R v Maliehe and Others (CRI/T 2 of 92) [1996] LSHC 51 (22 April 1996)

CRI\T\2\92 IN THE HIGH COURT OF LESOTHO In the matter of : R EX v SAMUEL MONONTSI MALIEHE TEBOHO MICHAEL CHAKA REMAKETSE SEHLABAKA 1st Accused 2nd Accused 3rd Accused J U D G M E NT Delivered by the Hon. Mr. Justice M. L. Lehohla on the 22nd day of April, 1996 The three accused appearing above (together with one Nkalimeng Mothobi against whom the charges were withdrawn due to his absence following his escape from custody before the commencement of this trial) were charged in Count I with the crime of Murder : "in that upon or about the 10th day of September, 1991 and at or near Sekamaneng in the district of Maseru, the said accused, one or the other or all of them, did TOLOKO unlawfully CONSTANTINUS KIMANE". and intentionally kill one The same accused were charged in Count II with conspiring in Contravention of Section 183(2) of the Criminal Procedure and Evidence Act No.7 of 1981: "In that during the period August to September, 1991 (the exact date to the prosecutor unknown) , and at or near Maseru in the district of Maseru, the said accused, one or the other or all of them, did unlawfully and intentionally conspire with Monake Mathibela and others, to aid or procure the commission of or to commit the offence of unlawfully and intentionally killing one Sam Rahlao, an employee of Standard Bank Chartered, Maseru". The same accused were charged in Count III with the crime of theft : "In that upon or about the 10th day of September, 1991 and at or near Sekamaneng in the district of Maseru, the same accused, one or the other or all of them, did unlawfully and intentionally steal a motor vehicle, to wit a Toyota 2.4 station wagon, the property or in the lawful possession of the deceased Toloko Constantinus Kimane". All the accused present before Court pleaded not guilty to any of the above counts. The trial was a summary one. The Court accordingly proceeded to hear evidence without the aid of a preparatory examination record. At the end of the prosecution case accused 3 applied for discharge in respect of all the charges. His application succeeded in respect of Count III only and was turned down in respect of Counts I and II. He gave no evidence in his defence; accordingly the Crown was not entitled to and did not cross-examine him. Needless to say accused 1 and 2 gave evidence in their respective defences and were accordingly subjected to cross-examination. A number of interruptions resulted in regrettable delay before the conclusion of this trial. The Court was engaged in long commissions of inquiry which it had to Chair. Accused 1's counsel mistakenly thought that the trial would last not more than a month. Arrangements to ensure that he was properly briefed on a Pro Deo basis proved a tediously long process. To return to the charge; the following facts form a background to the instant inquiry:- On 11th September 1991 the deceased Toloko Kimane an employee of the Barclays Bank PLC who was holding a fairly senior management position in that Bank was found dead at Sekamaneng some 10 or so kilometres from Maseru City centre. When found the body had eight bullet wounds on it. Three appeared to have been fired from the back as indicated by the position and nature of entry wounds. These made their exit to the front thus account for six wounds in all. There was another bullet wound on the front right part of the chest that suggests that the bullet exited on the left front part of the chest. Thus accounting for the last two wounds making a sum total of eight in all; i.e. four entry and four exit gunshot wounds. The deceased's body seemed to have been dumped at the place where it was found. After the deceased had been killed it seems that his killers took his car which was eventually abandoned at Hlotse in the Leribe district after being involved in an accident wherein the car crashed into the safety barrier erected along the left side of the road. The driver of the deceased's vehicle between the period immediately preceeding the deceased's death and the occasion when that vehicle was immobilised by the accident in which it was involved some upwards of 94 km just beyond Hlotse from Maseru, was always accused 1, Samuel Maliehe (alias Ramaleke). The killing of the deceased seems to either be indissolubly linked with or as a result of a strike which was engaged in by some members of Lesotho Union of Bank Employees (LUBE). There is strong evidence to suggest that the plot to kill the deceased was hatched either at Hlotse or in Maseru. The moving spirit behind this plot appears to be Mothobi who is not before Court. In his opening address, Mr. Mdhluli Counsel for the Crown, indicated that Mothobi with knowledge and consent of accused 2 and 3 recruited people who would kill the deceased. That naturally would remain to be seen from evidence adduced in that regard. It is a fact that accused 1 though not an employee of any of the major Banks some of whose employees had gone on strike was repeatedly seen in the company of people alleged to have been making preparations for the illimination of those perceived to be obstructing the continuance of the strike. At the time accused 1 was a driver of a medical practitioner PW22 Dr Hoohlo. He was on sick leave. It is by and large common cause that the strike was not lawful. In furtherance of the plot to intimidate and kill obstructionists to the strike two accomplices were hired. On two occasions these accomplices came to Maseru with Mothobi to be briefed about how to go about their business. On the 3rd and last occasion when Mothobi came to Maseru with PW14, an accomplice called Mathibela, and accused 1 the 2nd accomplice PW8, Fusi Koetje, was not present having been dropped from the list of participants by PW14 on the fortuitous ground that it would not be worth their while collecting him because he had no fire arm. Although it appears that on the three occasions when preparations were made to kill the deceased, there are strong suggestions that accused 2 was present he is deafeningly silent about what was discussed in his presence. He seems to be unable to explain how these people who from the point of view of their type of work had nothing to do with industrial action should always be in his company, being ferried in his car from place to place at odd times. Accused 2 shares the company of accused 1 with regard to the silence that permeated whatever discussion is said to have been going on in their presence regarding preparations for intimindating and killing obstructionists to the strike. Among people to be killed was one Sam Rahlao PW15 who is employed in senior management position at Standard Bank Maseru. The home where PW15 was known to frequent was pointed to people who were to do the job. In his opening address regarding accused 3 the learned Director of Public Prosecutions asked the Court to bear in mind that this particular accused remained in the background but even so evidence would show that he was actually the brains behind the whole scheme. It thus remained to be seen if such evidence would be adduced. A prelude to this case shows that on 10th September, 1991 the deceased went to Lake Side Hotel in Maseru. While there he met accused 1 whom he knew very well as this was a driver to the deceased's friend PW22 Dr. Hoohlo. The deceased went to the bar to take a drink or two and bought accused 1 some drink too. Thereafter the deceased went out of the Hotel in the company of accused 1, PW14 and Nkalimeng Mothobi. This Mothobi was an employee of Barclays Bank Hlotse. They got into the deceased's vehicle a Cressida station wagon, metalic grey in colour and bearing registration letter and numbers A3360 respectively. Strictly speaking this vehicle belonged to Barclays Bank PLC and was allocated to the deceased for use during and after working hours. The deceased drove in the direction of Lithabaneng with the three occupants mentioned above. Lithabaneng lies some 6 or so kilometres south-east of the Lake Side Hotel. On reaching the turn-off into Lithabaneng village from the Main South 1 road the car stopped. Accused 1 and the deceased swopped seats after the deceased had walked a little distance away from the car to pass water. It was around that time and place that PW10 Mr. Charles Bohloko saw the deceased from a little distance away and the two didn't even greet each other because PW10 was driving in his own car and it was late at night approcimately 9.00 p.m. Moreover the deceased appeared to have been engaged in some talk to someone inside the car while he himself was standing outside it. Accused 1 drove the vehicle back to Maseru. The deceased was occupying the front passenger's seat and was much the worse for drink. There was evidence to the effect that accused 1 informed the deceased that his friend PW22 Dr. Hoohlo wanted to meet the deceased. From there it was an easy task for accused 1 to drive the car presumably to where PW22 could be found thus dispensing with the need for a navigator who would be directing the deceased where to drive to were the latter still behind the wheel driving. The first stop from Lithabaneng was outside the gate of the BCP leader's residence at Maseru East. It had apparently been suggested to the deceased that accused 1 had something to do at the home of the leader (now Prime Minister of Lesotho). The party in the car returned at the gate after accused 1 had exchanged a few pleasantries with the gate keeper who was on duty. They didn't enter the house or gate but instead drove back into the Main North 1; immediately ahead of them i.e. 300 paces lay the traffic lights to the right of which is a turn-off leading to the gate of Lake Side Hotel 70 yds away. While in the centre of the area flanked by the traffic lights a flurry of gun shots were fired almost simultaneously as a result of which the deceased collapsed and died instantaneously. The Crown sought to show that before the killing accused 2 had been in company of the killers and that he is actually the one who with Mothobi pointed out the deceased to the killers. When the stage had been set for the killing he deftly betook himself from the company of the would-be killers. The Crown also sought to show that two types of firearms consisting of two pistols i.e. 7.65 calibre type were used : one by Mothobi and the other by PW14 the accomplice; while the other type namely .38 revolver was also used to kill the deceased. All these firearms were never recovered though. Certain articles of the deceased's clothing were taken for examination at the Forensic Laboratory Maseru. The post-mortem examination was conducted by Professor A. J. Oliver and by Dr. Moorosi. Death was caused by bullets going through the deceased's body and causing contution of the aorta. The deceased's car was found abandoned at Hlotse after it had disappeared following the deceased's death. The above is an over-view and partly constitutes evidence of the event that is a subject of this inquiry. EVIDENCE PROPER The crown led the evidence of PW1 Mr. Brian Collin Davis who testified that he was employed by Barclays Bank PLC Maseru as Operations Manager dealing in that capacity with vehicles and Insurance. PW1 said he knew the deceased as the latter was a Manager of Barclays Bank. PW1 and the deceased were together on 9th September, 1991. PW1 was on duty when the deceased knocked off that day. He knew that the deceased was allocated the vehicle A3360 Toyota; a 2.4 GL Estate 1989 metalic grey. He knew also that the deceased was entitled to use this vehicle even after working hours. Having said in his evidence-in-chief he knew accused 1 and that the latter probably worked in Barclays Bank Leribe and that as such he was not entitled to drive this car under cross-examination it became clear that PW1 was referring to accused 3 when talking about accused 1. (The reason was that owing to the sitting positions of the accused he was apparently counting from left to right instead of vice versa). The Court of course rejected the suggestion that the accused be labelled. On 10th (more likely 11th) September, 1991 PW1 got a report about the deceased's death. He set out for the place where the deceased was lying; just past the abbattoir. The deceased was in a donga or gulley. PW1 couldn't remember what the deceased was wearing. PW1 testified that the deceased's vehicle was not anywhere near this place. He only came to see it later in the Police compound in Maseru. It appeared to have been extensively damaged to the front. Under cross-examination PW1 indicated that while the vehicle in question was in the deceased's control he could let anyone drive it if he so chose; further that the deceased under such circumstances didn't require anybody's permission to do so subject to the proviso that the person to whom he so lends the car would have had to be a Barclays Bank employee because the Bank vehicles are insured to the Bank employees. PW1 conceded that at the time of the deceased's death Bank employees were on strike and that this was a period of great turmoil in the Barclays Bank. This was manifested by or was a result of resentment among the employees on strike. The strike had been going on from about 20th July, 1991 till some date in September. PW1 however had no firsthand information of many nasty incidents suggested as having occurred by Counsel for accused 1. Thus he could only proffer an opinion in agreement with the suggestion that the situation must have been volatile. He however stated that the deceased though like everybody else was technically involved in the strike, was neither on strike nor was he involved in the negotiations. He said he was surprised to learn that the deceased was killed because of the strike because he knew the office staff; and that the deceased had friends among them. PW1 said he nonetheless knew that threats had been issued to a number of people including managers. He stated that the threats were not directed at Black managerial staff. He didn't know if any political party was directly or indirectly involved though. PW1 said he might have seen accused 2. He also said he believed accused 3 worked for a Bank but didn't know how he came to know him. He categorically stated this time that he didn't know the man who appears as accused 1 in this trial. Under cross-examination by Counsel for accused 2, PW1 denied that there was a lot of friction among the managerial staff reducible into local Blacks on the one had and white Expatriates on the other. He said he was aware that M50,000 was offered by the two Banks as a reward for the arrest and conviction of the culprits. He indicated that the amount offered related to other areas such as robberies which these banks had been experiencing. The above was an answer to the question - "So right from the beginning the Banks assumed that there was a link between the killing and the strike....?" No questions were put to this witness in cross-examination on behalf of accused 3. Under re-examination by Mr. Mdhluli the text went as follows "You recall when I asked about accused 1 you said you knew accused 1. To whom were you referring when you said you knew accused 1 ? The one in pink shirt (accused 3) . You said there was nasty incident and the situation was volatile. Who was on the receiving end. Management or strikers ? Management. Do you know of any specific incident which came to your attention ? A manager's car was set alight. Any other incident....? Thats the main one" The next witness was PW2 Major John Tlhabi TELUKHUNOANA who testified under oath that he is attached to the Technical Services Department of the Royal Lesotho Mounted Police. His main occupation has to do with examination of firearms. He has been 15 years in the Police Force. He underwent fairly extensive training as a Laboratory Technician. His principal subjects were science, Biology, Physics and Medical Laboratory Sciences. He trained in Dublin in the Irish Forensic Science Laboratory and did a tour of the South African Police Forensic Science Laboratory as well as that of London Metropolitican Forensic Laboratory. This witness has been a firearms examiner since 1985. The content of the course is to enable trainees to acquire knowledge of firearms mechanisms; expertise in microscopic examination of fired bullets, microphotography and related jobs such as restoration of obliterated numbers. He testified that he received items relating to this case which has to do with the death of the deceased Toloko Kimane. The items were received for examination by PW2 from Detective Polaki at the Laboratory in the Makoanyane Barracks. Having been allowed to refer to his notes in response to his request PW2 said the first item he received was a black blazer. The witness pointed it out and the blazer proved to be dark blue. He insisted though that it was black because in comparison with his own navy blue jacket the deceased's appeared much much darker. The witness stated that Mr. Govender's gown is black. Compared with the deceased's jacket he said Mr. Govender's gown is darker. He conceeded though with respect to the colour he attributed to the deceased's jacket that he might be wrong or right. To the Court's observation the deceased's jacket which in colour is very dark blue could easily pass for black; especially when not compared with any other shades of blue or dark colours tending towards black. (See pages 14 and 22 of the Court's manuscript). PW2 proceeded to indicate that he also received :- one 7.65 fired bullet one 7.65 c m. PPK pistol serial numbered 156172 This was loaded with a magazine with 7 rounds of live ammunition. He also received three 7.65 x 17 mm fired cartridges. For purposes of these proceedings the blazer was marked ID"1" for identification. PW2 held out a firearm which he described as the WALTER PPK marked ID"2" for purposes of these proceedings. The fired catridge cases were collectively marked ID"3", the fired bullet ID"4" and the magazine ID"5". He further stated that during the course of his examination he observed that ID"1" had cuts or tears. He kept a record of his observations at the same time as he was conducting the examination. The blazer had a hole on the front right side. The Court observed this hole which was in the region of the blazer's lapel. He also indicated that ID"1" had another cut on the inside left above the left inner pocket. There were also three cuts on the back of this blazer. The Court observed two small holes about 4 centimetres apart at the back of ID"1". The third hole was in the centre back of ID"1" and appeared to be much bigger than the two just referred to above. These first two are neat round holes while the third is star shaped showing exposed fibres. The witness said that when examining ID"1" he found a fired bullet between the flannel of the blazer and its inner lining. This bullet was a . 38 inch bullet fired from a weapon with five grooves biased in left hand twist. PW2 indicated that from the results of his examination he concluded that this bullet bore no relation whatsoever to ID"2". It would seem ID"2" the firearm is the one that was found by PW9 Trooper Baholo near where the deceased lay. This is the pistol which belonged to the deceased. PW2 said he subjected the holes on ID"1" to tests in order to indicate or confirm if the damage was caused by bullets and if so at what range. The test rendered positive results in respect of all holes. The purpose of the test was to determine presence of partialy burnt gun powder. Such presence indicated that bullets were fired at intermediate range. Such range is between direct contact of the muzzle and 30 cm. The presence of particles of gun powder can, according to PW1, help determine direction of a projectile if clear i.e. if presence is of sufficient concentration to interact with chemicals. He further indicated that presence of gun powder particles would usually be found on the entry wound. The witness said he indeed found particles of gun powder on the deceased's blazer ID"1". He also formed an opinion that the holes at the back of ID"1" were bullet entry points. These entry points on the blazer were one in front and three at the back. He pointed out that one in the inner left side of the blazer was not an entry point i.e. one under the lapel. He indicated that the first entry point is one below the lapel on the right front and the three at the back. PW2 was shown a point on back centre of ID"1" and he said this is a cut which has been stitched. He said that the fired bullet presented to him was 7.65 mm, a full metal jacketed bullet which had been brought along with others. It has six grooves with right hand twist. He testified that the 3 x 7.65 fired catridge cases i.e. ID"3" bear characteristics suggesting that they might have been fired from a 7.65 mm CZESKA V. Z OR model. The origin of that type of gun is Czechoslovakia. It is available from fire-arms shops, he said. This type of gun accounts for 50 per cent of the type he said he deals with. PW2 says during the course of the examination that he conducted he took this firearm ZD"2" and firearm catridges to determine if they came from that gun. He observed that ID"2" had maximum 7-rounds magazine. In this state of affairs PW2 concluded that if used at all ID"2" couldn't have been used to fire more than one bullet. He had concluded that the magazine belonged to ID"2" though. He fired this gun with the magazine clip on to see if one of the bullets would go up into the chamber. Because there was no round in the chamber, and basing himself on the theory that when there is no bullet in the chamber with the magazine loaded he took this to mean either of two things i.e. (1) that the weapon might not have been fired at all or (2) that after firing one round in the chamber the person who used that gun extracted the bullet in chamber and reloaded it into the magazine. This is the position because when the pistol is fired and if it is self-loading the catridge case of the fired round is automatically rejected. Then the next round in the magazine is automatically chambered. PW2 stated that possibly three firearms were used because apart from three catridges he examined and accounting for use by one of two other guns the bullet inside the blazer came from a different firearm. This conclusion derives from the fact that there was this full-jacketed metal 7.65 mm which the witness was not able to place what gun it was fired from. Even at this early stage it is important to bear in mind that PW14 had told the Court that apart from him Mothobi as well as accused 1 fired guns when the sign to do so was given. In fact PW14 said he found no reason for subsequent firing that took place caused by his companions as he considered that the firing he himself had effected would have been enough to kill the deceased. Regard should also be had to the fact that the deceased was thrown into the donga without any attempt to rid him of any spent bullets which could have been resting on his person; not only so but the vehicle got involved in an accident and there was a lot of movement inside it by its occupants before finally being discovered and examined where it was found abandoned. Furthermore the left hand side passenger's window was broken accounting for possible exit of bullets through it while in fact the windscreen bore a mark that suggested that a projectile hit it and exited through it. PW2 stated that he kept the .38 bullet which he handed in marked Exhibit " 1 ". Under cross-examination by Mr. Govender for accused 1 PW2 said he handles forensic cases "only concerning firearms". He agreed that he is busy handling a fair amount of these in a week or even a month. He agreed that the wisdom of having reference numbers is to avoid mix up of exhibits. Asked then why he kept Ex.1 all the time and thus not handing it over he said "I thought since police didn't know about it they might misplace it" PW2 admitted that he had been given a record of exhibits handed to him and that Ex."1" was not part of those given to him. Asked then how it is part of this case he said : "(a) I found it inside the blazer found in this case; (b) I concluded that the bullet was fired and it struck the right side of the blazer and got inside the body and exited on left side of the victim and entered the blazer on the inside left (part) of the blazer. then it didn't exit. Hence it fell between the inner lining and the outside(cloth). I came to this conclusion for no other place could the bullet have entered except the one I mentioned" PW2 was referred to the star-shaped tear at the back of the blazer. He said he found gun powder at the centre of the star. "But as to further tear I wouldn't know what caused it". He was asked "Is it consistent with bullet tear....? Not an entry one but an exit one should do it. You found gun powder on the hole....? Yes Is it consistent with being an entry hole...? Yes Meaning this could not have been an exit hole Quite so for gun powder is only found on entry hole. ? You say (the hole was caused by) bullet because you saw holes and found gun powder....? Yes. What is the test ? WALKER TEST. (The witness made an explanation of how this is conducted). You concluded that the gun was fired 30 cm away....? I said the muzzle could have been anything between a few centimetres and 30 cm". Having been taxed on question whether weapons used could have been high velocity or not the witness was asked : "You can't determine type but only calibre of weapon used....? Calibre but not type of weapon. With regard to 7.65 fired bullet you said possibly 3rd gun was used ? It is so. Why couldn't a fired bullet and cartridges be fired from the same weapons ? I didn't say they were not. I said it is possible they were from the same weapon or even different weapons. 7.65 mm tells you calibre of weapon ? True. 7.65 bullets would be from 7.65 weapon ? Yes. Did you carry out any analysis of where the bullet was ? There is no way when there is no gun" . fired from The witness was asked by Counsel appearing for accused 2 why he didn't tell the Court earlier on that in respect of the cut that is sown on ID"1" the garment came in that condition to him and that he tested the hole for gun powder and his answer was that he hadn't been questioned in that direction. The brief purport of the cross-examination that followed was as far as I could make out, to show that the witness was colour blind. The witness said he couldn't recall what colours comprise white light. I doubt if this further development in the line of questioning which might initially have been purposeful could be of any relevance to this case. Appearing for accused 3 then Mr. Maqutu (subsequently Judge of the High Court a position he attained midway through this case) pointed out to the witness that he has failed to address the question whether there was any determination that cartridges were fired from the same weapons. The witness maintained that he had addressed that question. Then the proceeding went ahead as follows :- "I don't recall you saying I examined cartridges to determine if they were fired from the gun I received...? I said I received a Cezeska pistol and fired cartridges and found that bullets were.... Spent cartridges are 7.65 mm calibre and the gun was 7.65 PPK pistol....? They are of the same calibre. So it was important to say though the calibre is the same they were not fired from the same gun....? What Counsel says is what I said. I don't know if it is because I didn't use the same words". I agree entirely with the witness's remarks in this connection. The witness was attacked from a different angle but to the same effect. He was told that he speculated that the bullets were fired from a certain gun yet he didn't have that gun before him. Further it was put to him :- "You said you did everything with your naked eye and that you didn't have facilities....? I didn't recall saying that.. You said you had no facilities ....? I said I use my naked eye to determine grooves. And that you had no facilities. . . . ? The question was what degree of twist there was. And I said I didn't have means of determining the degree of twist. You used the naked eye for five grooves and twist Yes ? You didn't conduct a test that could have been conducted i.e. that it was the firing pin of the gun you had that fired these three catridges ? I answered that. (Question repeated)....? My findings are not guess-work. I didn't do any test to determine if firing pin had any bearing to the cartridges". Of importance to this case was that the witness was able to establish through the tests he conducted that the weapon he examined at the time showed that it had not been recently fired. To that extent it would be safe to exclude the possibility that it was used in the killing of the deceased. This in a way does not detract from the evidence of PW14 as to the weapons he said were used. PW3 Thabiso NTHAKO gave sworn testimony to the effect that he was employed at Mr. Ntsu Mokhehle's place as a night-watchman. He had held this position for two years at the time he gave his evidence before this Court. He testified that he knew accused 1 and had known him as -Ramaleke when the two of them were in exile at Qwaqwa. The two had been together from 1983 to 1989 when they came home. He explained that while in exile many people didn't use their real names. Only a few did. PW3 said he heard of Kimane's death from some people. He recalled that before hearing of Kimane's death he had seen accused 1 when he came to PW3's place of work at night. It could have been at 10.00 p.m. when accused 1 came to PW3 in a long car with some people inside. This car was driven by accused 1. PW3 testified that there were 4 people in the car including accused 1. PW3 said of accused 1 who was used to coming to this place "accused 1 said he had come to see us". PW3 asked accused 1 where he came from and the latter replied that he came from some village on the Mazenod side. Regrettably PW3 was not able to recall the name of the alleged village. However it is PW3's evidence that accused 1 didn't say what he and his company had come there for. PW3 didn't speak with any of accused 1's company but was puzzled by what they had gone there for because accused 1 said to him that he was in a hurry and that they were bound for Leribe. PW3 said the car that he saw that night was being driven by accused 1 and was brown in colour. The state of lighting in the area at the time was good. Accused 1 and his company left in that car taking a turn at Ntoko's place and following the TY direction that disappears into Lake Side area. He testified that accused 1 was his normal self when they were talking together and that relations between the two are good and have been good since their days in exile. This witness was not cross-examined. The Court formed the opinion that he was not a very intelligent man and that he didn't seem to have gone far beyond sub-A at school if ever he went to school at all. But the lasting impression that he gave the Court was that he was bewildered by the purpose of the visit because it amounted to just coming and saying hello and good-bye. However taken along with the fact that PW14 said somewhere along the road while the deceased was behind the wheel and the car was in motion he (PW14) attempted to shoot the deceased but the gun jammed, his story that anxiety was mounting regarding the appropriate moment for shooting the deceased becomes more and more relevant. This is hieghtened by the fact that at the moment of actual shooting at the intersection the car this time driven by accused 1 had slowed down and there was anxiety about whether the deceased would not smell a rat in the event that a turn to the right i.e. towards the Lake Side Hotel was effected. The sort of suspicion that PW14 thought the deceased might entertain would arise from the fact that his car was being driven up and down for no apparent purpose. Why? As the story unfolds it will be noted that accused 1 is said to have given the sign to shoot, no doubt moved by the anxiety that any further delay might result in the opportunity and purpose to shoot being lost. The deceased was drunk and sleepy. Thus it would appear the whole pretence to go to the BCP leader's place was merely to kill time and temporise for the right moment without at once arousing the deceased's suspicion. The next witness was PW4 'Majoel MOKITIMI who testified that she was a Receptionist working at Lake Side Hotel. PW4 knew Mr. Kimane as well as the fact that this man used to work at Barclays Bank. PW4 heard of the deceased's death after having last been in contact with him the previous night. According to PW4, just the night before she heard of his death, the deceased had phoned at 4.00 p.m. making bookings at the Lake Side Hotel. The deceased had also inquired if PW4 was the same person that he had been talking over the phone with earlier. Then a man approached the deceased and asked for a lift of him. This man went into the toilet leaving the deceased talking with PW4; the deceased having turned and replied to this man before the latter proceeded to the toilet. After the deceased stopped talking with PW4 the latter saw that person go outside the toilet and this was the last she saw of him. Under cross-examination by Mr. Govender it was elicited from PW4 that she saw the deceased at the time he was leaving at approximately 9.00 p.m. which is the time falling within the time frame when the deceased was observed by PW14 and was later in the company of the latter and two others until later when observed by PW3 when it was heading for 10.00 p.m. PW4 said she didn't see the deceased arrive though. It was also elicited from PW4 that the deceased had said he would go with that person who had asked for a lift from the deceased. It was also elicited from PW4 that the deceased went "outside and stood by the door while that person followed. Through cross-examination Mr. Sooknanan was able to establish that the Reception area at Lake Side Hotel is a lobby, a busy place and the only entrance to both up stairs and down stairs portions of the Hotel including the lounge bars. This is an area where PW4 admitted that lots of people in different stages of drunkenness and sobriety mill around. Mr. Maqutu didn't cross-examine this witness. PW5 Ramongalo Ramongalo testified that he was employed as a security guard for the Lake Side Hotel where he started working on 20-10-1990. He said he knew the deceased Mr. Kimane very well as the latter was a regular customer. He didn't remember the actual date when he last saw the deceased but he recalls that he was questioned about his death just days afterwards. PW5 said he regularly went on duty at 7 p.m. and knocked off at 7 a.m. the following day. PW5 said he knew the deceased's car and that it was a brown station wagon cressida registered 3360 A. He said he remembered opening the gate for the deceased at night when the latter was going out of the Hotel premises driving this car. PW5 said he could see there were people in that car though he didn't count their number. On going out this vehicle did not take the Traffic Lights direction but Lithabaneng direction that passes through Ha Thamae. Thus from the gate the car turned left and not right. The gate at this Hotel is a boom which is pushed up and down to open and close. The vehicle that goes in is written down and the driver is supplied with a metallic tag. This metallic tag is taken from the driver when he goes out. This witness had considerable difficulty following straight forward questions put to him in his evidence-in-chief. At times one got' the impression that he entertained the notion that this proceeding was some kind of a jest in which spectators are best entertained by his fencing with the questions. It was not without cause therefore that Mr. Govender proceeded as follows when cross-examining him: "You said you didn't understand the questions. So you had problems....? Yes Why do you understand now. What is the difference There is a difference. ? What is the difference understanding. ? Understanding and not Why later understands. ? Like a school child who doesn't understand and Were you made to understand during adjournment ? No. Before adjournment you didn't understand but after that you did or do ? I answered that question". PW5 said he didn't speak to either the investigating officer or to Mr. Mdhluli the D. P. P. during adjournment. I formed the impression that more effort was dedicated to this and what followed than was necessary before this witness was told what appeared to be relevant to his credibility namely : "Did you ever speak to my Learned Friend for the Crown any time before ? I think long time ago. My Learned Friend told me he spoke to you long ago and during the break...? So you tell me. I put it to you ? I am thankful. Do you agree ? I didn't". As Mr. Govender truly stated during proceedings PW5 was a very evassive witness. I however accept Mr. Mdhluli's expalanation of his contact with PW5 during break that it was to warn him to try to answer questions straight. PW5's manner was verging on the bizarre no wonder Mr. Sooknanan confined himself to asking him only one question; namely "Have you ever been to a mental institution for observation....?" to which in characteristic fashion PW5 replied "because of madness or what?" No questions were put to this witness by Mr. Maqutu. PW6 Sejake TUQANE testified that he lived at Leribe. He knew that there was a strike involving two Commercial Banks in the country. PW6 was employed as a driver by Barclays Bank Leribe. PW6 knew that Nkalimeng Mothobi was also employed by Barclays Bank Leribe at the time. He also recognised and knew accused 3 and 2 as Bank Employees who were leaders of LUBE. PW6 said he participated in the strike. So did Mothobi. PW6 heard of Mr. Kimane's death but before then he had met Mothobi around 9th September 1991. It was while the two were sitting together during the course of the strike that Mothobi asked PW6 to lend him his gun. PW6 said he owned a firearm 7.65 mm pistol whose type he was ignorant of save that it bore some writing like Czechoslovakia. Mothobi had told PW6 that he had picked up a bullet somewhere and was keen to go and test it. PW6 willingly lent Mothobi this firearm but the latter never returned it. PW6 said after Mr. Kimane's death he met Mothobi and asked him about the firearm but this was never returned. The peculiar thing is that when being asked about this firearm by PW6 Mothobi's hands appeared swollen; and his general appearance was of someone who was not well. In fact he was complaining of an aching neck. PW6 was shown a firearm certificate and he identified the certificate and the numbers 47410 reflected therein as those of his firearm in question. The expiry date of this certificate was 31- 12-1991. The description of this firearm is Auto Pistol; of the make VZOR 70 serial numbered 655549: Calibre 7.65. PW6 said when he lent Mothobi this firearm it had two live rounds of ammunition in its magazine and these were never returned as well. All Counsel reserved cross-examination of this witness but eventually let the Crown close its case without any longer wishing to cross-examine him. PW14 said Mothobi was carrying a firearm which the two exchanged with PW14's firearm after PW14's firearm failed to fire in the first instance. He said at the next occasion when the deceased was killed both firearms fired. Accused 1 on the other hand during cross-examination was insistent that Mothobi was not carrying any firearm at the relevant time. He made so bold as to say Mothobi could not have been carrying a firearm without informing him. But this baseless notion is flawed by the fact that when told that evidence that is uncontradicted shows that Mothobi had borrowed PW5's firearm without accused 1 in his own admission knowing it, the latter was clearly in a cleft-stick. PW7 'Mabasia PHOMANE testified that until 1991 she had been an employee of Barclays Bank for fourteen years. This witness knew the deceased Mr, Kimane very well. She also knows accused 2 and 3 very well. She testified that she was a secretary of LUBE while accused 3 and 2 were respectively President and Vice-President of that organisation. By virtue of being secretary PW7 was in the Executive Committee of this organisation. In July 1991 LUBE decided to go on strike. The strike was scheduled for 29-7-1991. It is not clear though whether this day was the day when the decision to go on strike was reached. PW7 told the Court that not all Commercial Banks in Lesotho are affiliated to LUBE. Only Barclays and Standard Chartered Banks are. She said membership to LUBE wasn't compulsory. Anyone including those in the management category could join. However, with the concurrence of all counsel present (Mr Govender had already left after he had addressed Court and interests of accused 1 were to be safeguarded by Mr Sooknanan) reliance reposed on PW15's evidence indicates that those in management category are excluded. She testified that with regard to negotiations in industrial relations the matter falls to be resolved between the management and employees. But in the instant matter of LUBE the dispute was between the white minority of managers and employees. She explained that in their case as LUBE there were black members of the management who were LUBE members and who took part in the strike as black m a n a g e r s . S ee page 44 of my notes. PW7 said that she was familiar with the procedure to follow before going on strike. She said the dispute has to first of all be declared. Then the Labour Commissioner has to be informed so as to intervene as mediator. If he fails to resolve the matter then he has to be informed that a strike is being embarked on; in the event that the management is still intransigent. Twenty one days' notice has to be given before the actual strike. PW7 said that the above procedure was not followed by LUBE before going on strike. She therefore described the strike as illegal. However in the course that LUBE followed it had been resolved that members were to stay away from the premises of the Banks. She told the Court that LUBE had an office at 60 - Minutes Dry Clearners Building in Maseru. This office was manned by a typist employed by LUBE during the course of the strike. PW7 spent most of her days as secretary in that office. She said that when the strike commenced LUBE had what she termed an Asylum at Lancers' Inn near the Anglican Church. This is where members of LUBE used to assemble for their meetings According to PW7 attempts were made to resolve the strike by negotiation between LUBE and the management. The Government too tried its hand towards resolution of this strike which had caused untold inconvenience to the public, but to no avail. Not even when government had stated that there would be no victimisation or discrimination if members went back to work, did the strike abate. But because there was visible divisions among not only members but also among the Executive Committee between those insisting that the strike should go on and those opting to go back to work it seems there was less and less vigour to carry on with the strike, and as the enthusiasm upon which the strike depended for its sustenance flagged it seems only logical that some means to curb any drainage of enthusiasm from the strike had to be employed. More of that later. PW7 said that an appeal by those who wanted the strike to go on was usually to the effect that people out in the districts were relentlessly carrying on with the strike. PW7 didn't want to go on with the strike. Among the Executive Committee she was able to discern the attitude of accused 2 as sharply in contrast with that of accused 3. While accused 2's attitude seemed to suggest that strikers should go back to work and see if government would react favourably accused 3's attitude was adamantly that he would not back off from the strike while there were people out there who had not gone back to work. The Executive Committee's decision was finally that a meeting for all members from Maseru and the districts be called to decide whether to continue with the strike or call it off. The meeting was held at LAKE SIDE HOTEL. But the outcome was that the strike be proceeded with in order to thwart some pre- conditions insisted on by the management. However degeneracy continued eating away at the enthusiasm and spirit for the strike. This was manifested by some Union Members busying themselves with playing cards during the course of the strike and going back to work. The reaction of the Executive Committee was that they were not happy with people breaking the strike. It appeared that there were some people in management who kept going to work. Consequently a point was reached when it was resolved that the management of the two Banks should be served with letters warning their members in management to stop that practice. This happened around 14th August 1991 after strikers including PW7 had been served with letters of dismissal. What came out clearly from PW7 was that strikers were no longer united in their goal to continue with the strike. PW7 when asked if she was unhappy with those who decided to go back to work, said she was just in the middle and had decided to wait and see where all this would end. We already know that she was dismissed. In the letter written to the management of both Barclays and Standard Banks the purport of which was to tell those to warn members of their managerial staff to stop tampering or interfering with LUBE members who were on strike, names were mentioned. PW7 who said she didn't know the managerial staff of the Standard Bank and therefore would not be able when writing letters to name the culprits, told the Court that accused 3 and 2 supplied her with names including that of PW1 who was manager in computer systems; according to this witness. She was also supplied with the name of Mr. Makakole of Barclays Bank who was an Assistant Lesotho Manager. The name of Kimane the deceased was included so were those of Mr. Mokhali of Barclays Bank, Mr. Mahao Matete of Barclays Bank Mafeteng, Mr. Rahlao PW15 of the Standard Bank, Mrs. Mabathoana and Mrs Mapetla both of the Standard Bank; and finally Mrs. Beukes PW20 of Barclays Bank. What is disturbing about the continuance of this strike apart from the fact that it was illegal and unconstitutional is the fact that apart from the deceased who got killed, and upon whose death the strike came to an abrupt and immediate end, some of the people named in the letters referred to above got their fair share of strange incidents no doubt meant to intimidate them if these were mounted by the strikers. However if these were not perpetrated at the instance of the strikers they lead to very strange coincidences indeed. PW15 was openly jeered at when travelling along Kingsway by LUBE members on strike. At another occasion he testified that accused 2 pointed at his vehicle at Ha Thamae where PW15 had parked it hidden from view so that it could not be associated with his visit to the home of his girl-friend. Strangely again it is this home where PW14 says he was led to by accused 2 with a view to killing the owner of the same vehicle (including some other vehicle) if he should be found in the girl friend's home. Strangely again PW20 also experienced incidents of people throwing objects on the roof of her house while Mr. Mojaje a member of the Barclays Bank management staff had his car burnt and his house surrounded according to evidence led. In fact PW7 says with respect to the last incident one of her group (of strikers) was arrested. What strikes me as the strangest thing is that at no time in the meetings which PW7 attended was there a discussion to stop these glaring acts of intimidation or violence. Thus as I stated above that the strike ended upon the death of the deceased. It would not be wrong to conclude that it seemed there was an indissoluble