CRI/T/30/86

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

v

LEHLOHONOLO
BERNARD CHEMANE MAHASE

JUDGMENT

Delivered
by the Hon. Sir Peter Allen on the 18th day of August, 1987

The
accused is indicted on three counts, the first count of the murder of
one Mapukunyane Tente; the second count of the murder
of one
Motsieloa Hlapisi; and the third count of the theft of a motor
vehicle, registered number F.0876. All were alleged to have
occurred
on the 23rd July 1983 at Ribaneng in the district of Mafeteng.

The first
deceased, Mapukunyane, worked in the shop belonging to the second
deceased Motsieloa. The stolen vehicle was a blue Toyota
van which
also belonged to Motsieloa.

The Crown
listed. 16 witnesses for the prosecution. Of these the evidence of
ten witnesses given on deposition at the Preparatory
Examination held
at Mafeteng on 15 May 1986 was admitted by the defence. Thus six
prosecution witnesses testified at this trial

At about
7.00 p.m. on 23 July 1983 four men forcibly entered the house of the
second deceased Motsieloa where he was present with
varlos member of
his family and employees

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who were
in different rooms in the house and kitchen. A number of gunshots
were heard from various types of guns, after which the
blue Toyota
van was apparently driven away by the gang.. They left behind the
body of the first deceased Mapukunyane and the fatally
injured
Motsieloa (the second deceased) who died at Morija Hospital two days
later, on 25 July 1983.

The
arrival of the gang at the house and the shootings were described
from various viewpoints by the witnesses Mats'epang Hlapisi
(P.W.1),
a niece of the second deceased Motsieloa; Moleboheng Fosa (P.W.2) who
worked in the shop; Hlapisi Hlapisi (evidence admitted),
the 18 years
old son of the second deceased; Diako Sello (evidence admitted), who
lived in the house and Rosalea Manyeli (evidence
admitted), who lived
in the servants' quarters. In addition, the gun­shots were heard
by Troopers Masunyane and Phamotse. as
well as ex-W.o. Mokone (all of
whose evidence was admitted) of Ribaneng Police Station. They went to
the scene and saw a vehicle
being driven away. On their arrival they
found the body of the first deceased Mapukunyane but Motsieloa had
already been taken
to hospital. They picked up three empty cartridge
cases at the scene (exhibit 1.) which consisted of two shot gun
cartridges and
one from an automatic rifle.

The post
mortem examination reports concerning the two deceased persons were
prepared by Dr. S.W. Moore at Morija Hospital and put
in by consent
(exhibits 'A' and 'B'). That of the first deceased, Mapukunyane (aged
65 years) was dated 27 July 1983 and it reveals
that his death was
caused by a gunshot wound which penetrated the left side of the chest
at close range. There was an exit wound
at the back and much

3

blood was
lost. His body was identified by Thabo Tente and Ketso Tente
(evidence admitted), his nephew and son respectively. The
report of
the second deceased Motsieloa (aged 43 years) (exhibit 'B') was dated
2 August 1983 and it reveals that there were two
gunshot wounds, one
in the body penetrating both bowels and stomach and the other in the
left buttock fracturing the femur. He
died in hospital on 25 July
1983 of septicaemia shock from the injuries. His body was identified
by his brother Moferefere Hlapisi
(evidence admitted),

Tpr.
Moreki (PW3) of Maseru Police testified that, two days after the
incident, on 25 July 1983, he received information . from
Mafeteng
CID as a result of which he recovered the Toyota van F.0876 from a
place called Khubetsoana, which was about a half kilometer
from where
the accused was living with his parents. No examination was made by
the police for finger­prints or anything else
on the vehicle
apparently.

According
to this trooper, on 27 July 1983 two detectives came from Mafeteng
and went with him to arrest the accused at his above
home where they
found him. The detectives were not called as witnesses and there is
no other evidence supporting this, nor was
it revealed for what
offence he was arrested. The accused himself stated that he was not
arrested until 10 October 1983, and that
was for another offence.
According to Det. Lieut. Ramonate (P.W.6 ), who was the
in­vestigating officer at Mafeteng, he received
a report of the
accused's arrest in Maseru on 16 November 1983 and he sent a
detective to escort the accused to Mafeteng on the
following day. The
accused was then sent to prison in connection with another case. It
would thus appear that the earlier arrest
(or arrests) may not have
been concerned with the present case. Lieut. Ramonate knew nothing
about them. The first time that the
accused appears to have been
brought into the present matter was when Lieut. Ramonate ordered Sgt.
Khitlane

4

(P.W.4)
to conduct an identification parade with the accused being brought
from prison in order to take part on 21 November 1983.
There was no
explanation of how or why the accused became a suspect involved in
this case.

