CRI/T/154/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

vs

MALERATO
MARY NTHERI

TELUNTSO
MAHLOANE

Judgment

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 4^th March, 2008.

Both
accused appeared before me charged summarily with the murder of one
Mohapi Tsolo, it being alleged that upon or about the 28th
March,
2000 and at or near Qoaling Ha Ratsoane here in

2

Maseru
the accused, one or both of them unlawfully and intentionally killed
the deceased.

When the
case commenced on the 23rd November, 2006 counsel for the accused
reported to the Court that his client was saying he has
a mental
problem. The Court felt that it ought not to have been the accused
himself reporting about his mental state but the doctor.
The Court
therefore ordered that accused 2 be taken to a Psychiatrist for
mental observation and thereafter furnish the Court with
the report.

The
Psychiatrist attended to the accused and prepared a report. The
report indicated that accused 2 had some mental problems and
was not
therefore fit to stand trial. On the basis of that report, the Court
had to make an order committing accused 2 to prison
pending the
satisfaction of the King's Pleasure in terms of section 172 (1) of
the Criminal Procedure and Evidence (CP&E) Act
7 of 1981. The
Prosecution thus applied for separation of trials in terms of section
170 of CP&E Act and the application was
granted allowing the case
to proceed against accused 1 only.

The
charge was thus put to the accused who pleaded not guilty to the
charge and his Counsel showed the plea was in accordance

3

with his
instructions. The plea of not guilty was accordingly entered.

The
Prosecution in its opening address intimated that the accused had
procured another person by the name of Teluntso to go and
kill the
deceased. This Court has thus been called upon to decide on whether
there has been enough evidence adduced to prove beyond
reasonable
doubt that the accused did in fact incite another person to kill the
deceased. And whether there was a promise to pay
such incitee as a
reward.

The Crown
led evidence of three witnesses to prove its case. There were also
some four admissions which included a post­mortem
report. The
statements admitted were handed in and marked as exhibits.

P.W.1
Pheello Mashaile has told this Court that he knew both the deceased
in this case and the accused. They were doing the same
job with the
deceased as bus conductors. One day as he was at one 'Maneo
Phamotse's shop, the deceased arrived on a bakkie accompanying
a
policeman to that shop. The witness asked the deceased to buy him
some beer and he complied.

4

After a
short while as P.W.1 enquired about the deceased, he was no longer
there. A remark came from the accused that the deceased
could never
stay in the same room with her as she suspected the deceased had
stolen her inventor. P.W.1 was then asked by the accused
to talk to
the deceased to bring back the accused's inventor or otherwise he was
not going to see Easter.

Indeed
P.W.1 did confront the deceased about the inventor but the deceased
denied any knowledge of such allegations. On some other
time P.W.1
met the accused who told him that he had told the deceased to tell
his wife to buy a coffin. According to P.W.1 the
accused was very
angry as he was telling him all that.

This
witness was amazed when after some two days he learned about
deceased's disappearance. The report came from deceased's wife.
P.W.1
then accompanied the deceased's wife to report to the Police,
Lithoteng Police.

But
before they left to report the matter, this witness had noticed a
paper on the table with something written on it. On closer
look at
that paper, he found that it had some three names written on it with
a note, "we are Thamae Police." The witness
could no longer
recall the names that were written.

5

The
witness must have enquired from the Police about the three names that
were written on that piece of paper at deceased's place.
He then said
the Police confirmed that the names were those of the Police Officers
who worked with them. The Police even phoned
Thamae Police to enquire
if the deceased had to be arrested the previous day, but they showed
that they had no knowledge of such
arrests. P.W.1 had even reported
to the Police about the threats which were made by the accused about
the deceased. The witness
learned of deceased's death the next day.

When this
witness was being cross examined, it was suggested to him that the
accused was never at 'Maneo Phamotse's shop on that
day. Towards the
end of the cross examination the witness was told that in fact there
were some other men in the shop on that day
to which the witness
responded by showing that but he was drinking alone.

