C. of A.
(CRI) NO. 5 of 1980

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

KHOABANE
SELLO Appellant

v

REX
Respondent

HELD AT
MASERU

CORAM:

MAISELS,
P.

SCHUTZ,
J.A.

VAN
WINSEN, J.A.

JUDGMENT

Schutz,
J.A.

The
appellant was convicted by the Chief Justice of the murder without
extenuating circumstances of Ramatlaleng Sehloho and was
sentenced to
death.

The
deceased was a postal courier employed to carry the postal bag on
horseback from the Post Office at Morija to the village of
'Mahuu. On
3rd March, 1978, about the middle of the day, he set out on his
route. He was carrying the greyish-brown postal bag
which was tied
with string which was sealed with a lead seal. Inside this bag was a
smaller bag, green in colour, containing express
and registered mail,
which included money. This bag also was tied off and sealed with a
lead seal.

During
the course of that afternoon he met his death after he had proceeded
only some hundreds of yards along the road to 'Mahuu.
His death was
caused by five stab wounds penetrating his heart and lungs. In all
there were no less than eighteen stab wounds to
his chest. His body
was found on the evening of the next day, the 4th of March, a short
distance from the road behind some aloe
bushes. Close to it was found
the outer postal bag which had been opened and ransacked. The inner
bag and its contents had disappeared.

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On the
following day, the 5th March, the accused was apprehended by the
police on suspicion. He had worked at the Morija Post Office
until
the previous year as a messenger and had left after some trouble or
other with the postal authorities. He had occasion to
know the
procedures involved in dispatching the post from Morija to 'Mahuu. He
was kept under arrest during the days succeeding
the 5th and was
closely interrogated.

Certain
events which occurred on 8th March, consisting of certain pointings
out by him constitute the main case against him. Although
it is
possible that these pointings out may have been associated with an
inadmissible confession, their admissibility is governed
by s.224(2)
of the Criminal Procedure and Evidence Proclamation 59 of 1938, as
amended, and in the argument on appeal the admissibility
of this
evidence was not challenged. The evidence was given by sergeant
Polanka and Trooper Ndongeni. In Sergeant Polanka's words
: "When
we arrived at the spot where we found this big bag before the court
the accused Just inside the grass picked up a
string which I did not
see the previous time....."

This
string still had lead attached to it. Although there is no
description of this spot in the record of the inspection in loco,
in
the judgments of Cotran C.J. the grass is twice described as long
grass. This string was identified as being similar to that
used for
securing mail bags. Further, "He showed me the place where the
deceased was. Q. Where you had found the deceased
on the fourth?
Yes." Then the appellant led the party to a spot about 200 yards
away, in a forest. There he pointed out a
green silken bag "Just
under a pine tree, with its leaves going down towards the ground."
It was a place "where
you go along bending because of the
leaves". The bag was not visible from the footpath some 16 to 20
feet away. In his judgment
the Chief Justice said of this spot, as
seen at the inspection, that it was "a very bushy area and
unless someone knew where
the place is, it would not have been
possible for a person to see it, unless that person came across it
when for example chopping
the tree or one of its branches" The
contents of the bag allowed it to be identified as the bag for
express and registered
mail that had been carried by the deceased.
Many of the envelopes had been opened.

Prior to
the verdict of murder the appellant's evidence was that he knew
nothing of the crime, and that although he had gone on
the trip with
the policemen he had pointed out nothing, but that indeed the
pointing out of the spot where the body had been and
the findings of
the string and the green bag were the work of the

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police.
The Chief Justice accepted the police evidence of the pointing out
and rejected the appellant's evidence. These findings
were not
attacked on appeal.

The case
for implicating the appellant is then his opportunity and knowledge
of the procedures of the post office and the deceased,
the pointings
out described above, and his failure to explain the knowledge that
allowed him to make them, and indeed his false
explanation as to who
had effected the pointings out. The question is whether the
inferences to be drawn from the circumstantial
facts and his own
evidence amount to proof of guilt beyond reasonable doubt.

In S. v.
Ismail and, 0thers(2) 1965(1) S.A. 452(N) at 457 it was stated that
there are four ways in which the knowledge necessary
to effect a
pointing out may be gained, viz,

1. he(the
   accused) can have this knowledge because he took part in the
   commission of the offence;

   
   

2. he
   can have this knowledge because he saw others committing the
   offence;

   
   

3. he
   can have this knowledge on information supplied to him by someone
   else......

   
   

4. that
   the accused acquired some knowledge of the place without being a
   witness to the crime and without having been told about
   the place,
   in some quite innocent way".

   
   

Milne
J.P. proceeds (in Ismail's case) at 457 :

"If the accused gives evidence and does not say that he saw
others committing the offence, the second alternative need not

ordinarily be given very serious consideration. If, in giving
evidence, he says that he acquired the knowledge because of what

others told him but there is acceptable evidence that there were
details in the pointing out which he does not thus explain (because

he denies the pointing out of those details) the only reasonable
inference may well be that his knowledge was due to his taking
part
in the commission of the offence. If he says that he acquired his
knowledge of the place, including the details pointed out
by him,
because he had visited the spot on an innocent occasion or occasions,
the triers of fact are entitled, and bound, to consider
all the
circumstances and to decide whether there is any reasonable
possibility that the accused, in taking the police to the spot
and
pointing out the place or places there, did so otherwise than because
he had knowledge of such place or places in consequence
of his own
participation in the relative offence".