The
identification parade was held four months after the incident at
Ribaneng and three alleged eye-witnesses were asked to try
to
identify anyone who had taken part in that incident. Moleboheng
(P.W.2) and the boy Hlapisi (evidence admitted) were unable
to
identify anyone at all, although the accused stood in the line up of
ten other men. Only Mats'epang (P.W.I) identified the accused
at that
place and she remains the sole identifying witness in this case. The
parade was conducted by Sgt.KHITLANE(P.W.4)assisted
by Tpr. Pomela
(evidence admitted) and other police officers at the back of the
charge office at Mafeteng Police Station. Sgt.
Khitlane's
identification parade written report (exhibit 'C') shows that the
parade took place at 10.30 a.m. on 21 November 1983.
It refers only
to the witness Mats'epang (P.W.1) and there is no mention of the
other two witnesses. There were a number of other
defects and
deficiencies in the conduct of this identification parade which I
find to be most unsatisfactory. The report did not
state that the
accused was asked if he agreed to take part in the parade and that he
had so agreed.

According
to the Sgt. he had served in the police for 15 years and yet this was
his first identification parade. He had either had
no training in
this important police duty or he had forgotten what he had been
taught. In any case, he clearly should have been
supervised by a more
experienced officer; because the procedure is not simple and there
are certain rules to be followed.

5

The first
error was made before the parade commenced. In these cases the
suspect should already be held in the police cells or another
room
ready to be brought out as soon as the other people are lined up.
This is so as to ensure that he cannot be seen by the identifying

witnesses before the parade starts. Unfortunately in this instance
the witnesses were already sitting outside the police station
when
the accused was brought down the road from the prison.

According
to the Sgt. the accused was brought in a vehicle and could not be
seen, but the accused denied this and described how
he was brought on
foot along the road in handcuffs. If this was so then it was clearly
possible for anyone, including identifying
witnesses, to see him and
to know that he was a prisoner or suspect. This should have been
avoided.

The
printed pro forma of the identification parade (exh. 'C') used by
Sgt. Knitlane has on it the words "The parade consisted
of the
following persons who were similar to the suspect." It then
names 10 men. This requirement appears to have been ignored
by Sgt.
Khitlane because he stated in Court that the men were of different
heights and appearances and that each wore different
clothes. The
accused was apparently wearing quite distinctive clothing consisting
of blue jeans and a grey long-sleeved T-shirt,
called a 'skipper',
with the word OLYMPIC printed across the chest in large letters, and
no hat. What the others were wearing was
not noted.

Now, it
is a standard requirement in such parades that all of those taking
part should be of similar age, height and

6

shape as
the suspect, and that they should be dressed in similar clothes and
that their facial appearances should be alike. Thus,
if the suspect
has a moustache or beard or spectacles then so should all the others
in the line up.

It is for
the suspect to choose what clothes to wear ' and the police should
then ensure that the others on the parade are similarly
dressed. In
this case they should all have been in T-shirts or sports shirts and
jeans or similar trousers. The witness must not
be told that a
suspect is definitely present and should be pointed out. Instead the
witness should be asked to point out the suspect
"if such a
person is present on the parade."

In this
way the witness will be faced by a line of men all with facial
appearance and clothes of a similar type. She then has to
make a real
effort to locate and identify the suspect and there will consequently
be much more centainty and credibility in such
an identification. If
she is hesitant or doubtful,or unable to point him out, then this
will be revealed and it should be noted
down by the police officer
conducting the parade; who himself must not have been involved in the
actual investigation of the crime
committed.

If a
suspect has any limb missing or other deformity, and it is not
possible to find sufficient people with similar bodily defects,
then
the solution is for all of them to hide that part of the body. If it
is a leg deformity then they can all stand behind blankets
or covered
tables so that none of their legs can be seen. In this case the
witness Mats'epang (P.W.I) said that the man had a squint
or
something wrong with one eye. The accused has no squint in fact, but
his right

7

eye does
have what is called a lazy eye-lid. The eye-lid keeps closing by
itself which tends to make him lift his head up to see
clearly as he
probably finds it hard to control the continual drooping of the
eye-lid. In such a case the proper course is for
the police to give
each man oh the parade a small square of cardboard or stiff paper
with which to cover one eye.

