CRI/T/52/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

1.
KHOKOANE MANAMOLELA

2.
NKEMESE TSIKA

3.
KUTOANE MOTSOENE 4. MELI MOTLOMELO

5.
MPINANE MOHALE

6.
MATHABO TSIKA

7.
RETSELISITSOE MATSOSO

8. MOJARI
MANAMOLELA

9.
NKANANA KAO

10.
QHEBIANE SEBOLELO

11.
MANKUTLE KAO

12.
KOPANO MAQOMA,

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 29th day of
April 1982

Twelve
accused persons were originally indicted before me on a charge of
murdering Jimisi Seroke (the deceased) at or near Tsoelike
in the
district of Qacha's Nek on or about the 25th December 1980.

During
the trial the Crown discontinued the proceedings against accused 10
(Qhebiane) 11 ( Mankutle) and 12 (Kopano) and they were
accordingly
acquitted and discharged. The trial proceeded against the remaining
nine accused.

It is
common cause that at sunrise on Xmas morning 25th December 1980 the
deceased set off from his parental home at Hill Top village
with his
younger brother Likotsi to take animals to graze in the veld down
some cliffs below the village. He wore a white overall,
a hat, and
soft shoes and carried a stick. He had other clothes under his
overall. His watch was on him. Likotsi's evidence as
it appeared on
the Preparatory Examination record was admitted by the defence (in
terms of s.273 of the Criminal Procedure and
Evidence At 1981) and he
was not called to testify.The deceased and Likotsi letft the

2

animals
to graze and returned to Hill Top. They appeared to have had a drink
at the house of Mapuleng Mokone (PW9). Deceased and
his brother
Likotsi parted the latter saying he was going home and the deceased
saying he was going to his grandmother Mantsoele's
house. Mantsoele,
whose evidence at the Preparatory Examination was also admitted by
the defence, confirmed that the deceased passed
by her house around 9
or 10 a.m. accompanied by one Korote Jase. Present in her house,
amongst others, was Nkemese Tsika(A2), She
gave the deceased and his
companion food and they left.

It is
also common cause that the deceased was seen at the shop of Khokoane
Manamolela (Al) at Hill Top, Al gave the deceased a large
(750 ml)
bottle of brandy. It was open, not sealed, and was not full. It so
happened that deceased's other younger brother Mosala(PW
10) was
hanging around Al's shop by the Fridge when the deceased arrived. Al
was behind the counter and a man called Taole was
seated on a chair
in the public section. Mosala saw the bottle xn deceased's hand but
he did not know if it was a gift or whether
deceased bought it,
though he thought it was the latter. Deceased put it in his overall
and left.

Mateboho
Makhobeng (PW8) says that on that Xmas day she had children at her
home at Hill Top and wanted to take them back to their
own home at
Thoteng an adjoining village. She accompanied them to the outskirts
of the village crossing the Mothabisa stream, but
on her way back
home, alone, to Hill Top, whilst crossing the stream, she saw the
deceased sleeping not far away from her path
above a well known by
the same name. She is seen pointing the spot in Exhibit B photo 4.
The red arrow is probably the "well"
seen better in Exhibit
B photo 5. This well is man made and shallow. Mateboho says she went
to

3

rouse the
deceased. He had rolled his overalls from the bottom showing his
trousers. His stick and hat were nearby. He had a wound,
described as
a scratch, bleeding slightly, on the head. The deceased woke up and
told Mateboho to leave him alone. He spoke in
a drunken manner. The
deceased was known to some to be a heavy drinker though not to the
extent of lying prostrate. He went back
to sleep. Mateboho says she
reported this to other women on her return home. The distance between
the stream and Al's shop/cafe
is put at 500 meters on the map Exhibit
Cl. Al says the distance is as from the Court room to Husteds
chemists.

That same
afternoon a hail and rain storm broke up at Hill Top. It was heavy.
We do not know from the Crown witnesses when it started
and how long
it lasted except from Al who says it started at 2.15 p.m. and ended
at 3.05 P.m.

The
deceased was not in the habit of sleeping out and on the following
morning boxing day the 26th December 1980 the deceased's
father
Molefi Seroke (PW5) discovered that his son had not slept at home. He
made enquiries from the family and then informed the
chief's
representative or bugle one Caswell Mokhifa of Hill Top. Mokhifa did
not give evidence, but according to the deceased's
father Molefi, he
requested Mokhifa to notify the chief, Kutoane Motsoene (A3) who
lived at Ha Rankakala. A3 did not come on Friday
but a small search
party was organised by Mokhifa on the same day after the sun got hot.
Since the search party had nothing to
go on except Mateboho's
information; the search was confined to the area where deceased was
last seen, i.e. around the Mothabisa
well and stream. In the process
the shallow well above which deceased had been seen sleeping was
dragged but nothing was found.
There may or may not have been a
public search on Saturday 27th and A3 having made no appearance on
either Friday or Saturday morning
Molefi proceeded to Ha Rankakala in
the afternoon and personally informed A3 requesting help for more
men. A3 allegedly told Molefi
that his(A3's) father Nite had informed
him the previous evening of the disappearance of deceased at Hill
Top. A3 denies saying
anything of the sort, but says he told
deceased's father Molefi (and gave him a note) to tell Mokhifa to
organise a search party
for the following day Sunday the 28th
December. Mokhifa apparently did not gather many men.

4

A3 did
arrive with about 6 persons on Sunday. They searched the same area
down to the confluence of the Mothabisa stream with the
Tsoelike
river. Molefi says or implies it was cursory and not a thorough
search. A3 says on the other hand that the day was hot,
the men got
tired and wanted to eat, and the search was given up.

Molefi,
Mokhifa and otner searchers were acting on the theory that the
deceased may have drowned. There was, it should be remembered,
a rain
storm on Xmas day afternoon, but the evidence is abundant (including
evidence from A3) that the Mothabisa stream has little
and sometimes
no water and that the rain or hail storm did not prevent people
crossing it. In fact it was crossed, shortly after
the storm, by a
number of people. It was not known as being ever uncrossable, but the
deceased was seen drunk and asleep and thus
caught, he may have
drowned and drifted downwards. Molefi deceased's father says he went
to A3 again on the evening of Sunday and
expressed to A3 his concern
and his desire to see the search widened. It seems that it was on
this day that A3 said he will pass
instructions to the chiefs on the
Tsoelike river to keep a look out. In other words A3 at this stage
gave the impression that he
too believed deceased had drowned. There
was no public search (apart from Seroke family members) on Monday the
29th or indeed subsequently.

On
Tuesday 30th December 1980 Molefi proceeded without introduction and
on his own to Qacha's Nek police station. There is a bus
between Hill
Top and Qacha's Nek which i3 43 km away. The journey ordinarily takes
about an hour by car, by bus or if the road
is wet, perhaps a little
longer. Molefi says he gave the police information about his son. The
police gave him a letter to take
to A3, but Molefi would not have
this and went to complain to the District Administrator who sent him
back to the police who told
him they will follow the matter up. The
first records (occurrence book) of the Qachafs Nek police speak of
Molefi giving information
about his missing son on Wednesday 31st
December 1980. Molefi says he was given a tall uniformed policeman to
go along with him
to Hill Top to investigate. We have since learned
that the uniformed policeman was Trooper Shoa. We have no evidence of
what Trooper
Shoa did. The search was, however, continued by members
of the Seroke family. It would also seem that soon after that a
detective
called on Molefi and told him a body had been found at
White Hill. Molefi went

5

to
Qacha's Nek mortuary but it was not his son.

On
Saturday 3rd January 1981 A3 informed Al that the Qacha's Nek police
would like him to call at the charge office on Monday 5th
January
1981 in connection with the disappearance of the deceased, A3 says
that a trooper Jonas gave him the order. On Monday Al
says the bus
was full and he could not go to see the police until Tuesday the 6th
January 1981, They asked him to account for his
movements on Xmas day
1980 and he did. Al says he also told them that he had given the
deceased about half a bottle of brandy that
Xmas morning. It was
certain that he was interviewed by the police but we have no account
from the police as to the contents of
that statement.

In the
meantime and on Sunday the 4th January 1981(the 10th day of the
search) deceased's father Molefi was informed that a shoe
had been
seen on the bank of the Tsoelike river. He proceeded there with the
people who had seen it. He picked up the shoe Exhibit
G. It was on
the northern bank of the Tsoelike, near a path, opposite the village
of Lioling though some distance from the place
deceased was later
found. The river is seen in Exhibit B photo 10. It was one of the
deceased's shoes. It was identified by his
father Molefi and by
Tselane (more about her later) as the one deceased had been wearing
on the day of his disappearance. Likotsi
Molefi's younger son was not
quite sure though it was the same size and similar. Molefi took it
first to Mokhifa and on the following
day (that would be 5th January
1981) personally to A3. A3 did not give him a letter to the police or
a representative to accompany
him. Molefi boarded a bus and took it
to the Qacha's Nek police. A3, however, testifies that Molefi did not
give him a chance to
do either and he dashed to the bus which was
about to depart.

On
Saturday 10th January 1981 at about 10 a.m. (on the 17th day of the
search) a naked body of a person was seen by Paulus Phomolo
(whose
evidence as detailed at the Preparatory Examination was admitted by
the defence) in a deep hollow or gorge on the bank of
the Tsoelike
river at a place called Maqatomeng apparently suspended between two
boulders his body not touching the ground. The
gorge can be seen in
the album, Exhibit B photo 12, It was the smell that had attracted
him. Phomolo raised the alarm first at
the village of Lioling and

6

then at
Hill Top. People converged on the river bank including Al, A2, A3,
Molefi the deceased's father, and others. Two men braved
the stench
and went down. One gave evidence, Lesoetsa Lepheane (FW6). He says a
stone was on the ribs. A sack having been placed
below,the body was
kicked and it dropped on to the sack and was then hauled up to
another spot seen in Exhibit B photo 13, Molefi
the deceased's father
testifies that he did not object to his son's body to be lifted up
though the order came from the chief A3
himself. When the body was
brought up and it was seen that genitalia and other parts were
missing Al allegedly remarked that the
parts were eaten by crabs and
offered Molefi a coffin and A3 suggested that the body be buried
right away. It has not been established
with certainty that the river
water ever reaches that hollow. One witness who knows the river says
it does not, the other says
it does, but only if the river is in
spate. The river however was not in flood during the period in
question. Molefi says he refused
the coffin and objected to the
burial so much so that a row on this matter was about to degenerate
into a fight.

Mlandeli
Simelane(PW7) was the man who took it upon himself, after the
application of "doom" spray upon the parts of the

deceased's body most attacked by maggots, to clean them from maggots
which clarified the situation to onlookers. Asked about the
commotion
over the coffin and burial he testifies that he did not wish "to
commit himself", his hands were filthy, he
went to the river to
wash, and on his return left his sons on guard to await the arrival
of the police and he went home* Mlandeli
says A3 gave the order for
the body to be brought up though he himself objected. He heard A3 say
that the body should be kept until
the arrival of the police.

If I may
digress for a moment here, Molefi, deceased's father, says he sent
his uncle Sisimane Seroke to Qacha's Nek to call the
police. Sisimane
Seroke gave evidence at the Preparatory Examination and this was
admitted by the defence. He was not therefore
called. As I understand
his evidence there it appears he did not go to the Tsoelike river in
the morning and did not see the body
but he received a report (Molefi
says he sent it) directing him to proceed to the Qacha's Nek police
to inform them. He came back
accompanied by the police (Detective
Troopers Manka - called by the Court - and Lephoto) to the Tsoelike
river.

