CRI/T/97/2000
IN THE HIGH COURT OF LESOTHO

In
the matter of:

REX

vs

SEKESE 'NYANE JUDGMENT

Delivered by the Honourable Mr. Justice B.K. Molai on

14^th December, 2001

The accused is summarily charged with the crime of
murder, it being alleged that during the month of September 1996, the
exact date
unknown to the prosecutor, he unlawfully and intentionally
killed Ntšiuoa 'Nyane.

When the charge was put to him, the accused pleaded not
guilty. Mr. Molefi, who represents the accused in this trial, told
the court
that the plea of "not guilty", tendered by the
accused, was in accordance with his instructions. The plea of not
guilty
was accordingly entered.

It is, perhaps, necessary to mention, at this stage,
that the accused was

2

originally charged together with a certain Masilonyane
'Nyane. It is common cause that the latter has since died. He was,
therefore,
not available to plead to the charge when the trial
commenced. Accordingly the accused is the only person charged, in
this case.

Furthermore, it is worth mentioning that the original
charge, to which the accused pleaded, read:

"In that upon or about the 12^th day of
October, 1996 and at or near Lithabaneng in the district of Berea,
the said accused did unlawfully and intentionally kill
Ntšiuoa
'Nyane."

However, before closing the crown case Miss Makoko, who
represents the crown in this trial, applied to amend the charge by
deleting
the words "upon or about the 12^th day of
October" and substituting therefor, the words "during the
month of September". On behalf of the accused, Mr.
Molefi told
the court that the defence did not object to the amendment. Nor did
he propose to alter the plea of "not guilty"
originally
tendered by the accused person.

Nine (9) witnesses were called to testify in support of
the crown case. No witnesses were called to testify on behalf of the
defence.
However, the accused himself gave evidence on oath, in his
defence.

P.W.9, D/Tpr. Sojane, told the court that he was a
member of the

3

Lesotho Mounted Police Service, attached to the C.I.D.
and stationed at T.Y. police station, in the district of Berea. On
12^th October 1996, he received a certain information
following which, he and a certain Tpr. Putsoane proceeded to the
village of Lithabaneng.
On arrival at Lithabaneng they introduced
themselves to the Chief's representative, whose name he (P.W.9) no
longer remembered, presumably
because the Chief himself was not in.
P.W.9 told the court that after he and Tpr. Putsoane had introduced
themselves and explained
their mission to him, the Chief's
representative took them to a forest at some cliffs, on the outskirt
of the village, where they
found a corpse which was dressed in a
greenish T. shirt, an off-white dress and a cream-coloured panty.
There was a pair of brown
sandals next to the corpse.

In his evidence, P.W.9 told the court that, whilst they
were at the scene, he heard the Chief's representative saying: "these
people say they identify the corps by its clothes, as being that of
Ntšiuoa 'Nyane" or words to that effect.
As many people had already gathered at the scene, P.W.9 did not
notice the people referred
to by the chief's representative. Nor did
he bother to find who those people were.

It is significant to mention that neither the chief's
representative nor the people he allegedly referred to were called to
testify
as witnesses, in this trial. What they are alleged to have
said is, therefore, of no assistance to the court.

4

P.W.9 went on to testify that in trying to remove the
clothes from the deceased, the flesh was going off with them. He was,
therefore,
unable to undress the corpse and examine it for injuries.
In the circumstances, the corpse was carried to the village from
where
it was transported, in a police vehicle, to the mortuary of
Teya-teyaneng government hospital without P.W.9 having observed any
injuries
on it. According to him, P.W.9 took the brown pair of
sandals to the police station. He properly labelled and kept it in a
separate
room from the exhibit-room at T.Y. police station. The
reason therefor, was because the exhibit-room was full. However,
anybody could
have access to the separate room in which he had kept
the pair of sandals. In the circumstances, the pair of sandals had
since gone
missing and could not be handed in as exhibit, in this
trial.

P.W.9 told the court that he personally did not attend
the post-mortem examination which was conducted on the corpse, at the
mortuary
of T.Y. government hospital. A certain D/Tpr. Maloi did.
However, before D/Tpr. Maloi went to attend the post-mortem
examination
at the mortuary, he (P.W.9) had explained to him what
kind of corpse he would find at the mortuary. It is, again,
significant to
mention that D/Tpr. Maloi was not called to testify as
a witness, in this trial.

P.W.9 testified that, in the course of his
investigations, he contacted and brought the accused to T.Y. police
station. He confronted
him with Masilonyane 'Nyane who was already
detained at the police station. After he had cautioned them, the
accused and Masilonyane
gave him (P.W.9) some

5

explanation in connection with a certain rosary. They
then took him to the spot where the corpse had been found, at the
cliffs. He
was in the company of D/Inspector Sebele, D/Tpr. Ntela and
Detective L/Sergeant Monyane. When they searched the vicinity of the
spot
where the corpse had been found, P.W.9 and his team of police
officers, found a white rosary. The rosary was lying amongst the
bushes
next to the spot where the corpse had been found. According to
him, P.W.9 took possession of the rosary. It had since been in the
police custody. He handed it in as exh. "I" and part of his
evidence, in this trial.

It is, perhaps, necessary to mention that exh. "1"
is not broken in pieces. It is a rosary which is still in tact. The
significance
of this is because P.W.9 was shown another white rosary
which was, however, broken in pieces. P.W.9 told the court that there
was
a time when D/Tpr. Sebele showed him the broken rosary with the
explanation that it had been handed to him by Mantšiuoa
'Nyane, the mother of the deceased in this case. He (P.W.9) himself
knew nothing about it. Again, D/Tpr. Sebele was not called
to testify
as a witness, in this trial. He could not, therefore, confirm what
P.W.9 said he had done.

P.W.9 told the court that from the place where exh. "1"
had been found, he and his team of police officers returned, with
the
accused and Masilonyane, to the police station. Both the accused and
Masilonyane gave him explanation after he had duly cautioned
them.
Following their explanation, P.W.9 gave the accused and Masilonyane a
charge of the murder

6

of the deceased, in this case. They were subsequently
taken to the magistrate court for remand. Under cross-examination
P.W.9 conceded
that he had escorted the accused to the office of the
magistrate before whom he (accused) wished to make a confession. That
confession
was, however, not used as evidence, in this trial. P.W.9
categorically denied the suggestion that whilst in police custody the
accused
was assaulted or tortured, in any way.

It is worth noting, at this juncture, that by the
agreement of both Miss Makoko and Mr. Molefi, counsel for the crown
and the defence,
respectively, a post-mortem examination report was
handed in from the bar, as exh. "A". According to exh. "A",
at about 2:50 p.m on 17^th October 1996 a medical doctor
performed a post-mortem examination on a dead body of a 15 years old
female African child at the mortuary
of T.Y. government hospital. The
body was identified as being that of Ntšiuoa
'Nyane by D/Tpr. Sojane (P.W.9). The examination revealed that the
deceased's body was decomposed and mummified beyond recognition.
On
that finding the medical doctor formed the opinion that the cause of
death could not be determined.