link between the continuance of the strike and the rampant acts of intimidation directed at the black management staff of the two Banks who did not support the strike or who were perceived as obstructing it. Can it seriously be contended that accused 3 and 2 knew nothing about these things; to put it at its lowest? In R. v. Mlambo 1957(4) SA 727 at 737 D-F Malan J. A said it was unrealistic to have regard to the realm of conjecture when there was at hand material which furnished "a perfectly sound, rational, common sense solution of the problem". It is doubtful whether it accords with common sense or indeed common decency that a man in the position of President of LUBE could pass over in silence acts which might wrongly or rightly be perceived as somehow linked with perpetration by members of his Union. This is but to put it mildly. Moreover it is in evidence that at a meeting he had with the strikers after news of Kimane's death had been broken he stated that the Union would be the first suspect. Strangely again accused 2 on hearing of this sad happening does not find it his moral obligation to report to the police that he had just a matter of hours previously been in company of people who had assured him that they would get a lift home from the deceased. Is this consistent with the conduct of an innocent man. To return to PW7's evidence. This witness informed the Court that she heard over the radio that one of the management staff of Barclays Bank was found dead at Sekamaneng. The strike was still going on then. She said that there were times when she felt her duties as secretary were not required. In this regard she referred to an incident when an unknown man who seemed to be agitated came to her office at the 60 - minutes Dry Cleaners saying that he was looking for the President (accused 3 ). This man whom PW7 came to know much later as Mothobi was in company of a lady called 'Mapule Mohloai since deceased. This lady asked this man if he couldn't leave the message with the secretary PW7, but the man replied off-hand and dismissively that he was sent to Sehlabaka (accused 3 ). PW7 accordingly directed the two to the Church yard near the Lancers' Inn in Maseru. PW7 told the Court that she wanted to hear what this man wanted to say to accused 3 judging from that man's attitude. She was quick to say that she felt this way as a member of the Union and not out of curiosity. PW7 then hired a taxi bound for her destination at the Anglican Church yard. She found this man there in the company of accused 3. Before she could raise any questions regarding the stranger accused 3 instructed her to raise M15-00 to enable "the gentleman" to go to Leribe. Apparently this amount was intended to meet his fare for the trip. PW7 didn't ask why he was asking for m o n e y . S he merely asked why he came if in case it was in connection with Union business but she was vouchsafed no reply and that was the end of the matter. She consequently asked for the amount in question from another lady whose business it was to solicit contributions in aid of the strike from the public. It is clear that there are things which though affecting the Union are privy between Mothobi and the President or his vice to the exclusion of fellow members of the executive such as PW7. Yet the Court now knows that wherever he was Mothobi was seeking the obstructionists blood. He had secured a gun from PW6 for the purpose. Hours before the deceased's death he was in accused 2's car in company of the would be assasins driven by accused 2. What then could Mothobi have been talking about in secret with accused 3. Why should accused be dismissive of questions raised by PW7 in regard to the business Mothobi had come about. The stranger didn't say who he was. The lasting impression PW7 formed of him was that he was a domineering character. This aspect of the matter finds support from the evidence of accused 2 in his description of the occasion when Mothobi came to a meeting where accused 2, accused 3, a lady working for one of the Banks and a white man working for UNDP were seated immediately outside the door to the Lancers' Inn restaurant. Even conceding his apparent state of drunkenness that day, Mothobi in his characteristic intrusive manner sought the immediate attention of the President. In this regard he seemed to have little if any regard to his very very junior position in the Union. Indeed the President had to betake himself from the on-going meeting in an attempt to restrain Mothobi from interrupting it. We are told accused 3 took him aside and the two had some talk. Through sheer coincidence the white man announced that he had some other engagements shortly and had to leave. This brought the meeting to an abrupt end. Significantly this was not only the last time Mothobi was seen with accused 3 but the last evening the deceased was to be seen alive after having been seen in the company of Mothobi and co- assassins. Even 'conceding that PW14 stated that because of his disappointment in not meeting accused 3 when Mothobi had undertaken to arrange such meeting, in consequence whereof PW14 decided to co- opt accused 2 in stead of accused 3 in the arrangements to illiminate those perceived as obstructing the strike it would be naive and indeed defying common sense to maintain that accused 3 was not fully briefed about what was going on by the man who was co-opted in his stead. PW14's evidence if it is to be believed indicated that accused 2 betook himself from the Lake Side vicinity only after he had pointed out the deceased's car to the would-be killers as this car took a right turn from the Traffic Lights to Lake Side Hotel some 70 to 100 yards away. The words attributed to accused 2 as he did so are "there's one of them". Of significance is that though he is alleged to have been drawing attention to an approaching car the words he used in Sesotho referred unequivocally to "a person" and not to "an object" such as a car. "Emong oa bona ke eo" meaning there's one of them. Whereas if these words referred to a car then the Sesotho version would have been "E 'ngoe ea tsona ke eo". To return to PW1's evidence : This witness told the Court accused 3 did not tell her who this stranger was. The two of them did not discuss anything in PW7's presence. PW7 said there was another occasion when the same stranger phoned and when PW7 picked up the phone the stranger no doubt exercising caution asked who the receiver of the phone call was. When told this by PW7 the stranger asked who PW7 was with. The latter told him she was with Teboho. Thereupon the stranger said he could speak only with the President or his Vice. However when PW7 asked who the caller was, this time the answer was that he was Mothobi. Then PW7 alluded to a conversation she had with Mothobi. the content of that conversation appears in a ruling that I made on 12-11-92. I need not repeat it here though I have grave doubts if in fact it was hearsay as explained immediately below. Mr. Sooknanan objected to this statement or conversation as hearsay. But my reading of hearsay rules suggests that in a case in which conspiracy is charged such rules make an exception to the inadmissibility of hearsay evidence. However with the consent of Mr. Mdhluli for the Crown the discomfitting phrase was struck out from PW7's evidence. PW7 told the Court that she conveyed the message she had received to the two accused concerned. Upon receiving that message accused 3 is said - at a meeting convened to get some feed back of a meeting the President and his Vice had had with the Heads of Churches - to have said "lets go, lets go. There can't be any more meeting". The time is said to have been around 4.30 p.m that day. So the meeting was closed. PW7 said accused 2 was quick to leave together with accused 3 for a destination unknown to her. Bearing in mind that PW7 considered that as secretary she was entitled to know what was going on through being briefed by the President and his Vice, when this was not done she decided to remain at home as she felt she wasn't being fully briefed contrary to her expectations in her capacity as secretary to the Union and member of the Executive Committee. In brief she felt side-lined and out of it. She referred to another occasion when she subsequently saw the "gentleman" to whom she had earlier given the M15-00. She didn't know what he was doing at the Church yard that day. But this was just before the death of the deceased. She said this man held no position in the Executive Committee or Union either as a shop- steward or whatever. Of significance is the fact that accused 2 and 3, on receiving the message that PW7 said came from the man who had previously come looking for Sehlabaka, never said anything to suggest to PW7 that they didn't know the man from whom the message came. PW7 referred to incidents which occurred to certain members of the management in the Banks. She referred to what she said was said at the meetings near the church, though in her evidence-in- chief she didn't specify who uttered the words, viz, "We don't want violence and any intimidation". She testified that after the report of deceased's death she didn't speak to any of the accused. She is not aware as a Union member whether the Union offered any condolences but rather thinks not. She also testified to the fact that at work she was Senior to accused 3 who was a cashier at the Mafeteng Branch. It appears the only connection that brought the two together was with regard to Union matters for nowhere at work was their relationship as Senior and Junior brought to any definable or discernible relief. However PW7 was frank enough to tell the Court that at times relations between accused 3 and herself were strained. She referred to an occasion when accused 3 told her that he had heard that there was a split in the Executive Committee but when confronted with what was contained in that allegation he didn't reply. She said further that accused 3 referred to her as a useless secretary. She described her relations with accused 2 as casual. Moreso because accused 2 worked at Standard Bank while she worked at Barclays Bank. However because accused 2 had previously been Secretary to the Union she regarded herself as being taught the work by him. The cross-examination of PW7 by Counsel for accused 1 was lengthy and very close. It related to industrial action. It also highlighted the fact that in refusing to negotiate with the Union about salaries the management was in breach of the terms of Recognition Agreement. It nonetheless failed . to show that the strike was not illegal. It didn't in my humble view advance accused 1's cause who was neither a Bank employee nor on strike. However it was through part of this cross-examination that the Court was enlightened about accused 2's sensible suggestion, to wit, "accused 2 said lets retreat while still united" and about accused 3's hardline attitude that "he couldn't go back to work while hardliners in the districts were still on strike Accused 3 said he couldn't even think of going back to work" . See page 63 of the Court's manuscript. After being asked by Mr Govender whether her disillusion played no part with PW7's staying away the text beginning at page 65 of the Court's manuscript is as follows :- "Wouldn't it have created problems if you stayed away ? It didn't. I went home. Who would do your duties secretary was needed. ? I didn't think a Did you ever consider going back to work....? Yes. But you didn't ? No. You lost your job then ? Yes. Do you feel bitter about that say for there are people struggling outside. ? It is not for me to Do you hold the Union responsible for that the Union and partly the members. ? Partly Do you hold any particular member of the Executive Committee liable for losing your job ? I wouldn't say so but if influence was used to persuade people to go back to work they would; for there was a lot of pressure. And you say : "I hold him" (the President) responsible for that ? Not solely him but the strike. Do you resent him for that ? No. were any from the management who interfered named....? Yes. Were there many of them asked to write a letter ? Not many. When I was White managers or black ? Both. The Executive Committee took the decision to write the letters then ? Yes. It was a collective decision by the Executive Committee....? Yes. So it was not as if accused 2 and 3 instructed asked how to write it ? I They helped with drafting the letter said I should write to all managers. ? Yes. They You tried to include all managers ? Yes. PW7 went on to state that the Black September group which she knows nothing about had gathered around the place where the Union usually assembled and held out placards saying - "You Union members have killed Kimane. killed one by one". See page 69 of the manuscript. You will be Then the following was the text in the proceeding:- "That group has never been identified ? No. Was any group before then intimidating members of the Union ? No. You said industrial action doesn't envisage use of force to enforce its cause ? Not to my knowledge. You believe that too ? Yes. But workers were angry ? They were. Management were also angry as they were losing in productivity ? True. And no resolution of the strike was in sight ? True. Tempers were high ? I'd say so. Strikes lead to violence ? In South Africa I learn a strike came to stop and ended without violence. As I heard on Radio Sesotho this had gone on for two months in South Africa" It indeed becomes difficult to say whether the last question above was asked to relate to what must have been within the comprehension of accused 2 and 3 that strikes lead to violence because they were made mention of earlier by the cross-examiner who said nothing about accused 1 in so far as the subject matter put to PW7 in this connection is concerned. The question to ask in these circumstances is if this does not relate to them to whom then could it be said to relate? However I will let nothing adverse to these to turn on that for indeed if I were to allow it then it would readily supply either the reason or perhaps even an excuse however lame for the irresponsible acts and heartless killing of an innocent man as necessarily the prospective and intergral incidents of violence attendant on any strikes, as implied by Counsel in his question. In his turn Mr. Sooknanan for accused 2 elicited the concession from PW7 that after the deceased's death she was picked up by police who kept her at the police station for hours on end despite that she had told them that she had a newly born baby who needed to be breast fed. It turned out that PW7's husband had to even go and seek legal advice when he felt that he couldn't equal the task of baby-sitting when the baby's mother was away at the police station awaiting interrogation which would be postponed only at the last moment in late afternoon whereupon PW7 would be asked to come again the next morning. It is amazing that in her generosity of spirit PW7 took all this with good grace and in her stride and thus didn't regard it as some form of harrassment. Mr. Sooknanan was also able to elicit from this witness the fact that while working with Barclays Bank PW7 had been granted a housing loan and a car advance all of which would have to be serviced by her husband, yet in her peculiar way of looking at things PW7 didn't think that these two things imposed an extra burden on her husband. I find it hard to believe that a Banker can just dismiss things of that nature as not a burden but a form of "responsibility that a husband had to take as head of the house". PW7 said she didn't really have a problem being out of employment. The reason why she applied for re-employment was her dislike of frustration staying at home, turning with the sun from morning till sun-set. Her attitude of mind towards employment is best captured in her answer to accused 2's Counsel that "If you have been used to earning money it becomes hard (if you lose a job) ? But if you struggle you will find being without a job is not the end of the world. You can live without a job". PW7 admitted that there were expatriate white managers in the Banks as well as black ones. She admitted that rank and file in the Banks is basically black. She admitted that there was severe strain between blacks generally and white expatriates. This was so because apparently other local managers felt there were benefits granted to whites only. PW7 said she didn't know how seriously local managers took this against the white hierarchy. She said she was not aware that one of the local managers who had set himself against this racist attitude lost his job, because if, as the question tended to show, this occurred after the strike she was no longer a member of the Bank. However she conceded learning that one man had lost a job from the Bank she had stopped working for but didn't know why he lost that job. She conceded that black management was more sympathetic to the workers plight than were managers from England. She didn't think interference abated after her writing the letters referred to earlier because she became aware that more people started going back to work. Mr. Sooknanan was able to extract from PW7 the concession that because accused 2 stayed with accused 3 when the latter was in Maseru, there couldn't have been anything sinister in any of them saying "lets go, lets go" as had been the case at the meeting where PW7 was eagerly awaiting a feed back to the Executive Committee after the President had been to see Heads of Churches. Indeed PW7 before conceding that there is nothing sinister in the President saying "lets go, lets go" had persisted that "in my opinion I felt there had to be some feed back to the Executive Committee instead of saying lets go lets go" However the Court's alert attention could not be derailed from the fact that the above repeated phrase seemed when put in context to have been precipitated by the message emanating from Mothobi the man who brooked no formalities or rank when it came to having his messages transmitted to the President. Thus the precipitous breaking of the meeting could not be dissociated from the gravity of the message coming from Mothobi who was in constant company of the accomplice PW14 who was recruited by Mothobi to carry out the mission to kill. It is no surprise, following from PW7's rather unperturbed attitude in the face of trying circumstances referred to earlier that Mr. Maqutu for accused 3 put to her what appears in the text as follows :- "I suggest you seem to have come to defend the police, the Banks and thereby putting yourself in the wrong....? I don't agree. You are aware that the Police and Banks can defend themselves , and probably will be called ? Hence my saying I don't agree. You said the public supported your strike ? Yes. You'll agree that although you suggested that members of the Union were weakening, people who led this nation saw merit to support what you were doing ? I believe so. Also that at the root of the whole problem was racism in two Banks whereby black employees in managerial or rank and file levels were not getting fair deal....? True" Mr. Maqutu was able to elicit from PW7 that because of her loss of employment with Barclays Bank she lost benefits on her car and house loans though she may have not lost her pride. She lost these benefits because upon her loss of employment then she was faced with paying far much higher interest on these items than was the case during the subsistence of her employment. She preferred calling it loss of privilege instead of benefit. PW7 indicated that the Union made its proposals to the Banks but the Banks kept on making postponements instead of putting forth counter-proposals. In the circumstances the Banks made it impossible for a dispute to be placed before the Labour Commissioner whose business it would be to intervene in the event of such dispute being established. Thus the Banks were acting contrary to Recognition Agreement on collective bargaining. It was conceded by PW7 that the Union faced with the intransigent attitude of the Banks failing to make counter- proposals approached the Labour Commissioner who called them but again the Banks didn't come even though the Union members including PW7 were there. The Banks only submitted counter-proposals when the Union had already gone on strike. The approach by the Union to the Labour Commissioner was on 19th July 1991. The strike started on 22nd and the counter-proposals were submitted by the Banks around 23rd or 24th of that month. Thus according to Counsel's contention "The Banks went on strike first not you....? According to your interpretation I would say yes". PW7 had no knowledge whether the government publicly condemned the Banks for their action; and was neutral on the question whether this was fair. However she recalled that the Minister of Finance stated that because of delay by the Banks the strike had been embarked on. The Minister didn't condemn the Banks though. But he publicly condemned the Union. Thus PW7 conceded that this behaviour gave the Union members a feeling that government was pro- Banks.and they therefore had no faith in the persuasive words that they should go back to work as there would be no reprisals or recrimination. PW7 stated that to some people it was the case that polarity was due to government doing all it could to appease the Banks and nothing for Union members. Accordingly members that they would not allow (it) to be treated as small men these feelings were expressed by other ? Yes. " That's other members's feeling, what were yours ? I said I agreed with the feelings of accused 2 expressing that we should go back (to work) and see what would happen. you said you were prepared to go along with those wanting the strike to proceed despite your other feeling ? because you thought negotiation would bear fruit Yes. So you were not oppressed minority ? I said to myself this might bring (about) change. Lets go and see. You changed your mind and were persuaded to go along with majority ? I'd say so. That way you were not oppressed that is normal democratic process I felt this might bring fruit we wanted". ? PW7 admitted that members of the Union were not satisfied that the Banks had been declared essential service yet the management who knew that they were required to negotiate were dilly-dallying. It was pointed to her that as far back as 1971\72 there was already friction between management of the Banks and employees, such that one Mr. Gwintsa the first President of the Union was expelled after a successful meeting had been held. Further that a Mr. Mafike who was employed by the Standard Bank had his employment terminated. To all this PW7 replied that she had no knowledge. It was put to PW7 that accused 3 does not remember wronging her but he maintains that there was a lot of clashing during the days of the strike. She replied that "when you hold a meeting you ought to calm down when addressing it. He may have forgotten though". She indicated accused 3 was more influential than accused 2. Thus if he used his influence to make members go back to work that would have borne fruit. She conceded that the decision to go on strike was unanimous, though. She was adamant that accused 3 said he would not go back to work while other members were continuing with the strike. Under re-examination PW7 boldly stated that she didn't attribute her dismissal to any person. She blamed herself for that and went so far as to indicate that she had been advised by different Ministers to go back to work but didn't She stated that while other centres may be haying Industrial Courts she was not aware of any in Lesotho. She emphasised that if a party refuses to negotiate in good faith then resort is had to the Labour Commissioner. With regard to the existence of time limit within which good faith could be enforced she stated that the Labour Commissioner has to be given 21 days' notice. PW8 Fusi Koetje an accomplice witness having been warned testified that his nick name is WALKTALL. He said in 1991 he was not working. Otherwise he works in the mines in South Africa. He said he knew accused 1 Ramaleke, and has known him for a long time. He stated that he lived outside Lesotho as a refugee for upwards of five years. It was while he was living in South Africa as a refugee that he met accused 1. The two w e re of the same status in the Lesotho Liberation Army (LLA). He also knew PW14 Monyake MATHIBELA another accomplice. Mathibela was also known by the nick name Mosiea. PW8 knew that when in Lesotho accused 1 worked for PW22 as his driver. PW8 also knew Mothobi. PW8 said he also knew accused 2 the man in the middle. PW8 said he first met accused 2 in Maseru at Lake Side near the Hotel gate in August 1991. He subsequently saw him again at CID office on the same day that he saw Mothobi. PW8 said he had no difficulty recognising accused 2 at the CID office. PW8 was not confronted with accused 2 there, but only saw him go past. PW8 said the first time he saw accused 2 the latter was in a car; silver grey in colour. This witness said he didn't know if accused 2 owned a car though. However this car, he said, was driven by accused 2. PW8 said some time in August 1991 Mothobi came to the village where the two stay. The two held a discussion together at Hlotse. The discussion centred on Banks' strike. No other persons were there when PW8 held this discussion with Mothobi. However at some later stage some other people came to Hlotse in the same month of August 1991. A discussion was held at Hlotse at the house where Mothobi stayed. Present there were accused 1, PW14 Mothobi and PW8. PW8 said during this occasion there was no indication what the meeting was about. But subsequent to that meeting at Hlotse these people met again in Maseru at Lake Side Hotel. This time an additional person present is said to have been accused 2. PW8. said the participants in this meeting did not arrive at the same time but individually because of prior agreement on a specific time when to be together. This agreement had been made at the time the other four participants had met at Mothobi's place at Hlotse. PW8 said he beforehand knew what the purpose of the meeting at Lake Side Hotel was going to be. The 5th man whom the other participants were to meet at the Hotel was actually met at the Hotel gate and introduced to PW8. This 5th man was accused 2. PW8 was informed that accused 2 worked at a Bank but didn't know which. Mothobi was the one who made introductions. Although PW8 cannot remember in what order the participants in this meeting arrived he recalls that it was in the afternoon after 4 p.m. After Mothobi had made the introductions the five got into the car mentioned earlier and left in it in the direction of KHUBETSOANA and stopped at a place called Ha MABOTE. PW8's recollection becomes blurry on the question whether introductions were made at this place or as earlier stated; at the gate. I think of importance here would be the fact that introductions were made regardless of where as the witness pleads that passage of time has robbed him of clarity of the matter as the event took place a long time ago. PW8 said that he and two of his companions who had previously met at Hlotse did not give their correct names during introductions. The reason for giving nick names, he said, was that he and they "were going on a dangerous mission" so they didn't want their names to be known. At that meeting at Ha Mabote PW8 heard accused 2 in reply to Mothobi say "I failed to get that thing" or words to that effect as the witness says he can't remember the actual words. Accused 2 also inquired of Mothobi how the latter had fared on his side. PW8 stated that he didn't consider that the objective of the "mission" had been achieved because none of the things to be used for its accomplishment was there. Asked to explain what these things to be used were he reeled them out as firearms, money or means of transport such as a vehicle. PW8 said that the discussion at Ha Mabote centred on firearms. He said this discussion was not long. In answer to a question by Mothobi who was described as "our co-ordinator" by PW8 it is said that accused 2 said "those things were not obtained". By "those things" PW8 understood accused 2 to be referring to firearms, money, and vehicle. At the end of the discussion the party left in the same vehicle in which they had come to Ha Mabote and drove to Maseru where PW8 says he was dropped at a bus stop where he and those other three who had met accused 2 at Lake Side Hotel gate, got public transport together and left in Northern direction from Maseru. This is the one and last time PW8 came to Maseru on the dangerous mission. Suffice it to say the role he intended to play in the dangerous mission was over-taken by events because after parting with his companions and accused 2 he only got to see them at the CID offices where they had apparently come for interrogation. But his distinct recollection at Ha Mabote is that accused 2 and Mothobi had been expected to bring firearms along with them. They were expected to bring these because the job under discussion involved threatening or killing people who were resisting the Banks' strike. PW8 said that he is related to Mothobi as cousins and that their relations are good. It should be noted that Ha Mabote is hardly distinguishable from Khubetsoana. Under cross-examination by any of the counsel appearing for the respective accused this witness was not shaken in material respects especially where he corroborates PN14 concerning the discussion centring on plans to put into effect aspects relating to the conspiracy at a meeting held at Khubetsoana where accused 1 and 2 were. The next witness for the Crown was PW9 Trooper Baholo who testified that he is a scene of crime officer and photographer in the Royal Lesotho Mounted Police (RLMP). He has been employed in this capacity since 1988 having joined the force in 1985. PW9 told the Court that on 11-11-91 he was detailed to Sekamaneng, a place lying some 10 km from Lesotho Bank Tower in Maseru. This place Sekamaneng lies in a northerly direction from Maseru. PW9 was accompanied by Lt. Col. Masupha, Col. Moiloa, Capt. Sempe, 2nd Lt. Mokereta, Sgnt Bashemane, Sgnt Maloisane, Dt Trooper Tsiu, Dt. Lance Sgnt Moteane and Dr. Moorosi and some others whom the witness is unable to recall. On arrival at the scene PW9 made a rough sketch of the area near the bridge below which the body appeared to have been dumped. This is where PW9 saw the dead body of a male person whom he eventually got to learn that he was Mr. Kimane. This body was on the TY side of the bridge and slightly past the bridge. PW9 saw a 7.65 firearm a few paces away from the body. He also saw tyre marks on the roadside along the side of the road on the near side of the body. The witness observed many beer tins. He also observed broken window glasses and coins of money. Relying on his notes which he said he prepared at the scene PW9 stated that he discovered five wounds on the deceased's chest and three at the back. He stated that the notes reflected that the 7.65 pistol serial numbered 1561 72 had 7 rounds of ammunition. He recalled that the deceased was wearing a grey pair of trousers-though its description was not written down. He stated that a piece of glass was found in the deceased's jersey. He stated that he didn't have the original of the sketch which he had prepared as he had misplaced it at work. He accordingly relied on a photocopy which he had prepared from the original as he had made a search for the original to no avail. This photocopy of the sketch was referred to without objection and handed in marked "A". It bears the witness's signature. In the sketch "A" represents the Bridge "B" the tyre marks "C" pieces of glass "D" b e er cans "E" a pistol "F" coins' "G" the deceased "H" rocks and "I" overhead cables. PW9 stated that the body was lying on its back on the slope of the donga bank. The upper body of the deceased was lying on the higher part of the slope. PW9 observed that there was no blood around the body nor was there any sign of struggle. Hence PW9's conclusion that the deceased when dumped at this scene had already been dead and killed elsewhere. PW9 observed that from where the gun was to the place where the body was lying it appeared as if the body had been dragged. What was unusual between points B and G were pieces of glass and the firearm. Otherwise the grass was flattened bteween these points. The deceased was wearing the Barclays Bank uniform. Along the trail of flattened grass PW9 observed some coins also. Towards the right side of the deceased's body PW9 observed some abrasions. PW9 also found pieces of glass among the deceased's clothes. These glasses were similar to those observed along the trail referred to above. There were no shells nearby. PW9 was also present during the post mortem examination. He had also observed Lr. Col. Masupha take photographs of the deceased at the scene at Sekamaneng. The body was clothed though the belly was exposed. The body was dressed in grey trousers, navy blue jacket, navy blue jersey with Barclays Bank logo and shoes with white socks. The body was stripped at the scene. There was no indication that the body had been interfered with before PW9 and his company arrived at the scene. PW9 accompanied the body of the deceased from the scene to Queen Elizath II mortuary where it underwent the post-mortem examination. Between those two places it had not undergone any change or destruction. Under cross-examination PW9 indicated that he completed Exhibit "A" at the scene on 11-11-91 except the portion relating to the post mortem which he said he completed on 12-11-91. He indicated that with his limited knowledge of gun shot wounds he is able to distinguish between entry and exit wounds because the former are smaller than the latter. He stated that he examined the body at the scene after Dr. Moorosi had done so not out of curiosity but out of sense of duty. PW9 stated that the deceased's shoes and socks were handed over to deceased's next of kin. He stated that although in his note book he had referred to deceased's jacket as black it in fact was navy blue. He owned up that it was his mistake to say it was black. He also explained this mistake by suggesting that blue and black are very close colours. PW9 said he did not seek to uplift finger prints on beer cans for he felt it was not important. He denied the suggestion that he didn't draw the sketches at the scene on account of their neat appearance suggesting he had done them on a comfortable object such as a table. He was adamant that he wrote his report at the scene contrary to other police practice of writing their reports at leisure in their offices. PW10 Charles Bohloko testified that he is presently employed by Government at Government Printer. Before then he was Principal Secretary for Education. He resides at Lithabaneng along the way leading to Makoanyane Barracks. On 10-9-91 which was a Tuesday PW10 was on his way from Maseru to his home at Lithabaneng. The time had long gone past 8.00 p.m.. He is insistent on this because he had spent a long time at office apart from calling at a certain cafe before seeing Mr. Kimane just after PW10 had swung from Maseru-Lithabaneng road into Lithabaneng - Ha Leqele road. PW10 said Mr. Kimane was standing besides a car parked along Ha Leqele road just after the turn-off from Main South 1 road from Maseru. Mr. Kimane was standing on the side of passenger door (assuming the car was a right hand drive) as one is facing where PW10 was going. PW10 could see that Mr. Kimane was speaking to someone inside the car. However PW10 drove past and went to his home. He never saw Mr. Kimane subsequently. The following day he learnt that Mr. -Kimane's dead body was found somewhere. PW10's evidence is important in so far as it gives a suggestion of the time when the deceased was seen outside his car at Lithabaneng junction. It also corroborates PW14's evidence as to the time when the deceased drove him and others from Lake Side Hotel to Lithabaneng. It also gives substance to PW14's evidence that there was much anxiety among the killers imposed by passage of time spent between going from Lake Side Hotel to Lithabaneng, and from there to the Prime Minister's private residence and ultimately driving along Main North road towards the traffic lights where the killing was effected. PW10 said the furthest he was from the deceased was not more than two metres even though he is not certain whether the deceased saw him. PW11 Trooper Plaatje testified that he is presently stationed at Makoanyane and is attached to the Criminal Records Bureau. He has been in this occupation for eight years. His duties entail dealing with finger prints and scenes of crime. Regarding the instant case PW11 and others went to Tsifalimali on the far side of Hlotse in the Leribe district. It is at this place that the deceased's vehicle was found. This was a Cressida Station Waggon silver grey in colour. It bore Registration letter and numbers A 3360 at one end only. The vehicle was badly dented and the windscreen broken. This vehicle was on the left hand side of the road leading from Hlotse to the junction of the other road leading to Butha Buthe. The road along which this vehicle had just been travelling on before coming to rest is a big curve. PW11 and his company saw this vehicle ahead of them as they approached it. The safety barrier on the left hand side of the road had buckled up and crumpled. The left hand side of the car to the front had rammed into it. The barrier was made of hard zinc or iron metal. PW11 saw a stone the size of a tennis ball blood-stained besides the vehicle. There was also blood outside the front passenger door. Inside the car PW11 saw an empty 7.65 mm shell which was later taken to PW2 along with the deceased's jacket and trousers. PW2 took the blood stained stone to the forensic science office. The car was conveyed to the Charge Office Leribe and later to Maseru. Three shells which were later found after the event and the 7.65 shell that was found later in the car were handed in collectively as Exhibit 9 by consent. The firearm and magazine had earlier been handed in as Exhibit 1. The bullet found in the lining of the blazer Exhibit 2, was handed in as Exhibit 10. The Album was handed in by consent marked Exhibit D. PW11 was not cross-examined. The next witness for the Crown was PW12 Capt Bulara Khomohaka. This witness is a member of the RLMP. He is a qualified forensic Biologist who also holds a post-graduate Diploma in Forensic Science from the University of Strathclyde in Scotland. He testified that basic component of his course completed in Scotland consisted mainly of Biology sub-divided into blood grouping or serology, fibre examination, grouping of other body fluids such as semen and saliva. He outlined the types of tests which are applied in his form of discipline to determine various types of s p e c i m e ns r e f e r r ed to a b o v e. He a l so o u t l i n ed p r o c e d u r es u n d er w h i ch h is l a b o r a t o ry r e c e i v es s p e c i m e ns c o l l e c t ed from s u b j e c ts w h o se b o dy f l u i ds i n c l u d i ng dry b l o od are to be e x a m i n e d. It was on the basis of PW12's e x p e r t i se that b l o od s a m p l es of suspects i.e. (1) R. S. M. M a l i e h e ( A c c u s ed 1) (2) V. M o t h o bi (who e s c a p ed and t h us is n ot on this trial) (3) M . J. M a t h i b e la (PW14 the a c c o m p l i c e) were subjected to tests by him. after he h ad p e r s o n a l ly d r a wn b l o od from the a b o ve s u s p e c t s. PW12 also tested b l o od stains on c l o t h es a l l e g ed to h a ve b e en w o rn by the d e c e a s ed K i m a n e. He stated that he was required to search for blood and, if he found it, to group it. B a s i ng h i m s e lf on three g r o u p i ng c a t e g o r i es A B O, PGM and HP P W 12 c o n c l u d ed t h at e i t h er the d e c e a s ed K i m a ne or t he s u s p e ct M o t h o bi was the source of b l o od found on the c l o th t a k en from the car r e g i s t e r ed A 3 3 6 0. PW12 further concluded that either Kimane or Mothobi was the source of blood found on the stone referred to earlier. In my view this stone which was found lying on the road next to the car A 3360 at Hlotse in Leribe at least 90 km away from where the deceased was dumped is most unlikely to have been stained in the deceased's blood. I would rather think the blood found on it is Mothobi's for it is stated in evidence that he had bled from his upper body from the impact caused by the collision between the car and the safety barrier. His head is said to have slumped outside the passenger window. The third conclusion by PW12 was that the blood stains on stone and cloth could have been from the same source. This conclusion accordingly excluded accused 1, PW14 and PW16 Phatsoane as possible sources of those blood stains. It should be borne in mind that the cloth had been used to swab up blood obtained from the car A3360 in which Mothobi was. But the deceased also had been in that car before it (the car) crashed about 90 km from where the deceased was found dead. However because of lack of facilities it was impossible for PW12 to eliminate the two possible sources of blood on the cloth by subjecting it to further tests. Reference of these items to Pretoria fetched no worthwhile results. PW12 referred to items of clothing delivered to him belonging to the deceased. He referred to holes observed on deceased's jersey, vest and shirt. He also referred to holes on the blazer. With regard to the holes on the vest PW12 said there were reddish brown stains around them. He observed four holes at the back. On the jersey PW12 observed two small holes on the front and three on the back around the upper part of the chest area. PW12 said the holes on the back were smaller than those in front. All in all the holes found on the various portions of items of clothing correspond with holes found on the deceased's body. No attempt in cross-examination was made to query PW12's evidence as to the number and positions of holes he had observed on these clothes. I am however puzzled by presence of 4th hole on back of the vest because the jersey had only three holes at the back. However because of the possibility that the vest being so loose and big could have had part of its back on the right side shift to part of the body's right front at the time of the shooting, this may provide a solution to the puzzle. But whatever the case may be the three top holes on the back of the vest correspond with three holes on the back of the shirt, on the back of the jacket and with the gun-shot wounds at the top back of the deceased's upper body. Suffice it then to say the bottom fourth hole on deceased's vest remains a puzzle somehow if indeed the vest didn't twist back to front which even as I examined it again seems a far-fetched notion. The witness indicated the three holes in front of the vest and indicated that the one circled by yellow colour was not there; it was only caused for purposes of extraction. He also placed before Court an envelope containing a button which was allegedly picked up from the floor of the car. There were other four envelopes containing samples of fibres which were not visible to the naked eye. There were also samples of pieces of glass and dust particles. All these had allegedly been collected from the car. The next witness for the Crown was PW13 Sgnt Maloisane. Not much turned on his evidence except that he came to the scene where the body of the deceased seemed to have been dumped. He came there in the company of Lr. Co. Masupha and Capt. Molapo on 11-9-91 between 9 a.m. and 10 a.m. PW13 saw the deceased's body being stripped of clothes by police. He saw PW9 take photographs. He was handed the deceased's jacket and firearm in transparent plastic bags by PW9 to take to PW2 at Makoanyane laboratory. PW13 produced before Court a plastic bag on which was written "jacket of late Kimane for gun powder examination 11-9-91". On the other plastic bag was written "11-9-91 firearm found at the scene. Kimane" and also "shell found at the back seat". There was also a label on which was written "bullet found at the front passenger seat". PW13 said he never opened these bags. He said he didn't write any of these labels either. Asked if he was sure PW11 took photographs of the body at the scene he said yes. This seems to contradict his own evidence in chief that it was PW9 who took photographs at the scene. After the recall of PW8 the next witness for the Crown was PW14 Monyane Mathibela, an accomplice. Having been given the mandatory warning by the Court in terms of Section 236 of the 1981 Criminal Procedure and Evidence Act No.7 he took an oath and gave his lengthy evidence. PW14 said his home is at Tsikoane in the Leribe district where he was born upwards of forty years back. He left Tsikoane in 1980 to look for work in the Republic of South Africa. He got employed in the mines at Welkom. He later left for Botswana, Transkei and Namibia. At one stage he lived in Qwa Qwa where he met accused 1 around 1984 or 1985 at the time when both were engaged in an armed struggle against the rule of the Basotho National Party government which had seized power forcefully in 1970. Thus PW14 said the training he underwent in the valleys was in preparation for war impending in Lesotho then. This war was to be waged under the direction and auspices of Lesotho Liberation Army (LLA). PW14 joined the LLA first as a soldier who later became a commander. When PW14 first met accused 1 known to him by only the name Ramaleke the latter was a driver. PW14 said he also knew accused 2 whom he met in Maseru during the Banks Strike. He said he met accused 2 three times on different days during that period of the strike. PW14 said he also knew Nkalimeng Mothobi and that it was through Mothobi that he got to know about the Banks Strike. PW14 told the Court that he had known Mothobi for three months when the latter told him about the Banks Strike. He knew that Mothobi was working at Barclays Bank Hlotse and that he lived at Mankoaneng in Hlotse. PW14 got to know Mothobi through Nbijane a mutual friend who would visit Mothobi and the two would in turn go to PW14 so that they could all drink together. This happened time and again because PW14's workplace at Motsoeneng area is very close to where Mothobi used to live. In fact PW14 went further to say Mothobi had become his bosom friend. He also stated he adopted the name Mosiea to disguise his real name Mathibela. The name Mosiea though used in the valleys outside this country had become generally applied in reference to him even after his return from the valleys. He said this was the name used in guerilla activities. PW14 said he knew that the accused are charged with the killing of Kimane. He however hadn't known the deceased before. He only got to know him when he saw him for the first time on the evening that he met his death. PW14 said that around 1991 Mothobi mentioned the question of Bank Employees' strike geared at securing salary increases from their employers. It was during that discussion that it was intimated to PW14 by Mothobi that unless this request was met within two weeks then the employees would embark on a strike. PW14 was not aware what procedures are to be followed before embarking on a strike. He has no expertise in this field of industrial relations. He has very little knowledge of labour relations. However it is PW14's testimony that the strike took off by way of "stay-away" from work. He observed that Mothobi had stayed off when the strike was on. In fact Mothobi came to PW14's office. The two had a discussion. There were no other people. Just the two of them. In that discussion Mothobi suggested that the strikers wanted the strike to be conducted expeditiously. Not