R v Mouse and Others (CRI/T/91/99 )

Case No: 
CRI/T/91/99
Media Neutral Citation: 
[2000] LSCA 120
Judgment Date: 
14 October, 2000

Downloads

CRI/T/91/99

IN THE HIGH COURT OF LESOTHO


In the matter between:

REX

vs.

ROBERT PHAKISO MOUSE

MATAMO LEUTA

TSOKOLO MOSAE

LEFATA RAMAKHULA

MOTLALEPULA PETER MAFETO

MOELETSI KOEKOE

SEHLOHO MOKAPELA


JUDGMENT


Delivered by the Honourable Mr. Justice G.N. Mofolo on the 14th day of October, 2000.


The accused are charged with the crime of murder


Count 1:

In that upon or about 31st day of October, 1995, and at or near Maseru Central Charge Office in the district of Maseru, the said accused, acting in concert, each or the others or all of them did unlawfully and intentionally kill Lieutenant-Colonel Marabe Penane.


2


Count 2:

Upon or about the 31st October, 1995, and at or near Maseru Central Charge office in the district of Maseru, the said accused, acting in concert, each or the others or all of them, did unlawfully and intentionally kill Major Karabo Chabeli.


Count 3:

Upon or about the 31 st day of October, 1995 and or near Maseru Central Charge office in the district of Maseru, the said accused, acting in concert, each or the others of them, did unlawfully shoot Major Michael Raleaka with the intention of killing him.


Count 4:

Upon or about the 31st day of October, 1995, and at or near Maseru Central Charge office in the district of Maseru, the said accused, acting in concert, each or the others of them, did unlawfully shoot Captain James Mokolatsie with the intention of killing him.


Count 5:

Upon or about the 31st day of October, 1995, and at or near Maseru Central Charge office in the district of Maseru, the said accused, acting in concert each or the others or all of them, did unlawfully shoot Captain Patrick Mokeki with the intention of killing him.


3


Count 6:

Upon or about the 31st day of October, 1955, and at or near Maseru Charge office in the district of Maseru, the said accused acting in concert, each or the others or all of them, did unlawfully and intentionally deprive Warrant Officer (now Captain) Keletso Hamilton Ramoeletsi, a male adult of his liberty by forcefully lodging and detaining him in a police cell at Ha Mabote Police Station for some time until the said Warrant Officer Keletso Hamilton Ramoeletsi managed to break out of the cell in which he was detained.


The charges having been read to accused persons they (accused) had all pleaded not guilty and counsel for accused had informed the court the plea was in accordance with instructions. After Mr. Suhr Crown Counsel had given a brief summary of the case he had called


P.W.I Inspector Keletso Hamilton Ramoeletsi who sworn had testified that during September - October, 1995 he had worked under Lt. Col. Penane. There had been a teacher's strike. It had been his duty along with Lt. Col. Penane to deal with maintenance of law and order and the result had been that him and Lt. Col. Penane had come into conflict with co-officers in the police force. By attending to work assigned them, there had been threats from colleagues. On 16 October he had received a threatening letter from the office of Col. Ngatane. Col. Ngatane had given him the letter and he had opened it. After reading the letter he had returned it to Col. Ngatane. After reading the letter he had called Col. Mpopo at police headquarters. He says these were the contents of the letter: 'Monna-heso'


4


(translated my man) stop working with Congress government, work with Her Majesty's government. Stop blowing teargas into our wives' faces - you are a colleague, stop doing this. He says the letter had been written to him though it did not show whence it came, it was an anonymous letter. Having received the letter on 19 October, 1995 early in the morning at 3.00 a.m. he had been attacked with rifles at home. Bullets had been fired into his house destroying sofas and his fridge. He had reported the incidents to Col. Ngatane. Though there were investigations, a docket had not been opened. He says he had suspicions of who could have been responsible. He had followed his suspicions which associated accused No.l with the events. He says nothing happened to his suspicions and the matter was investigated by Central Charge office and did not know how far the investigation went.


As for events of 30th October, 1995, the witness has testified that in the morning at 8,15 a.m. they were in a meeting in Lt. Col. Penane's office. He had received a call and spoke to Assistant Commissioner operations Mr. Mpopo who had said the two of them were to be at police headquarters for a meeting at 3.00 p.m. 2nd Lt. Molise had said he had not greeted him but had just gone past him. At 3.00 p.m. he had attended the meeting at police headquarters and Col. Nalede presided as chairman. Present had been Lt. Col. Penane, himself, Major Telukhunoana and 2nd Lt. Molise (A1). The agenda had been changed in the meeting for it was said 2nd Lt. Molise was saying he was being suspected in that a policeman had said the witness was the one who said 2nd Lt. Molise had shot at the witness's home. Col. Nalede had said the matter of shooting was on the agenda and according to the witness, Lt. Col. Penane as the witness's superior had attended the meeting with the witness. Major Telukhunoana was 2nd Lt. Molise's superior at Makoanyane Laboratory. Lt. Col. Penane had been furious when the agenda was


5


changed and had said they had been called for a worthless thing. He had complained that he had been long reporting 2nd Lt. Molise's matters and nothing had been done not even when he wrote to the police headquarters about Molise's matters. The witness has testified he did not know what matters these were as it was the first time to learn about them. Lt. Col. Penane had then stood up saying he wanted to leave the meeting. He was very angry. Major Telukhunoana had then said to Lt. Col. Penane if he left the witness would also leave. Lt. Col. Penane had then set down saying he was not going to participate in the meeting saying the witness would answer for what he had been called for. The witness has testified he was called upon to say whether he had said 2nd Lt. Molise shot at his home and he had denied this. Col. Nalede had then said he wanted the matter dealt with to a finish for he did not wish 2nd Lt. Molise to come with his men to fight the witness nor was the witness to come with his men climbing the mountain like the army did. The witness has testified he denied having any men following him and even if 2nd Lt. Molise came with his men he would find the witness alone. He says he had appreciated the information that 2nd Lt. Molise had men under him. The meeting had dispersed in a bad mood. So far as Lt. Col. Penane was concerned, the meeting had achieved nothing save unpleasantness. He had retired to their offices with Lt. Col. Penane at Maseru Central Charge office and nothing further had transpired. On the morning of 31 October, 1995 at 6.15 a.m. he had received a telephone call from Lt. Col. Penane to the effect that he was to go to Tpr. Makhetha to get keys to the Central Charge office armoury for he did not wish that if fighting erupted keys should end up in wrong hands. Lt. Col. Penane had then said the Central Charge office was surrounded by Police Training College police officers and had said the witness was not to go to the armoury but to send keys to him at Naledi Centre. The witness has testified Lt. Col. Penane asked him whether he was safe and had said he was safe and the witness had given the same response adding nothing made him


6


feel unsafe. He had left giving Warrant Officer Mofolo some message. The telephone was at Mr. Maleoa's home.


He had then gone to see Tpr. Makhetha at Europa and having found him had explained to him what transpired but warned him not to go to the office. He had however asked the Tpr. to give him keys for he was going to take them to Lt. Col. Penane in his Mazda van registration No, AC 970. Going past Red Cross building he had heard communications through the police radio the person talking calling himself P.T.C.2 talking to Central Charge office saying that Central Charge office connect him with 2nd Lt. Motenalapi; had spoken to him on the air saying: return to the P.T.C. with the police officers at Maseru Central Charge office. It had then dawned on him that what Lt. Col. Penane had said was true. He had nevertheless continued on his way to Lt. Col. Penane's place. Going past Mabote police station he had seen a policeman in a khaki uniform and the man had run into the office; he understood the man as going to communicate that he head seen him. Going towards Naledi centre he had seen a number of police officers in operational uniform, heavily armed - everyone of them carried a rifle. They were leaning against Naledi centre wall. Some were in a combi written 'Police and Community Relations'. He had identified Sgt. Makateng on the driver's seat not wearing a uniform but wearing a black woollen hat. He had gone past them. Instead of turning left to Penane, two fast driven vans had approached him in an opposite direction - they seemed to block his path. In the front van he had identified Sgt. Leuta (A2). He had got to Lt. Col. Penane's and met him at about 6.45 a.m. He had given him the armoury keys. Lt. Col. Penane had then said he would telephone the Deputy Commissioner and Col. Ngatane in charge of the Central Region. He had explained to Lt. Col. Penane what he had seen and that they were surrounded by police. Lt. Col. Penane had then said what Col. Nalede had alluded to was happening. He says there were men cordoning


7


off the place where they were namely, Penane's. Naledi centre was a supermarket and the area was known as Naledi. From Naledi supermarket to Penane's was about 500 metres. Penane's home was a flat roof with security fence. They had been on the forecourt of Penane's residence watching as the police cordoned off the area. The police had been standing in a row facing them with their rifles about 200- metres away. They were wearing brown occasional uniforms. He had identified Lekhooe, Ramakhula (A4). Lt. Col. Penane had gone back to the telephone; there had been a 4 x 4 twin cab Nissan vehicle white in colour; inside it were men wearing plain clothes doing deployment i.e. showing others where to stand, which junction to block; he had noticed this when a man in a passenger seat on the left hand side pointed out with his hand. The vehicle belonged to police headquarters - it was a donation. He was familiar with the vehicle. After phoning Lt. Col. Penane had said they were to leave for the Police Central Charge office for the Deputy Commissioner had said they would be safe there from those who wanted to attack them. Asking whether he trusted the Deputy Commissioner of Police and was it not better to phone the military to seek assistance Lt. Col. Penane had said he was not under the Army and he was going to go to the Charge office. When Lt. Col. Penane asked him where his rifle was he had said he'd left it behind as he had not found it necessary to carry it afterall, he had a side arm 9mm pistol. He had said the witness had made a big mistake by not carrying a rifle. According to the witness, Lt. Col. Penane had an AK 47 on him and a 9 mm pistol. The Lt. Col. had gone into his vehicle and the witness had warned the Lt. Col. to use a road passing above his residence as the police were not aware of it. He had heeded the witness's advice by using the road as suggested. Lt. Col. Penane was driving a coloured police van. He had not left with him and had decided not to follow him for he wanted to determine if there were shots in order to report these. Police officers had gone into their vans following Penane saying: there he is and three of them had been left


8

behind being L/Sgt. Lekhooe, Tpr. Koekoe (A6) and Tpr. Mafeto (A5). When he heard no shots he had gone into his vehicle towards Lekhooe, Koekoe and Mafeto. He says as he approached they pointed their rifles towards him and stopped him. L/Sgt. Lekhooe had gone to the driver's door and said to him he was to switch off the engine and he had done so. He had also said he was to get out of the vehicle and by then Koekoe and Mafeto were still pointing guns at him. Lekhooe had been called by Koekoe saying something about the pistol on the witness. Lekhooe had then said he was to hand over the pistol and he had taken it out form its holster, cleared the magazine and given it to him. He had further said he was to give him the magazine and bullets but with these he had refused saying they were his. He had put the bullets in their pouch. Lekhooe had then said they were to go to the Central Charge office. As to what mode of travel was going to be used Lekhooe had said the witnesses's and he had objected to this unless they were kidnapping the witness. Koekoe and Mafeto had jumped into the vehicle and Lekhooe had gone into the front seat with the witness. The witness says at the time he had blocked Letete's path; he had gone into the vehicle and cleared Letete's path so he could pass. He had drawn Letete's attention to what was happening but the man was so frightened he did not respond save nodding his head. He says by his finger he indicated he might be shot anytime - he shows this with his pointed finger bending it like a trigger. He says he was not free to do anything for as these things happened guns were pointed at him by Koekoe and Mafeto. Lekhooe had set on his left on the passenger seat pointing his M16 rifle and had ordered the witness to drive and the witness had done so. He had asked Lekhooe to remove the rifle from his side as it might shoot him and he had removed it. They had gone past Mabote police station and Lekhoeoe had said he was to park at Mabote police station parking lot and he had done so.