It is significant to observe that although in exh. "A"
the medical doctor wrote that P.W.9 had identified the dead body,
before him, the latter denied it. He (P.W.9) told the court that he
personally did not attend the post­mortem examination. Instead
D/Tpr. Maloi did. For obvious reasons, neither the medical doctor nor
D/Tpr. Maloi could be cross-examined, on this issue. Assuming
the
correctness of the evidence of P.W.9, it stands to

7

reason that the medical doctor could not be right in
writing, as he did, that the dead body was identified, before him,
by P.W.9,
as being that of Ntšiuoa 'Nyane. In the circumstances,
the possibility that the dead body examined by the medical doctor, on
17^th October 1996, might well have not been that of
Ntšiuoa 'Nyane, the deceased in this case, cannot be ruled out.

Be that as it may, the court heard the evidence of
P.W.6, 'Mantšiuoa 'Nyane, who testified that she lived in the
village of Lithabaneng
ha Kepi, in the district of Berea. She was
illiterate. She knew the accused. The accused was the son of her
brother who lived at
Likotopong, in the district of Maseru. She also
knew the deceased (Ntšiuoa 'Nyane) in her life time. The deceased,
who was her own
daughter, was born in 1979.

According to P.W.6, some time in 1996 her brother, the
accused's father, who was working in the mines of the Republic of
South Africa
(R.S.A.) wrote her a letter in which he informed her
that the accused was about to graduate from the circumcision school
at Likotopong.
He, therefore, instructed P.W.6 to proceed to
Likotopong together, with Masilonyane 'Nyane (his younger brother),
presumably to make
preparations for the occasion of the accused's
graduation from the circumcision school. In compliance with the
instructions of her
brother, the accused's father, P.W.6 did proceed
to Likotopong. She went there in the company of her daughter, Ntšiuoa
'Nyane, the
deceased in this case. Masilonyane, who also lived in the
same village as P.W.6 did, followed them at a later stage.

8

P.W.6 told the court that it was whilst she was at
Likotopong and before the accused's father himself could return home
for the occasion
of the accused's graduation from the circumcision
school that she and other members of the family received the sad news
that her
brother, the accused's father, had passed away at his place
of work, in the mines of the R.S.A. As a result of the sad news of
the
death of her husband, the accused's mother was required to go to
the mines in the R.S.A. The family decided that P.W.6 should
accompany
her. She (P.W.6) obliged. When P.W.6 and the accused's
mother went to the mines, in the R.S.A., Ntšiuoa 'Nyane (deceased)
remained
at Likotopong at the special request of the latter who said
she (deceased) should assist in preparing food for the accused. The
corpse
of the accused's father was brought home and buried at
Likotopong. After the funeral of the accused's father P.W.6 went back
to her
home, at Lithabaneng ha Kepi. She, however, left the deceased
(Ntšiuoa) at Likotopong, again, at the request of the accused's
mother
who claimed that, following the death of her husband, she was
still not feeling well. The deceased should, therefore, remain to
assist
her. She promised to send her (deceased) to Lithabaneng as
soon as money was available.

According to P.W.6, the accused's mother herself brought
the deceased to Lithabaneng ha Kepi after about three (3) months.
They were
in the company of accused's brother by the name of
Lithakong. On arrival at P.W.6's home, the accused's mother reported
that the
deceased had been made pregnant by some unnamed village men
at Likotopong. P.W.6 then questioned the deceased about the name of
the
person who had made her

9

pregnant. In the presence of the accused's mother, the
deceased replied that it was the accused who had made her pregnant.
That was,
however, disputed by the accused's mother.

Thereafter, the accused's mother and Lithakong left
P.W.6's home and returned to Likotopong. According to her, P.W.6 then
went to
her chief, at Lithabaneng, and requested him to assist by
arranging a meeting between herself and the accused's mother in
connection
with the alleged pregnancy of the deceased by the accused.
He (chief) did assist by writing to the chief of Likotopong who
subsequently
sent the accused and her mother to Lithabaneng ha Kepi.
A family meeting was held at the home of P.W.6's house, on the advice
of
her chief who further advised that in the event of its failing to
reach an agreement the family meeting should bring the matter before
him for his decision. According to P.W.6 the family did hold a
meeting which was attended by herself, Mphaka Rasunyane, the
accused's
mother, Masilonyane 'Nyane, the elder sister of
Masilonyane's wife, the deceased and the accused himself. When she
was questioned
about her pregnancy the deceased told the family
meeting that the person who had made her pregnant was the accused.
The accused also
admitted that he was, indeed, the person who had
made the deceased pregnant. P.W.6 and the accused's mother then
agreed that their
children viz. the deceased and the accused should
get married to each other. However, the accused's mother claimed to
have no money,
at the time. She could not, therefore, return with the
deceased to her home at Likotopong. The accused himself promised
that, as
soon as money was available, he would come to fetch the
deceased. I

10
shall return to the evidence of P.W.6, later in
the judgment.

P.W.2, 'Mapaseka Seseli, testified that she was married
at a place called Tabola, in the district of Leribe, where she lived.
However,
in 1996 she was not yet married. She then lived at her
maiden home viz Lithabaneng ha Kepi, in the district of Berea. She
knew the
deceased, Ntšiuoa 'Nyane, who was her personal friend.

P.W.2 recalled that at about 4:00p.m one day in 1996 -
the exact date she no longer remembered - the deceased came to see
her at her
maiden home. She was wearing a pair of black jeans and a
greenish T. shirt. On arrival at her maiden home, the deceased
assured P.W.2
that she was not going to be long with her because she
still had to go and cook at her home. After they had chatted briefly,
the
deceased left. As she was leaving the deceased asked P.W.2 to
take her half-way and the latter obliged. When they were at the
village
spring, P.W.2 noticed a person coming down towards them. That
person was wearing a "tiger" blanket and white gumboots.
The deceased then told P.W.2 not to leave her alone because the
person who was coming towards them was Sekese (accused), her boy
friend. However, P.W.2 did not wait with the deceased for the
accused. She returned home. As she was returning home, P.W.2 noticed
the deceased running towards the accused. That was the last time she
saw the deceased alive.

The evidence of P.W.3, Tsietsi Molefi, was that he was
62 years old. He was literate and had passed std. 9 when he left
school. He
lived in the

11

village of Lithabaneng ha Kepi, in the district of
Berea. He knew both the accused and the deceased, in her life time.
The deceased's
mother (P.W.6) was his next door neighbour. The
accused had been introduced to him by his (accused's) paternal uncle,
Masilonyane
'Nyane, on 9^th September, 1996. According to
P.W.3, on 10^th September 1996 he was outside his home when
he saw the deceased and the accused walking together, in the
direction towards T.Y. town.
The accused was wearing a "tiger"
blanket and white gumboots whilst the deceased was wearing a full
dress of which colour
he no longer remembered.