much turned on this discussion that day. However a few days afterwards Mothobi came again to PW14's workplace saying "they" intended going over to ANC members with the hope that those would help the strikers conduct their matters expeditiously. PW14 learnt that the strikers tried to expedite the strike by going off work. He said at that stage Mothobi had not come to the point where he asked PW14 to do any particular work or job. There was however a stage where PW14 was asked, he said, to assist. This, he said, was about a week after the strikers' sit down. On this occasion Mothobi came to PW14 who was at his place of work cleaning his 7.65 pistol about eight inches long (as the witness indicated). When Mothobi entered PW14 quickly collected the dismantled parts of his firearm and covered them with a piece of cloth. It was PW14's testimony that he thought he had successfully fooled Mothobi by covering the parts of the firearm, which PW14 thought Mothobi had not seen. However events that followed revealed to PW1 4 that in fact he had failed to fool Mothobi. Though the two spent the rest of that day on drinks without talking about the strike, the following day Mothobi came to PW14's work-place and showed him a 3.8 firearm, (at another stage referred to as .38 even by the DPP) (See p.243 of my notes) and asked PW14 to clean it for him. The two spoke about the Banks strike. Mqthobi then clearly explained the intention to help the strikers threaten management of the banks in question and coerce them to respond to the strikers' demands. Though Mothobi didn't say with what the management should be threatened that day, he nonetheless did so some other day. PW14 stated that their discussion that day was inconclusive. He said that the discussion was of such a nature that it was engaged in in the absence of his workmates or colleagues who were working nearby. The following day when the question of cleaning firearms had been concluded Mothobi approached PW14 and intimated to him about going across(to see the ANC) and further expressed his preference that PW14 be the person who should help make the strike succeed. At this stage no definite terms had been defined as to how the management was to be threatened. Moreover what terms related to threats did not extend to killing. The following day Mothobi told PW14 about two men who could help carry out the strike. At this point still there was no reference to killing. Reference was confined to threatening only. It was not even stated where the threatening was to be. At this stage PW14 had not met any of the accused. He had confided his discussion to Mothobi only. Following Mothobi's allusion to two men who could help carry out the strike he came along with accused 1 and Walk Tall i.e. PW8. PW14 said he had seen accused 1 previously as the latter used to drive PW22's car (PW22 is Dr. Hoohlo). He went further to say that he knew PW8 by no other name than Walk Tall the name that PW8 was known by in the valleys and the Transkei. PW8 was PW14's trainee then. These three people found PW14 at Motsoeneng's bar at around 7 p.m. No discussion took place there that evening because there were many other people who had come to drink at the bar. Mothobi suggested that the meeting be held at his place the following day. This was done. Those present at Mothobi's were accused 1 PW8 (who had put up there for the night) PW14 and Mothobi himself. Mothobi is said to have said at that meeting "Here have I brought two people like I said". This was in reference to accused 1 and PW8. Then a decision was made for all to go to Maseru. PW14 said that judging from what he heard it became apparent to him that these two people knew about what was taking place and what was involved because they didn't ask "strong" questions. Thus PW14 formed an impression that these two were ready to go along with what the trip to Maseru implied. In his actual words "it appeared an agreement had been reached". See page 237 of the Court's manuscript. PW14 went further to tell the Court that Mothobi . stated that a date was to be fixed for coming to Maseru where PW14 and the two men would get to know the committee and meet the Chairman (accused 3 ). This committee was said to be the one leading the employees of the Banks on strike. PW14 said that not the name but the position of the Chairman was mentioned by Mothobi. Thus, PW14 proceeded, "the four of us made that decision" see page 237 of the Court's manuscript. PW14 came along by public transport from Leribe to Maseru with Mothobi and accused 1 while PW8 had already travelled ahead of them. The rendezvous in Maseru was Lake Side where the trio were to meet with PW8 and hopefully the Chairman accused 3 as agreed. But they didn't meet accused 3. Failing accused 3 there Mothobi shortly left for town. On his return he proceeded to the old bar where he had left the trio drinking. He fetched them from there and conducted them to a stranger who was in a car. PW14 advised his companions that on moving out it shouldn't be in a group and thus they moved in twos: PW14 and Mothobi were leading while accused 1 and PW8 were bringing up the rear. The reason for this formation was that PW14 was taking precautions in an endeavour not to draw attention to themselves as he never feels free if that happens. They headed for the car which was parked a few paces from Lake Side Hotel gate on the BEDCO side facing BEDCO. The owner was standing outside. This turned out to be accused 2 but a stranger nevertheless to PW14 and his two men. The owner of the car opened for the four men and they went in. Mothobi and the driver sat in front. The rest sat at the back. This was described by PW14 as a motor car, resembling in colour what he described as "khaki envelopes and rather dark". PW14 stated that after they had all got into the car it turned towards the traffic lights and headed for Motimposo, drove past Monkhi's buses and on reaching the end of the village came to stop at a place near where many fowls are kept. The Court takes cognisance "of the fact that this place is Sekeleoane's big fowl run. This is where PW14 says Mothobi and accused 2 went out of the car but didn't take long before returning into the car. He further said then Mothobi introduced everybody else to Chaka the owner of the car. (Chaka is accused 2) . PW14 says accused it was introduced by his name as Chaka. He was also said to be Vice Chairman of the Bank workers' Union. Then Mothobi introduced the rest of the men to accused 2, but it had been agreed that the nicknames they were generally known by should also be changed in which event PW14 was introduced to accused 2 as Fraser. He forgets by what names the others were introduced to Chaka for these were temporary names. He recalls that he himself (PW14) chanced on the name Fraser for he fancied a famous heavy weight boxer known as Joe Frazier. This was all the more convenient name for PW14 for his other name is Joseph. But because these names were really short-lived Mothobi found himself using the more permanent nick names like Mosiea, Ramaleke and Walk Tall. PW14 felt uneasy about what he perceived as breach of security in that what he expected to see was the Chairman and not the Vice Chairman i.e. accused 2. PW14 therefore voiced his dissatisfaction. It was explained to him that the Chairman had gone either to Mafeteng or Mohale's Hoek. Having been offered this explanation PW14 then said "now that the man we were to work with is not there then we would have to work with that man i.e. accused 2 till the end. We agreed with Ramaleke (Accused 1) and Mothobi that we should be sent no other man and that we should continue with the man who had known us i.e. accused 2". See Court' s manuscript at 240 to 241. The discussion at this stage was confined to arrangements relating to entertainment meaning money for drinks, food and transport. It was agreed that this would be seen to by accused 2 who would work hand in hand with his Chairman to ensure that these were provided. No discussion was delved into regarding the manner of these non-Bank workers' participation in and their facilitation of the strike that day. Thereafter the occupants of the car retraced their steps in that car driven by accused 2 eventually coming to Manthabiseng bus stop where they were too late for their public transport back to Leribe whereupon accused 2 rushed them up to another stop near Kentucky Fried Chicken shop where they went on board a taxi bound for Leribe. The four who went on board that taxi were PW14, accused 1, Mothobi and PW8. They parted with accused 2 at the Kentucky Fried Chicken shop stop. The following day while at Hlotse in Leribe Mothobi in a telephonic conversation was heard by PW14 to say he would have to personally come to Maseru to meet accused 2. He informed PW14 that it appeared that work was not being done expeditiously. On his return from Maseru Mothobi told PW14 that things were going too slow. This he said at PW14's work place. PW14 was struck by the fact that Mothobi appeared to have money though he was not earning any because of his "stay away" from the Bank where he was employed. Mothobi said weapons were required. By this PW14 understood him to mean weapons of war. Indeed PW14 need not have contemplated what these weapons were because immediately during their course of conversation Mothobi asked PW14 if he wouldn't help with his gun. Thereupon PW14 agreed to lend out his 7.65 pistol. Then Mothobi went out' shortly and on coming back he handed his own 3.8 revolver to PW14 to keep. PW14 protested that this 3.8 revolver was not much use for it had only one bullet. The following day Mothobi brought a new 7.65 pistol with four bullets. He left this firearm also with PW14 and said he was going to see how he could procure some bullets. The he left. The next day Mothobi came to PW14 bringing along with him two bullets for the 7.65 pistol. The next day Mothobi brought three 3.8 bullets also undertaking to go and fetch PW8 who stayed at TY and not Hlotse. PW14 brought to his attention that there wouldn't be much point engaging four people when firearms were not four. Apparently this argument prevailed because with guns which were in their possession accused 1, PW14 and Mothobi came to Maseru minus PW8. The purpose for coming to Maseru was to find which people to torture or kill. PW14 said such people were those who appeared to be obstructing the strike. However at that stage it had not been explained who those were. Before leaving Hlotse for Maseru PW14 says they had indicated how they were to be rewarded for the job. PW14 and accused 1 had acknowledged that as these people needing their help for reward were their fellow creatures working at the Bank but presently having no money; nonetheless an agreed sum for the job would be fixed at M25 000 of which M5 000 would be paid within a short time while the M20 000 balance would be paid after the workers had gone back to work. Mothobi was agreeable to this arrangement and thought that although there was no money presently the amount specified could be obtained. PW14 was adamant that the M25 000 was money he and his partner would get after helping the strikers make their strike succeed "by shooting people they would point out to us". Indeed PW14 said "we came in (sic) that agreement from Leribe. Walk Tall was no longer there" See page 245 of Court's notes. Walk Tall was not there because he had no gun so it was pointless in those circumstances him coming to Maseru where shooting was to be done. Nonetheless Walk Tall did not know about this arrangement which excluded him from the engagement while he was ready and willing to join the killers should he be collected from TY for the purpose. PW14 said there was no way PW8 could feel threatened by this decision to exclude him for he was not in the others' district. According to PW14 he, accused 1 and Mothobi accordingly went on public transport bound for Maseru. They came to the Lake Side Hotel and took some drinks. Mothobi decided they should come to town. While they were opposite 60 Minutes Dry Cleaners Mothobi said he was going into some building which he pointed out. However he took a long time during which PW14 suggested to accused 1 that they should not stick together lest people seeing them associate the two with each other. This again was a precaution elementary to people trained in sabotage and unwholesome military tactics where the perceived target is kept ignorant of its adversary's clandestine manoeuvres. When Mothobi came he took PW14 and accused 1 to accused 2 who was at Lancer's Inn near the old Anglican Church. At Lancer's Inn PW14 observed that accused 2 was in the company of a white man in 'a thatched summer house. PW14 and accused 1 went into the Hotel while Mothobi went to accused 2. Later Mothobi came to PW14 and accused 1 and bought them cans of beer each and went back presumably to accused 2 leaving the two in the Hotel. He later came to call them. He appeared to have come from what appeared to be a private bar. PW14 said he was still in his sober senses as beer had not yet had any effect on him. Before PW14 and accused 1 including Mothobi had finished their beer the latter conducted them to accused 2's vehicle. They found accused 2 at his own vehicle. This was the same khaki coloured vehicle referred to earlier by PW14. PW14, accused 1 and Mothobi went on board this vehicle and accused 2 drove it past the spot where Bank employees were having their meeting. The vehicle went past the right hand side and not the left hand side of this spot; headed towards the main traffic circle. The witness says traffic was heavy at the time and while their vehicle was moving slowly on that account he and accused 1 were shown one of the vehicles of one of the people opposed to the strike. He says accused 2 showed them a bluish Mercedes Benz car whose colour he reckoned approximated the colour of the interpreter's file. Court took cognisance of the colour of the file to be blue. However PW14 didn't see the registration numbers of that car. PW14 went further to state that accused 2 showed them a van with a white canopy. Likewise PW14 didn't see the number plates of this van because he was to the side (as opposed to the front or rear end) of the van being shown to them. PW14 is emphatic that as the car was moving along Main North 1 road and turning towards BEDCO or Lake Side Hotel when it reached the traffic lights in that vicinity it was not through anybody's suggestion that accused 2 should turn it in that direction. He did it on his own volition. After the car had been parked at BEDCO parking bay, some hundred or so paces beyond the gate to Lake Side Hotel gate, PW14 told the Court "we asked where people who had to be attacked stayed. In there (i.e. in the car) were me, Ramaleke(accused 1) Mothobi and accused 2". See page 248 of the Court's manuscript. In the course of discussion that went on at that juncture it was realised that as vehicles which were intended to be at the disposal of the "killers" were not available transport would pose a problem. These were vehicles in which the "killers" would travel in to fulfil their purpose. The purpose was that the vehicle would be used for travelling by the "killers" exclusively and not by any Bank employees with the exception of Mothobi. The vehicles would be used to carry out the murderous purpose against those who would have been pointed out to the "killers". Consequent upon realisation that the scheme was flawed as indicated by factors which surfaced during the discussion accused 2 conveyed the occupants of his car from that area. But along the way towards Manthabiseng bus stop accused 2 took his passengers towards a flat roofed house. After three turns from the main road following a narrow road into what seems to be Ha Thamae accused 2 showed his passengers a series of rooms built in the fashion of lines. This long building divided into a series of rooms is L- shaped and referred to generally in Sesotho as Ma-line (a corruption of the English word lines referring to series of rooms built in a manner similar to coaches of a train). Accused 2 pointing at some of the rooms there told his passengers that some of the Bank Employees stayed in there. PW14 said in reference to this event "we studied that building to see how to approach it and enter. He went further to indicate that at an angle where the two arms of the L meet "we were told that this is a room where a man usually visits a woman staying there". The explanation relating to this man though given after the story that the witness was unfolding answered to the description of PW15 Samuel Rahlao one of the people in Senior Management team at the Standard Bank. This was so because PW15 was the man who used to visit his girl-friend an occupier of the two rooms near the angle of the L-shape. His vehicles whose colours PW14 had seen have for their Registration letters the Letter "D" each. PW14 had been told that the owner of the vehicle who would come to these rooms would come in either of the vehicles bearing Registration Letter "D". The passengers were not given the description of the owner of these vehicles nor the colours thereof. But as I have stated the passengers had just seen the colours of the vehicles. Suffice it to say they were given the "exact description of the room he would be in. Moreover PW14 said "Chaka said to us we would know when that man came there for there would be a car or a van. To identify the vehicles he said the number (sic) would be a 'D'". Woe unto any wrong person who being male should be in that room at the wrong time should it happen that PW15's vehicle or any similar to either of those vehicles with Letter "D" is parked in that vicinity!! Letter "D" precedes Registration Numbers of motor vehicles registered in the TY district, and such vehicles are many. The study by PW14 revealed that the room in question had two doors. The one interleading into the other room while the other door led outside. PW14 went further to say "after we studied the plan of the area accused 2 said there was yet another man we should know but he didn't know where he stayed save that it is at Lithabaneng. In fact the place which was mentioned and which we had studied was explained as that man's girl-friend's. It was pointed out that this is one of the people we were going to shoot by accused 2. The purpose was to shoot that man dead" See page 251 of my notes. 94. PW14 made mention of the fact that during the narration of his story he had reached a stage where he had said one man was mentioned but no name given, and of him it was stated that he frequently visits his girl-friend at Lithabaneng but accused 2, it was stated by PW14, said he didn' t know which area he goes to. After that interposition it is said by PW14 that he and his company left for the area which accused 2 knew. The implication here is that accused 2 led them there. The place in question would appear to be the one that PW15 usually visited at Ha Thamae. From that area they headed for Manthabiseng bus stop where it seemed transport was no longer available. Consequently they headed for the stop around Kentucky area where others except accused 2 went on board the taxi bound for Leribe. These others were accused 1, Mothobi and PW14. PW14 says he had kept the guns in his custody and had left them at home with the exception of his own which he had on him on this second occasion of his coming to Maseru; and proceeds as follows: "This 2nd occasion of our coming to Maseru the objective was to familiarise ourselves with places of residence of people with whom we were to start. At that point a decision had been taken as to the fate of these people. The decision taken was that we should shoot those people. This was the agreement to kill these people". PW14 proceeded to tell the Court that on reaching home, no doubt-this time in the absence of accused 2, a plan was embarked on concerning how many bullets each firearm was to be loaded with. In this connection and in his euphemistic terms PW14 said "we decided how many children each stick was to take". Here children means bullets and stick means firearm. In this regard PW14's gun remained with six rounds of ammunition, that brought by Mothobi had six bullets while the 3.8 firearm had four bullets. Two days were allowed to pass and on the 3rd day; PW14 says, "we came down to do the job in Maseru". PW14 said he didn't remember the month this happened as it took place a long time ago. PW14's mind is not easily dislodged from minor details. In a sense this helps him to remember the sequence of events in a somewhat spell-binding fashion. Thus having said "we left by public transport" he stated " but before leaving Hlotse we went to Mr. Chabalala's shop where we got three quarts of beer. Two of us drank them; that was Ramosoeu who is not here and myself". See page 253 of my notes. He explained that at this stage accused 1 had gone ahead to put right his things at his place of work. After Mothobi joined PW14 and Ramosoeu the two parted from Ramosoeu and caught up with accused 1 near the latter's place of work at Hlotse Hotel which is opposite Dr Hoohlo's surgery where accused 1 was working. It should however be borne in mind that accused 1 was on sick leave at the time due to an injury sustained on his arm. It was Dr Hoohlo's evidence though that the nature of the injury was not such that accused 1 could not hold things in his hand or use ir for the purpose. This is mentioned merely in parenthesis at this stage. PW14 stated that having joined with accused 1 the three i.e. PW14, Mothobi and accused 1 went on board a vehicle bound for Maputsoe at 3.00 p.m. Then they left Maputsoe for Maseru. He gave as his reason for moving so late in the afternoon that "we were late travellers. The reason was that we should find people we were coming to at their homes and not at work": No doubt "people we were coming to" is another way of saying "our quarries" or objects of intended pursuit or intended victims. Regard being had to the fact that Hlotse which is about 10 km from Maputsoe is upwards of 92 km from Maseru there is every good reason that travellers leaving any of those places at 3 p.m. by taxi would make Maseru at early dusk. See Hortors Diary sunrises and sun sets at Johannesburg Standard Time of south Africa for the 9-9-91 showing that the sun set at 5.59 p.m. that day in Johannesburg and the adjoining regions of which Lesotho is part. PW14 said each one of his companions had a firearm. He was holding his 7.65 firearm. The other 7.65 firearm was being held by Mothobi while accused 1 was holding Mothobi's .38 firearm. See page 253 of the manuscript. Before leaving Maputsoe Mothobi had bought 4 cans of Long Tom (castle beer) and half bottle of white spirits (one of the gin products). PW14 consumed three of the Long Toms while the other two drank gin mixing it with contents of the fourth Long Tom. When the trio reached T. Y. they had finished those drinks. Consequently Mothobi replenished the supplies by buying six cans of beer which was shared along the way between TY and Maseru. At this stage the effect of beer was beginning to make PW14 feel "clever" . This is a stage where a person who has taken drink is said to be feeling tipsy, PW14 said he was still conscious of his surroundings and had not reached a stage of double vision. He says he sometimes reaches such a stage but had not reached it. He gave as the purpose for taking drinks the need to subdue their fright. Thus they sought Dutch Courage as a form of escape from pricks of conscience. PW14 said that day they went past Lake Side Hotel and headed for the Cathedral (Roman Catholic one next to the main traffic circle). He said at the time he was moderate; feeling neither angry nor harsh. He, however like a war-horse, which manifests its eagerness to charge into the heat of battle by impatiently pawing the ground, felt ready to carry out the mission. To his observation his companions appeared to be in the same spirit. Indeed PW14 formed an impression that Mothobi is a cruel man and -one who is apt to put on tantrums. Indeed the impetuous character of Mothobi as portrayed by PW7 Mabasia Phomane and accused 2 thoroughly vindicates PW14's observation. It will be remembered how Mothobi was full of gusto and impatience when he said to her he wanted to see no one else but the President. Also when he rudely interrupted a meeting where accused 2, a white man and the President were holding a discussion immediately outside the Lancer's Inn. No doubt therefore when armed with a murder weapon and fired by the white spirits he had consumed coupled with a set mind to kill obstructionists to the strike he couldn't have been anything different from the proverbial wolf with a sore head. With regard to accused 1 PW14 said "his temperament is alright except that when you said a thing with him he cannot change from it". Again in this respect PW14's observation is vindicated by what the Court observed of accused 1 with regard to his insistence that the question of his boots in acase pending before a prisons tribunal be settled before this instant case could be proceeded with. It had to take his counsel to beg leave of Court to have a short adjournment during which he ultimately saw sense in the court's view that the court had no power to force prison authorities to expedite hearing of that matter before the instant one could proceed. Furthermore despite the apparent hollowness in his story that in all the trips undertaken where he was a passenger in accused 2's car nothing relating to the plot hatched allegedly in his presence was discussed, he insisted that PW14 was not telling the truth. Saying nothing of (a) his denial of the fact that pursuant to the murderous plot three as against two trips were undertaken by him, Mothobi and PW14 from Hlotse to Maseru (b) his baseless assertion that PW14 knew that the deceased was friends with Dr. Hoohlo, coming as it did after he had stated that indeed PW14 was truthful in saying he didn't know of any such friendship. What occasioned accused 1's somersault was when it was brought home to him that PW14 stated that he learnt of this from accused 1 himself. PW14 said when they reached the Cathedral area and were almost at the 60 Minutes Dry Cleaners they all alighted. Mothobi headed for GO Minutes Dry Cleaners building part that has stairs. PW14 suggested that he and accused 1 should not stand together but hold separate positions. Again this was a military tactical move geared at thwarting suspicion that they were in any way associated or bound by a common purpose. Mothobi quickly came back - an indication to PW14 that he couldn't have found anybody in there. A word of caution here. While it might have seemed to PW14 that Mothobi had not found anybody in there i.e. in the LUBE office; in fact as we learnt from PW7 he had found her in there but failing the President who was alleged to possibly be at the Anglican Church yard near Lancers' Inn Mothobi in his characteristic impetuousness stormed out of that office and joined the other two on board a taxi bound for Lancers' Inn to the President accused 3. That is if this is the actual occasion. At first: blush it might seem that Mothobi is on trial here on account of extensive reference to his name in this proceeding. The truth of the matter is reference to him by PW14 gives local colour to this episode. PW7 on her part gave evidence which corroborates at least the approximate time and the mood observed of Mothobi by PW14 in accused 1's presence. The strange thing is that even when given an opportunity to comment on these things accused 1 chose to fight shy of them. In fact when it was put to him that Mothobi was armed and did indeed shoot at the deceased from the back accused 1 denied this and said that nohow could Mothobi have done any such thing because Mothobi had not told him that he was armed. When it was drawn to accused 1's attention that it is on evidence gathered from unchallenged PW6 Sejake Tuoane's testimony that Mothobi had borrowed the latter's gun shortly before the day the deceased was shot, and that it appears Mothobi had not informed him of the borrowing of this gun accused 1 was clearly in a cleft stick. Thus his effort to behave towards Mothobi like a hen with one chicken clearly appeared to render no help to him. All it did was to highten the degree and lengths he was prepared to go to in order to conceal the truth in this trial. Needless to say accused 2 attested at least to Mothobi's mood that day. None of it was discernable to accused 1. How strange. PW14 proceeded in his evidence to explain that from the Lancers' Inn he and accused 1 were called to accused 2' s car where Mothobi and they left in that car following the road to the right of the Anglican Church while other vehicles followed one to its left. Their motion in an attempt to join King's way and head for the main circle was a slow process. It was during this process that PW14 heard accused 2 and Mothobi saying "there is one of them, there is one of them" as they pointed at fast moving vehicles which PW14 said he couldn't see properly on that account. Finally accused 2's car managed to make it into King's way and turn right towards the circle and drive past Lake Side and shortly stop at BEDCO from where as they remained parked the traffic lights beyond Lake Side Hotel are in view. PW14 and his company alighted to treat themselves to a meal of mealie pap and meat. For a while accused 1 had disappeared. PW14 thought he might have gone to the toilet. However shortly afterwards - and the time was about 7 p.m. - the four men were back at accused 2's vehicle. It is at this stage that accused 2 pointed out that his car was rather sluggish. This was at a stage when according to PW14 what was on tapis was " we were discussing means of leaving Maseru after attacking the owner of the vehicle described as "D" - the four of us were discussing about how to leave Maseru". The owner of this car as other evidence indicated earlier is PW15 Samuel Rahlao a holder of managerial post at the Standard Bank Maseru. See page 258. The question of accused 2's car being sluggish posed a serious problem because according to the turn of events this day (presumably 10-9-91) "was the D-day, the job had to be done. Moreover we were later than usual (meaning ; we were operating behind the usual time schedule). We would have no vehicles to take us home. It was past the usual time for vehicles going home" . See page 258 of Court's manuscript. To my mind this presented great urgency indeed. The killing had to be effected and speedy means of putting great distance between the act or acts and the killers' homes where the killers would die to be quickly after their sordid deeds was of utmost essence. As luck would have it "while we were discussing this we saw a vehicle at the traffic lights.... The street lights were on. Actually I had not observed it (car) I only observed it when one of them (PW14's companions) said there is one of them (meaning people). It turned into the Hotel. I saw it park with other vehicles near the reception". See page 258. It is important to realise that rendered in Sesotho the expression "there is one of them" in the context it was made referred not to an object but clearly to a person. So even though the above expression is followed by a sentence which clearly indicates what turned into the Hotel was a car and therefore an object; the two bear no relation whatever. At a later stage in his evidence PW14 indicated that the person who said "there is one of them" was accused 2. See page 259 of court's notes in that regard, The luck I referred to above relates to the fact that after it was perceived by the four men at the stage attention was drawn to the probability that the intended victim was the one in the car that was approaching, that after being killed his car would be used as a get-away. So the transport problem would thus be solved. Further use of that car could help reach other intended victims and eliminate them as this was the D-day. The second aspect of the assassins' luck was that because accused 2 had failed to show the killers this place at Lithabaneng where the deceased reputedly used to visit his girl-friend the decision had been reached that the owner of "D" vehicle who usually visited his girl friend at Lower Thamae should be killed. Thus while it was being pondered how this deadly mission was to be carried out against PW15 here was the deceased marching blindfold into the toils and machinations of his wretched fortune set and fomented by adversaries he had no way of suspecting. PW14 stated that after he learnt that some of his companions knew the vehicle that was approaching from the traffic lights and was going into the Lake Side Hotel premises. He also learnt at that stage that accused 1 too knew the vehicle and its owner. Accused 1 indicated to people who were with him that the owner of that vehicle is a friend of PW22 Dr. Hoohlo. Thereupon PW14 suggested that it would not do to kill a person at the hotel. He suggested further that it would be better to follow the intended victim so that PW14 could identify him. The dispute that arose questioning the reason why PW14 should have to go and see or identify the would-be victim was resolved in favour of PW14's contention that if he shot in the hotel he might accidentally shoot other people. Furthermore it was necessary from the point of view of PW14 to see this man in case he was related to him; in which case he felt he would have had to refrain from shooting the intended victim. PW14 stated that after he had advanced these reasons it was agreed among his companions that accused 1 should ask for a lift from the deceased. The reason why accused 1 should do that was that accused 1 himself had explained that he was friendly to the deceased who knew him to be his friend's driver and also saw him on occasions in his (Dr Hoohlo's) company. It would seem that the deceased would be lured by this ploy and lulled into false sense of safety in the company of men one of whom was his friend's driver. Not wanting to be behindhand and in devising instant acts of trickery and stratagem Mothobi according to PW14 said "if we succeed in getting the lift he (Mothobi) would go to the deceased and talk to him about going back to work while I (PW14) was to be regarded (by the deceased) as accused 1's fellow-traveller. Mothobi said the deceased would be quite happy with that type of talk". See page 259 of the court's manuscript. PW14 told the Court that he and accused 1 got into the hotel. He noticed that the deceased recognised accused 1 and called the latter to him. Before going to the deceased accused 1 had bought PW14 a quart of beer. PW14 saw accused 1 approach the deceased who was visible to PW14. This witness described the deceased as a tall broad-shouldered man with streaks of grey hair, and light in complexion. He also said the deceased was wearing a black jacket and grey pair of trousers. He later when shown ID"1" as it was then marked said he couldn't distinguish between black and navy blue in darkness or artificial light. He felt he could have fared better in sunlight. PW14 said from where he was he was able to see the deceased talking with accused 1. The deceased and accused 1 didn't take long talking. Accused 1 came back from the deceased holding a quart of beer. In PW14's view the deceased appeared a friendly person who didn't seem to have any problem with accused 1. Accused 1 seemed to requite the deceased's warmth and friendship. So stunning was the deceased's acceptance of accused 1 and relaxation in accused 1's company that when accused 1 placed a quart of beer before PW14 accused 1 said " He has even bought me beer". So saying it is said accused 1 went back to the deceased to solicit the deceased for a lift. Though it didn't appear clear what question had been put to the deceased PW14 however heard the deceased speaking above people around him and saying to them "what about my education" . When the deceased thus alluded to his education accused l was at the table near the deceased. In my view it would seem the deceased was speaking for the benefit of all around him when uttering the above quoted words for PW14 heard the deceased further say " they say we should leave work. What should I do with my education". PW14 said that accused 1 came back to him at the table where the two continued drinking the beer bought by him and that bought for him by the deceased. Towards the end of this bout of drinking the deceased called accused 1 who came back to report to PW14 that the deceased said "we should go". At this stage Mothobi was still outside. Accused 2 also was still outside the hotel premises around the gate where he had been left by others. In response to the deceased's expression that it was time to go accused 1 and PW14 went outside without finishing their drinks. They found Mothobi outside the reception area; and proceeded to accused 2 who was at his car. PW14 said it is at accused 2's car that he and Mothobi cocked their guns while accused 1 did not do so for his was a revolver and therefore does not need any cocking. PW14 said accused 2 was told "we have succeeded". PW14 said that while he and accused 1 were together at the back seat of accused 2's car he saw accused 1 examine his firearm to see if it was ready to fire. PW14 proceeded to inform the Court that he told accused 2 that "now that we were parting he also is responsible - that we regard him as a soldier like ourselves". Having said this to accused 2 who presumably parted for good with the other three before the deceased's death PW14 informed the court that "we went back to the hotel. The deceased was waiting for us and was in a hurry, Mothobi went to the deceased. They spoke to each other for a short,time and they agreed". In fact PW14 did not hear this conversation. He only heard when Mothobi explained at the door that the deceased and he had agreed. Then PW14, Mothobi and accused 1 and the deceased made for the deceased's car which was a short distance from the door leading from the reception area. When going to the car the deceased was carrying what could have been an ice-box. It could have been an ice-box for PW14 said it was cold and dripping with cold water. In fact when these four went into the deceased's car this parcel was placed between Mothobi and PW14 who were at the back seat while accused 1 and deceased were in the front seats with deceased taking the wheel. PW14 was sitting behind accused 1. When PW14 complained about the coldness of this parcel and asked if it couldn't be placed elsewhere the deceased angrily silenced him but PW14 took no offence at this. The deceased then drove his car and when outside the hotel premises he turned left and the car headed for Lithabaneng. Somewhere along the road, so said PW14, accused 1 elbowed him to shoot the deceased. PW14 took out his gun as the car was going past Bataung garage. He tried to shoot but his gun jammed. PW14 put back his firearm without the deceased noticing because he was too drunk. It is PW14's estimation that at that time the car was doing about 80 km per hour. The car reached the junction leading into Lithabaneng and stopped some 15 to 20 metres from the junction. This is where it should be recalled PW10 Mr. Bohloko saw it after knocking off from his office at night. PW14 said that accused 1 spoke to the deceased before the vehicle stopped. It seemed he had asked that he be let alight for he went to pass water. Deceased as well as Mothobi also alighted leaving PW14 inside the car. PW14 used this opportunity to fix the gun. After he had finished the others came back for they didn't take long. This time the deceased exchanged original positions with accused 1 who drove the car back to Maseru. When the car came opposite Lake Side Hotel PW14 overheard a conversation between accused 1 and the deceased wherein these words were uttered by accused 1: "He may well be there. Lets go and see him". PW14 said he felt as if he was dosing as the car went past the traffic lights and headed for town. He was aroused from this slip into slight slumber by Mothobi elbowing him to shoot. This time PW14 did not accept the invitation or instigation to shoot. Because PW14 had not exchanged seats with Mothobi the exchange between the deceased and accused 1 placed the deceased directly in front of PW14; while accused 1 who was now driving was in front of Mothobi in the deceased's car. The car went and stopped at the gate of the Prime Minister's private residence. Accused 1 alighted. At this time the deceased appeared to be asleep for he had drooped his head. Accused 1 didn't take long but returned. When accused 1 came to the car the deceased suddenly raised his head and accused 1 said to him "he is not there". It is indeed strange who was being referred to as not being there because the only man that accused 1 spoke to at the Prime Minister's private home gate said to this day he is wondering what accused 1 had come for that night. All PW3 Thabiso Nthako the gate keeper says accused 1 said was "(he) had come to see us". Apart from this accused 1 is said to have said he and his company were in a hurry bound for Leribe. It appears to me that whoever it was the deceased was made to think was there and in respect of whom the deceased's interest was aroused to the point that he seemingly acceded to the suggestion that he or she should be looked up at the BCP leader's home was just a calculated creation of accused 1's imagination, a ruse, a stratagem embarked upon till such time that the right moment could come for killing the deceased without arousing his suspicion beforehand that something so tragic was about to befall him. Indeed the wretched man after entertaining accused 1 with beer the latter sought to send him on pigeon's milk. The BCP leader's private residence is only a stone's throw from Lake Side Hotel i.e. hardly 5 or 7 minutes' brisk walk away. The nearest set of traffic lights to Lake Side Hotel lies between Lake Side Hotel and the BCP leader's home. PW14 told the Court that after leaving the BCP leader's home the car in which he and deceased and others headed for this set of traffic lights. With aid of street light PW14, while the car in which he was riding was approaching the traffic lights, noticed that Mothobi was ready to shoot. The firearm which PW14 was holding at the time was in hand. This is the firearm that he obtained from Mothobi in exchange for PW14's one which had earlier jammed and later been put right by PW14. Before the car could drive past the traffic lights, and because PW14 felt fidgety - and thought that his companions were equally so - and feared that the owner of the car might smell a rat and say "where are we going now" PW14 said as there was no option but to shoot, he fired his gun and almost simultaneously with that he heard other exploding firearm sounds and in the result he was not sure who fired first. PW14 ,says just before that shooting accused 1 had slightly reduced speed of the car but didn't turn towards Lake Side Hotel and instead headed in the Leribe direction (which was straight ahead) "even indicating that now we had failed to do the job". See page 271. PW14 said he shot the deceased once between the shoulders. He had pointed the firearm in his possession between the head rest base and top of the back rest of the front passenger's seat. PW14 said Mothobi shot about twice but that he was not sure as there were many sounds. Indeed the Court observed on the sketches and photographs that there were three entry wounds at deceased's upper back, between the shoulders. He said as Mothobi was on the right hand side he fired from a slanting position. PW14 said accused 1 fired much later with the result that PW14 even objected asking "why all this shooting even when it is no longer necessary". However it appears the deceased had not quite died after the first flurry of shots because according to PW14 "the deceased tried to raise his head. All along he had dropped his head. When he tried to raise the head was the time when the driver shot at him. Deceased made no sound at all. After accused 1 had fired at him the deceased fell onto the driver". It should be borne in mind that the deceased had a front gun shot wound that ran from almost the right nipple to the left nipple where the bullet appears to have exited. I have no doubt that it was in part because inferences from PW14's evidence would lead to the fact that this wound is attributable to accused 1 that Mr Govender sought and managed to elicit from PW17 Dr. Moorosi that this injury was superficial and that the fatal injury resulted from any of the three gun shot wounds whose entries were at the deceased's back. Of course in doing so Mr. Govender was not conceding that accused 1 who denied shooting at the deceased at all was liable for that wound. My difficulty with accused 1's explanation of how PW14 effected that injury lay in the explanation itself for there can be no reason why PW14 who owns to causing a fatal injury would boggle at a minor injury. That is the first hurdle. The second hurdle was the impracticability of the demonstration that accused 1 made outside Court and in the car where the Court saw for itself that again accused 1's mind was bent on fabricating and misleading the Court His explanation and demonstration were not only improbable but beyond all doubt false. On that score they should be rejected as a typical example of attempting to deflect the course of justice by resort to fanciful possibilities. It would be idle for Courts of law to permit that pervesity. PW14 said accused 1 raised the deceased and placed him properly on his seat. All this he said occurred while the car was in motion. When the car reached a little bridge slightly past the big fowl run it stopped and the deceased's body was disposed of in the donga near that bridge. The body had been pulled by PW14 and Mothobi to be disposed of thus. PW14 said he observed that accused 1 also got out of the car at this stage though he is not sure for what reason. After getting back into the vehicle Mothobi then occupied the front passenger's seat. PW14 was then sitting alone at the back seat where his hand stumbled on a bottle half full of gin or something of the sort. PW14 quickly opened the bottle and took a couple of swigs straight from it and fell asleep after handing the bottle over to his companions in the front seats. When he woke up he discovered that they had reached Hlotse. He had earlier said immediately after dumping the body and getting into the car he objected to accused 1's manner of swerving the car about while driving. In reply accused 1 said he didn't like to drive while people around him (passengers) were having guns in their hands. Then PW14 and Mothobi handed their guns to accused 1 who placed them somewhere on or around the dash board. Thereafter the vehicle maintained a steady course of movement on the road. In Hlotse the trio started moving to at least two places looking for liquor. It would seem the liquor that PW14 had taken after dumping the body had had a very intoxicating effect because apart from sending him to sleep all the way from Sekamaneng in Maseru to Hlotse in Leribe at the time he woke up at Hlotse his testimony is as follows in regard to the company of the two people he was with "I didn't know if they came with some other person or not. We took Butha Buthe direction having passed Hlotse using the old road leading to Butha Buthe. When we were at Agricultural area I woke up to find the vehicle had stopped for I had slept. I noticed that there was a person next to the window. Mothobi was explaining to him how we had fared. I got angry at them. I asked them to give me my firearm. At this time I was in a drunken condition and sleepy. They refused to give me the firearm saying we had not yet come to our destinatination. We had not come to stage where we were to