9


Lekhooe had then said: this is the Central Charge office we have come to. He had asked Lekhooe: 'I work at the Central Charge office, what for am I here?' He had said the witness would soon know what would happen. Lekhooe had said they were to go out of the vehicle and he had gone out. The witness had then seen a combi and a van coming towards Mabote parking lot at high speed. When it stopped, many police officers alighted. Sgt. Leuta (A2) and Lekhooe had come to him saying: 'You've not locked up this man, he is under arrest - he is going into the cell' - he was angry. The witness says he had merely looked at him without going to where he was ordered to go. Leuta and Lekhooe had stood next to the combi. Sgt Mphatsoana had come towards him saying: chief, let's jet into the vehicle and chat adding: don't be obstinate, these people intend to shoot you. The witness says he had asked whose operation this was, and whether it was Molise's? Mphats'oana had agreed and the witness had said he was not afraid to go to Molise would he go with him? The witness says as he got out of vehicle with Mphatsoana he noticed Major Moshoeshoe arriving. He says Major Moshoeshoe is the officer commanding Mabote police station and he was in difficulty as to where to park. He had asked Sgt. Leuta to remove his vehicle to enable the Major to park and the Sgt. Had complied. Mafeto had then said he was to hand over his pistol to him and he had said the pistol was taken away when he was arrested. He had then said he wanted the bullets in the magazine and pouch and he had refused saying these were his and he was not going to part with them. Sgt. Mphatsoana had followed the witness while the rest went into Mabote police station offices.


Outside the police station were many members of the public waiting to be served and meanwhile he was asking the police, what are you people up to, the question being directed to those who had arrested the witness. Behind him were Mafeto, Koekoe, Leuta, etc. They had said to the witness he was not to be loud for


10


members of the public would overhear - it was Sgt. Leuta who said this. The witness has testified he entered the office and at the passage he met 2nd Lt. Molise wearing a brown operational uniform with two side arms and webbing one on each side and holding an M16 rifle. He says the rifle he is shown is different from the other one for this is short and folded; the witness says in addition 2nd Lt. Molise was wearing an armoured vest or bullet proof vest. The witness has testified when they met Molise said: 'You have not brought this man into the office to his men?' The witness says by this he understood Molise to say whether the witness had not been taken to Molise's office. The witness says he had remarked to 2nd Lt. Molise: 'it's you doing what Col. Nalede said you'd do?' And 2nd Lt. Molise had said yes, follow me into my office. The witness says he'd said to Molise: 'You have no office here, your office is at Makoanyane' but had then said alright, let's go to see your new office. The witness says 2nd Lt. Molise had let him past traffic offices and behind him were a group of police officers escorting him among whom he had identified Sgt Leuta (A2), Mafeto (A5) and Mphatsoane.


The witness went on to testify near National Security Service offices next to Traffic offices 2nd Lt. Molise pulled a door on the right hand side and the witness says he noticed it was a cell door. 2nd Lt. Molise had opened the burglar proofing inside saying: 'here is my office, go in.' The witness has testified he said: 'I won't go in here without a charge unless of course you are violating my rights.' According to the witness 2nd Lt. Molise was furious saying: 'Warrant officer Ramoeletsi, go in here.' He says he refused and had to be pushed in. He says he does not know who pushed him in since he had no time to look back. He says after entering the cell he turned and looked back and saw Major Moshoeshoe passing saying nothing about what was happening. He says 2nd Lt. Molise ordered him to surrender the police radio and he had done so. He says it was a walkie-talkie - he had given it to


11


2nd Lt. Molise. The witness says 2nd Lt. Molise had then closed the cell and burglar proofing saying he was to pray since they were going to collect his colleagues and at 8.00 p.m. and they would be finished as they had had enough of the witness and his colleagues. 2nd Lt. Molise had then closed the outside door. The witness says by saying they would be finished with them he understood 2nd Lt. Molise to say they would kill them. The witness has testified 2nd Lt. Molise had locked all doors saying all the keys were with him. He had been left alone in the cell. He says after a while the outside door of the cell had been opened and he had seen Sgt. Leuta and Tpr. Mafeto (A2 and A5). They had said the witness was to give them the uniform and Sgt. Leuta said this; they also wanted his badges of rank and he had asked if they were demoting him and they had agreed - actually it was Sgt. Leuta who accosted the witness, so says the witness. He had taken off his shirt and given it to A2 but they had demanded the entire uniform and they had taken it. He had then told them it is him who was a police officer and not the uniform. He has testified as he was about to give them the pair of trousers for he preferred to remain naked, they had said they did not need the pair of trousers. The witness says they had then reminded him to have in mind 8. p.m. and they had locked and left.


The witness says it was then 7.30 p.m. and he had been left alone in the cell. The witness says he did say he was left alone at Mabote police post. As he was kept in the cell one Teba had pipped through the keyhole saying: is it true you are in here? He had agreed saying you will have to explain what you have seen. He said he would report and left. He says a few minutes later he had heard a woman's voice and recognised 2nd Lt. Hlalele of the traffic department. He had called her and she had pipped through the same cell keyhole. He had asked her if she could give him water for he was thirsty and she said she was afraid she would however look for response unit members. The witness says he had told her he did not need


12


them and her reply was that a basin could not go through a keyhole and she had left. After leaving he had once more heard a female voice being that of Policewoman Sefali formerly Ncholu. He had called out to her and she had also pipped though the keyhole asking her to bring him a litre of water from the back of the bakkie and her reply had been though afraid she would try. She had not returned. He had heard a male voice being that of Sgt. Ntlamelle. He had called him but refused to come. He had heard another voice being that of L/Sgt. Letooane he had called out to him but had not come. He says these people were his friends and he concluded they had turned against him. He says while in the cell he had not drunk water. He had devised means of getting out of the cell. He says it is a tough cell built of steel. He had started exercising. He says as the deadline approached, he had tried to break the doors but they were hard. After 1.10 p.m. he knew everybody was gone for lunch and people concentrate on their meals and it is the time he decided to leave. He had used all his strength to break the door and it had yielded. He says he applied a flying kick Korean style and he had gone out of the cell. On the passage there was somebody and he had proceeded to the exit since then he was angry. He says going past the traffic office 2nd Lt. Hlalele and other police officers emerged saying: O God, he has escaped. Thinking they would attack him he rushed at them and they locked themselves in their office. As he went past an end door other police officers came out saying: shut the door, there he is coming. A woman from the NSS office had said: Ramoeletsi has escaped, stop him. He had looked back and found it was Matthias working for the NSS; when he stopped she had returned, running away. Getting out of the door he had found a policeman sitting on a desk; he had held himself on his waist and placed his hand on his firearm and the witness had said to him: 'If you are joining it, if you do, I will kill you here and now.' He had said he was not joining in but I had warned him should he move I would kill him there and then. Outside the office he had found Lt. Teba and other police officers. When he


13


saw him he had held his head saying: 'he has escaped.' He had gone past him saying whoever joins in this affair would be killed on the spot. He had gone into his vehicle and driven away at high speed. He says when he was escorted into the cell his key had not been taken away from him. On the way he had noticed his briefcase was opened with papers scattered all over. The vehicle's temperature was high and he had concluded the vehicle had a defect. Towards Mabote at BP garage the vehicle had belched smoke and he had reached the conclusion it was going to cost him much. He says he was going at 160 km per hour. He says there were many children in the road and he had tried to hold up his brakes and reduce speed and had found brakes were not functioning. He had hooted and the children had dispersed. He had gone into the road at 80 km per hour and had turned at the junction leading to Agric. College to his younger brother's home. When he got to his younger brother's home the vehicle was smoking. He had not found his younger brother but had parked the vehicle and gone into the house; had asked key to a BMW but the vehicle would not start. He had telephoned Mr. Motjamela of Mohale's Hoek who had inquired where the witness was as the Commissioner of Police was looking for him (the witness). He says he had said if the Commissioner was looking for him he should have checked him at the cell and he was not going to tell him where he was for he (the witness) did not trust the Commissioner of Police anymore. But he had said he was to be told the witness would reach him before sunset. He had then telephoned the police headquarters wishing to speak to the Commissioner but it was said he was absent though the Deputy Commissioner Makoaba was present. The then Commissioner was Mr. Pinda. He says Mr. Makoaba had said: 'where are you?1 And he had said: 'I wouldn't tell you, I don't trust you' and the witness had gone further to say it was the same safety he talked of to Mr. Penane. He says he said this because in the morning Mr. Makoaba had said they would be at the Central Charge office. He says he had said to him he did not want to be long talking to him


14


but he was to make available a vehicle for use by him in the afternoon. He had asked him where Col. Ngatane was and Mr. Makoaba had said this was the person to speak to and not him. He had then telephoned Col. Ngatane asking him if he would collect him and had said not then because of what had happened in his office. He says it was the first time he heard of what had happened in Col. Ngatane's office. He says he had prevailed on Col. Ngatane to come and he had agreed. He had explained what he meant by saying to Col. Ngatane he was to come alone and not in company of others nor was he to bring along a firearm big or small. He had arrived as directed. They had left in Col. Ngatane's vehicle and he had asked to be taken to his office. Though Col. Ngatane felt it was unsafe he had insisted to go to his office. At. Col. Ngatane's office they had found Major Ntoi. When Major Ntoi saw him he had cried saying what did he want there where there had been so much bloodshed. They had then explained what happened. In the office there was sputtering of blood all over. He had left. He had not attended to his dirties that day. He had left Maseru for Mohale's Hoek his home in a vehicle given him at the police headquarters. After three days he had returned to Maseru and stayed at a place known to him alone. He had resumed duties after returning from Pretoria where he had sought refuge at Lesotho Embassy for about 3 weeks. He says the reason for his absence was that he did not deem it safe to be within the country until recent matters were settled. On his arrival he had met the Deputy Commissioner of police at the police headquarters. As a result of meetings and discussions at police headquarters he had resumed his duties. On examining his vehicle he had found radiator and brake pipes damaged. The radiator appeared to have been punctured. He says on the day in question he had M3,500-00 on him for payment of a builder. The amount was in hard currency and the money was in an airmail envelope inside a briefcase. The radiator, cylinder head and brakes had cost him Ml,800-00.


15


He says he has known 2nd Lt. Molise (A1) for a long time. They had worked together. He worked with A2 at the P.T.C. on the band unit. A4 worked at P.T.C. on response unit; A5 also worked at the P.T.C. on the band unit and he was his recruit. A6 was also his recruit at the P.T.C. He says the men were dressed in police uniforms, carrying police firearms and using official vehicles though he did not know by what authority. He says he was not given cause of his arrest or the charge. He says he is aware of his rights as a policeman and that on being arrested he has to be cautioned and knows procedures on a person being lodged in a cell for he must be entered into a police register. The property seized has to be entered into relevant registers (i.e. prisoner property register). He says he had a vehicle, money and firearm and none were entered in the police register. He had not recovered the money or firearm. He says the firearm 9mm short barrel Smith and Watson is a pistol. He says he has forgotten the serial no. He says he has been involved in police response unit operation and that operations have to be known and authorised at police headquarters particularly by the Commissioner of Police. He says members are to be briefed about the purpose of the operation. He says L/Sgt. Lekhooe as a senior was in charge of the policemen. He says at Mabote police station the person in charge of the operation was 2nd Lt. Molise. He says this is from his personal knowledge for it was said he (the witness) was being taken to him. He says he was handed over to 2nd Lt. Molise. He says Sgt. Mphatsoana had claimed not to be in the conspiracy and had come to fetch L/Sgt. Lekhooe who refused to leave. He says the other accused did not dissociate themselves from what was happening to him.