53 years old Matsietsi Seseli testified as P.W.4 and
told the court that she lived at Lithabaneng ha Kepi, in the district
of Berea.
She knew the accused, P.W.2 and the deceased, in her life
time. She had once seen the accused at the home of P.W.6 who was his
paternal
aunt. P.W.2 was the daughter of her own sister. The
deceased's mother (P.W.6) was her co-villager.

According to P.W.4, during the forenoon of one day in
September 1996 - the exact date unknown - she was returning from T.Y.
town when
she passed the accused standing with the deceased on the
side of the tarred road leading from the town to a place called ha
'Matjotjo.
The deceased was wearing a green T. shirt and a pair of
trousers. The accused was wearing a maroon hat and white gumboots. He
was
also holding a stick in his hand. That was the last day P.W.4 saw
the deceased alive.

12

P.W.4 further told the court that the spot, where she
had seen the accused and the deceased standing, was between the homes
of P.W.3
and a certain Thulo Masela. She believed P.W.3 had also seen
the deceased and the accused because he (P.W.3) was, at the time,
sitting
outside his house which was within view, from the spot where
the deceased and the accused were standing.

In her evidence, P.W.4 did not know that, after she had
seen her standing with the accused, the deceased went missing from
her home,
in the village. However, one day she was working in the
fields when she heard an alarm being raised. She herself did not go
to where
the alarm was raised. However, P.W.4 later learned from some
villagers that the deceased had been found dead. She personally never
saw the dead body of the deceased.

P.W.1, Tšepang Phunkola, testified that he too lived at
Lithabaneng ha Kepi, in the district of Berea. He knew the deceased,
in her
life time. The accused used to visit the home of one
Masilonyane 'Nyane in the village of Lithabaneng ha Kepi. He (P.W.1),
therefore,
knew, the accused although he did not know his name i.e he
only knew him facially.

In his testimony, P.W.1 told the court that he was a
builder by trade. One day, in September 1996, he was building a house
of one
'Malefaso in the village of Lithabaneng ha Kepi. At about
1:00p.m, on the day in question, he noticed the accused, the deceased
and
Masilonyane 'Nyane passing next to where he was working. The
deceased was wearing black

13

jeans, whilst the accused and Masilonyane 'Nyane were
wearing multi coloured blankets. After they had passed next to where
he was
working, P.W.1 did not observe where the deceased, the accused
and Masilonyane went to. However, he later learned, from P. W.6, that
the deceased had passed away. He then informed her (P.W.6) that the
last time he saw her, the deceased was passing next to where
he had
been working and was in the company of the accused and Masilonyane.

52 years old Tšele Masele testified as P.W.7 and told
the court that he lived at Lithabaneng ha Kepi, in the district of
Berea. He
knew the deceased, in her life time. She lived with P.W.6,
her mother, in the same village as he did.

According to P.W.7, there was, in his village a crime
prevention unit of which he was a member. The practice was to report
the presence
of every visitor in the village to the crime prevention
unit. He remembered that some time in March 1996 Masilonyane 'Nyane
brought
the accused, and reported his presence in the village, to him
(P.W.7), as a member of the crime prevention unit. He (P.W.7),
therefore,
knew the accused.

P.W.7 went on to testify that one day in September 1996
- the exact date unknown - he was cutting down a wattle tree in the
village
when Masilonyane 'Nyane came and asked him for tobacco. It
could have been 8:00 a.m when Masilonyane came to him. He did give
Masilonyane
the tobacco which he smoked whilst they were chatting.
Eventually Masilonyane

14
left and he (P.W.7) continued with his work.

P. W.7 told the court that, at about 1:00p.m. on the day
in question, he was still at his work when he noticed a person
walking fast
towards the village of Lithabaneng ha Kepi. He was from
the direction of T.Y. town. P.W.7 watched at that person closely and
positively
identified him as the accused who was wearing a "tiger"
blanket, white gumboots and holding a timber stick (lebetlela)
in his
hand. The accused went to P. W.6's home where he stood on the
forecourt for a while before going back. Thereafter, P.W.7 noticed
the deceased emerging from a passage leading to the village spring
which was above the home of P.W.2. The deceased then went to the
accused who was standing at a pole next to the passage. According to
P.W.7, when he saw her, the deceased was wearing black jeans,
a
yellowish dress with some black spots and a green skipper. After the
deceased had come to him, the accused walked with her in the
direction towards T.Y. town. The two walked together until they were
out of his view. That was the last time P.W.7 saw the deceased
alive.

After the accused and the deceased had gone out of
P.W.7's view Masilonyane 'Nyane again came to where the latter was
working. On
arrival, Masilonyane told P.W.7 that he had information
that his visitor was in the village and asked him (P.W.7) whether he
had
not seen that visitor. When P.W.7 asked him whether he meant the
accused, Masilonyane replied in the affirmative. P.W.7 then replied
that he had seen the accused going with the deceased in the direction
towards T.Y. town. Masilonyane, who appeared

15

to be in a hurry, then left saying the accused might
have brought some messages for him from his (accused's) home. He,
therefore,
wanted to meet the accused before he could leave T.Y. town
for his home at Matsieng, in the district of Maseru. According to
P.W.7,
when he left him Masilonyane first went to his house. Shortly,
thereafter, he returned from his house, passed where he (P.W.7) had
been working and took the direction towards the centre of T.Y. town.

At about 5:00p.m. on the day in question, P.W.7 left the
place where he had been working and returned to his house for the
night.
However, at about 9:30 p.m on that day, P.W.6 came to his
house and reported that the accused had allegedly been seen going
with
her daughter (deceased) during the day. The accused was present
at the home of Masilonyane but the deceased was no where to be seen.
Following that report, P.W.7 immediately proceeded to the home of
Masilonyane. He was accompanied by P.W.6 herself and some of the
members of the crime prevention unit viz Nyane Seate, Setsibi Seseli
and Thabiso Lephema. When they approached the door of Masilonyane's
house, the lights went off in the house. Nonetheless, P.W.7 went and
knocked at the door. The lights were then put on in the house.
Masilonyane opened the door and came to where P.W.7 and his party
were standing on the forecourt, outside the house. P.W.7 introduced
himself and his party to him. He then asked Masilonyane whether he
had found the accused and the deceased after he had parted with
him,
during the day, saying he was going to look for them, in town.
Masilonyane took some time before he could answer P.W.7's question.

P.W.6 then said "Sekese (accused) is

16

present here" It was then that Masilonyane conceded
that the accused was, indeed, present and was sleeping with other
boys in
one of his (Masilonyane's) huts. P.W.7 told Masilonyane to go
and fetch the accused from the hut in which he was sleeping so that
he could disclose the whereabouts of the deceased. Masilonyane did
oblige.

