R v Beleme and Another (CRI/T 76 of 90) [1991] LSCA 105 (16 August 1991)

CRI/T/76/90 IN THE HIGH COURT OF LESOTHO In the matter between:- R E X and TSEHLA BELEME 1st MOEKETSI MOEKETSI Accused 2nd Accused J U D G M E NT Delivered by the Honourable Mr. Justice J. L. Kheola on the 16th day of August. 1991. The accused is charged with the murder of Makhalema Sejanamane on the 23rd day of May, 1989 at Sekhutlong in the district of Mokhotlong. He pleaded not guilty to the charge. Khongoanyana Khongoanyana (P. W.1) testified that his home is at Tsieng. He is 20 years old. One day A1 and one Mofokeng (P. W.2) arrived at his place. He was at the kraal. It w as just before sunset. A1 requested him to accompany him to Sekhutlong in order to help him catch his horse. He agreed. The distance from his home to Sekhutlong is about 1% kilometres. When they arrived at Sekhutlong A1 instructed them to go ahead while he -2- remained behind. They stopped and waited for the A1 at a distance of about fifty paces from him. While they were waiting for A1 the deceased appeared from the direction of their village. He was on horseback and two dogs accompanied him. The A1 sat down and when the deceased passed near him he fired at him with gun. The deceased fell down. P. W.1 says that he shouted at the A1 and asked him why he was shooting the deceased. A1 said the deceased troubled him by doing many things but he did not describe those many things the deceased did. P. W.1 says that after the shooting of the deceased he went nearer to A1 who threatened to shoot them if they reported to any person what had happened. A1 took the deceased and put him on the side of the path. He then ordered them to go home. The gun A1 had was about 1½ feet long. From there he went to the cattle post while A1 and P. W.2 went home. A2 was not there. Under cross-examination P. W.1 said that he did not know a pistol before this incident but P. W.2 told him that such a gun is called a pistol. He was adamant that on that day A1 was holding a gun though he had previously not seen him carrying any gun. He denied that on that day and time A1 was at Methalaneng. He had known A1 since his (P. W.2's) childhood. AT the time A1 called him he was at the kraal and preparing to go to the cattle post. That is the reason why after the shooting he went to the cattle post. He denied that he was mistaken about the identity of the A1 as the person who invited him to go to Sekhutlong with him. When the deceased arrived at Sekhutlong it was after sunset but it was not yet dark. He denied /3 -3- that his vision w as obscured by the maize plants in the nearby field. The top part of stalks had been cut and used as fodder. He did not know if A1 owned any horses but he often saw him riding a horse. A1 shot twice. He saw that the deceased had a wound on the forehead. A1 w as wearing a red blanket which he often wore in the village. P. W.2 testified that on the 23rd May, 1989 A1 came to him and asked him to go with him to Sekhutlong to help him catch his horse. They went to P. W.1's place and A1 made a similar request to P. W.1. When they arrived at Sekhutlong A1 instructed them to go ahead while he remained behind. They complied and waited for him about 50 paces away. Some time after they had been waiting they saw the deceased coming from their village towards where they were because the path leading the deceased's place passes there. Deceased was on horseback and was with his two d o g s. As the deceased w as passing near A1, P. W.2 heard a gun report and the deceased fell down. A1 took him and placed him on a contour furrow of a maize field. P. W.2 asked the A1 why he shot the deceased. He said the deceased was troubling him by causing his arrest. He threatened to shoot and kill them in a similar manner if they revealed to any person that he had killed the deceased. P. W.2 testified further that on the previous day he had seen A1 in Tsieng village. He was at the fence. He had one gun report. A1 w as wearing a red blanket on that day. A1 wanted them - 4- to be witnesses of his killing of the deceased. He saw blood oozing from the forehead. 'Mamontseng Setsumi (P. W.3) testified that on the day in question she was at her home. The deceased arrived and stopped to talk to her. While they were talking she saw A1, A2, P. W.1 P. W.2 and one Sami passing below her house and going in the direction of Sekhutlong. The road along which they passed is about 50 paces from her house. When the deceased left her home she took the same direction taken by the accused and the Crown witnesses. It was at dusk. Under cross-examination P. W.3 stated that although it was after sunset it was still clear and he saw the five people well. At the time she saw them they had just passed her home and he saw their backs. She denies that only three people passed there according to P. W.1 and P. W.2. She went further to say that even during the day she saw the five people she has mentioned above, shearing goats at the home of Ramotsoafi. She was adamant that A1 has always been in Tsieng village and that during the day on the 23rd May, 1989 he was shearing goats at the home of Ramotsoafi. She was in the house when the deceased arrived and he remained mounted