C. of A.
(CRI) 8-11 of 1980

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

1. LEKENA
MOSHEPHI )

2. SEFALI
LEFATLE ) Appellants

3.
SHOAEPANE RANKU )

4.
KHOANYANE LEKHAFOLA )

v.

REX
Respondent

HELD AT
MASERU

Coram:

MAISELS,
P.

VAN
WINSEN, J.A.

MARAIS,
A.J.A.

JUDGMENT

Marais,
A.J.A.

The four
appellants were convicted by the Chief Justice and two assessors of
murdering one, Ralekhooa Ntsoane during about the month
of February
1979 at or near Qanya in the district of Qacha's Nek. Second
appellant was sentenced to be detained during His Majesty's
pleasure
in terms of the second proviso to section 291 of the Criminal
Procedure and Evidence Proclamation No. 59 of 1938. The
other three
appellants were sentenced to death. All the appellants appeal against
their convictions, and the three appellants who
were sentenced to
death also appeal against their sentences.

An
unusual feature of the case is that the defence contests, inter alia,
the Crown's allegation that Ralekhooa Ntsoane is indeed
dead. I shall
commence by sketching the facts which were either common cause, or
not disputed. Ntsoane lived at Mpharane in the
district of Matatiele
in South Africa. He bade his wife farewell on the 4th January 1979,
saying that he was going to search for
his missing horse and foal, He
borrowed a horse and set out on horseback for Lesotho. He was

2

never
seen again by his wife. He had said that he would also visit his
wife's sister to pay dowry. She was a day's ride away. To
that end,
he took with him R300.00. He failed to arrive.

When he
left, he was wearing, inter alia, a green and orange Lesolanka
blanket, a pink blanket, black trousers and gum-boots. His
horse was
saddled, and he took with him a purse containing money, and a plastic
receptacle containing beer. After approximately
a month had passed,
and he had not returned, his wife reported his failure to return to
the police at Matatiele. Some time thereafter,
she was asked to call
at the police station at Qacha's Nek in Lesotho. There, on the 18th
April, 1979, she purported to identify
as her missing husband's
property, a pair of black trousers, a green and orange Lesolanka
blanket, a pair of gum-boots, a saddle,
saddle bags, a bridle, a
black purse and a plastic receptacle. How the police came into
possession of these articles: will emerge
in due course.

Mrs.
Ntsoane described her husband as being of medium build and height,
and sixty years' of age. He had a full beard and four of
his front
teeth were missing.

On the
8th April 1980 the skeleton of a human male was found on top of
Khamokha mountain, in Lesotho. The hands of the skeleton
were bound
with a grass rope and the skull lay four or five feet away from the
rest of the body. It was impossible to determine
the time or cause of
death by scientific examination. A number of teeth were missing. They
included four front teeth which the
scientific evidence established
were missing prior to death. The Crown contended that these skeletal
remains were those of Ralekhooa
Ntsoane.

The case
for the Crown rested partly upon circumstantial evidence, partly upon
direct evidence of the participation of the four
appellants in a
murderous assault upon a person alleged to be Ralekhooa Ntsoane, and
partly upon incriminating admissions and conduct.
The appellants'
defence consisted of a total denial of any knowledge of Ralekhooa
Ntsoane, or of his death, and of any complicity
whatsoever in the
alleged killing.

On
appeal, counsel for the appellants attacked the convictions upon four
broad grounds. Firstly, as I have said, he contended that
the Crown
had failed to prove that the skeletal remains were indeed those of
Ralekhooa Ntsoane. Secondly, he submitted that the
evidence of the
only witness

3

who
claimed to have seen the appellants attack and kill a person in the
vicinity of the spot where the skeletal remains were found,
was
untrustworthy and should not have been accepted by the Court a quo.
Thirdly, he argued that certain articles which the Court
below found
belonged to the deceased, and which were found in the possession of
the appellants, had not been proved beyond reasonable
doubt to have
belonged to the deceased. Fourthly, he contended that the Crown had
failed to prove the incriminating admissions
and conduct attributed
to the appellants by certain of the Crown witnesses.

The
appeal thus raises only questions of fact. Before I review the
evidence in broad, some preliminary observations are desirable.

The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was

established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it, But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual parts of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again, together with all
the other available
evidence. That is not to say that a broad and indulgent approach is
appropriate when evaluating evidence. Far
from it. There is no
substitute for a detailed and critical examination of each and every
component in a body of evidence. But,
once that has been done, it is
necessary to step back a pace and consider the mosaic as a whole. If
that is not done, one may fail
to see the wood for the trees. I shall
not summarise all of the evidence. But some of it is so critical to
the case of the Crown
and the appellants that a synopsis is
necessary, for a proper appreciation of the contentions which were
advanced. I turn now to
the evidence.