7

Al
testifies that he did proceed to the Tsoelike river on the 10th
January on hearing that a tody of a drowned person was discovered,

When it was hauled up and the parts mostly attacked by maggots
cleaned, he asked a question (but did not make a positive statement)

whether those missing parts could have been eaten by crabs. He says
he did not offer to donate a coffin to Molefi, he simply told

Molefi,when someone else suggested it,that he has a coffin in stock
in his shop, which, if he wishes, Molefi could buy. Al adds
that
people were in separate groups sitting away from the body because of
the stench and he heard no argument about the burial
of the deceased.

A3 denies
he suggested a burial and says that he was not such a lunatic to have
made the suggestion when he himself had sent a boy
called Teboho to
inform the police about a body being discovered at the Tsoelike river
bank quite apart from the fact that Molefi,
deceased's father, had
also told him that he too had sent someone to call the police. He
heard nothing about a coffin. People make
loud noises without
necessarily quarrelling.

When the
police arrived they transported the deceased's body to Qacha's Nek.

A post
mortem held by Dr. Zaal at Qacha's Nek mortuary on the 12th January
1981 revealed that the deceased's penis, scrotum, and
part of the
armpit and chest and above the throat had been cut by a sharp object.
The mandible was bare. There was no tongue. There
was a cut in the
heart caused by a sharp object. The eyes were gone. The doctor was
unable to say if these cuts or incisions were
inflicted before or
after death. The body was too decomposed to find any cause of death
from internal organs and the sum total
of his evidence is that if
those injuries were inflicted when the deceased was alive they could
have caused death. The post mortem
report is Exhibit A and the cut
parts can be seen on the original report in the attached diagram of
the human body Form M 42,

The star
witnesses for the Crown are :

Tselane Matoetoe(PW3) born in 1957, of Ha Makoae and Hill Top, an
accomplice murderess according to the Crown, a slut and a liar

according to the defence.

Ntsokeleng Nteke(PW4) born in 1957, of Hill Top, an accomplice
murderess according to the Crown, and if not quite a slut, a liar

according to the defence.

8

Kantini
Mabote(PW2) born in the 1940s of Hill Top, an ex-mier, an accomplice
murderer according to the Crown, a dishonest loafer,
and a liar
according to the defence.

Tselane(PW3)
was the deceased's girl friend. According to his passport, Exhibit F,
the deceased, born in 1954, had arrived home
at Hill Top from the
mines in Republic of South Africa on the 21st November 1980. A love
affair developed between him and Tselane.
She says he had shown her a
wad of Rand notes but he seems to have handed R400 to his father
Molefi Seroke. She described the deceased
as a good lover, a loner,
and with a spot of white hair on his otherwise black head. Tselane
had two children but no husband. Her
own parents lived at Ha Makoae
but she had recently rented premises from one Khotso at Hill Top.
Sexual intercourse between her
and the deceased took place at her
place at Hill Top and at Ntsokelehg's parents place,

Ntsokeleng
(PW4) was Tselane's bosom friend. She was married to a man from
Mashai some distance away from Hill Top, but in June
of 1980 she left
her matrimonial home and repaired to live with her own parents also
at Hill Top.

Kantini
Mabote(PW2) was himself married and he and his parents had their home
at Hill Top. Kantini had taken a job with Khokoane
Manamolela(Al)
about a year prior to December 1980. Al says he employed him in
February 1979. Kantini was given a room in a servants
quarters behind
Al's shop/cafe. He was employed as a gardener, a herdsman, and a
watchman. His love association with Ntsokeleng
started after her
arrival from Mashai and (Kantini's wife having earlier left him for
her own parents) sexual intercourse between
them took place at his
room in Al's servants quarters where she often slept.

Al
himself, though not a Hill Top man by origin, had opened a shop/cafe
there in December 1978. He was a married man with two daughters
the
eldest born in 1973. His wife did not live with him. She was employed
in the police force. Al passed Cambridge Overseas School
Certificate
at "O" levels. He had a relatively prosperous complex at
Hill Top consisting of a residential house, a shop/cafe
combined, two
lots of servants quarters (one behind the shop/cafe and another
behind his house) and various outhouses as can be
seen accurately
from a site lay

9

out plan
Exhibit C4. Kantini occupied one room in the servants quarters behind
the shop/cafe, It can be seen photographically in
Exhibit B picture
9. Exhibit B picture 6 is a bird's eye view of the complex, Exhibit B
pictures 7 and 8 show the shop and residence.
Two coloured
photographs, Exhibits Dl and D2 show Al's shop/cafe at closer range.

Kutoane
Motsoene (A3) is the gazetted headman of a cluster of villages that
include Lioling, Ha Rankakala (where he lives), Hill
Top, Thoteng and
Ha Makoae. These are shown on a map(not drawn to scale) Exhibit Cl.
to which the Court added in ink Ha Makoae
village. The survey map
Exhibit C2 does show Ha Makoae, Hill Top, and Ha Rankakala, as does a
larger survey map Exhibit C3, but
those last two do not show Lioling
or Thoteng villages. The two additional villages under the
chieftainship of A3 are said to lie
north-east of Ha Makoae. The
village of Mapakiseng from which 'Meli Motlomelo(A4) hails is to the
east of Ha Makoae. I have marked
the relative positions of the two
villages north-east of Ha Makoae, and Mapakiseng east of Ha Makoae
with crosses in ink on the
survey map Exhibit C3. Mapakiseng village
does not fall within A3's jurisdiction.

Nkemese
Tsika(A2) also owns a shop/cafe at Hill Top. He is an ex-miner. His
wife is Mathabo Tsika(A6). The cafe was said to have
been opened by
A2 "recently", but there is a dispute about the date which
will be referred to later in this judgment.
It is separate from but
close to their residence and has been said to be about 150 paces
(pointed) from Al's cafe/shop Sgt. Putsoane
(evidence at Preparatory
Examination admitted) who made a sketch (Exhibit J) makes it 200
paces.

Mpinane
Mohale(A5) was employed by Al as a saleslady in the shop.
Retselisitsoe Matsoso(A7) according to the accomplice Crown witnesses

was Al's mistress and lived at his residence though occasionally
helped in the shop/cafe. This is disputed by Al who says she lived
in
a room in the servants quarters, served in the shop/cafe, and though
she was his girl friend, it did not go as far as sexual
intercourse.

If we
leave for the moment precise dates and many variations in the
evidence of the Crown accomplice witnesses and assessment of
their
credibility the broad story that emerges, or it so seems to me, is
that initially, sometime before Xmas 1980 a

10

three
pronged, separate but more or less simultaneous approaches, were made
to Tselane and Ntsokeleng and Kantinl to "find
a person".
Tselane says she was first tackled by A2 in the presence of A6 when
she went to buy at their cafe and A2 asked
her to find him a person,
for a reward of R400, "to strengthen" his cafe, and
Ntsokeleng says that one day she went to
see her lover Kantini in
Al's cafe when she was tackled by A5, in the presence of A7, who told
her that Al wanted them to find
a person "to strengthen"
his shop. No rewards were mentioned by A5 to Ntsokeleng. Kantini
himself was not there but Ntsokeleng
went to see him and told him
about A5's suggestion. According to Ntsokeleng Kantini "appeared"
to have had prior knowledge
about this. Neither A2 nor A5 had
mentioned any particular person to Ntsokeleng or Tselane. Kantini
says Al was the first to approach
him in the shop about finding a
person "to strengthen" his cafe but no names were then
mentioned, Kantini says the question
of reward came later. It was to
be one hundred which Kantini understood to be Pounds since he does
not recognise Rands. Then a
man called Taole (who is said to have
escaped from police custody at Sekake after his arrest) came and also
mentioned to him that
Al wanted a person, Kantini says he and Taole
discussed the matter alone but thought they cannot carry on with the
mission. Ntsokeleng,
as I said, went to see Kantini after A5's
approach and discussed the subject of finding a person with him.

Ntsokeleng
says that some three days later she and Tselane met at the former's
parental home. When Ntsokeleng mentioned the subject,
Tselane alleged
that she too had been approached by A5, and that Tselane had selected
the deceased. Ntsokeleng agreed with this
and the selection was
passed on to A5 at the shop who undertook to explain the choice to
Al. In the meantime Al told Kantini that
the deceased was chosen
because he had a white spot on his hair.

After
some days a meeting took place at dusk at Al's residence: also before
Xmas. Ntsokeleng and Tselane seem to be agreed that
there were the
following persons present: Al, A2, Kantini, A5, A7, Taole.

Al
approved the deceased's choice. The ploy was for Tselane, the
deceased's lover, to entice him to go to Al's shop to get his "Xmas

present" on Xmas day 1980. It does not appear

11

as if the
details of the execution of this conspiracy was known to all those
who allegedly took part, but there is no doubt at all.
that
deceased's ritual murder was contemplated and did in fact take place.

Tselane
says A5 came to her house in the morning of Xmas day to tell her that
Al wanted the deceased to come to the shop to have
his liquor.
Tselane told A5 that she was expecting the deceased to come to her
place and will pass the message to him. The deceased
duly arrived. He
appeared sober and was told to go to Al's shop for his Xmas present.
The probabilities are that deceased's visit
to Tselane took place
after his visit to Mapuleng and his grandmother's Mantsoele.

Tselane
says after deceased left her to go to Al's shop she went to
Ntsokeleng's parental home. The deceased Joined them there carrying

the bottle Al gave him. The time it seems was before people eat
lunch. All three drank from the bottle, Tselane asked deceased
for
his watch but he refused her request. Deceased was in a Jolly mood
but not drunk at the time. She then went to her own house.
Deceased
followed her soon after -now minus the bottle - and asked her for
more drinks. Her own "joala" was not yet ready.
Deceased by
then looked drunk and left her staggering: (Ntsokeleng says deceased
was not staggering) saying he will go and sleep
at home and took that
direction. Tselane says she asked the deceased to accompany her to
her parental home at Ha Makoae where she
and Ntsokeleng were to
continue Xmas feasting but he said he will go and sleep. She did not
see deceased again except at dusk of
that same day in Al's shop.

There is
no evidence that deceased got to his parental home but if Mateboho
saw him asleep near the Mothabisa well it is quite possible
that he
may have been on his way to Tselane's parental home at Ha Makoae.

Tselane
and Ntsokeleng, both of whom went to Ha Makoae for the festivities,
celebrated it in different houses. Each apparently made
her own way
back towards Hill Top. Tselane says that after the storm she set off
with Kantini and another man but on the way they
separated. She did
not see the deceased on her way back near Mothabisa well but met A9
on crossing the stream. She was carrying
a can of "Joala".
A9 snatched it and

12

drank
some of it. A9 says Tselane gave him the "joala" of her own
free will. Ntsokeleng says she left Ha Makoae before
the storm with
her sister Makhauta but it oaught them at Thoteng and they sought
shelter at Mabote's who was Kantini's married
sister. When it stopped
they continued on their way home to Hill Top. The trip was uneventful
though Tselane says that at Hill
Top she stopped by a house where
music records were being played and then passed by A2's shop who told
her that "the person"
was already in Al's cafe. Kantini
Joined Ntsokeleng at her parents house, and then came Tselane about
sunset. They drank. Kantini
departed apparently earlier to his room
in Al's servants quarters and at dusk Tselane (having changed into a
dry blanket) and Ntsokeleng
proceeded to Kantini's room. He came and
said "you are being called". Kantini, Tselane and
Ntsokeleng proceeded to Al's
shop.