during their conversation. She was tired and was inside the house when the deceased arrived. She says that she saw the five men before she went into the house and denies that in her evidence-in-chief she said they passed while she was talking to the deceased. /5 -5- T he evidence of Mopapa Mopapa (P. M.5) is to t he effect that on the 24th May, 1989 he w e nt to the scene of the crime with the p o l i c e. The deceased had a wound on the forehead, a wound at the back of the head behind the right e a r. On the 26th M a y, 1989 he identified the corpse of the deceased to a d o c t or who performed a post-mortem examination. It is n ot in d i s p u te that on the d ay in question the deceased w as in Tsieng village where he had gone to comlpain to Ramotsoafi Khongoanyana (P. W.6) that h is a n i m a ls had trespassed on h is arable land and damaged h is sorghum p l a n t s. He left at sunset. Letsepa Phootha (P. W.7) testified that on the 10th October, 1989 he found four empty shells in the field of one Manki which he w as ploughing. O ne of the f o ur shells w as ploughed under the soil and could not be recovered. They w e re found about f i ve p a c es from where the body of the deceased w as f o u n d. Detective Trooper Mohlatsi testified that he transported the corpse of the deceased from Paray Hospital to M a s e r u. He examined it. It had an open wound on the f o r e h e a d, an open wound infront of the right ear and another above the same e a r. There w e re small w o u n ds infront of t he left ear and another small wound above the same e a r. He w as of the opinion that t he wound on t he forehead w as not a gunshot wound. He formed the opinion that t he w o u n ds on the left side of the head w e re entry w o u n ds while t he o n es on the right w e re e x it w o u n d s. /6 -6- Detective Trooper Matete went to the scene of the crime on the 24th M a y, 1989. He observed an open wound on the forehead, an open wound behind the right ear and another open wound above the same e a r. On the 26th M a y, 1989 he arrested P. W.1 and P . W . 2. A f t er they had given him their explanations he took them to the m a g i s t r a te to m a ke their c o n f e s s i o n s. The c o n f e s s i o ns were subsequently filed in the d o c k e t. The evidence of Lt. Nchela is that the two shells found by P. W.7 and subsequently given to him w e re AK 47 rifle shells. He handed them in and w e re marked Exhibit 1 collectively. He w as sure that no other gun u s es that type of b u l l e t s. Detective Trooper Ramone went to Tsieng with the A1 and other policemen. A1 g a ve him a k n o b k e r r i e. They w e nt to Tsieng w h e re the A1 stayed following an explanation which he m a de to him. The evidence of Detective Trooper Khiba is to the effect that he had been looking for A1. He received information that he could be found at 'Mamookoli. He went there b ut did not find him. He received information that he w as at Semenanyana. He then m a de a m e s s a ge to Mokhotlong Police Station asking them to A r r e st A1 at Semenanyana. On the 26th January, 1990 he w e nt to Mokhotlong and found A1 in the custody of the police. He arrested him and took him to Thaba-Tseka. AT Thaba-Tseka police station he cautioned the A1 and the latter said he would not give him any explanation and would answer or speak before a magistrate. Trooper Khiba says /7 - 7- that he handed A1 over to Detective Trooper M a t e te and asked him to take A1 to the m a g i s t r a te so that he could tell him what he had done. Trooper Khiba says that he later learnt that A1 had m a de a c o n f e s s i o n. He did not f o r ce A1 to go to the m a g i s t r a te and never assaulted him. He m a de a confession on the 27th January. 1990. T he evidence of M r. G . T. Jane is that he is the m a g i s t r a te of Thaba-Tseka. On the 30th January, 1990 he w as in h is office w h en the clerk of c o u rt ushered A1 into h is o f f i c e. She immediately left and A1 remained with him. M r. Jane says that he used the form commonly known as a confession form. The form is a questionnaire which is very comprehenisve and c o v e rs all a s p e c ts of whether the accused voluntarily and freely m a k es the c o n f e s s i o n. In addition to the oral investigation he m a de M r. Jane says that he physically examined the wrists and arms of A1 and found no visible injuries. Having satisfied himself the A1 voluntarily and freely m a de a statement which he recorded in S e s o t ho which w as the language used by A1. The A1 appeared to be in h is sound and sober senses w h en he appeared before him. The English translation reads as follows: "We waylaid t h is person Makhalema S e j a n a m a n e. I w a s' with other two p e o p l e. We hit him until he w as d e a d. We left him alone when he had already d i e d. That is a l l ." : After the statement w as recorded M r. Jane read it over to the accused and he placed his right thumb impression t h e r e t o. -8- The confession form w as handed in evidence and marked Exhibit A. The translated copy w as marked Exhibit A A. Under cross-examination M r. Jane said he already knew the A1 very well before t h is incident. He called the clerk of C o u rt to c o me and w