abandon the vehicle and burn it. We didn't see eye to eye hence I chose to alight. I alighted from there with the understanding that police were there and couldn't come to harm me. That's when I parted with them and went back to Hlotse though it was some distance away. I went to Moojane's flat lines where I was staying. It was early in the morning. I had left the three of them. I knew the identity of this person that I left with Mothobi and accused 1. His name is Ngoana-a-Nduba. I don't know if this is his real name. (Interpreter says it means the child has given me problems). I had met Ngoana-a-Nduba in the valleys at our training centres. I was with him in Qwaqwa." The evidence of PW16 Telang Phatsoane otherwise known as Ngoana-a-Nduba goes a long way towards setting the record straight as he was not drunk when he was approached by accused 1, Mothobi and PW14 one night in 1991. (This was at Hlotse after Kimane had been killed). PW16 said these three men came to his home between 12 midnight and 1 a.m. on 10-9-1991. When they knocked PW16 recognised accused 1's voice. The trio were looking for liquor but PW16 told them it had been finished. PW16 was dealing in the sale of beer and hops. The trio invited him to go along with them to Motsoeneng's home. When these men came to PW16's door he didn't know by what means they had been travelling. He only realised that they had a car when, he came along with them to the top of the rise where the vehicle had been parked some distance away from his house. PW16 says accused 1 was driving and PW14 was in the front passenger seat; while Mothobi and he sat at the back. Mothobi was sitting behind accused 1 the driver. It is PWl6's evidence that these three men appeared drunk, very drunk. Notwithstanding that these men were so drunk they nonetheless made a decision to go to Motsoeneng's for more drinks. PW16 accompanied them. He stressed that even though he does take drink The had remained sober that day as he had been at work till just before the three men consisting of accused 1, PW14 and Mothobi awoke him. On arriving at Motsoeneng's they found that it had closed. From there they left for Tsifalimali which lies in an Easterly direction towards Butha-Buthe. At some stage during this travel PW14 gave accused 1 an instruction to stop the vehicle at once. Then according to PW16 we are told that PW14 asked "who is this man fellows" looking at PW16 as he asked the question. PW16 was at the back seat of the vehicle. PW16 went further to indicate that accused 1 even expressed surprise at the strange behaviour of PW14. In response to PW14's apparent and inexplicable lack of recognition of PW16 the Court was told by PW16 that accused 1 asked "how come you don't know this person. He is our person". To this PW14 is said to have reacted and said "No gentlemen I no more trust you. Give me my firearm". PW16 said accused 1 produced his own fly-wheel gun saying "here is my gun." Thereupon PW14 rose from his seat and groped for something about him on the seat and said "this is mine" referring to a gun apparently picked from where he was sitting. Then he cocked it and ordered that Mothobi should exchange seats with him. Thus PW14 came to sit next to PW16. At this time PW16 told the Court the he was "scared stiff". PW16 said then accused 1 started driving the car in a very rough manner saying "we are now going to die together". Meantime PW14 was holding his firearm - a factor which increased PW16's fright. It appeared to PW16 that accused 1 was annoyed with PW14's behaviour. Thus accused 1 drove the vehicle towards a sharp bend with corrugated iron barrier on the left hand side. He failed to control the vehicle which rammed mainly its left hand side against the barrier with the result that Mothobi hit the windscreen with his head. His body was hanging out of the door window, PW16 hastened for exit, his mind befuddled by strange events that he had observed with a sober eye. The attitude of Mothobi's body gave PW16 the impression that he had died or was about to die especially after Mothobi belched. The body seemed lifeless. PW16's frantic efforts to open the left hand rear door were to no avail amidst PW14's bawling that the door be opened for him as he couldn't open it. Meantime accused 1 had managed to support Mothobi on his knee. At the time PW14 managed to get out and saw Mothobi's body resting in this rather ungainly posture he staggered closer and threatened to shoot and finish off "this man who was supported on accused 1's knee". Then PW16 said to PW14 "you won't do that. You can't shoot a person in my presence". PW16 urged accused 1 that they should take Mothobi to a doctor. Accused 1 and PW16 then lifted Mothobi's limp body out of the car and carried him hoping to take him to Dr. Hoohlo who stays in a nearby village. PW14 was left behind no doubt trying to focus on the recent events with a hopelessly befuddled mind. Along the way Mothobi came to. He rejected any attempts to take him to a doctor or any hospital in the vicinity. He promised that depending on how he felt he would proceed to Morija hospital the following day. Morija hospital is more than 100 km from Hlotse, while the Hlotse hospital is hardly three kilometres from the scene of the crash. PW16's reaction to this strange behaviour of Mothobi as related to Court by the former is ".... As the body that felt the pain was his (Mothobi's) I couldn't say he should go and see the doctor right now for you nearly died" . See page482 of my notes. When it appeared that Mothobi was sufficiently able to walk on his own PW16 started quizzing accused 1 about his and the others' drunkeness, and about where they had had their drinks. Later their conversation was brought to an abrupt end by the parting of their ways. However the following day PW16 met accused 1 at around lunch time. He asked what Dr. Hoohlo said about the vehicle that crashed against the barrier. The amazing answer of accused 1 to this was "he knows I always make them (vehicles) fall over". PW16 further asked accused 1 why he and his colleagues came to him (PW16) carrying firearms and expressed his annoyance at that behaviour. To this accused 1 is said to have said "well it was just a matter prompted by drunkennesss". PW16 found it strange that accused 1 never indicated where he and the other two had come from before coming to PW16's place. So much so that he even said to accused 1 "from now on you should know I will no longer trust you for you go with people who are armed". Accused 1 is said to have apologised for that behaviour and the two passed it over in silence thereafter. They never had any further discussion about the vehicle either. Nor did PW16 bother to see if that vehicle came to be removed at any stage. He met PW14 more than a week later. This was after he had been rung by police at work in connection with the ride he had had "in that car". It puzzled PW16 as to who might have led police to him for they just called him and told him that the deceased had died. It should be clear then that PW14's evidence that he parted with PW16, Mothobi and accused 1 before the car-crash accident cannot be accurate. But PW14 himself said after taking the swig from the bottle he found on the back seat immediately after dumping the deceased's body in the donga he felt drunk. PW16 who only came into contact with PW14 at PW16's door and continued in each other's company till after the accident made it clear that PW14 apart from behaving strangely seemed to be very drunk. Thus events which followed after the body had been dumped and PW14 had taken this liquor are a matter of drunken bravado and poor recollection by PW14 whose story otherwise in material respects relating to the killing remained untarnished, and further enjoyed support of different and unrelated witnesses and or events. For instance, Mr. Bohloko PW10 who didn't know that PW14 was In the deceased's car supported PW14's evidence that the car parked at the turnoff to Lithabaneng village around the approximate time mentioned by PW14. The same pattern was maintained in relation to PW3's story. The detailed account he gave of the movements he and Mothobi and accused 1 and 2 embarked on gave credence to his tale given as it was with particularity at each turn bordering on boredom. Furthermore in his evidence PW14 said that when it turned out that the men on "dangerous mission to kill" could not see the President of LUBE he made it plain that accused 2 and no one else from the Committee of LUBE would deal with the men on that mission. It so happens that at all times these men were in company of anybody from the Banks in Maseru that one would be none other than accused 2. Again whereas accused 2 would see to it that the men on mission were supplied with food, money and drink, as the scenario unfolds we see Mothobi seeking nobody else's ear or attention but the President's. To the utter surprise and dismay of PW7 a member of the committee who as such should be kept informed (but said she was not) about events including the question of disbursements of the Union's funds, evidence shows that accused 3 ordered PW7 to give M15-00 to Mothobi a man who was not only closely linked with "the killers" but was in fact one of "the killers". If accused 3's instruction to have the M15-00 given to Mothobi was innocent why is it not disclosed to PW7 what the purpose was for having Mothobi given that money, yet by virtue of her office PW7 was legitimately entitled to be informed? Why the cloak of secrecy drawn against her by accused 3. Why this hole and corner method of treating an office bearer in a senior position as if she counted for naught? These are some of the questions which by virtue of exercising his right to remain silent accused 3 has avoided either answering or commenting upon. Not that he bears any onus to prove his innocence, but that in a matter of the shift in the evidential burden the Court is entitled to hear what he has to say for in ordinary course of events it cannot be consistent with innocence that things adverse to a man's innocence are said in his presence without him giving a stir however unassertive he might be. Indeed this does not detract from the principle that the onus to prove the guilt of an accused beyond doubt lies on the Crown throughout. Thus in a case where an accused person decides not to give evidence the Crown is not relieved of the burden to prove beyond doubt that he is guilty. This proof would in turn be gathered from evidence led and reasonable inferences to be drawn from the accused's silence in the face of evidence pointing towards his guilty knowledge of events from which he prefers to be shielded not by innocence but by fear that he might not cope with the manifestation that innocence is inconsistent with his conduct. It is a fact that the strike had been going on for at least two to three months when the deceased died. It is a fact that towards the end of this period the strike seemed to be losing support not only of the members but the moral one from the public some of whom were initially sympathetic to the strikers' course for variety of reasons. In order to boost the members' support for the continuance of the strike acts of intimidation directed at top management of the Banks were embarked upon. A letter was written by PW7 on the instructions of accused 3 that certain individuals in the management cadre who were perceived to be interfering with the strikers' must be warned to desist from that practice. Indeed overt acts of intimidation against this category of people was made manifest by the manner in which the letters were delivered. It is said accused 3 was present in a vehicle which was roughly driven and stopped by him near the side-door of the Standard Bank for the delivery of this kind of letter. PW15 formed the impression that either the driver was insane or reckless or that the vehicle was out of control the way it scared him. Furthermore incidents of intimidation such as throwing of stones on the roofs of people like PW20 'Makehiloe Beukes became manifest. Suspicious movements of accused 2 and 3 to a place known to be frequented by PW15 Rahlao were noticed. There was also evidence by PW15 showing that he was made an object of scorn by strikers such that if he happened to drive past near where they were congregating in a public place they would jeer, shout and point at him, and engage in acts which made him feel unsafe. Evidence also suggested that Mr. Mojaje's property was burned. He was then in the managerial cadre at Barclays Bank. It is a strange coincidence that at the time the strike was going on these acts of intimidation seemed to be confined to this category of people. While accused 3 may not have been aware of all of them there were some that he must have been aware of by virtue of his position as the President of LUBE. It behoved him then in respect of those acts of intimidation that he was aware of, in an endeavour to remove any perception that the coincidental acts of irresponsibility confined to the management were in any way connected with or condoned by the leadership of LUBE, to call them to a halt. While indeed there is evidence that an attempt was made by accused 3 to tell his followers at a meeting in Mohale's Hoek that use of force was to be discouraged, it is most astonishing that when the deceased's death occurred and despite the fact that a real possibility existed that mistakenly members of LUBE could be the prime suspects accused 3 does absolutely nothing by way of addressing those concerned that the leadership of LUBE dissociates itself from any possible link with that barbaric act or that in the remote possibility that any linkage between LUBE's membership and the deceased's death existed then that is condemned and not condoned. Instead of there being even the minutest evidence in the direction set out above with regard to accused 3's conduct all that one hears is deafeningly loud silence. All that one sees is blindingly bright absence of light. The same goes for accused 2 in this connection. There is not an attempt by any of them to relieve the deceased's widow of the obvious perception that membership of LUBE might be connected with her husband's death; to assure her that if so, then the leadership of LUBE does not condone the dastardly act of murder. It is a fact that none of the guns used in killing the deceased is before court. Not a single one of those guns was produced in evidence. The Court had learnt during the course of PW14's evidence that after accused 1 had expressed anxiety about being a driver of a vehicle in which passengers were holding guns, and having expressed his. exception in that regard by roughly swerving the car from side to side at high speed immediately after the deceased's body had been tossed over the edge of the donga, the guns were handed to him. Either this is not true, or in fact if it is true then the guns found their way into their respective owner's hands at or after the stage when accused 1, Mothobi and PW14 visited the home of PW16 at night. I come to this conclusion because the reliable evidence of PW16 shows that after he had joined the trio and after PW14 in his befuddled mind questioned the presence and identity of PW16 the latter heard PW14 asking where his own gun was whereupon accused 1 said "here is mine". In the same instant PW14 felt for his on the seat, found it and cocked it saying he did not trust his company. I have no hesitation in rejecting accused 1's evidence that he and Mothobi were not holding any guns that day and that therefore every gun shot wound on the deceased is ascribable to PW14's sole acts. This goes further to show that accused 1 is embarking on a vain attempt to conceal his own vile acts as well as those of his friend Mothobi. A further reliable piece of evidence by PW16 is that after the car had crashed PW14 threatened to kill Mothobi with a firearm which was continually in his possession. It would seem then that the respective culprits disposed of their firearms including that of Mothobi who couldn't dispose of his as he had been unconscious until being moved a considerable distance from the scene of accident, in some way obscure to this Court. Of course a possibility exists that if Mothobi's firearm was in his pocket or strapped to his body he later disposed of it in some way obscure to this Court. What remains as a fact is that Mothobi never returned that firearm to PW6 Tuoane the true owner. As I indicated earlier evidence led by PW14 relating to events after he had taken mouthfuls of liquor from a bottle found by him on the back seat of the deceased's car is largely reconstruction and a product of an alcohol-ridden mind. However the evidence relating to events subsequent to that night and day is reliable. What is important is that there had been a common intent among the culprits to dispose of the deceased's car by burning it. Thus the fact that this intent was frustrated by the fact that the car crashed and as a result was rendered immobile does not affect the charge of theft preferred by the crown against the culprits in that regard. PW14 was cross-examined closely in an effort to show the Court and bring to his attention that he had possibly been tortured and pressurised by police to incriminate accused 2 and accused 1 falsely. The Court paid particular attention to questions put to PW14 in that direction and formed an opinion that PW14 did not go out-of his way to deliberately incriminate those two falsely. The question is if he was so pressurised why would he spare accused 3 from false incrimination. It appears to me that PW14 paid heed to the caution that he was given by the Court in terms of the Criminal Procedure and Evidence regarding accomplices. He appreciated that he is liable for the charges preferred by virtue of his participation in the perpetration of the offences committed. It is clear to the Court that PW14 and PW16 know each other. It is a fact that they met and knew each other in the valleys during the struggle of BCP for liberation. The two are colleagues-in-arms. In his evidence PW14 referred to an occasion which took place the next day following the one on which he parted from his companions. On that subsequent occasion he recalls that Mothobi came to him and appeared to have been in pain on the neck, hand and foot. He observed that Mothobi's neck appeared to have been swollen. He helped wash Mothobi's injuries. Late in the day and after Mothobi had left accused 1 also came to PW14. But PW14 was not prepared to hear anything from accused 1. All he demanded of accused 1 was to give him his gun. PW14 found, it unacceptable that accused 1 had sent Mothobi to him, purportedly to fetch accused 1's gun therefrom. PW14 maintained that accused 1 had collected firearms and kept them at the time he had swerved the car roughly immediately after the deceased's body had been tossed over the edge of the donga at Sekamaneng just outside Maseru City. The conversation didn't last long because PW14 was at his work-place where he feared his colleagues at work might over-hear the conversation between him and accused 1. Two days or so afterwards PW14 went to accused 1 at Dr Hoohlo's premises. During the course of the conversation PW14 heard accused 1 saying l31 "now that we have had a collision we did not reach our destination". PW14, felt uncomfortable when realising that accused 1 was including him among those who knew of the collision of the vehicle. But of importance regarding how the car was to be disposed of appears at page 273 of my notes on PW14's evidence that "we had not come to the stage where we were to abandon the vehicle and burn it". So clearly burning was the intended mode of getting rid of the car and likewise the incriminating evidence the car posed for the culprits in it. Police later came to arrest PW14 after the latter had learnt that Mothobi's house had been surrounded by police and Mothobi subsequently picked up. It is PW14's evidence that when asked if he would be willing to give evidence he took some time before he agreed. He said that as an accomplice he expected to gain no benefit from the Court, and that he hasn't been made any promises. Under cross-examination PW14 denied that he knew that his father's death was in any way connected with tortures by BNP as he (PW14) was away at the time his father died. He further indicated that between 1974 and 1979 while working in the mines at Welkom he didn't meet anybody talking about Trade Unions. He said accused 1 was a driver at Qwa Qwa driving party vehicles. He said accused 1 did not take any instructions from him. He maintained that in order to give instructions to accused 1 he would have had to go to accused 1's commanders to do so. He explained this by pointing out that "when I am not at my camp and I have gone to other people's camp no right to give instructions there unless I give instructions". am instructed by commanders there to He indicated if he had to go on a mission with PW8 he would give instructions to PW8. "For you are superior....? (silence) I put it to you you are selective how you give answers ? I have such a right". PW14 admitted meeting Mothobi during political party meetings before Kimane's death. Questioned why he did not mention this in his evidence-ichief he said he did not find it necessary. It was subsequently put to him that he omitted to mention that he used to be at political party meetings with Mothobi because he wanted to show that his meetings with Mothobi were sinister. PW14 denied this charge and, truthfully in my view, said "I stated that Mothobi ultimately became my friend and we drank together". He stated that he had no interest in the impending strike till invited to give assistance to its cause. He said he didn't think the strike had any political connotations; or that if it did he was not aware. His only sympathy with the strike was because of involvement of people he knew such as his friend Mothobi. PW14 said that he is no member of the ANC. PW14 stated that the first time he felt sympathy for the strikers was when the strikers started begging for food and drinks. He felt obliged to help with these commodities only when he could afford. Asked if the solution was not for the strikers' demands to be met PW14 said " it didn't occur to me to do that". as I was not working together with them(strikers) He further stated that when first approached by Mothobi who said the strikers wanted the strike to be expeditiously conducted he understood him to mean that the strikers would effect that by sitting down as they had done so. PW14 accepted the view put to him by accused 1's counsel that Mothobi in saying that the strike had to be expeditiously conducted was not beating about the bush but giving him information piecemeal. It is apparent from PW14's replies to counsel that Mothobi did not expand on the meaning of the word "expeditiously". At the subsequentoccasion when according to PW14 Mothobi spoke plainly about expediting the strike he took this to be important because when further asked "Did Mothobi explain what was to be done ? (PW14 answered).. I said some people would have to be hurt or killed so as to intimidate them" See page 301 of Court's manuscript. PW14 says the meeting when he and Mothobi conversed about the above was "after Mothobi had come straight about his request". "That is when he said it was better not to fetch people from across but get people locally ? Yes This was when he would give you the story piecemeal Yes. ? All of a sudden he said you should come and torture people or kill them ? Not that abruptly; but I said it was after he found me cleaning a firearm". In his examination-in-chief- PW14 had at least three times referred to his firearm as a 3.8 calibre. Under cross-examination he insisted that he had said it is a .38 calibre weapon. To this extent it is plain that his attempt at ascribing his mistake regarding the description of this weapon to Counsel for accused 1 is vain. It surfaced from cross-examination that this firearm was not licenced. PW14 explained that because Mothobi had indicated that people from outside who were in Banks management were earning higher salaries than the rest of other employees, "he understood these to be white foreigners". See page 310 of the manuscript. But because there was no solution to the problem afforded at the "sit-downs" by strikers they decided to come up with the new plan to threaten the management of the Banks. This happened after Mothobi had approached PW14 for use of the latter's firearm. Strangely though at this stage when Mothobi had asked for PW14's gun and had told him that the management were to be threatened Mothobi had not asked PW14 for any other help such as PW14's participation in that regard. This state of affairs and PW14's attitude come out clearly in the following interchange between Mr Govender and PW14 in the proceedings at page 311 of the manuscript :- "Didn't you think this a critical thing in Mothobi talking of threatening Bank management ? I felt it was. Yet you didn't advise him against it ? I wouldn't in a matter I was not concerned in (sic). But he had asked for use of your gun ? Yes Didn't you think things were out of hand didn't take consideration of that. You are older and wiser than him(sic) ? I ? I don't know. You are 40 ? Yes You realised this was dangerous ? Yes But you didn't advise him ? I wouldn't advise him alone But he was taking you into confidence ? Yes He was your friend ? Yes He was a fellow comrade couldn't affect me. Did this affect people you were sympathetic with ? Not on Bank matters. This ? Yes. You realised it was dangerous ? Yes You didn't advise Mothobi for it didn't affect you Correct. I put it to you that you didn't advise him because you were the initiator of this plan ? 1 wouldn't have a plan about Banks when I didn't work at Banks". ? PW14 was referred by Mr Govender to a portion in PW14's evidence-in-chief where this witness had indicated that Mothobi brought accused 1 and PW8 to a pub and referred to accused 1 by a name other than the only one of Rama1eke by which PW14 knew accused 1. PW14 explained that he forgot this name because it was new to him. Moreover Mothobi resorted to using that of Ramaleke because P W4 and PW8 used it. It was put to PW14 that he was untruthful and that he applied this tactic (of pretending that Mothobi didn't know accused 1 to be Ramaleke before Mothobi met PW14) "to give this meeting with Mothobi, you and accused 1 a sinister connotation...?" Suprisingly it was never suggested to PW14 what "the other name" purportedly used by Mothobi in referring to Ramaleke was. In this regard the court was denied the opportunity to observe what PW14's reaction would be to the mention of this other name if it is so important that its omission in preference to the name of Ramaleke has the tendency to give the meeting a sinister connotation. The sketches and contents of Exhibit "C" prepared by Professor J. A. Olivier the Chief State Pathologist in the Department of Forensic Medicine in the University of the Orange Free State, Bloemfontein are very important in so far as they tend to corroborate the evidence of PW14 both as to the actual shooting and to inferences to be drawn from the relative sitting positions of the occupants of the deceased's car and relative locations of entry and exit wounds on the deceased's body. PW14 who said he was sitting direct behind the deceased, told the Court that he shot straight below the deceased's neck and direct between the deceased's shoulders. He said he shot only once and was satisfied that the deceased would die from this gun shot wound. The Professor's sketch showing the back of the deceased's chest shows that the entry wound C1 leads to the exit wound C2. This C1 is just a short distance to the right of the deceased's spinal column. C2 is the exit wound corresponding to the entry wound C1. This C2 is just a short distance to the left of the sternum. In my view and basing myself on the sitting position of PW14 this wound C1 through C2 can safely be ascribed to the firing of the shot that caused it, by PW14 probably holding the firearm in his right hand. Though the evidence didn't reveal that he held the gun in his right hand the demonstration he performed to show how he fired the gun shot indicated that he used the finger on his right hand to pull the trigger when he did so. To my mind C1 through C2 tract lies in an almost straight angle in relation to the sitting position of PM14 and in line with his evidence on this issue. It was therefore not without cause and appeal to common sense that in disputing accused 1's evidence that only PW14 did all the shooting, Mr Mdhluli said PW14 would have had to jump from his sitting position to the position occupied by Mothobi in order to effect the wounds A1 through A2 and B1 through B2. According to Professor Olivier's sketch A1 lies almost half-way between the right shoulder and the spinal column (at the back) and its corresponding exit wound. A2 lies only 2 cm to the right of the sternum the bullet having entered the back of the deceased 8 cm to the right of the midline of the spinal column. To my mind this indicates a decissively less acute angle than the tract in C1 through C2; thus suggesting the shot fired to cause A1 through A2 was by a man sitting in Mothobi's seat or from that direction. With regard to B1 through B2 tract the indication on the sketch is that a bullet entered the deceased's back midway between A1 and C1 on the right-hand side at B1; travelled at an angle towards the left and and exited "just to left of the sternum" at B2 in front. It is impossible to comprehend how PW14 would have been holding his gun to effect this B1 through B2 wound given the angle of its tract, saying nothing of the position where Mothobi is said to have been seated. I thus find no difficulty in rejecting the suggestion that PW14 effected the wounds lying in the tracts A1 through A2 and B1 through B2. See paragraphs falling under 8.1 of Professor Olivier's report. Concerning the wound tract D1 through D2 the Professor's sketch shows that the entry wound was on the right front part of the chest at D1 and the exit one on the left at D2. At paragraph 8.2 of his report the Professor also states that " Evidence that this projectile also penetrated the sternum" exists. This gives a strong suggestion that PWl4's evidence is worthy of credit that accused 1 also fired at the deceased. Accused 1 however denies this and says this tract of wound too is ascribable to PW14. Suffice it to say the Professor says nothing about the calibre of weapons used save that he refers to sizes of wounds on the deceased's body. But the Court learnt from PW14 that weapons used were two 7.65 calibre weapons and one .38 firearm was used by accused 1 while Mothobi and he used a 7.65 weapon each. Thanks to evidence of PW2 Major Telukhunoana, a spent bullet which was found between the inner lining and outer cloth of the deceased's blazer (with a hole on the left breast area of the inner lining to account for the bullet's entry through it) answered to the use of a .38 weapon. The position in which this bullet was found gives credence to PW14's evidence that a .38 firearm was used also to fire at the deceased. Yet accused 1 who was present throughout is silent on the fact that a .38 firearm was used. If PW14 was accountable for all the shooting why would he readily say that the wound he effected must have killed the deceased and baulk at a relatively less serious one which originated from right and terminated at left front of the deceased's chest? How would PW14 have known that PW2 would make his precious discovery that would go such a long way in corroborating PW14's evidence that a .38 weapon was used. It seems to me that the fact (as indicated by Professor Olivier) that the projectile penetrated the sternum must have been impeded by it such that on exit the projectile merely had sufficient penetrating power to enter the blazer's inner lining and not enough to exit through the outer cloth and probably be lost for good. Thus through sheer machinations of fate accused 1 is irretrievaly entangled in a web from which he tried very hard to escape by resort to conjectures and lies. If accused 1's demonstration of how PW14 effected the lateral injury to the front of the chest is to be believed, how would the weapon, assuming without conceding it was only one weapon, which had been ejecting 7.65 cartridges suddenly discharge a .38 calibre projectile. I must say in purveying his false story accused 1 must have reckoned without implications of this important fact rendering his story worthy of rejection as false beyond doubt. What is clear to me is that accused 1 was bent in suppressing the truth. Yet the old adage seems infallible that of all things that the truth is intolerant suppression is the foremost. I was told by accused 1 that the only man who had a gun in the deceased's car was PW14. Yet at page 479 of my notes PW16 Ngoana- oa-Nduba or Telang Phatsoane says of PW14 - he was a person who appeared to have just woken up " at the time. I gained the impression that he knew me. When he woke up he found me present. He said give me my gun. Accused 1 said here is my own gun and he produced it and I saw it. I saw it to be a fly wheel (type) . It has a wheel. It (the wheel) is round and it has holes. The wheel goes round and round and as you pull the trigger it emits a bullet. I went as far as Standard IV around 1971. (PW14) Mosia stood up from the seat where he was seated. He found another gun there. It was a small one still but had a magazzine. I don't know what it is called but I saw it is one using a magazzine". In the light of this evidence by an independent and unbiased witness how can a Court come to any conclusion other than that as to the number of firearms PW14's version should be accepted and that of accused 1 rejected. Mr Govender for accused 1 submitted that on account of the fact that there was no light in the interior of the car PW16 could not have seen the gun that he says he saw. Indeed during Mr Govender's absence Mr Sooknanan who held the fort for Mr Govender developed that contention on the basis that regard being had to the ungodly hour during which PW16 had been aroused from his sleep his senses must have been playing tricks on him. To his credit Mr Govender cross-examined PW16 on this issue about how PW16 could have seen the gun in accused 1's hand when there was no light in the interior of the car. PW16 said he saw it by means of the head lights of the car. I agree such light could not have helped PW16 see that gun; yet I have no doubt that he saw what he claims he did. Though he failed to say by what means this was the case to me it seems plain that the panel lights must have helped him see that gun or even light from outside be it star or moonlight. If PW16 was bent on inventing the story that he saw this gun he could have easily said he saw it through the courtesy light in that car. But because this was not the case he was puzzled being a simple man who never advanced beyond standard IV at school, how it was he saw what he said he saw. Thus my view is that since the headlights were on, and if the deceased's car is like a majority of other cars, when the headlights were on the panel lights must have also been on. This is in my view a common sense explanation to the means by which PW16 saw the gun in accused 1's hand at the time. Mr Govender suggested that the long explanation given by PW16 on how he saw this gun cannot tie up with the brief period he claimed he saw the gun. But it is a well known fact that words are more round about in expressing the act of perceiving and the actual event or object perceived, than is the process of sight. Moreover under cross-examination at page 496 of the Court's manuscript appear the following :- "Accused 1 was sitting in front and could see better than you ? Yes. It was dark ? It was not that dark. I could see in there. The only lights were headlight ? Yes. None of the headlights were thrown in the car True. ? "It was at night ? Yes So it was dark anything. ? Not so much as not to see You could see formation or outlines of people agree I could see. ? We Not as dark as all that. But as you could see this pen ? Yes. If I put the pen on the floor and it is dark in the house but there is a flash outside ? I can't see. ? Darkness in the So it was dark in the vehicle vehicle is different from darkness in the house - in a moving vehicle. How is it lit in moving vehicle headlights you can see". ? When you light Significantly the words underlined above don't necessarily mean the witness can see inside the car by means of the headlights but rather that when those are lit even though it is not through them that one is able to see yet, it appears when they are lit something enables one to see inside. That something cannot be anything other than panel lights. Moreover he has persistently indicated that it wasn't that dark in there. Furthermore if in fact PW16 didn't see what he says he saw the question remains unchallenged that he heard the words uttered by accused 1 namely "here is my own gun". Could his auditory senses have made common cause with the visual ones in playing tricks on his perception? If so, then the following text at page 483 of the Court's manuscript effectively exposes accused 1's deceit and sounds a final death-nell to it : PW16 said : "We parted company with Mosia where the vehicle crashed. I went to my home. The following day I saw accused 1 at lunch time. He was normal and sober. I spoke to him. 1 asked what did Dr Hoohlo say about that vehicle. The one that was involved in a collision. He said, he knows I always make them fall over. I kept quite when he said so. I asked him why they came to me carrying firearms. This had annoyed me. He said 'well it was just a matter of drunkenness'. He never indicated where they came from before coming to my place". I have underscored the phrase: I asked him why they came to me carrying firearms to indicate that PW16 was not just referring to a firearm carried allegedly by PW14 alone but firearms carried by PW14's company particularly accused 1. Assuming then that accused 1 and Mothobi after the body of the deceased had been disposed of were under PW14's domineering influence to drive to Leribe why is it that the trio are led to PW16 by accused 1 who knew PW16's home and not by this domineering character who according to PW16 had never been there before. I loosely say accused 1 led them there for it was he who announced his presence and revealed his identity to PW16 before PW16 could let the trio come into his house. Again why does accused 1 after the accident and while the domineering character is trapped in the crashed car not thank his luck and tell PW16 not to open for PW14 to free him? Why doesn't accused 1 seize this moment to go and report the incident of the deceased's murder by PW14 to the police? Indeed why doesn't he report to Dr Hoohlo that someone has forced him to drive Dr Hoohlo's friend's car which has even crashed, in an endeavour at least to let Dr Hoohlo to break the news of the incident to his friend's wife? This appears to have been only something natural to do if innocence was a factor in accused 1's actions. I am fortified in this view by the fact that PW16 mistakenly thinking that the car that crashed belonged to Dr Hoohlo inquired of accused 1 "What did Dr Hoohlo say about that vehicle. The one that was involved in a collision....?" Instead of telling PW16 the truth accused 1 chose to evade that question by lying and saying "He knows I always make them fall over". But accused 1 is an employee of Dr Hoohlo and he knows that the deceased is Dr Hoohlo's friend. It stands to reason then that there is substance in the evidence that he used this knowledge to lure the deceased to his death. Otherwise he would have done any of the natural things suggested above if he had no evil designs on the deceased on the day the latter met his death. Indeed to my mind doing any of those common sense things which is consistent with innocence would have undermined the conspiracy to threaten and or to kill Bank management personnel perceived to be obstructing the Banks' strike. I have dealt with objective factors in Professor Olivier's report which tend to corroborate PWl4's evidence. An extension of such factors is also found in PW2's evidence. PW16's evidence in so far as it reveals that he bears accused 1 no malice yet it exposes that he has tried to conceal the truth that he also was armed, is of utmost importance in providing a solution to the otherwise puzzling circumstances surrounding the inquiry for the truth in this case. Of further utmost importance are objective factors discovered at the scene providing the notion that robbery was not the motive for killing the deceased. Such factors are provided by the fact that the deceased's gun and ammunition were left lying around the spot where the deceased's body was later discovered. None of his other personal property was removed from him except the cold liquor that PW14 said he and his companions freely helped themselves to for purposes of expunging what he had done with his co-killers. I don't think the deceased was killed so that the killers could drink his liquor. That was not the motive. Absence of motive in that regard therefore gives credence to PW14's evidence that a reward had been a factor for the killing of the deceased. Such a factor cannot be treated in isolation from the activities of accused 2 and in turn those of accused 3. More of that later. For the moment I should deal more directly with the evidence of the two accused who gave evidence. These are accused 1 and 2. Accused 1 in his sworn testimony said he was born upwards of 32 years back at Quthing and acquired education only up to Standard VII. He said he heard evidence led. He fled Lesotho in and 1984 and went to South Africa when the then Government alleged that he was in league with insurgents. He and his father were BCP members. It was when he was working in President Steyn mine in Welkom that he met with BCP Committee resident there that he was recruited and he joined the Lesotho Liberation Army (LLA) the armed wing of BCP in exile. He accordingly went to the military operation centre in Qwa Qwa generally referred to as the valleys. It was in these circumstances that he met and came to know PW14 and PW8 as well as PW16. Accused 1's position was junior to that of PW14 who was a commander in a separate company. Accused 1's position was low being that of a trooper. Accused 1 was the BCP leader's driver at the time. After the hostilities came to an end with the toppling of the BNP government by the Lesotho regular army, accused 1 on the indication of the BCP leadership that the LLA should lay down arms as the BCP was embarking on negotiations with the Military Government in Lesotho came back home to Quthing, Lesotho in 1989 till 1990 nursing a gun shot injury deliberately inflicted by PW16's brother one Khotso Phatsoane. This incident nonetheless did not sour relations between accused 1 and PW16. After 1990 he came down to Maseru and lived at the BCP leader's home driving for the leader for a brief period of about a month before proceeding to Leribe where he was employed by PW22 as a driver till the time of his arrest. It was while thus living and working in Leribe that he and others met Mothobi and became drinking buddies with him. Accused 1 testified that he learnt from Mothobi who hadn't gone to work on the particular day that the Bank employees had gone on strike on the question of salaries increase. He gained this information over drinks after knocking off from his work in the evening. That day PW14 and PW8 were not present. But on some subsubsequent day at Mothobi's house in the presence of PW8 and PW14 the question of the strike was discussed. This could have been around 30th or 31st August 1991. In answer to the question who did most talking accused 1 said the conversation was between Mothobi and PW14. Accused 1 further said he and PW8 never said anything concerning the strike at that meeting. Nor did Mothobi ask him and PW8 to assist in the strike. Accused 1 denounced any suggestion in evidence led for the Crown that the first meeting held at LAKE SIDE, Maseru where Mothobi, PW14, PW8 and he were present, is where the discussion concerning the strike was held. This is indeed amazing in that his own Counsel Mr Govender in fact put to PW8 the following questions "If he (accused 1) said he came to Lake Side where matters relating to the strike, (would be discussed what would you say) ? I stated what I went there for. I don't know about it. If he said he came to Maseru about the strike (would you deny) ? No." See page 213 of the manuscript. This alone shows that accused 1 is at daggers-drawn with his own Counsel on a matter where it is only fair to conclude his counsel got the instructions from him. Indeed Mr Mdhluli allowed accused 1 no quarter regarding this apparent conflict between him and his counsel on this aspect. The text is as follows : "What were you doing with accused 2. You were part of a conspiracy to use violence when negotiations had failed ? No. No! problem with you is that it was suggested in cross- examination (of crown witnesses) that you were approached to assist in the strike so that it may succeed not that you would kill. To assist in some way; be it moral or financial support. Suggesting you knew something about the strike ? Be it assistance or death or any other manner I had never joined venture with strikers. It is puzzling that you seek to keep a distance from the strike even before it can be said you were involved in Because I never got involved the killing anythere. ? Meaning the suggestion that it was said you who were non- Yes, Bankers should help is a non-starter because I was never individually or collectively asked to assist in the strike. ? Even this strike was given a racial connotation; that it was between blacks and whites. It was given a political connotation that therefore, if you did anything, you (only) sympathised and gave some support to the strike- Altruistically sympathising with Basotho; that whites were using black surrogates (to oppress) ? I was not there when all this was done. So I don't know anything about that. A question was put to PW8 Fusi Koetje. It says if he (meaning you accused 1) came to LAKE SIDE to discuss matters relating to the strike can you WALK TALL (alias said I can't Fusi KOETJE) dispute that. WALK TALL ? I hear. And the suggestion there is clear that you came to LAKE SIDE to discuss the strike. This was put to WALK TALL. Yet you want to distance yourself from the strike. There is nothing unbecoming in coming to LAKE SIDE to talk about the strike ? Because not on any day did we ever come together to talk about the strike or help it. This was put on your behalf ? Maybe he (my counsel) merely asked him that well knowing I would not say so for I never said to my lawyer that I came to LAKE SIDE about the strike. PW8 FUSI was told that as a former military man and ? That is not political activist you were concerned so. PW8 was asked if he could dispute that you were concerned. He said he couldn't. I want to know if you were concerned ? It had concerned me. This is contrary to your denial that you came to Maseru because of your concern ? (silence). What is on record is that it was put to PW8 what his response would be if told you had come to Maseru about the strike. (Do you) think that was a mistake to put to PW8 that question ? I have no knowledge. Even though you deny being involved in the death and the fact that the deceased's death was connected with the strike in fact it was ? On my side it isn't. I say to you that you want to put as much distance between yourself and the strike and accused 2 notwithstanding that you were together with him and Mothobi on no less than two occasions ? I know nothing