C. of A.
(CRI) No.2 of 1985

IN THE
LESOTHO COURT OF APPEAL

In the
matter between

LAWRENCE
PHASUMANE First Appellant

MASUPHA
MASUPHA Second Appellant

BOFIHLA
ADORO Third Appellant

and

REX

HELD AT
MASERU

Coram

SCHUTZ,
P.

ODES, J A

MILLER, J
A

JUDGMENT

Odes, J.
A

The
Appellants in the above matter are three of four accused who were
charged in the Lesotho High Court with the crime of robbery
committed
on the 23rd December, 1983 when it is alleged that they, together
with a fourth accused brought a motor vehicle belonging
to the
Lesotho Bank and containing M153,456.62 in cash to a halt and robbed
the occupants of that amount at gun point They are
also alleged to
have stolen the motor vehicle in question, a pistol and two trunks in
which the money was deposited all of which
was the property of the
Lesotho Bank

The
Appellants were respectively designated as Accused 1, 3 and 4 at the
trial. For the sake of convenience and in order to obviate
any
confusion which may arise I

2

prefer to
retain the designation of the Appellants which they respectively bore
in the Court a quo The original second accused disappeared
from the
scene before judgment was given.

An appeal
has been noted against the conviction of the Appellants on various
grounds some of which have not been argued before us
No appeal has
been lodged against the sentences of the Appellants who were
respectively sentenced to 12, 10 and 8 years' imprisonment
for their
alleged participation in the robbery.

At the
previous session of this Court, Counsel for the Appellants had taken
the point that the record which has been prepared for
this appeal was
incomplete. After hearing argument on that point, the Court postponed
the Appeal to this session and ordered basically
that the
representatives of the Crown and the Appellants furnish, by the 31st
May 1986, a written report on the areas of the record
upon which they
were unable to agree after perusing the record, the Judge's and their
own notes. They were directed to specify
the extent of their
differences and to state the reasons why they were unable to reach
agreement on those portions of the record.

The
representatives have not complied with this order and have in fact
placed nothing whatever before this Court to indicate the
areas and
extent of disagreement. Neither party has chosen to produce its notes
in relation to disputed areas of the record. We
are therefore totally
unable to gauge the nature, extent and more important, the
materiality of any omitted portion of the record.

The basis
of the submission by Counsel for the Appellants is that the record
which has been placed before this Court

3

is
incomplete and that there is no way of knowing whether the omitted
portions were material or not He contends that this defect
is fatal
and that the convictions and sentences should therefore be set aside.

It should
be noted that the trial was heard over a period of several days and
that the record of the proceedings runs into approximately
850 pages.
The proceedings were recorded on tape and were then transcribed It is
true, as indicated by Counsel for the Appellants,
that there are
portions of the record which the transcriber has labelled as
"inaudible". At p.301 the note made on the
record is that
the passage following immediately thereafter is "totally
inaudible from 1 2.5". There is no indication
before us what
this passage embraces i.e. whether the inaudible portion is extensive
and/or covers material evidence or whether
the omitted portion is in
fact insignificant or contains evidence which is either immaterial or
does not operate prejudicially
against the Appellants. In the light
of the order made, one would have expected that had the passages in
question con­tained
material omissions, the notes of either party
or the Judge would have reflected them

There are
also random passages in the record where a question put or an answer
given are reflected as "inaudible" where
the transcriber
has been unable to hear what was said but in none of the passages can
it be said that the general trend and How
of the evidence being
furnished have been materially interrupted.

One also
finds in certain passages in the record where the tape has given
difficulty to the transcriber that typewritten notes have
in fact
been incorporated in the record.

4

The
origin of the notes was stated to be those of the pre­siding
Judge. What is significant about these notes is that they often

overlap portions of the record which have in fact been taped and
transcribed and the accuracy of the notes taken when compared
with
the overlapping evidence transcribed from the tape, is impressive. It
appears there­fore that where significant portions
of the tape
have been inaudible the type-written notes have been inserted to
re­place the portions which the transcriber was
unable to hear
and transcribe. As indicated earlier, the Appellants have not placed
anything before us to indicate that their notes
on the passages in
question contain material omissions

It cannot
be sufficiently emphasised that the need for full and proper records
of the proceedings of lower Courts is a pre-requisite
to the exercise
by a Court of Appeal of its duties and functions. Generally speaking,
this Court (and indeed any Court exercising
Appellate jurisdiction)
cannot adequately fulfil its task unless it has a complete record of
precisely what has transpired in the
Court whose proceedings it is
required to scrutinise. The greatest possible care must therefore be
taken in the recording and transcription
of the evidence adduced at a
trial. The rationale for requiring a full and complete record of the
proceedings is to ensure that
an appellant is given a just hearing on
appeal. The desire to obviate a failure of justice has induced the
courts in the Republic
of South Africa to set aside convictions and
sentences on appeal where records have been lost or destroyed or
contain defects which
cannot be rectified. In S. v Marais 1966(2)
S.A. 514 (T) Claassen, J (with whom Rabie J - as he then was -
concurred) expressed
himself as follows at page 517A-B

5

" If during a trial anything happens which results in prejudice
to an accused of such a nature that there has been a failure
of
justice, the conviction cannot stand. It seems to me that if
something happens, affecting the appeal, as happened in this case,

which makes a just hearing of the appeal impossible, through no fault
on the part of the appellant, then likewise the appellant
is
prejudiced and there may be a failure of justice. If this failure
cannot be rectified, as in this case, it seems to me that
the
conviction cannot stand, because it cannot be said that there has not
been a failure of justice "

In the
Marais case, supra, several dicta-tapes and certain important
exhibits had been lost and attempts to obtain the best available

secondary evidence of the lost evidence and exhibits had proved
unsuccessful

Where the
records of the proceedings or material parts thereof have been lost
and could not be reconstructed from the best available
secondary
evidence, the Courts have set aside the convictions and sentences in
question (S v Whitney & Ano. 1975(3) S.A. 453(N),
S. v
Phukungwana 1981 (4) S A. 209 (B), S. v Orchard 1982 (1) PH H4 (C),
S. v H. 1981 (2) S.A 586 (SWA), S. v Mokubung 1983(2)
S.A. 710 (0)).