When Masilonyane returned with the accused, P.W.7 asked
the latter the whereabouts of the deceased. He denied knowledge of
her whereabouts.
He further said he had, in fact, come to Lithabaneng
to fetch the deceased but had not been able to find her. When P.W.7
asked him
whether the person he had seen him going with, during the
day, was not the deceased, the accused angrily replied. "Bo-ntate,
ntate o shoele. Motho ea belaelang ka Ntšiuoa apalame le 'na ho ea
haeso Matsieng hosasa. Feela a hlokomele a khutla a se a saphele."
(Loosely translated: fathers, my father has passed away. A person who
suspects me about Ntšiuoa may go with me to my home at Matsieng,
tomorrow. He should, however, be careful that he might not come back
alive).

According to him, P.W.7 pleaded with the accused to calm
down. He did not calm down. Instead, the accused wielded his stick
and wanted
to fight. P.W.7 then left the accused alone and addressed
himself to Masilonyane. He asked Masilonyane whether he followed what
his
son (accused) was saying. When Masilonyane replied in the
affirmative, P.W.7 asked him with whom he found the accused after he
had
hurriedly parted with him (P.W.7) saying he wanted to meet him
(accused) before he could leave

17

T.Y. town and return to his home, at Matsieng.
Masilonyane's response was that when he came to the bus rank, in
town, he noticed the
accused coming towards him alone i.e. the
accused was not going with the deceased. According to him,
Masilonyane then returned to
his home, at Lithabaneng, with the
accused.

P.W.7 told the court that thereafter he directed
Masilonyane to report himself, together with the accused, at the
chief's place early
in the morning of the following day. He and
members of his crime prevention unit returned to his (P.W.7's) home.
P. W.6 also went
to her home. In the morning of the following day,
P.W.7 waited outside his home to see if Masilonyane and the accused
would go to
the chiefs place, as he had directed them to do on the
previous night. To his observation they did not do so. Eventually,
P.W.7 had
to go to Masilonyane's home from where he personally
escorted him and the accused to the Chief's place. When they were
asked the
whereabouts of the deceased, the accused said that question
should be directed to Masilonyane who, in turn, said it should be
directed
to the accused. Eventually the chief wrote a letter which
P.W.7 took, to T.Y. police station, together with Masilonyane and the
accused.
After they had been questioned by the police, Masilonyane
and the accused were released to go home. They both went to
Masilonyane's
home, in the village of Lithabaneng ha Kepi.

According to him, P.W.7 specifically told Masilonyane to
see to it that his son (accused) did not leave the village and return
to
his home, at Matsieng, before the whereabouts of the deceased
could be established. He

18

(P.W.7) and members of his crime prevention unit started
mounting the search for the whereabout of the deceased. They looked
for her
in the village of Lithabaneng ha Kepi and its surroundings,
but all in vain. However, two days after he had told Masilonyane to
see
to it that the accused did not leave the village and return to
his home, at Matsieng, until the whereabouts of the deceased had been
established, P.W.7 learned that Masilonyane and the accused had
disappeared from the village of Lithabaneng ha Kepi. He immediately
proceeded to the home of Masilonyane and enquired, from his wife, the
whereabouts of her husband. The reply he received was that
he had
gone to Matsieng, together with the accused.

According to him, P.W.7 and members of his crime
prevention unit continued with the search for the deceased. They
eventually found
her corpse. It was placed in a cave at the cliffs on
a mountain behind the village of Lithabaneng ha Kepi. In his
evidence, P.W.7
told the court that he and his men had, during the
search, already passed the spot where the deceased's corpse was later
found. It
was definitely not there. In any event, when it was found,
P.W.7 observed that the corpse appeared to have just been placed in
the
cave. The two breasts had been cut off, as well as the head which
had been skinned and left lying on the side of the corpse. Although
there was some flesh, from the knees downwards, the rest of the body
were just bones.

It is significant to observe that P.W.7 was the only
witness who testified that the deceased's breasts had been cut off.
If P.W.7
were, indeed, testifying to the truth, in that regard, one
would have expected P.W.9 and exh. "A" to have mentioned
it.
However, neither P.W.9 nor exh. "A" did so.

19

Be that as it may, P.W.7 went on to tell the court that
he identified the corpse as being that of the deceased by the clothes
she
had been wearing when he last saw her still alive i.e on the day
he saw her going with the accused. According to P.W.7 those clothes
had been folded up in a bundle and placed next to a "lelothoane"
bush at the cliffs where the corpse was found. Again,
that was denied
by P.W.9 who told the court that the deceased's corpse was still
wearing its clothes where it was found. However,
he could not undress
and examine it for injuries because in trying to do so, the flesh
which had stuck to the clothes was removing
with the clothes.

P.W.7 told the court that after he and members of his
crime prevention unit had found the corpse of the deceased, they
raised an alarm.
He himself actually went to report the finding to
the chief and the police. As a result, many villagers, the chief and
the police
came to the spot where the corpse of the deceased had been
found. However, Masilonyane 'Nyane was not amongst the people who had
gathered there. If he were there, P.W.7 would have noticed
Masilonyane amongst those people.

According to P.W.7, the bundle of the deceased's clothes
was taken possession of by the police. He was not in a position to
know what
the police did with the clothes. The corpse itself was
carried from the cave at the cliffs to the village. From the village
it was
again taken, in a police vehicle, to the mortuary of T.Y.
government hospital. P.W.7 told the court that he was not present at
the
mortuary when the post mortem examination was performed on the
corpse of the deceased.

20

In his evidence, P.W.7 testified that after the corpse
of the deceased had been transported to the mortuary, he escorted
Masilonyane
to T.Y. police station where he was detained. He
confirmed the evidence of P.W.9 that the police then went to the
accused's home
from where he (accused) was brought, under arrest, to
T.Y. police station.

It is to be remembered that, in his evidence, P.W.7 told
the court that about two days after the disappearance of the deceased
he
learned that Masilonyane and the accused had gone to the latter's
home, at Matsieng. How and when Masilonyane returned to his home
village of Lithabaneng ha Kepi from where P.W.7 escorted him to T.Y.
police station after the deceased's corpse had been transported
to
the mortuary of T.Y. government hospital, was not clear from his
(P.W.7) evidence.

18 years old Moliehi Seboka testified as P.W.5 and told
the court that P.W.6 was her own mother with whom she lived at
Lithabaneng
ha Kepi, in the district of Berea. She knew the late
Ntšiuoa 'Nyane (deceased) who was her elder sister. She also knew
the accused
who was the son of her maternal uncle and, therefore, her
cousin. She knew the late Masilonyane 'Nyane, in his life time. He
was
her maternal uncle.

P.W.5 testified that one morning in September 1996 - the
exact date unknown - she left the deceased at home and went to
school. When
she left her at home, on that morning, the deceased was
wearing a pair of black jeans, a green bottle neck skipper, a brown
dress,
a pair of maroon shoes and a

21

white rosary. On her return from school, in the
afternoon of the same day, P.W.5 did not find the deceased at home.
She was told by
'Mathuso, her younger sister, that the deceased had
left home in the company of the accused. 'Mathuso was, however, not
called as
a witness to testify, in this trial. Later on that day,
P.W.5 learned from P.W.6, her mother, that the deceased had
disappeared from
home and a search was being carried out for her
whereabouts.