On
entering they saw deceased behing the counter. The shop was lit.
Present were Al, A2, A3, A4, A5, A6, A7, A9 and Taole according
to
the two women, but Kantini adds to the list the former A10, All and
A12.

The
people that assembled waited. Whilst waiting a person came to the
shop to buy but was turned back at the door on the ground
that the
shop was closed. This person is the lady Mapuleng Mokone (PW9) who
testified that she went to Al's shop to buy a candle.

After
about an hour (very rough estimate by Ntsokeleng) A8 entered. A8 is
Al's brother, but did not live at Hill Top. He was known
to Kantini
and Ntsokeleng from his periodic visits to Al's shop but not to
Tselane. He had property, including a shop and a house
at Qacha's
Nek. He also had a house and shop at Qhoalinyane some sixty
kilometers away. The shop at Qhoalinyane was run by his
wife.

Al
allegedly said that they have been waiting for him (AS) for a long
time or words to that effect. AS went behind the counter where

deceased was. According to Kantini deceased was stipped naked after
being overpowered. Kantini was one of those inside the counter
who
helped in subduing the deceased. Kantini estimated the space inside
the counter at about 4 feet right across. A sketch plan
(admitted by
consent as with all photographs and maps) of the shop/cafe is Exhibit
J and the

13

Space Is
marked at 117 cm = 3 feet. 117 cm however is nearer 4 feet than 3.Be
that as it may according to Kantini deceased made
little noise or
movements - no more than what a sheep does when slaughtered. A8 using
a knife cut deceased's penis.

testicles,
a piece from the armpit and part 6t the breast, and extracted, one of
the eyes. Kantini saw no cutting in the region
above the throat, but
Al later told him that the small tongue was cut as well and showed it
to him. When each part was cut out
boiling water was poured over the
region and then a hot iron applied. Tselane and Ntsokeleng say they
did not see what was happening
behind the counter since they were at
the customers side.

The'
deceased was then carried naked to the main area of the shop and put
down on the floor for those present to look at him. Al
made a short
speech. The men left some carrying the body outside. The women were
told to clean the mess.

According
to Kantini the body was carried to A8's vehicle, an open blue (or
grey) van with no canope parked half way between the
shop and Al's
house, some 23 (pointed) paces from the shop. There an argument
developed as to whether the body should be taken
to A2's shop. A2
objected strongly. Whilst the argument was going on by the van the
women were cleaning the shop. Ntsokeleng was
ordered to remove her
dress. The deceased clothes (including his shoes one of which is
Exhibit G) were wrapped in this dress, Ntsokeleng
remained clad only
in a shawl and the bundle was taken by one of the women in the
assembly. These were never seen again except
for one shoe (Exhibit
G)that I had earlier referred to. According to Kantini the argument
amongst the men was resolved by returning
the body to Al's shop. The
women had by then finished cleaning and the shop locked. Kantini says
it was reopened and the body was
put in a ditch or a hole in the
floor behind the counter area large enough to take a body. It was
covered with corrugated iron
sheet.

According
to Kantini, on the following day, 26th December 1980, A8 arrived in
the same van at dusk. All the male accused persons,
plus Taole (and
the three former accused against whom the prosecution was
discontinued) carried the deceased's body to the van.
It was driven
by A8. They drove to the outskirts of the villages of Lioling, some 6
kilometers by road from Hill

14

Top (see
map Exhibit Cl) and parked below Mokhosi's compound(he was not at
home) the furthest a vehicle can go. They waited until
the moon rose,
and whilst A3 and A8 remained with the vehicle, the men carried the
deceased's body to the river bank. Deceased's
body was wrapped.
According to Kantini A3 told the former A10 to throw the deceased's
shoes in or near the river to fake a drowning.
The going was slow and
the distance covered (according to the map Exhibit Cl) was 1100
meters. The body was lowered in a hollow
by the river between
boulders after the blanket wrapping was removed.

Al, born
in 1944, testifies that on the 25th December 1980 at the time when
the alleged killing took place he was at home, asleep,
after having
had too much to drink during the day. He was with his two daughters.
Two relatives in a lorry descended upon him unexpectedly,
and they
slept over night as they did not wish to drive the lorry in the rain.
It had bogged down earlier on when crossing a stream
near Ha Makoae.
These two, Limpho Manamolela and Rasethunyane Manamolela (DW5 and
DW6) gave evidence supporting Al. They are his
nephews. He says the
deceased came to his shop that morning whilst he was distributing
sweets to the village children, and asked
for a Xmas present. Al says
he was not expecting him and offered him sweets but the deceased
replied that he was "not a child"
and wanted liquor. Al
says he had no licence for and did not stock liquor in the shop, but
happened to have a bottle of brandy
under the counter. He kept liquor
for his own consumption at home. However he made a quick mental
calculation of his home stock
before his next visit to Qacha's Nek.
The bottle was originally half full, but Al had from it two swigs
before deceased's arrival.
He was reluctant to part with it but he
ultimately gave it to the deceased. The deceased did not snatch it.
The deceased promised
to reimburse him on New Years Day.

Al says
that the following morning the 26th December 1980 whilst in his
garden he saw people going in an easterly direction and
they told him
the deceased disappeared and he Joined a search party along the
Mothabisa stream (after hearing a rumour that deceased
was seen
sleeping there) from the east and in the afternoon rejoined the
search party on the west of the Mothabisa stream. He then
went home
and slept.

Tselane,

15

Ntsokeleng,
and Kantini were liars. Until the Preparatory Examination he never
knew or heard of Tselane or A4, or A9. Kantini once
took 50 kg of
mealies from the shop under false pretences and was a suspected
associate of a burglary of his shop. He did not know
A2 except by
sight or repute when he was told shortly before Xmas that he had
opened a shop in Hill Top, He says that A5 and A7
were away from Hill
Top on that day.

A2
testifies that on Xmas day 1980, he left home at 9 or 9.30 a.m. to
Lioling. When the hail storm broke out in the afternoon he
was
drinking at Khojane's house at Lioling village with friends. When the
storm finished he and his friends passed by a house whose
owner said
had been flooded. He helped scoop the water out. Then he went back
and continued drinking. It was getting dark and he
and a friend
borrowed a torch from a young man and returned to Hill Top to the
house of Lepheane and continued drinking. He went
back home to sleep
that night. He denies Tselane's, Ntsokeleng's, and Kantini's
allegations. He never knew or met Al except after
Xmas 1980 when he
went to Al's shop to get some change. He never knew or met Tselane
(except from the Preparatory Exanination)
or her parents, although he
knew Ntsokeleng. All three accomplices concocted their evidence In
November 1980 when the plot was
supposedly hatched he was still at
the mines. Kantini just loitered about and was probably jealous of
his success. His wife (A6)
was at home that Xmas night. He called no
witnesses.

A3 a
gazetted headman since 1966 or 1967 testifies that on Xmas day 1980
he was at home at Ha Rankakala. In the morning he was at
home
drinking. In the afternoon he drove back and kraaled his horses, and
went to Masilai's where he continued drinking. At late
dusk he went
to his father's home where he ate and drank "joala". At
night fall he returned home and slept,, He denies
Tselane's,
Ntsokeleng's, and Kantini's allegations, Al is not his acquaintance,
he first saw Tselane at the Preparatory Examination
and never before.
Ke knew Ntsokeleng and her parents. Kantini had once stolen one of
his goats and this may or may not be the reason
for concocting the
story against him. A3 was not asked in chief about the shoes which
Kantini says he (A3) instructed the former
A10 to throw in or near
the river to fake a drowning. A3's reply in cross-examination was
that this was one of Kantini's other

16

fabrications
proved by the acquittal of A10 during the trial when the Crown
withdrew the charge against him. He suggested Molefi
may have had a
grudge against him when his horses trespassed on his (Molefi's) land.

A4
testifies that he lives in Mapakiseng. On Xmas day he went to the
home of a relative Quamo Takane and his wife at Ha Makoae for
the
Xmas festivities and spent the night there. On the following day the
26th December he heard of the deceased's disappearance
at Hill Top.
He conducted a one man search around the Mothabisa stream and went
back home to Mapakiseng and slept and did so on
the following day the
26th. He did not know Al at all, but knew A2 since they were in
Durban together at one time. He knows Kantini
but Ntsokeleng he saw
for the first time at the Preparatory Examination. Tselane was
related to him by marriage through her mother
and was a disgraceful
child prepared to give sex to anyone for money. She made up her story
because he had reprimanded her on her
behaviour. He did not know A7
and A8 though he knew A5, A9 and A3.

A5, A6
and A7 elected to keep silent.

A8 is
Al's elder brother. He testifies that on Xmas day 1980 he was at his
home in Qhoalinyane on the other side of Qacha's Nek
which is four
hours drive from Hill Top. (See coloured survey map Exhibit C5). The
distance has been said to be 103 kilometers
from a bus chart Mr.
Kolisang had. He was with his family. People called in for food and
drink at his home and these included the
chief of the village Mopeli
Makoko (DW1).When darkness had fallen and before he and his wife had
gone to bed (usually after the
8.45 p.m. news bulletin) a young man
called Lebohang Seala and his grandmother Mrs. Mokhothu arrived in a
vehicle in his compound
and sought his permission to park their car
there. He knew the Sealas. He allowed them to do so as he had ample
space. He learnt
that the Rev. Seala and his wife had come to visit
an elder sister that lives nearby. He then went to sleep. In support
A8 called
chief Mopeli (DW1) Mrs. Seala the Reverend's wife (DW2)
Lebohang Seala their son (DW3) and Suzan Mokhothu (DW4) Mrs. Seala's
elder
sister. On the following day the 26th December 1980 he left
home in the morning in search of his daughter who had eloped and
later
paid a visit to the Reverend Seala and his wife where they were
staying and in the evening he went home got drunk and slept.

17

He did
not know A2, A4, Ntsokeleng and Tselane (except from the Preparatory
Examination) but did know Kantini from his visits to
Al's at Hill
Top. He suggested that Kantini, Tselane, and Ntsokeleng may have
dragged him in because of some clash with his brother
Al at Hill Top
and in any event W/O Mapeshoane(FWll) told him at the Preparatory
Examination that he was going to "frame them
all up".

A9
testifies that on Xmas morning he left home at Ha Makoae to visit his
sister at Hill Top, He was drinking. The hail storm then
started.
When it finished, and he was drunk by then, he started off on his way
back to Ha Makoae. At the outskirts of Hill Top
he met Tselane going
uphill from the Mothabisa well carrying "Joala". She gave
him some. They parted company, she going
towards Hill Top and he
towards home to Ha Makoae. He then went to bed. On the following day
he had a hang over and stayed at home
and slept. When he was arrested
on an alleged charge of dagga he took M120 from his savings to pay
the fine if one was imposed.
It was not concealed but in his front
trousers pocket. He was asked to become a Crown witness. He refused.
Whilst in custody the
police beat him up badly and tortured him. They
took him to the deceased's grave (he was buried at Qacha's Nek) and
told him Jimisi
was calling him. They tried everything to drill him
to give perjured evidence against the accused, in the same way as
they beat
and drilled Tselane Ntsokeleng and Kantini, an allegation
incidentally that the last three deny.