What
emerges from these cases is that it is not every defect in the record
which results in a conviction being set aside. The absurdity
of
requiring such perfection in a record is self-evident. The setting
aside of the conviction, it seems to me, follows upon the

satisfaction of a two­fold requirement

1. The
   omitted or lost evidence must be material, and

   
   

2. The
   defect cannot be cured by reference to the

   
   

best available secondary evidence or cannot be settled

6

by way of
admission or in some other manner (see S. v Collier 1976(2) S.A. 378
(C)).

I find
the approach of the Courts in the Republic of South Africa a salutary
one which ensures that justice is done to the appellant
but which at
the same time prevents non-material defects in the record from being
utilised as a basis for setting aside a conviction.
I can see no
objection in law or in logic for not adopting that approach in this
country.

What
constitutes a material defect in the record must depend upon a
consideration of the facts of each case. Clearly the inability
to
reconstruct material passages in the evidence of an important witness
could cause prejudice to an appellant with a concomitant
risk of a
failure of justice. On the other hand the failure to record isolated
answers or questions, particularly in a lengthy
record such as the
present, might not prejudice the appellant at all. Once again the
question is one of degree. It is clear to
me from the manner in which
the record has been compiled in the instant case that where the
inability to hear what was said was
of any substantial nature, the
notes of the presiding Judge have been inserted therein. The only
reasonable inference to draw from
this modus operandi where the
type-written notes have not been inserted at those passages where the
transcriber has recorded an
inability to hear what was said, is that
the latter passage was not of any lengthy duration nor of importance
Moreover the failure
of the parties, despite the Court Order, to
place before us anything at all to indicate the nature, extent or
materiality of the
defective portion of the record suggests that the
passages in question did not contain material evidence Had the
Appellants' or
the Crown's notes revealed

7

such
omissions, I am satisfied that the notes to that effect would have
been placed before this Court. While I reiterate the importance
on
the part of those responsible for preparing the record to strive for
perfection 1 am nevertheless conscious of the fact that
such
perfection cannot always be attained. In a record of this length I
have come to the conclusion that the omissions to which
Counsel for
the Appellants has drawn our attention are not such as to prejudice
the Appellants in this case. I am accordingly not
persuaded that the
portions of the record and defects therein are such as might result
in a failure of justice should such convictions
in the instant case
not be set aside.

I proceed
to deal with the argument of the Counsel for the Appellants in regard
to the merits of the appeal.

The main
thrust of the argument of behalf of the Appellants was directed at
the evidence adduced by MOTHIBI who was the main Crown
witness and an
accomplice of the Appellants and the second accused It was argued on
behalf of the Appellants that the evidence
of this witness should
have been rejected by the learned Judge. Because the acceptance of
this witness's evidence was in fact central
to the conviction of the
Appellants, it is necessary for me to detail the evidence which was
adduced by him. It should also be
noted at this stage that there is
no real dispute that the robbery in fact took place but the burden of
the Appellants* argument
relates to the identity of the participants
at that robbery, each of the Appellants denying that he was on the
scene at the time.

At the
time of the alleged robbery on the 23rd December, 1983 MOTHIBI was
the chief teller at the Lesotho

8

Bank. By
reason of the fact that he and Accused 1 had worked together for 2
years at Barclays Bank and had become friends, he knew
Accused 1
well. MOTHIBI conceded that he had only come to know Accused 2 and 3
through the robbery and did not therefore know them
very well. He
stated that he had seen Accused 4 for the first time on the day of
the robbery and again thereafter. The events leading
up to the
planning and execution of the robbery commenced, according to MOTHIBI
with a meeting which he had had with Accused 1
at the Airport Hotel
early in December, 1933. Accused 1 had raised the topic of the
possibility of a robbery and had suggested
that the Lesotho Bank's
money be taken at T.Y. some time before Christmas. MOTHIBI expressed
interest in the scheme Some days later
(which day was fixed as after
the 14th December) Accused 1 met the witness again at the Airport
Hotel, this time arriving with
Accused 2. They sat in the vehicle of
Accused 1 outside the hotel and dis-cussed a robbery which was to
take place before Christmas
and which would necessarily have to
involve further par­ticipants. They decided that 5 persons should
be involved. Accused
1 was to recruit two other participants and
because he was a member of the para-military force it was anticipated
that he would
enlist the aid of two soldiers. On the following day
they met once again at the Airport Hotel where Accused 1, 2 and 3
arrived.
MOTHIBI was told that Accused 3 was one of the soldiers whom
Accused 1 had managed to recruit. At this meeting the participants

decided that the robbery was to take place on the 21st December. In
fact the robbery did not materialise as planned because the
pay day
for the soldiers at Mafeteng was scheduled for that date and it was
feared that Accused 2 and 3 would be recognised. MOTHIBI
then met
Accused 1, 2 and 3 on the same day at 7.00 p m.

