CRI/A/13/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

ALBERT
NTESO Appellant

v

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Acting Mr. Justice J.L. Kheola on the 14th day of January,
1985.

After
hearing Mr. Tsotsi. for the appellant, and Mr. Seholoholo, for the
Crown, I allowed the appeal and intimated that reasons
for judgment
would follow later. These now follow.

The
appellant who was charged with and convicted of (a) robbery and (b)
attempted murder appeals to this Court against conviction
only. He
had been jointly charged with two other people who were found not
guilty and discharged. He was sentenced to four years'
imprison­ment
on each count and the sentences were to run concurrently.

There is
no doubt that on the afternoon of the 28th October 1981, K. Nolan's
shop at Corn Exchange was attacked by three robbers;
money totalling
R12,464-05, three blankets and three watches were seized by the
robbers. As they left the shop in their combi,
the robbers fired
indiscriminately with their pistols at the group of school children
who were standing near the road. One of the
children, 'Malefu Lena
(P.W.5) was hit on the right thigh by a bullet fired by one of the
robbers. There is no doubt that by shooting
indiscriminately and
recklessly at a group of school children, the robbers had the
intention to kill and thus committed the offence
of attempted murder.

2

The
appeal is based on the ground that the trial court erred in relying
on the unsatisfactory evidence of identification of a single
witness
(P.W.1) which shows that :

1. the
   appellant was a complete stranger to him,

   
   

2. at
   the relevant time P.W.1's attention was concentrated on "the
   man in grey suit" who was not the appellant,

   
   

3. the
   shop in which they were was closed and a bit dark as windows were
   not big enough to allow more light into the shop,

   
   

4. P.W.1
   feared for his life,

   
   

5. he
   was ordered to lie down with his face on the floor.

   
   

I shall
now give a short summary of the evidence of Motsarapane Moroa (P.W.1)
who is the manager of the shop. On the afternoon in
question, he was
returning to the shop after lunch when he noticed that a man in a
grey suit was following him. When he entered
into the shop, a combi
arrived at the shop and two men alighted from it. The three men
followed him into the shop. As soon as they
entered into the shop the
two men from the combi closed the door and ordered all the people in
the shop to lie down with their
faces on the floor. The man in the
grey suit then pointed a gun at P.W.1 and ordered him to go behind
the counter and to hide his
face. He complied. The man pulled the
safe keys from P.W.1's pockets and opened the safe. He took all the
money in the safe and
gave it to one of the men who were still
standing at the door. He (P.W.1) heard that the man in the grey suit
was collecting money
from the tills and instructing the two men to
take as many blankets as they could. He again heard that they were
open­ing the
cabinet in which watches were kept. He came out of
the hiding place only when he heard them slam the door. He ordered
all the customers
to get out of the shop. P.W.1 said that although he
was frightened when the man pointed a gun at him, he saw him well and
could
identify him,

3

He went
on to say that the light in the shop was not very good because the
windows were small. He admitted that the appellant was
not the man
who was in grey suit but he was one of the men who were at the door
most of the time.

At the
identification parade held at Teba on the 28th October, 1981, P.W.1
identified the appellant as one of the robbers who were
standing at
the door during the robbery. In cases of this nature, it has often
been stressed that the patent honesty, sincerity
and conviction of
the identifying witness that the accused is the person he saw commit
the offence should not be taken as conclusive,
in addition to that
the Court must find out whether or not the evidence is reliable in
the sense that the witness had a proper
opportunity in the
circumstances of the case to carry out such observation as would be
reasonably required to ensure a correct
identification (R.v. Mokoena,
1958(2) S.A. 212). The factors that have to be taken into account
were given by Williamson, J.A.
in S. v. Mahlape, 1963(2) S.A. 29 at
p. 32 where he said :

"The nature of the opportunity of observation which may be
required to confer on an identification in any particular case
the
stamp of reliability, depends upon a great variety of factors or
combination of factors, for instance the period of observation,
or
the proximity of the persons, or the visibility, or the state of the
light, or the angle of the obervation, or prior opportunity
or
opportunities of observation or the presence of noticeable physical
or facial feature, marks or perculiarities, or the clothing
or other
articles such as glasses, crutches or bags, etc., connected with the
person observed, and so on, may have to be investigated
in order to
satisfy the court in any particular case that an identification is
reliable and trust­worthy as distinct from being
merely bona fide
and honest."

In the
present case P.W.1 has not only admitted that the light in the shop
was poor but also that the appellant was standing some
distance from
him and that during the robbery his attention was concentrated on the
man in grey suit who was not the appellant.
He was in fear of his
life

4

and was
hiding himself behind a counter. As a conclusive proof that P.W.1 did
not have a proper opportunity of observing the robbers,
he said while
he was hiding behind the counter, he heard (not saw) when they opened
the cabinet in which the watches wore kept
and when they took money
from the tills. He also heard when they slammed the door. There is no
doubt that the trial court found
P.W.1 to be very honest and
trustworthy. But the inquiry should have been whether the witness had
a proper opportunity to observe
the robbers at the door. No such
investigation was made.

For the
reasons stated above, I allowed the appeal.

J.L.
KHEOLA.

ACTING
JUDGE.

14th
January, 1985.

For
Appellant : Mr. Tsotsi

For
Respondent : Mr. Seholoholo.