THE
DIRECT EVIDENCE

Sakoentsane
Mokhahle (PW6) was called by the Crown. His evidence, if true, was of
crucial significance. He did not know his own
age. The Court a quo
estimated him to be about 16 years of age. It was common cause that
he knew all of the appellants. Indeed,
in January 1979 he was in
first appellant's

4

employ as
a herdsman, and lived with him. Second appellant also lived there.
Third appellant's home was near his own, and fourth
appellant came
from a nearby village.

Late one
afternoon, while the witness was rounding up the cattle to bring them
to the cattle post, a stranger on horseback drew
nigh. The stranger
said that he was searching for his horses, that he had met first
appellant at the cattle post, and that first
appellant had invited
him to spend the night at his cattle post. They returned to the
cattle post together. There they found first
and second appellants
and one, Thakaso. At first appellant's request, the witness unsaddled
the stranger's horse and hobbled it.
The stranger produced a plastic
container in which there was beer, and some apples. At the stranger's
invitation, they all partook
of the beer and the apples. The stranger
retired to sleep and so did Thakaso and the witness. First and second
appellants did not
retire and continued talking to one another.

During
the night, the witness was wakened by the screaming of the stranger.
Thakaso remained sleeping. First and second appellants
left the hut
and the stranger immediately followed suit. Second appellant had an
axe in his possession. The witness went to the
door and saw first
appellant exhorting three dogs to attack the stranger. They brought
him to the ground and first appellant then
called them off. The
stranger got up and joined the witness near the kraal. The witness
could not say what became of first and
second appellants. The
stranger stayed with him for a short while and then disappeared. The
witness did not return to the hut at
the cattle post. Instead, he
slept in the veld.

The
following morning, the witness saw first and second appellant at the
cattle post. The hut was visible from the place in the
veld where he
had spent the night. They were saddling the stranger's horse. The sun
had already risen. The stranger mounted his
horse. First and second
appellants did likewise and the three of them moved off along the
pass leading to Khamokha. They disappeared
from view when they
entered a valley. When they came into view again they had been joined
by two other persons who were also on
horseback. The witness saw the
stranger being struck while he was on his horse. A prolonged assault
upon him ensued. The other
four persons all participated in the
assault. They dismounted for the purpose. The witness could not
discern the faces of the stranger's

5

assailants.
The assault occurred several hundred yards away. But he said that two
of the assailants were wearing blankets similar
in colour to those
which first and second appellants were wearing when they set out with
the stranger. First appellant had been
wearing a red blanket and
second appellant a "Sandringham" blanket. He said that the
other two assailants were wearing
respectively, a black "Lesolanka"
blanket and a donkey coloured blanket. The stranger was struck with
shiny objects which
he could not identify.

The
assault came to an end and the stranger was carried away by his
assailants to another place where there was a crevice between
some
rocks. There they placed stones upon him and left him. The four
persons who had participated in the attack upon the stranger
then
went to the cattle post. They brought the stranger's horse with them.
The witness remained in the veld and saw that the four
persons were
the four appellants. Later, first, third and fourth appellants left
the cattle post. Second appellant remained behind.

The
witness then returned to the cattle post. It was by now afternoon. He
saw at this cattle post certain articles which he had
seen before in
the stranger's possession, namely, a pair of gum-boots, a pair of
black trousers and saddle bags. He said that he
asked second
appellant where the stranger was and drew attention to the fact that
these articles belonged to the stranger. Second
appellant's reply was
that they had killed him.

At this
stage I should mention that the witness also testified that, when the
stranger arrived, he had in his possession certain
of the exhibits
which were before the Court a quo, namely, the black trousers
(Exhibit 1), a purse (Exhibit 2), a plastic container
(Exhibit 3), a
blanket (Exhibit 4), a saddle (Exhibit 5a),a bridle (Exhibit 5b), a
saddle bag (Exhibit 6) and a pair of gum-boots
(Exhibit 7).

The
witness said that he was shocked by what he had seen. He did not
remain at the cattle post. Instead, he returned to first appellant's

home. There he found first appellant's mother. He told her that first
appellant had killed a person. When first appellant returned
home the
following day, his mother confronted him with this allegation,, First
appellant denied it. This episode engendered animosity
towards him on
the part of first appellant and the witness

6

decided
to leave and to return to his own home.

That, in
broad, was the evidence of the only alleged eye-witness.

THE
CIRCUMSTANTIAL EVIDENCE

That
after the discovery of the skeletal remains, the appellants were in
possession of certain of the articles which the Crown sought
to
establish belonged to the deceased, Ralekhooa Ntsoane, was not
disputed. Thus, first appellant claimed that the saddle (Exhibit
5a)
was his. Second appellant claimed ownership of the black trousers
(Exhibit 1), the purse(Exhibit 2), the plastic container
(Exhibit 3),
and the gum-boots (Exhibit 7). Third appellant claimed that the
blanket (Exhibit 4) was his. Fourth appellant said
that he was the
owner of the bridle (Exhibit 5b). Indeed, in some instances, the
appellants provided reciprocal evidential support
for their
respective claims. Second appellant confirmed that the saddle
(Exhibit 5a) and the plastic container (Exhibit 3), were
first
appellant's property. And that the blanket (Exhibit 4) was third
appellant's property. First appellant confirmed that he
had given the
black trousers (Exhibit 1) and the gum-boots(Exhibit 7) to second
appellant. He also confirmed that the purse (Exhibit
2) belonged to
fourth appellant.