i t n e ss A1's right thumb, impression after the statement was made. He said he could not deny that A1 k n o ws how to read and w r i t e. He denied that A1's right thumb print w as taken at the charge office. He says that he cannot deny that he m a de the statement because he expected to get a benefit. He says that the statement w as freely and voluntarily m a de by A1. He d e n i es that he could m a ke any m i s t a ke concerning the identity Of A1. M r. J a ne testified that he did not know A 2. He c a n n ot be sure that the person who appeared before him w as A2 because he forgot to m a ke that person sign the confession form. Because the d o c t or who performed the post-mortem examina- tion had already left t h is country when the preparatory examination and the trial commenced h is post-mortem examination r e p o rt w as admitted in evidence in terms of section 223 (7) of the Criminal Procedure and Evidence Act 1981. The report w as marked Exhibit C. The d o c t or formed the opinion that d e a th w as d ue to head injury. T h e re w as extensive depressed fracture probably caused, by a blunt o b j e ct used with great f o r c e. He also found the following external injuries: /9 - 9- (1) (2) (3) (4) 4cm. laceration on right forehead 2 x 1cm. laceration above right e a r. 1 x 1cm. laceration right temporal a r e a. 1 x 1cm laceration above left e a r. He also found (1) fragmented depressed right temporal b o n e. (2) Depressed left temporal bone (3) Depressed right frontal bone (4) Extensive epidural and subdural hemorrhage. (5) Bruisod right brain. 'Mathabang Masaile (P. W.16) is the clerk of Court at Thaba-Tseka Magistrate's C o u r t. On the 30th January, 1990 she w as on duty when a policemen brought A1 who w as supposed to have c o me to m a ke a confession. After the A1 had m a de a statement M r. Jane called her into h is office to w i t n e ss the thumbprint of A1. When she entered into M r. J a n e 's office A1 w as just removing h is thumb from Exhibit A. She immediately affixed her signature on Exhibit A. An attempt or suggestion w as m a de that because there were of other papers on the table of M r. Jane she m i g ht have affixed her: signature on a wrong paper. She refuted t h is suggestion by showing that she saw when A1 removed h is thumb from Exhibit A and the stamp pad w as next to the paper. She says that she knew A1 very wall before t h is incident. She w as adamant that the signature on Exhibit A is h e rs and not that of policewoman M o l a p o. She denied that A1's thumbprint on Exhibit A w as taken at the charge office. /10 - 1 0- At the close of the Crown case Dr. Tsotsi, counsel for the 2nd accused applied to his discharge because the Crown had failed to establish a prima facie against him. The application w as granted and the 2nd accused was found not guilty and discharged. The only evidence against him was a confession (Exhibit B) which was not signed by the deponent. Mr. Jane could not be sure that the person who appeared before him on that day was A2 because many people appear before him to make confessions. A1 testified that he stays at Semenanyana. He originally lived at Tsieng but left that place in April, 1989. He went to live at Mathalaneng which is near Semenanyana where he w as building his house. He never returned to Tsieeng at any time till he w as arrested at Semenanyana. At Methalaneng he lived with his wife (D. W.3), Sekhohola Sekhohola (D. W.2) and 'Manthabiseng, the wife of D. W. 2. A1 says that on the 23rd May, 1989 he was at Methalaneng where he was threshing wheat and took the straw to Semenanyana and thatched his house with it. He knew the deceased and heard on the radio that he w as dead. He did not know the circumstances surrounding his death. At the time he heard the news on the radio he was with Sekhohola and his (A1's) wife. All the Crown witnesses who say that he w as at Tsieeng on the 23rd May, 1989 are not telling the truth. He w as not at Tsieeng on the 22nd May, 1989. He denies that on the day in question he was shearing goats at Ramotsoafi's place. He w as not /11 - 1- wearing a red blanket and d o es not even own any red blanket. He d o es not own any gun and never threatened P. W.1 and P. W.2 because he was not at Sekhutlong on the 23rd May, 1989. A1 testified that he w as arrested at Semenanyana on the 27th January, 1990 and w as taken to Mokhotlong Police station. On the following day hewas transferred to Thaba-Tseka Police station. On arrival there he w as handed over to policeman Mahleke. On the 29th January, 1990 he remained in the cell for the whole day and nothing happened. On the 30th he w as called to the office and was interrogated. He told his interrogators that he owned no gun and knew nothing about the death of the deceased. He w as taken back to the cell. The police later came into the cell and lashed them with sjamboks and forced him to tell them what he knew about the death of the deceased. He told them that he knew nothing. He w as never taken to a magistrate on that day. He w as remanded on the 2nd February, 1990. He admits that he said he would talk before a magistrate if he was charged with the murder of the deceased. He says that Trooper Khiba never took