CRI/T7234/02

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

Vs

1. MOLOI
SAKOANE

2.
TSEKISO HESHEPE

For the
Crown: Miss. Shale

For
Defence : Mr. Molapo

JUDGMENT

Delivered
by the Honourable Mr. Justice WCM Maqutu on the 24th May, 2004

HL: This
is my Judgment:

This is a
ruling at the end of the Crown case.

I have
heard defence counsel saying there is no evidence which a reasonable
court might convict on the counts before court.

Count (I)
is that of Murder, Count (II) is that of Stock Theft. We will start
with Count (I). I am conscious of the fact that the
Crown Counsel
says she has made out a case, now I will go briefly over the facts.
The facts are the following:

There is
no dispute whatsoever that cattle were stolen from the deceased, the
late Ts'otleho Tuoane or Tuoane Ts'otleho. There is
also no dispute
that he was badly assaulted and that as a result the injuries he
sustained, he died. So we have only two issues
here, one, whether the
deceased was assaulted by these two accused when he was going to look
for his animals and following them.
The second one is whether it is
the accused who stole the animals.

Now there
is clear evidence that Pwl and Pw2 did not know the people who
assaulted them including the deceased. They had never seen
them
before and that is the first major point. If they had identified them
at an identification parade among many people the suggestion
that
they saw them and marked their features - and were able to identify
these accused would have substance because it would be
clear that
they remained in their minds and they were able to distinguish them
among other people. To see people at Salang where
they are put before
everybody and to memorize their features or learn or study their
features so that they can know them is not
acceptable in courts. It
is unfair because it amounts to manufacturing evidence.

Now when
you come before courts who have to examine circumstances then if it
is clear that the witnesses were able to learn the
feature of the
accused somewhere, who can accept if the witness says to the court:
"I identified them." That evidence
becomes suspect, that is
why there are identification parades, to remove this suspicion

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that
being the case I cannot act on what these two witnesses say in
respect of identification of these two people because it is
just not
the way courts work. It is full of suspicion such evidence may be
said that was evidence created after the event.

The
second idea is that of evidence of a circumstantial nature. If the
animals of the deceased were found with either of the accused,
then
that would lead to a suspicion that they had something to do with the
theft or his death. Let us start with the saddle and
boots. Those
were found with Tholang Ramokobo, that is the man on which suspicion
falls. None of these accused are connected with
the saddle and the
boots. The production of the sticks by the accused does not help at
all. People who confess must confess before
a Magistrate freely and
voluntarily. We are not told why the sticks are before the court. Now
Crown Counsel could not even refer
to this because it probably has
evidence that is inadmissible in courts. So the fact that the sticks
were taken from the accused
or which the accused handed sticks to a
policeman is nothing. There is no evidence of how these sticks came
to be given, so that
too does not help. So on the first Count, there
is nothing that connects the accused with the death of the deceased.
The only person
so far who has something connecting him with the
deceased is Tholang Ramokobo who is not before me.

Now the
last charge is that of Stock Theft. Pwl told us that they went early
to the home of Accused 2. According to him they found
accused still
in bed and they went there to the kraal and cattle came out. At the
door of the kraal one of the animals of the deceased
was identified,

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but then
the policeman says this animal was found below the kraal and that
witness was Pw4. He says those that were there, were
satisfied that
that animal came from Kekeletso Heshephe and he was charged for the
theft of this animal. There was nothing at the
kraal, which was
supposed to be used by Accused 2. So once things are like this it
becomes very difficult for the court to say
on this very sketchy
evidence there is anything for the accused to answer. This animal
even the way it was (described for the person
who understands
anything about cattle) the description of the animal creates
difficulties for me because the policeman describes
a different
animal from the one that was described by Pw2. Usually when the
Basotho describe a animal, an animal which is lebotha,
sebotha or
botha this always comes up in the description. The one that Pwl
described was a black and white (phats'oana). Now lebotha
to English
speaking people might be said to be black and white. But when the
Basotho who know cattle describe an animal and it
has this white
under belly that comes out because it is not just phats'oana. The
marks on this animal, the way they were described
by Pw2 became
difficult for me to understand. How the two half moons behind the ear
can just become two snips is very difficult.
Even the fact that the
ear-marks were bleeding was significant even if it had been
established. Even if it had been so, the animal
was found below
cattle kraal among the cattle that had been in the kraal of accused.
Someone else was charged for the theft of
this animal - that does not
connect it to Accused 2. It even creates difficulties whether that
animal was the one of the deceased
at all, unless Daniel Habanyane
Pwl did not quite know the animals of the deceased.

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With this
type of evidence I have no option but to say the Crown has failed to
establish any case against the accused. It does not
mean the accused
are innocent, this means there is no evidence and therefore I cannot
do anything to them.

Stand up
accused.

As I have
already said the Crown has not made prima facie case against you. The
accused are therefore found not guilty and discharged.

The court
will adjourn.

WCM
MAQUTU

JUDGE

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