about the strike hence my keeping this position for I know nothing about it. Yet when you were at Lancer's Inn with Mothobi you could ? For I was not connected with it. almost touch it Yet when you didn't come to talk about the strike with Mothobi in Maseru you can't say why you came ? I had accompanied Mothobi to meet his friend. About what ? I don't know. Accused 2 was one of the forces behind the strike. A moving spirit Despite what you say I know nothing" ? See pages 648-650 of the manuscript record. Although denying that there was any meeting at LAKE SIDE as the evidence by crown witnesses suggest accused 1 proceeded to tell the court that however he had occasion to meet Mothobi PW14 and PW8 at LAKE SIDE. He explains that he found them already there. He says he had actually put up at Mazenod the previous day when he had attended the ritual in honour of his sister who had graduated into a traditional medicine woman. He says Mothobi had told him apparently while in Leribe that he would be in Maseru the day following accused 1's departure for Mazenod and that the next day they should meet at LAKE SIDE at 3.00 p.m. in order to make good their way back to Leribe. It was therefore when accused 1 found Mothobi in the company of PW14 and PW8 that they all drank beer. While this drinking was going on, at some stage Mothobi rose and said he was going to fetch his friend who would give them a lift to Leribe. Accused 1 said he had taken much drink at Mazenod that day such that he was already drunk when he took further drinks at Lake Side where he had remained for about 30 minutes before Mothobi rose. Then Mothobi came back 15 minutes later announcing that he had come along with the friend whom he had left in the car at the gate to LAKE SIDE Hotel. The party consisting of Mothobi, accused 1, PW14 and PW8 left the bar and made for the car parked outside the Hotel premises where they met accused 2. They got into the car. Mothobi took the front passenger's seat while the rest sat at the back seat. They greeted the driver i.e. accused 2 and introduced themselves to him. Accused 1 introduced himself to the driver as RAMALEKE the others as WALK TALL and MOSIEA. Mothobi's friend said he was CHAKA. Thereupon, so the story goes, Mothobi told the occupants of the car that it had problems therefore it couldn't take them to Leribe as he had promised. Then the five left in the car for some place "whether it is Khubetsoana or somewhere else we got to somewhere as they said they were going via somewhere where they would go from which they would go to the Bus stop" so said accused 1 in his evidence. See pages 583-584 of the manuscript record. The purpose for going to this place Khubetsoana, which in my view is an exclusive place, and where according to accused 2 the nearest dwelling house from where he had parked is from the Court house to the funeral parlour, a distance estimated at no less than 50 metres (see page 771 of the manuscript) all that accused 1 says happened there is as follows as reflected at page 584 of the manuscript onwards : "When getting to this place this vehicle stopped for a short time. Mothobi was conversing with accused 2. From there we went back and led to the bus stop. I never heard what the conversation was (about). I was sitting in the car. The radio was on in the vehicle. That's the only reason I didn't hear what was being said. I made no effort to hear what they said. I found it unnecessary to do so for they had come along the whole way conversing. The fact that I had drunk at the Hotel had an effect on me. I was dozing. We didn't spend a I think it was about 5 minutes. long time there. Thereafter we went back and drove to the Bus stop. We were coming to that new Bus stop called Manthabiseng. When getting there we discovered that Leribe vehicles were no longer there. We drove in the direction of the Circle to town and turned into Leribe direction. When we came to Moshoeshoe II (sic) airport now called Mejametalana there is Kentucky Fried Chicken shop where we got into a taxi bound for Leribe; me, PW14 and PW8 left for Leribe by that Taxi". It is interesting to note that according to accused 2 any attempt to lower the sound of the radio that was playing at the time he and these men i.e. accused 1, PW8, PW14 and Mothobi were in the car at Khubetsoana, would amount to switching the radio off; yet according to accused 1 the sound produced by the radio at the time was as shown above the only reason why he could not hear what the conversation held between accused 2 and Mothobi was. This is even more astounding regard being had to the fact that in normal circumstances and taking into account the size of accused 2's car in which all these men were, none could have been more than one and half yards away from the furthest. On his part regarding what appears to be the purpose of this meeting at Khubetsoana a secluded place, whose seclusion is added to by aid of darkness, accused 2 told the Court that the conversation between him and Mothobi as reflected in his evidence- in-chief and repeated in cross-examination (see pages 742 of the manuscript onwards) was concerned with problems of people from Leribe. The people from Leribe who had apparently been led by Mothobi to meet the President about these problems w e re P W 8, PW14 and accused 1. Despite their dissatisfaction with only meeting the Vice President intsead of the President, Mothobi articulated their problems according to accused 2 as follows : "(a) That people had great problems paying their rent; (b) they had problems meeting at meeting p l a c es b e c a u se of transport p r o b l e m s; (c) some of them who were bread-winners were u n a b le to provide themselves and their families with food; (d) that Leribe people because of being far from M a s e ru had the problem of not being kept abreast of current affairs. Thus they suggested that there should be a person travelling to Maseru daily or once every other day. And all these problems needed money". A c c u s ed 2 found these problems understandable and in turn passed them on to the President as he had promised in due c o u r s e. Accused 2 conceded, not without a lot of fencing w i th the question and a lot of wrangling that if what he says is all that the people from Leribe had come to M a s e ru for it seemed they came to offer nothing. Thus at page 805 to 806 the learned DPP p ut the following question which fetched the following replies from accused 2 : "Didn't you expect Leribe people to say we as concerned people want to see the strike intensify given that impression but one would expect that. ? I wasn't Wouldn't you expect the people from Leribe to say we as members of the community want to support you ? I was not in their minds but I would expect them to give advices and suggestions. Wouldn't you expect them to say we are not happy with the way the management seems not to comply; so there would be ? I said I am not in their sympathy for strikers minds but I would expect them to give advices and suggestions. Wouldn't you have expected them to say we see that management is intransigent and we will stage pickets in solidarity with you ? I said we were expecting help from people who were in sympathy. Wouldn't you expect them to say we want to raise funds. We want to organise sales, and raffles to assist you people-jamboree sales etc. We are concerned ? One would expect advices and suggestions of any kind they were thinking of. Yet these people had nothing to offer from their mouths, yes. ? At least Other than not from their mouths what did they offer ? Nothing, but Mothobi detailed problems Leribe people had which he had told me about before. Looking back these people offered nothing ? I am not in a position to deny that but PW14 refused to speak because he wanted to speak only to the President. But the final upshot is they offerd nothing agree. At least of which I am aware. ? 1 It ultimately happened that the offer at least two of them made was death ? I heard evidence in that regard. Besides that I know nothing. It turns out what they had to offer was stealing the deceased's car after the killing ? This was not my knowledge". With regard to accused 2's knowledge of the conspiracy hatched at Khubetsoana it is important to take note of the following text at page 780 of the Court's manuscript while accused 2 was under cross-examination: "With hindsight perhaps you realise that (these people who were in your car) were up to no good ? I can't say so. You think their presence at Kimane's death was commendable ? I don't say so. I didn't know what they had come about in the first place." Court: 'I thought you said you didn't form an impression that they were keeping something from you....? I said so. (In line with it) Further that they didn't tell you because you were not the President ? True. How dod you reconcile that then ? There was nothing strange in it. Did you know it ? No. So ? (silence)'. It is thus not without cause that the learned DPP with regard to accused 2's attempt to confine PW14's statement at Khubetsoana to the latter's mere utterance that "it was the expectation that the President would be there" and PWl4's apparent dissatisfaction in consequence thereof, put the following questions which fetched the following replies at page 793 of the manuscript record : "PW14 was not a silent party seated at the back To my recollection it is not so. ? I have this impression that accused 1 does not want to talk about what happened at Khubetsoana ? I hear (that). Even about you I have the same impression mistaken. ? You are I tell you why. You don't want to say what was discussed about these people from Hlotse(Leribe) ? Not so. I said all I know. But PW14 Mosiea doesn't say why he wants to see the President and doesn't say what he wants to say to the President ? True. Strangely you seemed to be satisfied with this position yet you had taken the trouble to take these people who were from Leribe to that place ? A thing of this kind was not strange to happen as I previously indicated. You are evading my question. I'll say why. My question relates to what these people from Leribe wanted to say; and you didn't get to know that. You want it to appear that you were satisfied. You say it wasn't first time that this kind of thing happened. What kind of thing is that ? People would come and you would find that their story is cold. One would hold you hand and say get on like that. You duck and weave. You wanted to know what these people from Leribe wanted to say ? Yes. But you never got to know ? True. I never. It is not as if they didn' t tell you anything at all ? With their mouths yes. Or through someone's - nothing No, Mothobi explained they had come to talk about people at Leribe. ? Ct. : People who were in the car were from Leribe and had come to assist ? At the time I took they had. Accused 1 says he had not come for that in a position to deny". ? I am not PW8 explains the purpose of the first trip from Leribe to Maseru. He shows at page 186 of the manuscript record that the purpose was to find if accused 2 had managed to collect the instruments required for the mission to threaten. PW8 expected that accused 2 and Mothobi would have collected firearms. His evidence is in line with PW14's story that they dealt with accused 2 referred to as the man from the Bank. It is in line with PWl4's version that the question of logistics such as transport to be provided to those on mission to kill was discussed. PW8's version also supports PW14's that the instruments required were not there. This contrasts sharply with the apparent purposelessness of the trip to Khubetsoana as conveyed to Court by accused 2 and 1. Added to that purposelessness is the fact that according to accused 2 Mothobi when going to invite him to hear and meet the people from Leribe who had remained at Lake Side, had ample opportunity to tell accused 2 their story which would have not necessitated the trip to Khubetsoana. The question remains then what was the nature of the discussion that should necessitate a trip to a secluded place? The answer is provided by the nature of the discussion as testified to by PW14 and PW8. In that regard the authority of Rex, respondent, vs Thielke, appellant 1918 AD 373 at 379 is in point that : "The independent testimony of another accomplice is competent evidence". It stands to reason therefore that I should reject the denial of accused 2 and accused 1 that the question discussed at Khubetsoana had to do with means of accomplishing the mission to intimidate those perceived as obstructing the strike. Accused 2 told the court that he undertook to convey to accused 3 the substance of what was discussed at the Khubetsoana meeting. In my view he couldn't have done so without also telling him about what to me appears to be the crucial purpose of that meeting that was held in a secluded place attended by people who were trained in arms and who had nothing to do with industrial action. In order to have a clear picture of the conspiracy that was hatched in part in Leribe and in part in Maseru where it was eventually put into effect, it is important to appreciate the role played by Mothobi who seems to have been a link man between the Union members including those in,the Executive Committee and the would be assasins. I have no doubt that he played a vital role in recruiting the would be assasins whom he contacted individually first and later collectively. PW14 who had been initially contacted alone by Mothobi at Hlotse later came to a meeting at Mothobi's house where he found PW8 and accused 1. Of the events which took place there PW14 says - "Judgding from what I heard it appeared these people (i.e. PW8 and accused 1) knew about this for they didn't ask strong questions". See page 237 of my notes. Of course it is known now according to the evidence of PW8 that - "When I was talking with Mothobi what was happening was that Standard Bank and Barclays Bank people Mothobi said they were on strike. Mothobi invited me to work with him for there were some people who had not gone into strike. What was to happen was that those who continued working When I was were to either be threatened or killed. talking with Mothobi the first time it was just the two of us at Hlotse". Then when Mothobi and PW8 were joined by PW14 and accused 1 at Mothobi's house in the evening PW8 says "We ere talking about what we had discussed early in the day. They seemed to know what we had talked about at day time". There can therefore be no question that Mothobi had done a fine job of at least contacting PW8 and PW14 prior to this meeting at which accused 1 is said to have been present. Thus going to Maseru was just an extension of the meeting which had originated from Hlotse. It should be emphasised that on the first trip to Maseru it comes out clearly that PW14 says one of the main purposes was to come and meet with the committee leadership and by committee leadership he says he meant the Chairman. This is borne out in text at p.324 of manuscript record as follows : "What was the purpose for coining to Maseru the committee leadership conducting the strike. ? To meet By leadership you mean the committee ? Committee Leadership. How many ? One. One being ? The Chairman of their committee. You didn't find the Chairman of the Committee didn't find him". ? We With regard to the preparation for the meetings in Maseru in furtherance of the conspiracy Mothobi's phone calls to the Union's offices where he would insist on talking with the President or indeed his vice may not be underrated. Yet accused 1 in all the occasions he admits coming to Maseru says he was only accompanying Mothobi who was at all such times coming to see his friend accused 2. Accused 1 and accused 2 are emphatic that the only times they were together with Mothobi and PW14 are two. PW14 says those occasions were three and gives reasons for their purpose. Accused 1 and accused 2 give the last occasion which they refer to as the second an innocuous appearance. In this occasion accused 1 says he had been invited by Mothobi to come with him to Maseru. Mothobi both in this occasion and the previous occasion was footing the bill for food, drinks and partly for transport. Partly for transport because in the first occasion accused 1 says when he had the business of crowning his sister as traditional bone-thrower or inganga who divines ailments by bone- throwing to attend to he conveniently is not aware that PW14 was so treated on Mothobi's largesse as well. In credit to accused 1 he says he was aware Mothobi was feeding and treating PR8 to free drinks. Be it remembered that at that time Mothobi was not earning any salary. I have already dealt with the Court's conclusion with regard to the first trip by Leribe people to Maseru. I have also indicated the events which occurred during the last trip more especially as relates to accused 1. With regard to the intermediary trip referred to in evidence by PW14 and denounced as never having taken place by accused 1. and accused 2, I indicated that PW14 provides reasons or purposes for each of the trips including this intermediary one. During this occasion too he indicates that he was in company of Mothobi and accused 1 when they were transported by accused 2 in Maseru in the evening for the purpose of identifying the targets. One such target was a man who used to visit a woman at Upper Thamae. The Court now knows that this man being referred to is PW15 who occupies a management position at the Standard Bank. Given that PW14 does not live in Maseru and has not lived in any of its outlying townships it should be a matter of great surprise that he should give such a clear picture of the place as he did; and later have PW15 who was not known to PW14 admit that indeed there is a woman living in that area whom he used to visit. Furthermore it was when PW15 had gone to this place but dashed out of sight and took cover at Motsoahae's flat some distance from there when he saw a Toyota Hi Lux Registration A2272 driven by accused 3 who was sitting with the owner and some other women in the front while accused 2 was standing in its buck drawing the others' attention to PW15's white Isuzu LDV with registration D2696. I recall an oblique attack made by accused 1's Counsel through an invitation to that accused to say the number of times he came with Mothobi and PW14 to Maseru on undated occasions. But surely the suspects' meeting of unsophisticated people with low level of education is something different from a Chamber of Commerce meeting where diaries and minutes of proceedings are kept. The significant thing about the intermidiary occasion as deposed to by PW14 is that he gives a tag or label to it which distinguishes it from the previous and the subsequent occasions. Of the intermidiary occasion PW14 says he alone was armed. The other firearms had remained in his custody at his house. Thus when he, Mothobi and accused 1 returned to Leribe they started loading the guns. The two 7.65 were loaded with 6 rounds of ammunition each while the .38 pistol was loaded with 4 bullets. This intermidiary occasion is distinct from others in that on the previous one PW14 and his party were not armed while on the subsequent one those who came were all armed. A point of vital importance that should not be overlooked is that based on scientific tests that he conducted PW2 came to the conclusion that three firearms were used. Thus corroborating PW14 in a very important respect. See page 19 of my notes. To my mind the only palpable reason why accused 1 and accused 2 denounce the existence of this intermediary meeting between accused 2 and the people from Leribe is that it puts them in very bad light. It implicates accused 1 and maintains the pattern of accused -2 providing transport for people who are on a murderous mission. It makes accused 2 an active participant in the pointing out of targets to be attacked. It strengthens the view that on the final or third occasion it became unnecessary for him to transport the would-be assassins from bus stop to bus stop because on this final occasion he had ascertained that transport would occasion no problem to the would-be assassins because they would have been secured a "lift" from the deceased's car. Another important factor that destroys accused 2's veneer of innocence that he wants to maintain against all odds relates to the occasion when he and accused 3 were at a meeting at Lancer's Inn with a white man. Evidence shows that this was the occasion that preceded the deceased's death by a matter of hours. Though the assassins did not meet accused 3 they were in the vicinity. Truly so because after accused 3 asked accused 2 to give Mothobi a lift to the bus or taxi rank because Mothobi said he was going back to Leribe, Mothobi in the absence of accused 3 drew to accused 2's attention the fact that he was actually in the company of people from Leribe. The usual PW14 and accused 1. Accused 2 dutifully and as usual gave them a lift. Now the point is, if accused 2's attitude is to make sense, accused 2 had known in the first ever occasion that he met PW14 (the short man who seemed to underrate,him) and his companions i.e. accused 1 and PW8 that these men had expressed great desire to meet or see the President with very important business pertaining to the affairs of the Leribe Union members. The President had justgone to the butchery hardly three minutes walk from Lancer's Inn. Why then doesn't accused 2 take these men to the President who had set out for a definite place; the butchery? Why indeed, especially when he had observed these people's dissatisfaction with having to deal with a substitute when they had opted for the President. Doesn't this lend credence to the view that, since PW14 had said that "now that the President is not available you are the only man" in the executive committee that the men on dangerous mission would deal with. To my mind this was a good opportunity that an innocent man could have utilised. Hence the legitimacy of the question in cross-examination by the Learned DPP at pp 817 and 818 of the manuscript : "The first occasion they had travelled all the way from Hlotse to come and see the President ? They said so. And one of them had indicated dissappointment when he didn't see the President in your first occasion ? Yes. Such that he didn't want to say anything to you True. He didn't want to say anything to me. ? Didn't you figure this was an opportune moment to introduce them to the President ? It didn't occur to me. Why not. The President was not far away, these people had shown interest to see him ? True they had. But if they still wanted to see him Mothobi could have taken the trouble. Therefore I found it unnecessary to take the initiative of making them meet him. Even so why don't you say Mothobi my friend these people wanted to see the President. The President is available. ? My belief is Why didn't you make them meet him that what Mothobi wanted them to see the President about had been answered, but if they still wanted to do so, Mothobi should have indicated. Sure you must have said to yourself 'these people wanted to see the President. Now he is available; they don't seem to take this chance' ? I didn't take them as strange. I took it they were Mothobi's friends. It didn't occur to you to ask Mothobi why don't these people see the President; he is available and ? It did not occur to me for if it was willing their intention Mothobi should have enabled them". It is strange that although the man who previously observed the disappointment in Leribe people not being able to see the President should make it Mothobi's business to enable them to do so. Hence the question by Court : "Doesn't this by some fortuitous stroke of fate coincide with PW14's story that he had determined to deal with noone else from the Executive but yourself ? I don't deny that but like I said if these people still wanted to see the President, Mothobi should have arranged for such a meeting". To me it seems plain and tenable that PW14's version is vindicated that from then henceforth he and his men would deal with noone else but accused 2 from the Executive side; and thus in behaving as he did accused 2 was acting in difference to the rule laid down by PW14. On 6th May, 1996 when the balance of this judgment was to commence I learnt from the Assistant Registrar Miss Rammolai that Mr Govender was not in attendance as he was engaged in some commission in South Africa. This was particularly unacceptable because that day was chosen to suit Mr Govender for otherwise the balance of judgment should have been read on 29th April, 1996. However to allay accused 1's fears that his interests were being ridden rough shod over, I postponed the delivery till 13-5-96 on which day such delivery shall proceed whether or not Mr Govender is in attendance. The Court is indebted to Mr Sooknanan who is prepared to note Judgment in the absence of Mr Govender otherwise there is nothing wrong with accused 1 noting judgment on his own behalf. Meantime all counsel for crown and defence have undertaken to try and find out what has occasioned Mr Govender's unexpected absence. I have considered a submission made by Mr Teele to the effect that PW15's fear which prompted the latter to duck from the sight of accused 2 and 3 was baseless because the Court had ruled in favour of Mr Maqutu (then appearing for accused 3) that the reason advanced by PW15 for so ducking was based on hearsay. Indeed Mr Teele's submission was well-grounded but only to the extent that there was an objection which was sustained in accused 3's favour. The Court is greatly indebted to Mr Teele for bringing to its attention a factor which otherwise had escaped the Court's mind and was thus overlooked due to the bulkiness of the record in this trial and the fact that addresses came only more than one and half years after conclusion of oral evidence in the entire trial. Reference to the text from page 473 to 474 of Mr Mdhluli's re- examination of PW15 would be fruitful by way of putting things in their perspective. The text goes : "Coming to your behaviour that in ducking you gave the impression that accused 3 and his company were people to be feared ? Yes. You said you gave reasons when it was suggested you didn't ? Yes. Explain what reasons were for ducking I explained this incident took place within a period of 2 to 3 days of having been warned." ? The record reveals that the words underlined above were ruled inadmissible hearsay and a line was drawn across them to indicate this fact. The re-examiner repeated the question for the witness to answer, and the latter replied "I had received caution". Surely this latter reply is not hearsay. In any event the court was entitled to clarification of a question that left an answer hanging under cross-examination as appears in the following text at pages 470-471 : "You told the court that as you saw the vehicle driven by accused 3 you dashed for cover ? Yes. You agree that that type of behaviour testified to by yourself could serve to create an impression that accused ? I agree. 3 and his likes were people to be feared It would be unfair to give an impression about accused 3 ? I gave reasons before without giving reasons then. I am not going to ask which reasons for I am clear you ? I didn't. Assuming I am right would it be fair would not assume for you are not right in your assumption". From his last reply PW15 leaves no doubt that he disagrees with the assumption on which the cross-examiner's question is based. PW15 in his evidence-in-chief had told the Court that after reading the letter which was communicated to him by his superior to whom it had been delivered by Bolaoane Taaso who was in Irene's van driven roughly by accused 3, he was astonished to learn from that letter that he was being warned to stop interfering with those on strike because he had not done any such thing. Bearing in mind that he further said in his evidence-in-chief "A few days thereafter I received a telephone call from the deceased. This was a warning to me. My reaction was I was a bit puzzled and in turn advised him to take precautions too just in case he might be hit also" it does not admit of any conjectures why, in the evidence that was allowed in re-examination where PW15 said "I had received caution"; it was that he dashed for cover. Inferential reasoning would therefore lead to the conclusion that he dashed for cover when seeing these men whom he regarded as fit to be feared, because of the warning he had received from the deceased. It is my view that this conclusion does not conflict with the ruling made against admission of hearsay words underlined and referred to earlier. The phrase that was allowed in re-examination followed from cross- examination that did not take the matter to its logical conclusion. The hearsay words which were ruled out are not in issue now because the cross-examiner, having deftly managed to prevent the witness from referring to them enjoyed the ruling of the court in that regard. But that could not prevent admission of the phrase that was not affected. An attempt was made to water down what appeared to be a frightening experience suffered by PW15 when he saw accused 3 driving a van belonging to Irene immediately before Bolaoane alighted from that van and delivered a letter to the management to warn PW15 and those named in that letter to stop interfering with those on strike. The attempt took the form that PW15 didn't know the usual manner of accused 3's. driving and therefore should not ascribe any ill-motive to accused 3 for driving as he did. To my mind it seems that PW15's fears are justifiable regard being had to the fact that customers who were being served by PW15 at the time and "were queuing outside that door had to scatter in all directions I was in the door way" and it stopped less than half a metre (from the door way). See page 446 of the manuscript record. To my mind the attitude of accused 3 at the time was in line with the conspiracy to intimidate those in management perceived to be obstructing the strike. In my view accused 3' s manner of driving was clearly calculated to inspire fear of physical and psychological harm to PW15. This attitude couldn't have arisen from any source other than conspiracy to carry out evil intent. The fact that accused 2 was in that van at the time was no accident. The fact that there were others too who were not charged is as far as their worldly luck serves. In my view therefore PW15's observation that the manner in which the van was stopped seemed deliberate is amply vindicated. Thus it would seem that the plausible stand held by accused 2 that government's intervention be given a chance and accused 3's plausible words at a meeting in Mohale's Hoek that violence would not bear fruit as attested to by PW21 are factors which were obeyed more in the breach than in the observance by their proponents. The Court has had regard in PW15's evidence to the fact that accused 2 and 3 had on occasions appeared on TV where they manifested unyielding mood before the deceased's death. The text at 453 goes : "I used to watch TV during the strike. (I saw) those two gentlemen. Teboho Chaka was interviewed by Treaty Makoae if I remember. Sehlabaka was also interviewed. The mood of accused 2 was not conciliatory when interviewed on TV. He was very unyielding and beyond expectation of normal Trade Union activist. Accused 3; his interview also was more or less the same. I have had a lot to deal with labour and industrial I was once a President of the same Trade disputes. Union. We used to employ negotiation machinery ". I am merely employing the above extract to indicate that accused 2 and 3 had access to the news media. When it suited them as leaders of Trade Union they appeared on TV yet when it required them to dispel their Union's association with any of the disturbances culminating in the deceased's death they did nothing. Absolutely nothing even although they appreciated, as evidence clearly indicates, that the death of Kimane might be ascribed to the LUBE strike. It would not be far-fetched to deduce that accused 2 and 3 refrained from publicly denouncing the unsettling events which had their peak before Kimane's death and perpetrators' acts which resulted in that death because doing so would have been dishonest and insincere. This is of vital importance as indicating the conduct of accused 2 and 3 after the deaceased's death. In this regard see S vs X. 1974(1) SA 344 at 348A by Beadle CJ sitting with Macdonald J. P., and Lewis J. A. who concurred. The Court has had regard to the rough sketch on which PW15 relied in giving direction to the L-shaped block of flats where he used to visit. He referred to Chaldin's place being where one would go past before reaching the L-shaped block of flats. The Court takes Judicial notice of the fact that Chaldin deals in scrap metal. Coincidentally PW14 referred to a scrap yard to the right along the way from Lake Side Hotel to the L-shaped ma-Line where one of the managers obstructing the strike used to visit a girl- friend. It should be recalled that PW15 said he stayed at Moshoeshoe II township where he has a dwelling house. In the Court's estimation Moshoeshoe II township is at least seven kilometres away from Upper Thamae the village where the L-shaped house is. Referring to the aspect in point PW15 said - "The Defence Counsel 2's (Mr Sooknanan's) house is on the right at the top. You turn right. Opposite his gate is Mr Ntene's gate. This is where I parked my van. I left it there. And you go up and get into the yard next to Mr Ntene's yard - Motsoahae's flats. It is an L-shaped complex facing East. No; one wing faces south the other west The L-shaped structure is what I was going to. Dotted lines are boundaries. The arrow indicates the direction the Hi Lux was coming along into the tar road. X on right hand corner is approximately Mr Sookanan's place. There's a further small box which is a small flat behind which I took cover". Given that accused 3 was the driver when PW15 heard accused 2 shouting from the back of the bakkie to see what he saw as he was pointing at PW15's vehicle there can be no doubt that in acknowledging that they did i.e. those in the cab including accused 3 their sight of PW15's bakkie confirmed what they must have earlier been having in mind or talking about. While the motive could have been innocent for pointing at that bakkie, the question of accused 2's denial that he did any such thing gives the whole scenario a different complexion. I have already indicated that PW14 had no knowledge of where the L-shaped structure was. He said this was pointed out to him by accused 2. Accused 2 says PW14 is falsely implicating him in this regard. But accused 2 is unable to say why PW14 should thus falsely implicate him in an act which on the face of it should be innocent. The fact that PWl5's evidence as to the shape of the structure corroborates PW14's is an indication that accused 2 wishes to distance himself from the act of pointing out this structure because he knows it was not pointed out in innocence or for a purpose that was free from wickedness. He thus denies pointing this structure out because he has something to hide. As for accused 3 a good many indications have been brought to surface regarding his conduct in relation to the offences charged and his involvement therein yet he took a risk and chose not to explain his conduct in relation thereto. The question of accused 3's conduct was further put into focus when the Court overruled Mr Maqutu's objection when in reference to that conduct the text reflects the following under PW15's re- examination : "A question has been put to you and left hanging that accused 3 was unconciliatory had no basis ? Yes Could you expand on that ? (objection by Mr Maqutu) Mr Maqutu motivated his objection as follows : 'Evidence is directed at the character of accused 3. It is the rule of evidence that the public prosecution cannot bring evidence to blemish the character of an accused for that purpose per se. When this point came in chief one thought this is one of those things. This being a summary trial one didn't know the full ambit of evidence given by this witness - it cannot be right that it came as a result of cross- examination; it came in chief. If allowed to re-examine, the DPP would be taking a point against which the Law takes a stand'. DPP in Answer: Character doesn't come into the picture. This relates to conduct. Mr. Maqutu in Reply: There is no difference between conduct and character. Court : Objection overruled. DPP: Could you expand on the basis of your statement that accused 3's conduct was unconciliatory ? That during the interview by the media you could see you had the attitude of an uncompromising man. There was no longer give and take. One of the principles of negotiation is to have give and take. I did not see this in the attitude of Mr Sehlabaka". The above text is a further factor that heightens the importance of the link between accused 3's conduct and what seems to be the logical consequence of the unlawful strike that he was relentlessly pursuing. In the face of this he sought refuge behind silence which in law is his right though in effect, it is not free of risk. But life's wheel of fortune spins around an axle the test to the strength of which is win or lose. The balance of accused 1's evidence relates to the trip (which according to him was the second) to Maseru where again he was invited by Mothobi. It adds nothing of significance to the subject under consideration that deceased's death was a result of a conspiracy to eliminate the obstructionists to the strike. His central stance is that he doesn't know why PW14 killed the deceased in his presence. He puts this down to PW14's insanity which had manifested itself at the time PW14 and he were at the valleys. But cross-examination of accused 1 revealed that there was no basis for the notion that when PW14 shot and killed the deceased he was under any seizure of insanity. But under cross-examination it was never seriously persued that PW14 had previously gone insane. He was only asked if he had ever had mental problems and he denied that. Another point of importance elicited from accused 1 while under cross-examination to account for the gun-shot wound with entry point near the deceased's right nipple and exit near the left is that he suggested that the bullet connected with this injury must have been the one that caused the dent above the front passenger door. But evidence gathered from objective facts of the case doesn't support accused 1's theory. On the contrary absence of any sign that the .38 spent bullet punched an exit hole on left outer cloth of the deceased's blazer but remained pocketed between the inner lining and the outer cloth after punching the hole observed on the inner lining, suggests that this is the bullet that accounts for the tract of wound lying between the entry and exit points in question. PW14 referred to an occasion some time before he, Mothobi and accused 1 went into the deceased's car with the deceased. The occasion in point is on the night of the deceased's death. On that occasion PW14 says he, Mothobi and accused 1 went into accused 2's car parked outside Lake Side Hotel gate, to go and cock their guns. He says they came back together into the Hotel where they had a short while before left the deceased. But by some strange quirk of fate PW24 ELIAS MATSOSO who had also been treated to some drink of beer by the deceased who was in the bar meets with Mothobi with two other people whom PW24 didn't know. PW24 had earlier seen Mothobi with the deceased who had called to him to have some drinks with him. On his way out PW24 saw Mothobi with these two strangers. Something strange that he noticed is that "when they came into view they appeared to want to go back". See page 554 of my notes. Relating to the interval that elapsed after PW24 had left the deceased intending to leave for night's rest comes the following under cross-excamination by Mr Govender : "After leaving the deceased it is strange that you hung around these three people for 3 to 5 minutes ? To me it is not strange. It is convenient to bring 3 to 5 minutes (into the picture) because if you left quickly you would not have seen them ? I could still have seen them for I was going (to have) to pass them". See page 556 of the manuscript record. Now turning to the balance of accused 2's evidence and having dealt with his evidence with regard to what he maintained to be the purpose of the first meeting at Khubetsoana with the suspects. The last (and according to him the 2nd) occasion accused 2 met with Mothobi was at Lancer's Inn where he, accused 3, a white man and Irene were holding a meeting just outside the Lancer's Inn restuarant door. The meeting was about the strike. Then Mothobi arrived and said he requested to speak. Accused 3 rose and went to Mothobi to hear what his problem was. Mothobi appeared to have taken much drink. At that point Irene left saying she was going to attend to her children as it was getting late and would have to go via the Union office as it was the custom. In any case as much of what was to be discussed had already been covered by the President; and besides,the white man had another engagement somewhere; so the meeting broke. Accused 2 then proceeded to his car next to which accused 3 and Mothobi were standing. Then accused 2 greeted Mothobi and asked him what the matter was at that time in Maseru. "Even before he replied accused 3 explained to me that this man has come concerning those matters you had told me about; and that he (accused 3) had told him the financial problems we had". The upshot of this is that in all centres such as Mafeteng, Maseru and Mohale's Hoek similar problems were had; further that Union members in these centres had organised means of meeting those problems, and that therefore Mothobi should propose this idea to Leribe as well. Thereafter accused 3 told accused 2 that Mothobi intended going home that very evening. Thus he asked accused 2 to rush Mothobi to the bus stop as it was already late. Accused 2 remembered that he had been asked to buy meat in the morning and asked accused 3 to do him that favour while he would comply with accused 3's request to take Mothobi to the bus stop. It indeed was getting late because the butchery to which accused 2 had intended to buy meat closes at 6.00 p.m. and it was heading speedily for that hour. After Mothobi had gone into accused 2's car he mentioned to accused 2 that in fact he was in company of people from Leribe who were in similar predicament as he. It turned out that these were accused 1 and PW14 who were in turn given a lift which had been secured for Mothobi by accused 3. They tried Manthabiseng bus stop to no avail. They tried the stop where TY vehicles stop again they had no luck. Then as it was getting dark Mothobi asked accused 2 to take them to Lake Side Hotel where they could try their luck in securing lifts to Leribe before finally deciding, if need be, to put up in Maseru. Then accused 2 left these men at Lake Side Hotel gate and went home via the office where he found accused 3 already there, telling him it seemed there weren't any important messages left. So they knocked off and went home to accused 2's place where accused 3 normally got accommodation when he had come to Maseru on business requiring him to stay over night away from his station at Mafeteng. Accused 2 said the following day he heard of Kimane's death. He said he didn't know much about the late Kimane. He didn't know his vehicle nor where he lived. He said he had nothing against PW15 Rahlao or Kimane. He doesn't think their deaths would have helped the strike in any way. He knew that Kimane worked at Barclays Bank. Accused 2 says he didn't threaten the black management to strike. He said it was a known fact that the managers due to their status as managers couldn't go on strike. However accused 2 says he knows PW15 and didn't dislike him. The relationship between him and PW15 was a normal one. He said PW15 was his senior at the Standard Bank Maseru. He told the Court that when he was first transferred from Mohale's Hoek to Maseru PW15 told him something. That accused 2 was thus transferred because he was troublesome and had to be transferred to Maseru to be put under discipline. However he was not aware of anything that made him feel that in fact discipline was being imposed on him. He was not aware of anything affecting his relationship with PW15 despite what the other had told him. Accused 2 said he knew the identity of PW15's vehicles and supplied their make and registration numbers to Court i.e. Mercedes Benz Isuzu van and a Pugeout car D1155 D2696 D0474 He said he never pointed at any of Rahlao's vehicles. Nor did he point at homes of girl friends as targets for intended victims. He said he didn't even know the home that PW15 visits. He doesn't know Mr Kimane's home either. He said he never pointed at Mr Kimane's car to anybody. Under cross-examination accused 2 resiled from the stand he had originally held and concedes that the strike failed hopelessly to achieve its objective to benefit blacks including those in management. See page 757 of manuscript. He denied however that the deceased's death came about as the aftermath of the strike. page 759. The fact that accused 2 tended to minimise what was said between Mothobi and accused 3 in accused 2's presence at Lancer's Inn comes out clearly under cross-examination at p.866 onwards as follows : "According to you the discussion took a short time ? I said 5 minutes. Mothobi between accused 3 and When you arrived you conveniently hear nothing being discussed ? True I asked Mothobi what happened and the President told me. Do you have a fear to say what Mothobi said. Each time you come where Mothobi was you minimise ? I fear nothing. I said And I told you nothing of substance was said have no fear. ? I Your fear to talk stems from your knowledge of the ? No. I told the diabolical mission of Mothobi court everything I know. Evidence before court is Mothobi looked for people who would kill ? I heard. He came here on three occasions to get assistance to get this diabolical plot going ? 