Cross-examined by Mr. Mosito the witness has testified it is wrong to say he does not see eye to eye with A'. He says they are friends and this has been so since 1985. He says their friendship did not terminate and were still friends. He says it


16


does happen for friends to attack each other at night though he had not done it. He says a friend does attack a friend but one who attacks at night is an enemy. He says A' is sometimes a friend and at other times an enemy. He says even this morning they were still on talking terms. He says a person who attacks him is an enemy. Put to him because at some stage A1 attacked him he is an enemy he agrees - and agrees he does not like his enemy. That he would be biased against his enemy he says there are two options namely: he cannot put his enemy in favourable light and in any even he has no proof that A1 had shot at his place. He says he cannot say who told him A1 had shot at his place. He says he is not able to disclose an informer's name.


Mr. Suhr says an informer's name may not be disclosed for this is to embarrass the witness and in any event the witness has claimed privilege. Mr. Mosito has said whether or not an informer's name may be disclosed depends on whether the witness is an investigating witness and the witness has not claimed to be an investigator in the case. Although Mr. Mosito is right that the investigating officer is protected from disclosing an informer, I agree with Mr. Suhr that the disclosure may embarrass the witness and that such disclosure would not be in the interest of fair play and accordingly the question is disallowed. Put to the witness that he does not see eye to eye with A1 by reason of the fact the witness suspected A1 had attacked him at night the witness agrees. The witness also agrees he has no knowledge whether A1 was instructed to command response and band unit at the particular time nor had A1 told him whether he had been authorised to command response and band unit for none of the officers had said A1 had been given power to command response and the band unit. He repeats A1 was commander of a faction of the response and bank unit. He says A1 was commander of a faction of the response and band unit. He says A1 did say: 'have you not locked up this man?' and A1 had said this at Mabote police station. The witness says in evidence-in-chief


17


he did say when they met on the passage A1 said: 'have you not locked up this person? Let's go to my office.' He says on the day in question he was arrested by policemen who had power of arrest. He says after the arrest the only thing A1 did was to lock him up in the cell. That he is not taking the court into his confidence that he had not been locked up but had asked to be locked up, he says accused persons will not be telling the truth. He says he met A1 at the door on the corridor. That he said he had heard A1 wanted to meet him in his office he says this is wrong. That A1 smiled saying: 'see me at my office at Mabote's the witness says A1 was angry. That A1 had asked the witness if A1 had an office at Mabote's he says this is not true for A1 did not say this. The witness says he disagrees that A1 asked him to walk along the corridor and get into the nearest office. He says he is well mentally and did not go into the cell by himself. That A1 never laid his hands to the cell at Mabote's he says it is not true for A1 had said: 'here are the keys with me -nobody is going to open for you.'


He says he did write a statement on 23.01.96 and agrees the statement he is shown is his. He agrees when he wrote the statement everything was fresh in his mind; he says he wrote everything that transpired at Mabote's. He says when he wrote the statement he already knew A1 had said: here are the keys to the cells. That nowhere in the statement has he said 'here are the keys' he says he did say he was holding keys. That he never said in his statement A' said: 'here are the keys I have them all' he says this is true and it is not in his statement. He says the way he put it is the right way and he is not fabricating. That A1 did not know or care what the witness would do in the cell, the witness says this is not so for A1 closed the cell door. That in the report the witness did not say A1 took his walkie-talkie, the witness says he wants to check the report and allowed to check the witness says he omitted it by mistake though he stands by his report. He agrees the walkie-talkie


18


appears in his statement-in-chief. He says the walkie-talkie was on the floor inside the cell and A'had bend down to take it. He says the jacket and operational uniform were taken from him by Sgt. Leuta (A2) and Tpr. Mafeto (A5) and by the time A1 had left. He says those who took away his uniform know where they got the keys from. He says he does not know whether duplicate keys are kept by the Commanding Officer. He says if A1 had left with the keys it was impossible for the cell to be opened though Mafeto (A5) and Leuta (A2) could have for they worked together with A1. The witness says he has no knowledge whether Leuta (A2) and Mafeto (A5) got the keys from A1 though his belief was they obtained them from A1 for A2 was the 2nd in command of the operation. He says A1 gave A2 instructions and Lekhooe was their junior. He disagrees A1 never laid his hands on the keys. That there is a procedure of securing keys to the cell the witness says he doesn't know who was in charge of keys at Mabote. He says the keys are normally with the Sgt-in-charge when the desk officer is away. If these two are absent a senior officer takes over and keeps the keys. He says the procedure for securing them is to ask for them stating what for they are wanted. The witness says he had seen the keys in A' hands and did not know who gave him the keys. He says A1 had no right to keep Mabote keys for he did not work there. He says though A1 had the keys she did not know who gave him the keys. He says if a person lands in a cell it is because he is kidnapped. He agrees everyday police make arrests and throw people in police cells. He says it is not uncommon for police to arrest, throw people into cells without an RCI - he says such things have happened before. He says he agrees things are now different for it is a police service. He says such persons were unlawfiilly arrested.


Mr. Suhr says he wishes to farther lead the witness in evidence-in-chief. There being no objection the witness says there is a registered note reflecting his


19


firearm. He says he obtained the firearm on 08.09.93. That.it is no.4366 Rank: War, Officer K. Ramoeletsi, serial no. A550634 calibre; 9mm, 30 rounds with a single magazine - Sgt. Ramoeletsi. The note is handed in and marked Exhibit "A".


Cross-examined by Mr. Nteso the witness has testified that he has been a policeman for over 20 years. He says he has worked at P.T.C. for the greater part of his service. The witness says he worked at P.T.C. in 1980 immediately after passing out. He joined the force in June, 1979. In February, 1982 he had been transferred to police headquarters transport attached to ministers. On 15 December, 1984 he had gone back to P.T.C. and was there until September, 1994. He says those at P.T.C. were trained by him while he was there. His basic educational qualifications were C.O.S.C. (Cambridge Overseas School Certificate). He had trained all accused except Leuta (A2) and Mosae (A3). He knew the band unit and the response unit. The groups wore brown operational uniform and were armed with rifles. He says if a person carries a rifle he is heavily armed and so is one with rifle and sidearms. A sidearm was normal and such a person was not heavily armed. The witness says when he wrote the statement he was not confused. He says the events were clear in his mind. The witness says he was not confused in evidence-in-chief. The witness says he is born a brave man. He says he is not forgetful. He says though there were guns around, he kept on asking question for he was not frightened except he wondered what they were trying to do. He had not enjoyed the kidnapping save that he was humiliated; except for accused persons there were many people around. As to how he came to recognise A2, A5 and A6, he says they were very active. He denies he remembered them for the sake of convenience. He denies he did not see the accused persons he mentioned for he says he knows them very well. He says A2 was in operational uniform and so was A5 and A6. They carried M16 rifles. He says its not important to say how accused were armed. He


20


says the fact that it was not mentioned in his statement is because he could have forgotten this. He says it is human to forget. He says in writing the statement he was under stress though not confused. Though he was under stress he says he stands by his statement. He says he disagrees that a man writing under stress makes mistakes. He says he was made to surrender his firearm at gunpoint. He says it was possible to fiddle with his gun while a gun was being pointed at him. He says accused were not lenient with him. He says Sgt. Leuta (A2) responded to his orders to remove his vehicle because Leuta is his junior. He says he was not treated with respect. He says he had informed Makhalane and Thamae that the charge office is surrounded. The witness says he mentioned Inspector Mofolo only because he was being led. People in 4 x 4 vehicles were in plain clothes. Sgt. Makateng was driving the combi; he says he did not see who was driving the rear van because he was rushing to get into the junction. He had seen Major Moshoeshoe about 6 metres away. He says as nobody stopped him, he was free to move. He says when it was said he should go into the office he had asked who was in there and saying it was Molise had said: why didn't you tell me, I would long have gone in there. He says Sgt. Mphatsoana was neutral. The witness says he spent about 7 hours 10 minutes in the cell. He says he was wearing his watch. Unless he is mistaken, he left the cell about 7,45 p.m. The witness says much as some men were heavily armed, this did not frighten him. He says the omission could also have bearing on the stress. He says though he was under stress it does not mean that he made mistakes. That there are some things which he is mentioning now which he did not mention in his statement and are afterthought, the witness denies they are. He says he refused with the magazine. He says he complied and refused to comply being the way he went about his business. He says he refused to hand over his magazine and bullets for fear it could be claimed he shot himself He says it was a serious business and no tomfoolery. Quizzed about why he did not mention that A2 had said


21


why have you not locked up this man and he is under arrest in his statement the witness says this could have been omitted by mistake and put to him there are too many mistakes the witness has said he was under stress. Please note though that it was, according to the witness, A1 who said: have you not locked up this man? The witness admits he did say he drove at 160 k.p.h. and that at this speed he was driving on the gravel road. The witness says he can drive, change gears with one foot. That A5 will tell the court he never met accused nor was he at Mabote police station the witness says he disagrees. That A6 will tell the court between hours mentioned he was at police headquarters having been left at Penane's the witness denies. That on the fateful day A4 never met the witness the latter denies. The witness also denies he did not meet A2on the fateful day. The witness has testified he is not fabricating anything as on the day in question accused mentioned played roles he has mentioned. The witness says he has recovered from stress except he is limpy.


Re-examined the witness says by saying he was never threatened he meant he never feared. He says though he was stopped and resisted some orders, he says he was nevertheless not free. As for words attributed to A2, he says he uttered these and had elaborated them in his evidence. He says he has not fabricated anything nor has a reason been found for his so-called fabrication.


No questions by Assessors.


By Court: He says if a man is under arrest by another policeman, he does and it is usual to question the motive for arrest. He says as armour vests are for response units, he was surprised how it came about A1 wore a bullet proof vest.


22


P. W.2 Col. Ngatane sworn had stated in 1995 he was a member of the Royal Lesotho Mounted Police and he was Regional Commander, Central Region. He says on 31 October, 1995 at about 5 - 6 in the morning he was preparing to go to work. He had received a message from Lt. Col. Penane that men from the P.T.C. had gained control of the Central Charge Office. He had telephoned Brigadier Makoaba and confirmed he had also received such a message from Lt. Col. Penane and he had ordered the Commander to recall the police to the College. A few minutes thereafter there had been a telephone from Lt. Col. Penane. Before leaving, he had received another telephone from Lt. Col. Penane saying his house was surrounded at Naledi and he had no means of getting out. The witness says he had telephoned Brig. Makoaba about the situation. The witness says the Brig, had said he was to ally Penane's fears as the headquarters was save and he had informed Penane what the Brig. had said and Lt. Col. Penane had said as his house was surrounded he feared going to the headquarters. He had once more telephoned Brig. only to discover he had left the office and proceeded to Maseru Central Charge Office. He says he had passed some of the P.T.C. personnel at the gate whom he identified but not all of them. He had driven to the car park straight to his offices. His subordinates Messrs Penane, Chabeli, Raleaka, Mokolatsie, Major Mokeki and Captain Fonane had come - it was the usual morning meeting. He says the purpose of the meeting was briefing the officers because Penane was in charge of Urban and Chabeli rural while Ntoi was in charge of C.I.D. region and Raleaka C.I.D. Maseru station. Mokeki being of Stock Theft division, Mokolatsie Car Theft and Fonane Maseru police station.