when it
was decided, instead, to hold up the Lesotho Bank's

9

vehicle
at a roadblock which they would set up on Friday 23rd December whilst
it was on the road between Moruthoane and Morija.
Accused 2 was made
responsible for obtaining uniforms and appropriate road signs.
MOTHIBI then in­formed them that he would
be seated on the front
left hand side of the bank's vehicle and that the armed security
guard who would accompany the vehicle would
be seated immediately
behind him. On the morning of the 23rd December MOTHIBI and another
teller collected the money to be transported
and placed it in
separate trunks. MOTHIBI's was marked "TY Agency" and
"Teller No.1 TY Agency". The trunks
were locked in the boot
of the vehicle, which then set off. On the road to Morija, the bank
personnel in the vehicle came upon
Accused 1 to 4 waiting at a
roadblock between 8 and 9 a.m. Accused 4, wearing a soldier's uniform
in camouflage with a hat, pointed
a firearm at the vehicle as it
approached. The driver spoke to him and informed him that this was a
bank vehicle but Accused 4
told him to park the vehicle at the side
of the road. Accused 4 and 2 then approached the vehicle, Accused ?
also being in uniform
but wearing dark glasses. Accused 2 and 4 were
at the driver's side of the vehicle while Accused 3 approached the
left hand side
and spoke to MOTHIBI and the security officer Khanyapa
who was sitting in the rear of the vehicle on the left hand side.
Accused
3 was dressed in brown clothes normally worn by soldiers or
police and was also wearing a brown cap which MOTHIBI identified
before
the Court. Accused 3 then ordered the occupants to get out of
the vehicle for the purpose of a search. The security guard was
ordered
to hand over his firearm in order to check its number.
Accused 3, armed with a small firearm, asked one of his colleagues
for a
pen and walked towards Accused 4 in order to get one. When
MOTHIBI

10

looked
into the vehicle he saw that Accused 1 had already moved into the
driver's seat behind the steering wheel. Accused 1 was
wearing the
same camouflage uniform as Accused 2 and 4 but in addition, wore a
balaclava cap MOTHIBI however could recognise his
facial features
because only his mouth was covered. After Accused 3 had gone to fetch
a pen from Accused 4, he fired a shot into
the air. Thereafter
Accused 2 gave instructions that the occupants of the bank's vehicle
run into the field. A second shot was
fired, followed by further
volley whilst they ran. The 4 accused then took off in the Bank's
vehicle, and drove in the direction
of Maseru. MOTHIBI next met
Accused 1 and 2 on the 27th December at a friend of his in Thamaes.
The arrangement which was made
before the robbery was that the money
stolen would be kept at Accused 3's home and when matters had
quietened down around March
they would meet again MOTHIBI met Accused
1 again on the 30th December at 7.30 a.m. in the street in Kingsway
and Accused 1 suggested
that they meet that evening at the Airport
Hotel. The witness pro­ceeded to the hotel that evening where he
met Accused 2.
The latter said to MOTHIBI "Gentlemen, we shall
meet". MOTHIBI went into the hotel and found Accused 3 and 4
drinking
at the bar. At that stage Accused 1 was not to be seen. The
witness went to look for him and found him at the bar door. The two

of them proceeded to the toilet of the hotel where Accused 1 informed
him that they had divided the money and that his (MOTHIBI's)
share of
the spoils was R26,000. The arrangement was that Accused 1 would
bring MOTHIBI's share to him on the 9th January at the
university.
MOTHIBI was arrested on the 7th January. He attended two
identification parades, one at the Maseru Central Prison where
he
identified Accused 3 and 4 and one at the Central

11

Charge
Office where he identified Accused 2,

MOTHIBI
was cross-examined at length by representatives of the four accused.
His cross-examination extends over 150 pages of the
record. Despite
this, it is significant to note that apart from a statement put to
him that Accused 3 had only learnt of the robbery
later, it was never
put to MOTHIBI that the other accused would deny participating in the
robbery nor what their versions would
be. Not one of the
cross-examiners had suggested to MOTHIBI a possible motive for
implicating any of the accused. The cross-examination
in fact
established that Accused 1 was a good friend of this witness and had
actually helped MOTHIBI with certain difficulties
which MOTHIBI was
experiencing on the domestic front

It is
clear from the judgment delivered by the learned Judge in the Court a
quo that he was fully alive to the dangers inherent
in the evidence
of an accomplice. He re-ferred inter alia to the well-known case of
R. v Ncanana 1948 (4) S.A. 401 (AD) which has
been frequently
followed by the Superior Courts of Lesotho. His approach to the
evidence of MOTHIBI manifests an appreciation of
the cautionary rule
and the dangers of accepting the evidence of an accomplice which was
uncorroborated or which did not implicate
the accused. Perhaps the
most lucid statement of the cautionary rule and the application
thereof is to be found in the case of
S v Hlapezulu 1965(4) S.A. 439
(AD) at 440 where Holmes, J.A. expressed himself as follows

" It is well settled that the testimony of an accomplice
requires particular scrutiny because of the cumulative effects of
the
following factors. First, he is a self-confessed criminal.