According to P.W.5, at about 6p.m on the day in
question, she saw the accused at Masilonyane's home which was not far
from her parental
home. In fact, the sites of her parental home and
that of Masilonyane were separated just by a fence. P.W.5 told the
court that she
was not seeing the accused for the first time on the
evening of that day. Some time back the accused and his mother had
visited Lithabaneng
ha Kepi and were both staying at her own parental
home. She had, therefore, no difficulty in identifying the accused on
the evening
of the day she saw him at the home of Masilonyane.

In her testimony, P.W.5 went on to tell the court that
following her disappearance from home and in the course of the search
for her
whereabouts, she learned that the deceased had been found
dead. However, she herself was not present when the dead body of her
elder
sister (deceased) was found. Even during her funeral which was
held at her home, P.W.5 was not afforded the opportunity to see the
corpse of the deceased, as it is the practice according to the
Sesotho custom, presumably because she (P.W.5) was still

22

too young, at the time, or, as exh. "A" has
indicted, the corpse was decomposed and mummified beyond recognition.

P.W.5 further testified that one morning, after the
deceased had been buried, she was getting ready to go to school
whilst her late
maternal uncle, Masilonyane, was dismantling a shack
which had been erected with corrugated iron sheets outside her
parental home,
presumably on the occasion of the deceased's funeral
service. As she was brushing her teeth in front of her house P.W.5
noticed Masilonyane
throwing something behind the house. After doing
so, Masilonyane immediately peeped at P.W.5 who was still in front of
the house.
That arose the suspicion of P.W.5.

After Masilonyane had left her home and returned to his
home, P.W.5 quickly went behind the house. She wanted to find out
what it
was that Masilonyane had thrown behind the house. When she
looked around, P.W.5 noticed a white rosary. It was broken and some
of
its beats were scattered about. According to P.W.5, there were,
besides the broken rosary, other articles e.g. stones and pieces
of
wood. As it had been raining on the previous night, the other
articles were wet. The broken rosary was, however, quite dry. P.W.5
assumed, therefore, that the broken white rosary was the article that
Masilonyane had just thrown behind the house. On examining
the
rosary, P.W.5 noticed that some of its beats had red stains which
looked like blood or rust. According to her, P.W.5 did not
know that
rosary. She, however, took possession thereof and kept it in the
house so that she could show it to P.W.6 who was not at
home, at the
time. She had gone elsewhere

23 for the removal of a mourning cloth.

P.W.5 told the court that in her family the deceased was
the only child who used a rosary. She, in fact, had two rosaries viz.
the
white one she had been wearing on the day she disappeared from
home and a brown one which was still at home. The rest of the
children,
in the family, were using the miraculous medals of the
Blessed Virgin Mary. When P.W.6 eventually returned home, P.W.5
explained
to her about the broken rosary which she handed to her.
P.W.6 said nothing to P.W.5 when the latter handed the broken rosary
to her.
She merely took her (P.W.5) to the police at T.Y. Police
station, together with the broken rosary. It was not clear from the
evidence
of P.W.5 if the police, at T.Y. police station, asked her
any questions about the broken rosary.

Now, returning to her evidence, P.W.6 testified that one
morning, in September 1996, she left home and went to the mountain to
get
some wild vegetables. It could have been two months after the
accused had promised to come and fetch the deceased. According to
P.W.6,
when she returned home from the mountain, the deceased was not
at home. She (P.W.6) was informed by Masilonyane's son, called Tefo,
that the accused had come to fetch the deceased. P.W.6 was in the
company of another lady by the name of Anna when Tefo told her
that
the accused had gone away with the deceased. In her evidence, P.W.6
told the court that she was surprised that the accused had
gone away
with the deceased who was not wearing clean clothes on the day in
question. When she (P.W.6) last saw her, in the

24

morning of that day, the deceased was wearing brown
sandals, a pair of black jeans, a green skipper with long sleeves, a
white rosary
and a yellowish dress with black spots. The dress was
muddy and, therefore, dirty as the deceased had put it on whilst
redecorating
the house with mud on the previous day.

In any way, P.W.6 told the court that, after Tefo had
informed her that the deceased had gone away with the accused, she
decided to
go and buy tobacco at the shops in T.Y. town. She was
still in the company of Anna. On their way to town, P.W.6 asked
P.W.1, who
was working next to the road, whether he had not seen the
deceased. In reply P.W. 1 told her that he had seen the deceased and
the
accused going in the direction towards T.Y. town. Thereafter,
P.W.6 continued on her way to the shops, in town, bought the tobacco
and returned home. On her way back home, she called at a certain
house from where she noticed Masilonyane and the accused walking
together in the direction towards T.Y. town. According to P.W.6, the
accused was wearing a "tiger" blanket, a brown balaclava
hat, white gumboots and holding a "lebetlela" (timber)
stick. When she asked them where they were going to, Masilonyane
told
P.W.6 that he was going to show the accused where his wife was
working, in town. He told P.W.6 to wait for them where she was
as
they would soon return from town. According to her P.W.6 did sit down
and waited for the accused and Masilonyane to return from
town.

Eventually Masilonyane and the accused did return from
town. When they arrived where she had been waiting for them,
Masilonyane first
bought a scale of beer from the house next to which
she was seated and drank it.

25

Thereafter, P.W.6, the accused and Masilonyane walked
together to the village of Lithabaneng ha Kepi. They went to P.W.6's
home where
the accused asked her something which had to do with the
Sesotho custom. She no longer remembered what it was. According to
her,
P.W.6 did not reply to the accused's question. Instead, she
asked him the whereabouts of the deceased who, she learned, had left
home with him, during the day. The accused told P.W.6 that he had not
even seen the deceased on that day. In fact he had come to
Lithabaneng ha Kepi to fetch her. Masilonyane was also quick to tell
P.W.6 to leave the accused alone because, at the time she saw
them
going to town, the latter had just arrived in the village.

When she heard the accused denying knowledge of the
deceased's whereabouts, P.W.6 left him and Masilonyane at her home
and went to
fetch Tefo. In the presence of the accused and
Masilonyane P.W.6 told Tefo that the former was denying to have been
with the deceased
during that day. In reply Tefo said if the accused
was then denying it, he did not know what to say. Tefo then left
P.W.6's home
and returned to his home. P.W.6 told the accused that,
since Tefo had told her that he had seen him going away with the
deceased,
he (accused) and Tefo would have to produce her (deceased).
Thereafter, Masilonyane said to the accused: "let us go because
you know nothing about that child (deceased)." They then left
P.W.6's home and went to the home of Masilonyane. It was then
at
dusk.

Again, Tefo was not called to testify as a witness, in
this trial. What he was alleged to have said, was not of assistance
to the
court.