They had assembled but Penane had come late giving the officers a briefing of what had happened at his home but in a short space of time there had been a knock at the door. When Lt. Col. Penane came, he was angry carrying an AK 47


23


rifle. He says he does not know who between Ntoi and Mokolatsie seized the rifle from Penane and put if behind the safe the reason being that Penane was angry having been followed from his home. He had been urged to cool down and discussions had started. In a short space of time there had been a knock at the door and the witness says he had asked the person to come in and L/Sgt Lekhooe had entered followed by Tpr. Mafeto though he cannot recall the third person. The witness says Lekhooe had come close to his desk and mockingly saluted him. He says it was not a proper salute. Lekhooe was in an operational uniform carrying an Ml6 rifle. He demonstrates the salute. The first one was proper while the second one was lax and casual - he says it was a passing salute.


Mr. Phoofolo applies that in view of places mentioned there be an inspection-in-loco as soon as crown counsel is through with his examination-in-chief. He also says there was a Commission of Inquiry regarding the facts and applies that the record of the Commission of inquiry be made available to the court for use by counsel in cross-examination. He says evidence was led before a tribunal. Mr. Suhr has said there are photographs available; he says the relevance of the Commission of Inquiry was immediately obvious to him. He had spoken to Mr. Ramafole and the D.P.P. but had not been able to trace the record. He says the record may be important and in any event counsel were entitled to it. Unfortunately, he has not been able to lay his hands on it. There was, according to Mr. Suhr, no difficulty in the record being produced if it was found. He says as soon as he is able to lay his hands on it he will take instructions from relevant authorities as to its production. He says he has not been able to lay his hands on tapes and transcript of the record. Mr. Phoofolo has suggested the office of the Registrar be approached as to the whereabouts of the record and a relevant order be made for the Registrar of this court to produce the record as the Registrar is the custodian of judicial records. The


24


Commission of Inquiry was alleged to be dated 03.09.96.


The court had made the order that as the Registrar of this court is now not available, an appointment be made with her. The Registrar had subsequently seen the court in chambers and explained she knew nothing of the Commission of Inquiry as the record was not made available to her; this had been explained in open court to counsel on either side.


P.W.2 continues in his evidence and says after the mocking salute the late L/Sgt. Lekhooe said he wanted Mr. Penane. The witness says he had asked what for he wanted him and the Sgt. had made a 2nd salute abruptly turning his back on the witness facing in the direction of Mr. Penane with his weapon pointing at Mr. Penane. Mr. Penane had then asked: 'do you know who you are looking for, at the same time drawing his pistol and suddenly there was gunfire; the witness says he heard rapid fire and automatic firing; confusion and pandemonium had then followed. The witness says he is not able to say who fired first though the firing was in front of him. He says A5 (Tpr. Mafeto) was next to the door. He says during the commotion an officer said: 'take cover you might be shot' and he had dugged under the desk and at this point in time had said: close the door and Mr. Fonane had kicked the door closed. After the firing he had picked up the telephone and telephoned the Commissioner of Police to report what had happened and the reply was that he had asked for ambulances from the Lesotho Defence Force. After the firing Mr. Penane was lying on the seat where he had been on and on the right side next to him Mokeki had slumped on his desk and at the corner was Mr. Chabeli also injured and next to his desk was Mr. Raleaka who had sustained injuries. He says in front of his desk to the left lay L/Sgt. Lekhooe and Mr. Penane was saying: they have shot me, they have shot me - and it was time he telephoned the


25

Commissioner of Police. Before Brigadier Makoaba and Moiloa arrived there was a knock at the door and he had said I would not open the door until the men outside dispersed. The people he wanted to disperse were policemen from the P.T.C. He says pipping through the window he could see Sgt. Mosae and Sgt. Mosae was A3. He says Sgt. Mosae was taking cover outside next to a horse-and-trailer. He says A3 was carrying a general purpose machine gun (GPMG). He says A3 was lying next to the GPMG. in a ready position to shoot. Through the window he had seen A' standing next to the armoury carrying a firearm - it was an Ml6 but shorter - a carbine. According to the witness, Brig. Makoaba had come in but before opening the door he had asked that the P.T.C. personnel disperse. He had gone to A1, talked to him and immediately thereafter they dispersed. He had not seen A1 do anything else nor does he remember seeing any other except A3 who had changed his position by going back to the investigation office and talking to A2. He says the accused he had mentioned were in brown operational uniform. He says A1 wore an armour vest. He says he was not injured. From his observation Penane had suffered a wound on the right side region of the belly or navel. Mr. Chabeli had suffered injuries on both legs while Col. Penane was still alive as was Mr. Chabeli. The witness has testified nothing had been said. Mr. Raleaka had been shot on the chest where there was an open would. Mr. Mokeki had complained of his arm while Mokolatsie had leg injuries, Lekhooe had sustained gun shot on the forehead and he did not look alive. No explanation had been given for the occurrence.


As there had been an application for pointing out by P. W.2 the court had gone on an inspection-in-loco at Maseru Central Charge office at the offices of P. W.2 and the results of 06 April 2000 were in due course typed, read in court and made available to counsel as requested; a typed copy is appended and marked annexure "A".


1


Annexure "A"


On the 06.04.2000 Inspection-in-loco at Police Central Charge Office.


Present: Mr. Suhr for the crown, Messrs Maieane and Phoofolo for accused and the Assessor Mr. Sekhesa.


Pointing by P.W.2:

The witness points at the main gate, he says he came through the entrance where he passed some of the accused. Gate is at the S/W corner of the Police Central Charge Office - he went past investigation offices towards the East to the parking lot and parked. After parking he went upstairs to his office and went into the curtained office.


The yellow-coated office is the armoury. The witness points at the horse-and-trailer. Radio-room is on top and Mr. Loots says some photographs are now to hand. The witness points to where he parked his vehicle being end of the parking lot facing the North and adjacent to the witness's office. One goes up a flight of two stairs to get to the witness's office and on the last stair is a window facing West. He points to Regional Commander's office (Regipol). He points to where he was seated on the N/W corner against which is a window lying directly west. On his left was a table on which Mr. Ntoi was seated and next to the safe was Mr. Raleaka and Mr. Mokolatsie and next was Mr. Chabeli and at the corner was Mr. Mokeki - He says Mr. Penane was in the middle facing him and on his extreme right was Mr. Fonane seated immediately behind the door. There was also a photocopier and T.V. on the eastern wall and files on his desk. There are 2 windows facing south and an


2


additional one facing west. The witness says there was a knock at the door which he answered and 3 policemen came in and he identified L/Sgt. Lekhooe and Tpr. Mafeto. L/Sgt Lekhooe was in front and saluted him mockingly if morally. In coming to him he had passed Fonane and others and came directly to his desk. They had held officers briefing meeting. He says during the meeting anybody is free to enter and make requests. Lekhooe had gone straight for him. In asking him where was Mr. Penane he had already turned towards Mr. Penane. The witness shows where Lekhooe turned towards Penane his firearm pointed towards Penane and it was the time when Penane said: do you know the Penane you are looking for and drew his pistol. He says the rapid fire was pa-pa-pa -- this was an automatic weapon. He said rapid is single shots . He says he heard rapid fire first and then automatic fire. Penane after the shooting was holding his stomach saying they have shot me and Mokeki was lying next to him. Chabeli was lying close to the bookracks towards the west and Raleaka was lying next to his desk on the right-hand side of where he (the witness) had been seated. There were two automatic fires and he says there were bullet holes on the eastern side of the office. The fire came from two men though I could not identify the other one. He says he took cover behind his desk. He says this Is not the desk he dugged under. The events were fast moving. He says after the shooting he pipped through the window from where you can see a person standing at the armoury. He says one of the accused crouched underneath the horse-and-trailer - it was Mosae. He later moved to the investigation offices. He says A1 was standing right at the corner. When these events materialised it was 7.30 - 8.00 a.m. He shows where L/Sgt. Lekhooe was lying east facing upwards lying on his back. The court is shows the photocopier which bears no marks. It is now in what was then a tea-room. The court was also


3


shown a radio. The witness also shows where A3 was lying. He points to where A1 was next to the western corner of the armoury. He shows where he saw Mosae after moving from where he had been to the investigation office on the 2nd door facing East. There is security fence around the premises. 7.4.2000.


26


Mr. Suhr for the Crown suggests as was remarked during the inspection-in-loco that he now take the witness through the photographs. P. W.2 is reminded he is still under oath. The photo book being handed in by consent is marked Exh. "B". The witness identified B1, B2; B1 and B4 being where the late Chabeli was found lying and B5 and B6 reflecting injuries on Chabeli. B7 is said by the witness to be sw corner of the office. B8 being injuries to Chabeli's legs and B9, B10 and B11 shows L/Sgt. Lekhooe next to him being a photocopying machine. B13 is side of injuries to Lekhooe while B14 - B15 also shows injuries to L/Sgt. Lekhooe. Mr. Suhr has said, though the witness did not examine the bodies this is the prosecution contention of how they lay. He further says certain photographs do not appear in the album and in due course they would be produced relating to the other deceased persons. As for B16 and B17, they show layout of the desk and the person thereon is Major Ntoi. B18 was said to be the eastern side of the room showing bullet holes as is B19 and B20.


Mr. Phoofolo says they have agreed with Mr. Mosito who is presently absent that he starts cross-examination.


Cross-examination by Mr. Phoofolo.

The witness says that his formal education is Standard VI and that he joined the police force in May, 1966. When present events occurred the witness says his responsibilities in the police force was a Divisional Commander of Maseru Central region. Police in Maseru Central region were under his command. Central region compassed Maseru and Thaba-Tseka. Lt. Col. Penane was under his command and he was in charge of Maseru Urban area. The witness says accused were under the Commandant at P.T.C. and he could not order them without going through the Commandant at P.T.C. The witness says in the history of the police force what took


27


place had never happened before. The witness says on 31 October, 1995 Lekhooe wanted Lt. Col. Penane. The witness says he did not know what for Lekhooe wanted Penane. He says meetings were held at the Police Central Charge office every morning and previous to the meeting of 31.10.95 Penane had not reported any misunderstanding between him and Lekhooe or for that matter any misunderstanding

between him and Leuta (A2). The witness has said in the event of a misunderstanding between him and any member of the police force Lt. Col. Penane was to report to the witness. The witness says he knows of no differences between Penane, A2, A3, A4 and A6. He says he would know of day-to-day activities of Lt. Col. Penane. At the meeting of 31.10.95 Lt. Col. Penane had given him a report to the effect that he had been followed to his home by some of the police personnel from the P.T.C. and that is all he reported. He had known of a meeting held on 30.10.95 at Police Headquarters by Col. Nalede. He had not attended the meeting. Lt. Col. had reported to him what the meeting was all about. The witness says the meeting was about differences between A1 and P. W. 1. He says this went back to the teacher's strike where in trying to quell the trouble some police interfered. Lt. Col. Penane had said the meeting of 30.11.95 had not proceeded because a misunderstanding had arisen. The witness says Col. Penane had reported to him the same day and had looked annoyed.


