C. of A.
(CRI) No.9 of 1984

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

BOY PETER
MASEKO Appellant

v.

REX
Respondent

HELD AT
MASERU

CORAM:

Schutz P.

Mahomed
J.A.

Wentzel
J.A.

JUDGMENT

Schutz P.

The
appellant was convicted by Molai J of the murder of Lebohang Oscar
Leluma at Maseru on 8th February, 1984. No extenuating circumstances

having been found he was sentenced to death. This is an appeal
against both conviction and sentence.

The
evidence has been dealt with by Molai J in detail in his judgment,
and it is unnecessary to repeat it all in detail. The uncontentious

facts may be set out briefly as follows. At about midday on the day
the deceased was shot down in the yard of the garage premises
of
Moeketsi Tsatsanyane. The post-mortem report, which was admitted by
consent, appears to show five wounds passing through the
deceased's
body. He died shortly after he had been shot. There were numerous
vehicles in this yard. When the deceased was shot
he was in the
immediate presence of two other persons. After the fatal shots

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had been
fired the deceased and the two others ran away but after a short time
the deceased fell down. The main issue in the case
is whether it was
the appellant who fired some or all of the fatal shots.

He denied
having been in the yard or its immediate vicinity as also all
knowledge of the shooting.

The
identification of the appellant as the deceased's murderer is based
upon two distinct chains of evidence. First, there is the
direct
identification of Tlhanka Metsing who says that he saw the appellant
shooting, and who later pointed him out at an identification
parade.
Secondly, there is the evidence of Molahli Molahli, who was not at
the yard but some distance away. He says that he saw
two people
running down the street followed by a third, also running. He was
instructed by the late Sergeant Mochema to take him
in the witness'
car in order to pursue the third person. That person was followed and
after a time the car caught up with him.
The witness insisted that at
no stage during the pursuit did he lose sight of the person being
pursued. Upon reaching him Sergeant
Mochema took a firearm from him
and arrested him. The witness then drove the sergeant and the
arrested person, who was the appellant,
to the Charge Office. There
the firearm was opened and seen to contain four empty cartridge cases
and one live cartridge. Major
Mary Teboho deposed that she found the
previous witness, the sergeant and the appellant at the Charge Office
where she took possession
of the firearm, which was a revolver, the
four cartridge cases and the live cartridge in the presence of the
appellant. The magazine
of the revolver has capacity for five
cartridges. Evidence was given by a ballistics expert who found that
the revolver was a .38
special, and that the

3

four
empty cartridge cases had been fired by it. The appellant denied that
a pistol was taken from him upon his arrest, that he
was driven back
to the Charge Office, saying that he was escorted there on foot, and
that Major Teboho had been present at the
Charge Office at all. He
stated that he was waiting at a bus stop with numerous other people
when the sergeant arrested him.

The Court
a quo rejected the evidence of the appellant and accepted that of
both the identifying eye-witness and of the witness
to the arrest, as
well as that of Major Teboho, The appellant conceded that the former
two witnesses were strangers to him, and
he could advance no reason
as to why they should implicate him falsely. As regards the
eye-witness the Court found him to be not
only honest but also
reliable. The witness of the arrest was also found to be honest, no
particular question of reliability arising
here as his version
differs so completely from that of the appellant that the question is
simply which one is telling the truth.
No question of the possibility
of an honest mistake arises, as it does in the case of the
eye-witness. The possibility of such
mistake apart, the case for the
appellant must involve that the police have obtained two quite
unconnected strangers to perjure
themselves in order to implicate the
appellant.

It
becomes necessary to examine the evidence of the eye-witness Metsing
and the attendant evidence more closely. His evidence was
not
criticized in this Court on the basis that it was dishonest, and I
see no basis for so doing. The question is whether there
is a
reasonable possibility that he may have been mistaken. As was stated
by Dowling J. in R. v. Shekelele and another 1953(1)
SA 636 (T) at

4

638 G:
"An acquaintance with the history of criminal trials reveals
that gross injustices are not infrequently done through
honest but
mistaken identifications". Indeed it is the very honesty of an
identifying witness which may create the trap for
a Court that is not
astute to the chances of mistake.