THE
INCRIMINATING ADMISSIONS AND CONDUCT

Apart
from the incriminating admissions to which Mokhahle (PW6) testified,
the Crown led evidence of the following incriminating
admissions or
conduct by the appellants.

First
Appellant Trooper Khasoane (PW3) and a tribal messenger, Jobo(PW 10)
testified that first appellant had led them to the place
where the
skeletal remains were found. This was flatly denied by first
appellant. Khasoane also claimed that both first appellant
and fourth
appellant had said that the bridle (Exhibit 5b) and the saddle cloth
(Exhibit 8) which were handed over by fourth appellant
at his house,
belong to the person whose skeletal remains had been found. First and
fourth appellants denied that they had said
so. Khasoane said further
that first appellant had pointed out fourth appellant who had been
working in the fields outside the
village in which he lived, and had
also taken them to third appellant's village and pointed third
appellant out to them. He added
that third appellant was wearing the
blanket which is Exhibit 4. The purpose of his

7

visit was
explained and third appellant said that the blanket had belonged to
the person whose skeletal remains had been found.
He also testified
that first and second appellants had led him to a cattle post.
There,second appellant gave him the plastic container
(Exhibit 3) and
the purse (Exhibit 2).

First
appellant denied that he went to the home of third appellant in the
company of the police. He also denied that he was present
when second
appellant gave the police the plastic container and the purse. He
admitted that he went with Khasoane to the home of
fourth appellant,
but said that this was because the police had wanted to see a saddle
of his which he had told them was with fourth
appellant. He did not
know, so he said, that the police were looking for the saddle which
allegedly belonged to the deceased. He
did not answer Khasoane's
allegation that he had pointed third appellant out to the police.

Second
Appellant

It will
be recalled that Khasoane said that first and second appellant led
him to a cattle post and that the second appellant handed
over the
plastic container and purse. Second appellant neither specifically
admitted nor denied that he led the police to the cattle
post or that
he gave the plastic container to the police. But he denied that
Khasoane was one of those policemen. And he said that
the police
seized the purse which had been hanging round his neck. He denied
that these two items belonged to the deceased and
said that they
belonged to him.

The
evidence of Sefali (PW 8) is also of some relevance He is related to
first, second and fourth appellants. He also knows third
appellant,,
He lives at the home of first appellant. In March 1979 second
appellant gave him the black trousers (Exhibit 1) before
the Court,
saying that they were too large for him. This evidence was not
disputed.

Third
Appellant

Khasoane
said that third appellant had admitted to him that the blanket
(Exhibit 4) in his possession belonged to the deceased.
Third
appellant denied the allegation. Another witness for the prosecution,
Masupha (PW7), said that third appellant asked him
to hand over to
the police the saddle bags which were Exhibit 6, saying that they
belonged "to us". Apart

8

from the
police, those present with third appellant when he said this, were
first and fourth appellants. Masupha testified that
during January,
1979, he had found these saddle bags lying on the ground at Khamokha.
They were brown in colour and old. The cattle
post nearest to the
place where he found the saddle bags was that which belonged to the
father of first appellant and which first
appellant used. He took
these saddle bags home. About three weeks later, he went back to
Khamokha. He encountered one, Mpusana,
who drew his attention to some
vultures on the side of the mountain, and said that he had seen a
human corpse in that vicinity.
Suspecting that the saddle bags might
have belonged to the person whose corpse Mpusana had seen, and
encouraged to do so by Mpusana,
he tore up the saddle bags and buried
the pieces. He had not told any of the appellants specifically that
he had the saddle bags,
but he had told people generally. He did not
know how third appellant knew that he had found the saddle bags. As a
consequence
of the request to produce them 'made by third appellant,
he dug up the pieces of the saddle bags and handed them to the
police.

Third
appellant's response to these allegations by Masupha was that he did
indeed ask Masupha to produce the saddle bags which he
had found. But
he said that contrary to what this would convey ordinarily, he did
not know that Masupha had found any saddle bags,
and that he, third
appellant, had been instructed by the police, who beat him, to
accompany them to Masupha and make this request.

Fourth
Appellant

Khasoane
testified that he, trooper Jonase and Jobo were taken by first
appellant to fourth appellant's village. First appellant
identified
fourth appellant for the police. Fourth appellant was found working
in the fields outside the village. Fourth appellant
was told by the
police that they were investigating the question of the skeleton they
had found at Khamokha. They went with fourth
appellant to his home.
There, fourt appellant handed over a bridle (Exhibit 5b) and a saddle
cloth (Exhibit 8) which he said belonged
to the person whom they had
killed. For reasons which will emerge, it is of importance to note at
this stage that Khasoane did
not claim that a saddle was produced on
this occasion, and that fourth appellant and first appellant
acknowledged it to be the
property of the person who had been killed.