P.W.2
Ramohapi Lichabe was declared as an accomplice and he was accordingly
warned in terms of section 236 of Criminal Procedure
and Evidence Act
of 1981. The Defence Counsel objected to the calling of this witness
as an accomplice. His reasons being that
there could not be an
accomplice in a murder trial. I must say that I did not quite
appreciate what was meant by this but my ruling
was that the witness
was allowed to give his

6

evidence
as an accomplice if at all he had had a role to play in the killing
of the deceased. The Defence had referred to the Criminal
Law Book by
CR Snyman, 3rd Edition p.261, but the book ends at page 255.

But my
reading of the same text at p197 in the judgment of Joubert JA in S v
Williams 1980 (1) S.A 60 I came to realize what the
Defence Counsel
was saying. That the attitude of an accomplice to murder is to be
found in the fact that he has the intention to
assist the perpetrator
or joint perpetrators to kill the victim. In the case of murder an
accomplice's fault lies in the fact that
he has the intention to
promote the commission of murder, thus intending to kill the victim.

It would
be clear from the above that as the Court I would not have been in a
position to have known what P.W.2 was going to say.
The exchange of
statements would have been between both Counsel only and the Court
would first have to listen before making an
assessment.

This
witness told the Court that one day in 2000 as he was enjoying his
drink at 'Manhlapho's place, one man by the name of Teluntso
Mahloane
arrived in the company of George Phakisi.

7

The two
asked P.W.2 to accompany them to Ha Peter to collect money from
someone who owed them. They never told him as to how much
money was
owed and from whom it had to be collected, and he too did not bother
to ask them.

On their
way to that place, P.W.2 said he noticed that Teluntso was carrying a
gun. They continued on their journey till they got
to what he said
were flats built of block bricks and were facing East. They were at
Ha Peter. P.W.2 saw Teluntso knock at the door
of the first flat and
when a person inside asked as to who was there, Teluntso showed they
were CID Police.

P.W.2
said as Teluntso introduced them as Police, he even gave out names of
the alleged Police Officers. The owner might have opened
because he
identified the names of those Police Officers.

Teluntso
talked to the owner of the flat and told him that they had come to
collect him. Teluntso then started kicking at everything
inside the
house as if he was searching for something. He managed to get some
handcuffs between the mattresses. He then handcuffed
that man and
started kicking him. They left the house and on their way the witness
asked Teluntso as to why he had handcuffed that
man but he was
angrily rebuked by Teluntso to

8

keep
quiet. They were all coming following the handcuffed man as Teluntso
had said the man was going to show them the way. They
moved for a
distance of from the High Court to the Magistrate's Court. They
entered a house there with a single door. Teluntso
entered the house
with the man who was handcuffed leaving the two outside. They later
came out and they proceeded through a passage
till they got to a
hillock. Up that place, the witness tried to run away but Teluntso
pointed a gun at him.

As
Teluntso pointed a gun at the witness, the handcuffed man tried to
escape but Teluntso left P.W.2 and chased that man and the
person
fell in the process. Teluntso was seen stabbing the man several times
with a knife. He even stabbed him on his throat and
the witness said
he heard a tl—tl—tl— sound as though cutting a hen
on its neck. This witness saw Teluntso throw
the knife away after the
stabbing to a distance estimated at 5 paces. P.W.2 was not able to
see the type of knife that was used
possibly because it was at night.

The three
of them then left the scene leaving behind the person who was
stabbed. They went back to that house with a single door.
Teluntso
was the only one who entered the house leaving the two of them
outside the house.

9

He later
came out and they left. On their way home Teluntso said he was going
to collect his money from that woman the next day.
P.W.2 did not even
know the woman referred to. He said Teluntso warned them not to
report to anyone else they were going to suffer
the same fate as the
man they had left at the mountain. The three of them were later
arrested. This witness only came to know the
accused when she was
introduced to them by Teluntso as they attended remands. He came to
know of the name of the person who was
stabbed over the radio.

P.W.2
further said in his evidence that he was seeing the deceased for the
first time on that fateful night. This witness said he
accompanied
Teluntso to Ha Pita that night because they were friends. It was not
their first time going out together. He said when
Teluntso was
stabbing the deceased, he was only 2 1/2 paces away from them.