him to a magistrate on the 30th January, 1990. He knows how to read and write and there w as no reason why he could not have affixed his signature on Exhibit A. His fingerprints were taken at the charge office by Policewoman Matete. Mr. Jane and P. W.16 are not telling the truth that he made a confession on the 30th January, 1990 and put his right thumbprint on it. / 1 2 . . .. - 2- Under cross-examination A1 admitted that P. W.1 and P. W.2 knew him very well because he previously lived in their village. He never had any quarrel with than and is most surprised why they are falsely implicating him in this charge. P. W.1 and P. W.2 were taught by one policeman called Mokolatsie that they should implicate him in this case. He got this information from P. W.2 who used to visit him at the prison while he was awaiting trial. He knew Mr. Jane long before the present incident. He w as challenged when he said he knew how to write and was given a piece of paper and asked to write the words "Lekhotla Le Phahameng". He was unable to do so. It is true that he could print his name and surname in very bad handwriting. He did so at the preparatory examination after he had informed the court that he was reserving h is defence. D. W.2 is Sekhohola Sekhohola who is the cousin of A1. His home is at Methalaneng which is very near Semenanyana. Because A1 wanted to build his house at Semenanyana he came to stay at D. W.2's place so that he could operate from that base. D. W.2 testified that A1 and his wife stayed at his place from the 12th April, 1988 to June, 1988. It later turned out during his giving of evidence that he w as mistaken about the year. It was actually in 1989 when the couple was staying at his place. H is evidence is that during the three months that A1 and his wife lived or stayed at his place A1 never went anywhere. They used to go to the fields with him to thresh straw for thatching his new house at Semenanyana. However he admitted that for four days /13 - 3- at about the same time that the deceased died he was at Matsoku. The evidence of A1's wife is that during the three months that she and her husband stayed at the home of D. W.2 while they were building their house at Semenanyana A1 never went to Tsieeng or Sekhutlong. She said that on the 22nd and 23rd May, 1989 A1 was with her and never went anywhere. But she was unable to tell the Court why she remembered those two particular d a ys inasmuch as she conceded that on some d a ys the A1 left Methalaneng and never told her where he was going. At the end of the defence case 1 called a fingerprint expert because the Crown had built a case that the fingerprint on the Exhibit A was that of the A1. On the other hand the defence had completely denied that that thumbprint was A1's. The expert Detective Warrant Officer Molise finally gave his evidence on the 24th May, 1991 after a few postponements. He testified that he has had special training here in Lesotho since 1976. An expatriate expert in fingerprinting was recruited by the Lesotho Government to train him and others locally. He testified that the first thumbprint which was sent to him together with the one which was Exhibit A was not clear because it was taken on a paper not suitable for that purpose. He supplied Exhibit F and Prison Officer Sehloho took the right thumb print of the A1. The long and the short of his evidence is that fingerprint on Exhibit A was identical with the fingerprint on Exhibt F. The enlarged photographs of the two fingerprints appear on Exhibit D and the report of D/W/O Molise is Exhibit E. /14 -14- Other than the confession the case for the Crown depends on the evidence of P. W.1. P. W.2 and P. W.3. What surprised me when P. W.1 and P. W.2 were called as witnesses before this Court, Miss Moruthoane, the Crown Counsel, declared them as accomplices. I had, rightly or wrongly, read their depositions at the preparatory examination and there w as no evidence that could make them to be accomplices in this case. An accomplice is defined as a person who is liable to be prosecuted either for the same offence as that with which the accused is charged, or as an accessory to such offence (S. v. Kellner, 1963 (2) S. A. 435 ( A . D . ). The evidence of the two witnesses at the preparatory examination as well as before this Court is that A1 invited them to accompany him to Sekhutlong where they were to help him to catch his horse which w as apparently running wild. They agreed but when they arrived there A1 ordered them to go ahead and then wait for him some distance away. He then waylaid the deceased and shot him with a gun when he passed there. The two witnesses could not be charged with murder inasmuch as they took no part in the killing of the deceased. Nor did they assist the A1 in the disposal of the gun he allegedly used. Nor did they help him to hide the body or to dispose of it in such a way that it could not be found. One of them immediately reported to his mother that A1 had killed the deceased. I am of the opinion that the two witnesses are not accomplices and should not have been declared as such unless the Crown disclosed to the Court that despite what they said in their depositions at the preparatory examination, their