9

Fourth
appellant did not deny that the bridle (Exhibit 5b) and the saddle
cloth (Exhibit 8) were in his possession. In fact, he
said that they
belonged to him. But he did deny that he told the police that these
articles belonged to the person who had been
killed. And he said that
he was assaulted by the police before he produced the bridle.

THE
DEFENCE EVIDENCE

First
Appellant

He
testified that he did not know Ralekhooa Ntsoane. He knew nothing
about the skeletal remains which were found and did not lead
the
police to them. Second appellant is his cousin and herdsman, and
third and fourth appellants are known to him. The saddle (Exhibit
5a)
and the plastic receptacle (Exhibit 3) belong to him. The gum-boots
(Exhibit 7) and the black trousers (Exhibit 1) were bought
by him as
a present for second appellant when second appellant returned from
his initiation rites.

He bought
the saddle at Qacha's Nek in 1976 for £45. He said that the
bridle before the Court (Exhibit 5b) belonged to fourth
appellant,
and that the purse (Exhibit 2) belonged to second appellant. He had
been present when one, Salemone, gave the purse
to second appellant.

The
trousers were purchased for £9.10 in 1977. They were new at the
time. They were too large for second appellant. He did
not enquire
what his correct size was before buying the trousers because second
appellant was away being initiated and he did not
tell second
appellant he intended buying him a pair of trousers.

He denied
that Mokhahle(PW6) had been employed by him as a herdsman. In March
1979, Mokhahle came to him seeking employment. First
appellant went
to see Mokhahle's father and was told that Mokhahle had left home
because he had stolen bells belonging to others.
As a consequence,
first appellant did not employ him. He said that Mokhahle had never
been to the cattle post at Khamokha. Indeed,
he denied that either
he, or his parents, had a cattle post at Khamokha. His cattle post,
so he said, was at Sekoting. And Mokhahle
had never been there.

Each and
every facet of the evidence given against him by Mokhahle was denied,
including Mokhahle's evidence that first appellant's
mother had
confronted him with the killing of the stranger. First appellant
could suggest no reason why

10

Mokhahle
should implicate him falsely in so heinous a crime. They had never
quarreled with one another.

As for
Jobo, first appellant suggested that he had a motive for implicating
him falsely because Jobo suspected him of stealing his
horses. He
said that Khasoane had assaulted him to induce him to produce Jobo's
horses and that he had lost an eye in consequence.

He denied
that he was present when second appellant handed over to the police
the plastic receptacle (Exhibit 3) and the purse (Exhibit
2). He
acknowledged that he knew Thakaso, the young herdboy who Mokhahle had
testified was present at the cattle post when the
stranger arrived
there, Thakaso is the son of first appellant's paternal uncle. First
appellant denied that Thakaso had stayed
at the cattle post.

Second
Appellant

He denied
all knowledge of the stranger. He is a cousin of first appellant and
lives at his home. He said that the gum-boots (Exhibit
7) were his
(second appellant's). The police took them from him, saying that they
were too large for him and that they belonged
to the deceased. They
also took the trousers (Exhibit 1) from Rannemase Sefali (PW8), to
whom he had given them because they were
too large for him. He was
beaten by the police before he handed over the gum-boots. The
trousers had also been used for a time
by one, Salemone. At some
stage one of the seams had split and required mending. Salemone
re-stitched the split seam.

He knows
Mokhahle. He saw him at first appellant's home when he was seeking
employment and first appellant sent him away. Second
appellant said
that in January 1979 he was staying at the cattle post of first
appellant's mother. So were Sefali (PW8) and Salemone.
First
appellant was not; he was at his home but used to call at the cattle
post to count stock, and then return home. He denied
that Mokhahle
had been at the cattle post. Indeed, he denied all Mokhahle's
allegations concerning the stranger, the attack upon
him, and his
alleged participation in it. When asked how Mokhahle could have known
that he, second appellant, was living at the
cattle post in January
1979, he said that they used to meet at Khamokha when they were
herding cattle. But the cattle post, so
he said, was far from
Khamokha. In the end, he said he did

11

not know
how Mokhahle knew he was living at the cattle post in January 1979.

He
conceded that the police had taken the purse (Exhibit 2) from him.
But he said it belonged to him. He had made the pursestring
himself.
The plastic receptacle(Exhibit 3) was found at the cattle post. He
used to draw water with it at the cattle post and it
is his. He
denied that it belonged to first appellant.

He knew
nothing about the bridle (Exhibit 5b). The blanket (Exhibit 4), so he
said, belonged to third appellant, who had owned it
for a long time.
The saddle (Exhibit 5a) belonged to first appellant.