26

After the accused and Masilonyane had left her home,
P.W.6 proceeded to the home of P.W.2 who was a personal friend of the
deceased.
When she asked her about the deceased, P.W.2 told P.W.6
what she had already said before this court. P.W.6 then returned to
Masilonyane
whom she found in his house in the company of his wife
and their son, called Khosi. When she reported to him that P.W.2 also
confirmed
that the accused had been with the deceased, during the
day, Masilonyane told P.W.6 to stop causing troubles because that
child (deceased)
would appear from Makau's place. However, when P.W.6
asked him what he meant by that, Masilonyane kept quiet. Instead, it
was Masilonyane's
wife who replied and said Masilonyane was correct
in saying the deceased would appear from Makau's place because there
were many
boys there during the day. When P.W.6 asked her what she
meant by that, Masilonyane's wife replied that she said so because
the deceased
was in the habit of going to the home of Makau.
Masilonyane's son, Khosi, also replied and said the boys who were at
Makau's place
during the day were the ones who had taken away the
deceased because they were boys from the mountain, presumably from
the circumcision
school.

Khosi was, again, not called to testify as a witness, in
this trial. What he allegedly said was, therefore, of no assistance
to the
court.

According to P.W.6, there were two people by the name of
Makau, in the village. From Masilonyane's place, she proceeded to the
home
of Makau, who was her next door neighbour, and found him in,
when she reported to him what Masilonyane had said, Makau was
surprised
as to why Masilonyane

27

could have said the deceased would appear from his home.
He did not even know that the deceased had gone missing from her
home, on
the day in question.

From Makau's home, P.W.6 proceeded to the chief's place
and reported the disappearance of the deceased. The chief instructed
her to
go and report the matter to members of the crime prevention
unit, in the village. She complied by going and reporting the
disappearance
of the deceased to P.W.7 and some of the crime
prevention unit members viz. Setsibi Seseli and 'Nyane whose surname
she did not know.
The evidence of P.W.6 corroborated, in material
respects, that of P.W.7 as to what happened after she had reported
the disappearance
of the deceased to him and the other members of the
crime prevention unit.

In her evidence, P.W.6 told the court that whilst the
search for the whereabouts of the deceased was being carried out by
members
of the crime prevention unit, she too was looking for her
missing child (deceased). She called at the homes of all the people
she
knew the deceased used to visit in the village and even reported
the matter to the police, but all in vain. Eventually she learned
that her daughter (deceased) had been found dead at the cliffs of a
mountain behind the village of Lithabaneng ha Kepi. She herself
was
not present when the dead body of the deceased was allegedly found at
the cliffs. Even at the mortuary she was prevented by the
mortuary
people from seeing the dead body of the deceased. She was not allowed
to see the corpse of the deceased when it was brought
home for the
burial. According to P.W.6 she was only told that some of the
clothes, the deceased

28

had been wearing, on the day she last saw her alive, had
been buried with her whilst others were in the possession of the
police at
T.Y. police station, presumably exh."1" and the
sandals.

P.W.6 confirmed the evidence that one day after the
deceased had been buried she returned home, from where she had gone
to remove
a mourning cloth, when P.W.5 handed to her a white broken
rosary with the explanation that she had taken it behind her house
where
Masilonyane had thrown it away. P.W.6 told the court that she
did not know that rosary which definitely did not belong to her late
daughter, the deceased. She confirmed, however, that she subsequently
took the rosary to T.Y. police station, together with P.W.5.
Her
reason, therefor, was merely to enable the police to interrogate
Masilonyane about the rosary which he had allegedly thrown behind
her
house.

The evidence of P.W.8, 'Majulia Makau, was that she was
36 years old married woman. She lived at Lithabaneng ha Kepi, in the
district
of Berea. She knew the accused and P.W.6 who was her
neighbour. She had a daughter who was a friend of the deceased. Her
daughter
and the deceased often visited each other. She, therefore,
knew the deceased very well, in her life time.

P.W.8 recalled that, one day in September 1996 at about
6:00p.m. she learned from P. W.6 that the deceased had gone missing
from her
home. She assured the court that she had not, on the day in
question, seen the deceased

29

at her home or, for that matter, anywhere else. However,
on the evening of the day preceding the one on which P.W.6 reported
the disappearance
of her daughter, P.W.8 had seen the deceased at her
home. The deceased, who was wearing a pair of black jeans and a green
skipper,
was, as usual, visiting her daughter. The two were sitting
and chatting together, within her yard. That was the last time P.W.8
saw
the deceased alive.

P.W.8 went on to testify that one Saturday, in October
1996, she was walking along the tarred public road that passed
through her
home village when she heard an alarm being raised. As a
result of the alarm she proceeded to the cliffs behind the village.
On arrival
at the cliffs, P.W.8 found a large crowd of people already
gathered around what appeared to be a human skeleton. She and many
other
people were not allowed to go close to that skeleton. They
crowded on top of the rocks from where she (P.W.8) could only have a
glance
at the skeleton. To her observation the skull was lying
separate from the main skeleton. A dress and a skipper were placed on
the
skeleton just to cover it. i.e the skeleton was not wearing those
clothes. There was also a pair of brown sandals next to the skeleton.
According to her, P.W.8 identified the dress, the skipper and the
pair of sandals as the property of the deceased. She assumed,
therefore,
that the human skeleton she saw at the cliffs behind her
home village was that of the deceased (Ntšiuoa).

P.W.8 told the court that on the Monday following the
Saturday on which the skeleton of the deceased had been found, at the
cliffs
behind her village, she accompanied P.W.6 to T.Y. police
station where the latter had

30

been required to report herself. Initially P.W.8 told
the court that she herself did not make a statement at the police
station. Only
P.W.6 did. However, when she was shown a document which
had her signature on it, P.W.8 conceded that the document was the
statement
she had made at the police station, on the Monday in
question.

In his defence the accused testified, from the witness
box, as D.W.1 and told the court that he lived at Likotopong ha
Andreas, in
the district of Maseru. The deceased was the daughter of
P.W.6 who was his paternal aunt. He, therefore, knew the deceased, in
her
life time.

D.W.1 confirmed the evidence that, one day in 1996, he
and his mother left their home and went to the village of Lithabaneng
ha Kepi
at T.Y. in the district of Berea. According to D.W. 1 they
did so at the request of his paternal uncle, Masilonyane. He denied,
therefore,
the evidence of P.W.6 that it was at the request of the
chief of Lithabaneng ha Kepi. According to him, on arrival at
Lithabaneng
D.W.1 and his mother went to the home of Masilonyane and
not to the home of P.W.6 as she (P.W.6) had claimed.

In any event D.W. 1 confirmed that, after he and his
mother had come to Lithabaneng, a family meeting was held. He and the
deceased
were confronted about the pregnancy of the latter. D.W.1
confirmed that at the meeting the deceased claimed to have been made
pregnant
by him. He admitted that he was, indeed, the person
responsible for the pregnancy of the deceased whom he was prepared to
take as
a wife. The meeting agreed that

31

the deceased and D.W.1 should get married to each other.
As D.W.1 mother claimed to have no money, at the time, they could not
return
home with the deceased. It was, however, agreed that D. W. 1
would come to fetch the deceased when money was available.