statements to the police were different and made them accomplices. It w as very important for the Crown Counsel to disclose this to the Court so /15 - 1 5- that when the credibility of the w i t n e s s es is considered the Court m ay caution itself according to the law relating to the evidence of accomplices. Be that as it m ay the evidence of the,two w i t n e s s es seems to be unreliable and h as to be approached with extreme caution. O ne of the policemen w ho arrested P. W.1 and P. W.2 testified that after arresting them he took them to a m a g i s t r a te before whom they m a de c o n f e s s i o n s. He w as sure that the c o n f e s s i o ns w e re filed in the d o c k e t. I think it is on the b a s is of those confessions that the Crown declared them as accomplices. When the evidence of P. W.1 and P. W.2 is contrasted with that of the other w i t n e s s e s, especially the post-mortem of the d o c t or (Exhibit C ), there can be no d o u bt that the two w i t n e s s es have not told the Court all w h at happened to the d e c e a s e d. T he d o c t or r e f e rs to extensive depressed f r a c t u r es of the skull at three d i f f e r e nt places. He w as of the opinion that the injuries w e re caused by the use of a blunt object and that a great d e g r ee of force w as used. He d o es not refer to any gunshot w o u n d s. 1 cannot accept that the d o c t or lacked experience of gunshot w o u n ds to such as extent that he could not m a ke a distinction between a gunshot wound and a laceration caused by either a sharp or blunt o b j e c t. The lacerations referred to by the d o c t or could not have been gunshot w o u n ds because he would have said so. I have formed the opinion that P. W.1 and P. W.2 are unreliable w i t n e s s es w ho decided not to tell the Court all what happened because they also /16 - 1 6- participated in the killing of the d e c e a s e d. It is very c l e ar from E x h i b it C that a b l u nt o b j e ct such as a stick or a k n o b k e r r ie w as used to inflict those depressed f r a c t u r e s. Detective Trooper Ramone testified that on the 30th January, 1990 A1 m a de a certain explanation as a result of which ha and other policemen w e nt to Tsieeng with A1. On their arrival there A1 took out a knobkerrie and gave it to them. That knobkerrie w as handed in as an exhibit at the preparatory examination and marked Exhibit 2. It is unfortunate that that knobkerrie could no longer be traced at the t r i a l. None the less the d e f e n ce did not d i s p u te the f e et that A1 did produce a knobkerrie and g a ve it to t he police. I have formed the opinion that the k n o b k e r r ie w as t he weapon used in the killing of the d e c e a s e d. The evidence of 'Mamontseng Setsumi (P. W.3) is somewhat unsatisfactory for two r e a s o n s: when she saw the accused, P. W.1, P. W.2 and one S a m i, it w as at d u sk and they had just passed her house and she could only see their b a c k s. I am of the opinion that because of the state of light and the f a ct that she saw their b a c ks or saw them from behind at a d i s t a n ce of fifty y a r ds away, she m i g ht be m i s t a k e n. Secondly, in her evidence-in-chief she said the f i ve m en mentioned above passed while she w as still talking to the d e c e a s e d. In cross-examination she changed her story and said the accused and t h e ir c o m p a n i o ns passed below her house before the deceased c a me to her p l a c e. She denied that in her evidence-in- chief she had. just said that the five m en passed w h i le she w as still /17 - 1 7- talking to the deceased. She could not accept that she made a mistake in her evidence-in-chief but flatly denied what she had just said. I find it hard to believe her evidence. I now come to the most important part of {his case - the confession. There are two sections which deal with confessions in pur Criminal Procedure and Evidence Act 1981; they are sections 228 and 240. Section 228 (1) (2) reads as follows:- "(1) Any confession of the commission of any offence shall, if such confession is proved by competent evidence to have been made by any person accused of such offence (whether before or after his apprehension and whether on a judicial examination or after commitment and whether reduced into writing or n o t ), be admissible in evidence against such person provided the confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto. (2) If a confession is shown to have been made to a policeman, it hsall not be admissible in evidence under this section unless it is con- firmed and reduced to writing in the presence of a magistrate.". Section 240 (2) reads as follows: "(2) Any court may convict a person of any offence alleged against him in the charge by reason of any confession of that offence proved to have been made by him, although the confession is not confirmed by any other evidence, provided the offence has, by conpetent evidence other than the confession, been proved to have been actually committed." It seems to me that in the present case the crucial question to be decided is not whether the confession w as freely and voluntarily made but it is whether A1 ever appeared before the /18 - 1 8- m a g i s t r a