1 heard that. Ct.: Mothobi was not able to raise M15. It would be ludicrous to suggest he would be able to pay fees for the recruits ? I agree. CC: You heard evidence that Mothobi was seen talking with the ? I heard. deceased before the deceased was killed That in all probability the deceased was persuaded to give Mothobi, accused 1 and PW14 a lift ? Yes I heard. You heard that after giving them a lift he was killed ? I heard. On last occasion Mothobi had been seen in your company and that of accused 3 ? True we were together some time. That was the day the deceased was killed. That was their D-Day ? I heard such evidence but personally I don't know. These killers had come to Maseru well prepared. Each one of the people who were with the deceased was armed ? I heard such evidence. One wonders why they come so well prepared on this day when they met you at Lancer's Inn ? I am not in a position to say for I did not expect them. On this day they effected their diabolical mission I heard that. And you don't want to speak about their mission As a person who doesn't know I can't say. ? ? You don't say these things for you were privy to this secret ? No. I suggest to you the people who killed did so with your knowledge ? No. There's nothing I know. The three musketeers i.e. you, accused 3 and Irene were privy to the knowledge between Mothobi' and the I knew nothing I can't speak for assassins accused 3 and Irene. ? You conspired with them. Ever busy providing them with transport ? Not true." It has to be borne in mind that accused 2 says he learnt of the death on 11-9-91 and got to be arrested only on 18-9-91 when considering and evaluating the following text under cross- examination :- " Then on 11-9-91 you got this report that Mr Kimane died ? True. Violent death ? Yes. Killed by thugs ? Yes. I agree. This is a man holding management position at the Bank ? I agree. Again this is unsettling. What are these (killers) doing. Do they want that it be said the Union has done this. Ever thought along such lines ? We did. What did you do about it ? We hadn't yet taken a decision what to do about that. But we had already informed members officially. About what ? About death of the late Mr Kimane. ? Me wanted to know What did you contemplate doing what was to happen so that we could send our condolences and meet with the management; to make them know we were aware that this death could be associated with the strike as it happened during the strike. You agree this was a matter that needed urgent attention....? True. That you should come out there in the open as Union to ? That is so. clear your name This didn't happen till 18\9\91 when I believe you were arrested ? True. You don't want to create the impression that you are an insensitive young man ? True, You were brought up in environment of Christianity True. ? Love and compassion are very basic in that Christian upbringing....? True. The Gospel says 'thou shalt not kill' ? I agree. People had killed ? Yes. And had destroyed the image of God ? True. But that didn't bother you ? It did. You as Chaka what did you do ? Nothing". From this point on accused 2 made desparate attempts at warding,off the questions fired at him by resort to evasions and pleading ignorance. When those could not suffice to answer events which appeared to have placed him in compromising circumstances which he must have indeed been aware of; he resorted to conjecture. It is significant that in common with accused 1 accused 2 when he and that other become dazed by the intensity of forensic searchlight they resort to the typical pet theme favoured by suspects who are hard put to it to explain their conduct or who attempt to wriggle out of the web in which they are entangled by putting the compromising situation in which they find themselves down to coincidence. Thus : "Do you think it is a coincidence that these people who were seen in your vehicle, somehow happened to be present when the deceased was killed ? I believe so. Do you think it is a coincidence that these people who had come to assist the strike morally or financially were there when the deceased died ? I cannot be in position to say if it is a coincidence there. Come on I invite you to say. On that point I have no opinion. ? I surely don;t know what No opinion. Just blank ? Yes". Then there were prevarications and attempts to fence with the questions by accused 2. For instance at 768 : "You got to Lake Side ? Yes. You didn't want to get in ? Not necessarily so. Did you get in ? No." At 853 accused 2 suggests it was a mere coincidence that he associated with the killers who were seen with him before the deceased died and who were at the scene when the deceased was killed. Again at 857 accused 2 says it was a coincidence that even in the previous occasion - making two occasions - he was in company of Mothobi and the other suspects implicated in the killing. Amazingly though, if PW14 is lying in saying accused 2 was to arrange transport for Leribe people who were on mission to kill, then accused 1 indirectly bears him out in his evidence referred to earlier that "Mothobi told us (the occupants of accused 2's car) that this car had problems so it would not take us to Leribe as he had promised". Be it remembered that according to PW14's evidence this car was only disqualified for use as a means of conveyance in the murderous expedition because of not being strong or because of being sluggish. So it would seem this car failed to be used not because the owner was unwilling. Accused 2 could not account for the fact that Mothobi was the one who related the problems of Leribe people when the said Mothobi had invited accused 2 to come and hear them. Pages 771-2. He conceded at 773 that he found it unnecessary to have travelled to Khubetsoana or Ha Mabote to hear what Mothobi had to say. Asked what the contribution of these people from Leribe was he said it was "nothing". See page 774. At 777 after much wrangling as to what these people from Leribe were apart from the question of their individual names he conceded that they remained a mystery. From then on accused 2 tried even more desparately to dissociate himself from the Leribe people who were in Mothobi's company. See p. 835 for the following : "You want the Court to believe he (PW14) is a liar ? I want it to believe he is a liar. He lies about you and your activities yet he doesn't know you ? I had met him at least (sic) twice. You had not wronged him even once yes. ? To my knowledge You had offered him love person I had seen for the first time. ? I had taken him like a You had conveyed him from point A to point B Yes. ? You had given him transport transporting Mothobi. ? Yes. Yes but I was But he was there ? Yes. On your 2nd Hotel trip you had conveyed him from point to point ? I was conveying Mothobi. Ct.: Had you left PW14 behind ? I had not." At p.841 accused 2 said he is the one who decided on his own to drive the occupants of his car to Khubetsoana. When told that accused 1 has given the name of the person who suggested they should go along Main North One leading to Khubetsoana accused 2 reacts by saying "I am relating my own tale". It was drawn to his attention that his tale contradicted accused 1's and PH14's. He appeared to be agonised by this and was obviously in a cleft-stick. The learned DPP referred accused 2 to the Recognition Agreement and asked him what Clauses C and D provided. The witness read these clauses to Court and was asked what they provided in sum. In reaction thereto he said in relation to the Recognition Agreement : "In brief it says people who are Union members are not to interfere with non-members. Likewise non-members should not interfere with Union Members. Ct.: Did you sincerely hope these to be observed in view of the ? We fact-that you had embarked on illegal strike had observed it; so did the management. CC: When members of management realised that wrong procedure had been taken and took steps to normalise relations would you consider it as interference ? Even if I didn't; members did. Ct. Would you still say violence was not envisaged in such circumstances ? No." Accused 2 says PW14 implicates him falsely. He says his reason for charging PW14 with implicating him is that when Mr Govender questions him PW14 gives impetuous decisions. Asked what decisions these are he gives as an example the fact that PW14 said he was not afraid when seeing men in donkey blankets surrounding his house. The second reason is that PW14 admitted to lying before the police while undergoing interrogation. It was however brought home to accused 2 that there is nothing wrong with a man admitting that though he started by lying he told the truth later when he saw that the game was up. See 837 and 840. It was asked of accused 2 to think what means would be employed to remove those perceived as obstructing the strike following on PW21 Mosuhli whose evidence was said by the learned DPP to support accused 3 in that it was said at a meeting at Mohale's Hoek he had said violence was not to be used. In answer accused 2 said he was not in a position to give an opinion on that matter which he said he knew nothing about. In my view it would be naive to expect that people could sheepishly comply with orders to have them removed from their jobs and in the event of their offering resistance no violence be envisaged. However, at page 856-857 of the record accused 2 finally agrees that it makes sense that PW14 says he killed because there was this conspiracy to kill. The actual text reads : "PW14 says he killed because there was this conspiracy to kill. It makes sense doesn't it ? I heard. (question repeated) ? I agree. that there should be a reason. It does ? Yes." It should be recalled that provision with means of transport was one of the vital things that PW14 stated would be required to accomplish the mission. Here we see accused 2 dutifully meeting this requirement by use of his own car. Only when he has ascertained that it would not be necessary to be of further assistance in this regard he is relieved of this obligation. The deceased's car was going to be used to enable PW14 and his party to go back home. What further use could accused 2's car be in those circumstances? Of importance though was that he should know, and he did this by ascertaining that the Leribe people would not require his transport as they assured him they would ride in deceased's car as he has promised them a lift. But the security conscious PW14 told him before parting that accused 2 and they were in the same boat so to speak. With regard to accused 3 who gave no evidence; the evidence of PW21 puts him in good light in so far as he is said to have said use of violence wouldn't bring the strikers' purpose to fruition. This plausible stand by accused 3 is dealt a fatal blow not only by his utterance that he would not back down from that strike as long as there were people out there in the districts carrying on with the strike but also by his failure to appreciate that the suggestion which he did not disapprove of that those who did not come out on strike should be removed from or taken out of their jobs, could not be achieved without resort to violence, or that it was also a form of intimidation at the very least. PW21 says that when members at the meeting pointed out that as long as strike breakers were there, there would be no progress; accused 3 said time would tell what was to be done. However the decision made was that it was necessary that these people should be taken out of the Banks. It was never decided how they would be taken out of the Banks. It had earlier been suggested that they should be taken out or whipped. The next thing when Klmane had died accused 3 pointed out at a meeting that the death would be associated with matters the strikers were dealing with at the time. Mr Mdhluli submitted that even though PW14 had carried the day in saying that he and those of his men who were on mission to kill were to deal only with accused 2 from the Executive Committee's side of the Union, accused 3 didn't thereby become a non- participant in the acts calculated to intimidate or kill the obstructionists. He submitted that it is inconceivable that the activities that took place did so without his knowledge and support. It appears that accused 3 didn't have a vehicle but he used Irene's to terrify PW15 at the time the letters to the management to stop obstructionists to the strike from tampering with the strikers, were delivered. He was driving this vehicle again at the time when PW15 saw accused 2 point at PW15's vehicle and ask those seated in the cab of the bakkie "do you see what I see". This is an utterance which naturally struck an important note in PW15's mind in that he had been warned by the deceased to watch out because he might come to some harm from the strikers. In his submissions Mr Govender for accused 1 pointed out that for all his experience and security consciousness as a military man PW14's conduct belies these attributes. He pointed out that on the night of the killing Mothobi and PW14 secured a lift from the deceased. But they did so in a public place, he said. He further pointed out that accused 1 was observed speaking with the deceased in a public place. So they must have been seen by people when getting into Kimane's car. Thus the learned counsel submitted that it makes a mockery of PW14's security consciousness. He contended further that it couldn't be the position that Kimane's death was pre-planned; and accordingly submitted that the shooting incident was a frolic of one individual. He stated that if accused 1 contemplated going to kill Kimane why would he draw attention to himself by going to the house of the BOP leader thus making himself a prime suspect when Kimane is found dead the following day. In reaction to this submission perhaps the words of Schutz J A, as he then was, in C. of A (CRI) No.2 of 1982 Khokoana Manamolela and Others vs Rex (unreported) at p.34 would be fruitful, to wit : "Moreover, it would have been a singularly stupid way of trying to throw people off the track if it was indeed immediately apparent that the injuries had been so caused. Suspects do, of course, do stupid things in moments of panic or desperation". The scenario that unfolded in the instant case was that accused 1 had earlier urged PW14 to shoot but the gun jammed and hence failed to fire. Thus the element of frustration and anxiety could account for the conduct perceived as incomprehensible by the learned counsel for accused 1. Needless to say at p. 25 of the authority cited above it is said : "Again, of course, I must concede that suspects sometimes do behave stupidly under the pressure of events". It was nevertheless submitted that it is highly improbable that accused 1 and Mothobi had pre-planned the deceased's death. It was further pointed out that the reason supplied was that the killers needed a vehicle to kill Sam Rahlao and get away. So it was questioned why they didn't kill Rahlao and take his car and where the logic in that is. But as was submitted in response by the learned DPP the fact is they killed Kimane and got away and that suspects are not particularly noted for exercise of logic; hence success in crime detection. Mr Govender pointed out that although the crown had called many witnesses in order to prove charges preferred against the accused, the crown case must ultimately revolve around or consist in the evidence of PW14 and PW8 the accomplices; and that much of the other evidence is evidence brought to corroborate this nerve centre of the crown case. He pointed out that the" crown seeks to prove conspiracy against accused 1, PW8 and PW14. However what appears clear is, he submitted, the obscure nature of the conspiracy. He demurred at the fact that there are vague references to things that are said to have been discussed or agreed on. I agree with learned counsel's contention that in order to understand the nature of the conspiracy it is important to understand evidence relating to PW14, accused 1 PW8 and Mothobi. This evidence necessarily must relate to the first meeting held at Leribe. It is common cause that the men mentioned immediately above are social friends who socialised together on more or less regular basis he said. But he is not at one with Mr Mdhluli on this as will be shown much later. Thus learned counsel contended that on the basis of this sort of background the element of conspiracy would be no reason for these people coming together. They were already friends and used to come together, he stated. With regard to the meeting in Leribe which necessarily must touch on the evidence of PW8 and PW14 he pointed out that there are material contradictions. In substantiation of this contention he said PW8's evidence in regard to a meetng held in August 1991 in Leribe is that this was the 1st meeting held in connection with a strike in progress at the time. PW8's version is that in regard to that meeting he had discussion with Mothobi at Leribe. Making reference to the typed record at pp 266-7 he pointed out that PW8 says after discussion with Mothobi they were joined by accused 1 and PW14. Then the learned counsel brought to the court's attention that PW14's evidence in that regard is contradictory in the sense that PW14 suggests his discussion with Mothobi occurred prior to the arrival of PW8 and accused 1 at Mothobi's house. I have earlier dealt with this aspect of the matter and on the basis of my examination of the evidence came to the conclusion that prior to the meeting held at Mothobi's house where PW8, PW14 and accused 1 were present it is clear that Mothobi must have had prior discussions individually with the participants to the meeting at his house, because PW8 as well as PW14 stated that each formed the opinion that the other or others had had prior knowledge of what was in the end discussed at that meeting. Mr Govender pointed out that PW8's version in his evidence-in- chief prior to his re-call contradicts his own evidence-in-chief subsequent to his re-call a year or so later with regard to what was discussed in the meeting at Mothobi's house with the others. He said that this in turn is contradicted by the evidence of PW14. PW8 with regard to the 1st meeting is said to have shown that there was no indication why that meeting was held save that it was a meeting of people who used to visit one another. But later when asked what was to happen to those people whom Mothobi said didn't join the strike he said they were to be frightened or killed. This, the learned counsel pointed out contradicts what PW8 had said earlier and stated that it is possible to formulate a reason for this change. Mr Govender went further to state that further contradictions consist in the fact that with regard to the meeting at Leribe PW8 says there was agreement reached to go to Maseru. Matters to discuss were payment and how work was to be done. In contrast to the above, PW14 indicates that he was informed by Mothobi that a decision had already been made and the date for a meeting fixed for Maseru. He thus submitted that these two versions constitute material contradiction in the crown case in the sense that the crown seeks to show that these men met in Leribe to discuss conspiracy but evidence of PW8 and. PW14 gives two different versions of what was discussed at that meeting. Mr Govender stressed that according to PW8 the private discussion with Mothobi was on how work was to be done and payment made. While according to PW14 the private discussion between him and Mothobi was about how assistance would be given. Yet at the first meeting where two met with Mothobi and accused 1, the impression formed by PW14 was that PW8 and accused 1 had already known because they didn't ask any strong or further questions. Mr Govender pointed out that despite the above state of affairs the crown expects the court to read into that meeting sinister motive and he accordingly submitted that such motive would not be the only inference to draw from that meeting and\or that discussion. He submitted that reference to things said there can give rise to a variety of possibilities. Learned Counsel further pointed out that PW14's contention was that the management was to be frightened while PW8's is that those Bank workers who were not on strike were to be frightened. He stressed that there is a further contradiction in the fact that PW8 understood the meeting in Leribe was concerned with how work was to be done and payment made, while PW14 says the purpose was to go to Maseru and meet the Chairman and the Committee of LUBE. I may just point out that PW14 was clear that what was to be met was the Committee leadership by which he meant the Chairman. Learned Counsel further stated that it is the Crown's case that there was a conspiracy held first in Leribe for these people to agree on the substance of the conspiracy. He sought to persuade the Court that, however it is clear these contradictions are material from the view point that in order to substantiate the fact of conspiracy it behoves the Crown to establish consensus as to the task to perform and the manner it is to be performed. He contended that contrary to expectation, all one is faced with are two accomplices contradicting each other on what is to be discussed. He pointed out that PW8 goes further to contradict himself on the first statement he had made. Learned Counsel submitted that this is material and argued that at best the Crown has established conspiracy between PW8 and Mothobi on the one hand; and between PW14 and Mothobi on the other. He pointed out that at best the crown has only managed to produce little snippets at various stages, though when brought together these snippets become contradictory. Regarding the meeting in Maseru Mr Govender pointed out that PW8 indicated that accused 2 was sitting inside the car at Lake Side while PW14 says accused 2 was standing outside. In this regard he referred to page 271 of the typed record and compared the text there with one at page 370 where PW14 said the owner of the car was standing outside. The learned counsel submitted that this is a contradiction in evidence of the crown's star witnesses. He further pointed out that in relation to a certain stage PW14 says Mothobi and accused 2 went outside for a short time, while PW8 says the discussion ensued between accused 2 and Mothobi. Learned Counsel referred to much evidence by PW8 regarding introductions and use of nicknames. He contended that from the record is suggested in PW8's evidence that nicknames which were being used were names generally known during LLA days, yet PW8 later says by false names he meant these names. He pointed out that PW8, made an attempt to distance himself from what he meant by false names and at the same time attempted to tailor his evidence to accord with that of PW14. Mr Govender pointed out that PW14 further said there was an agreement to use false names but despite the agreement the false names were not used. The court was referred to p.372 of typed record. Learned Counsel stated that what is relevant is that PW14 says "we agreed to use false names but Mothobi failed to use those names", but PW8 insists these were used. The learned Counsel submitted this is a material contradiction. He reiterated that PW8 in his evidence-in-chief had said introductions were made at the gate outside Lake Side, but later suggested these were made at Ha Mabote in direct contradiction of what he had said earlier but still in his evidence-in-chief. Learned Counsel stressed that, introductions, the manner in which the car was parked and the question whether the car owner was standing are all material for the conspirators are privy to the conspiracy. Introductions, he said, are important for these people are on a secret mission; thus in approaching accused 2 it is important to give false names. In the interests of the security paranoia of which PW14 was obsessed, such that when walking the conspirators had to do so by separating into sets of two by two as they approached the car, this is so material as not to be ignored by Court because what is dealt with here is conspiracy. He pointed out that PW8 is unable to give plausible explanation of why his evidence-in-chief given earlier differs from his evidence-in-chief given upwards of one and half years later. Mr Govender relied on an extract paginated separately from the typed record and referred to page 9 where PW8's evidence regarding the essence of the discussion between accused 2 and Mothobi was that accused 2 said he "had failed to get it". But PW14, it was pointed out, said the discussion was detailed and he himself was an active participant who even said he was not happy that accused 2 came while the President did not. Learned Counsel stressed that there was a lot of discussion about the Chairman and the Vice Chairman but PW8 doesn't say it. Mr Govender stated that PW14's attitude is difficult to reconcile when bearing in mind that he said PW8 should not come on account of PW14 being security conscious. He submitted that it was strange that there is no evidence by the Crown why this discrepancy exists. He reiterated that PW8 said all he heard was accused 2 say "Couldn't get it" - what; firearm, money or transport? He pointed out that when asked if the question of firearm, money or transport was discussed, and where he got this notion from PW8 said "I assumed these were the items". He stated that PW8 admitted he was speculating and that this is all his evidence amounted to. He asked the court to observe that there is also PW14's evidence on the one hand and that it appears that the crown's attitude to court faced with this predicament is "well take your choice". He demurred at the fact that the substance of conspiracy has not been established. Instead there are two crown witnesses who contradict each other on the issue of conspiracy. Thus the crown, though bearing the onus to prove its case beyond doubt against the accused, has failed to do so, so it was submitted. Nonetheless the learned Counsel plodded on. He pointed out that PW14 said the discussion was on transport and food or entertainment. Referring to page 374 of the typed record he indicated that PW14 said it wasn't discussed on that day how to participate. Learned Counsel accordingly submitted that up to this stage and moment there was no consesus to constitute conspiracy. He demurred at vague references to transport, entertainment and money. He said it is conceivable that those in attendance could have conducted a detailed discussion and that for the items stipulated detailed knowledge of transport, finances and entertaiment would have been necessary. He accordingly submitted that it created difficulties for the court to rely on this evidence to convict the accused. With regard to the 2nd meeting in Maseru, the learned Counsel stated that if the crown sought to rely on accomplices' for the evidence of furtherance of the conspiracy, here also it had failed to establish that beyond reasonable doubt. He emphasised that the conspiracy set out in the charge sheet is what the accused are charged with. The conspiracy is said to have been to kill Sam Rahlao. But the evidence up to the meeting in Maseru shows there was general attitude to kill the Bank management, so it was pointed out. Thus conspiracy, it was submitted, to kill Sam Rahlao must have arisen at some meeting. The learned Counsel demurred at what he observed as evidence having been conveniently packaged into what is referred to as the 2nd meeting in Maseru. He denounced the fact that only one state witness refers to this 2nd meeting in Maseru - an accomplice at that. He pointed out that there was confusion in cross-examination regarding this in PWl4's evidence but the latter nonetheless maintained there was such a meeting. Mr Govender cast doubt as to the existence of the intermediate meeting - which accounts for a total of three out of two meetings - on the grounds that it is identical to the first meeting in the significant aspect of the modus operandi of these two meetings. Learned Counsel submitted that it is highly unlikely that both meetings would have such identical modus operandi. He intimated that the fact that the two meetings are identical suggests that the intermediate meeting is a fabrication. He stressed that, facilitated by the similarity of the modus operandi the intermediate meeting offered an ideal opportunity to fabricate. Mr Govender intimated that this fabrication was no accident. He said it had a sinister purpose to lend credibility to "this web of conspiracy" and in turn is convenient to have this intermediate meeting so that evidence of pointing out that PW14 says the intermediate meeting was concerned with pointing out potential targets can come out. He demurred at the fact that PW14 doesn't say who was to do that and where the agreement to that effect was made and when. He again deprecated what he termed snippets of evidence arising from PW14's imagination. He entreated the Court to reject the evidence that accused 2 pointed to certain vehicles parked as Lancer's Inn as absurd. Referring to the evidence that a blue mercedes benz car and a bakkie were pointed out, he formulated a proposition that if there had been an agreement to point out these vehicles as targets and that they related to PW15 as their owner, a suggestion is in evidence that accused 2 had easy access of the Registration numbers of these vehicles. So, if there was an intention to kill PW15 it would have been easy for accused 2 to supply the Registration numbers to the assassins. In my view learned counsel ignores the fact that when so seen these vehicles were in town; whereas PW14's evidence was that the purpose for pointing at targets was so that the assassins could later attack say PW15 when he is at the relevant house. The general plan having been that victims be attacked while at home after work. He submitted that it is unbelievable that accused 2 would just . point at a blue mercedez benz and say this is one of them. Further that it is inconceivable that people intent on the killing would behave in this manner. The Court was referred to p.384 of the typed record in support of the discredit that it was suggested must adhere to PWI4 for saying "accused 2 showed us a vehicle blue in colour and a van with a white canopy". The question was posed why would accused 2 go to elaborate lengths to point out PW15's vehicles when the easiest option was there : as PW15 was in the Banking Industry with accused 2? It was further intimated that it was easy for accused 2 to give to the assassins the description of all these things and their owner instead of the court being provided with a story whereby PW14 is seen being taken on a grand tour to show him vehicles with "D" Registration letter. No description being given in the process. It was submitted that such a state of affairs would lead to a situation where assassins would hit a wrong target. It was further submitted that it makes no sense that conspirators should act in this fashion. Further that absence of logic and probability make these a fabrication. But reference to the words of Schutz J. A as he then was; referred to earlier in this judgment; would be fruitful in answering Mr Govender's apprehensions. The learned Counsel went on to raise a hypothetical question why didn't conspirators consider killing PW15 and taking one of his vehicles. In my view that was not his day. He expressed regrets that no evidence was given why this option was excluded. Consequently he submitted that coming to Maseru was a fabrication and that the evidence of accused 1 and 2 must be preferred to that of PW14. It was pointed out that PW14's evidence has not been corroborated and that he being a single witness who is also an accomplice the Court should caution itself accordingly. Moving on to corroboration Mr Govender indicated that on the question of the shooting the crown relies on the evidence of a single witness PW14. He urged that corroboration has to be found in the medical evidence. He submitted that medical evidence corroborates accused 1's evidence. He further contended that PW14's evidence as to the shooting is at variance with that of PW16 Ngoana-a-Nduba Phatsoane who, it was submitted, corroborates accused 1 that PW14 was in control. I disagree with both these contentions for reasons given earlier in this judgment. He indicated that accused 1 said immediately after the shooting he was ordered by PW14 to drive the vehicle and that he was afraid of PW14 who was in control of Mothobi and accused 1 and was holding a weapon he was threatening them with. Further that the shooting had been, he reiterated, a frolic of PW14 himself, Mr Govender submitted that PW16 bears out this in so far as PW14's behaviour and aggressiveness were witnessed by PW16. Learned Counsel buttressed his submission by reference to the fact that PW16 said after the vehicle crashed PW14 was intent on killing Mothobi. He dubbed as a feeble attempt the Crown's endeavour to explain away and water down what he maintains is significant in this trial. He pointed out that the circumstances under which PW16 says he saw accused 1 lift up a gun only serve to show he was mistaken. For this submission he made much of the fact that it was at night and that PW16 claimed he saw this because the headlights were on. He indicated that PW16 said there was no light in the vehicle. Though conceding that the Court may draw an inference that in view of the fact that headlights were on, then the dash board or panel lights would also have been on; the fact of the matter is PW16 was cross-examined on this and didn't come out with means by which he saw accused 1 raise a gun. Learned Counsel accordingly submitted that given the size of the gun coupled with the fact that it was dark PW16 must have been mistaken. As I stated earlier there is no suggestion that PW16 was also mistaken in saying he heard the words ascribed to accused 1 in this instance. However Mr Govender submitted further that PW16 having committed himself to saying he saw this gun tries to rationalise the commitment and creates pitfalls for himself. I disagree. Learned Counsel buttresses this submission by saying PW16 gives expression to his commitment and fails to avoid the pitfalls by saying PW14 searched for his own gun, took it and cocked it. He further says if that was the case accused 1 would have shot PW14. Much was made by learned Counsel of the fact that PW16 said he was terrified. I however disagree with the submission that PW16 was mistaken in what he said he saw and have dealt with that aspect of the matter earlier in this judgment. Mr Govender stated that accused 1 chose to crash the car to avoid PW14's threats. He stated that in regard to difficulties attendant on the crown case, it is trite law that the crown bears the onus to prove its case beyond reasonable doubt; but in view of the criticisms pointed out, this the crown has failed to do. Mr Govender pointed out that within the context of this case reside accomplice evidence and the requirement imposed by law in the court's approach in assessing evidence of accomplices. The law enjoins caution in dealing with accomplice evidence. He pointed out that the cautionary rule is part of the mechanism required in establishing whether the crown has proved the case beyond reasonable doubt. I agree with this statement. Learned Counsel accordingly submitted that accused 1's evidence should be looked at in relation to the totality of evidence pertaining to this saga. He pointed out that accused 1 is protrayed by the crown as a man who has said nothing in the entire episode except a few things he said in relation to the shooting itself. Learned Counsel urged the Court to have regard to the type of person accused 1 is. That he is a simple man and not very intellingent. It was said that the Court should bear in mind that accused.1.was Mothobi's social friend, and of PW14 and 8 as well; that all these were drinking companions who were fond of their drink. Learned Counsel urged the Court to heed accused 1's statement that he went along with these people to Maseru. That therefore drinking was what they engaged in mostly. He urged the Court not to overlook the fact that PW14 and 8 said accused 1 said nothing at the first meeting; and that they admit accused 1 was drunk. So, accused 1 being that type of man his evidence reflects his simplicity. The Court was asked to weigh these factors against the case for the Crown. In the process the Court would find, it was submitted, that accused 1's version having regard to the contradictions in the crown case is reasonably possibly true, so his version must be preferred. However it was submitted that it is trite law that because the crown bears the onus, the court must have regard to the crown evidence and if the crown has failed to prove the case beyond reasonable doubt it is irrelevant whether accused 1 is telling the truth or not. I agree with this submission. Mr Govender argued that further difficulty facing the crown is that the person who features prominently in the crown case is Mothobi whose evidence would be crucial in proving the conspiracy and the murder. He pointed out that no reason has been tendered by the crown why Mothobi was not called as a witness, even though he was available. He accordingly urged that the court should draw adverse inference on the crown's failure to bring Mothobi to court. With regard to the doctrine of reasonable doubt the court was referred to S vs Glegg 1973(1) SA 34 at 38 and 39 which unfortunately is written in a language that this Court has no knowledge of. However the rubric provides at p.34H - "The phrase 'reasonable doubt' in the phrase 'proof beyond reasonable doubt' cannot be precisely defined, but it can be said that it is a doubt which exists because of probabilities or possibilities which can be regaded as reasonable on the ground of generally accepted human knowledge and experience. Proof beyond reasonable doubt cannot be put on the same level as proof beyond the slightest doubt, because the onus of adducing proof as high as that would in practice lead to defeating the ends of criminal justice". I was also referred to The South African Law of Evidence 4th Ed. by Hoffmann and Zeffertt p.525 where a quotation from R. vs Difford 1937 AD 370 at 373 is cited that : " no onus rests on the accused to convince the court of the truth of any explanation which he gives. If he gives an explanation even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal". Similarly in R. vs M 1946 AD 1023 at 1027 Davis AJA said : " the court does not have to believe the defence story, still less does it have to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true". The Court was also referred to the celebrated phrase of Lord Denning on the exposition of the criminal standard in Miller vs Minister of Pensions (1947) 2 All ER 372 at 373 that : "It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it's possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice". There would seem to be a subtle and intrinsic conflict between Lord Denning's statement that if an accused's story, though possible, is improbable then the onus is discharged; and Greenberg J's assertion in Difford above that an improbability of the accused's story is not enough for the discharge of the onus resting on the crown. But it is gratifying to note that this apparent conflict or conflicting distinction is, in my view, rendered nugatory by the fact that in either case the two authorities are agreed that the Benchmark is that at the end of the day there should be proof beyond reasonable doubt before it can be said the prosecution has discharged the onus. In S vs Kubeka 1982(1) SA 534 at 537 F-G Slomowitz AJ said: v.....whether I subjectively disbelieve him is, however, not the test. I need not even reject the State case in order to acquit him. It is not enough that he contradicts other acceptable evidence. I am bound to acquit him if there exists a reasonable possibility that his evidence may be true. Such is the nature of the onus on the State". At 538 G the learned Judge adds : "The rule that the State is required to prove guilt beyond a reasonable doubt has on occasion been criticised as being anomalous. On the other hand, the vast majority of lawyers (myself included) subscribe to the view that in the search for truth it is better that guilty men should go free than that an innocent man should be punished. More especially is this so in capital cases". An abstract in Smook vs The State 1961 PRENTICE HALL H 228 puts the matter conversely as follows : "If an accused person elects to give evidence and gives an explanation it should be accepted unless the court is satisfied beyond any reasonable doubt that the evidence is false" But R vs Kopo CRI\T\19\74 (unreported) at pp 18 and 19 is authority for the view that the court is not bound to accept any explanation given by the accused, no matter how fanciful, remote or improbable. S. vs Ntsane 1966 PRENTICE HALL H 408 is authority for the view that a charge has not been proved beyond a reasonable doubt if the basis for conviction is of a single witness who later in evidence as to the identity of an accused says : "I am most certain now". In S. vs Ngoma & Others 1962(2) SA 209 at 211 Hennochsberg J said : "Taking the totality of the evidence, that is to say, considering the evidence both for the State and for the defence, despite features that may be said to be unsatisfactory and even unconvincing, we are satisfied that we cannot convict the accused, because the explanation given by him and supported by other witnesses was not beyond any reasonable doubt false". Having made reference to the above authorities I feel it would be unpardonabley remiss not to make reference to the pragmatic approach adopted by Malan JA in R. vs Mlambo 1957(4) SA 727 at 738 where, in line with his advocacy for adoption of common sense, and thereby disapproving of the unrealistic recourse to the realms of conjecture when there is at hand material which furnishes perfectly sound and rational solution of the problem the learned Judge said "In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused" I am of the opinion that the last sentence in the foregoing passage merits special consideration and its importance should not be underrated. The learned Judge says further : "An accused's claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case. Moreover, if an accused deliberately takes the risk of giving false evidence in the hope of being convicted of a less serious crime or even, perchance escaping conviction altogether and his evidence is declared to be false and irreconcilable with the proved facts a court will, in suitable cases, be fully justified in rejecting an argument that, notwithstanding that the accused did 21? n ot avail h i m s e lf of the o p p o r t u n i ty to m i t i g a te the g r a v i ty of the o f f e n c e, he should n e v e r t h e l e ss r e c e i ve the same b e n e f i ts as if he had done s o ". Mr G o v e n d er u r g ed the court to be w a ry of r e l y i ng on the evidence of accomplice witnesses to convict. He accordingly stated that the court should h a ve regard to p r i n c i p l es e n u n c i a t ed in v a r i o us authorities in an e n d e a v o ur to r e d u ce the risk of convicting an innocent person. He p o i n t ed out that as a result of this inherent danger these p r i n c i p l es involving c a u t i o n a ry rule h a ve b e en evolved as indeed the case of S vs H l a p e z u la & Ors 1965(4) SA 439 at 440 D-H amply b e a rs t e s t i m o ny in this c o n n e c t i on at D-H where Holmes JA said : "It is well settled that the testimony of an a c c o m p l i ce requires p a r t i c u l ar scrutiny b e c a u se of the c u m u l a t i ve effect of the following f a c t o r s. First, he is a self- confessed c r i m i n a l. Second, various c o n s i d e r a t i o ns m ay lead him falsely to implicate the accused, for e x a m p l e, a desire to shield a culprit or, p a r t i c u l a r ly w h e re he has not been sentenced, the h o pe of c l e m e n c y. Third by r e a s on of his inside knowledge, he has a d e c e p t i ve facility for c o n v i n c i ng d e s c r i p t i on - his o n ly fiction b e i ng the substitution of the accused for the c u l p r i t. Accordingly there has grown up a c a u t i o n a ry rule of p r a c t i ce requiring (a) r e c o g n i t i on by the trial Court of the foregoing dangers, and (b) the safeguard of some factor r e d u c i ng the risk of a wrong conviction, such as corroboration i m p l i c a t i ng the accused in the c o m m i s s i on of the o f f e n c e, or the absence of gainsaying evidence from him, or his m e n d a c i ty as a w i t n e s s, or the i m p l i c a t i on by the accomplice of someone n e ar and d e ar to h im Satisfaction of the cautionary rule does n ot n e c e s s a r i ly w a r r a nt a c o n v i c t i o n, for the u l t i m a te r e q u i r e m e nt is proof beyond reasonable d o u b t, and this d e p e n ds u p on an appraisal of all the evidence and the degree of the safeguard aforementioned". The court was referred, in addition to the above authority, to Rex vs Ncanana 1948(4) SA 399 at 405 where Schreiner, JA stressed that even where statutory requirements have been satisfied "....caution in dealing with the evidence of an accomplice is still imperative" and went on to say "what is required is that the trier of fact should warn himself. of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness perculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by someone; so that satisfaction of the requirements of section 285 does not sufficiently protect the accused against the risk of false incrimination by an accomplice. The risk that he may be convicted wrongly although sec, 285 has been satisfied will be reduced, and in the most satisfactory way, if there is corroboration implicating the accused. But it will also be reduced if the accused shows himself to be a lying witness or if he does not give evidence to contradict or explain that of the accomplice. And it will also be reduced, even in the absence of these features, if the trier of fact understands the perculiar danger inherent in accomplice evidence and appreciates that acceptance . of the accomplice" and rejection of the accused is, in such circumstances, only permissible where the merits of the former as a witness and the demerits of the latter are beyond question". I have taken into account that PW8, PW14 and accused 1 are friends. The fact that they used to drink together is indicative of this. The fact further that PW14 and accused 1 were travelling eating and drinking together on the two occasions immediately preceding the deceased's death amply indicates that PW14 had no ground for rancour against accused 1. In fact accused 1 was dear to him as a former comrade-in-arms and a frequent drinking companion. Hence this reduces the risk of danger that PW14 could go out of his way to falsely incriminate accused 1 given these set of circumstances. In Rex vs Gumede 1949(3) SA 749 at 758 Van den Heever J. A. cites Davis A. J. A. 