W/0
Mapeshoane (PW11) one of the investigating officers stated that the
accused whom he arrested, when charged and cautioned,said
they will
only speak in Court.

To detail
all the variations and discrepancies in the testimonies of the three
accomplice witnesses, at the Preparatory Examination,at
the trial,
and inter se would I think be an enormous task, but nevertheless it
ought to be undertaken if only in a general way.
Amongst these may be
mentioned : the number of meetings held, when, with whom, who was
present, and who said what and to whom:
how much reward was each to
get, from whom, when and where was the promise or promises made: who
was present at Al's shop on Xmas
day at dusk and thereafter: whether
Al stocks liquor in his shop or not: whether when the accomplice
witnesses entered Al's shop,
the deceased was lying

18

down tied
hands and feet, squatting on his heels but propped up or seated upon
a chair or stool with only his upper chest showing:
whether there
were three lamps lit or one: whether the deceased's mouth was gagged
or not: whether those present were drinking
or not drinking or some
drinking and others not: whether when a person called at the shop to
buy who turned the person back: whether
or not before A8 entered the
scene the sound of a vehicle was heard: whether or not A9 hit
deceased with a stick on the head behind
the counter: whether as the
deceased was being overpowered, he gave much little or no resistance:
whether he cried loudly or just
moaned, who of the accused persons
held the deceased: who of the accused held which of the deceased
arm(s) or leg(s) and on which
side of the body did they stand:
whether when the surgery started, there was no blood, little blood,
or much blood coming out:
who of the accused passed the boiling water
and to whom: who of the accused poured the water over the wounds
occasioned by the
severed organs as they were being cut: who applied
a hot iron on the wounds: why, if the small tongue of the deceased
was cut out
from above his throat did not Kantini see this part of
the operation: whether, when the severed organs were cut, they were
put
in one jar or two jars: whether the jar or jars were of glass or
transparent plastic: who of the accused persons carried the naked

body of the deceased and put it in the main public area of the shop:
whether when the deceased was carried into the main area one
or two
blankets were used, who fetched them, and from which part of the
shop: what severed parts did Ntsokeleng and Tselane see
when the body
was laid: whether blood was oozing or not oozing: whether and if so
what precisely did Al say after the killing when
deceased's body was
laid on the floor: who of the women accused helped in the scrubbing:
was there or was there not too much mess
on the floor: what items of
clothing did the deceased have under his overalls: to whom of two of
three women accused were those
handed after they were bundled up: was
there or was there not a small bottle of liquor passed round for
everyone to have a sip:
whether or not before or after the body was
taken out A9 demanded to have the deceased's stick: how, if the body
was returned to
the shop, Tselane and Ntsokeleng did not see it
specially when Ntsokeleng says she and Kantini saw Tselane to the
gate of Al's
compound: to which South African resort after the
killing did A6 suggest Ntsokeleng and Tselane should go, Durban,
Johannesburg
or Natal, and where

19

was the
suggestion or suggestions made.

I would
like to refer to two or three matters before I deal with the
submissions.

During
cross-examination of the prosecution witnesses several questions were
asked on matters that we heard nothing or little about
from the
accused who testified and/or those who called witnesses. I will
mention the story put to Tselane that there was bad blood
and some
"trouble" between the deceased and A9 before Xmas. She
denied knowing anything about that. It was then suggested
to her that
the deceased and A9 had fought at the Mothabisa well on Xmas day and
she was present. She denied that. It was also
suggested to her that
Ntsokeleng was present as well at the time and she denied that. It
was further suggested that A9 hit deceased
on the arm with a stick
and injured it. She says she knew nothing about that. It was further
suggested that Tselane stole deceased's
watch and A9 robbed him of
his money. She denied that. That story was not put to Ntsokeleng in
cross-examination nor was it put
by senior counsel to A9 (who was
defended by Mr. Mlonzi)when he was invited to cross him. A9 was
simply asked if he knew anything
about deceased's photographs or
watch and he replied in the negative. When A3 was called to testify
he said nothing in chief about
the deceased's watch or photos, but in
cross-examination he disclosed that Molefi the deceased's father came
to him during the
search and showed him the deceased's watch and
photos given to him by Tselane but says he did not take them from
Molefi and suggested
that it is better if he takes them to the police
instead. This story Molefi had denied. It was put to Molefi that at
the Preparatory
Examination when giving evidence he was wearing the
deceased's watch and this he denied saying it was his own watch that
he was
wearing.

It was
put to Molefi deceased's father that deceased used to get lost "in
caves" but we heard nothing about that from
anyone. In any event
the deceased was seen drunk and asleep fully clothed at Mothabisa and
could not have gone to a Tsoelike cave
naked and mutilated himself
there.

It has
also been suggested to Tselane that she passed a message to Mpoetsi
(Al and A3 sister) through one Tebello with whom she
was staying at
Qacha's Nek when she was giving

20

evidence
at the Preparatory Examination that her (Tselane's) conscience was
pricking her for having falsely implicated her brothers
in the
deceased's murder. We have heard no such evidence from either.
Tselane denied ever knowing Mpoetsi and at first Tebello
both of whom
were brought into the well of the Court, but on further questioning
tselane admitted Tebello was a member of her own
clan and she thought
that counsel was referring to the time since her arrival in Maseru
for the trial. Tselane may or may not have
understood but I will
assume that she lied on this point. However she denied ever passing
such a message to Mpoetsi and there were
two other witnesses to the
murder besides Tselane.

Mr.
Weinstock concentrated his attack on the evidence of Kantini, Tselane
and Ntsokeleng; on Mapuleng who(if her evidence were to
be believed)
affords corroboration that at any rate Al was at the shop at dusk on
Xmas day 1980 and not asleep in his house, and
on Molefi Seroke the
deceased's father, whose evidence, if believed, tends to show that
Al's words and conduct at the scene where
the body was discovered on
10th January 1981 and A3's words and conduct from inception up to and
including the date of the discovery
of the body is not consistent
with innocence but with guilt.

Mr.
Weinstock highlighted the following :-

1. Accomplices

   
   
   
   

   1. Tselane
      and Ntsokeleng testify that the plot to kill the deceased was
      hatched in November 1980. This date was crucial to the
      success of
      the Crown case but their evidence cannot be true because A2(who
      originally allegedly approached Tselane) was still
      on the mines in
      the Republic of South Africa as his passport Exhibit E clearly
      shows. The passport stamps state A2 was discharged
      on 5th December
      1980 and entered Lesotho on the 11th December 1980, which former
      date was verified by W/O Mapeshoane (PW11)
      who was dispatched
      during the proceedings to the Mine in Rustenburg and personally
      checked the records with the mine official
      concerned and if Tselane
      says she "usually" bought from A2's shop, and if A2 says
      he only opened it on the 16th December
      1980, Tselane has committed
      herself to a

      
      
   
   

21

lie if the shop had been going only for 10 days for the dates do not
add up. The Crown was in position to check the date of the
issue of
A2's shop's licence from the Qacha's Nek authorities and this they
failed to do. Ntsokeleng Joined Tselane in this,

2. The
   accomplices do not say the same thing about the plot for there is
   irreconcilable conflict between Tselane on the one hand,
   and Kantini
   on theother, on whether the plan was to be executed on Xmas day, the
   latter saying he went to Al's shop at dusk to
   inspect as a matter of
   routine whilst each of the two women (Tselane and Ntsokeleng) say
   something different.

   
   

2. Kantini's
   evidence of seeing A4 in the morning mixing drinks with Al is in
   direct conflict with that of Mosala, deceased's brother
   who says he
   saw Taole in the shop not A4, and if the plan was to catch deceased
   when he went for his "Xmas present"
   to Al's shop why was
   he not caught then and there? Further­more if there was a plan
   to give the deceased a "doctored"
   drink he would have been
   given the small quarter bottle which had the powder and tablets and
   this did not happen which is consistent
   with the large half full
   bottle being given by Al as a loan not as bait as claimed by the
   Crown.

   
   

2. The
   following discrepancies were major :

   
   

(i) Deceased's position when the accomplices entered.

(ii) Tselane not hearing the sound of a vehicle arrive and not seeing
a vehicle at all whilst Kantini says the opposite and Ntsokeleng

contradicting herself.

(iii) Deceased being gagged with a cloth not confirmed by Tselane and
Ntsokeleng and Kantini himself mentioned it for the first
time only
at the trial.

(iv) The events as described by Kantini to have taken place on the
26th December in dumping the body could not be true because
according
to Ntsokeleng he was with her in bed that night and did not leave his
room,

(v) Kantini brings in a rope to lower the deceased's body into the
hollow for the first time at the trial. This could not have
been
omitted by mistake or error because he was asked a specific question
about this subject at the Preparatory Examination and
he said he did
not remember if anything was used to lower the body.

22

2. The
   following matters remain inexplicable :

   
   

(i) Kantini was in a good position to observe the operation and he
could not have missed the part that resulted in the extraction
of the
small tongue.

(ii) If Kantini and Ntsokeleng accompanied

Tselane to the gate of the compound after the cleaning was done and
then went straight to bed as Ntsokeleng says they did at Al's

servants quarters, when was the body returned to the shop, and how is
it that Ntsokeleng and Tselane did not see the exercise?

(iii) The existence of a ditch or a hole in the shop was not
supported by Tselane and Ntsokeleng, and if there was a hollow under

old removed floor boards or planks and replaced later with new ones
the Sgt, (Det/Sgt Putsoane whose evidence as it appears at
the
Preparatory Examination was admitted) who did the inspection and drew
the sketch (Exhibit J) would have noticed it and that
in any event
the Sgt did not remove the planks to see how deep is the hollow.

2. Mapuleng's
   evidence was supposed to corroborate the accomplices that Al was
   present at his shop at dusk not asleep al; home but
   :

   
   

1. there
   is conflict as to who turned her back,

   
   

2. at
   the Preparatory Examination she said she noticed no lights and at
   the trial she contradicts herself as to whether the shop
   was lit or
   not lit,

   
   

3. it
   is impossible for a person to remember what he or she bought from a
   shop on Xmas day a year previously as she maintains she
   did, when Al
   evidence is to the effect that he was in hospital in Qacha's Nek
   during Xmas of 1979. It was within the Crown's
   power to check on the
   hospital records to prove him wrong.

   
   

4. she
   could be mistaken on the date.

   
   

3. Molefi
Seroke is a liar and has misled the Court over a number of matters
and tailored his evidence to fit with Ntsokeleng's
and Tselane's :

1. the
   second "dream" of Tselane in which she implicated Al with
   the murder was not mentioned by him at the Preparatory
   Examination.

   
   

2. that
   A2 returned in November before his son the deceased and this has
   been proved wrong.

   
   

3. he
   implicated A3 by attributing to him words which he did not utter,
   and by suggesting that he took no action over his son's
   disappearance whereas he admitted in cross-examination that

   
   

23

A3 did come on Sunday and A3 has sworn he informed his superior chief
and the police and would have given Molefi a letter when
finding the
shoe if he had only waited. He also lied against Al and A3 as to what
they said at the river.