As for events of 31.10.95, the witness has testified that the Deputy Commissioner of Police had said Penane's fears were to be at rest for the Deputy Commissioner had said Penane was to go to the Police headquarters and not Maseru Central Charge office. The witness says he had relayed the message to Penane and the latter went to the Maseru Central Charge office in circumstances he should never have gone there. He agrees though that Penane reached Maseru Central Charge office unharmed. The witness has further testified in cross-examination that when


28


he told Penane the Deputy Commissioner of Police had said he was to go to Police headquarters and not Maseru Central Charge office Penane had said he was scarred in view of the fact that his house had been surrounded by heavily armed police units. The witness says Penane went to Maseru Central Charge office (MCCO) because that was his office though he had not told him when he went there. The witness says he had not taken some of the things seriously because many things were mentioned which confused his mind. Amongst these was that Penane had said to the witness he was not pleased with the presence of Col. Nalede. In retrospect though, the witness says he cannot guarantee whether Penane would have been safer had he gone to police headquarters. That Penane went to the Police Central Charge office to seek confrontation the witness denies this. The witness says when they went to the MCCO they knew offices were surrounded by armed men and when Penane entered he was carrying an AK 47. The witness says he was not armed and had nothing on him for he had left his personal issue in his vehicle by reason of the fact that he had not felt threatened. The witness says he was not ordered to go to the Maseru Central Charge office. He denies Brig. Makoaba had telephoned to say him and Penane were to go to police headquarters for Brig. Makoaba was only inquiring where Penane was. He says Brig. Makoaba had inquired: 'why has he come to your office and not mine at police headquarters?' He says Brig. Makoaba had insisted Lt. Col. Penane go to the police headquarters and had not said that Penane was to go with him to the police headquarters. The witness says when Penane entered his office he was angry. When he asked him why he was carrying an AK 47 he said he was protecting himself since he had been threatened at his home. He says if an officer's life is threatened security is provided. The witness says it is correct to say that from his home Penane should have been provided with security. He had not provided security because Penane's life was not in danger. The witness says providing security would have been unleashing dogs of war and


29


the worst might have happened. He says then he did not sent security for this would have been confrontational. He says Penane should have gone to the police headquarters. Penane had entered through the main gate and could not say whether Penane was threatened on entering the charge office. The witness says he gave evidence at the commission of enquiry. The witness says he does not know whether the idea was to force Penane to go to the police headquarters. The witness says it seems the idea was to take Penane to an unknown place. The witness says he does not know why Penane was not taken away on entering the main gate. Put to the witness there was never an intention to take Penane anywhere by force for they would have done this on him entering the gate, the witness says he disagrees. The witness says the meeting of 31.10.95 started between 7.30 a.m. - 8.00 a.m.


The witness says when Lekhooe entered the office he was holding the rifle with his left hand facing upwards - he says the muzzle was facing upwards. The witness holding a stick a metre long holds it vertically and demonstrate how the gun was held, saluting hurriedly, as it were. That Lekhooe saluted properly he denies. The witness demonstrates an arm salute and shows how the firearm should have been carried i.e., on the right arm saluting with the left hand. Witness holding stick (as M16) on his right hand vertically next to the body and horizontally with his hand touching the stick (rifle), he says this is armed salute. Put to the witness that instructions are this is what Lekhooe did the witness says when Lekhooe saluted the firearm was not in a ready position to shoot. The witness says by saluting him Lekhooe did the proper thing. Having saluted him the witness says Lekhooe said: 'Chief, we want Mr. Penane.' That he said 're kopa morena Penane' (we are asking for chief Penane) the witness agrees he could have said 'chief' though he does not remember him saying so. The witness says he did ask Lekhooe what for he wanted Penane but Lekhooe had not replied and instead of replying repeated what he said


30


'rea 'matla' (we want him). The witness says Lekhooe was stationed at the P.T.C. as a member of the band unit and wore brown operational uniforms which are used for rough assignments. The witness agrees they wear these uniforms by reason of the fact that they can be called upon for any emergency and it is for this reason that they always carry firearms. The witness agrees if he is sent anywhere he will not leave his weapon behind. The witness says there was nothing surprising police being in brown uniforms and armed so long as the witness was aware of the engagements. The witness says he was surprised by accused being at the MCCO. Penane had not told him why the men were at the MCCO. He says he had made a report of the incidents and the note dated 16.01.96 is in his hand. He says he considers the report to be his. The witness says at bottom of 3rd leaf the portion says when Lt. Petlane asked the men what for they came they had said: 're tlile lipuisanong' (we have come for talks). The witness says Lt. Petlane had said this after he questioned him after the incident. He says Lt. Petlane told him after and not before the incident and he was mistaken to say before the incident. Put to him he knew what accused were there for Lt. Petlane had told him before he agrees. The witness says Lt. Petlane was in charge on the night of 30.10.95. He says he had tried to communicate with Petlane and question her and she had said she was not able to communicate with anybody and was not able to give details because the very persons were following her from place to place. He says he is referring to police personnel from the P.T.C. Put to him he had not mentioned this in his evidence-in-chief, he says he could have but then again these things had happened a long time ago and might have slipped his mind. He says he was not hiding anything or the fact that accused had been there for a purpose. The witness says Mafeto (A5) was not very far from the door. He says Mafeto was not at the entrance of the door but inside. The witness refutes the statement that Mafeto (A5) and Lekhooe were sent by Brig. Makoaba to fetch him and Penane for if this was the intention Lekhooe


31


would have told him so. The witness says it is improper to get instructions from a junior and Brig. Makoaba would not sent a message to him though junior officers. He says if Brig. Makoaba wanted him he would have telephoned him first to say he had sent men to the witness to fetch him. He says he has sent juniors on several occasions though he has not sent a junior to instruct a senior to come to him. He says it was proper if it was said 'could you inform Col. Ngatane and Penane to come to my office?' That this is what Lekhooe told him the witness says Lekhooe said: 'Ke batla Penane.' (I want Penane). He disagrees Lekhooe went further to say 'you are wanted for a meeting' for this is not what Lekhooe said. That Mafeto (A5) will tell the court Brig. Makoaba would say: I told Col. Ngatane to tell Penane to come here and he has not come thus sending Mafeto & Co. to physically deliver the message the witness says he does not agree for Penane having been called to the police headquarters had not gone there. He agrees Lekhooe on reaching the door knocked; he also agrees the purpose of the knock was to be allowed to enter for he was allowed to enter. That Mafeto (A5) would say Lekhooe did not ask question because things happened fast, the witness says he did ask what for Lekhooe wanted Penane. The witness says Penane had stood up before the question was answered. He says shooting took place while awaiting a reply from Lekhooe namely: what for did he want Penane. The witness says he does not recall if Penane stood up though Penane stood up before Lekhooe replied. He says though he does not recall Penane standing up, he could not refute evidence that he stood up. The witness says it is wrong to say Penane shot while Lekhooe was facing him, at attention. He agrees though that Lekhooe was between him and Penane facing the latter. He agrees Lekhooe spoke to him. The witness says as Lekhooe was facing him, he was speaking to him and giving Penane his back. Fonane had been immediately behind the door and next to him was Penane. The witness is shown a diagram showing where Lekhooe, Penane and himself were. Mr. Phoofolo hands in the diagram as


32


an exhibit and it is marked Exh "C". Put to the witness Lt. Col. Penane set at an angle and not directly behind Lekhooe the witness disagrees and also disagrees that Fonane was directly behind Lekhooe. That Mafeto (A5) will say Col. Penane shot first hitting Lekhooe on the left side the witness says he does not know who shot first between Lekhooe and Penane. The witness says he heard rapid fire first and then automatic fire. The witness says he was not able to discern from which side the rapid fire came. The witness says he has a fair knowledge of weapons. He says he can tell from which side east or west the firing comes from. He says the rapid fire was in front of him. Between a pistol and automatic both make rapid fire. He says in an automatic firearm you can change from rapid to automatic. He says he can tell the difference between automatic and rapid. He says there are differences for automatic makes a different sound from a pistol and one can tell that the sound is from an automatic or a pistol. He says the rapid fire came from a pistol and this is the first sound he heard. He agrees Lekhooe did not carry a pistol but an Ml6. He says the first shot would not have come from Lekhooe. He is not sure whether other officers had side arms save that Lt. Col. Penane had one. Put to him Penane shot Lekhooe first he says he has no means of denying for he does not know. The witness says he cannot deny that Penane shot Lekhooe standing. That when Lekhooe turned towards Penane he opened automatic fire he says he does not agree - he says he does not agree Lekhooe turned towards Penane on being shot. That Penane shot first and Lekhooe thereafter he says he cannot deny. He says it is possible that Lekhooe fell with his hands on the trigger of an automatic rifle and bullets started spraying all over. That before Lekhooe fell Mafeto (A5) will say he heard a louder noise of gunfire amidst the officers therein the witness says he does not agree. He agrees Lekhooe fell on being shot with an automatic weapon. The witness says there was another automatic directed at Lekhooe from the officers and Lekhooe had fallen. The witness says there was rapid fire, automatic fire for 5


33


seconds and did not remember the 3rd automatic fire. That there was a short moments' silence followed by gunshot from a 9mm pistol the witness says he did not hear this. He says photographs were not taken by him having been taken by scenes of crime officers. He says he does not know who took them and are in any event kept by scene of crime officers. He says scene of crime officers came immediately with Brig. Makoaba. Those not injured were: Fonane, Ntoi and himself. The witness says he did say there was somebody firing from the doorway though he can't say who it was. He has last set his eyes on the three of them entering. He says at the time of shooting Mafeto (A5) was in the office. He says he is not positive whether Mafeto was in the office. Put to him Mafeto (A5) was not in the office but outside on the threshold or door steps as it were the witness says he does not know. Shown B13, the witness says is has a wound on the forehead and it is not possible for him to say who shot Lekhooe. The witness repeats he says he left his gun in his van. He disagrees for he has no gun at the present because he cannot go into court armed. He agrees he does go into his office armed. He agrees the atmosphere was tense because of the prevailing circumstances. He says then he had, in fact, left his gun in the vehicle. He agrees there are cartridges next to picture B13 - he says they look like 5.56mm though the gun is Ml6. He says the one on the left of deceased's body is the Ml6 he referred to. He says the cartridges look the same. Despite the state of confusion, the witness says he did examine the scene. He says he touched nothing. He says he does not know if Ntoi disturbed the scene or touched anything nor does he know anything about Fonane. He knew D/Sgt. Mokhesi now an Inspector. He had seen her immediately after the incident. He says he does not recall seeing an AK 47 on his desk. Before Inspector Mokhesi came there were no 29 rounds of AK 47 on his desk. The witness says he is not sure if there were bullets for there was too much confusion. The witness says he did not seize an AK 47 from Penane - he says it was seized from him by Mokolatsie or


34


Ntoi. From behind the safe the AK 47 was handed to scene of crime officers. All weapons had been handed over to scene of crime officers. He says he does not remember if Mokhesi had handed over the rifles to him for keeping for a while for he did not keep the guns. The Ml6 was not the only gun he had seen. He says there were 2 x M16 and an AK 47. He says when the three of them had been left in his office he had seen an M16 rifle next to deceased Lekhooe. In relation to the door Lekhooe was lying directly opposite the door as you enter and he does not remember on which side the rifle was. He says he would not deny if a witness said the rifle M16 was behind the door. He say he saw only the one next to Lekhooe. He says Mokhesi did pick up the rifle Ml6 and an AK 47. He says he gave the weapons to Mokhesi though he is not now certain whether it was him or Ntoi. He says he did look around but waited for scene of crime officers to do their job. He had seen no rifle behind the door. He says he does not recall if the M16 given Mokhesi had a magazine. He denies he tempered with the scene of crime. As for Mosae (A3), he says he has said he was next to the horse-and-trailer he had pointed at. He says he was lying next to the horse-and-trailer in a shooting position and he could see him clearly for he was in front of the horse-and-trailer. The witness says at the time he was seeing Mosae(A3) for the first time. That Mosae got to the premises after the shooting the witness denies. He says he did not see Mosae (A3) on arrival but immediately after the shooting. He says he doesn't know where he was before the shooting. The witness says he did say A3 was in possession of a GPMG. He says he was lying on the ground taking cover and aiming at his office. He says he has used a GPMG. and Mosae was holding it - he says it was on the ground extended pointing in the direction of his office. He says it has a long butt at the back and can be extended according to plan. Mr. Phoofolo has said he will

apply for the demonstration of the weapon and completion of measurements. The witness says even if Mosae (A3) denies he carried the weapon he did see him with


35


the weapon. That Mosae (A3) never met Leuta (A2)at the MCCO the witness says he saw them standing in front of the investigation office and he was standing at his office's window. The witness agrees he saw Leuta (A2) after the shooting.