In
drawing inferences the Court will not have regard to remote and
fanciful possibilities, and will have regard to the

4

cumulative
effect of the various factors which weigh against the appellant. The
pointing out of the green bag in my view weighs
quite heavily against
him. It is most unlikely, because of its concealed location, that
either he or someone else who then told
him would have discovered it
during the period of just over a day between the murder and his
arrest. Then there is the pointing
out of the string in the long
grass. In argument it was contended that he may have come upon it by
chance on the 8th, when it had
not been observed by any of the
various police officials who had visited the spot on previous
occasions. It is a possibility, but
a distant one. It is very much
more probable that a person with knowledge of about where the string
had been thrown away would
find it. Co-incidences do occur but it
requires a considerable stretching of credulity to accept that the
two co-incidental findings
argued for on behalf of the appellant did
in fact occur. There was therefore, in my view, not merely a prima
facie Crown case,
but one of considerable weight to which a
reasonably acceptable answer could be expected. But then the
appellant did not merely
fail to give evidence which would have left
the Court to decide whether speculative explanations could reasonably
possibly be true,
but he gave false evidence about the pointings out.
This leads me to the conclusion that he was unable to advance an
explanation
consistent with innocence and there is no room, in the
circumstances of the case before the Court to embark upon speculative
inferences
in favour of the appellant.

I
conclude that the appellant was rightly convicted of murder.

This
leaves the question whether he has discharged the onus of proving
extenuating circumstances. After his conviction he resiled
from his
previous version and gave evidence in which he conceded complicity in
the attack on the deceased. His new version comes
to this. He
approached a well-known criminal named Tlhompho and suggested that
they should take money from the deceased. He proposed
that Tlhompho
should do the taking whilst the appellant hid himself, because the
deceased knew the appellant, Tlhompho was to call
out the deceased's
name in order to halt him. When cross-examined as to how Tlhompho was
to overcome the deceased he answered "I
said he should just hit
him with a fist and then fall him down thereafter take a horse and
get off". The horse was to be taken
so that the deceased could
not get to the police before their business was done. Asked what
would happen if the deceased

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proved to
be stronger than Tlhompho he replied that Tlhompho appeared to be
hefty enough and strong. Asked if he saw a weapon in
Tlhompho's
possession he said that he had his cardigan hanging over his trousers
and that he saw no weapon. He then said that he
hid himself about 150
yards from the scene of the robbery, and that when the deceased
arrived near to Tlhompho he dismounted. He
then saw the two
struggling. The deceased fell to the ground. After a while Tlhompho
came to him with the already opened mail bag.
The following, to my
mind improbable evidence follows. Appellant asked Tlhompho why he had
not taken the deceased's horse so that
the deceased could not get to
the police quickly. "He (Tlhompho) said it was a small matter we
shall have finished by then.
I asked him as to whether the deceased
had seen him up to the time he got into the forest, He said he did
not notice as to whether
the deceased was still seeing him". In
cross-examination he said that he asked where the deceased was and
was told by Tlhompho
that he had hit the deceased well, that he had
fallen down and that he then went away. He said that he did not know
that the deceased
had died. It was then decided to leave the bag and
its contents behind in order to be retrieved later. When he again saw
the bag
in the company of the police it had been rifled, presumably,
by Tlhompho. It should be added that Sergeant Polanka deposed., when

recalled, that Tlhompho had been arrested because of information
given by the appellant but that he had escaped and disappeared.

When
weighing this version the appellant is in the difficulty, onus apart,
which so often arises in this kind of case, that because
of his
radical change of version the appellant is a self-confessed perjurer.
When asked why he had not given the second version
earlier he claimed
that it might be due to his lack of knowledge of court procedure that
he took it "that apparently I was
going to be given time to say
what my knowledge is as far as this matter is concerned". What I
find particularly unconvincing
about his story is his allged failure
to see any of the stab wounds being inflicted. It will be remembered
that there were no less
than eighteen of them. Cross-examined as to
whether he saw the stabbing he answered "When I saw him fall
down I went further
into the tree plantation". Counsel for the
appellant submitted that the failure to see any stabbing might be due
to intervening
tall grass. If the wounds, or some of them, were
inflicted while the deceased was still standing it is difficult to
see why the
appellant did not see the stabbing. If after he had
fallen, it is

6

quite
incomprehensible why the appellant should at that stage retreat
further into the forest. I am left with the impression that
here, as
elsewhere in his evidence, appellant was making an unconvincing
attempt to distance himself from the lethal violence as
much as
possible. A further difficulty for the appellant is hi; version about
the string, his finding of which strongly suggests
that he was
present at the fatal assault and not some distance away. In
cross-examination he was asked how he picked up the string.
The
answer was "The horse was not where the struggle was". He
then suggested that if his memory served him well the string
was
picked up by one of the two policemen, probably Sergeant Polanka.
This suggestion runs contrary to the finding of the learned
Chief
Justice that the appellant and not the police found the string.

In my
view the evidence of the appellant is much too unsatisfactory to
discharge an onus. What his exact role in the attack was
is not
clear. It is quite possible that he was the sole assailant, in which
case dolus directus was present. But even if he did
act in concert
with Tlhompho, and it was Tlhompho who did the actual stabbing, it is
the inevitable conclusion that the appellant
authorized the use of
such violence as might be necessary to overcome the deceased's
resistance. That would lead to a finding of
dolus eventualis. Such a
finding is sometimes a basis for finding extenuation, but in my view
it is not sufficient in this case.
At best for him the appellant was
the initiator of mortal attack, the object of which was plunder. His
moral blame-worthiness is
not reduced by such a finding.

I am
accordingly of the view that the appeal should be dismissed and the
conviction and sentence confirmed.

W.P. Schutz

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

W.P. SCHUTZ

Judge of Appeal

I agree
Signed: I.A. Maisels

I.A. MAISELS

President

L.de V. van Winsen

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

L. DE V. VAN WINSEN

Delivered
this 12th day of January 1981 at MASERU

For
Appellant : Mr. Kuny

For
Respondent: Mr. Mdhluli