It is to be remembered, that, in the evidence of P.W.6,
about three (3) months after she had left the deceased at Likotopong
and returned
to Lithabaneng ha Kepi, D.W.1's mother brought her home.
The deceased was then pregnant. D.W.1 mother reported to P.W.6 that
her
daughter (deceased) had been made pregnant by some unnamed
village men whilst the deceased said it was the accused who was
responsible
for her pregnancy. When D.W.1 mother returned home, there
was, therefore, unresolved dispute between her and P.W.6 about who
had
made the deceased pregnant. According to her, P.W.6 had to ask
for help from her chief who intervened by writing a letter to the
chief of Likotopong requesting him to send his subjects viz. D.W.1
and his mother back to Lithabaneng so that the unresolved dispute
about the pregnancy of the deceased could be resolved by the two
families.

If it were Masilonyane who had sent for D.W.1's mother
to return to Lithabaneng, together with D.W.1, as he (D.W.1) wished
the court
to believe, I find it incredible that P.W.6 could have
deceived the court by saying it was through the intervention of her
chief
and not Masilonyane, who was admittedly her own brother, that
D.W.1 mother returned to Lithabaneng, together with D.W.1 himself,
to
have the unresolved dispute

32

about the pregnancy of the deceased settled by a family
meeting. I am inclined to accept as the truth the evidence of P.W.6
and reject
as false D.W.1 version, on this point.

Be that as it may, D.W.1 went on to tell the court that
one day, in September 1996, he left his home, at Likotopong, and went
to Lithabaneng
ha Kepi, intending to abduct the deceased. He arrived
at Lithabaneng ha Kepi at about 2:30p.m and went straight to the home
of his
paternal uncle, Masilonyane. He found him in. He conceded that
he was wearing a "tiger" blanket and white gumboots on that
day. From the home of Masilonyane's place he could see that there
were no people at P.W.6's home which was nearby. The two homes
were
separated just by a fence. After a while he and Masilonyane left for
T.Y. town where the latter wanted to show him the work
place of his
wife. On their way to T.Y. town they did not meet anybody known to
him (D.W.1). They eventually reached the place where
the wife of
Masilonyane was working, in town. They remained with her till she
knocked off duty. They then returned with her to Masilonyane's
home
in the village of Lithabaneng. Again, on their way to Masilonyane's
home they did not meet anybody known to D.W.1.

D.W.1 told the court that, whilst he was with
Masilonyane, his wife and their children at their home, P.W.6 came
and asked him the
whereabouts of the deceased. She said the deceased
had allegedly been seen with a young man whom she thought was him
(D.W. 1). In
reply D.W. 1 told P.W.6 that he did not know the
whereabouts of the deceased. He had not seen the deceased

33

on that day and could not, therefore, have been the
young man allegedly seen with her. He had, in fact, come to fetch the
deceased.
Thereafter, P.W.6 left Masilonyane's home. However, later
on the night of the same day, Masilonyane came and knocked at the
door
of the house in which he (D.W. 1) and Tefo were sleeping.
Masilonyane told him that there were some people outside the house.
They
were in the company of P.W.6. According to P.W.6 the deceased
had disappeared from her home after she had allegedly been seen going
with him during the day. He (D.W. 1) should, therefore, wake up and
go with him (Masilonyane) to those people. D.W.1 complied. On
arrival
where they were waiting outside the house, one of those people asked
Masilonyane whether he (D.W.1) was the one. When Masilonyane
replied
in the affirmative, those people started asking him (D.W.1) the
whereabouts of the deceased with whom he had allegedly been
going,
during the day. He told them he had never been with the deceased
during the day and did not, therefore, know her whereabouts.
Eventually those people and P.W.6, who had been with them all the
time, left Masilonyane's place. Thereafter, D.W. 1 returned to
the
house in which he had been sleeping.

It is significant to observe that the evidence of P.W.1
that he had seen the deceased going in the company of D.W.1 was
corroborated
by that of P.W.2, P.W.3, P.W.4 and P.W.7.
Notwithstanding D.W.1 denial that he was seen going in the company of
the deceased, on
the day in question, the evidence is simply
overwhelming against him. There is not the slightest

34

doubt in my mind that D.W.1 was not being honest with
the court in his denial that he was seen going with the deceased, on
the day
in question. I am prepared, therefore, to accept as the truth
the evidence of P. W. 1 corroborated by P.W.2, P.W.3, P.W.4 and P.W.7
and reject as false the uncorroborated version of D.W.1, on this
point.

Continuing with his evidence, D.W.1 admitted that, in
the morning of the following day, he and Masilonyane were escorted to
the chief's
place. He denied, however, that P.W.7 was the person who
escorted them to the Chief's place. At the chief's place, he and
Masilonyane
were again asked the whereabouts of the deceased. When
they denied knowledge of it, Masilonyane was released to return to
his home.
He (D.W.1) himself was escorted, by a group of men, to T.Y.
police station, where he was detained for the night.

D.W.1 and Masilonyane were both suspects, at the time. I
find it incredible that only D. W. 1 could have been escorted to the
police
station. In my view, the evidence of P.W.7 that he escorted
both D.W.1 and Masilonyane to the police station is more probable
than
D. W. 1 's story that he alone was escorted to the police
station.

Be that as it may D. W. 1 told the court that on the
following day he was released on the ground that there was no charge
to be preferred
against him. Upon his release, from T.Y. police
station, D.W.1 went to Masilonyane's home and reported that he was
returning to his
home at Likotopong.

35

Masilonyane then offered to accompany him to Likotopong,
so that he could explain to his (D.W.1) mother, what disappointment
he had
received at Lithabaneng ha Kepi. D.W.1 accordingly returned
home, accompanied by Masilonyane.

In any event, D. W. 1 told the court that about two (2)
weeks after he had returned home from Lithabaneng, he abducted, and
got married
to a girl called Moliehi with whom they subsequently got
two (2) children. According to D.W.1, he was in love with the
deceased at
the same time that he was in love with Moliehi. When he
learned, presumably from P.W.6, that the deceased had allegedly been
going
with a certain young man on the day she went missing from her
home, D.W.1 assumed that the deceased had eloped with that young man.
He, therefore, decided to take Moliehi as his wife. However, after he
and Moliehe had got married, D.W.1 only heard over the radio
that the
deceased had been found dead.

D.W.1 went on to testify that about one month after he
had returned home, in the company of Masilonyane, the police came to
his home
at Likotopong. They did not find him. However, they left a
message that on his arrival at home he should report himself at
Simione
police post. On his return home, later on the day on which
the police had been looking for him, D.W.1 did receive, from his
mother,
the message. Early in the morning of the following day, he
accordingly went and reported himself at Simione police post. He was
detained
by the police. Later on the same day, the police from T.Y.
police station arrived, in a police vehicle. They took him back to

36

T.Y.
police station, in the district of Berea.