Mr.
Weinstock sums up the case for the defence not by contesting the law
as outlined by Mr. Peete but by the latter's contention
that the
evidence of the accomplices was demonstrably superior in spite of its
many defects and in spite of some lies-by Kantini
(including an
inference that he may have falsely implicated A10, All and A12 who
have been discharged) and some lies by Tselane
and Ntsokeleng, by
reason of the shere force of the sequence of events and the
surrounding circumstances which cannot be taken
in isolation but
cumulatively. The defects, Mr. Peete had added, did not detract from
the accomplices testimony, for if drilling
or conspiracy (by the
accomplices against the accused) there was, one would expect their
evidence to be more uniform, and when
compared with the accused
persons (and their witnesses evidence) the latter are seen to have
demostrably concocted their alibis.
Mr.Weinstock protests that the
case for the Crown depended on three persons, Tselane a wicked and
callous woman who was prepared
to kill her own lover for R400 and
prone to implicate innocent people as is shown by her denial of
knowing Tebello her relative,
by Kantini a man prepared for one
hundred, pounds or rands matters not, to kill an innocent fellow
villager, and Ntsokeleng who
was in no better position morally; and
against this rot stand nine accused persons two of whom called
impeccable witnesses (including
A8's chief and the wife of a
Reverend) to give evidence of alibis - (even though there was no onus
on them to do anything) which
must result in the Court holding that
what was said by the accomplices was a product of their own
imagination or an invention entitling
all the accused, including
those who did not give evidence, to an acquittal.

I am
satisfied that a crime of murder has actually been committed to
comply with the requirements of s.239 of the Criminal Procedure
and
Evidence Act 1981. That of course is not enough.

The law
on accomplices has been dealt with in our Courts in Lesotho on many
occasions (see for example Tsiu Letloha v. R

24

HCTLR
1963-1966 12; Tumahole Bereng v. The King and Lerotholi v. The King
1926-1953 HCTLR p. 123 and 149)but the best summary I
am able to find
is in a Judgment of Leon J (in a full court) in S, v. Van Vreden
1969(2) SA 524 at 531 G-H and 532 A-F. It has
to be repeated here if
only to emphasise, if emphasis is needed, the awsome task I am about
to approach,

1. Caution
   in dealing with the evidence of an accomplice is imperative even
   where the requirements of section 257 have been satisfied.

   
   

2. An
   accomplice is a person with a possible motive to tell lies about an
   innocent accused, for example to shield some other person
   or to
   obtain immunity for himself.

   
   

3. Corroboration
   not implicating the accused but merely in regard to the details of
   the crime is no guarantee of the truthfulness
   of the accomplice. The
   very fact of him being an accomplice enables him to furnish the
   court with details of the crime which
   is apt to give the court, if
   unwary, the impression that he is in all respect a satisfactory
   witness.

   
   

4. Accordingly,
   to satisfy the cautionary rule, if corroboration is sought it must
   be corroboration directly implicating the accused
   in the commission
   of the offence.

   
   

5. Such
   corroboration may, however, be found in the evidence of another
   accomplice provided that the latter is a reliable witness.

   
   

6. Where
   the corroboration of an accomplice is offered by another accomplice,
   the latter remains an accomplice and the court is not
   relieved of
   its duty to examine his evidence also with caution. He, like the
   other accomplice, has a possible motive to tell
   lies. He, like the
   other accomplice is in a position to furnish the court with details
   of the crime which is apt to give the
   court, if unwary, the
   impression that he is a satisfactory witness in all respects,

   
   

7. Where
   there is no such corroboration there must be some other assurance
   that the evidence of the accomplice is reliable.

   
   

8. That
   assurance may be found, inter alia, where the accused is a lying
   witness or does not give evidence,

   
   

9. In
   the absence of any of the aforementioned features it is competent
   for a court to convict on the evidence of an accomplice only
   where
   the court understands the peculiar danger inherent in accomplice
   evidence and appreciates that acceptance of the accomplice
   and
   rejection of the accused is only permissible where the merits of the
   accomplice and the demerits of the accused as witnesses
   are beyond
   question.

   
   

25

10. When
    it is said that the merits of an accomplice as a witness must be
    "beyond question" in order to be accepted as sufficient

    for a conviction, this does not mean that his evidence must be free
    from any defects."

    
    

The
killing of the deceased of course has not been "imagined"
or "invented". Looking at Kantini's facial contortion

(unless he was a great world actor which in my opinion he is not) and
listening to his evidence when describing the events of that
Xmas
night I can come to no other conclusion except that he was an active
participant in and was a witness to the killing. The
possibility of
his being an imposter can be excluded with confidence. That does not
mean that he is in every respect a perfect
witness but one thing can
be said and it is that he did not minimise the extent of his
involvement and his role particularly on
the two nights in question:
he says he was a member of a plot to kill from the beginning or
almost, had helped force the deceased
down to subdue him, and later
assisted in disposing of his body. He was not immune to lies e.g.
that although he knew that the
plot involved giving the deceased a
Xmas present he was not present at the meeting when Xmas day was
fixed for the killing or that
he did not know at dusk that the
deceased was going to be killed and had simply gone to the shop to
check on security as a matter
of routine, and was not expecting to
see him, or an improvement on his evidence as it appears at the
Preparatory Examination e.g.
the gag on the mouth and a rope to lower
the body and evasiveness on a number of points such as that he had
not heard of the word
brandy. The grave dangers that exist and the
estreme caution that is imperative is his (and other accomplices)
changing the venue
and implicating an innocent or the wrong person or
persons or mixing the innocent with the guilty.

Tselane
was dogmatic and adamant about the date of the start of the plot to
kill the deceased (she was dogmatic and adamant on almost
everything
else as we shall see) as was Ntsokeleng, so this matter has to be
dealt with first,

I will
begin with Kantini's evidence. In chief he puts the date of the plot
when he was approached by Al as in the few days before
Xmas. In
cross-examination he confirmed that the first discussion took place
"before Xmas but during the days that preceeded
Christmas".
It was not some weeks before Xmas,

26

but
during the Christmas weeks, not on Xmas day. In chief Ntsokeleng puts
the date of A5's approach as two weeks before Christmas.
Tselane says
in chief she started her love affair with the deceased "in
November" and Al's approach to her was towards
the "end of
November". In cross-examination questioned about her visit to A5
when the subject was mentioned she replied
it was about "middle
of November". Since Tselane had already said that it was A2 who
had approached her first a few days
earlier, that would take us to 12
- 13 November (Mr, Weinstock so put it) as the date of the approach
by A2. She then said she
was not sure. She said she went to A2 in the
3rd week of November and went to Al in 1st week of December. She was
then asked by
the Court if the deceased had arrived at home at the
beginning of November 1980 and she answered that he did. Mr.
Weinstock then
produced A2's passport (Exhibit E) with a stamp
showing that A2's mine contract expired on the 5th December 1980 and
another stamp
that he entered Lesotho on the 11th December through
the Transkei she replied that A2 is capable of forging any stamp and
bribing
passport officials and mine authorities to do anything.
Whilst on the face of things A2 passport stamp marks appeared in
order
it was brought to the attention of the defence and the Crown a
day or two later that the date of discharge of A2 from the mines
on
the passport was not in fact initialled by the mine authorities as
deceased's passport was. This resulted in the Crown dispatching
W/O
Mapeshoane (PWll) to Impala Mine who came back after having perused
A2's record, a sheet in the form of a card showing the
name of the
miner, his number and then blank gaps designed for the initials of an
official to be inserted against other items that
include the
engagement and discharge dates. Those, Mapeshoane says, tallied with
the stamps on the passport of A2, though that
latter was not
initialled for the date of discharge. A mistake in failure to initial
the date of discharge is the most reasonable
inference and I shall
proceed on this basis. All other evidence on this episode must be
ignored as hearsay.

The
following possibilities arise:

1. That
   Tselane, whom A2 maintains he does not know at all until he saw her
   at the Preparatory Examination,concocted (with Ntsokeleng
   and
   Kantini) a plot before his arrival and indeed perhaps even before
   the arrival of the deceased. This theory was put by A2
   himself from
   the witness box and is manifestly an absurd possibility.

   
   

27

2. That
   Tselane and Ntsokeleng were mistaken on the dates. This is more
   than just a probability because if we examine the deceased's

   passport we see that he arrived on the 21st November 1980, i.e. at
   the beginning of the fourth week of November 1980, and he
   is
   unlikely to have hopped into bed with Tselane the first day and
   many days before villagers could have noticed their association.

   Deceased's father Molefi for example did not know of the
   relationship. Deceased's passport had no defects and the poor
   fellow
   had no interest to forge or falsify anything.

   
   

3. That
   Tselane and Ntsokeleng, but only after A2's arrival, had falsely
   implicated A2 in the crime. That of course is always a
   possibility
   for accomplices are a peculiar breed and his fate falls to be
   determined, in the final analysis, in the same way
   as that of A4,
   A5, A6, A7, A8, (but see infra) and A9, against whom only
   accomplice evidence exist.

   
   

Tselane
who thought it was deceased's destiny to die in the manner he did and
could see no other candidate, and who is shocked by
nothing in the
field of human relations testifies that a few days after the killing
she decided to hint to Molefi the deceased's
father, who was still
engaged in looking for his son, that the latter had, in effect, not
drowned, but that he died as a result
of foul play. She says she went
about it in a round about way and told Molefi that she had dreamt
that a child had been thrown
"over a precipice" and that
that child was his son and a day or two later she gave Molefi even
more direct hint that
she dreamt that it was A1 who has killed his
son. The information that deceased was thrown "over a precipice"
came to
her (she says after some hesitation) from Kantini on a visit
to Ntsokeleng's (it is not clear if the latter was present) but not

the exact place where the body had been dumped. Ntsokeleng says that
Kantini also told her the body was dumped. Molefi confirms
that
Tselane spoke to him about the "dreams" (this was before
the shoe - Exhibit G - was discovered near the river) and
that he
passed this information to the police at Qacha's Nek. This must have
been between the 30th December 1980 and January 3rd
1981. Molefi,
between those dates, seems also to have paid a visit to Qacha's Nek
mortuary after the police told him a body of
a person had been
discovered at White Hill and asked him to go and identify if it was
his son as I mentioned previously and he
may have told them about the
dreams

28

then.
There is no doubt about the truth of What Molefi relates about the
dreams Tselane says she told him, though she says he said
that he
heard from another source about Al, but this latter remark of Tselane
Molefi does not confirm. He says he passed this information
on to the
police (and I believe him) for there was no reason for the police to
call Al on the 3rd January to report on Monday 5th
to ask him about
the dis­appearance of the deceased which took place on Xmas day
unless it was based solely on the lad Mosala
who thought the deceased
had bought a bottle from Al (assuming that is, in his youthful mind,
he thought of anything sinister)
and on that alone it is very very
unlikely that the police would have acted.