In this
instance nothing like that was done and it appears that the accused
may have been the only one there with a visible eye
defect. At any
rate the witness (P.W.1) said she noticed it and looke straight at
the accused as soon as she was brought in front
of the line-up. The
accused in Court confirmed that he saw her look straight at him. She
was told to walk along the line so she
went down and back again and
then touched the accused who stood at number 2 position in the line.
She said nothing, and this was
wrong too. She should have been
previously asked to say something like "This is the one" or
"This is the man"
if she saw him, so that it could be
recorded, as well as why she was able to recognise him.

In her
testimony P.W.1 said, "As I inspected them I immediately spotted
the man. I pointed at him on my way back again along
the line. I did
not concentrate on their clothes, but on their faces." This
remark was very significant and I shall refer
to it again later on.
But she picked him out solely because there was something wrong with
his eye. She had no regard to his height,
size, shape or clothing.
There are very many people with eye defects and there was thus no
other confirmation of her identification
which could have

8

resulted
in more certainty. There was clearly a danger here of making an
erroneous identification.

The
witness Moleboheng (P.W.2) had told the police, and later the Court,
that she was completely unable to identify any of the four
men in the
gang. This was rather strange because she was standing facing one of
them at the window of the kitchen and only a few
inches away from
him. Much closer than P.W.1 in fact, and so she ought to have been
able to describe and identify that man especially
if he had an eye
defect. At any rate, she did not see him in the line up and so walked
past the accused. She identified nobody
and she said nothing about
any eye defect.

The
witness Hlapisi, the boy whose evidence was admitted, was also in the
kitchen with the other witnesses and he was unable to
identify or
describe anyone. There were two other adults in that kitchen, James
Matla and 'Mahlapisi, the wife of the second deceased.
Neither was
produced as a witness and it would appear that no police statements
were obtained from them. Thus of five people in
the kitchen only one,
the witness Mats'epang (P.W.1), who was 16 years old at the time,
claimed to be able to identify the man
whom they all apparently saw
and looked at.

There is
another strange aspect to this case concerning identification. In
most cases, when the police question several eye-witness,
they obtain
from them various descriptions of the facial features, if they are
not covered up, as well as the clothing of suspects.
But, in this
case, although the faces of the four men were visible, not one of the
seven people said to have been present, was
able to describe a single
face. Three of the five whose evidence was recorded all gave

9

descriptions
of their clothing only. This is most unusual because there were
lights on in the house and some of the witnesses were
extremely close
to, even touching, some of the gang. It seems incredible that they
only looked at the men's clothing. There was
no mention of beards,
moustaches, bald heads, big ears, or any other easily recognisable
features.

'
Mats'epang (P.W.1) testified that the man at the kitchen window, whom
she later identified as the accused, wore a balaclava rolled
up to
his forehead and a blue moholu blanket. Another man had on a green
blanket and another wore military camouflaged jacket and
trousers.
The fourth wore an unspecified blanket. She said only two wore
balaclavas. At the P.E. she said first, "I don't
know how they
were dressed" and later that one wore "soldier's
comouflage" and "the others seemed to be wearing
blankets."
The man in the blue moholu blanket had a "skullcap" on his
head. There was no mention of balaclavas at
all and no facial
descriptions.

Moleboheng
(P.W.2) testified that she was pulled from the kitchen into the
bedroom and there she was beaten with plastic sjamboks
by three of
the men while the fourth stood in the doorway. They wanted to know
where the second deceased kept the keys of his various
motor
vehicles. She showed them the keys on a table in that room. But there
was a paraffin lamp lit in the room and. she was very
close to the
men yet she could only describe their clothing. According to her the
one by the door wore brown overalls with a black
blanket and face
uncovered. Another wore a blackish moholu blanket and a balaclava.
The third wore a green blanket and the fourth
a khaki dust coat. At
the earlier P.E. she said she did not see what the man at the kitchen
window was wearing.

10

She added
that one man who came into the kitchen wore a black blanket and
another wore an old moholu blanket. She could not identify
anyone. It
seems strange that both of these witnesses were able to give more
detailed descriptions at the trial than they could
at the much
earlier P.E.

The boy
Hlapisi (whose evidence was admitted) des­cribed one man in
overalls, another in a black blanket, the third in a green
spotted
overall and the fourth was wearing a brown coat. The "green
spoted overall" may have been military camouflaged
combat
clothing.