There was farther inspection-in-loco on 10 April, 2000 but Mr. Sekhesa the Assessor had not made appearance. The typed record of the inspection is appended and marked annexure "B".


Mr. Suhr says P. W.2 complains he is being harassed by member of the public about his evidence.


Court to P.W.2 ignore those who harass you about your evidence.


Mr. Phoofolo continues cross-examination. Witness warned to tell the truth.


Put to him this is the first time he mentioned in court Mafeto had carried a firearm the witness says he did say it. The witness denies this is an afterthought. The witness says at the inspection-in-loco he did say Lekhooe came in followed by Mafeto (A5). That he saw Mafeto but not the weapon he was carrying he says that could be because of the confusion that materialised. The witness says he can't say he saw everything that happened because things happened so fast. He insists Mafeto (A5) carried a firearm and that he wasn't carrying one can't be true./ The witness says it is not true that Mafeto (A5) had a police button and a walkie-talkie. He says he did not see a walkie-talkie but a firearm. The witness agrees that Mafeto (A5) was 1.2 m from the door. He says from where he was standing other people could identify him if they knew him. That Mafeto (AS) was at the threshold was not


4


Annexure "B"


Further inspection-in-loco: 10.04.2000


Pointing by PW.2 cont.

Appearance as before but no Assessor Mr. Sekhesa


From the base of the wall of Central Charge Office to where A3 was with the machine gun is 14 metres. From the same spot to where P.W.2 saw A1 is 28 metres. The witness says the white bakkie was where it is at present and this is where A3 was with the machine gun. The witness says when the saw A3 he pipped though the two windows lying Matter is stood down as there is no suitable GP & Co at present. The office from North-West is 5.1 metres and East is 5.4 metres. The window facing South is 1.45m x 1.2m. In 2nd window also facing south is 1.45m x 1.2m. From the first window measuring 1.45 x 1.2m downwards is 3m. From the same windows to where A3 was seen by P.W.2 is 14.6m.


The witness (P.W.2) stands where he was and shows where Lt. Col. Penane was seated and it is - 4.2m. P.W.2 says the chairs were next to the wall as they are now. He says Fonane was at the extreme right side of where Penane was. He says the present table was the same size as the present table. Mr. Phoofolo says Mr. Ngatane had said he was sitting at an angle to where Penane was seated but it would now seem it was in a straight line.


The table is re-arranged to represent the position in which it was - the Col. P.W.2 is made to sit. He shows how Lekhooe came in saluted and asked him where is


5


Penane and I said Do you want him and he turned and as he turned towards Penane holding his rifle in a ready position and Penane pulled out his pistol and then was firing. He says when he was intonating with Lekhohoe and Penane Mafeto was standing 3.7m from P.W.2 and from the door to where Mafeto was 1.2m. He says Mafeto was carrying a rifle though he does not know the type. That Mafeto carried a rifle came from question from the court. The P.W.2 shows where Penane's AK47 was placed being between the filling cabinet and safe.

11.04.2000.


36

true.


Court: The picture on B7 is not the same on all the albums and there has to be rectification of the picture so that pictures on all the albums are the same. Mr. Suhr says the pictures can both be used. He says they are the same the difference being that they are taken from different angles. Mr. Mosito says to resolve the confusion it is better that people who took the pictures hand them in so as to be cross-examined on pictures taken by them. He says rectification is permissible under oath. Mr. Suhr says album 7 is not identical with other albums and would request to check the other albums to ensure they are identical. Mr. Suhr says he is not conceding picture are not properly before court. He says they are properly before court for their handing in was not objected to and the problem only came with picture B7. He says he is not withdrawing the pictures to start afresh.


Mr. Phoofolo now says he is not prepared to question the witness on pictures not taken by him and will do so to a person who took the pictures. Mr. Mosito has suggested crown counsel be given time to put its house in order i.e. to choose which pictures he intended to rely on. Mr. Phoofolo says there are pictures which may not even be in the album.


Mr. Mosito says he is in the Court of Appeal but will be available the following day should Mr. Phoofolo be done with his cross-examination.


Matter was postponed to 11.04.2000 at 9.30 a.m. On 11.04.200 Mr. Maieane appears in place of Mr. Mosito .


37


Mr. Suhr says it would appear when Exh. "B" was handed in there was no objection for its handing in. Mr. Phoofolo says that was not necessary for the procedure is to hand in items merely for purposes of identification and to be handed in as exhibits by a person who prepared them and consequently it cannot be said that the album was properly handed in. Mr. Suhr says if a witness admits the stick as the one with which he hit the deceased such a stick is not given an identifying mark but it is marked as an exhibit. He says photographs are not to be confused with documents for the question is always whether the witness can identify what's on the photograph and that this is different to putting a statement to a witness for this would amount to hearsay. He says the course taken does not prejudice accused. Mr. Phoofolo says other than a person in whose custody an item is or the author items can only be identified for it is the author or person in whom the item is that can produce it as an exhibit and for such person to be cross-examined on it.


Judgment reserved on whether albums properly handed in as exhibits.


P.W.3 Detective Inspector Mokhesi sworn states:-

On 31.1096 she held the rank of detective policewoman. She says her function was scene of crime officer. In this capacity she had attended Maseru central Charge office scene. She had gone there the same day. She says she was working in her office when she learned there had been shooting at the M.C.C.O. and she had gone there with policewoman Lelile and her camera. She had found Major Raleaka who had a wound on his breast and he had been carried in a blanket to Makoanyane hospital. She says she had gone to the office where these things had happened and had found a person in a brown overall near the photocopying machine. She had found the person to be Lekhooe and P.W.2 was in there along with Ntoi and Mokolatsie. There was another corpse at the corner and it was that


38


of Major Chabeli. There were several shells on the floor - M16 and 5.6 shells. There were 23 and another 3.9 mm shells. She had started with Lekhooe who had a wound on the forehead and under the armpit. She had also looked at Major Chabeli who was in a pool of blood. He had wounds on the legs and she had taken photographs of the corpses. They had taken the bodies to the mortuary. She had undressed Chabeli and photographed him and found a would on the knee, and open one behind the leg (sheen) and on the toe; there was another one on the leg but it was an open wound. She had taken photographs of Lekhooe and Chabeli and made an index. She had taken B1, also B2, B3 B4, B5. She says Major Chabeli's picture taken by her in a pool of blood. She had also taken B7a. B7B and had pasted the photos on the album. She says the photos were similar and she had been confused. She says she was not aware of the difference because one photo was taken at an angle. She had re-arranged the pictures. She says B8 was taken by her showing wounds on Major Chabeli. B9 was also taken by her showing a wound on the knee. She says her training does not enable her to know the entry and exit of a wound. She says Bl was also taken by her and shows the wound on the shattered toe - that is Chabeli's. She had also taken Bll showing a wound on Major Raleaka. She had taken B12 and B13; B12 showed Lekhooe's corpse and B13 shows a wound on his forehead. B12 was a brown uniform called an operational dress. She says there are webbings and on the waist is a belt in which webbings are held. On his left arm next to the belt these are webbings containing a firearm or provision. She says a person wearing an operational dress places ammunition in his webbing. She says she took B14 being a wound on Lekhooe's right armpit. She also took B15 a wound on the left armpit of Lekhooe. She can't say where the bullet entered and went out. Mr. Suhr says copies of B16 - 19 were not available presently. She says the pictures were not taken by her though she was present when they were taken by Selebalo. She says they were taken a day after she had been to the scene. She says


39


she can only answer questions relating to some pictures but not all the pictures. Selebalo was deceased and he could have died in 1997 or 1998. She says B16 is another part of the office where incidents took place. She says she can't exactly say what the objects are for pictures were taken by Selebalo. She says B17 is another view of the office. She says she sees the 3 cases which show the scene of crime. She says the gentleman on the desk is ex-Major Ntoi now retired. She says B18 shows holes on the carpet - even though she does not know the arrangement as to numbers. She says where the numbers are lead was found being part of the bullet used. She says she is able to tell that lead is from a bullet. Put to her a bullet is mad of powder and shell she says she has heard of this. She agrees lead is part of fired bullets and that the same cartridges are left in the firearm as ejected. She says lead was not found on all shell holes . She also says B19 is a broken window. Looking at B16 the window on the right of B16, the witness says it could be. She says she collected 23 spent cartridges. As for B13, she says she sees cartridges on B12 being upper right hand side and says she sees 8 on B12. The witness points to where the shells are. She says an M16 rifle was found behind the door with a magazine. She says she found 2 rifles, an M16 and AK 47 and had found no small firearms.


She says she made a statement on 26.02.91. She says she does not remember the serial no. of M16. She says she had made a report and would like to refresh her memory from the report. Mr. Phoofolo objects saying the witness cannot refresh her memory from police note books. Inspector Mokhesi says she made the report and the court allows her to refresh her memory. She says the No of M16 is 9502170 and was lying against the wall. The witness says when she examined Lekhooe she found he had fallen facing upwards lying on his back. She had found an 7.65mm automatic pistol. She had found it inside the webbings. She says there were bullets


40


though she could not say how many; she applies to refresh her memory from the report; allowed she says bottom of p.2, 5th line from the bottom appears 7 rounds; 1 magazine loaded with 30 rounds, the 3rd magazine loaded with 22 rounds and the last one with 6 rounds. She says she found 4 magazines in possession of Lekhooe with 30 and 22 rounds. As for the AK 47, the rifle was placed on P.W.2's desk. She says she does not remember whether the AK 47 was loaded. She says she wishes to remind herself from the report and allowed see p.3, 2nd paragraph shows the weapon to be serial No. ZL 10080 with 29 rounds. She says there were 29 rounds. There were two desks in the office being a desk on which Major Ntoi is seen seated on (B17). Witness indicates rifle in front of the small flag and she says the 29 rounds were loaded in the magazine of the AK 47. She says she does not know what calibre bullets AK 47 fires although at the back of M16 shell is inscribed M16 and AK 47. She says she did not find shells but found a live bullet near the desk of which Major Ntoi is seated. She says the bullet was on the floor. The witness says on the floor immediately in line with the flag she had found a 9mm cartridge. She says she does not know from what weapon these cartridges are fired. She says though that 9mm cartridges are fired from a 9mm pistol. She says she found the cartridges on the floor. She says it was near the door but middle of the office; she says the articles she found being guns, cartridges and lead she had taken to Makoanyane as is normal practice. She says as for Lekhooe's 7.65 pistol, she had asked the then War. Officer Makhetha to keep. She had found no cartridges fired from the 7.65 firearm.