12

second, various considerations may lead him falsely to implicate the
accused, for example, the desire to shield a culprit or, particularly

where he has not been sentenced, the hope of clemency. Third, by
reason of his inside knowledge, he has a deceptive facility for

convincing description - his only fiction being the substitution of
the accused for the culprit. Accordingly, even where Section
57 of
the code has been satisfied, there has grown up a cautionary rule of
practice requiring (a) recognition by the Trial Court
of the
foregoing dangers, and (b) the safeguard of some factor reducing the
risk of a wrong conviction, such as corroboration implicating
the
accused in the commission of the offence, or the absence of
gainsaying evidence from him, or his mendacity as a witness, or
the
implication by the accomplice of someone near and dear to him ..."

The
Courts of Lesotho have adopted the above approach and have
consistently applied the cautionary rule. (Manamolela & Others
v
R C of A. (CRI) No.2 of 1982 at 11-16

The
learned Judge then proceeded to analyse the evidence of the various
witnesses and came to the conclusion that there was credible
evidence
corroborating the accomplice and implicating each of the three
Appellants. In regard to Accused 1 he relied on the evidence
of one
MATABANE who was employed by Accused 2 as a taxi driver and who, on
occasion, used to assist Accused 1 by helping to drive
his taxi. On
the 23rd December MATABANE was asked by his employer (Accused 2) to
drive him together with Accused 1 and two other
persons whom he did
not know along the main road towards Mafeteng. This took place early
in the morning shortly after sunrise.
He was instructed to drive
quickly. After passing Moruthoane the witness was told to stop the
vehicle beside the road facing Maseru.
Accused 1 and 2

13

then
instructed one of the two strangers who were sitting in the front of
the vehicle next to MATABANE to put on a uniform which
was a brown
overall and hat which the stranger did inside the vehicle The other
stranger who was sitting in the rear of the vehicle
also changed into
a similar uniform. MATABANE stated that both Accused 1 and 2 changed
into a "green soldier's apparel".
They left their own
clothes in­side the vehicle and alighted. Accused 1 gave MATABANE
the keys to another vehicle which had
earlier that morning been
parked at Upper Thamae and instructed him that when he reached that
place he should be very careful that
no-one saw him. MATABANE was
then told to lock the vehicle which he was driving and to place the
keys thereof under the mat in
the boot. He then left the four men at
that spot and drove off as instructed. When he got to Accused 1's
home he was stopped by
the latter's brother-in-law who spoke to him
for a while. As he was about to drive off again he saw Accused 2 come
running towards
him. He was reprimanded for stopping where he did.
Accused 2 told him to get the other vehicle which had previously been
parked
there and to go to work in it Accused 2 then took the vehicle
which the witness had been driving and drove off. MATABANE states

further that early in January 1984 Accused 1 had asked the wife of
Accused 2 whether she knew where her husband's money was and
she
replied in the affirmative. Accused 1 then instructed MATABANE to
collect the money the following day. MATABANE duly proceeded
to the
home of Accused 2 and helped the latter's wife dig up a yellow
plastic bag which was buried in a yard near her home. When
MATABANE
arrived home he received a report from his sister as a result of
which he met Accused 1 driving a reddish vehicle. Accused
1 asked him
whether he had taken out the

14

money.
When informed that the money had been taken out Accused 1 instructed
MATABANE that he should inform Accused 1's wife to telephone
him and
that MATABANE should thereafter meet him at the sewerage place. The
witness then proceeded to Accused 2's wife who gave
him the money in
the yellow plastic bag. He stated that in addition to the money there
were also potatoes and something like a
lunch box in the plastic bag
MATABANE found Accused 1 waiting for him at the sewerage disposal
place in the red car and he handed
him the plastic bag there The
witness himself did not actually see money 5n the plastic bag but he
was merely told that it contained
money. MATABANE attended an
identification parade in January at the Central Prison where he
identified Accused 4 (Appellant 3)
as being the person he saw at
Accused 2's home on the 23rd December and who accompanied him in the
vehicle to Moruthoane. He also
saw that person putting on an overall

Further
corroborative evidence implicating Accused 1 was found by the learned
Judge in the evidence of Mr. and Mrs CINDI who are
his uncle and
aunt. Mrs CINDI stated that early on the morning of the 23rd December
Accused 1 accompanied by a stranger wearing
dark glasses came to her
home and asked for her husband. She noticed that there were two boxes
placed near the wheels of the vehicle
in which they had arrived.
Accused 1 asked her to store the boxes which he said were tool boxes.
Before leaving he told her that
she should not inform anyone that she
was keeping the boxes at her home. If she said anything Accused 1
warned her that the owners
of the tool boxes, namely himself and "the
soldiers" would injure her. When her husband came home that
evening she informed
him what transpired and together they went to

15

inspect
the boxes. Both boxes had the word "Chubb" written on them
and one bore the words "Teller 1 TY Agency".
She identified
the boxes before the Court. After they had examined the boxes Accused
1 arrived with the stranger who had been there
earlier that day.
Accused 1 asked her husband to keep the boxes for them. Her husband
asked what the boxes contained whereupon
he replied that they
contained money belonging to him and the soldiers. Under
cross-examination she stated that her husband had
asked him what the
source of the money was. Accused 1 then enquired whether her husband
had not heard about the soldiers' road
block and the Lesotho Bank
money incident which had taken place during that day. Accused 1
warned her husband not to disclose the
existence of the boxes to
anybody and warned him further that if he did inform anybody the
owners would injure him. On the 28th
or 29th December Accused 1 and
two strangers came to their home at late dusk. One of the strangers
was wearing a soldier's uniform
and was armed. Accused 1 called his
uncle out. The witness tried to follow but the soldier pre­vented
her from doing so, telling
her to go back inside the house and to
close the door, which she did. From inside she first heard a vehicle
and thereafter a tractor
starting up. While these vehicles were
idling she heard the sound of something strike metal four times.
After Accused 1 and the
two strangers had left her husband came into
the house looking frightened and confused. She asked him what had
happened but he
did not tell her. The following evening Accused 1
arrived with three men. Again he called her husband out. She did not
know what
was happening outside because she was afraid to open the
door. After a long silence her husband returned. Accused 1 later
called
her husband out. He then asked her husband not to tell anybody