When
asked whether there was any enmity between himself and Mokhahle, he
said that Mokhahle "looked down upon him" because
he,
second appellant, had undergone initiation rites before him, and. he,
second appellant, used to beat Mokhahle. He denied that
he had been
anywhere with Jobo and Trooper Jonase.

Third
Appellant

He
recently came to know first appellant. He knows first appellant's
cattle post at Sekoting and has been there. He was not at the
cattle
post in January 1979. He said that the blanket (Exhibit 4) is his. He
bought it at Lesoli's shop for R19-65. He produced
some documentation
to support this claim. But it was not possible to correlate the
particular blanket with any of those to which
the documentation
related.

Khasoane
and Jobo arrested him and took him to Masupha's (PW7) home. Before
doing so, they assaulted him and told him to tell Masupha
to hand
over the saddle bags he picked up at Matatiele. He carried out their
instructions and Masupha produced the saddle bags
(or what was left
of them). He assumed that the police must have known where the saddle
bags were before they came to his (third
appellant's) home. He denied
that he had led them to the home of Masupha.

He knows
Mokhahle (PW6) and Mokhahle knows him.

Mokhahle's
evidence was false. Mokhahle had a reason for falsely implicating
him. In 1977 third appellant caught him stealing his
sheep. He
arrested him. His parents pleaded for forgive-ness and third
appellant's father released him. Again, in 1980, Mokhahle
stole a
sheep from the cattle post. He ran away and

12

third
appellant was unable to arrest him.

He knew
nothing about Mokhahle having worked as a herdsman for first
appellant. He had never told Mokhahle that he had been to first

appellant's cattle post.

Fourth
Appellant

First
appellant is his uncle. He knows his parents1 cattle post. He has
been there once, in December 1979. The bridle (Exhibit 5b)
and the
saddle (Exhibit 5a) were found in his possession by the police. The
saddle belongs to first appellant who lent it to him
in exchange for
a smaller saddle. The bridle is his (fourth appellant's). He acquired
it in 1974 when he was at the mines. It was
cut by a horse on some
occasion and he mended it. There is also a missing stud. The saddle
cloth (Exhibit 8) is also his.

He denied
that he told Khasoane that the articles found in his possession
belonged to the person who had been killed. He told him
that the
saddle was first appellant's and that the bridle and saddle cloth
were his own.

As to
Mokhahle's evidence, he denied it in its entirety. There had been
clashes in the past between him and Mokhahle because of
the latter's
propensity to steal stock bells.

Jobo and
Khasoane assaulted him to induce him to produce the bridle and the
saddle and also to reveal where certain horses which
belonged to Jobo
were. He knew nothing about the horses.

When his
attention was drawn to the evidence of one, Chabana (PW9), who had
identified the bridle as one which had belonged to Ralekhooa
Ntsoane,
and said that he had renewed the reins using dissimilar pieces of
leather on each side, fourth appellant said that he
had replaced the
reins when the original ones broke. He said that he had forgotten to
mention this earlier.

The Court
a quo had no doubt that the skeletal remains were proved to have been
those of Ralekhooa Ntsoane. It regarded the evidence
of the alleged
eye-witness, Mokhahle, as overwhelming and as given "with
confidence and conviction". It was satisfied
that the various
articles which were either found in the possession of the appellants,
or claimed by them

13

to be
their own property, were satisfactorily identified by the Crown
witnesses as having belonged to the deceased. It accepted
the
evidence of Khasoane and Jobo that the police did not know precisely
where the remains of the deceased lay until first appellant
led them
to the spot. The trial Court was sceptical about Khasoane's claim
that third and fourth appellants had described certain
of the
articles which were taken by the police from them, as having belonged
to the person who had been killed. It therefore ignored
this aspect
of his evidence in considering whether the guilt of the appellants
had been established. It considered the evidence
of the appellants to
be unimpressive and concluded that the guilt of all the appellants
had been proved beyond reasonable doubt.

Mr. Mall
submitted that the approach of the trial Court towards the evaluation
of the evidence was fundamentally unsound He contended
that the
reasons given by the trial Court for convicting the appellants showed
that the Court had considered the evidence tendered
by the Crown in
isolation and found it to be acceptable and, having done so, simply
rejected the appellants' evidence because it
conflicted with the
Crown evidence. Reliance was placed upon the learned trial Judge's
concluding sentences, namely,

"In the face of the formidable evidence adduced by the Crown
they really have no defence and the one they advanced is so fanciful

that I am convinced beyond any shadow of doubt that they are guilty
of murder and I convict them accordingly. My assessors agree.".

In my
view, this does not show that the trial Court failed to consider the
appellants' evidence when evaluating the evidence led
by the Crown.
In his judgment, the learned trial Judge summarised the material
aspects of the evidence led by the Crown and then
did likewise in
respect of the evidence given by the appellants. He then gave his
evaluation of all the evidence. I can see no
justification for the
suggestion that the trial Court made so fundamental an error as
failing to consider the evidence for the
defence before reaching any
conclusions about the evidence for the Crown.