The
witness Diako Sello (whose evidence was admitted) gave no
descriptions at all and said she could not identify anyone yet she

saw them in the passage and the kitchen, both of which were lit. She
may not have been questioned properly.

The
witness Rosalea Manyeli (whose evidence was admitted) heard voices
and sounds but apparently saw nothing as she stayed inside
the
servants' quarters. I do not know why she was included as a witness.

The main
witness Mats'epang (P.W.1) made no mention of anyone wearing overalls
or a dustcoat, both of which were seen by Moleboheng
(P.W.2) and the
boy Hlapisi. These are very distinctive types of clothing.

Although
the witnesses seem to have taken some trouble to notice the clothing
of the four men, the accused was not in fact identified
by his
clothes.

It
appears that before the shooting started, and at the time of the
arrival of the four men at 7.00 p.m., there were four people
in the
kitchen. Against one wall was a coal stove and seated near that were
the two people who were

11

not
listed as witnesses, James Matla and 'Mahlapisi, the wife of the
second deceased. They were eating.

In the
next wall there was a large window divided into three upright
sections each of which could be opened separately. Two sections
were
closed and only the right hand section was partly open. On the window
sill in front of the middle closed window there was
a lighted candle.
Outside there was moonlight. Below the left section of the window was
a sink on a wooden stand.

At this
sink stood Moleboheng (P.W.2) washing some dishes.' In the middle of
the room, sitting on the floor, was Mats'epang (P.W.1)
who was aged
16 years and busily engaged in feeding her baby with soft porridge
and milk. She was using her hands and a spoon and
so was looking
carefully to see that the food went into the baby's mouth. She
testified that she "was concentrating on feeding"
her
child. This has to be borne in mind when considering her later
testimony. She also said that "there was not so much light
from
the candle in the kitchen."

There was
primus stove alight and smelling which was why the window was
slightly open. Otherwise there was no other light but that
from the
candle in the window. One of the men in the gang appeared at the open
window and looked in. He was carrying a rifle of
some sort. According
to P.W.1 he stared at her and she stared at him for between 5 to 10
minutes and nobody said a word. This is
so unlikely that I cannot
believe that statement. She went on to say that P.W.2, standing by
the sink, then noticed the man and
screamed out, "here is a
person" and then the man slammed the window closed and P.W.2

12

dropped
down and hid under the sink. The others in the kitchen all saw the
man also, but they do not seem to have reacted at all.

It is
clear that P.W.1 did not stare at the man for 5 to 10 minutes through
the open window as she claimed because, on being closely

cross-examined, she admitted that she only saw the man peeping inside
when P.W.2 screamed and drew everyone's attention to him.
In
addition, she had admitted that she was concentrating on feeding,her
baby at the time and so she had to watch where she was
putting the
spoonsful of food. Furthermore, P.W.2 testified that, as soon as she
saw the man, he closed the window as she screamed.
So P.W.1 could
only have seen him through the closed window or just as he closed the
window.

This
would have been difficult because the moonlight outside would
probably have lit up the back of him but caused his face to be
in
shadow. The candle, further along the inside of the window, would
have reflected its light in the glass making it rather difficult
to
see through to the outside. The man was wearing a rolled up balaclava
which would have thrown some shadow on to the top part
of his face.
Thus the cir­cumstances and conditions, on the whole, would not
have been the best for distinguishing features
and making a clear
identification.

In Court
P.W.1 insisted that the man at the window had a squint in his eye or
something peculiar about his eye. She did not say
which eye. She said
she also saw him again inside the house in the passage wearing a
moholu blanket. She insisted several times
in her testimony that she
told the police that the man at the window had what she called a

"squint
eye".

13

Now, at
the P.E. it is the job of the prosecutor to take each of the
prosecution witnesses through their evidence as it was given
in
statements to the police. Since the record of the P.E., and no doubt
the police file, is used by the Crown Law Office when deciding

whether to bring the accused to trial, it is obviously important and
necessary for all relevant evidence to be produced at the
P.E..

As this
case for the prosecution depends entirely upon the identification of
the. accused by Mats'epang (P.W.1) one would expect
to see the manner
of identification emphasised to the police and again in the P.E.
record of her evidence. In fact all she said
about it at the P.E. was
this:

"
The person who pointed the gun through the kitchen window was another
one of them. I saw him wearing a,blue moholu blanket,if
I saw well He
was wearing a skullcap on the head ...... I'pointed out a person in
the identification parade:

There was
absolutely no mention about his eye or of anything anusual. about it
or him. Apart from the' blanket and skullcap she
mentioned no other
means of identification.