Tselane
says she did not actually have dreams. It follows from this either
that she knew for a fact how the deceased died and that
Al was the
main culprit (she did not name A2 for example who made the first
approach) and had some remorse (she admits to have
been haunted by
the deceased's death once) and was susceptible to weakness however
hardened she was or professed to be in the witness
box, or
alternatively, that she knew nothing, probably heard rumours, and was
up to pure mischief (which the Court must consider
as a distinct
possibility in view of her character) which escalated after her
arrest in justifying the rumours to the police (who
curtailed her
liberty for some five or six months) by implicating all and sundry,
or by giving rein to her imagination in order
to please the police,
and/or with their connivance, to construct a case against innocent
persons based on nothing except Al's admitted
evidence that he gave
half a bottle or so of brandy to the deceased on Xmas day. I will
deal with this last aspect when I come
to consider Al's evidence and
will give reasons why it should be excluded as a possibility, but
that it was remorse and not mischief
that prompted Tselane to speak
to the deceased's father is supported by Ntsokeleng with whom she
discussed her qualms. Ntsokeleng
testifies she advised Tselane to be
firm, and A6 discerning this weakness in her and potentially in
Ntsokeleng, had advised them
both to leave Hill Top for a while.
There is a difference between Tselane and Ntsokeleng as to where this
conversation, if there
was one conversation only, took place, at the
shop or the well, and there is a difference also on the place in the
Republic where
they were recommended to go, but A6 did not give
evidence and

29

their
assertion stands uncontradicted. So Tselane too, like Kantini, could
not have been inventing. Ntsokeleng says she also advised
Kantini,
the spent miner, to leave Al's employ, but he replied he was "already
in it" and where were he to go.

Now
"dreams" mean little or nothing as evidence to go by. The
deceased's body was still undiscovered. The police inquiry
from Al
must therefore have been routine but once the body was found and the
fact of deliberate mutilation scientifically established,
the obvious
inference is that the deceased was ritually murdered on Xmas day most
probably at Hill Top and that Tselane knew something
about it. Her
apprehension and detention was inevitable. Tselane says she was
arrested three weeks after the discovery of the body
on Saturday
(which makes it 31st January 1981) and began talking a week later
according to her evidence at the trial, but three
weeks later
according to her evidence at the Preparatory Examination, Did she
tell them the whole truth, half the truth, or a mixture
of lies and
truth and did she do so right away or piecemeal? If one may be
permitted to draw on one's judicial and legal experience,
it is more
probable that it was piecemeal, but she says it was not and she told
them nothing but the truth.

Ntsokeleng
and Kantini do not know the date of their arrest though they say it
was during the Easter period. Now these dates were
later in time than
the deceased's and A2's dates of arrival at Hill Top from the mines,
which reinforces my view that however dogmatic
a witness may be, in
Basotho as perhaps in other societies, even amongst the literate,
they are not immune to the frailities of
human nature, for memories
do fade and too much reliance on dates cannot assume the precision of
mathematics which Mr. Weinstock
insists this Court should uphold. A2
had been at home for two weeks. Tselane( or rather Crown Counsel when
he put the question
in chief) use the word "usually" may
have referred to the period when A2 opened the shop to the date of
Tselane's arrest
on or about January 31st 1981. In my view the word
used has no significance, certainly it did not so appear to me either
at the
time or on reflection. Then there is the date of the disposal
of the body, whether it was the 26th December or the 27th December,

when, according to Ntsokeleng Kantini was out of their room "for
a long time". When further asked she said it was the
Friday
which makes it the 26th. If the body was

30

kept, the
murderers were more likely to keep it for one rather than two days.
Tselane's naivete can be illustrated by her reply
that when at about
sunset A2 told her that "the person" was already at Al's
shop, that she did not know what would happen
to him though she knew
what that person's "ultimate end" was going to be.

Ntsokeleng
was not as forthcoming as Tselane and tended to evade issues and to
answer them only when pressed and then not always
necessarily
truthfully. What was her object is difficult to see but on
identification of those involved there was no flinching.

The three
accomplices gave evidence of a ploy to lure deceased to Al's shop for
his Christmas present. Mr, Weinstock submits that
Al did not at any
time conceal giving the deceased a bottle and in any event the
alleged doctored bottle (the quarter) has not
been given to the
deceased and he was not caught. This episode, it was submitted, need
not have the sinister inference attributed
to it by the Crown for it
is equally consistent with innocence. That contention must of course
be assessed within the context of
the accomplices evidence, Mosala's
evidence, Molefi's evidence, and Al's own and his witnesses evidence,
but it does seem to me,
with respect, that the visits of Kantini and
Mosala did not take place at the same time that morning for the
former speaks of it
as taking place after attending to the cow and
calf, and further Kantini did not say or imply that the small quarter
bottle into
which some of the liquor from the large bottle he brought
from Al's house was poured was to be given to the deceased. Mosala's
visit was clearly later. Whilst it is true that Tselane said she
thought the deceased might be caught then and there, Mosala his

brother was still in the shop when the deceased left with the bottle.
If that was the original scheme, which is doubtful if the
object was
to sozzle the deceased (for he did have a weakness for alcohol) and
he was in fact sozzled when Mateboho saw him at
the stream, it could
not then be safely executed.

We then
come to Mapuleng. None of the accomplice witnesses say they saw her,
Kantini's evidence was that A1 told him that Mapuleng
is coming to
buy and it was he(Kantini) who turned her back without seeing her.
Tselane says that a

31

person
was turned back by Al himself. She did not see that person. The
discrepancy was not particularly material but the fact of
the matter
was that this lady once says she noticed no lights (at the
Preparatory Examination), in examination in chief at the
trial she
said she did; and in cross-examination she was confused. Added to her
assertion that she remembered calling on Al's shop
on Xmas day 1979,
that is to say, over two years before the trial, to buy sugar, a
common everyday commodity which, particularly
amongst the humble
community in a rural area, must have been purchased dozens of times,
is an assertion which I am not prepared
to accept. Her evidence
therefore becomes suspect and it must be rejected as corroboration of
Al's presence at his shop at dusk
on Xmas day.

Molefi,
it is submitted, tailored his evidence to coincide with that of
Tselane and Ntsokeleng with regard to his deceased son's
arrival and
to A2's arrival from the mines. Molefi was attacked when producing
his son's passport and it was even suggested that
he did so after he
heard the significance of the production of A2's passport during the
hearing, but Molefi says he set off by
bus from Qacha's Nek on the
22nd February 1982 for the trial which did not commence until 2nd
March. At that time surely he did
not know about A2's passport.
Indeed from his demeanour in the box Molefi, when confronted with
A2's passport, seemed to have been
anxiously casting his mind back to
the days of November-December 1980, and though he did say A2 arrived
before his son, he also
said he may be wrong. I did not discern any
lack of candour here. His memory of dates before his son's
disappearance was no better
or worse than others, unless something
extraordinary happens like his son's mysterious and sudden
disappearance and eventually
finding him murdered. As an example I
can cite his evidence about the days he and his family started the
search until the discovery
of the body,

Molefi is
attacked for sometimes saying one thing against A3 and then the
other. It arose first from his statement that A3 did not
come to Hill
Top when he asked for him through Mokhifa on Friday and did not come
on Saturday or Sunday. I think Molefi had every
right to be anxious
about his son for by Saturday afternoon and certainly by Sunday
afternoon, it was more or less obvious, except
to those involved in
the death of deceased, that the theory of drowning in the

32

Mothabisa
stream was just not on however much the perpetrators of the crime may
have tried to perpetuate it. Apart from the unlikelihood
of the
drowned body going downstream, there was no clue along that stream to
suggest it, such as for example the finding of the
clothes or
anything belonging to the deceased apart from the shoe and that was
found on the Tsoelike bank some distance from where
the body was
eventually discovered and certainly a long distance from Mothabisa,
and is indeed consistent with Kantini's assertion
(who ever made the
suggestion to throw the shoes and to whom) that the purpose was to
fake a drowning. Deceased's shoes were last
seen in Al's shop when
they were packed with other of his clothing. Molefi then said that A3
did come on Sunday and that he misunderstood
counsel's question as to
whether he was referring to the Friday or the Saturday. It was
submitted this was a deliberate lie but
I do not think it was, Molefi
was attacked on his . evidence relating to the shoe found on the 4th
January when he said A3 did
not seem to "approve" and gave
him no letter or messenger to the police. A3 says he dashed to the
bus while Molefi says
he had to wait for the bus. Whatever the truth
is, the Court must assess whether Molefi's evidence on the events
from Saturday
the 27th December to Monday 5th January were based on
fantasy formed in retrospect and ex-poste facto the events when
casting his
mind back on those days or whether he had some factual
basis. A3's disinterest is evident from his own answer to the
question as
to why he did not take from Molefi the deceased's watch -
which the defence suggested Tselane robbed the deceased of on Xmas
day
- and advised Molefi to take it (and deceased's photos) to the
police instead, a story incidentally that is supported by no
independent
source and is I think a product of A3's imagination and
another myth created to mislead like the deceased drowning or his
habit
of being lost in caves, first to the populace, and then in
Court. Molefi says he took the shoe first to Mokhifa and then to A3
in what he terms the "normal channels", i.e. the
chieftainship and perhaps did not want to wait. Molefi might be a
simpleton
but his evidence of A3's dilatory and suspicious conduct is
confirmed by his not accepting the police letter addressed to A3 on

the 30th or 31st December 1980 when he went to report to Qacha's Nek
police and proceeded directly to the highest Central Government

authority in the area to complain so Molefi was not imagining. The
Court does bear in mind that A3's

33

conduct
before the discovery of the body may have sprang from laziness or
incompetence, but I (and my assessors, chiefs in their
own right)
discount this as a reasonable possibility: a chief is a peace officer
in Lesotho and his duties are enshrined in the
Chieftainship Act 1968
(ss 6 and 7). A3 says he informed the police and his superior chief
about the deceased's disappearance,
but the first information
recorded by the former is from Molefi and there is only A3's word
that he informed his superior chief.

We now
come to the events at the river when the body was discovered. Molefi
says Al offered him a coffin which he refused and A3
wanted the
burial of the deceased to take place right away which he also
refused. Al says that he offered to sell a coffin and
A3 denied he
wanted to bury the deceased but these events have been witnessed by
Lesoetsa Lepheane (PW6) already referred to who
is independent of the
parties involved and one of those who helped lift the deceased's body
from the hollow to the top. He was
hardly cross-examined because his
evidence as it appears at the Preparatory Examination was also
admitted, but he confirms a commotion
occurred over the coffin and
burial involving Al and A3. As far as one can make out he says Al
offered to donate a coffin "because
Molefi said he did not have
one" and that"A3 and Molefi" were in favour of the
burial although he (the witness)
was against. (See s.3 of the
Inquests Proclamation on the duties of chiefs). It is very very
unlikely that Molefi who showed such
persistence throughout would
have consented to accept a coffin or to bury his son. He had already
sent his uncle Sisimane to call
the police who came back with them at
about 4 p.m. without any sign of the boy allegedly sent for the same
purpose by A3. Mlandeli
Simelane(PW7) says he heard A3 say the body
should be kept until the arrival of the police. The important thing
however, is when
he said it and if that was after a fight was about
to start, as I think it was, assuming that is, Mlandeli has been
candid, and
after the attempt at burial failed. Only those who
participated in the murder would, in my view, be in favour of it, or
in floating,
even if it is in the form of a question, that crabs may
have eaten the deceased's mutilated parts and a coffin can be had and
burial
carried out at the river. I do not think A3 is a "lunatic",
but if we go back to one version of Al's speech when the deceased's

body was laid for those

34

present
to look at, he said (to some apprehensive participants) that the
police were his friends, Tselane also said A1 said he would
tip the
police. What A1 and A3 tried to do is consistent with what had been
said at the time or soon after the murder.