Mr. Mall
also pointed to some errors of recollection of the evidence by the
Court a quo. For example, the learned trial Judge said
in his
judgment that the stranger had told Mokhahle that he had been struck
on the head whilst asleep and showed him a wound. In
fact, there was
no such evidence. But nothing

14

turns on
this. It was a mistake of little consequence and Mr. Mall conceded
that it could not possibly vitiate the trial Court's
entire
evaluation of the evidence led at the trial.

Mr Mall's
criticism of the trial Court's approach to the evidence of Khasoane
has more merit. But even here, I am not satisfied
that he has shown
that the trial Court did in fact err in its assessment of Khasoane's
evidence. A major strut in Mr. Mall's argument
upon this question
rests, in my view, upon a misunderstanding of the recorded evidence.
Considerable reliance was placed upon the
gross improbability,
indeed, the impossibility, of first and four appellant ever having
said to Khasoane that the saddle which
was found at fourth appellants
home belonged to the person who had been killed. The reason why this
was said to have been inconceivable,
was because it appeared from the
evidence that this particular saddle was never identified as the
deceased's saddle and that the
police returned it to fourth appellant
after the saddle which is Exhibit 5a had been found.

The flaw
in the argument is that there is no evidence that Khasoane ever
claimed that the saddle (as opposed to the bridle and a
saddle cloth)
which was taken from the home of fourth appellant was said by first
and fourth appellants to be the property of the
deceased. This
particular attack upon the evidence of Khasoane and the trial Court's
alleged failure to appreciate the significance
of that aspect of his
evidence is thus without substance. But that does not mean that
Khasoane's evidence is beyond reproach. There
are aspects of it that
are disturbing. For example, the evidence which he gave at the trial
about first, third and fourth appellants'
alleged acknowledgement
that some of the articles in their possession belonged to the
deceased was not recorded as having been
given at the preparatory
examination. He asserted that he had given such evidence. It was
important evidence and I think it more
likely than not, that it would
have been recorded if it had been given. Moreover, Jobo said nothing
about this having occurred
yet he was present when the admissions are
said to have been made.

These
considerations must raise serious doubt about the reliability of
Khasoane's evidence. But the trial Court did not adopt a
wholly
uncritical approach to his evidence. As I have said, it was sceptical
of his claim that these

15

particular
admissions had been made and rightly disregarded them. In other
respects it accepted his evidence, more especially, his
evidence that
first appellant had led the police to the place where the. skeletal
remains lay. There was substantial corroboration
of that aspect of
his evidence because Jobo said that he accompanied him when first
appellant led them to the remains. And Jobo's
evidence does not
suffer from the disquieting features which afflict Khasoane's.

I am
unpersuaded therefore that the trial Court mis­directed itself in
any way which would have an all-pervasive effect upon
its evaluation
of the evidence of the witness Khasoane, or, indeed, any of the
evidence at the trial. It was plainly conscious
of the risk of
accepting Khasoane's ipse dixit on any particular point and, in fact,
disregarded his evidence in an important respect.

Insofar
therefore as the fate of this appeal rests upon alleged misdirections
in the evaluation of the evidence given at the trial,
I consider that
no case of misdirection has been made out. It remains to consider the
larger question which the appeal raises,
namely, whether the evidence
justified the verdicts,

Mr. Mall,
in a careful argument launched a full scale attack upon the evidence
of the alleged eye-witness, Mokhahle, He was impelled
to concede that
there could be no room for any honest mistake on the part of this
witness. His evidence was either substantially
true, or a wicked and
total fabrication from beginning to end. The manner in which Mr. Mall
sought to cast doubt upon the veracity
of this witness was by
focussing attention upon aspects of his evidence which he contended
were inherently improbable. He did not
refer us to any evidence which
showed inconsistency on the part of this witness nor did he refer to
any evidence given by him which
was in conflict with the other Crown
evidence. His demeanour obviously impressed the trial Court. I mean
no disrespect to Mr. Mall's
submissions when I say that I do not
intend to detail the various respects in which the evidence of this
witness was said to be
improbable. They are all matters of degree and
I have weighed the submissions carefully. Suffice it to say that
singly, and cumulatively,
their impact upon me is not such that I am
left in doubt about the veracity of the witness.

In
reaching this conclusion, I have kept in mind that the witness is a
mere youth and that his evidence stands alone in the sense
that no
one else testified to the attack upon

16

the
stranger. But substantial objective corroboration for his evidence
exists, in my view, in the other evidence which was before
the Court.
It also derives additional support from certain other considerations
to which I shall advert presently.

I have
not overlooked the suggestions made by second, third and fourth
appellants that this witness had reason to entertain some
animus
against them. These suggestions do not impress me. They were never
put to the witness in cross-examination. They do not
provide any
explanation for his implication of first appellant and, even if they
were true, they are hardly reasons which would
be likely to induce
the witness to lay a murder at the door of the four appellants. There
is no suggestion that the witness volunteered
information to the
police. On the contrary, the evidence was that the police had sought
out the witness.