's statement in Rex vs Kristusamy 1945 AD 549 at p. 556 in the following passage : "After all, one cannot expect a witness of that class to be wholly consistent and wholly reliable, or even wholly truthful in all that he says. If one had to wait for an accomplice who turned out to be a witness of that kind - or indeed anything like it - one would, I think, have to wait for a very long time That fact was fully recognised in Rex vs Levy 1943 AD at p.561 and in Rex vs Kubuse & Ors 1945 AD 189. But it is, of course, necessary that the Court should be satisfied beyond reasonable doubt that in its essential features the story which he tells is a true one. If more than that were required the administration of justice would in many cases be rendered impossible". In R vs Nqamtweni and Anor. 1959(1) SA 894 at 898 (G-A) to 898 D the principles enunciated by Schreiner in Ncanana above are given further explanation and highlighted by Ogilvie-Thompson J. A. as he then was. See also application of the cautionary rule with regard to a single witness who is a child or a complainant in sexual cases in S vs Snyman 1968(2) SA 582. Mr Govender submitted that the evidence of PW8 and PW14 failed to meet the requirements laid down in the statement of the law outlined above and that the court has no alternative but to acquit accused 1. He made so bold as to conclude his address on a high note that in view of the submissions he made, any judgment short of an acquittal will be a travesty of justice. I disdain to notice the ill-disguised insolence and petulant presumptousness contained in this remark. Mr Teele appearing for accused 3 favoured the court with written submissions. For these the court is greatly indebted to him. In his submissions Mr Teele indicated that the only question to determine is whether accused 3 is guilty of the offences spelt out in Counts 1 and 2. It is indeed trite law that at this stage of proceedings the test to apply is whether the crown has proved its case beyond a reasonable doubt. It is a fact that accused 3 closed his case at the closure of the case for the crown and did not give any evidence in person or call any witness in his defence. Mr Teele submitted that the Crown had not proved its case against accused 3 beyond reasonable doubt. He pointed out that through the opening address by the DPP an impression was created that accused 3 was directing and supervising the illegal activities charged. This impression derived from the DPP's address that accused 3 was the brain child of the facts complained of in the indictment to the effect that accused 3 was lurking in the background. The learned counsel submitted that no evidence was adduced to substantiate this charge against accused 3. Mr Teele indicated that PW14's evidence states that he was appraised by Mothobi of a strike embarked on by the employees of the Barclays and Standard Banks under the leadership of LUBE. Learned counsel stated that PW14 by his own admission is one among others who shot the deceased near Lake Side on the night in question. He stated that accused 3 was not anywhere near the scene of crime at the point in time; nor is there evidence that he had conspired with any of the murderers of the deceased to commit the offence or offences charged. Learned Counsel for accused 3 is of the view that the crown in submitting that accused 3 is implicated in the offences charged in Counts 1 and 2 relies on the evidence of PW14, PW15, PW7 and PW20 Mrs Beukes. He maintains that it is hardly likely that the crown could rely on PW21's (Mosuhli's) evidence and thinks the crown is precluded from doing so on grounds of the very nature of that evidence. He dealt with the law relating to the nature of the offences and admissibility of evidence where it is alleged there was a conspiracy. In this regard he referred to Butha Phalatsi and Ors vs Rex 1971-73 LLR 92 (CA) at p. 94 where Maisels J. A. approved the dictum of Van Winsen J. in R vs S 1959(1) SA 680 at p.683 that "Conspiracy to commit a crime requires an agreement on the part of two or more accused to commit the criminal act Mere intention is insufficient : there must be an actual concurrence of minds in an agreement to do the act in question. Such concurrence need not necessarily be by way of explicit, spoken words, for the agreement to commit a crime, as any other agreement, can be arrived at tacitly and by conduct." C\f Jacobs vs Henning 1927 TPD 324. In S vs Hogan 1983(2) SA 46 at p.65 van Dyk, J says : "Generally speaking, a conspiracy involves an agreement, express or implied, to commit an unlawful act. When the conspiratorial agreement has been made the offence of conspiracy is complete; it has been committed and the conspirators may be prosecuted, even though no performance has taken place." ' Mr Teele referred the Court to Ahern vs Rex 1980 Australian Law Reports at 167-168 where it is stated :- "The basic distinction between conspiracy and other that on the offences for our present purposes is charge of conspiracy combination is also an element in the offence and not merely a ground for the admission of evidence". I agree with Mr Teele's observation and submission that as far as the question of admissibility of evidence is concerned the authorities seem to be agreed that acts or statements of others in a conspiracy done or said in the absence of one of the accused are admissible if they are executive or, put differently, if they are done or said in furtherance of common purpose of the conspiracy. The learned Counsel referred the Court to S vs Moumbaris & Ors 1974(1) SA 681 at 685H - 686A where Boshoff, J. said : "Once there is evidence aliunde of a common enterprise and the parties thereto, the acts and statements, executive as opposed to narrative, of one of the socii crminis or co-conspirators are admissible to confirm the scope of the common enterprise or the steps taken to carry it out, and there seems to be no reason why such evidence should not be used to confirm the other evidence as to the parties who took part therein". In support of the above passage Mr Teele cited a passage in Ahren supra at p.168 where a similar view is expressed in the following words :- "In our view the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused where it is established that there was a combination of the type alleged that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence apart from the acts or words that the accused was also a participant". Learned Counsel laid stress on the words beginning with the phrase reasonable evidence op.cit. and stated that they are particularly pertinent insofar as the position of accused 3 in' this trial is concerned. He threw down the gauntlet to the crown to identify reasonable evidence in line with the principle embodied in the phrase just referred to above. Mr Teele in seeking to show inadequacies in the crown case indicated that PW14 stated that he did not know accused 3 by name or facially. He indicated that PW14 said Mothobi told him that they intended going to the Republic of South Africa to recruit ANC people who would help conduct the strike expeditiously. Mothobi confided this to PW14 because he knew him. PW14 said only threats were mentioned and not killing. Then Mothobi brought PW8 and accused 1 into the scene. PW14 said a decision had been reached and a meeting set for Maseru. Learned Counsel demurred at the fact that no details were supplied in evidence as to who had set the meeting and that the DPP did not even seek to find out this aspect of the matter. Mothobi is said to have said the three men i.e. accused 1, PW8 and PW14 would be led to Maseru to meet the Committee and Chairman whose name was not mentioned. Mr Teele laid stress on the fact that Mothobi hand picked PW14 out of the intimacy between the two and conjectured that possibly accused 1 and PW8 were hand-picked on similar grounds. He pointed out that it doesn't seem to be the Crown's position that these other people were solicited at anybody's instance but Mothobi's. Learned Counsel stated that no evidence suggests that Mothobi professed to have made a prior arrangement for the meeting proposed for the Committee or Chairman as the case may be. The group set out for Maseru and find neither chairman there nor indeed the committee. Learned counsel attaches significance to the fact that neither PW14 nor PW8 expresses surprise at the absence of the Chairman and or the Committee. Learned counsel called in question the admissibility of Mothobi's activities in Leribe as evidence regarding conduct or utterances that were made in furtherance of a conspiratorial purpose. Emphasising that this question of admissibility must be answered in the negative he pointed out that the charges before court are of murder and conspiracy to murder not for conspiracy to threaten individuals because threats may fall within a wide range which, however, cannot include murder. Bearing in mind that authorities are clear that a conspiracy may be implied or express, I find it difficult to comprehend the logic behind the statement that an overt act to intimidate, in the light of the fact that as the conspiracy thickened not only intimidation was encompassed but killing also, should exclude conspiracy to murder. Learned Counsel makes much of the fact that PW14 is not corroborated, by his co-accomplice in regard to the fact that he insisted that henceforth accused 2 would be the only person they would deal with now that the Chairman was absent. But accused 2's evidence itself is to the effect that PW14 expressed dissatisfaction at the absence of the man he had been made to think they would meet. Mr Teele invited the Court to consider it striking that PW14 said there was no discussion of how they were going to be involved in the strike on the day they met with accused 2; except that Mothobi left matters with accused 2 to see with his Chairman how PW14 and his companions would get transport, money for food and drinks. Branding this a typical fairy tale learned counsel invited the court to consider whether it makes sense that questions relating to transport money, food and drinks could come into the picture without any clear understanding on how the accomplice and his colleagues would be involved. But strange as this might seem evidence indicated that accused 1, PW8 and PW14 were supplied with free food, drinks and transport on all occasions any of them came to Maseru in company of or at the behest of the link man Mothobi. Learned counsel pointed out that PW8 said he had agreed to come to Maseru to come and discuss,. Yet in contradicting PW14 he said he expected, among other things, guns and; it appeared accused 2 had not brought things Mothobi had expected and vice versa. Mr Teele therefore in this instance sought to rely on Ahren and Moumbaris above that there be evidence aliunde or evidence apart from acts or words that the accused was also a participant before the acts of other people could be used to reflect upon the accused. Thus he emphasised that there is no evidence that accused 3 was a party to any conspiracy. But in my humble view the fact that in the first occasion when the party from Leribe failed to meet the President, does not preclude that on subsequent occasions that Mothobi met him did acquaint the President of the progress of the plot given that the general agreement as adduced in evidence is that those in management had to be eliminated. There is evidence that accused 3 ordered that Mothobi should be given M15 by PW7. There is further evidence that PW14 observed in one of the occasions, when other evidence shows that Mothobi had met with accused 3 and 2 seemed to have a lot of money, given that he was not at the time earning a salary. There is also evidence that the President asked accused 2 to give a lift to Mothobi who had in part been in exclusive company of accused 3 and were later joined by accused 2. That day again Mothobi was in company of people from Leribe who had nothing to do by way of assisting industrial action. It would be extending credulity to absurdity if one can ignore the fact that on this occasion the failure of Mothobi's party to meet the President was in line with PW14's rule that only accused 2 was the man the conspirators were to deal with. It would indeed be naive to maintain that accused 3 therefore was effectively no part of the conspiracy, given that he kept PW7 at arms length regarding things that PW7 was entitled to know, and that he was conveniently kept away from meeting with people from Leribe who had on previous occasion been so eager to meet him following the initial agreement in Leribe, and assuming accused 2 was ignorant of the purpose for which they were to meet accused 3. Surely on the last occasion Mothobi who was armed that day as the accepted evidence indicated, could not have kept the President in the dark about the purpose for which he had come to Maseru given that this was the D-day. Needless to say the purpose for Mothobi coming to Maseru with his men is manifested by the fact that the deceased met his death that day. An additional factor weighing heavily against accused 3 is his subsequent conduct after the deceased's death as indicated earlier. Much of what Mr Teele submitted in his invaluable heads was treated in the analysis of the evidence dealt with earlier in this judgment. Going through it again would merely be repetitions and lead to prolixity. In any event he himself very sensibly and dutifully associated himself with the addresses on evidence by his predecessors for the defence in respect of accused 1 and 2. Mr Teele however reiterated with great emphasis that accused 3 according to the self-confessed murderer, PW14, never met with either PW14 or together with those alleged to be in the plot. But as the law stands it doesn't matter that a man who has embraced a conspiracy and its purpose, happens to be absent when finer details of an original plan are being put into effect. Learned Counsel referred me to S vs ESsack and Another 1974(1) SA at p.16 letter D. where Muller J. A. said : "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had' been actually observed. In other cases the inference does not go But if there are no beyond reasonable probability. positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture". Mr Teele submitted that the way the DPP in his summation demonised Mothobi it is as if anyone he meets with is equally tainted. He accordingly submitted that on the other hand a possibility cannot be excluded that when Mothobi met the President nothing sinister was discussed. That indeed is possible but not in the least probable given the accepted purpose for which Mothobi had set out from Leribe for Maseru on the D-day and given that the plot was to eliminate obstructionists in management of the two Banks in question. Furthermore reliance on accused 2's attempt to distance his President from any involvement cannot avail in respect of accused 3 in the event that accused 2' s attempt is shown to be based on untruths. Learned Counsel sought to persuade the Court to view accused 3's case in the light of Jacobs C. J.'s remarks in Rex vs Botso Mashaile 1971-73 LLR 148 at p. 163, B that :- "Where in a case such as this one there is no proof that a particular accused took part in the actual assault resulting in the death of the victims mentioned in the charge, the court must of course be satisfied that such an accused made common cause with the actual killers". Learned Counsel accordingly submitted that in the absence of proof that when accused 3 met with Mothobi any crime was thereby being committed it would seem accused 3 should be entitled to acquittal because in any case even where an accused was present when a crime charged was committed there would still be need to prove that he made common cause with the perpetrators. This submission however overlooks the fact that on the first occasion when the perpetrators came to Maseru it was to meet the President but by sheer coincidence had to make do with his substitute. The general purpose was to find out if plans were in place. What ensued thereafter was in accordance with furtherance of the conspiracy. In relation to the 2nd meeting held in Mohale's Hoek where it was resolved that those who went back to work should be taken out and whipped, Mr Teele submitted that it is trite; that even where an accused is confronted with direct accusation and he doesn't deny it, it doesn't follow that he should be taken as having accepted. He further stated that where an accusation is made the law lays down that there would be conviction against an accused only if by word or conduct he accepts the statement or accusation made in his presence. The court was referred to R vs Abrey 1959(2) SA 76 at 81 D where Lord Atkinson in R vs Christie 1914 A. C. 545 at pp 554 and 556 had this to say :- "The rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of facts stated, save so far as he accepts the statement, so as to make it in effect his own. He may accept the statement by word or. conduct, action or It is what the accused accepts as demeanour his own of the statement made in his presence that is evidence against him, not the statement itself". C\f Jacobs vs Henning above. Learned Counsel accordingly submitted that at the very least accused 3 is entitled to benefit of doubt. Mr Teele referred the Court to Rex vs Moerane and Ors 1974-5 LLR 212 at 229 E-30 where Mapetla C. J. said : "The failure of an accused to give evidence may, in certain circumstances, be taken as a factor in determining whether his guilt has been proved beyond reasonable doubt" and to S vs Khomo and Ors 1975(1) SA 344 at pp 345-346 where Miller J said : "It is well known that an accused person, although not obliged to say anything, may nevertheless assist the State case when he remains silent, depending upon all the facts and circumstances. When I say he may assist the State case, I mean no more than that his silence is one of the factors which may be taken into account in assessing the weight of the evidence in its totality, and may be given some weight, depending upon the facts and circumstances. In general, greater weight will be attached to silence where there is direct testimony implicating the accused, which the Court could reasonably expect he would simply explain away if it were not true, than in a case where there is no such direct evidence, and where the question of his guilt or otherwise depends upon inferential reasoning (c\f S vs Letsoko 1964 (4) SA 768 AD at p.776) . In such a case an accused person might well take up the attitude that he concedes all the facts proved, but he challenges the ability of the Court to draw an inference of guilt from those facts, and, if that is his view, his failure to give evidence may not be attributable to any consciousness of guilt on his part, but to his confidence that the evidence does not establish guilt and does not require to be answered". Mr Teele accordingly drew the court's attention to the fact that the crown had not asked the court to draw adverse inference from accused 3's choice not to give evidence. If there has been any such omission on the part of the crown I would hasten to point out that it is particularly in respect of similar omissions that Curlewis J. A. in R vs Hepworth 1928 AD 265 at 277 made an admonition that "a criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side". I say so because apart from the fact that Mr Mdhluli repeatedly in his address, before he replied after other counsel had made their answering addresses, set no small store by the fact that accused 3 had taken a risk by not giving evidence, he further referred the Court to S vs Theron 1968(4) SA 61 pp 63 D and 64 D, a case very relevant to the subject of an accused's failure to give evidence. See page 86 of the addresses. I agree with Mr Teele's observation that PW14 is a very elaborate witness and that he was inclined to say more than what he was asked. Indeed PW14 volunteered details both in his 'evidence- in-chief and under cross-examination. He insisted to finish what he had set his mind referring to before the DPP or a cross-examiner could lead or take him on to another subject. On the above account Mr Teele seeks to make capital in the sense that PW14 does not say anything was said by accused 3 to facilitate the agreement or to associate himself with the nature of their illegal purpose or that he knew about it. This observation merely indicates to me that PW14 was not bent on falsely implicating accused 3 or inventing any stories that might reflect him in bad light. To that extent PW14 has not discredited himself in the eyes of the Court. Even in circumstances where he is contradicted by PW8, PW14's version proved to be a dependable one as corroborated by objective facts. Compared with PW8, PW14 proved to be more intelligent and possessed of good recollection of facts he deposed to both in regard to what happened before trial and during trial. Indeed he time and again corrected his questioners in regard to the sequence of events or some fact which appeared to have been put out of context, or located at a wrong stage of the tale he was narrating, especially by Mr Govender. PW14 is at least corroborated by PW8 in a satisfying manner that contrary to what had been suggested namely that the first meeting in Maseru was for the purpose of expressing solidarity and sympathy with the strikers, in fact it was not. From what I am able to gather its overall purpose was to find if the plans for the unlawful purpose were in place and see next how they were to be put into effect. Mr Teele sought to show that PW7 was prejudiced against accused 3; and that PW7 was so moved by this prejudice that she made it appear that continuance of the strike was due to accused 3's obduracy whereas it turned out this was due to the will of the general membership of the Union. In my view this witness's overall evidence cannot be rejected on the sole ground that she had prejudice against accused 3 who didn't find it fit to contradict her and give his own version of events in order to enable the Court to consider the merits and demerits of either side's version to the combat. Mr Sooknanan's address was long and detailed. More than 75% of it was geared at discrediting crown witnesses whose evidence tended to implicate accused 1. It seemed to me that this was done with a definite purpose that if the crown witnesses are found to be unworthy of credit in respect of evidence tendered in respect of accused 1 then application of the same rule would serve to discharge accused 2 from criminal liability. The address was indeed well-thoughtout and detailed to the minutest point. But because it related to most of what I have dealt with by way of addressing myself to what I considered to be major aspects of the evidence, it would be fitting to avoid repitition and deal, where necessary, with fresh aspects which were brought forth during his address. Moreover Mr Govender had covered a fair ground of what is pertinent to accused 1's case. Mr Sooknanan crossed swords with the learned DPP on the grounds that his opening address was contradicted in major respects which were pointed out and enumerated by Mr Sooknanan. In reply Mr Mdhluli submitted it would be misleading to regard an opening statement as evidence. The learned DPP explained that an opening statement is nothing other than a guide to indicate the sort of evidence the crown would endeavour to place before court. He indicated that it would be naive to think that mistakes never occur in opening addresses. Furthermore an opening address is nothing but a summary stating matters briefly regarding evidence to be placed before court. Thus where there is evidence clearly contradicting or is incompatible with the opening address the evidence stands notwithstanding the apparent contradiction to the opening address. The learned DPP went further to indicate that an opening address may be used to confront a witness where it doesn't tally with the evidence in order to show that the witness may have said something different during consultation with the crown or is inconsistent therewith. Be it real or imaginary. The central question is does an opening address constitute evidence? I think not. This court has in any event pronounced itself that this is not the case. See CRI\T\44\95 Rex vs Letsie & 2 Ors (unreported) at p.4 dated 29th January, 1996. Mr Sooknanan indicated that because it is possible to make an accused person a witness against the other accused charged with the same crime by the method of separation of trials the crown should have called Mothobi as a witness as his testimony is crucial in this proceeding. He referred the court to Rex vs Von Kleist 1923 TPDp.52-approved in Rex vs De Mingo 1951(1) SA 36 at 39 F onwards where Centlivres C. J. associating himself with the dictum of Curlewis J (as he then was) said : " when an accused is tried separately from other accused there is no reason for not calling anyone of the accused against the particular accused who is being tried separately". It is however worth bearing in mind that the case relied on in De Mingo bore a distinction from the instant one in that the accused who was called to give evidence had already been tried and sentenced. However, Centilevres C. J. referring to proviso (a) to sec. 264 of the Act prevailing then proceeded to show that that Act "does not prevent the crown from calling a person as a witness against the accused who is tried separately, even although that person is also being tried for the same offence or has already been convicted of that offence". I would have been grateful if Mr Sooknanan referred this Court to a corresponding section in our Criminal Procedure and Evidence. Be that as it may Mr Sooknanan reconciled his standpoint with the fact that the crown being dominus litis is at large to decide how to run its case. Nevertheless learned Counsel submitted that there is a distinct feeling that Mothobi was left out because he would not have corroborated PW14's evidence. I can only in indulging myself in unwarrantable speculation say perhaps so in some respects including the saga that ensued after PW16 joined the occupants of the deceased's car, though this latter part has been well taken care of by PW16. In the result Mothobi's version supporting PW16's would have been redundant. But objective facts relating to the shooting and number of trips taken to Maseru corroborate PW14 sufficiently as indicated earlier. Indeed Mr Mdhluli in reply indicated that as to the actual shooting the only evidence adduced by the Crown is that of PW14 and submitted that regarding the point that Mothobi was one of the killers PW14's evidence stands uncontradicted, further that this evidence is corroborated by other features presented by the prosecution. See Exhibit "C". And the finding of the bullet plus spent cartridges and the dead bullet lying in the deceased's jacket afforded an important corroborative material to PW14's evidence. I agree with this submission by the learned DPP. I agree further that it doesn't help merely to make a bold statement that it hasn't been shown that Mothobi was a killer. Uncontroverted evidence shows he was there. Thus the submission has merit that evidence even of an accomplice at its lowest may be accepted when showing prima facie that Mothobi was there. Apart from the fact that this was credible evidence the question may' legitimately be asked what would then detract from the evidence if ' none has been called to rebut it? Mr Sooknanan referred the Court to C. of A. (CRI) No.21\86 Frank Lebete and Another vs Rex and urged the Court to draw an adverse inference against the crown to the effect that Mothobi would not have corroborated PW14's evidence. R vs Janko 1962(3) SA 87 was relied on in illustration of the manner in which hearsay evidence can properly be rendered admissible. This authority was referred to as having some bearing on the words PW8 said Mothobi had uttered to him, which words would have been hearsay in normal circumstances, but are rendered admissible in conspiratorial discussions. Resort was had to this authority in the event that the court did not draw an adverse inference against the crown for failure to call Mothobi as a witness. Further reliance was reposed in Rex vs Levy & Ors 1929 AD 312 at 327 where it is said : "Still, as a conspiracy need not be established by proof which actually brings the parties together, but may be shown like any other fact by circumstantial evidence the detached acts of the different persons accused, will sometimes from necessity be admitted as steps to establish conspiracy itself." I agree with Curlewis J. A's above statement. In Rex vs Cilliers 1937 AD 278 at 285 Stratford A. C. J. had this to say : in our law " we recognise the notion of association in crime and when accused are charged as socii criminis having a common purpose we apply the English rule of evidence, making statements and acts of one in furtherance of the common purpose admissible against the other or others. In our law, however, the only advantage the crown obtains by charging accused jointly as associates (Socii criminis) is to make evidence admissible against an accused which otherwise would be inadmissible". Mr Sooknanan indicated that the court would have to look for conspiracy elsewhere before it could admit PW14's evidence but that the problem would not be surmounted because an adverse inference would still be required in respect of the witness who was not called. Learned Counsel took the court through elements constituting the crime of conspiracy : that there has to be an agreement constituting the actus reus. Thus the independent intention of X and Y would be insufficient to constitute an agreement to commit the crime. There must be concurrence of minds. Therefore, so submitted the learned counsel, the terms and conditions of the agreement are of utmost importance. He further submitted that there is no consensus in the evidence before this court. Reference was made to R vs S 1959(1) SA 680 at 683 saying : "where, however, the agreement is sought to be inferred solely from the conduct of the alleged conspirators such inference must, on the cardinal rules of logic enumerated in R vs Blom. 1939 AD 188 at pp 202 and 203, be consistent with all the proved facts, and the proved facts in turn must be such that they exclude every reasonable inference from them save the one sought to be drawn". Mr Sooknanan having perceived that the crown relies on the conduct of accused 2 for a conspiracy in relation to accused 2 in that he drove to Khubetsoana or Ha Mabote, sought to water down any sinister notion likely to derive from this conduct on the grounds that a strike was going on; and that because a strike is not a tea party rivals in a strike might cause the subject matter of discussions in a strike to leak out. Thus, learned counsel pointed out accused 2's acts can be seen as a conspiracy to murder or as innocuous.. So why assume the worst? As another example of a case relevant to the question of conspiracy the court was referred to R vs Harris 1927(4) NLR 330 where it was held (i) on appeal, that the evidence was admissible to prove a system or course of conduct, and to rebut a suggestion of accident or mistake; (ii) further, that there could be no conspiracy unless two or more minds were ad idem as to their object. Learned counsel accordingly pointed out that in the instant case it has to be appreciated that what is termed conspiracy occurred while the strike was going on. That no conspiracy has been proved in which LUBE Executive is involved or accused 2 is involved. All there is are some sort of discussions which are extremely vague and embarrassing, obscured by consumption of alcohol as well. Having indicated that in all its entirety evidence seems to point at Leribe as the craddle of the conspiracy Mr Sooknanan expressed doubts whether from PW14's and PW8's testimony it could be said what was discussed envisaged the death of the deceased, conspiracy to kill PW15 or theft of the car. He thus urged that the court in considering the evidence of PW14, 8, 7, 16, 21 and 15 should have regard to that of accused 1 and 2. Learned counsel went through the evidence very closely and pointed at contradictions between PW14's evidence and PW8's. He further pointed at self-contradictions in PW8's evidence given a year earlier and that given in chief a year or so later and urged that it should be rejected as creating unsubstantiated suspicions to surround accused 2's innocent activities. He criticised PW14's 2 45 m e t h od of giving small doses of e v i d e n ce d r i b l et by d r i b l et at a time to seduce his listners into t h i n k i ng that a n y t h i ng sinister was encompassed by all those he claims had c o n s p i r ed w i th him. The learned counsel having sought to p e r s u a de the court that PW8 as a witness has been left out in the wilderness indicated that success in showing that PW14's e v i d e n ce is c o m p l e t e ly unsatisfactory w o u ld leave the a c c u s ed f a c ed w i th no case at a l l. In these circumstances PW14 w o u ld r e m a in a single a c c o m p l i ce witness surrounded by all hurdles that he could not conceivably get over. Reference was m a de to S vs M a s u ku and A n o t h er 1969(2) SA 375 at 377 where Leon J said "(4) if to satisfy the c a u t i o n a ry c o r r o b o r a t i on is sought it m u st be c o r r o b o r a t i on directly implicating the a c c u s ed in the c o m m i s s i on of the o f f e n c e. rule, (5) S u ch corroboration m a y, h o w e v e r, be found in the evidence of another a c c o m p l i ce p r o v i d ed that the latter is a reliable w i t n e s s. (6) Where there is no such corroboration, there m u st be s o me other assurance that the e v i d e n ce of the accomplice is reliable. (7) That assurance m ay be found w h e re t he a c c u s ed is a lying w i t n e s s, or where he does n ot give e v i d e n c e. (8) The risk of false a l s o, i n c r i m i n a t i on be reduced in a p r o p er case w h e re the will a c c o m p l i ce is a friend of the a c c u s e d. (9) In the absence of any of the afore-mentioned features, it is competent for a Court to convict on the evidence of an accomplice only w h e re the Court understands in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is only permissible where the merits of the accomplice as a witness, and the demerits of the accused as a witness, are beyond question. peculiar inherent danger the (10) Where the corroboration of an accomplice is offered by the evidence of another accomplice, the latter remains an accomplice and the Court is not relieved of its duty to examine his evidence also with caution. He, like the other accomplice, still h as a possible motive to tell lies. He, like the other accomplice, because he is an accomplice, is in a p o s i t i on to furnish the Court with details of the crime which is apt to give the Court, if unwary, the impression that he is a satisfactory witness in all respects." Mr Sooknanan went at length to suggest that PW14 must have been primed to tell the story that he did to Court. He pointed out that after PW14 had been kept in police custody where he w as faced with discomforts of staying in a small, unlit cell and m a de to eat food which caused him heart-burns, the temptation offered by prospects of freedom, better food in a Hotel and suddenly being treated with courtesy by police who had earlier frowned at him, w as great for PW14 to tell lies about the accused. He m a de much of the fact that PW14 said he was not afraid though he found his place surrounded by p o l i c e. He indicated that PW14 admitted to having been handcuffed during interrogations when he was in police custody and suggests that this w as further pressure exerted on him to give the sort of story that would satisfy the police. From all this Mr Sooknanan suggested it was clear colleagues who were in custody must have said it was PW14 who did the killing while PW14 said he did not. Further that PW14 felt obliged to revenge against his colleagues who might have betrayed him. Mr Sooknanan also pointed out that the defence was surprised that no confession of PW14 was produced. But suddenly allowing himself a spell of histrionics submitted that this was not surprising because PW14 had never been taken before any magistrate. A game was being played about him by police who were time and again taking statements from him. That a woman was for the "upteenth" time assigned to take PW14's statement, Mr Sooknanan suggested was to make sure that PW14 is good at repeating the statement and had not changed his mind. My difficulty with these conclusions is that, though interesting, most of them are based on no evidence or on assumptions that PW14 denies. On his part Mr Mdhluli in reply asked the Court to bear in mind what actually happened before this trial started as this would have a bearing on submissions made by defence counsel or some of them. There were originally four accused charged before the start of trial. But the 4th accused who was labelled accused 1 Mothobi absconded. The matter was postponed at least 3 times. Meanwhile attempts were being made to apprehend Mothobi to no avail. So the crown applied for separation of trials, and this instant trial commenced with the 3 accused now before Court. The learned DPP accordingly submitted that nothing adverse can be drawn against the crown because of the absence of Mothobi who was present when the killing occurred; and that whether Mothobi was a killer would be on the basis of evidence led. I agree with this submission. As to motive Mr Mdhluli submitted that this could be gathered from the fact that there was a dispute between the workers in the two Commercial Banks before the deceased was killed. The learned DPP urged the Court to bear in mind that the strike was not in accordance with provisions of the law despite that counsel for accused 1 and 2 created an impression that the strikers were in pursuit of their Constitutional Right. I indeed take cognisance of the fact that according to the Law of the land Bank employees were not entitled to strike. This law was introduced by the government which preceded the Military regime in office. According to that law Banks were designated essential services. Thus it should follow that it couldn't be strictly proper that people who tried contact with strikers dissuading them from continuing with the strike could be regarded as interfering. Nor indeed could those who remained at work be regarded as scabs. Even if LUBE members were entitled to strike it seems that they started their action the other way round; which was wrong. There should have been negotiation, ballot and declaration. Thus the DPP's submission in support of the above proposition truly serves to dispel the myth that any person who even suggested that others should come back to work was interfering with the workers' right is legitimate. So even if the deceased did so there wasn't anything unbecoming in his conduct. The same goes for PW15 and 20. The definition of conspiracy to commit a crime has been supplied in Buta Phalatsi. above. I can only lay stress on the fact that concurrence need not be necessarily be by way of explicit spoken words, for the agreement to commit a crime, as any other agreement, can be arrived at tacitly and by conduct. Mr Mdhluli pointed out that he is not at one with what was implied by counsel for accused 3; and in terms stated that in this case when referring to consipiracy in one instance he says the conspiracy was carried out. So people involved would be charged. Thus in respect of Count 2 it would still be competent to lay a charge of conspiracy because with respect to the complainant in that count nothing was done to carry out the conspiracy. Section 183(2) (a) of Act 7 of 1981 the Criminal Procedure and Evidence provides that : "Any person who conspires with any other to aid or procure the commission of or to commit (b) an offence, whether at common law or against a statute or statutory regulation, is guilty of an offence and liable to the punishment to which actually committing that offence would be liable". a person convicted of In the same vein Mr Mdhluli referred me to Principles of Criminal Law by Jonathan Burchell and John Milton. At page 363 of that book the learned authors say :- "Conspiracy involves an agreement between people that they will commit a crime. When Mac and Albert agree together that they will 'necklace' Sipho they commit the crime of conspiracy". It can be seen from this definition that the crime of conspiracy is anticipatory because intervention has taken place before the substantive crime agreed upon has been committed. Thus Mr Mdhluli submitted that although there is provision for a person to be charged under statute, in our law if the objective is carried out the person would not be guilty of the contravention of the statute but of the crime committed pursuant to the conspiracy embarked upon. The proper verdict would be murder where A and B conspire but only B carries out the objective. So clearly A would be equally guilty in those circumstances. The learned DPP referred the Court to General Principles of the Law Through Cases 3rd Ed. by Visser and Mac Mare. At page 668 the definition given of conspiracy under South African Statute is identical to the one referred to in our Criminal Procedure and Evidence above. At page 669 the learned authors point out that : " It is not necessary, to constitute a conspiracy, that anything should be done to put the criminal design into execution, for the conspiracy is complete as soon as the persons concerned have agreed together. Nor is it necessary on a charge of conspiracy that the prosecution establish that the individual conspirators were in direct communication with each other See also R vs Heyne (1) 1958(1) SA 607 (W) to the effect that on a charge of conspiracy to commit an offence proof of concerted action is not confined to direct evidence of an agreement to commit the offence but the entire conduct of each conspirator may be relied upon to establish either an agreement to commit the offence or the actual commission of the offence or both". The learned DPP submitted that it is enough that the accused is charged who is alleged to have conspired to commit a crime. Saying this he relied on Burchell and Milton above and went further to say even if an accused in question was interrupted at the state of incitement then he would be guilty of incitement to conspire. But as he went beyond incitement stage then he should be convicted of the crime charged. Referring to what accused 2's counsel referred to as conflicts in PW8"'s and PW14's evidence Mr Mdhluli asked the Court to take into consideration the fact that the question of conspiracy did not occur on just one occasion but, as he said the crown maintains, on three occasions. Reacting to the defence stand on two occasions, which they maintain were the maximum number of occasions the trippers from Leribe came to Maseru, there were no acts of conspiracy, Mr Mdhluli conceded that on the 1st occasion no clear line of action had crystalised. Only suggestions had been made. The idea that certain people should be whipped, threatened or killed or that something be done to ensure success had its inception in Leribe. The idea was that something was to be done to deal with those perceived as obstucting the strike. I agree with this, observation. The learned DPP indicated that PW8 and Mothobi apparently stayed together. Thus they could discuss and later communicate with PW14. Nothing said couldn't show there was no conspiracy. An idea was being toyed about that something be done. This emanated from Mothobi and was accepted by others, so submitted the learned DPP. Then the trippers agreed to come to Maseru. For what? To discuss with people involved with Bankers in the Union!! The learned DPP having expressed a legitimate mock surprise at the purpose for Leribe people's trip to Maseru accordingly submitted that this act betokens nothing inherently in conflict with the idea to conspire. I agree. He further indicated that indeed if witnesses, so to speak, sing the same song such witnesses' behaviour could legitimately earn them the criticism that they have been primed. But referring to the perceived conflicts Mr Mdhluli stated that they serve as a safeguard to show that these witnesses have not been primed. Focussing his argument on the essence of his contention Mr Mdhluli stated that in relation to conspiracy PW14 refers to a second meeting; and drew attention to the fact that the person in whose presence, the conspiracy was spawned is no longer in the picture. But that person i.e. PW8 said a subsequent meeting would be held in Maseru and PW14 shows that this meeting did in fact materialise. The importance of looking at evidence in its totality cannot be over-emphasised. The importance of maintaining this attitude would go a long way towards disabusing anybody of the perception that the crown was selective. Mr Mdhluli laid stress on the fact that before the intermediary occasion otherwise regarded as the last occasion by the defence, PW14, accused 1, Mothobi and PW8 were here in Maseru. It is now known they had according to PW14 come to meet accused 3 but ended up only with meeting accused 2. The question asked by the learned DPP is for what purpose; and whose was a rational explanation regarding the purpose of the visit to Maseru, for indeed one doesn't just leave point A for point B for no specific purpose? He submitted that the only possible explanation given is one by PW14 and that there is no other purpose. I agree. The learned DPP argued further that while it is understandable that Mothobi could have come to Maseru because he was involved in the strike nothing in evidence or fact shows that the other trippers from Leribe were likewise involved. He accordingly submitted the explanation for the trip can be explained on PWl4's evidence. The learned DPP'pointed out that accused 1 was unable to explain the purpose for this trip; the same, he said, applied in regard to accused 2. There is substance in the DPP's submission because accused 2 interestingly said Mothobi approached him with regard to the coming of these people to Maseru. Be it as sympathisers, or for whatever purpose. But when accused 2 gave evidence he said he never spoke to these people. Accused 1 was also unable to explain why they were in Maseru. He said he met the others by accident; moreover that he was drunk. Thus the learned DPP emphasised that even although the two accused who gave evidence did not explain the purpose for the meeting be it at Khubetsoana or Ha Mabote, the fact remains that accused 2 didn't want to be seen in the company of the trippers from Leribe. He asked with emphasis why it was considered not convenient to talk at Lake Side; and why PW14's evidence should be rejected in the absence of any contradiction to it. Taking the fight to the defence camp Mr Mdhluli referred to what they termed the 2nd occasion which is the last occasion accused 2 met with trippers from Leribe bar one. He stated that it was no coincidence that on this occasion too they met with the same man accused 2 as they did in the previous occasion. His car was again used to move them from point to point. He asked the court to attach significance to the fact that,accused 1 when asked what they wanted in Maseru this time his answer is that they had accompanied Mothobi. Accused 2's evidence too amounts to nothing about why these people came here. On this last occasion PW14, accused 1 and Mothobi parted company with accused 2 and eventually got into the deceased's car. Only two people knew the deceased; namely, accused 1 and Mothobi. Thus the learned DPP stated that if anyone looked for a lift from the deceased to Hlotse it must have been accused 1 or Mothobi because it couldn't have ben PW14 who didn't know the deceased. The DPP accordingly submitted that PW14 couldn't have lured the deceased to his death. He emphasised that when considering the question of conspiracy these are factors to look at. He stressed that given the fact that accused 1 and Mothobi were in the deceased's car when the deceased was killed, and supposing they did not participate in the killing, it is known that robbery was not the motive on the part of the killer because the deceased's gun, money or property were not taken away from him. In this regard it is only PW14 who gives an explanation. So assuming PW14 was the only person who did the killing is it reasonable that the killing was done wantonly? The learned DPP said this cannot be the case nor can it be played down. He relies on the independent medical evidence to dispute any notion that PW14 did the killing alone; and urges that the medical evidence showing different directions from which injuries were effected on the deceased's body should not be rejected in favour of sheer speculation. I agree. The learned DPP relying on C. of A (CRI) 7\89 Naro Lefaso vs R. by Schutz P; denouncing resort to oratory and eloquence of a legal practitioner in place of evidence emphasised that erudition is no substitute for evidence. I agree and in this regard have painstakingly examined 'Exhibit C; Pro. Olivier's evidence. In this connection the evidence of PW14 has given practical meaning to the Professor's evidence. Not only so but to that of PW2 regarding the .38 dead bullet found in the deceased's blazer between the inner lining and its outer cloth. I therefore find it would not be reasonable to ignore the evidence of the pathologist and that of PW2 when these corroborate PW14's evidence. Indeed regard being had to the fact that the deceased was sitting in front with accused 1 driving, PWl4's evidence tallies with the pathologist's direction of the bullet. Given that there were three guns i.e. two 7.65's held by PW14 and Mothobi and a .38 held by accused 1; and the fact that cold scientific evidence fully supports PW14's account of the actual shooting it would be idle to reject his version simply because he is an accomplice. Mr Mdhluli read into the defence's attack on peripheral issues around PW14's evidence, an attempt to prove him a liar so that his evidence on substantive matters should be treated with no more ado. He accordingly pointed out that the crown's approach to' the defence's adopted attitude is that such attitude begs the