The
evidence of Metsing amounts to this. He had come to Tsatsanyane's
garage in order to obtain the use of a breakdown van. He had
to wait,
under the shade of a peach tree next to the garage yard. As he was
waiting a stranger seated himself next to him. What
struck him was
the boorishness of the man in not greeting him, as is the custom of
the land between well disposed persons. He looked
the stranger in the
face, and in his words, "I marked his features." He was
sure that the stranger was the appellant
whom he later identified. In
cross-examination he stated that the stranger was missing two front
teeth. The appellant lacks two
front teeth. The fact that this
evidence was given only in cross-examination was criticized by
appellant's counsel, Mr. Kuny, but
the answer to that criticism
appears to me to be that the statement came in answer to a challenge
as to what part of the stranger
he had looked at. Mr. Kuny also
submitted that on the witness' evidence the time available to him in
which to observe the stranger
was very short. He relied upon a
passage in which the witness might seem to have said that the
duration of the period between the
stranger's arrival and the
shooting, yet to be described, was only some two to three seconds. In
re-examination he clearly stated
that the two of them had sat side by
side for about an hour. The passage in question reads, "I was
surprised seeing someone
seated next to me without even greeting me.
Q. So when you looked at this man what happened? After two or three
seconds I heard

5

a sound
of something and on trying to find out what was happening, I noticed
that he came and passed in front of me. After passing
in front of me
he went to the tree and opened the branches and I saw him pointing a
gun and shooting and there was a sound 'twa!',
'twa!' and then I fell
to the ground on account of fright". It is not clear what the
"sound" was. Later in the evidence
he said that the first
shot was fired when the stranger was beside or behind him. It is this
statement that leads to the submission
that the interval between the
stranger's arrival and the shooting was only some two to three
seconds. This submission is somewhat
weakened by a later passage in
the evidence-in-chief, where the following appears, "was there
anything peculiar on this man
whom you saw shooting that you noticed?
I noticed the man while he was seated next to me and at the time he
was shooting I noticed
him." And it is contradicted by the
passage mentioned above about the one hour interval. What is striking
is that that evidence
was not challenged in cross-examination. The
contradiction was not put and the witness was given no chance to
explain. I have found
the witness to be honest, and I can see no
reason to doubt his clear evidence about the one hour interval,
because of the rather
ambiguous passages referred to. He further
states that he again observed the same stranger at the time of the
shooting described
above. This time he observed him in profile
whereas on the previous occasion he had looked into his face. The
witness described
several shots but he was uncertain as to their
exact number, their total seemingly but doubtfully amounting to four.

Metsing's
observations were also questioned on the ground of the evidence of
other witnesses, both prosecution and defence, who

6

in
varying degrees said or suggested that the gunman whom they saw but
could not identify had fired towards and not from the peach
tree. I
do not think their evidence carries weight for a variety of reasons
which I find it unnecessary to detail. If there was
only one gunman
and if their evidence really conflicts with that of Metsing it would
mean that not only was Metsing mistaken but
also untruthful in his
general but dramatic description of the actions of the stranger. But
I do not think even on the hypothesis
of only one gunman there is a
necessary conflict. Metsing threw himself to the ground shortly after
the shooting started and was
unable to observe what movements the
stranger may have made thereafter. Moreover there is no reliable
basis for the single gunman
hypothesis There may have been two, and
if there were two it would in no way diminish the appellant's guilt
because he was only
one of them.