te and m a de any confession. Be that as it may I am of t he view that the question of whether the confession w as freely and voluntarily m a de still h as to be decided by t he C o u r t. A1 w as arrested by Detective Trooper Khiba on the 26th January, 1990. On their way from Mokhtlong to Thaba-Tseka Trooper Khiba did not assault A1 and the d e f e n ce never suggested that he w as assaulted or ill-treated in any m a n n e r. When they arrived at Thaba-Tseka Trooper Khiba cautioned t he A1 in t e r ms of t he Judges' R u l e s. A1 said he would not g i ve any explanation to him (Trooper K h i b a) but he said he w as prepared to answer before a m a g i s t r a t e. He handed him over to Trooper Matete and asked him to take A1 to a m a g i s t r a te to tell him w h at he had d o n e. He says that he did not f o r ce the A1 to go and m a ke a confession. In h is evidence Trooper M a t e te n e v er said that he took A1 to the magistrateronthe 30th January, 1990. There is no policeman w ho testified that he took A1 before a m a g i s t r a te to enable him to m a ke a confession. But we have the evidence of P. W.16 'Mathabang Masaile which is to the effect that she is a clerk of C o u rt at Thaba-Tseka m a g i s t r a t e 's C o u r t. On the 30th January, 1990 a policeman brought A1 to her office and told her that he wanted to m a ke a confession. She received him and led him into the office of the m a g i s t r a t e, M r. J a n e. She already knew A1 very well before this incident. I am convinced that A1 w as taken to the clerk of c o u rt by a policeman and it seems to me to be immaterial who that policeman w as because the d e f e n ce never alleged that A1 w as assaulted or forced /19 - 1 9- by that policeman to m a ke a confession. The A1's version is that on the 30th January, 1990 he w as interrogated by some policemen including one Trooper Mahleke. He denied any involve- m e nt in the killing of t he d e c e a s e d. He w as returned to the c e l l. Later policemen c a me and lashed him to tell them w h at he'..knew about the d e a th of the d e c e a s e d, he said he knew nothing. They left him alone. On that d ay he w as n e v er taken to a m a g i s t r a te to m a ke a confession and he never m a de any confession until the 2nd February, 1990 when he w as remanded. A1 says M r. Jane and P. W.16 are not telling the truth that on the 30th January, 1990 he appeared before a m a g i s t r a te and confessed. It is common cause that A1, M r. Jane and P. W.16 know each other very w e l l. They had known each other long before the 30th January, 1990. I do not b e l i e ve that M r. Jane and P. W.16 can m a ke a m i s t a ke about the identity of t he A1 at that very important m o m e n t. I have believed the evidence of Mr Jane and P. W.16 that A1 confessed in Mr. J a n e 's office on the 30th January, 1990. P. W.16 positively identified her signature as w i t n e ss to the finger print of Exhibit A. She gave a specimen of her signature in court which appeared to be the same with that on Exhibit A. S he saw w h en t he A1 put h is thumb print on t he Exhibit A because when she entered into M r. J a n e 's office A1 w as just removing h is thumb from Exhibit A and she immediately signed as a w i t n e s s. T he evidence of A1 that he w as assaulted by o ne Mahleke is obviously an afterthought and m u st be rejected. It w as never p ut to / 2 0 . .. - 0- the Crown w i t n e s s es that a policeman named M a h l e ke assaulted A1. We heard f or the f i r st time about Mahleke when A1 w as giving evidence in the w i t n e ss - box. It is trite law,that the d e f e n ce m u st put its c a se to the Crown w i t n e s s es to enable t he C o u rt to observe their reaction. Failure to do so d o es n ot m e an that the Court m u st ignore the evidence of the accused. H is evidence m u st be given a thorough consideration. In the instant c a se the A1 d o es not say he m a de a confession because Mahleke assaulted him and forced him to m a ke a f a l se confession. H is story is that he never m a de a confession at a l l. I am satisfied that A1 m a de the confession appearing on Exhibit A. That statement amounts to a confession because A1 says they waylaid the deceased and they hit him until he d i e d. There is no question of self-defence or provocation. P. W.2 said that after shooting the deceased A1 said he killed him because he (deceased) w as troubling him by causing h is a r r e s ts by policemen. P. W.1 w as present when these w o r ds were allegedly uttered but h is version is that A1 said the deceased troubled him but did not explain how he troubled him. As I said above P. W.1 and P. W.2 are very unreliable w i t n e s s es and it is impossible to know when they are telling the truth. I called Warrant Officer Molise", who is an expert in identification of f i n g e r p r i n t s, and he w as positive that the thumb- print on Exhibit A w as identical with the thumbprint on Exhibit F. I accepted h is evidence b e c a u se on Exhibit D even a layman can see some similarities. /21 - 2 1- I am of the view that there is evidence aliunde that a crime w as committed. T he evidence regarding the injuries p r o v es beyond any reasonable d o u bt that