16

that he
had kept anything. One of the men with him said that if the police
kept chasing them they would devastate their (the witness's)
home.
The four men then left. The following morning Accused 1 arrived
alone, removed certain documents from the boxes and left.
Her husband
later dis­posed of the boxes. She stated that the only reason she
did not inform the police was because of the
threat which Accused 1
made to her and her husband Her husband's evidence supports her in
every material respect and his evidence
need not be repeated here It
should only be noted that in relation to the events which took place
in the absence of Mrs CINDI while
she was inside the home Mr. CINDI
was asked to start a tractor to mask the noise made by a hammer and
chisel which they had requested
from him in order to open the boxes
They in fact opened the boxes and instructed Mr. CINDI to let them
have access to one of the
rooms in a building which he normally let
so that they could lock them­selves in while they worked. When
they came out of the
room Accused 1 gave Mr. CINDI R3,000 for storing
the boxes at his home. They then left the boxes at his home and
stated that they
would bring the other persons with whom they had to
share the money the following day. The next day Accused 1 and three
others
arrived at their home and according to Mr. CINDI, they locked
themselves inside the house in the same room as before When they
completed their work they left, Accused 1 instructing CINDI to throw
the boxes away He could not fit the boxes into his boot and
therefore
flat­tened them with a tractor, packed them into the boot and
disposed of them.

Mr. CINDI
further testified that some days later a red Mazda motor vehicle
stopped near him. Accused 1 got

17

out,
handed him a yellow plastic bag informing him that it belonged to one
of the soldiers and instructing him to deliver it to
NTHETHE, who was
an attorney who represented one of the accused at the trial. CINDI
indicated that there were three persons in
the vehicle He then
delivered the yellow plastic parcel to NTHETHE at his home The latter
said that the witness should not inform
the police about the parcel
he had brought. After his arrest and his sub­sequent release the
witness, accompanied by his wife
who was asked to be present, met
Accused 1 at NTHETHE's office. The CINDI couple also deposed to an
incident involving Accused
1 and NTHETHE referred to above in which
they stated in evidence that both Accused 1 and NTHETHE had advised
them to falsify their
evidence or not to testify against Accused 1.
They suggested that Mrs CINDI go to the Republic. It is important to
note that in
relation to this latter incident no questions whatever
were put to either witness by NTHETHE nor was the incident denied on
behalf
of Accused 1 in cross-examination by his Counsel. NTHETHE did
not give evidence at the trial.

CINDI's
evidence relating to the handing over by Accused 1 of the yellow
plastic bag was in fact corroborated by a witness PHASUMANE
who is
Accused 1's nephew.

The
learned Judge in the Court a quo had the benefit of seeing these
witnesses in the witness box and was greatly impressed by the

evidence given by Mr. & Mrs CINDI It has been contended that
Mr.CINDI should have been warned as an accomplice. CINDI was not
in
fact an accomplice because he was in no way involved in the
commission of the offence. He did however hide the money and received

M3,000 for his co-operation, although he states that such
co-operation as he did provide was prompted by fear of threatened
harm.

18

CINDI
might well have been an accessory after the fact, which called for a
cautious approach. From the judgment it is clear that
notwithstanding
the fact that CINDI was not warned as an accomplice, the learned
Judge regarded him as one and applied the cautionary
rule to his
evidence. That the evidence of an accomplice can be used to
corroborate that of another (assuming in Appellants' favour
that
CINDI was an accomplice) has been firmly established in the Courts of
Lesotho. (cf. Lethola & Others v R. 1963-1966 H.C.T.L.R.
12 at 16
See also S. v Avon Bottle Store (Pty) Ltd 1963(2) S.A. 389 (AD)).
There does not appear to be any suggestion of a connection
or
conspiracy between CINDI and MOTHIBI the other accomplice in this
matter. The witnesses referred to above were all subjected
to lengthy
cross-examinations and a reading of the record indicates that little
impression was made upon them. Counsel for the
Appellants has
criti­cised certain aspects of the evidence of MOTHIBI and
although his evidence does have certain flaws these
do not appear to
me to constitute a basis for the rejection of his evidence. There is
nothing which suggests that the evidence
of an accomplice, in order
to be accepted, has to be perfect in all respects. (cf S v Ismail (2)
1965(1) S.A. 452 (N) at 455H,
R. v Gumede 1949(3) S.A. 749 (AD) at
758)

As far as
the position of Accused 3 (Appellant 2) is concerned, the learned
Judge relied upon evidence which corroborated the accomplice
MOTHIBI
and which implicated the accused in order to justify his conviction.
Trooper MOLAPO testified that he was a cousin of Accused
3 who, he
said, shortly before the 23rd December 1983, had arrived at his home
in order to borrow his soldier's uniform. Accused
3 had furnished him
with the reason for borrowing his uniform

19

as being
the fact that he was to be engaged on operation duty with the task
force of the police. The uniform was returned to him
early in January
1984. The witness iden­tified the uniform before the Court.