Here in
Court in her examination in chief by the prosecutor this witness
described the man at the window as follows:

" He wore a hat and a moholu blanket. The hat was a balaclava
helmet. It was folded up above his forehead."

14

There was
no mention of the man's eye in her testimony at all until she had
been cross-examined by defence counsel at some length.
On the second
day of this cross-examination Mr. Sooknanan asked her if there were
any distinctive features about the man at the
window. She had not
mentioned any until then. She said there were none and counsel then
asked if there was nothing special about
the man's "legs, hands.
eyes, ears, chin or lips." She replied that there was nothing
except that one man was tall. Then
she added this:

" I said one wearing comouflage was tall, another one not so
tall - he had a squint eye. Something was peculiar with his eye."

That was
the first mention of anyone's eye defect and I believe that if
defence counsel had not brought it up and pressed for an
answer, she
would not have mentioned it at all. She further stated that she had
given a description of the man to the police.

Then in
re-examination of P.W.1 by the prosecutor she repeated that "the
man at the window had a squint-eye and he wore a moholu
blanket."
She went on to say, "At the P.E. at Mafeteng I was not asked the
same questions about it as defence counsel
asked here in Court."
'

The only
way in which the prosecution has been able to connect the accused
with this offence is by Mats'epang's identification of
him. If she
gave a facial description of him to the police it certainly was not
revealed at the P.E. nor in the witness's examination-in-chief
in
this Court. At the identification parade she did not say to the
police, "I recognise this man because of his squint eye"
or
anything like that. Her mention of the accused's eye in
cross-examimination

15

appears
to me to be something of on afterthought. It most certainly, is not a
convincing identification because it raises a number
of doubts. I
find it difficult to believe that she told the police about his eye.

She said
in cross-examination that at the identification parade line-up, she
did not concentrate on the men's clothes but on their
faces. Yet it
is strange that she kept so quiet about the man's eye that even the
prosecutor did not get any reference to it from
her in her
examination-in-chief. The accused in his defence on oath denied being
at Ribaneng at-any time and he denied participating
in the offences
charged.

In her
final address Miss Moruthoane repeatedly stressed that the witness
Mats'epang was credible, unshaken, steadfast and unhesitating
in her
identification of the accused. I do not agree. In fact she was shaken
in cross-examination. She first insisted that she
stared at the man
for 5-10 minutes through an open window. When she was cross-examined
about this she admitted that she was busily
engaged in feeding her
baby and watching where she put the spoonsful of food into its mouth.
Furthermore, she agreed that her attention
was only drawn to the
window when Moleboheng (P.W.2) screamed and, according to P.W.2
herself, that was when the man closed the
window. It was therefore
most unlikely that there was any long period of staring at each other
by P.W.1 and the man at the window.

The
accused is indicted on three counts before this Court, two of which
are of the very serious crime of murder. The Court has to
be
satisfied beyond all reasonable doubt that the prosecution has proved
the guilt of the accused, in this case by his positive

identification. I am well aware of

16

the
provisions of S.238(1) of the C.P.&E. Act that an accused may be
convicted on the sole evidence of only one competent and
credible
witness. But that witness has to be completely credible and
convincing. There must be no doubt at all and no possibility
that she
was mistaken. The Assessors were convinced by P.W.1's identification
evidence and they gave it as their opinion that the
accused should be
convicted.

For the
reasons which I have already explained at length I am unable to agree
with them. I cannot say that there are no doubts in
my mind about the
identification of the accused by this young girl. I find it difficult
to understand just how she was able to
identify the accused with any
certainty at all. Even if she was honest she could easily have been
mistaken. Nobody else noticed
any of the men in the gang with a
squint and this witness did not mention it until quite late in her
testimony, so it cannot have
appeared to be important either to her
or indeed to the prosecution.

In my
opinion it would be most unsafe and irresponsible for any reasonable
Court to convict an accused person on such flimsy and
insubstantial
and unreliable evidence, and I shall not do so.

Accordingly,
the accused is acquitted on all three counts in the indictment and
he' is to be released forthwith.

P. A. P.
J. ALLEN

JUDGE

18th
August, 1987

Mr.
Sooknanan for the Defence

Miss
Moruthoane for the Crown

17

ORDER

The three
empty cartridge cases (exh.1) are to be handed over to the police for
destruction.

P. A. P.
J. ALLEN

JUDGE

18th
August, 1987