question that we are dealing with an accomplice, therefore a liar. 1 found the authority of Masuku above very pertinent to the submissions made by Mr Mdhluli in this connection. I therefore agree that the proper approach to adopt with regard to the accomplice's evidence is to analyse and examine it bearing in mind the inherent danger and be aware of apparent pitfalls accompanying such evidence in accordance with the tenents of the cautionary rule referred to by various authorities cited above. Mr Mdhluli submitted that in the light of what happened before and after the killing of the deceased it is not probable that the deceased, in line with accused 1's evidence, agreed to take the trio to Leribe. Mr Mdhluli made much of the fact that the deceased was drunk and was going to go to work the following day. Therefore it would seem improbable that he would risk going to that distant place at night. But in my view the temptation could have been great for the deceased to prove himself a caring senior officer in the Bank who was in breach of no law when appealing to his juniors to see sense and go back to work. So in line with his generous offer of free drinks to the suspects it cannot be ruled out outright that he had indeed agreed to give them a free ride to Leribe despite the inconvenience of the hour and the condition in which he was and the demand of duty that he report at work the following, day. Nothing should turn on whether he had agreed to give the suspects a lift or not as long as it is clear that evidence shows he was lured to his ill-fate. Regarding Mr Govender's submission that on account of the injury to accused 1's arm or hand it would be improbable for him to effect injuries on the deceased the learned DPP very properly submitted that accused 1 in evidence didn't say he was unable to drive though. Thus it is not improbable that accused 1 could shoot while driving. Moreover given that a .38 weapon is not a heavy weapon and that the speed had been reduced at the intersection of traffic lights where the shooting took place it is not improbable for a driver to hold the steering wheel firmly in one hand and shoot with one of the free hands depending on the culprit's skills. The accomplice said it had been agreed he would be the one to do the shooting but there was this sponteneous shooting. He didn't minimise his role in the act and indeed he stated his shooting was enough to have effected a fatal injury. Regarding the suggestion that PW7 had been called to corroborate PW14 the learned DPP said there was not such a thing. Even on the issue of the conspiracy PW7 never said she was any part of it. She had been excluded, so submitted the learned DPP. Evidence supports him in this regard. He went further to indicate that her evidence was relevant to show that Mothobi was present here in Maseru at the time she saw him. When Mothobi came to Maseru the first trip had taken glace. So the seed of the plot had already been sown. Therefore when Mothobi came to Maseru and PW7 followed him to the Lancer's Inn the plot was already afoot. The learned DPP said PW7 followed Mothobi out of curiosity. But I recall in evidence she said it was not out of curiosity that she did so. I think she was in this regard being merely stiff-necked because the atmosphere created and the picture painted in this connection amply shows, in my view, that she followed Mothobi out of curiosity. The learned DPP denounced the suggestion that the strike had been broken, by submitting that "you can't break something that does not accord with provisions of the law". I think his submission enjoys acceptance on a pure logical plane. He further disagreed with the submission that medical evidence corroborates accused 1's evidence. I am tempted to agree with the learned DPP's submission that accused 1's counsel's submission was made with tongue in cheek. In reaction to the submission that PW16 corroborates accused 1 as to the aggressiveness of PW14 Mr Mdhluli indicated that this submission tends to look at events ex post facto and ignores the event at the point of the actual killing. I agree with this observation. My reason for that is that PW16 said he didn't know how these people came to his house. PW14 had never been to his place before. The only people who knew that place were accused 1 and Mothobi. There is no sign of any aggressiveness at that point in time. In any case they all appeared to be drunk and PW14 appeared to be more drunk. No doubt from the drink he took after the deceased's body had been disposed of. Thus the DPP's submission has merit that PW14 was in a drunken stupor at this time; or was suffering from what the DPP called delirium tremens. Indeed the learned Dpp submitted, legitimately in my view, that PW14's very conduct indicated he didn't know what he was about or doing: for here was this PW14 bellowing like a bull asking that these people should open for him, yet on being released from the situation he had found himself entrapped in he doesn't direct his anger at: the man who crashed the car and thus caused his entrapment, but at Mothobi. Truly "you don't finish off a man unless you take him to be a beast for slaughter" so submitted Mr Mdhluli in this regard. Furthermore the learned DPP submitted that, to show that PW14 was not even serious there it is, when told by PW16 not to slaughter Mothobi he listened and consequently desisted from the threatened act. I have no doubt that PW14 clearly couldn't recall this episode because of drunkeness at the time. The learned Dpp accordingly stated he would be the first one to concede that PW14 is talking nonsense about what happened at that point in time and is trying to reconstruct because he can't recall what happened. The DPP being never, without resourcefulness utilised this occasion to show that this incident has a bearing on the question whether PW14 was at all schooled. I think this is important; and dispels any doubt that PW14 was schooled at all. The learned DPP developed his argument and stated that the police knew what PW16's evidence was going to be. They were aware that on this point PW16 had contradicted PW14. So did the prosecution. But to the credit of PW14, the police and the prosecution, though it would have been easy for all of them to tailor PW14's evidence to fit in with PW16's; this did not happen; thus clearly setting at naught any basis for the claim that PW14 had been schooled. I accordingly accept this submission. A suggestion was made from the defence that when at the home of PW16, the two men i.e. accused 1 and Mothobi wanted to lull and molify PW14 by even bringing PW16 into the vehicle that had conveyed the trio from Maseru to Hlotse. But I find no evidence to that effect by accused 1. In fairness to Mr Govender this submission was made not by him but by Mr Sooknanan in the interests of accused 1. There was however a submission by Mr Govender that the crown placed no evidence before court to challenge the contention that these people from Leribe wanted to see the Executive of LUBE. Accused 1 himself dissociates himself from this contention on the one hand. The DPP on the other states that even if they didn't see the whole Executive of LUBE they wanted to see the President and eventually saw his vice, accused 2. Evidence by PW14 and PW8 shows that the central theme in the 1st visit to Maseru is that they had come to see LUBE leadership about the strike. But the question is what issues these were about the strike that they had come to see the leadership of LUBE about? The learned DPP rightly submits that accused 1 has not said what issues these were about which they had come to see LUBE leadership. Nor has accused 2. In reaction to accused 2's Counsel's question, why if the conspiracy related to the Executive of LUBE - that entire Executive hasn't been charged, Mr Mdhluli said unlike in the olden days when by merely being a member of an Executive the law created certain presumptions whereby a suspect would be charged, the modern trend is to abandon that practice in favour of prosecuting people whose names appear in the conspiracy. Regarding a suggestion that PW14's evidence as to the introductions and use of false or nicknames is flawed because it turned out that accused 2 didn't even know what the real names" were, Mr Mdhluli stoutheartedly asserted that nothing turns on that aspect of the matter. The material fact being that accused 2 was there whatever introductions were made. He sat with these people who were present when the deceased was killed. He had sat with them in his car even just a matter of hours preceding the deceased's death. Mr Mdhluli pointed out that a suggestion was made that Mothobi told PW14 about people who had not joined the strike, and that these were people going to be "persuaded" through intimidation that it was wrong of them not to join the strike. It had been suggested that this viewpoint is inconsistent with killing management. In reaction to this suggestion the learned DPP indicated that nothing in it is inconsistent with killing the management of the Banks. The learned DPP conceded PW14 was evasive and cagey but only in relation to events which occurred after the killing. For this he preserved his honour by also saying clearly PW14 was not a perfect witness. I agree and reference to authorities has revealed that one would have to wait until the crack of doom before finding a perfect witness. See Buta Phalatsi vs R. 1971-73 LLR 92 where the headnote summarising Maisels J. A. as he then was says : "Even where the evidence of accomplice witness is somewhat unsatisfactory it may be accepted by the court where there is strong corroborative evidence implicating the accused". Thus the learned DPP's submission has merit that one cannot have a perfect witness belonging to that class. Not even among more respectable class than of PW14 would one find a perfect witness. In this regard the learned DPP referred to the fact that it is probable PW14 still retained his firearm though he doesn't say anything about it. He may even have disposed of it. The DPP in his readiness to indicate that he had faith in his case and was ready to assist the Court in getting to the truth went so far as to indicate, by way of showing that PW14 was not a perfect witness, that even at the DPP's office PW14 stated he was not happy about what happened about his "molamu". Mr Mdhluli reacted to the great lengths to which accused 2's counsel went in an attempt to show that PW14 had been taught to try to implicate the accused. But to Mr Sooknanan's credit this was not, according to Mr Mdhluli, imputed to the prosecution though a subtle suggestion is there; and submitted that the statement made by PW14 to the police and the manner he made it is not relevant to the evidence he gave before this Court unless it can be shown that clearly the evidence he gave here was fabricated such as would be the case where a witness reels off his evidence like a parrot. There was a suggestion that PW14 doesn't want to come forth and show that force was used on him in order to give the type of evidence he presented before Court. I agree with the learned DPP's submission that here unlike where an accused goes into the box and says he made a confession through torture, one is dealing with a witness the leader of whom is at large to coax and create a spirit of trust or rapport with, to ensure that he gives his evidence freely. It was suggested that police tried to put questions that would fetch sponteneous answers. To this Mr Mdhluli reacted by indicating that it is the purpose of interrogation. To the suggestion that PW14 was made to say what was said by others who were detained for questioning Mr Mdhluli reacted by saying that of course PW14 doesn't quarrel but says while initially he resisted cross-questioning under police interrogation he eventually told the truth. Now that he appeared to be telling the truth the police welcomed it. Not that they were telling him what to say. What is clear is that the statement was his and I find nothing untoward in that. With regard to Judges' Rules, I find that this has no bearing on the type of evidence PW14 gave before this Court. If he were an accused then perhaps it would have had some bearing on what he told the police. But there is no suggestion that the police asked PW14 to mislead the Court. Moreover it seems pointless to suggest that in his statement PW14 has not been truthful because the fact is that the statement referred to is not before Court. How then would the court be able to have regard to its truthfulness or otherwise against the evidence led in Court? I accept the DPP's submission that the suggestion that PW14 was bull-dozed into making any statement is untenable. There is no procedure in our law practice whereby the crown is called upon to produce a statement or a confession by a witness in order for that witness to corroborate himself. Reference was made concerning how PW14 came to give evidence in this Court. Mr Sooknanan submitted that PW14's character should be looked at; and that it should be borne in mind that he said he felt betrayed and therefore wished to revenge or that he wished to exculpate himself. In reaction thereto Mr Mdhluli submitted that while it is proper to look at the character of a witness this requirement is misconceived by accused 2's counsel in that when PW14 talked of being betrayed he meant that having agreed with others that they shouldn't come out with the truth he discovered that others had revealed the truth and thereby exposed him. Regarding revenge the argument advanced on behalf of accused 2 is flawed because PW14 has made no attempt to minimise the role he himself played at the killing of the deceased. The argument that the statement made by PW14 to the police was not made freely and voluntarily likewise is flawed because when it comes to a witness that principle doesn't apply. Hence the DPP's submission has merit that the witness may initially have been reluctant but subsequently stated what he knew. Accordingly the learned DPP submitted that an accomplice witness need not even tell the whole truth. It can be visualised that he might have lied in certain respect. See Buta Phalatsi above. All the court need concern itself with at the end of the day is whether evidence is substantially true. The learned DPP conceded that the submission that there is nothing objective implicating accused 2 if by objective is meant any direct evidence. He however quickly submitted that accused 2 was party to the plot or conspiracy that eventually resulted in the deceased's death. Reacting to an attempt to show that the quality and substance of PW14's evidence was inferior to the standard required of the evidence to implicate accused 2, Mr Mdhluli submitted that if the Court accepts that Mothobi came with people from Leribe who were expected to help him get rid of certain people holding management positions in the Banks, then evidence before court suggests that Mothobi came for no other purpose than put into effect the scheme to kill. So, to implement this scheme Mothobi carried accused 2 and 3 with him. He may have carried others too but accused 2 and 3 are. the ones named. What then could accused 2 be doing going about with Mothobi? He was here, there and everywhere with people who killed the deceased. Could it have been a coincidence that accused 2 was a member of the Union or that he held a senior position in that Union and that the deceased was killed while the strike was in progress? These are factors to take into account when going about the onerous task of evaluating a suspect's conduct at trial. Suffice it to say the Court accepts that Mothobi clearly came to Maseru on the last occasion for no other reason but to put the plot into effect. That he was armed doubly supports this notion. The learned DPP drew attention to the undeniable fact that Mothobi, in the strange link he maintained between himself and accused 2, is not the man to be expected to come to Maseru to represent people who should have been reporting to LUBE Executive in Maseru. Thus it seems Mothobi was desperate to ensure that his plan to eliminate certain individuals was carried out. Thus again the question why does Mothobi come to Maseru together with these people, one or some of whom turn out to be the deceased's killers can have no answer besides killing. Regarding the submission that PW14 is falsely implicating accused 2 in the plot the learned DPP submitted that PW14's evidence is lent support by the fact that people to whom accused 2 had on previous occasion or occasions provided transport could not on the last occasion just be dumped at the Lake Side Hotel without accused 2 satisfying himself that they had secured transport to Leribe. In the previous occasion or occasions he had gone out of his way to try all places where they could possibily get transport. Why on this last day would he not behave in accordance with the well-worn practice? It seems to me the submission has merit that when accused 2 left these people at Lake Side Hotel he had been assured they would get transport to their missions and eventually to Leribe. It was submitted that it would have been suicidal for anybody to elbow PW14 who was prepared to shoot the driver (i.e. deceased) at that prompting even though the vehicle was moving at about 80 km per hour. The learned DPP agreed with this submission but justified the truthfulness of PW14's evidence on this aspect of the matter basing himself on the words of Schutz P. in Manamolela above. Thus the learned DPP said this conduct is stupid but does not rule out the possibility that the suggestion to shoot was made and accepted nonetheless. I agree. It is because of doing stupid things that criminals are arrested in most cases. Witness the fact that it was PW14 who was identified as having been with the deceased for instance, not even accused 1 who could more easily have been associated with being with the deceased by reason of being in company of Dr Hoohlo who was the deceased's friend. Furthermore it was Mothobi who was identified by Matsoso. The learned DPP drew attention to the fact that accused 2 in all occasions when he had to transport the suspects he never wanted to be seen with them inside the Hotels be it at Lake Side Hotel or Lancer's Inn. It remains questionable why he doesn't enter the Hotels with them. Why? He is interested in innocence to see them get transport to Hlotse but is never seen openly in their company. Even at the Hotel premises he feels uncomfortable and prefers having a talk with them way out at Khubetsoana. Regarding the submission that it would be strange that an assassin shouldn't regard it that he was being taken for a ride when the question of payment for the job is not clearly spelt out beforehand; Mr Mdhluli submitted that if it was not uppermost in PW14's mind that no proper arrangements were made to effect payment, it doesn't suggest that the witness wasn't telling the truth that this was discussed. Regarding the suggestion that a man of accused 2's intellingence couldn't have agreed that the deceased be killed in the manner he was, the learned DPP relied in response to the words of Schutz above; and in part made reference to Dr Sabadia's case in South Africa. Moreover, he pointed to the fanatical spirit with which accused 2 pursued the success of the strike. Reacting to the submission that accused 1, because he was innocent, went to the Prime Minister's private residence, Mr Mdhluli submitted by way of a rhetorical question whether accused 1 and his party were seen, and whether besides the occupants of the car could give evidence as to the identity of the occupants. No. Not even when PW3 was not able to do so. PW3 even found it puzzling to say what the purpose was of the occupants of the car to come to the Prime Minister's residence. It was suggested that Mothobi, PW14, PW8 and accused 1 were nothing but drinking "buddies" and that it is not surprising they should be together and therefore it was submitted they were not brought together by the mission. I wonder, if so then, why they were carrying guns on the night of 10-9-91. A complaint was raised concerning the fact that a policeman called Ntoi showed accused 2 old scars on his body. I am not able to see or fathom what the probative value of this complaint is. It was also questioned why accused 2 was taken to Col. Thaha a national security service officer, and what security had to do with an arrest effected on suspicion of commission of a criminal offence. In reply Mr Mdhluli submitted correctly in my view that the strike had a bearing on national security. Mr Mdhluli questioned the motive behind accused 3 asking accused 2 to take Mothobi to the Bus Rank; he questioned what would happen if Mothobi failed to get a lift back to Leribe whereupon accused 2 said Mothobi and his company would put up in Maseru. The DPP accordingly called in question the fact that no suggestion was given where in Maseru Mothobi and his party would put up. He thus submitted that contrary to the submission that accused 2's evidence was superior to that of PW14 the opposite was in fact true for accused 2 wanted to say very little about the purpose of his meeting with these people from Leribe. It indeed appeared to me that accused 2 tried to distance himself from them, this became very patent when it was brought home "to him that he must have known that they were potential killers. Otherwise he was untruthful when he said very little discussion took place between him and those people from Leribe. I accept therefore the submission that suggestions to the effect that accused 2 had nothing to do with the suspects from Leribe is untenable. Mr Mdhluli having made common cause with accused 3's Counsel's submission that the idea to murder was Mothobi's stated that Mothobi sold this idea to certain members of the Union's Executive. The learned DPP rejected the submission that PW21 did not implicate accused 3 and said if PW21 does not do so then his evidence is important as indicating the state of mind that those going back to work should be removed from the Banks. The question is how? The answer is not far to find in the light of the fact that the fate of the deceased is indicative of how he was removed from the Bank. Simply by liquidation. In reaction to the submission that accused 3 spoke against violence the learned DPP contended that if that is true then accused 3 was merely posturing because his subsequent conduct indicated he was no pacifist. I accept this reaction. The DPP reiterated that when Mothobi came to Maseru on the first occasion the objective was to see accused 3. Evidence suggests certain phone calls were made. Even accused 2 in his evidence doesn't dispute that he was at the first meeting because accused 3 was not. The question arises whether there had been a discussion between Mothobi and accused 3 when Mothobi eventually brought the potential killers? Evidence suggests there had. After that first meeting evidence shows that Mothobi came to Maseru and demanded to see accused 3. In the process he completely cowed PW7 and goes to the extent of saying he would have nothing to say to her. Then he met accused 3. The fact shouldn't be overlooked that Mothobi at another stage said he was going to phone and he actually followed that up. Taken along with the fact that accused 3 ordered that Mothobi be given M15 the fact that Mothobi sought exclusive audience with accused 3 cannot be without meaning regard being had to the fact that Mothobi's clear mission to Maseru is known. To eliminate the dissenters was his mission. What the Court was told in evidence was Mothobi's mission sounds hollow in the extreme therefore in the light of the fact that Mothobi's conduct is consistently pursuing his mission when he saw accused 3 on that day. Even on the day the deceased was killed Mothobi had been with accused 3. This is but ressed by accused 2 who said it is accused 3 who told him to take Mothobi to the bus rank. The evidence of PW14 stands to be accepted that three people came with arms on the last day before the deceased met his death. If therefore accused 3 didn't see these people except Mothobi it is because PW14's rule had been he didn't want to see him. It is easy why accused 3 didn't see these men. The reason can be gathered from the fact that even accused 2 didn't want to meet them openly. It thus can legitimately be inferred that accused 2 and 3 didn't meet the men from Leribe because they knew the purpose for which these men had set out for Maseru on the day those men killed the deceased. An inference is irresistible that Mothobi must have intimated to accused 2 and 3 what the purpose for the day was regard being had to the fact that each of those involved was armed that day. One should pay heed to the pieces of evidence which, at the end of the day give meaning to the jig-saw puzzle which ultimately accounts for the end product which presents itself to the observer and who is ultimately in a position to see why accused 3 does not dissociate himself from people who had resolved to remove the dissenters from the Banks through use of force. It is important therefore to take into account that PW15 was one of those who were to be eliminated. Mothobi was the moving spirit in the discussion to put that into effect. It would be naive to suggest that he never discussed that with accused 2 and 3. Accused 3 was thus conveniently removed from the scene by accused 2 who decided he should go and buy him meat five minutes' walk away. When the crown closed its case there was prima facie case against accused 3. He however chose to remain silent, as was his right, and expected the court not to draw any adverse inference against him. But in the authority of S vs Theron 1968(4) 61 at 63D and 64D the position of an accused person who fails to give evidence is well addressed. In support of the principles discussed therein Hoffmann and Zeffertt in their invaluable works The South African Law of Evidence at 598 say : "If a witness has given evidence directly implicating the accused, he can seldom afford to leave such testimony unanswered. Although evidence does not have to be accepted merely because it is uncontradicted, the court is unlikely to reject evidence which the accused himself has chosen not to deny. In such cases the accused's failure to testify is almost bound to strengthen the case for the prosecution. An accused's failure to testify can be used as a factor against him the State has prima facie discharged the onus that rests on it it cannot, therefore be used to supply a defficiency in the case for the State where there is no evidence on which a reasonable man could convict". only when See also S vs Khomo above. On the same subject in a book called Evidence by S. E. van der Merwe et al at page 17 it is said : "The State will have established prima facie case; an evidential burden (or duty to adduce evidence to combat a prima facie case made by his opponent ) will have come into existence i.e. it will have shifted, or been transferred, to the accused. In other words, a risk of failure will have been cast upon him. The onus still rests on the State; but, if the risk of losing is not to turn into the actuality of losing, the accused will have the duty to adduce evidence, if he wishes to be acquitted, so that, at the end of the case, the court is left with a reasonable doubt ". In C. of A.(CRI) No.5 of 1980 Khoabane Sello vs R (unreported) at p.4 Schutz J. A. as he then was, said : "There was therefore, in my view, not merely a prima facie case; but one of considerable weight to which a reasonably acceptable answer could be expected. But the appellant did fail to give evidence which would have left the Court to decide whether speculative ". explanations could reasonably possibly be true With regard to an accused remaining silent or giving false evidence the learned DPP referred the Court to a portion of Lord Devlin's speech in Broadhurst vs R (1964) AC 441 at 457, viz : "It is very important that the jury should be carefully directed on the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if on the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially whether there are reasons other than guilt that might account for untruthfulness". With regard to an accused giving false evidence the learned DPP referred the Court to the words of Davis A. J. A. cited at p.9 in Appeal case No.4\1984 Clement Kobedi Gofhamodimo vs The State (unreported) a Botswana decision saying : "It must not be overlooked that the accused has given an explanation which has been rejected - which cannot even possibly be true the court should not, as it seems to me, find on his behalf some explanation which if given might perhaps have been true but which he himself has not given". Explaining and developing the above principle Maisels P. in Gofhamodimo above at pp 8 and 9, with his usual terse lucidity said "If, however, the explanation is negatived by the State, then ordinarily the court will not investigate the possibility of other inferences not mentioned by the accused." See also Rex vs Julius Setha Kopo CRI\T\19\74 by Cotran J. With regard to conspiracy the court was referred to the works of Visser and Mcmare at 669 paragraph 686 saying : At common law a bare conspiracy or an agreement to commit an offence without the offence being committed or attempted in consequence of the agreement, is not, save in the case of treason, a substantive and indictable offence." See also p.671 where the learned writers on citing S. vs Khoza 1973 (4) SA 23 (O) indicate that "A person who conspires with others to commit an offence, but who has nothing to do with the actual commission of the offence, is therefore guilty of conspiracy. Should the conspirator himself commit the offence in execution of the conspiracy, or render assistance in its commission, he is guilty as a perpetrator or as an accomplice. In such cases it is accepted practice that he is charged with the main offence only and not with conspiracy". With regard to the importance of first proving the,conspiracy and afterwards the participation therein Mr Mdhluli submitted that in the instant case existence of conspiracy has been proved by evidence and subsequent events bore this out. He urged the court to keep the distinction between proof of the existence of and participation in the conspiracy but was quick to add that the order of such proof need not be prescribed. Stating that evidence adduced shows that accused 3 was aware of the conspiracy and therefore should be convicted of any crime executed in furtherance of the conspiracy he referred the Court to Mabope & 20rs vs Rex C. of A (CRI) No.5 of 1986 (unreported) at p.62 where Ackermann J. A. said : "Statements (like acts)'by one co-conspirator in the execution of a common purpose are admissible against other co-conspirators. They are not admissible when they are merely narrative and made as an account or admission of past events Furthermore the existence of the conspiracy cannot be proved solely by the statement of the co-conspirator. There must be some evidence aliunde to lay the foundation of a common purpose before the executive statement can, at the end of the case, be taken into account". For proof of the existence of the conspiracy the learned DPP relied on the evidence that the deceased was killed because he was a Banker holding a managerial position. Further that the killing was a result of a perception by LUBE but more particularly by the accused who were Bank employees that he was a threat to the smooth continuance of the strike. Further that letters were written addressed to the two Banks identifying people considered to be impeding the strike one of those being PW15 a holder of a managerial position at Standard bank. The letters emanated from LUBE thus implying they were approved by LUBE's Executive. Accused 2 and 3 were not only dishing these letters but were actually delivering them to the Banks. There is no suggestion that accused 2 and 3 didn't know about this. PW7 was ordered to address one of these letters to Barclays Bank where the deceased was employed. PW8's evidence indicated that even at Leribe where a meeting was held with Mothobi there was a conspiracy to threaten or kill people in the category above mentioned. Even PW14 showed that it was agreed that obstructionists should be killed. Even beforehand it was agreed to kill those perceived as obstructing the strike. Thus coming to Maseru was to receive direction on how these people were to be eliminated. Mothobi was the link man who was contacting and phoning the senior LUBE people in Maseru i.e. accused 2 and 3. Thus at the end of the day evidence clearly shows proof of the existence of conspiracy. With regard to accomplice evidence the court's attention was drawn to Section 239 of the Criminal Procedure and Evidence Act 1981 to the effect that it is competent to convict on a single and unconfirmed accomplice evidence provided there is evidence aliunde to show that the offence was actually committed. See Matsoete Makoetie and Ors vs Regina C. A 1955 HCTLR 64 at p.65 and p.69 where Thielke above was referred to with approval by Harragin J. A. In line with Thielke above it is now accepted by our courts that accomplices may corroborate one another. Indeed having made reference to R vs Gumede above at 758 and S. vs Ismail (2) 1965(1) SA 452 (N) at 455 H; Odes J. A. goes a step further in C. of A. (CRI) No.2 of 1985 and says at p.18 (unreported) that : "There is nothing which suggests that the evidence of an accomplice, in order to be accepted, has to be perfect in all respects". C\f with Maisels J. A.'s remarks in Buta Phalatsi above. Odes J. A. further stressed at page 18 and stated the position as follows: "That the evidence of an accomplice can be used to has been firmly corroborate that of another established in the Courts of Lesotho (c\f Lethola & Ors vs R 1963-1966 HCTLR 12 at 16. See also S vs Avon Bottle Store (Pty) Ltd 1963(2) SA 389 (AD))". At page 16 of Lethola cited above by Odes J. A. the learned Schreiner J. A. as he then was said : "A plurality of accomplices does not in itself constitute corroboration for the purposes of the cautionary rule, since several accomplices are just as likely as one to circumstances implicate innocent persons falsely of various kinds may justifiably lead to,the conclusion that the risk ordinarily inherent in the acceptance of accomplice evidence does not exist because of the clearly established superiority of the accomplices over the defence evidence". The learned DPP relied on Rooney J's words in Rex vs Phaloane for the proposition earlier referred to in Gumede and Phasumane that there is nothing like a perfect witness. See also Tumahole Bereng vs The King 1926-53 HCTLR 123 at 136 for the proposition that an accomplice can corroborate another where Lord MacDermont sitting in the Privy Council cited Schreiner J's dictum in Rex vs John 1943 TPD 295 as follows :- "So also the evidence of a second accomplice, covering precisely the same ground as the first, is sufficient to satisfy the section and provide the Crown with more than the single evidence of an accomplice." The learned DPP submitted that it is not necessarily essential that evidence of an accomplice be corroborated before it can be accepted and relied on Bereng Griffith Lerotholi vs The King 1926- 53 HCTLR 149 where Lord Reid said : "The proviso to s.231 only requires additional evidence that an offence has been committed. Once that has been proved the proviso is satisfied, and there is no statutory requirement that additional evidence is the case against the accused". necessary to prove See also Gideon Nkambule & Ors vs The King 1926-53 HCTLR 181 an appeal to the Privy Council originating from a trial in the Swaziland High Court. The learned DPP submitted that provided there are sufficient features to show that the accomplice is telling the truth, then even in the absence of evidence directly implicating the accused the court would still be entitled to convict if the accomplice evidence is superior to that of the accused. He accordingly reiterated that the evidence of PW14 was superior to that of any of the accused who gave evidence. He emphasised that none of the accused's evidence who testified bore comparison in quality to that of PW14. I agree. See the decision by the Swazi Court of Appeal in Samson Simelane and Ors vs R. 1970-76 278 at 280 where Smit J. A. said : "There is no direct corroboration of his evidence in this regard (secret burial and mutilation of deceased's body) but that is not the end of the matter. Although corroboration is regarded as the most satisfactory indication that the evidence of the accomplice can be accepted the rule does not require that the accomplice's evidence implicating the accused must always be corroborated. There may be sufficient guarantee that he is telling the truth if certain other features are present k(R vs Mpopotshe & An. 1958(4) SA 471 (A)). Some of these features to be taken into account are that the accused has failed to testify under oath, independent proof that his evidence has been false, or any other feature of the case which can legitimately be regarded as showing that the accomplice is beyond all question a satisfactory and convincing witness while the accused is the opposite (Rex vs Ncanana 1948(4) SA 399 (A) at p.405; R vs Mpomotshe. (supra) at p.476; S. vs Hlapezula and Ors 1965(4) SA 439 A at p.440)". Mr Mdhluli arguing in line with remarks referred to in Phaloane and Gumede above reposed further reliance on Rex vs Kristusamy 1945 AD 459 at p.556 where Davis A. J. A. said : After all, one cannot expect a witness of that class to be wholly consistent and wholly reliable, or even wholly truthful, in all that he says. If one had to wait for an accomplice who turned out to be a witness of that kind - or indeed anything like it - one would, I think, have to wait for a long time; memembers of the criminal classes do not usually come nearly up to so high a standard. That fact was fully recognised in Rex vs Levy 1943 AD at p.561 and in Rex vs Kubuse & Ors 1945 AD 189. But it is, of course, necessary that the Court should be satisfied beyond reasonable doubt that in its essential features the story which he tells is a true one. If more than that were required, the administration of justice would in many cases be rendered impossible". In support of the proposition that the accused cannot be found guilty merely because they are liars the learned DPP submitted that the onus rests throughout on the prosecution and referred the Court to CRI\T\19\1974 Rex vs Julius Kopo (unreported) at p.18. Mr Teele is legitimately concerned and sincerely asks the question : What is the prudence of the would-be assassins carrying out the plot without clear indication or serious undertaking that payment would be effected? In my view in the absence of any motive on the part of the would-be assassins the killing would appear to be wanton. But it doesn't seem to have been wanton. Proof of the existence of conspiracy confirms this view. Taking into account the level of education of the would-be assassins and the temptation offered to them in the form of a reward not by just anybody but by Bank employees who are and would virtually be in control of the custody of Bank funds, must have been great in the eyes of the would-be assassins. Surely an assurance to a layman by a Banker holds greater promise of fulfilment than a disloyal farm-hand's promise to give me his master's purse kept in a safe in the bedroom where the farm-hand has no access. Furthermore the display in the form of free transport, and free offer of food and drinks was a form of an assurance which held promise that there was more where all that came from. Finally it is well-known that murders are committed for very small gains. Hence the little that the would-be assassins managed to enjoy for free from Mothobi's inexplicable source of apparent funds was all they stood to gain. See Mlambo above at 737 B-C. But for the Bank employees in the conspiracy the benefit would be that the obstructionists to the strike would be got rid of. But surprisingly in the face of all this coupled with the fact that accused 3 authorised payment of M15-00 to Mothobi, without clear knowledge of the purpose for that payment by PW7, accused 3 chose to remain silent. In an endeavour to show accused 3's involvement in the conspiracy and fighting shy of linking him with such involvement merely because of evidence showing the existence of such conspiracy- and the mention of his name the learned DPP referred the Court to Ahern vs Rex above at p.163 where the following words appear :- "An appropriate starting point from which to consider the use which might be made of the acts and declarations of one co-conspirator against another is the rule of thumb referred to in Tripodi vs R (1961) 104 CLR 1 at 7. There it was said to be an 'empirical but practical and convenient test' that acts and declarations done or made outside the presence of an accused are not admissible against him. Practical and convenient though that test might be, it can be no more than a rule of thumb, because it is clear that it has a limited application. It represents an attempt to state in practical terms the effect of the hearsay rule although, of course, acts (other than certain acts of communication) cannot themselves constitute hearsay and, strictly speaking, lie outside the rule. However, acts may contain an implied assertion on the part of the actor which makes it appropriate to treat evidence of those acts and purposes as the equivalent of hearsay. A conspirator may, in the absence of another person alleged to be a conspirator, say or do something carrying with it the implication that the other person is involved. The statement or the act may be admissible in evidence to prove the fact of a conspiracy and, by way of admission, the participation of the maker of the statement or the actor in that conspiracy. But evidence of neither the statement nor the act should, (subject to exceptions) be admitted against the other person to prove his participation because it would for this purpose be hearsay or the equivalent of hearsay. In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in the way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other. Thus it was said in Tripodi (at 6) that proof of the crime of conspiracy 'may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as alleged in the indictment' ". I have tried to take particular caution regarding the evidence of two accomplices fully aware of the inherent danger that must adhere to their evidence by virtue of their close intimacy with the events that constitute the offence charged. I particularly sought to accept their evidence only where it was corroborated. I was impressed by PW14 as an intelligent witness, who was prepared to bare his soul and not try to minimise his role in the offences charged. He freely answered the questions put to him and was in no way evassive except where he was shown to have been drunk. While at first blush one would form the impression that he was evassive this impression was dispelled by the fact that he persisted in giving background first to the event in respect of which questions were put to him. Those he answered satisfactorily in my view. His evidence was satisfactorily corroborated in all material respects such as the fact of the conspiracy as it was broached, the number of trips to Maseru in pursuance of the furtherance of the conspiracy, the actual shooting itself and the proposed manner in which the deceased's car was to be disposed of. This evidence in the last regard is corroborated in the case of accused 2 and accused 1 by the fact that there was no evidence that the deceased had given consent that the car be dealt with by its occupants in his absence as they liked. In respect of accused 2 it is corroborated by the fact that he ascertained before leaving everything in the hands of the Leribe trio that his own services for providing transport would no longer be required. This view is strengthened' in either case by these accused's falsehood on the issue. Because I have accepted that there were no fewer than three occasions that accused 2 met with the trippers from Leribe who were on an evil mission, and because in two previous occasions accused 2 had ensured that these trippers, after being conveyed from point to point in search of transport, were seen safely on board taxis bound for Leribe, a course of practice was thereby established. It is therefore not without significance that on the last occasion this course of conduct or practice was breached. In short accused 2 had ascertained on this last occasion, unlike in the two previous ones his industry and supply of conveyance would not be needed by the Leribe trippers. This conduct tends directly to confirm PW14's last words to accused 2 at the parting outside the Lake Side Hotel gate at or after the alleged cocking of guns by PW14 and Mothobi that he should know that "now that we were parting he is responsible (and) that we regard him as a soldier like ourselves". See page 263 of the manuscript notes. So it cannot be true that on this occasion he parted company with them at Lake Side Hotel before the alleged incident when in evidence it is said Mothobi and PW14 in company of accused 1 whose gun it is said needed no cocking had come to accused 2's car to cock their guns. It follows therefore that from his knowledge of this fact accused 2 associated himself with the manner in which the deceased's car was to be disposed of. Namely by burning. As to the effect that the accused's falsehood as witnesses in material respects, has on the crown case the authority of Broadhurst above is in point as a factor that can be taken into account as strengthening the inference of guilt. My assessment and evaluation of the evidence, and comprehension of the authorities cited including underlying principles considered, lead me to the conclusion that accused 1's and 2's evidence is inherently false and therefore cannot on material respects be regarded as reasonably possibly true. Their evidence was lamentably inferior in quality to that of PW14. Their evidence is inconsistent with proved facts which are material to this case. It is accordingly rejected in either case as false beyond reasonable doubt. In the case of accused 3 I find that the pima facie case which remained preferred against him after his acquittal in the 3rd Count has become conclusive at this stage of the trial. Likewise therefore I find that in his case too the crown has proved its case beyond reasonable doubt. The provisions of the Statute relating to conspiracy have successfully been satisfied through evidence adduced by the crown in respect of each of the accused charged in this case. To my mind, therefore, it is irrelevant as to who between Rahlao and the deceased Kimane the conspirators settled for as long as the overriding or underlying purpose agreed to was to eliminate those in Bank management who were perceived as impeding the success of the illegal LUBE strike. It is no accident that Kimane was killed for the design was to kill the management of which he was a member. That Rahlao was not killed is a matter of his great luck. What is important is that preparations were afoot for his elimination pursuant to the design agreed upon by the conspirators. I accordingly find all the three accused guilty in the first Count, all the three accused guilty in the second Count, and accused 1 and 2 guilty in the third Count. The two accomplices accordingly are freed from criminal liability in this case by order of Court. The bail orders of those of the accused who are on bail are discharged as of today; judgment having started to be delivered on 22nd April, 1996. My assessors agree. J U D GE 14th May, 1996 For Crown : Mr. Mdhluli For Accused 1 : Mr Govender For Accused 2 : Mr Sooknanan For Accused 3 : Mr Teele