Cross-examined by Mr. Phoofolo the witness says she see the report and she says though she has read the report from time to time she would need to refresh her memory. She says she adheres to the contents of the report and does not mind the report being made and exhibit - hands in the report which is marked Exh "D". She


41


says by the time of the incident she has become involved in the scene of crime investigation for a year for she had gone for a course in 1994. She says normally she chooses what to photograph being what's relevant and the photos she took were relevant. She agrees the case involved shooting with guns. She agrees AK 47 is a gun and was relevant to the case. She says she was frightened thinking something would happen. Asked even if she could pick-and-choose whether she would leave out an item like something that shoots like an AK 47 she says she could have taken photos of the AK 47 but then she was in a state of shock. She says she saw both the M16 and AK47. She says she did not photograph the AK 47 however much it was necessary to do so and relevant to the case because she was touched and had omitted to take photographs of the AK 47. She says it so happened she took pictures of dead persons and not a lifeless thing like an AK 47. She denies she did not take pictures of the AK 47 because she wanted to hide something. That her report is not supported by AK 47 picture she agrees. She says the M16 was relevant but as she said she was frightened. She agrees as she left out certain items she did not do a good job. She says she was touched and affected by the events as a policewoman. She says she did say there were 3.9 shells and had not taken their pictures for the same reason. She says the shells she found were in the middle of the office floor and not on corners. She says when she took the shells she did not know from which guns they came. She says she did say to P.W.2 she wanted every weapon from officers that were in the room when shooting took place and P.W.2 had agreed he would forward them as required. She says the guns were not given her. She says she demanded the guns because she knew the police to use 9 mm pistols. She says she felt investigation would not be complete unless the weapons were tested by ballistic experts. She had met Col. Ngatane (P.W.2) and he was saying he would find out when the officers would be bringing the guns. She says when she asked for P.W.2's service firearm, he had said he would rather he brought

42


the firearms collectively. The witness says though she had asked for PW2's service arm, he had not given it to her save merely saying he would bring it. She says she did C.O.S.C. at school. She also says as she found items she took photographs. She had not tempered with the items nor had anybody. That the magazine lies next to the body of the late Major Chabeli she agrees - she says it is a rifle magazine. She says in relation to Major Chabeli, Lekhooe was nearer the photocopier while Major Chabeli was nearer the book rack. She says Major Chabeli lay at the extreme left of the corner as you enter the door. As for the M16 rifle, it was behind the door. The M16 was about 2 metres from where Lekhooe was. Next to Lekhooe she had found no firearm nor had she found a magazine next to where he lay. She says on Lekhooe's body she found magazines. She says she found 4 magazines on Lekhooe and one on Chabeli. The magazine next to Major Chabeli was lying on its own. Next to Lekhooe's left arm was his hat. She says as she took pictures she removed clothes but this was after taking photographs. She says she lifted the shirt on B14. She says when she found Lekhooe he was not wearing anything on his head. She says she is not able to say such-and-such a bullet or cartridge comes from such-and-such a gun. She says she sees cartridges next to Lekhooe's ear (B13) and she says they appear to be rifle bullets and she had learned on the day in question that M16 and AK 47 shells are inscribed at the back. She says the bullet she saw was inscribed 'AK 47' at the back. She agrees that it would have been inscribed 7.62mm with mark of the manufacturer. She had found a round of AK 47 on the floor. As for the filing tray she says it is one placed on a desk. She says the AK 47 bullet she found was on the desk and it is wrong to say it was on the floor. She had found the bullet on Col. Ngatane's (P.W.2) desk. The other rounds were in the magazine and the magazine was attached to the weapon. She says she does inquire from people present of a thing on the scene and agrees she should have asked P.W.2 how the AK 47 came to be where it was. She says when she came into P.W.2's office she found


43


P.W.2, Major Ntoi and Captain Mokolatsie. She says she did ask Col. Ngatane about the AK 47 regarding the 29 bullets and a cartridge and he had said he had seen it on his desk. She says when she asked Col. Ngatane whose AK 47 that was lying on his desk he had said it belonged to Lt. Col. Penane. She says she had inquired of Col. Ngatane how the AK 47 came to be on his desk. She says she had asked the three men about the live bullet but they had denied knowledge. They had said they saw the bullet on the desk without knowing who put it there. As for the M16 magazine, she had found it next to Major Chabeli. She says most questions regarding the magazine were directed to Col. Ngatane but she does not remember the reply. She says as she asked questions she recorded answers and any answers she did not record was only an error. She agrees she made several mistakes regarding her report. As for the Ml6, P.W.2 had said it belonged to Lekhooe. P.W.2 did not seem to know who placed the M16 against the wall nor had he known who took the magazine out of the rifle. As for the magazine next to Chabeli she did not remember whether it was loaded. She had left the exhibits at Makoanyane. She had not personally handed them over. She had left the AK 47 and an M16 with Col. Ngatane. She had left them with him because her shelves were full. She says these things happened a long time ago and it's possible she is getting mixed up. She says she took the cartridges on B13. She says the shells on the right side of Lekhooe and on his left next to his hat look the same to her and denies they are not the same. That two different rifles of different calibres were used she denies. She says she found no shells on the door or doorsteps.


She says the scene had been revisited the following day because Col. Ngatane had said he had seen holes in his office. She says Selebalo was also scene of crime officer and does not know what happened because it was Selebalo in charge of the

arrangements.


44


On 11 April, 2000 the matter had been postponed to 12 April, 2000 but owing to the absence of the Presiding judge the matter had been postponed to 20 April, 2000.


On 24 April, 2000 Mr. Phoofolo requests that the results of the inspection-in-loco be read into the machine. He also asks whether it is now not possible to make record of the Commission of Inquiry by Mr. Justice Coetzee available. Mr. Phoofolo says it has to be placed on record that the Commission of inquiry record cannot be found and that the inquiry be made at the office of the Prime Minister. Mr. Suhr says for the sake of clarification and so far as the DPP is concerned, the record cannot be found in his office and has asked the present acting DPP to find out from the office of the Prime Minister as to the whereabouts of the record for the crown is also interested in the record. This court puts it on record that until the writing of this judgment, such a record is not available. The question of the availability of a machine gun for demonstration was also raised.


The witness sworn to tell the truth had continued under cross-examination by Mr. Phoofolo. The witness agrees it was her task to determine who was in possession of every weapon in Col. Ngatane's office and that in order to determine who handled what weapon finger prints had to be taken. She also agrees she would have had to take fingerprints for comparison. Although the witness agrees this is what she had to do, she says she did not do it owing to the confusion of the time. She says she did not inform her superiors she was confused. She says Lt. Col. Penane was buried a week after the incident as was Major Chabeli. She says dead peoples' fingerprints are taken but she had not done so. She says she did not suggest other people be found to do her work for such people could not be found. She says the reason she did not pressure Col. Ngatane, Major Raleaka and others


45


to surrender weapons for testing was because she thought they had handed them in for investigation. She says because she did not take fingerprints she can't say who handled what weapon.


No cross-examination by Ms. Majeng-Mpopo for Mr. Mosito.


Re-examination by Mr. Suhr. The witness says she'd done her job for about a year now and she had come across similar occurrence a year before the incident though it was not concerning people she was familiar with. She says the investigator in the case was Major Sekatle with whom she had had no dealings. She says the top lefthand corner of B6 is a magazine of M16 rifle. She says as to the suggestion by Mr. Phoofolo that the magazine is that of an M16 rifle she can't say for she does not know anything about magazines. She says she did not identify the dark object as portion of an M16 magazine and in addition she is unable to identify B5 as an M16 rifle. She says she found two firearms in Col. Ngatane's office an M16 rifle and AK 47. She says it is easy to take fingerprints of firearms. As for fingerprint impressions she says they are never identical. She says she does not know whether there were tests showing who shot with the AK 47. She had found an unused AK 47 cartridge and 3 of 9mm pistol. She says she remembers being shown Lekhooe's picture and that there were cartridges of 3 different calibres - she agrees saying she found them to be alike.


By assessor: She says she joined the force in 1985. She did on several occasions attend scene of crime and these were scenes of people she did not know as much as these.


46


By Court: She says she was trained as scene of crime officer. Apart from this she had an induction course as a recruit. She says she does report to her seniors. She had reported to 2nd Lt. Makhakhe what she did. She says she had only told him she was from the scene and had done her duty. She had not told him it was incomplete. She says to have said she had not completed her work would have been an omission. She says once firearms are seized they are taken to Makoanyane for examination. She says Col. Ngatane as her senior she believed he would take the firearms to Makoanyane. Col. Ngatane's superiors were the Commissioner of Police and his Deputy. She says the weapons were to be handed to her in the first place so as to undergo fingerprint tests. As Col. Ngatane was her superior she was afraid of him.


Arising from court's questions Mr. Suhr has no questions. Arising in answer to Mr. Phoofolo she says she did not look upon Mr. Ngatane as a suspect. She had trusted he would hand over the weapons. Nothing arising by Ms. Majeng-Mpopo.


P.W.2 recalled for cross-examination and cross examined by Mr. Phoofolo sworn he states he understands questions will relate to the evidence of P.W.3 He says he did say last time people on the scene could identify Mafeto (A5) if they saw him the reason being that he was in the office. He says Mafeto was where he pointed in the office. He agrees things in the office had happened fast. He agrees Lekhooe greeted him as he has shown. The witness agrees Lekhooe greeted him mockingly, facing him. He also agrees he turned away facing away from him. He disagrees Lekhooe came in a sweet manner asking where Penane was. The witness says he is not changing anything. He agrees P.W.3 asked him for his weapon to be submitted for ballistic tests. He says he had not given it her the reason being she had come to collect it later. He says P.W.3 had said the witness and other officers


47


collect the weapons but that she would not collect them there and then as her safe was locked and not functioning. He says that in evidence-in-chief he had said guns that would be sent for tests would be sent once the safe was opened and this did not include his gun for his gun was in his car at his office at the car park. He says he did not tell P.W.3 that while other weapons could be taken his could not be for it was in the parking lot. He says he did not tell P.W.3 this because this weapon was not part of weapons to be surrendered for ballistic tests because this was not necessary. He says it was well known he kept a gun and could not refuse to hand it over. He says he handed over the gun to the late Lt. Col. Sekatle. He says Lt. Col. Sekatle recorded to his having received the gun. He had not handed it over to P.W.3. He says he does not recall that P.W.3 reminded him several times to hand over the weapon. He says it is possible he promised P.W.3 to collect all the weapons and hand them over to her. He says the incident happened a long time ago and it is not possible to remember every detail. He says he handed over to P.W.3 all the weapons including his though it was not all of them for some had been collected before; he says other officers had brought them to his office. As a senior officer, they had to bring the weapons to him. He says he did after the incident, trade-in a firearm but this was his firearm a 9mm star which he traded in after the incident being a month after. He says on the day of the incident the firearm was not in the yard. He says P.W.3 had said she wanted officers' weapons without specifying. He says he found it not necessary to hand over his personal weapon. He says the weapon was not handed in because he was covering anything. That P.W.3 did not know and had no idea what weapon was carried he says she agrees

he did not know but he knew. He says five of them remained alive, himself, Ntoi, Raleaka and Mokolatsie and three of them were not injured; Fonane, Ntoi and himself or the three of them were the most senior officers. He says he was the most senior and Fonane and Ntoi were only majors. He says he was then Col. He says


48


the AK 47 was placed on the desk after the incident. That under-cross examination he had said he had not seen an AK 47, he says the AK 47 was between the cabinet and the safe. The witness has testified that Lt. Col. Penane had come in carrying an AK 47 and one of the officers had taken it away from him and put if behind the safe. He says after the incident the AK 47 was removed from behind the safe by one of the officers whose name he doesn't recall. He says it was as Brig. Makoaba and others entered. He says on entering Brigadier Makoaba had wanted all the guns to come to the fore. He says it is one of the officers in the office who removed the gun from behind the safe and it was after the incident. He agrees weapons have to remain where they are after the incident and cannot be removed. He agrees this is the common knowledge of all officers. He agrees to remove them would be interfering with investigations. He agrees one may not interfere or disturb items on the scene of crime whether these have to do with the incident or not. The witness says he did say nothing was to be removed unless it was not related to the crime committed and this was his decision. He says although the weapon was not related to crime, it was nevertheless sent for ballistics the reason being that it was present when the crime was committed. He says he did not remove the gun from the scene. He says if the victim is shot holding his firearm, it cannot be removed from him even if he did not shoot - he agrees it should not have been removed. Put to him P.W.3 found the AK 47 behind the door without a magazine, he says he has no knowledge of this. He says there was too much confusion and he was not able to notice whether the AK 47 had a magazine. He says he does not know who removed the magazine from the AK 47 and this was due to the confusion. He says he has been saying the AK 47 was between the safe and filing cabinet. He says he sees the magazine and something bloody near it and another black object he cannot describe. The magazine is of M16 rifle. He says he does not know how the M16 magazine came near Chabeli. He says the confusion was of guns and people dying. He says


49


after the shooting he had not seen the magazine next to Chabeli. The bloodstained object next to the magazine he cannot say what it is nor does he know who put these magazines next to Chabeli or removed them. After the shooting and before the Brigadier entered he had seen where Lekhooe lay, also where Raleaka lay, where Chabeli was lying and Penane where he was crouching holding to where he was shot and Mokeki at the corner where he was trying to hide and Ntoi who was standing behind him and Fonane who also helped kick the door close. He says Fonane was lying behind the door for he was there on crutches and helped them close the door which was locked but he did not know by which officer. He says he did say the gun pressed against the door - it was the gun shooting from outside. He says the bullets came from outside. The person who was holding the door pulled the gun from the outside. As for the scene inside, on the right-hand side of himself was seated Mokolatsie not far from where Chabeli was lying. He says this was the time he saw people he has described outside. He says this is all he saw and it is not possible to have noticed everything owing to the unnerving scene. He says as far as his memory is able to carry him, this is all he is able to remember. He says if he is referred 'to my notes 1 may be able to remember certain things'. He says he did see guns though he cannot say where they were. He says he saw cartridges. He says he can't say on which side of the body the victim is lying on B14 (see index 14). He says he knows shooting proper and looking at the wound behind Lekhooe's back he agrees he could have been shot from the back. He says when Lekhooe turned his back he was shot facing Penane and had then given the witness his back being the time he was shot. He says his fingerprints were not taken. He says Lekhooe went into his office with his gun not at the ready and he agrees the position of Lekhooe's weapon was such that he did not intend violence - he says the gun was not pointed at anybody.