Lt Col.
LETSIE stated that on the 3rd January 1984 he was given an assignment
in respect of the Lesotho Bank robbery. On the 6th
January he went to
the Central Prison where Accused 3 made a report to him and said that
he wanted to show him something. LETSIE
then left by motor vehicle
with Accused 3 and Co] MOSOEUNYANE to the LPF camp. On the way to the
camp Accused 3 told him that he
had seen Corp. MONARE at the prison
and that MONARE had a parcel which belonged to him and which he
wanted to recover. At the LPF
Camp they found Sgt. MONYANE. Col.
MOSOEUNYANE, gave the latter instructions to accompany Accused 3.
MONYANE then left with Accused
3 and returned later. After MONYANE
and Accused 3 had left, LETSIE and the Colonel went to the Central
Prison to see MONARE whose
release they secured and with whom they
returned to the LPF Camp. On the way back to the Camp they met
MONYANE and Accused 3 who,
when he saw that they had MONARE with
them, stopped their vehicle MONARE got out and spoke to Accused 3 who
instructed MONARE to
"give the chiefs that bag which I gave
you". MONARE agreed to do this and got into LETSIE's vehicle.
Upon the return
of Accused 3 and MONYANE to the camp, the latter
approached the witness and the Colonel carrying two plastic bags
containing money
Accused 3 was with him and said that one bag came
from his wife and the other from MAKEBE. They then asked Accused 3
how much money
there was and he replied that there was R3,000 + from
his wife's bag and R6,000 from MAKEBE's bag. In the interim LETSIE,
MONARE
and MOSOEUNYANE had gone to the house of MONARE's
brother-in-law

20

at
Mohale's Hoek in Taung where they retrieved another bag of money
(Exhibit 9). This bag was shown to Accused 3 at the LPF Camp
and he
admitted that it was his. The bag had a combination lock which
Accused 3 then opened. When the money in the bag was later
counted it
contained R8,010. The witness indicated that he knew Accused 3 very
well and was in fact related to him. Under cross-examination
LETSIE
admitted that when Accused 3 called him aside he told him that he had
diamonds at his home and that the money he had in
his possession was
from the sale of such diamonds. However the witness testified that
Accused 3 ultimately admitted that he knew
about the robbery and that
he had stopped the vehicle at the road block. LETSIE also in­dicated
that Accused 3 had told him
that he had bought a watch which was
found in his possession and a briefcase after the 23rd December.

Sgt.
Monyane stated that he was a member of the LPF and knew Accused 3
very well. He had been staying in the same house as Accused
3 for
approximately 2 years. He supports the evidence given by LETSIE and
states further that he accompanied Accused 3 on the instructions

given by LETSIE as deposed to by the latter. MONYANE then says that
once Accused 3 got into his vehicle he gave him instructions
to drive
to his home and to pick up his wife and Corp. MAKEBE. They drove them
to the Palace where Accused 3's wife went to the
servants' quarters
and returned with a brown bag Accused 3 opened it, removed a whitish
plastic bag, re­questing that the brown
bag be given to his wife
and he then left his wife at the Palace. The plastic bag which
contained the money was placed between
MONYANE and Accused 3 in the
vehicle Accused 3 then instructed him to drive to Ha Leqele where
Accused 3 asked MAKEBE to fetch
something which Accused 3 did not
explain. MAKEBE then got out of

21

the
vehicle and returned a short while later carrying a plastic parcel
containing money consisting of bound notes. Accused 3 said
he had
given the money, approximately R6,000, to MAKEBE to keep for him On
the way back to the LPF Camp Accused 3 volunteered the
information
that that was the money which they had stolen from the Lesotho Bank.
Col Mosoeunyane gave evidence which supported
that of Col. LETSIE in
material respects. His evidence related to the return by Accused 3 of
the briefcase and the opening of the
combination lock thereof. He
confirms LETSIE's evidence that Accused 3 had explained that the
money found in the briefcase was
his share of the proceeds of the
robbery. MOSOEUNYANE stated further that he went to recover the other
money at Taung as a result
of the explanation given to him by Accused
3.

Further
corroboration implicating Accused 3 comes from the evidence of
KHANYAPA who was the security guard at the Lesotho Bank who

accompanied the vehicle held up at the road block He deposed to the
events at the road block on the 23rd December and his story
is
broadly similar in material respects to that given by MOTHIBI, the
accomplice. The witness however, was not able to identify
all the
participants at the road block. He identified Accused 2 whom he had
previously known (but, as indicated above, is not an
appellant) and
Accused 3 (now Appellant 2). He did not identify Accused 4 as
suggested by the learned Judge in the Court a quo.
He gave evidence
of the identification parade at which he pointed out Accused 3 as
being one of the participants in the road block
hold-up

As far as
Accused 4 (Appellant 3) is concerned, the learned Judge relied upon
the evidence of Lance Corp. KOLISANG

22

who
stated that he was a member of the LPF working in the same section as
Accused 4. On the morning of the 23rd December Accused
4 was supposed
to report for work before 8 a.m. but he never turned up. The witness
reported this to his senior (Corp. PAKELA)
at 8.00. He stated that he
first saw Accused 4 at 3.00 p.m. on that day. In cross-examination
Accused 4 put it to the witness that
Warrant Officer TUMANE would
bear him out that he was at work during the day. TUMANE in fact gave
evidence supporting KOLISANG
and not Accused 4. Corp. PAKELA also
gave evidence stating that he was in charge of the registry in which
both Accused 4 and KOLISANG
were employed as members of the LPF. He
stated that he had reported for work at 7 45 a.m. and did not see
Accused 4 He saw him
momentarily at 8 05 a m. but he disappeared
thereafter and could not be found. He testi­fied that Accused 4
was to come on
duty at 6 00 a.m. on the 23rd December but could not
be found until 8.05 a.m but that he disappeared within minutes and
was only
seen after lunch. W/Officer TUMANE deposed to the fact that
she too worked in the registry and records department of the LPF at