On arrival at T.Y. police station, D.W. 1 found
Masilonyane already in police detention. As it has been stated,
earlier in the judgment,
it was not clear, from the evidence of
D.W.1, when Masilonyane had returned to his home, Lithabaneng, from
Likotopong. In any event
D.W. 1 told the court that he was confronted
with Masilonyane in whose presence he (D.W.1) was again asked the
whereabouts of the
deceased. When he denied knowledge of the
whereabouts of the deceased, the police informed D.W.1 that
Masilonyane had already told
them that he and him (D.W.1) had killed
the deceased. He denied it. The police then started beating him up
with a black object he
could not describe. As they were beating him
up, the police said he should admit that he and Masilonyane had
killed the deceased.
To save his skin, D.W.1 eventually admitted that
he and Masilonyane had killed the deceased. They were then asked
whether they could
go with the police and point out the spot where
they had killed the deceased. According to him, D.W.1 told the police
that he could
not take the police to that place because he did not
know it. However, Masilonyane said he could take the police to the
place where
he would point out the spot. D.W.1 and Masilonyane were
then locked up in the cell together with some other people he (D.W.
1) did
not know. On the following day, Masilonyane did take the
police and him (D.W.1) to some cliffs where he pointed out the spot
he said
was the one at which the deceased was killed. According to
D.W.1, that was not in a cave. It was an open place where there was
grass.
He observed that the spot was fatty indicating that a dead
body could have been left there for some time.

37

From the cliffs D.W.1, Masilonyane and the police,
returned to the police station. Masilonyane and D.W.1 were told that
they would
be taken to the Magistrate court, to repeat before the
Magistrate the statements they had already made to the police about
the death
of the deceased. According to him, D. W. 1 was taken into
the office of a lady Magistrate before whom he made a statement. He
did
not know what had happened to that statement.

It is significant to mention that, at this trial, no
confession, allegedly made by D.W. 1, was handed in as an exhibit. It
can, therefore,
be assumed that the statement, D.W.1 allegedly made
before the magistrate, was found to amount to no confession.

Be that as it may, D.W.1 told the court that from the
office of the lady Magistrate, he was taken into the court room from
where another
Magistrate remanded him into custody. He was taken to
prison but later released on bail.

In his evidence, D.W.1 told the court that he had
sustained weals on his body, as a result of the assault which had
been perpetrated
on him by the police, at T.Y. police station. He did
not, however, report the matter to any of the senior police officers
because
he did not know who of the police officers he saw, at T.Y.
police station, was senior or junior. To him they all appeared to be
the
same. However, the prison officer who received him at the prison,
did ask him whether or not he had any injuries on him. In reply
D.W.1
told him that he had been assaulted by T.Y. police officers and
sustained injuries, as a result. He was then told to remove
the
clothes he had

38

been wearing so that the prison officer could see if he
had, indeed, injuries on him. According to him, D.W.1 did remove the
clothes
he had been
wearing and the prison officer saw the weals
on his body. Nonetheless, the
prison officer accepted him into
prison without saying he (D.W.1) should
first be sent to a doctor
for medical examination. Again, after he had been
released on
bail, D.W.1 did not go to see a doctor for medical examination
and
treatment because his injuries had completely healed.

I must say it is a well known practice in our prisons
that before a person who is remanded into custody can be received at
the prison,
the prison officers satisfy themselves that such person
has not sustained injuries, as a result of unlawful assaults on him.
If it
is found that the person has sustained injuries, as a result of
unlawful assault, perpetrated on him outside the prison, the prison
officer does not receive such person. Instead he requires that such
person be first sent to a doctor for medical examination. If
it were
true, therefore, that when he came to prison , D.W.1 was found to
have sustained injuries, as a result of the assault perpetrated
on
him outside the prison, the prison officer would have demanded that
he should be taken to a doctor for medical examination, before
he
could accept him into prison.

In his own mouth D.W. 1 told the court that on arrival
at the prison he was examined and found to have sustained injuries by
the prison
officer who received him. He was, however, received into
prison without first being sent to see a doctor for medical
examination.
I can think of no good reasons why D.W.1 would have been
given a treatment which was quite different

39

from the normal practice if, indeed, he had injuries on
him, on arrival at the prison. In my view, D.W.1 was simply not being
honest
with the court in his evidence that he had been assaulted and
had sustained injuries on him on arrival at the prison.

Considering the evidence as a whole, I find that the
deceased did go missing from her home on the day he was seen going
with the accused,
in September 1996. There is, however, no conclusion
evidence that the dead body, on which the medical doctor conducted
the post mortem
examination after it had been found at the cliffs,
was that of the deceased. The clothes by which the dead body was
allegedly identified
as that of the deceased were not handed in as
exhibits, in this trial. Neither the chief nor the people he was
allegedly heard saying
they identified the clothes as the property of
the deceased were not called to testified as witnesses, in this
trial. P.W.8 who also
told the court that he identified the clothes
as belonging to the deceased and, therefore, assumed that the dead
body, found at the
cliffs, was that of the deceased, testified that
she had only a glance at them and the dead body. In her evidence, she
could not
have a clear vision as she was standing amongst a large
crowd of people and they were all not allowed to go close to where
the dead
body and the clothes were.

According to exh. "A" the medical doctor
performed a post-mortem examination on a dead body which was
mummified and decomposed
beyond recognition. Notwithstanding that,
the dead body was identified as being that of the deceased by P.W.9
who, however, gave
evidence and told the court,

40

on oath, that he never identified the dead body as being
that of the deceased. Indeed, he told the court that he did not even
attend
the post-mortem examination. P.W.6, the deceased's own mother,
who could perhaps, have given some light as to the identification
of
the dead body as being that of her own daughter, told the court that
she was never, at any time, allowed to see the dead body
that had
allegedly been found at the cliffs, subsequently examined by the
medical doctor at the mortuary of T.Y. government hospital
and buried
at her home.

Even if I were wrong and it is held that the dead body
found at the cliffs and subsequently examined by the medical doctor,
at the
mortuary, was that of the deceased, there was only
circumstantial evidence that the accused was the person who had
killed her simply
because, on the day she admittedly disappeared from
her home, the deceased was seen walking with the accused. From the
fact that
he had been seen in her company, the only inference to be
drawn could not, in my view, be that the accused killed the deceased.
The
possibility that her death might have come about by some other
ways could not be ruled out. However, the accused could have thought
that, because the deceased had died in a mysterious way, if he
admitted to have been in her company, on the day in question, it
would
be inferred that he was responsible for her death.

By and large, I have serious doubts that, on the
evidence adduced before this court, it can safely be said it has been
proved, beyond
reasonable doubt, that the accused committed the
offence against which he stands

41

charged. In our law, the benefit of such doubt must
always be given to the accused person. I accordingly give the accused
the benefit
of my doubt, find him not guilty and discharged.

My Assessor agrees with this finding.

B.K. MOLAI JUDGE

For Crown; Miss Makoko For Defence; Mr.
Molefi