Furthermore
I am bound to ask myself what prompted A1 a busy man with a thriving
business to proceed to the river some miles away.
It could be from
innocent curiosity of course like most of the twenty or so men who
went there, but it could be the reaction of
a murderer who goes back
to the scene of the crime from impulse. In this case there was good
reason for A1 to go because the extent
of the decomposition of the
body, 17 days after the murder, was vital to distinguish accident
from crime. When added to the factors
I have just detailed, I can
reach no other conclusion except that those factors tend to prove
A1's and A3's guilt and afford corroboration
of the accomplices
evidence. I am not persuaded that the words they uttered and their
conduct were equivocal in the particular
circumstances of this case.

Molefi
has not mentioned Tselane's second "dream" at the
Preparatory Examination. A witness, however, answers questions
put to
him by the prosecutor. The object of a Preparatory
Examination(especially when cross-examination is reserved and no
statements
are made) is to find out if there is sufficient evidence
to commit. The only evidence upon which an accused can be convicted
or
acquitted is evidence heard at the trial and the evidence of
witnesses admitted in terms of s.273 of the Criminal Procedure and

Evidence Act 1981. A previous statement inconsistent with the
evidence given in Court has the object of challenging his credibility

and reliability. In a trial there are more questions asked, more
probing, and more opportunity of observation and assessment. This
can
be seen from the volume of the papers at the trial. I am of opinion
that Molefi did not trim his evidence to fit in with Tselane
and
Ntsokeleng and he is a truthful and reliable witness.

A1 gave
evidence describing his movements in detail from the morning of Xmas
day to the following day. His articulation however
did not have the
ring of truth. Take the example - his distribution of sweets to the
village children

35

throughout
the morning, Mosala was there when the deceased came to ask for his
Xmas present and A1 says he offered him sweets. Mosala
was not
offered sweets and was not asked if he saw A1 giving away sweets and
heard no protest from the deceased that he was not
a child and wanted
liquor not sweets. And if Al, as he says, does not stock liquor, the
question must be asked as to why deceased
had been sent to A1's shop
in the first place. If he wanted to buy some liquor or get it on
credit, the deceased would surely have
gone or been sent to the shop
that stocks it, not to the shop that does not, especially from a
shopkeeper, who says he did not
know the deceased well, had seen him
only when wearing a hat, and had not known about his white spot of
hair when everyone else
seemed to. A hypothesis that another group of
persons from or around Hill Top, unconnected with A1, had in mind the
ritual murder
of the deceased, on the same day, in the same manner,
using the same means,but in a different house or shop, who sent the
deceased
nevertheless to A1's shop for his Xmas present and made sure
not only that he would get it but also anticipating possible
detection
and arranging in advance,that should this event occur, they
will have the perfect defence of laying the murder at the door of A1

- the police conniving aiding and abetting -is too remote a
possibility and cannot withstand the test of reason and common sense

(see S. v. Artman 1968(3) SA 339 at 341 B). The only reasonable
inference is that deceased went to A1's shop in furtherance of
that
particular aspect of the plot and affords satisfactory corroboration
of the accomplices trustworthiness on essentials if not
on details in
addition to Molefi's evidence supported to a large extent by Lesoetsa
Lepheane of the events at the river,

A1's
circumlocution - in the nature of confession and avoidance - and to
my mind the evidence of his two nephews -who securely looked
him up
not allowing him and his daughters to even use the toilet - which was
orchestrated to a fine point- is incapable of belief.
No one spending
an ordinary Xmas day at home will have his eyes glued to time,
apparel, shoes, meals, music, and keys. And no visitors
dropping in
are likely to remember what A1's nephews allege they remember. If
they spent the night there with a two ton truck outside
it is strange
that Kantini did not see it and stranger still not to have been asked
about it at all. Al's nephews were not

36

however
able to orchestrate their evidence to perfection regarding the
morning of the 26th. Limpho says A1 left the garden without
saying
anything ana on his return told them that he had gone looking for a
person who had drowned and that is why they were waiting
before
taking their leave, whilst Rasethunyane says A1 said before he left
the house that he was doing so because he received a
message that
people were looking for a person and said nothing when he came back.
In my view they are liars with an interest and
I reject their
testimony in its entirety,

Mr.
Weinstock raised the point of the police failure to check on the
depth of the ditch in A1's shop. I think this was a grave omission

but I am not prepared for that reason to reject Kantini's evidence
that there was one under the floor boards and that it takes
a body
and there is evidence A1 did not open his shop on the Friday for he
was looking for the drowned man in the morning and the
afternoon.
Kantim says A1 showed him the tongue. I do not consider Kantini's
failure to observe the removal of the small tongue
as sufficient to
disregard his evidence. He was not a doctor or medical student
intently looking as if with a magnifying glass
on an operation
performed by a famous surgeon from a hospital theatre gallery. The
vehicle was parked about 23 paces (pointed)
between the shop and the
house in darkness and Kantini had met Tselane and Ntsokeleng at the
door of the cafe in the other direction
(see D1 of the sketch Exhibit
J). I see no impossibility of timing here to enable the men to carry
the body back as it could not
have taken more than a few minutes
either before or after he and Ntsokeleng had repaired to his room. I
do not consider the variation
on the noise of the vehicle and
deceased's position when the accomplices entered (Kantini stood first
by the door - see D2 in the
sketch Exhibit J and then went behind the
counter - whilst Tselane and Ntsokeleng went to the public area of
the shop) to be more
vital than other variations I referred to
earlier in my judgment.

The Court
cannot in my view equate witnesses of a murder of this type (Tselane
and Kantini having had plenty of drinks before) as
if they were music
critics going to attend a familiar opera knowing in advance the
entries and exists of the actors and the arias.
There were thirteen
persons - the nine accused, the three accomplices and Taole - in a
shop that

37

measures
overall 15 paces by 10 paces with a long counter (with a show box
case on top) leaving some 10 paces by 8 paces for the
public with
stoves burning hot iron and boiling water, etc.. Most of the
variations that had occurred were in relation to details
of what must
have been a night of sorcery blood and terror, I am satisfied beyond
any reasonable doubt that the accomplices were
telling me
substantially the truth and it is safe to rely on their testimonies.
Their evidence was corroborated with respect to
A1 and A3 as I
mentioned earlier. Al's alibi and A3's alibi (the latter outlined
earlier in this Judgment) are accordingly rejected
as false.

I find no
corroboration of the accomplices evidence as far as A2, A4, A5, A6,
A7, A8 and A9 are concerned. The M120 found on A9
means nothing and
Molefi's evidence of A2's ''change of attitude" was clearly
formed at a later stage and also means nothing;

The
approach that I propose to adopt to alibi evidence (as I endeavoured
to do in respect of A1 and A3 against whom I found corroboration
of
the accomplices evidence pointing irresistibly to their guilt) is to
consider those other accused alibis in the light of all
the evidence
in the case and my impression of the witnesses and the surrounding
circumstances and from that totality to decide
whether their alibis
might reasonably be true (R. v. Hlongwane 1959(3) SA 337(AD) at 341).
The vital question here is whether the
accomplices can be trusted
that they have not implicated the others falsely. A5, A6, A7 gave no
evidence though A6's husband (A2)
and A5's and A7's employer (A1) did
so on their behalf so to speak and they did not give me the
opportunity to observe them (as
is their right but from which a court
may draw an unfavourable inference which I do) whilst A2, A4, A8 and
A9 went into the box.
I have earlier outlined what they say, but only
A8 called evidence and this must now be evaluated at a little length.

A8 (who
was arrested in May 1981) testifies he was at Qhoalinyane and could
not have been at Hill Top on Xmas day 1980 after 2 p.m..
When charged
and cautioned by W/O Mapeshoane A8 says he was not given the
opportunity to make a statement or explain. W/O Mapeshoane
says on
the other hand that he was given such an opportunity but elected to
remain silent (or said he will speak only in Court)
and that when
previously questioned

38

about his
movements on Xmas day A8 said he was at his home at Qacha's Nek with
his wife. Now I do not think there was a misunderstanding
about the
date of the officer's enquiry for A8 says he knew from his brother A1
about deceased's disappearance on Xmas day and
must surely have known
about A1's police interview on the 6th January. Mr. Weinstock
suggested that the officer lied about A4 and
could have lied about
A8. Now at p. 57 line 15 of the Preparatory Examination the officer
is recorded as having said A4 said he
was at Al's home on Xmas day.
The officer replied he was not lying and that he told the magistrate
that A4 had said he Was at home
at Mapakiseng. The magistrate noted
at p. 58 of the Preparatory Examination when the statement was read
over to the officer as
follows : My statement reads that A4 said
she(in fact he) was at Al place: "The correct statement should
be that A5 said she
was at accused one place whereas accused 4 said
he was at his home at Mapakiseng". So the officer was not lying.
He struck
me as a truthful witness and was in fact a member of a
fresh investigating team sent from Maseru and I see no reason why he
should
lie on this point because for him it mattered not where A8 was
going to say he was on Xmas night: he was going to arrest him anyway,

whilst A8 had every reason to change the venue of Xmas night to take
it further away from Hill Top as he could. The fact is that
at the
Preparatory Examination A8 had exercised his undoubted right to
remain silent and I am not prepared to say the W/O was lying
when he
said A8 exercised his equally undoubted right to remain silent a
couple of months earlier when charged and cautioned.

Lies,
whether in or out of court, do not in our jurisprudence, constitute
corroborative evidence per se against an accused but may
weaken or
destroy his own (and his witnesses) evidence depending on the
circumstances - (Hoffmann South African Law of Evidence
2nd Edition
p. 420). The position in England today is that there seems to be a
distinction between lies told in court which cannot
amount to
corroboration and lies told out of court which may - R. v,
Chapman(1975) Cr. App. R. 381 - 1973(2) All E.R. 624 - but
the
proposition seems to have been doubted in R. v. Boardman 1974(2) All
E.R. 958 at 963 e-g (see also Phipson on Evidence 12th
Ed. para 1642
at pages 692 and 693).

39

The
officer however did not record(in writing) what A8 said and it may be
that A8 when questioned about his movements understood
the officer to
refer to Xmas Eve not Xmas night. I will proceed to examine the
quality of his evidence and his witnesses. He says
that after a meal
was prepared,friends came to visit him from the afternoon of Xmas day
and he remained at home thereafter. A prostitute
(who had never seen
him before and this sounds true since she was a recent newcomer to
Hill Top), one other loose lady, a herdsman
cum watchman cum gardener
(both of whom knew him from periodic visits) say they saw him at Hill
Top sometime after dusk. If A8's
evidence were to be believed, it
must have been a normal Xmas day spent at home (be it at Qacha's Nek
or Qhoalinyane) like most
of Christiandom, He says it was - but at
precisely when ritual murder was being contemplated at or around Hill
Top (not at his
brother's Al's shop for he was asleep) but elsewhere
in the village he gave the keys of his van (which Kantini is familiar
with)
to his son Thabiso to take the chief of his village some 3
kilometers away to his home and switched on the van lights, Thabiso
taking long enough time over this journey (which the chief was ready
to confirm) to enable Mrs. Mokhothu (DW4) and a boy called
Lebohang
(DW3) (both of whom say they did not see a van) come between 8-9 p.m.
on Xmas night to ask his permission to park the
Reverend Seala's Benz
in his compound -the Reverend and his family having chosen one of the
holiest days in the Christian calender
to travel from Morija to
Qhoalinyane (half the length of the country) almost at the same time
when the victim of murder was being
mutilated at or around Hill Top.
The evidence suffers from the obvious deliberate synchronisation of
A1's witnesses on timing perhaps
without realising its incongruity.
If that day was uneventful, as A8 maintains it was, I cannot imagine
him or his chief remembering
that the car lights had to be put on his
vehicle when his son Thabiso was asked to take the chief home. The
chief himself was present
in Court at the Preparatory Examination and
listened to Kantini's evidence and whilst this fact is not by itself
sufficient to
exclude or reject his evidence, I am convinced he is
not telling the truth and was motivated by a desire to mislead the
Court and
to save, if he could, one of his prominent citizens from
ignominy.