The next
broad issue to which I turn is the alleged possession by the
appellants of various articles said to have belonged to the
deceased.
Mr. Mall sought to persuade us that in each and every instance the
evidence of identification was inconclusive. Now there
can be no
doubt that certain of the articles are articles of a kind and
appearance which are far from unique, for example, the
plastic,
receptable (Exhibit .3) the saddle bags(Exhibit 6), the gumboots
(Exhibit 7) the blanket (Exhibit 4), the saddle (Exhibit
5a)/and the
saddle cloth (Exhibit 8). But there were others which were
considerably more distinctive. There were the black trousers
(Exhibit
1). The wife of the deceased pointed out to the court the particular
repair which she had herself made to this pair of
trousers. This is
not the kind of thing she is likely to be mistaken about. What is
more, the defence version provided no explanation
for the existence
of this particular repair. The defence version was that the trousers
were new when purchased. In the course of
time, a seam had split and
had been re-stitched. It was clear that this was not the repair to
which the wife of the deceased drew
attention. Then there is the
admitted fact that the trousers were too large for the second
appellant for whom they were allegedly
bought by first appellant. Wo
doubt it is possible for someone to mistake the size of another, but
once the mistake was appreciated,
one would have expected it to be
remedied, rather than that the new trousers would simply be given
away. In my view the cumulative
impact of all these considerations
makes it entirely safe to conclude that the trousers were correctly
identified as having belonged
to the deceased.

17

Next,
there is the purse (Exhibit 2). The wife of the deceased said that
she had made the string for this purse herself. I should
mention that
her testimony in this regard did not appear in the original
transcript of the record. However there was reference
in
cross-examination to her having said so when she testified. Counsel
for the Crown referred the court to the learned trial Judge's

contemporaneous personal note of her evidence from which it appeared
that this had indeed been said. The tape upon which her evidence
was
recorded was replayed and a corrected transcript of her evidence was
made available to the court. This bears out that the witness
did say
that she had made the purse string herself. She was not the only
person who identified the purse as the purse which had
belonged to
the deceased. Mokhahle (PW6) also did so. And so did the deceased's
uncle, Chabana (PW9). He was not cross-examined
specifically upon his
identification of the purse. I consider it so unlikely that all three
of these witnesses could be mistaken
in this regard, that the trial
court's rejection of the defence version that the purse belonged to
second appellant appears to
me to have been justified.

The
bridle (Exhibit 5b) is also, in my view peculiarly susceptible of
accurate identification. It was common cause that the original
reins
had been replaced by reins which were of a differing width on either
side. Chabana (PW9) said that he had given these reins
to the
deceased. The deceased's wife and Mokhahle also identified the bridle
as the deceased's bridle. When fourth appellant gave
evidence of the
features of the bridle to support his claim that it was his, he
failed to mention the disparity between the reins.
Under
cross-examination, he asserted that he had renewed the reins but had
forgotten to mention it earlier. Here again, I think
that the trial
Court was justified in accepting the evidence for the Crown and
rejecting that of the defence.

To return
to the articles which are less susceptible of secure identification.
In my opinion, the possibility of an erroneous identification
of them
by the witnesses for the Crown is eliminated when the evidence is
looked at as a whole. I say this for the following reasons.

The
plastic receptable (Exhibit 3) bore a dent which was familiar to the
wife of the deceased. The saddle (Exhibit 5a) had certain
white
strings attached to it by which she recognised

18

it. And
it was in the possession of first appellant who was also in
possession of other articles which it was proved beyond reasonable

doubt belonged to the deceased. The gum-boots (Exhibit 7) were
suspiciously large for second appellant. And he also happened to
have
had in his possession, other articles which it was satisfactorily
proved belonged to the deceased. The saddle cloth (Exhibit
8) was in
the possession of fourth appellant who was also in possession of a
bridle (Exhibit 5b) which was proved to have belonged
to the
deceased. The blanket (Exhibit 4) was in the possession of third
appellant. Not only was he directly incriminated by Mokhahle
in the
assault upon the stranger, he conceded that he had told Masupha to
produce the saddle bags which he had found to the police.
It is true
that he claimed that the police had instructed him to say this, and
that he had no personal knowledge of the bags, but
the overall impact
of all the evidence leaves me in no doubt that the blanket which he
had in his possession belonged to the deceased.
I may add that the
third appellant's attempt to show that he had documentary proof of
his purchase of this blanket was unimpressive.
The saddle bags
(Exhibit 6) were found in February, 1979 at Khamokha some distance
away from first appellant's parents' cattle
post. Third appellant
appeared to know something about them. And the wife of the deceased,
Mokhahle and Chabana said they were
the deceased's. Here again, the
overwhelming probability is that they were correctly identified.