the deceased w as m u r d e r e d. The deceased f r a c t u r es of the skull are consistent with the use of a blunt object such as a stick or a k n o b k e r r i e. The injuries are not consistent with those of a person w ho w as thrown d o wn by a horse. After the killing the deceased w as taken from the path and placed on the contour furrow in a nearby f i e l d. All these t h i n gs prove the commission of m u r d e r. It is trite law that even when section 2 40 (2) of the Criminal Procedure and Evidence A ct 1981 is satisfied;, it will not necessarily be safe to c o n v i c t. There is still the over- riding requirement that the court m u st be satisfied beyond reasonable d o u bt that the accused is guilty. T he c o u rt m u st therefore consider whether the confession is r e l i a b l e. T h is may appear from the surrounding c i r c u m s t a n c es or from t he c o n t e n ts of the confession itself (Hoffmann: South African Law of E v i d e n c e, 2nd e d i t i on p. 4 0 9 ). In R. v. Fuwane, 1956 (4) S. A. 761 at p. 7 64 Clayden, F. J. said: / 22 - 2- "Now this in our view was not a correct approach by the Court. The question was not simply whether the confession was genuine, but whether the Crown, by means of it, if genuine, and having regard to other evidence had proved beyond reasonable doubt that the appellant through the agency of Lizzie murdered the deceased. In the case of Sykes, 8 Cr. App. Rep. 233 at p. 236 Ridley, J., discussed the tests to be applied to a confession: the first question you ask when you are examining the confession of a man is, is there anything outside it to show it w as true? Is it corroborated? Are the statements m a de in it of fact so far as we can test them true? W as the prisoner a man who had the opportunity of committing the murder? confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?" Is his In the instant case the contents of the confession are consistent with the medical evidence that a blunt object w as used to inflict the injuries. A1 produced a knobkerrie and gave it to the police. A1 had the opportunity to commit the offence. His alibi w as rejected by the Court. The evidence of D. W.2 did not exclude the fact that while he w as away from his home for four d a ys A1 went to Tsieeng. The evidence of A1's wife is also unsatisfactory because she admitted that sometimes he left Methalaneng village without telling her where she w as going. She failed to give any reason why she remembered that on the 22nd and 23rd May, 1989 A1 w as at home with her. She could not remember the d a t es on which A1 left without telling her where he was going. /23 - 3- I have earlier in t h is judgment said that P. W.1 and P. W.2 are unreliable w i t n e s s es inasmuch as they did not tell the Court how they participated in the commission of t h is offence. I have no d o u bt that they took part in t he killing of the d e c e a s e d. They m a de c o n f e s s i o ns which w e re unfortunately not disclosed to the C o u r t. In my view the Crown ought to have disclosed that the evidence given by these two w i t n e s s es w as inconsistent with t he statements they m a de earlier and to have applied for leave to read the statements and to hand them in as e v i d e n c e. In any case it d o es not necessarily follow that once the c o u rt h as rejected one part of the evidence of a w i t n e ss it m u st reject all h is or her evidence. T he Court m ay believe some p a r ts and reject o t h e rs depending on the circumstances of the c a s e. In the instant c a se I have formed the opinion that P. W.1 and P. W.2 are telling the truth that they w e re present when the deceased w as killed by A1 but the only part they left o ut is their participation in the killing. To t h is extent their evidence c o n f i r ms or corroborates the confession. I m u st m e n t i on that the finding of empty shells near the scene of t he crime about f i ve m o n t hs after the commission of t he crime is irrelevant. The area of the scene of the crime w as thoroughly searched for c l u es immediately after the commission of the crime but no empty shells w e re found. It seems to me that anything could h a ve happened d u r i ng those five m o n t h s. In any c a se the deceased w as n ot shot with a gun. if there w as any firing of a gun / 24 - 2 4- on that d ay the deceased w as not hit by any bullet. It is possible that a gun w as fired and its sound caused the horse to jump and to throw the deceased to the ground enabling h is killer or killers to hit him with blunt object. T h is is, of c o u r s e, m e re speculation. For the reasons stated above I come to the conclusion that the confession w as freely and voluntarily m a de by A1 in h is sound and sober senses. He w as not influenced in any way to m a ke a confession but he seems to have been under the wrong impression that after making the confession he would be released on ball or on h is own recognizances. I think the learned m a g i s t r a te ought to have told him that h is release would not automatically follow. However, that d o es not vitiate the fact that the confession w as m a de freely and voluntarily. The accused had the requisite intent to kill in the form of d