Mrs.
Seala did not appear to me to have the conviction

40

of a
woman speaking the whole truth and sadness and incredulity at a
friend of hers (and her Reverend husband) being involved in
a sordid
murder prompted her, I think, to offer whatever help she could short
of perjury. She testifies that she saw A8 on Friday
the 26th December
in the morning hours (by which time, if she is telling the truth of
course, A8 could have been at Qhoalinyane
giving an account of his
trip to look for a daughter who eloped) but she added that Mrs.
Mokhothu and Lebohang had told her that
when they parked the Benz
they saw A8. Lebohang and Mrs. Mokhothu did indeed so testify (with
slight variations as to the details
of the conversation they had with
A8) but fourteen months have elapsed since Xmas 1980 (Lebohang
seemingly meeting A8 on only this
one occasion) and Crown Counsel's
cross-examination was directed towards testing their credibility and
veracity. Lebohang says
he had no occasion since that Xmas 1980 to
recall the events until his mother towards the end of 1981 showed him
a "subpoena"
which she said only that it was in connection
with A8 but he did not ask her "what type of evidence he was
supposed to give"
until reminded by counsel who interviewed him
an assertion which is impossible to believe. Mrs. Mokhothu faired no
better. She
claims she did not know that A8 was arrested and what for
and had no idea why we are all assembled in this Court room.
Explaining
her appearance she says:

"I received a message which had been written by the wife of A8
that I was required to appear in connection with the vehicle
of the
Rev. Seala".

This
witness had arrived from Quthing district a week or so before she was
due to appear in Court in the middle of March 1982. She
stayed with
the Seala's at Morija and maintains no one ever reminded her of the
events of Xmas day 1980 until interviewed by counsel
a few days
before she gave evidence - an assertion which is impossible to
believe. I am not unaware of instances where an innocent
accused
sometimes lies (and brings witnesses to 11e) in order to make the
truth more plausible but this is not such an instance
and I am of
opinion that Lebohang's and Mrs. Mokhothu's evidence is palpably
false. If the Sealas did drive all this way on Xmas
day I am sure
beyond any doubt that Mrs. Mokhothu and Lebohang did not see A8
between 8-9 p.m..

41

Now,
speaking in the abstract, the status, calling or reputation of A1 and
A8 (and their witnesses) in the community is certainly
more superior
than Tselane Ntsokeleng and Kantini, But in criminal law,status,
reputation or calling is not necessarily a guarantee
of the truth any
more than the inferior and sometimes immoral status,reputation or
calling of others is not necessarily a guarantee
of its falsehood.
Superiority in criminal law must be gauged in the context of all the
evidence heard and the circumstances surrounding
the crime and it is
herein that the superiority of the compelling evidence of the humble
and immoral in status, though themselves
murderers, that, after many
days of thought, I hold must prevail. A8's alibi is accordingly
rejected as false.

A2's
evidence is that he spent the best part of the Xmas day until after
dusk drinking at Lioling then repaired to Hill Top, had
more drinks
at a friend's house there and went home to sleep, but noticed one
special star appearing between two clouds in an otherwise
cloudy
night, that star that moves from East to North. If he was not at Al's
cafe that night and was spending an ordinary Xmas
drinking himself to
full capacity, why, I ask myself, should he decide to look at that
particular star on that particular cloudy
night.

Now A4
suggests that Tselane is a liar for reasons he had mentioned but when
all is said and done he is a relation, and to put his
name in falsely
would have been such a great enormity which even she was hardly
likely to do. Blood, it is said, is thicker than
water. My impression
of Tselane is that she did not care one iota what he or others think
of her; she is perfectly capable of looking
after herself. She is,
however, supported by two other accomplices and I am not able to find
a motive to implicate him and A4 has
every reason to deny.

A9
position is rather curious but all three accomplices are agreed he
was present at Al's shop. All know him well as they do the
others
except that Tselane did not know A8 from before. A9 says he was not
there. I have no doubt that the deceased was murdered
in Al's shop
and transported to the gorge many kilometers away in the manner
described by Kantini which he disclosed to Ntsokeleng
and Tselane but
not as to the exact place. Some labour was needed for the last
kilometer or so -that is clear - and I am of the
view that the
accomplices were

42

not
falsely compromising him.

There are
some imponderables: who, and how, was the deceased finally brought to
A1's shop? Did Tselane play a more major role in
this than she cared
to admit? Was Kantini trying to falsely implicate A10, A11 and A12
and conversely were Tselane and Ntsokeleng
trying to protect them?
And what about Taole? I do not think speculation is needed for I have
to decide on the evidence before
me.

I am
unable to find a possibility of conspiracy amongst the accomplices to
incriminate A1 and A3 and I see no reason to hold that
there must
have been one against A2, A4, A5, A6, A7, A8 and A9 (S. v. Hlapezula
1965(4) SA 439 (AD) and R. v. Tela 1964(2) SA 436
at 441 E). I find
in the confirmation of each other's evidence on identity, when all
other circumstances are considered, a sufficient
safeguard to reduce
the risk of a wrong conviction of the above accused to nil. A2, A4 (I
have dealt with A8 already) and A9's
alibis (together with A5 A6 and
A7 "second hand" alibis through the mouths of A1 and A2)
are also rejected as false.

I find
all the accused guilty of murder as charged (except that the
indictment would have been better framed if the place of the
murder
had been put" at or near Hill Top" rather than Tsoelike -
but no objection was taken) beyond reasonable doubt
and convict them
accordingly.

My
assessors, to whom I have explained the risks and the dangers and the
caution required in cases of this nature agree that all
the accused
are guilty of murder beyong reasonable doubt.

CHIEF
JUSTICE

29th
April, 1982

For Crown
: Mr. Peete

For
Defence: Mr. Weinstock(instructed by Mr. Kolisang)for A1 - A8 Mr.
Mlonzi for A9

P.S.:
Will the Registrar please see to it that in the event of appeal the
evidence at the P.E. of Likotsi Seroke(PW7) Mantsoele
Seroke(PW8)
Paulus Phomolo(PW12) Sisemane Seroke(PWll) D/Sgt Putsoane (PW19) -
admitted by the defence - are incorporated in the
appeal record, and
if so directed by the President, the evidence at the P.E.

43

of any
witness heard at the trial.

Will the
Registrar also note that the evidence of Mrs. Suzan Mokhothu(DW4) was
taken in long hand by the Court (and approved as
correct by Mr.
Peete, Mr. Weinstock and Mr. Mlonzi) and this too should be typed
from the original and incorporated in the appeal
record.

EXISTENCE
OR OTHERWISE OF EXTENUATING CIRCUMSTANCES

30th
April 1982

Mr.
Kolisang on behalf of A1 - A8 did not pretend that there can be
extenuating circumstances in respect of A1, A2, A3 and A8 but

submitted I should take into account the role that A4 and the women
(A5, A6, and A7) had played and their degree of participation
in the
crime.

Mr.
Kolisang also said (and I have no reason to doubt his word) that A7
was born on the 26th December 1962 (she did appear to me
to be about
19 - 20) so that at the time of the commission of the offence she was
one day below her 18th birthday. Mr. Kolisang
added that s. 297(2)(b)
of the Criminal Procedure and Evidence Act 1981 would apply to her
case and she could not be sentenced
to death. I accept that.

Mr.
Mlonzi submitted that A9's participation was relatively minor and
this should be taken into account.

My own
initial reaction was that there can be no distinction in moral
blameworthiness in a crime of this nature. However Judges
cannot
divorce themselves from the people amongst whom they live, and I had
to, per force, seek the enlightenment of my assessors.
It is true
that they have no vote either on the lav; or the facts or on sentence
but they do, and must, with their more profound
knowledge of the
customs and habits of the people, carry persuasive influence
certainly on sentence and the existence of extenuating
circumstances,
otherwise the Judge will be living in a vacuum.

My
assessors are able to see a distinction between the leaders of this
type of murder and others who towed the line. They explained
that
there is such great fear of evil witchdoctors which makes some of
those approached to participate fall under the magnetism
or the spell
of the leaders that they are quite unable to extricate themselves,
"Liretlo", as this murder is called in
Lesotho, fortunately
rare, knows no class boundary. Both the educated and the uneducated
succumb to a bewildering belief in its
efficacy. It is sad and
shameful and forms no part of the customs or the history of the
Nation, My assessors told me (I have since
verified this from
Thompson's Survival in Two Worlds -Moshoeshoe of Lesotho 1786 - 1870
p.42 and 53) that the founder of the Nation
had shown mercy to the
cannibal tribe of

45

Rakotsoane
that ate his grandfather Peete who was trailing at the rear of a
column on his treck from Butha-Buthe to Thaba-Bosiu
in the 1820s.
However, there was hunger in those days; there is none now.

However I
am persuaded that I ought to make a distinction between the leaders
and the others. I find extenuating circumstances in
respect of A4,
A5, A6 and A9. I am not in bad company: Schreiner J.A. in Kgolane &
Others v. R. 1960(1) PH.H 110 p.168 at 170
is reported to have said
:-

"No doubt, particularly where a number of persons are concerned,
one or more of whom are in control and who are in a position
to
require the obedience of the rest, the moral guilt of the latter may
be less than that of the leaders".

SENTENCE

A1, A2, A3 and A8: Death by hanging in accordance with

s. 298 of the Criminal Procedure and Evidence Act 1981.

A4 and A9: Imprisonment for life.

A5: 12 years imprisonment.

A6: 10 years imprisonment.

A7: To be detained pending the signifi­cation of His Majesty's
pleasure with a recommendation that the period of her detention

should not exceed the term of imprisonment passed on A5.

CHIEF
JUSTICE

NOTES ON
SENTENCE

1. We
   have made a distinction between A5 and A6 on imprisonment because we
   have taken into account that whilst A5 is only an employee
   of A1 and
   could have gone to her parental home or found another job, A6 must
   have been influenced or was under some compulsion
   (even though not
   pleaded) by her husband A2.

   
   

2. Under
   the provisions of s.26 of the Children's Protection

   
   

46

Act 1980
which came into force on 2nd November 1981 (Legal Notice 37/81) a
person under the age of 18 cannot be sentenced to imprisonment

anymore and detention during His Majesty's pleasure is the only
proper way to deal with A7 in the circumstances.

ORDER:

The three
accomplices, Kantini, Tselane and Ntsokeleng are granted immunity
from prosecution.

CHIEF
JUSTICE