The third
witness was D/Sgt Khanyapa, who investigated this case. He had
visited the scene of crime and found the deceased with
multiple stab
wounds and was still handcuffed. It was a dead body of a Mosotho male
adult. He also found a blood stained okapi
knife some 3 paces away
from the dead body. The body had

10

sustained
an open wound on the right side of the neck. Multiple open wounds at
the back of his neck. Another open wound on the left
jaws.

P.W.3
took the handcuffs off the dead body and took the body to the Chiefs
place and later taken by Police van to the mortuary.
He also took
away the exhibits he had collected from the scene, the okapi knife
and the handcuffs. They were handed in as exhibits
and were market as
such. Senior Inspector Tsolo who transported the dead body to the
mortuary identified the body as that of the
deceased Mohapi Tsolo as
his relative.

His
investigations led him to the arrest of the accused. After giving her
the necessary caution, the accused gave him an explanation.
Because
the explanation that she gave was implicating her, the Defence
Counsel challenged its admissibility. He said the explanation

amounted to a confession and as such was not admissible as was never
taken before a Magistrate in terms of section 228 (2) of the
Criminal
Procedure and Evidence Act of 1981.

In giving
a ruling on the admissibility or otherwise of such a statement, the
Court had to first start from the premise of

11

explaining
what a confession is. Hoffman 4th Edition at 208 gives the meaning of
a confession in R v Becker 1929 AD 167 at 171 as

"an unequivocal acknowledgment of guilt, the equivalent of a
plea of guilty before a Court of law."

In this
case the witness was asked to state what he alleged the accused said
to him in her explanation. The explanation given by
the accused was
that, "I requested Teluntso Mahloane and other boys to kill the
deceased because he (deceased) had taken my
inventor."

Hoffman
further showed that, "in crimes which required mens rea, an
account by the accused of his actions however detailed
and damming,
will hardly ever amount to a confession as it would almost always be
possible to give some further explanation which
would negative the
necessary mental intent."

The
statement by the accused conveyed a message that the accused killed
the deceased or caused the deceased to be killed as a revenge,
the
reason being that the deceased had taken her inventor. There was
obviously a reason for killing the deceased. The accused had
formed
an intention to kill and therefore that statement amounted to a
confession.

12

Considering
the admissibility of that explanation, section 228 (2) of the
Criminal Procedure and Evidence Act reads:-

"If a confession is shown to have been made to a policeman, it
shall not be admissible in evidence under this section unless
it is
confirmed and reduced to writing in the presence of a Magistrate."
(my emphasis)

For a
statement to be a confession according to Petlane v R 1971 -73 LLR 85
it must exclude the possible defences of self defence
or accident. I
could not agree with the submission by the Crown that the explanation
was just an informal admission which was given
freely and voluntarily
and extra judicially. That the statement was exculpatory as was given
with the intention to prove innocence,
by somehow raising a defence.

The fact
that the statement was never confirmed and reduced to writing before
a Magistrate would not make it admissible. The omission
on the part
of the Police Officer to take the accused before a Magistrate would
not render the statement admissible. Even if the
witness would have
said that he had intended to take the accused before a Magistrate but
that the accused had refused to go before
the Magistrate.

13

The
statement was given by the accused when asked for an explanation by a
Police Officer. It is therefore inadmissible as a confession
which
had not followed the provisions of section 228 (2) of the Criminal
Procedure and Evidence Act.

Through
his investigations, P.W.3 came to know that both the accused and the
deceased were staying in the same village. The accused's
house, a
normal house built of cement bricks, and the deceased's house, rented
flat built of bricks. The distance from accused's
and deceased's
house estimated at being from the High Court to the Magistrate's
Court. After giving her explanation the accused
was given a charge of
murder.

The
admitted statement of one 'Maliako Lerotholi, Exhibit "A",
was to the effect that on her way to work on the morning
of the 9th
March 2000, she saw a lot of blood, and not far from that blood she
saw a dead body in a ditch. She raised an alarm
and people came to
the scene.

The
second admitted statement, Exhibit "B" was that of D/Tpr
Likate. He was in the company for D/Tpr Moloi and Tpr Mohlalisi
when
they proceeded to Motimposo on the 3rd April, 2000 in search of
Teluntso Mahloane and his gun. They must have been

14

acting on
the information they had reached because they could not have just out
of the blue gone to that particular somebody. They
were already armed
with the information that the deceased Mohapi Tsolo was found dead at
Ha Ratsoana.