When this
body of circumstantial evidence is considered in conjunction with the
account given by Mokhahle of the assault upon the
stranger, and
weighed against the denials of the appellants, the conclusion that
Mokhahle's account is a true account, and not
a fabrication, is
irresistible. It is stretching co-incidence too far to suggest that
Mokhahle fortuitously happened to select
as his victims, in a
diabolical attempt to procure an unjust murder conviction, four
persons who, mirabile dictu, happened to have
(or have had) in their
possession articles which belonged to the deceased, Ralekhooa
Ntsoane. It is equally unthinkable that this
youth could have been
primed to tell a tale of the kind which he did. If he, or anyone else
for that matter, was intent upon implicating
falsely the four
appellants, why did he have third and fourth appellants entering the
picture in the way in which he described?
Why did he not involve them
ab initio? And why did he introduce first appellant's mother when she
would have

19

given the
lie to his story, if it were indeed false?

Then
there is the inference to be drawn from the reciprocal support which
certain of the appellants attempted to give to claims
by the others
that articles proved to have been the deceased's were theirs. If that
support was untruthfully given, as I think
it is clear it was, it
provides further support for the inference that the Crown's case
against the appellants was well-grounded,
and certainly not founded
upon a malicious fabrication by Mokhahle, or other persons.

I have
not overlooked the disparities, to which Mr. Mall drew attention,
between the evidence for the Crown and the opening remarks
of counsel
at the trial. The argument lacks any real force for three reasons.
Firstly, the discrepancies were not of a fundamental
kind. Secondly,
they were never put to any of the Crown witnesses. In particular,
they were not put to Mokhahle who Mr. Mall suggested
was their
author. Thirdly, there had been a preparatory examination. If there
was any inconsistency between the evidence of Mokhahle
at the trial
and that given by him at the preparatory examination, I would have
expected attention to have been drawn to it. More­over,
while
counsel should obviously be as accurate as possible in opening a
case, it is not unknown for counsel to convey less than
accurately
what the evidence that is to be led, will be.

Thus,
even if the disputed evidence of incriminating admissions and conduct
is ignored, there was a formidable body of evidence
against the
appellants. In my judgment, it left no reasonable doubt as to their
guilt and, if the skeletal remains which were found
were indeed those
of Ralekhooa Ntsoane, they were correctly convicted of murder. Did
the Crown succeed in proving that the skeletal
remains were indeed
those of Ralekhooa Ntsoane? Mr. Mall suggested that this was left in
doubt. He pointed to the lack of any precision
in the evidence as to
the date upon which the assault of the stranger took place. He
reminded us that the expert witness who examined
the remains
initially put the person's age at no more than 25 years,and that she
had said that the person concerned had suffered
a fracture of the jaw
in his lifetime. He stressed that none of the Crown witnesses who
knew Ralekhooa Ntsoane were aware that
he had fractured his jaw.

Once
again, the cumulative impact of all the evidence leaves me in no
doubt that it was the remains of Ralekhooa Ntsoane which were
found.
It is plain that he disappeared mysteriously and has never been seen
or heard of since by his

20

wife to
whom he had been married for many years. It is plain that he failed
to arrive at his destination. The skeletal remains were
found within
four months of his departure. They were found in an area which he
could be expected to have traversed. Articles which
he took with him
when he left were found in the possession of the appellants. The
appellants were seen to have murdered a stranger
who was searching
for his missing horses early in 1979. That stranger was in possession
of the articles with which Ralekhooa Ntsoane
left on his journey. The
person whose skeletal remains were found, had four front teeth
missing just as Ralekhooa Ntsoane did.
All these factors render it
fanciful to suggest that the remains were those of someone else. The
expert conceded that she could
easily have have been wrong in
limiting the age of the person whose skeletal remains had been found
to 25 years. And the evidence
is that Ntsoane wore a full beared. I
am not convinced that the fracture of the jaw which the expert
witness detected would necessarily
have been discernible to others
and there is no reason why his wife and sister-in-law should
necessarily know that he had sustained
such an injury.

Finally,
I should mention that in considering this matter, I have not attached
undue weight to the absence of cross-examination
by appellants'
counsel upon some of the issues. I have done so only in the instances
where the omission seems to me to be of real
significance.

THE
SENTENCES

No
argument was addressed to us in support of the appeal against the
finding that there were no extenuating circumstances. In my
view, it
cannot be said that the finding was not justified.

In the
result, the appeal is dismissed and the convictions and sentences are
confirmed.

R.M. Marais

Signed:........................

R.M. MARAIS

Acting Judge of Appeal

I.A. Maisels

I agree
Signed: ...............

I.A. Maisels

President

L.
DE V. VAN WINSEN

I agree
Signed: ...................

L. DE V. VAN WINSEN

Judge of
Appeal Delivered on this 3rd day of July 1981 at MASERU

For
Defence : Mr. Mall

For Crown
: Mr. Mdhluli