Maseru. She knew Accused 4 who was working in the same section and in
fact in the same office. She came on duty at 8.00 a.m. on
the 23rd
December and did not see Accused 4 at work He was supposed to be on
duty but she did not see him at all that morning.
She sent out
KOLISANG to look for Accused 4 but he could not be found She saw him
for the first time that day between 2.30 and
3 00 p.m. within the
barracks. She stated further that the duty roster which was kept in
the office indicated that Accused 4 was
not at work. The entry in the
duty roster she said was made by KOLISANG. She denies telling Accused
4 previously that he was at
work on that day and she denies further
the

23

allegation
that she had sent Accused 4 on an errand that morning and that he had
asked her permission to use a motor bike to do
so. In addition to the
above witnesses Accused 4 was also identified by MATABANE, the taxi
driver working for Accused 2 and whose
evidence has been dealt with
earlier in this judgment. It does not appear from the judgment that
the learned Judge took this evidence
into account.

The three
Appellants gave evidence in their own defence, all denying that they
participated in the robbery. Accused 1 testified
that on the 23rd
December, 1983 he awoke at 4.00 a.m., did road work until 6.15 a.m ,
then washed his car and at 8.00 a.m. brought
his taxi to the bus stop
at the market in Maseru where he found MATABANE who had in the
interim taken his other taxi vehicle, a
combi, to that place Accused
1 3tated that he had to relieve MATABANE who had been lent to him as
a driver by Accused 2. Accused
1 then did some rounds with MATABANE
who left at 2.00 p.m. Accused 1 stated that he then drove around on
his own from 2 00 - 7.00
p.m. Accused 1 denied all the Crown evidence
implicating him in the commission of the robbery. He admitted that he
was at the CINDI's
home for a funeral in mid-January 1984 but apart
from that he had never been to their home. He tells a story of
meeting his uncle,
CINDI, in the street, flicking his lights for him
to stop. When he stopped Accused 1 stated that he gave him the yellow
plastic
bag containing vegetables telling him to take them home to
the children. There is a conflict in this regard in the evidence
given
by Accused 1 and what was put to the various witnesses. It is
important to note that in cross-examination of KATISO PHASUMANE,
Accused 1 denied asking his uncle to carry the yellow plastic bag.
CINDI also spoke of

24

being
handed a yellow plastic bag with instructions to hand it to NTHETHE.
Accused 1 denied that he gave the parcel to CINDI to
take to NTHETHE
but significantly did not admit giving the yellow plastic bag
containing vegetables to CINDI. Accused 1 stated
further that he was
arrested on the 16th January 1984 and was interrogated by the police.
Col. MOSOEUNYANE is alleged to have assaulted
him by pushing a pin
into his nail. This was never put to MOSOEUNYANE in cross-examination
by his Counsel.

In
cross-examination Accused 1 admitted that he was a good friend of
MOTHIBI the accomplice. He admitted that he had not had a quarrel

with that witness but could not give a reason why MOTHIBI would
implicate him, nor could Accused 1 give a reason for being implicated

by MATABANE the taxi-driver. He seemed to suggest in
cross-examination that there was a grudge with the CINDIs but was
unable
to furnish a reason why they should wish to implicate him in
the robbery. As indicated before, the CINDIs are his uncle and aunt.

It is. significant to note that in neither case did his Counsel
suggest to these witnesses that they might have a grudge against
him.
Furthermore the conflict between what was put to MATABANE in
cross-examination and what Accused 1 himself stated in evidence
as to
whether MATABANE assisted him on the 23rd December from 8.00 a.m. to
2.00 p.m. is ascribed by Accused 1 to a misunderstanding
on the part
of his Counsel. He further admits in cross-examination that he is not
good at remembering dates and he is totally un­able
to remember
when in January his grandmother had died nor when in January 1984 he
first met Accused 4 at the lawyer's office. These
concessions made by
Accused 1 in his cross-examination throw considerable doubt on his

25

recollection
of the minutest details of what transpired on the 23rd December 1983
which by all accounts was a very ordinary day.
Why he should have
remembered the details of that particular day when he was first asked
to recall them only on the 16th January
1984, almost a month after
the events, is difficult to appreciate, particularly when he was
unable to remember of any other ordinary
day.

Accused 3
testified that during the week of the 23rd December 1983 he had been
mounting road blocks at night until the 21st. On
Friday the 23rd
Private NTHOSO came to his house at 8 00 a.m. and said that he was
required at the Transport office. There he was
instructed by Staff
Sgt. MBELE to go on patrol to Mokhotlong but Accused 3 told him that
he could not go He stated that he remained
at the barracks until 1 00
p m. He denied the evidence of MOTHIBI and stated that the first time
he knew of him was in Court He
stated that he was arrested on the 4th
January 1984 and was interrogated on the 6th when he was asked about
the Lesotho Bank money
Accused 3 asked to talk to his inter rogator
whose identity does not appear from the record. Accused 3 was asked
what the money
which he gave to MAKEBE was for and he stated that it
was not the Lesotho Bank money but the proceeds of the sale of
diamonds.
He was told by his interrogator that he would be fetched
the following day in order to retrieve the money. On the 7th January
Accused
3 was taken to LETSIE and MOSOEUNYANE. He had not met the
latter before, from which it is inferred that his interrogator was
probably
LETSIE. They then took him to the LPF barracks when Sgt.
MONYANE was instructed to accompany him to fetch the money. His
version
relating to the pointing out and retrieval of the money is to
all intents and purposes exactly