The
statement showed that as they came back with the said Teluntso
Mahloane, he had told them that the gun would be found at Police

Headquarters with D/Sgt Matlole. Indeed when they got to the Police
Headquarters they got the said gun from D/Sgt Matlole as Teluntso
had
intimated to them. He had said he handed the gun himself to the said
Police Officer.

The third
admitted statement Exhibit "C" was the statement of Tpr
Moloi. They proceeded to Motimposo on the 31st March,
2000 with Tpr
Likate and Tpr Mofolo. There they arrested Ramohapi Lichabe and
George Phakisi. Mofolo cautioned the suspects charged
and arrested
them. He kept them in police custody. He again proceeded to Motimposo
on the 2nd April, 2000 to arrest Teluntso Mahloane.
He cautioned,
charged and arrested him. He kept him in police custody.

The
post-mortem report was also admitted in evidence and marked Exhibi
"D". The body was identified by one Jacob Lehloa
Tsolo

15

as being
that of the deceased Mohapi Tsolo. According to his examination the
doctor formed the opinion that death was due to head
injury and or
resulting in pulmonary failure. That the injuries could have been a
result of assault. The external injuries showed
multiple scalp
lacerations with skull fracture with subdural haematoma. A cut
trachea and a penetrating would on the right side
of the neck and
wounds on the right upper chest. And this was the Crown case.

At the
end of the prosecution's case the Defence applied for the discharge
of the accused. Having considered the evidence by the
Crown I had
found that there was a case for the accused to answer but showed that
reasons were going to form part of my judgment.

The
accused was called in the witness box and gave her evidence. She
showed she stayed at Lithoteng and that she had lived there
for 14
years. She stayed with her husband and children and has been living
with her family ever since. She was arrested from her
work place at
Thetsane factories on the 29th March, 2000.

In her
evidence, the accused showed that she knew both the deceased and
P.W.1. She knew that the deceased stayed at Ha Pita but
that she was
not used to him. She knew P.W.1 as a son to her

16

neighbour.
She said she only came to know about the deceased's death when she
got to Lithoteng Police under arrest.

The
Police had told the accused that she was being suspected of the death
of the deceased Mohapi Tsolo and when she asked why they
were
suspecting her she was told that P.W.1 had explained to them that she
was a suspect. It was at this stage that the accused
started denying
what P.W.1 had said about the deceased when she was at the bar. It
was at this late stage that she was denying
ever saying the deceased
had stolen her inventor as she did not even possess any inventor. It
would seem she did not even know
what an inventor was as she said in
her evidence that she only came to know of what it was as Police
explained it to her. She then
told the Police that she was using
electricity at her home and not a solar heating.

The
accused said in her evidence that she did not even know where the
deceased lived. She only knew that it was at Lithoteng but
did not
know the exact place. When giving a description of her house she
said, it was a three roomed house built of grey bricks
with two doors
leading to the outside and was facing East.

17

As it
were, the Defence has not discredited the Crown witnesses in her
cross examination. She had left their evidence unchallenged
on
material respects. He only said she had thought that she was going to
be given time to explain herself after all the evidence
had been led.
In some instances she was saying she did not know why her Counsel
failed to deny such allegations against her.

It was
thus submitted by the Crown that the accused should be taken to have
admitted the evidence by P.W.1 where P.W.1 said accused
made
allegations to kill the deceased whilst they were at a bar. The
Defence had asked P.W.1 whether he believed the accused and
P.W.1
answered in the positive. The Crown therefore contended that in
posing such a question the defence was admitting that she
did in fact
utter such words except that she ought not to have been believed as
they were at a beer drinking place. The Crown felt
that that question
was not posed to discredit P.W.1.

Concerning
the evidence of P.W.2 who was declared as an accomplice, he had
narrated all steps leading to the killing of the deceased
by the
accused. He was there when the deceased was taken from his house to
the place where he was killed. He has estimated the
distance from the
deceased's house to that of the

18

lady's
house. P.W.3 has also given the same distance between the two houses.