On 29th
February 1984, that is three weeks after the shooting Metsing
attended an identification parade at Maseru Central Prison,
where he
pointed out the appellant. The manner of conducting this parade has
been criticized in several respects. Before dealing
with these I
refer again to the judgment of Dowling J. in R. v. Shekelele (above)
at 638 G: "Questions of identification are
always difficult.
That is why such extreme care is always exercised in the holding of
identification parades - to prevent the slightest
hint reaching the
witness of the identity of the suspect". I fear that the phrase
"is always" should be read rather
as an expression of hope,
than a statement of universal fact, as the facts in the present case
show. In R. v. Osborne (1973) 1
All ER 649 (C.A.) at 657 Lawton LJ
said,

"The
whole object of identity parades is for the protection of the

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suspect,
and what happens at those parades is highly relevant to the
establishment of the truth." I agree with that statement
as to
the object of parades. But the matter does not end there. There is a
corollary. The Courts, always vigilant ("always"
in the
Bowling sense) against the dangers of mistaken identification are
very ready to reject as unreliable the evidence of an
identifying
witness if he has pointed out a suspect at a parade tainted by
irregularity. I use the legal term irregularity but
what it really
means is simply fair play. Nor is that all. Evidence given by a
credible and reliable witness may be given deadly
weight if he points
out a stranger in a properly conducted parade. It is therefore in the
interests not only of the suspect, but
also of the police and
therefore of the community whose interests they protect, that parades
be fairly conducted. Many a criminal
has gone unpunished because a
parade has been dishonestly or carelessly conducted.

Without
attempting to catalogue the requirements of a parade (which
requirements are no doubt to be found in the police handbooks)
I
mention some. The parade should be conducted by an officer who has no
interest in the investigation of the crime. The witnesses
should be
given no opportunity of seeing the suspect before they are brought
onto the parade. On the parade the suspect should
not be conspicuous,
whether in respect of attire, height, size or complexion and so on.
He should be given an opportunity to change
position and clothing
after each witness is called. Each witness should be told clearly
before he is brought onto the parade that
he is not to assume that
the person whom he has been brought to point out is on the parade. In
other words he is not to strain
every nerve to point out somebody, or
the person most nearly resembling the one whom he has come to
identify. Further,

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a witness
who has already attended the parade is to have no opportunity of
communicating in any way with witnesses who have yet
to attend the
parade.

Mr. Kuny
criticizes the parade in the latter respect. Metsing himself says
that he, having been first taken to the parade, was brought
back to
the room in which D.W.2 Mahase was waiting to be taken to the parade.
This was a clear irregularity, and it is saved only
by the fact that
Mahase, who showed a great willingness to aid the appellant, did not
himself suggest that Metsing made any communication
to him upon his
return.

What is
disturbing about the parade is that after Metsing had left it, the
appellant changed clothing with another person and Mahase
then
pointed out that other person.

Mahase's
version of what happened at the parade is much relied upon by the
defence. He states that before either Metsing or he were
taken to the
parade, and whilst both were together, a policeman told them that the
man they were to identify wore a grey tracksuit.
That is denied by
Metsing who states that he did not even notice what the appellant was
wearing, as he was looking at the faces
of the persons on the parade.
If this evidence of Mahase were to be believed it would, of course,
make the whole parade a charade.
The trial Judge disbelieved Mahase,
in my opinion for good reason. The witness stated that he was unable
to identify the gunman,
that he had told the police as much, but that
nonetheless, at the police behest he had pointed out a man in a grey
tracksuit, a
man whom he had not seen before, but who certainly was
not the appellant. A reason given by the trial Judge for disbelieving
Mahase
was that it was most improbable that the

9

police
would have taken the witness to the parade if he had said that he
could not identify the gunman. The trouble with this reasoning
is
that it presupposes that the police were behaving honestly, when
their honesty was the very issue. But there are better reasons
for
rejecting the evidence of Mahase. His own evidence stamps him as
having the morals of a murderer, one quite ready to bring
to
execution one whom he did not know, one against whom he held no
grudge, and all this to no end to himself, other than to please
the
police. Moreover, Mahase stated that when the parade had ended the
police said that Metsing had pointed out the right man whereas
Mahase
had not. This seems a very strange and ungrateful remark when Mahase
had but faith­fully done what he had been told
to do. Rather one
would have expected remonstrance at the cunning of the appellant. The
witness also directly contradicted himself
as to whether he had
actually seen the gunman fire. More generally he seems to me to have
been a thoroughly untrustworthy witness
and I think that his evidence
was rightly rejected.