o l us d i r e c t u s. I find the accused guilty of m u r d e r. My assessors agree. J. L. KHEOLA JUDGE 16th A u g u s t, 1991. For Crown - For Defence - M i ss Moruthoane M r. F o s a. - 2 5- EXTENUATING CIRCUMSTANCES M r. Putsoane submitted on behalf of the accused that there w as no premeditation. I do not agree with that submission. The accused m u st have seen the deceased in Tsieeng village and knew that he (deceased) would be returning to h is village that evening. He planned to go to Sekhutlong and to waylay him there., He then asked P. W.1 and P. W.2 to accompany him to Sekhutlong alleging that he wanted them to assist him to catch h is horse. He w as actually lying because he had no horse at that place. He waylaid the deceased and killed him by hitting him on the head causing several depressed f r a c t u r es of the skull. He used a knobkerrie to c a u se the injuries. M r. Putsoane f u r t h er submitted that according to the evidence of P. W.1 and P. W.2 the deceased troubled the accused so m u ch that ho regarded him (deceassd) as a m e n a ce who caused h is unwarranted arrests. He subjectively thought that the only way to g et rid of t h is menace w as to kill him. He referred to the c a se of Naro Lefaso v. Rex, C. of A. (CRI) 7 of 1989 (unreported) at p a g es 10-11 where S c h u t z, P. said: "The judgment on extenuation reflects that the appellant's counsel argued as f o l l o w s: "A woman 'Mamoliehi whose name appeared time and again in t h is c a se is said to h a ve been in love w i th t he accused. She is also said to be the d e c e a s e d 's close relative. The court w as asked to take into /26 -26- a c c o u nt that in the absence of t h is w o m a n 's husband the deceased had a high d e g r ee of c a re over h e r. Accused through h is counsel m a i n t a i ns that 'Mamoliehi h as c a u s ed the breakdown of accused's own m a r r i a ge in the sense that he and she lived virtually as m an and w i f e. 'Mamoliehi played on accused's f e e l i n gs to the extent that she urged him to get : rid of the deceased who seemed to be interfering in their illicit love affair. It w as projected as accused's w e a k n e ss or humanfamily. that he failed to appreciate that deceased w as entitled to live also; and t h us fell to the temptation of putting her away at the instigation of h is lover 'Mamoliehi." T he f i r st difficulty with t h is argument is that in h is evidence the appellant said that he had loved 'Mamoliahi long a g o, but t h at when the deceased died they were not in love. The second difficulty is that there w as no evidence to support the argument. It had been open to the appellant at the extenuation stage to give evidence again, contradict h is former evidence of innocence, and try to persuade the Court that extenuating c i r c u m s t a n c es existed. T h is would have involved admitting g u i l t. But t h is the appellant did not d o. He tried to ride two h o r s e s, protesting h is innocence (as h is argument in t h is appeal s h o w s ), w h i l st contending in the alternative that if he w as guilty h is guilt w as extenuated by f a c ts that supplied the m o t i ve for the m u r d er that he in fact committed. T h is is generally a d i f f i c u lt posture, and in t h is c a s e. I think, an impossible o n e. He cannot h a ve it both w a y s. If he had given evidence anew, admitted guilt and sought to prove extenuating circumstances, he would have been subject to crose-examination, in which h is subjective state of m i n d, a m a t t er of great importance, could have been tested. /27 -27- T h is leads to the third m a j or d i f f i c u l t y. Even if the version argued were to be accepted, it is f ar too g e n e r a l, in my view, to establish extenuation. The m e re f a ct that a person stands between another and a desired object d o es not m e an that the m u r d er of the f o r m er by the latter is extenuated. If it w e re otherwise a w i fe who m u r d e rs her husband in order to encash the insurance policies he has taken out on h is life in her favour could be said to have her moral guilt lessened because of the f a ct of t he husband's "obstruction". For the argument raised to succeed it would be necessary to p r o be the state of mind and f e l l i n gs of the appellant and this presupposes evidence." In the present c a se t he accused did the same thing as the appellant in Lefaso's case - supra- by n ot going into t he w i t n e ss box and giving his evidence anew and admitting guilt and seeking to prove extenuating circumstances and submitting to cross-examination in order to establish h is subjective state of m i n d. P. W.1 and P. W.2 do n ot claim to have personal knowledge that the deceased used to cause the arrest of the accused. To establish that f a ct the accused ought to have given evidence because we do not know whether he w as telling the truth when y ou are d e a d. returned to custody and you will be hanged by the neck until The Accused is sentenced to d e a t h. You will be Sentence:- I find t h at there are no extenuating c i r c u m s t a n c e s. he uttered those w o r d s. - 2 8- J. L. KHEOLA JUDGE 30th August, 1991. For Crown - Miss Moruthoane For Defence - Mr. Putsoane