P.W.2 had
said that Teluntso handcuffed the deceased as he drove him to where
he was killed and indeed when P.W.3 found the dead
body the hands
were still handcuffed. Again P.W.2 had said Teluntso threw the knife
some paces away from the dead body and when
P.W.3 came the following
day to inspect the scene an okapi knife was found some paces away
from the deceased.

P.W.1 had
also said that as he went to the deceased's place on the information
from deceased's wife concerning her husband's disappearance,
he found
a paper on the table at deceased's place. The paper had names of
three men written on it. On further enquiry P.W.1 came
to know that
those were names of three police officers.

P.W.2 had
also said in his evidence that he was with Teluntso Mahloane and
George Phakisi when they went to the deceased's flat
at Ha Peter.
When Teluntso knocked at the decased's place he told the person
inside that they were CID Police. This must have been
a ploy used so
that they could gain entry into the house.

19

Teluntso,
as he was still outside even gave out names of such Police Officers.

P.W.2 had
shown in his evidence that from the second house they had gone to
before going up to the place where the deceased was
killed, the four
of them went back to the deceased's house. Inside the deceased's
house Teluntso asked for a pen and paper from
the deceased. Teluntso
was seen by P.W.2 writing down names of Policemen on that piece of
paper and he put that paper on the table
and they left.

P.W.2 had
further shown in his evidence that Teluntso Mahloane introduced the
accused to them when they were attending remands.
P.W.2 had also
heard Teluntso say that he was going to collect his money from that
lady. This Teluntso said as they were proceeding
home after killing
the deceased.

The Crown
therefore submitted that since the evidence of P.W.2 was not
challenged on material respects that the only reasonable
inference to
be drawn must be that the lady whom Teluntso Mahloane referred to was
the accused. The accused did not even deny when
P.W.2 showed in his
evidence that he introduced the accused to him and George Phakisi.

20

P.W.2 had
described how Teluntso stabbed the deceased. P.W.3 also on inspecting
the body of the deceased described the same wounds
as those that were
described by P.W.2. The post-mortem report also described the same
wounds on the dead body. But as was said
in Tseliso Lempe v Rex (and
cases therein cited) 1997 - 98 LLR & LB 195 at 212 where the
Court showed that there was particularly
some damning evidence
concerning some discovery of some items found on appellant's
clothing. The Court then said, "a recitation
of these facts
indicates the persuasive force of the Crown case. Moreover, not each
of these factors should be accorded weight
in isolation of each
other. It is their cumulative effect that needs to be evaluated."

In casu,
P.W.2 was declared as an accomplice witness and as such his evidence
had to be corroborated by some independent evidence.
P.W.2 told the
Court that he was in the company of one George Phakisi when the
deceased was stabbed to death. The three of them,
that is, Teluntso,
P.W.2 and George Phakisi were together when the deceased was taken
away from his home. We were not told why
George Phakisi was not
called as a Crown witness.

Again,
P.W.3 who investigated this case never mentioned in his evidence that
he actually visited the deceased's flat and the place
where the
accused lived. He only mentioned that he was only shown the accused's
place as he passed near it, meaning he had not

21

specifically
gone to identify the place. The Court did not also go out on an
inspection in loco for identifying the accused's and
the deceased's
places. So that it could not be said that it was made very clear that
the houses referred to by P.W.2 were the same
as those referred to by
P.W.3. The investigation never led P.W.2 to point the house with a
single door because the accused in her
evidence told the Court that
her house has two doors leading to the outside.

It was
not also proved beyond doubt that in fact the accused did own an
inventor, so that it could be inferred that she in fact
uttered words
which P.W.1 said she uttered because of anger for loss of her
inventor. The accomplice evidence has not also been
corroborated by
an independent evidence.

The
accused may well have been guilty but because the Crown has failed to
prove his guilt beyond a reasonable doubt as has been
clear from the
record, the accused is given a benefit of doubt and is thus found not
guilty, acquitted and discharged.

22

My
Assessors agree with my findings.

1. M.
   HLAJOANE

   
   

JUDGE

For
Crown: Ms Kanono

For
Accused: Mr Tlapane