26

as
related by MONYANE save that Accused 3 denies admitting to him that
it was the money from the robbery. Accused 3 confirms the
version of
LETSIE and MOSOEUNYANE as to their recovery of the bag and the
opening of the combination by him. The one difference
between the
accused's version compared with that of LETSIE and MOSOEUNYANE was
that Accused 3 stated that he persisted throughout
in telling them
that the money came from the sale of diamonds He specifically denied
telling either of them that the money was
from the Lesotho Bank
robbery. He admitted in his evidence in chief that he had been
identified by both MOTHIBI and KHANYAPA at
the identification parade
but stated that these witnesses did so after speaking to a policeman
who was present at the parade. He
stated that both witnesses came
straight to him after the policeman had spoken to them In
cross-examination however he stated that
he did not know what the
policeman had said to them and that the policeman had also spoken to
other witnesses who had failed to
identify him Under
cross-examination Accused 3 could not explain why MOTHIBI had
implicated him nor could he explain why KHANYAPA
with whom he had
worked at the LPF barracks would have similarly implicated him. He
admitted that he had borrowed a uniform from
his cousin, MOLAPO, but
denied that he had used it to commit the robbery. His reason for
borrowing the uniform namely to keep his
own uniform clean, was
singularly un­impressive. He was unable to give a satisfactory
explanation why he had not instructed
his Counsel to put that reason
in cross-examination but instead instructed him to say that it was
required for a joint military
exercise. Accused 3's story of how he
allegedly came into possession of the diamonds and subsequent sale
thereof is so fanciful
and improbable that it was correctly rejected
out of hand by the learned Judge in the Court a quo.

27

Accused 4
testified that he was a private in the LPF. On the 23rd December 1983
he went to work at 6.00 a.m. and at 6.45 a.m. went
to the mess to
eat. He was engaged in his work in the registry and stated that he
then went to the mess at 7.15 a m. for about
10 minutes He arrived
back at the office after 7.00 a.m. No one was there until 7.40 a m.
when LETSIE arrived. He told LETSIE that
he was going to wash so that
he could have his meals. He washed for 30 minutes and was then
instructed by MAHASE to take two letters
into town at approximately
7.45 - 8.00 a.m.

He
returned to work "about 4 minutes after 8 00" and found
Corporals KOLISANG and PAKELA in the office. PAKELA asked him
why he
had not come to work in the morning to which Accused 4 replied that
he had. He then sat down and did his work. Accused 4
stated that
W/Officer TUMANE arrived at work at approximately 9 O'clock and found
him at work. Accused 4 said he worked in the
office until 12.30. He
then referred to an incident in February 1984 where TUMANE had said
that she was unable to testify that
he was not at work on the 23rd
December He was arrested on approximately the 4th or the 5th January
1984 and he spent a month at
Central Prison He states that Cols.
LETSIE and MOSOEUNYANE had interrogated and assaulted him with
"something like a stick".
He does not remember when the
identification parade took place but admits being identified by
MOTHIBI and MATABANE who both talked
with a policeman before they
iden­tified him. He did not hear what the policeman had told them
A perusal of Accused 4's evidence
reveals that he was most evasive.
The reasons furnished by him as to why he was identified by the
various witnesses were totally
unconvincing. He was unable to explain
satisfactorily how the identifying witnesses knew at the
identification parade

28

that he
was a soldier, a fact furnished by him as a basis for their
identification of him Like the other accused, Accused 4 was
unable to
explain why the two witnesses who identified him as a participant in
a robbery and who were strangers to him would have
implicated him,
nor did the witness have any problems with KOLISANG who said that he
was nowhere to be seen in the course of the
morning of the 23rd
December. He also found it strange that PAKELA and TUMANE had given
evidence to the effect that he had not
been on duty the entire
morning. He was on good terms with all these witnesses who worked
with him and he found it strange that
they should all have given
evidence to the effect that they had looked for him throughout the
barracks on the morning of the 23rd
December but to no avail

The
learned Judge in the Court a quo had the advantage of having seen the
various witnesses testify in Court and came to the conclusion
that
the Appellants had made an unfavourable impression upon him. Apart
from the demeanour findings which he made, the findings
of the Court
a quo on the basis of the evidence summarised above seem to be borne
out in full measure. I am of the view that the
learned Judge
correctly rejected the evidence of the Appellants. I can find no
fault in his approach to the various witnesses of
the Crown and in
his application of the cautionary rule to the witnesses whose
evidence had to be scrutinised with the necessary
care I agree with
the Court a quo that there has been a satisfaction of the cautionary
rule by corroboration which in fact implicated
each one of the
Appellants in the commission of the offence. I am therefore not
persuaded that the learned Judge has in any way
erred in the
conviction

29

of the
three Appellants The appeal of all three Appellants is therefore
dismissed.

M. W. ODES

JUDGE OF APPEAL

I agree

W . P . SCHUTZ

PRESIDENT OF THE COURT OF APPEAL

I agree

S. MILLER

JUDGE OF APPEAL

Delivered
at Maseru this day of July 1986

For the
Appellants Mr. G. Nthethe

For the
Respondent Mrs Bosiu