA ) Appellants

4. VUSUMZI BIKO )

v.

REX
Respondent

HELD AT
MASERU

CORAM:

MAISELS,
P.

TEBBUTT,
J.A.

VAN
WINSEN, J.A.

JUDGEMENT

Maisels,
P.

The four
appellants were charged in the High Court with the murder of one
Reggie Senkoto at or near Thibella in the district of
Maseru on the
night of the 1st September 1978. They all pleaded not guilty. After a
lengthy trial they were all found guilty of
being accessories after
the fact to the offence of culpable homicide and each of the
appellants was sentenced to 3 years imprisonment.

When
their appeal came before this Court, counsel for the Crown, Mr.
Kamalanathan, informed the Court, consistent with the attitude
he had
adopted in the Heads of Argument submitted by him, that he could not
support the conviction. The Court agreed that on the
evidence the
conviction of none of the appellants could be sustained. Consequently
the appeal of all four appellants was allowed
and their convictions
and sentences set aside, the Court intimating that its reasons for so
doing would be given later. These now
follow .

2

That the
deceased died as a result of a stab wound on the left side of the
chest is clear. That this wound was inflicted at a complex
in
Thibella described by the learned Judge is also clear, as is the fact
that the wound was unlawfully inflicted. The question
that had to be
decided by the Court was whether the Crown established beyond
reasonable doubt that the appellants, one or other
of them, inflicted
the wound or were accessories after the fact to the crime.

Although
it may be accepted that all four appellants were at the complex at
some time on the night in question, a reading of the
evidence does
not seem to me, as is submitted by Counsel for the Crown, to
establish conclusively the participation of any of the
appellants in
the attack on the deceased or even their presence at the time or
scene of the stabbing.

This view
is, I consider, supported by certain findings of the learned trial
Judge. He found correctly that there was no evidence
to support the
existence of conspiracy. The learned Judge however said this :

"What I find proved is that the deceased was killed by one of
the accused (it has not been proved who of them did it) or possibly

(if Makena is right that there may have been six persons) by someone
else but in their presence, and that they knew that same evening
who
the killer was. It was held in R. v. Gani 1957(2) S.A. 212 (A.D.) -
and see also R. V. Victor 1965(1) S.A. 249 - that although
it may not
be possible to bring in a verdict of guilty on the substantive
offence if the Court is unable to say which one of several
accused
was the killer, nevertheless it may be possible to convict the
accused of being accessories after the fact to the offence
if there
is evidence that they have associated themselves with it".

I should
say immediately that the facts in Gani and Victor differ toto caelo
from those in the present case.

The
language used by the learned trial Judge shows that he was not
satisfied beyond reasonable doubt that it was one of the accused
who
did the stabbing; Nor in my opinion does the evidence establish that
the

3

appellants
associated themselves with the crime so as to make them accessories
after the fact, Cf. Nteti Makamole and Two Others
(C. of A. (CRI) No.
1 - 2 of 1980)". Looking at the case as a whole, and
particularly having regard to the generally unsatisfactory
nature of
the evidence as to the identity of the appellants and their alleged
association with the crime I do not consider that
the learned trial
Judge was justified in convicting the appellants.

It was
for these reasons that I agreed with the attitude of Counsel for the
Crown and set aside the convictions and sentences.

Signed I.A. Maisels

I. A. MAISELS

President

I agree
Signed P.H. Tebbutt

P.H. TEBBUTT

Judge of Appeal

I agree
Signed L.De V. Van Winsen

L. DE V. VAN WINSEN

Judge of Appeal

Delivered
this 12th day of January 1981 at MASERU

For
Appellants : Mr. Mbuli

For
Respondent : Mr. Kamalanathan