I now
turn to the evidence relating to the revolver, which I have already
set out. I can see no basis for rejecting the evidence
of Molahli,
which is singularly damning. Not merely was the appellant seen
running away from the scene of the murder, but he possessed
a
revolver, a revolver that contained four empty cartridge cases that
had been fired by it. Their presence in the magazine is a
strong
indication that the revolver had been recently fired, four times. The
appellant's version as to his arrest was, in my opinion,
rightly
rejected. His version as to why he should be singled out of the crowd
at the bus stop is simply incredible. It was that
whereas the others

10

were
wearing blankets, he was not. Apart from this his evidence was most
unsatisfactory in many respects. I would add that Molahli's
general
account is to some extent supported by various prosecution and
defence witnesses in the respect that his account of two
men running
away followed by a third man also running fits in with what they say.

Mr. Kuny
also contended that no motive for the crime had been established. I
do not agree. After the appellant had been convicted
of murder his
counsel called two witnesses on the extenuation issue. The effect of
their evidence was that the appellant had cause
to believe that the
deceased had murdered a friend of the appellant, and that that crime
had gone unpunished. Evidence given on
the extenuation issue, once
given, is to be taken into account by a Court of Appeal on the issue
of guilt, insofar as it is relevant:
Thabang Mohlalise and others v.
Rex C. of A. (CRI) 1-3 of 1981 (unreported 13th October 1981)
following S. v. Mavhungu 1981(1)
SA 96(A) at 65.

Taking
the evidence together I consider that the appellant's guilt has been
proved beyond reasonable doubt. Metsing's evidence is
of weight but
it might not have been enough standing alone, particularly because of
the disturbing elements regarding the parade
which I have already set
out. But it does not stand alone. I consider that the evidence
relating to the revolver makes the case
a clear one.

Notwithstanding
this there were serious deficiencies in the investigation. Why the
appellant's hands were not subjected to the well
known wax test to
ascertain whether he had recently fired a firearm is not explained.
Nor are we told that a search was made for
spent bullets which have
led to a direct link between the murder and revolver.

The
finding of no extenuation was also attacked. It was

11

contended
that the appellant's moral blameworthiness was lessened by a belief
that the murder of his friend had gone unpunished.
But even if that
is so it cannot help him. The law can but rarely countenance the
taking of the law into one's own hands, when
there has been ample
time for reflection, as there had been in this case. Such
generalisation apart, however, the appellant's failure
to give
evidence counts heavily against him where he bore the onus. Only he
could have explained what motivated him and whether
there was any
lessening of blameworthiness in his motivation. The evidence tends to
suggest that the appellant was settling a gang
score. The deceased
seems to have been a man not unacquainted with violence. But what was
the appellant's departed friend and what
was the appellant himself?
It is not for me to speculate in his favour when he chose to remain
silent. In addition the evidence
indicates that the murder was
premeditated and carefully planned. The deceased appears to have been
lured to the place of his death
where the appellant lay in wait for
him. I can see no reason for disturbing the finding that there are no
extenuating circumstances.

In
conclusion I am of the opinion that the appeal against conviction and
sentence should be dismissed.

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(Sgd.) W.P. Schutz

W.P. SCHUTZ

President

I agree
(Sgd.) I. Mahomed

I. MAHOMED

Judge of Appeal

I agree
(Sgd.) E.M. Wentzel

E.M. WENTZEL

Judge of Appeal

Delivered
on this 26th day of July 1985 at MASERU.

For
Appellant : D.A. Kuny

For
Respondent: K.C. Kamalanathan