50


The court has stood down matter so counsel for A1 and A7 could consult clients.


Cross-examined by Mr. Majeng-Mpopo, the witness says it is correct that the AK 47 which was between the safe and filing cabinet was suddenly placed on his desk. He says the M16 he saw next to Lekhooe. He says he cannot deny that there was an Ml6 behind the door. He also says he cannot deny that when P.W.3 came on the scene of crime the scene was already disturbed.


Re-examined the witness says that he agrees that police response and band unit wore operational uniform and carried firearms. He says both the band unit and response unit were based at the P.T.C. He says the band unit assisted the response unit. He says the legitimate function of the response unit dressed as they were was for emergency riots, bank hold ups and anti-crime duties. When it came to maximum force, the response unit was called in. He says the response unit was expected to be dressed and armed as it was on the day of the incident. The witness says on operational duties they carried heavy weaponry while under normal duties they carried small arms. He says by small arms he is referring to automatic rifles like M16, AK 47 and like firearms. He says small arms are not carried in going to court. He also says small arms are carried as legitimate operatives i.e. on course of duty as authorised by the Commissioner of Police or Commandant or any senior member of the police. He says the senior cadre is Commissioner of the Police, his Deputy or one of the Assistant Commissioners or Commandant or anybody senior but under the authority of the Commissioner of Police. He says it was his duty to provide security to officers under him including Lt Col. Penane . He would have done so but under the circumstances it was not possible to detail any unit because this would amount to confrontation. He says it was not possible to send a junior


51


officer to arrest nor could Lt. Col. Penane been able to do so. The police did not have an armoured vehicle at the time. The witness says if he had raised a counter force that would have resulted in a bloodbath. He says Lt. Col. Penane was not seeking confrontation but was running for his life. The witness says the meeting held on the fateful day was a routine, daily meeting. The witness says the meeting was regular, lawful and normal for after the meeting he was obliged to report to the Commissioner of Police.


He had communicated with the Commissioner and had told him to tell Penane to repair to the Deputy Commissioner's office. He says the Commissioner had said: 'tell Penane to come to my office and not to your office.' The witness says Penane had said he was scarred because he was being followed by the response unit and band unit. According to the witness, the Commissioner of Police apparently expected Penane to go to his office alone. The witness says it had not occurred to him that given the circumstances Penane had to be escorted to the Deputy Commissioner. The witness says Penane's office is in the main building of the Charge office. Nothing had made his suspect Lt. Col. Penane was not genuine in his fear. The witness repeats Lt. Col. Penane was by no means seeking confrontation. The witness says a Tpr. is a most junior officer in the police ranks, a special constable being the lowest rank. He says he is a full colonel the highest being a Major-General followed by a Brigadier and Colonel. He says when Sgt. Lekhooe was shot he was not standing at attention before him. He says Sgt. Lekhooe's approach was not that of a disciplined, respectful policeman. The Deputy Commissioner never said he was sending over a messenger. Lekhooe's gestures and manner of approach was very hostile. The salute was mockery because he did not wait for the witness to speak to him for under normal circumstance he would hold on to his salute while they conversed. He says it was up to him to


52


dismiss him or to ask him to stand at ease while he talks to him. Before the salute was made by Lekhooe, the witness demonstrates how the rifle was held at port arms position. He says a rifle is normally so held when an inspection is carried out - it is also carried at trail - he indicates by pointing his right hand downwards being when one is trotting or marching. The witness says in loading one fills the magazine with bullets - he says the commander gives an order to load rifles. He says the magazine is loaded and rifle is cocked - a firearm is then ready to fire when it is on automatic or rapid fire. He says when a rifle is safe and you pull the trigger it will not fire but will fire on automatic or rapid fire. He says he knows much about the response unit for it was formed to contain riots. He says ordinary response unit firearms have to be on safe. Cocking of a rifle is pushing a bullet into the chamber. When it is said a weapon is cocked it means it is ready to shoot subject to safety - catch being in a firing position. As for a life AK 47 bullet being fired, if you want to make it safe you take out the magazine. He says you can eject the bullet without shooting. As for the confusion after shooting, he says he joined the force in 1966. He says he did come across similar situations e.g. Qeme, Maseru Central charge office in about 1968. As for 26 discharged cartridges, there was smoke for windows were closed. After the shooting the main concern was to safe lives of the officers. He says he telephoned the Commissioner of Police and Deputy Commissioner to send an ambulance to take the inured to hospital; it took quite some time and he had to appeal to the military that is to say L.D.F. and to return to the Commissioner of Police and his Deputy had taken him about 10-15 minutes.


The witness says one of the officers had locked the door while first aid was being applied to the injured. He says Chabeli was no longer talking and could see where some were injured and blood was flowing. By saying he traded in his firearm he meant he bought the firearm in 1983 - a 9mn star carrying only 8 rounds. The


53


purpose of trading-in the firearm was that he had received information to the effect that at Ralikoro they were selling better firearms i.e. a firearm that carried more armaments. He had applied to the Commissioner for change of firearm and the transaction had not been secret but open afterall, it was to be authorised by the Commissioner or his assistant. He had traded in the weapon in February, 1996. He says the operation was through proper channels there being no cover up. He says he had not seen any of the officers including himself fire other than Lt. Col Penane. He says nothing suggests that another officer shot. He says the time lapse between the shooting and looking out of the window was immediately after the shooting – he says it was a matter of seconds. As for B6, top left hand corner is a magazine of the Ml6 rifle. As for a black object near a wooden strip and comparing it with B5, he says he sees the wooden strip and blood thereon; he says this looks like skirting board coming, as it were, clearly out of B4. He says the belt is a semi-brown belt and underneath is stable belt. He says he sees the webbing underneath B 12's armpit - he says the webbing is used to carry ammunition. As for A5, he was carrying a firearm it could have been an AK 47 but it was an automatic weapon; he says he did not see A5 carrying a walkie-talkie or a button stick. He says a button stick is bigger than a swagger stick and is used for riots and looks like a wooden, smooth stick Basotho tribesmen carry. He says none of the unit policemen carried a button stick. Mr. Suhr says the arrow and just on its right are nipple hairs and the defence counsel agree this is a nipple. Note that the index refers to B14 as 'injury on the right armpit of L/Sgt Lekhooe'. The witness says the wound is not on the back but on the right armpit of L/Sgt. Lekhooe. The witness says a high velocity wound has a bigger exit irrespective of the range. He says the wound on B9 is an entry wound and B8 is an exit wound. He says an entry wound is small but an exit wound larger. He says B14 is smaller than B15 and B14 is the entry and B15 the exit.


54


By Assessor: The witness says Lt. Col. Penane was late for the meeting and angry; he says he was holding an AK 47 rifle claiming to be followed. The witness says one of the officers dispossessed Penane of the rifle the reason being it was feared as Penane claimed to be followed he could have used it on those following him. The witness says there is a police salute for those carrying firearms and those not carrying them. He says when Lekhooe entered the salute was a mockery and he had not taken the salute to be proper.


Mr. Suhr says there is one aspect he omitted to highlight and he wishes to do so. There being no objection he is allowed to do so. The witness says it is desirable that the GPMG be demonstrated. The witness says when he was in the office he had seen a GPMG. He says it was pointed in their direction. He agrees Mr. Phoofolo had spoken of a GPMG with a long butt and the GPMG could not have been directed at them. The witness says the GPMG was not directed at them. The witness says the GPMG has links.


Counsel on either side have no questions.


By court: The witness says the accused i.e. response unit was out of order. He agrees if they are out of order they are not left to their devices. He says the Commissioner of Police normally in such circumstances issues a directive to call such police to order. The Commissioner had said he had called the Commandant to collect the unit at the Charge office. The Commandant Col. Monyeke was at the P.T.C. The witness says at Maseru Central Charge office he had seen Col. Monyeke arriving with Brigadier Makoaba and Brigadier Moiloa the Assistant Commissioner after the shooting. He says he had not communicated with Col. Monyeke. He says he does not know what for Col. Penane was wanted for he had


55


not said to him he was wanted by the response unit for a particular reason. He says if Lt. Col. Penane was wanted through the Commissioner's instructions it could only have been through him. He says L/Sgt. Lekhooe could have been shot first. He says some shots came from where Lekhooe was standing and others through the door. He says shots had rung from his office first.


P.W.4 Major Raleaka sworn states: He is Michael Letsaba Raleaka a major in the Lesotho Mounted Police. In October, 1995 he was officer commanding the C.I.D., Maseru. As for events of 31.10.95, it was a Tuesday and had left his office with Major Ntoi going to Regipol's office at the MCCO where they met everyday at 7.00 a.m. The Regipol was P.W.2 and on entering the charge office with Major Ntoi they had met L/Sgt. Mokapela crossing the road from the Charge office. He had greeted them going past and they had entered the yard; he says L/Sgt. Mokapela is A7. He shows the way he saluted him being a complete salute to the forehead. He says they were satisfied with the salute and he had inquired of their health. As they entered the gate he had found Sgt. Mosae (A3) with other policemen in operational dress, webbing and firearms - it was M16 rifles. Sgt. Mosae had also greeted them and they had proceeded to Regipol's office but had found the office with no people inside. They had returned and Major Ntoi went via the District Police headquarter's office where Lt. Col. Penane was in charge and had said in the like manner Lt. Col. Penane was not in his office. They had repaired to their offices outside the Charge office. After 30 - 45 minutes a telephone had rang at his C.I.D. office responded to by Major Ntoi to the effect that P.W.2 was saying they should go up to him. At the door another telephone had rung; he had answered it while Major Ntoi proceeded to P.W.2's office. He had said the caller was to come later after 9.00 a.m. and he had proceeded straight to P.W.2's office where he found Messrs Ntoi, Penane, Mokeki, Mokolatsie, Chabeli and P.W.2; later Mr. Fonane


56


had entered. P.W.2 had explained why he was late and so had Mr. Penane. As P.W.2 and Mr. Penane were giving their explanations a door had opened and a policeman in operation uniform had entered. He did not know him and he was in operation uniform carrying an M16 rifle and had gone straight to where P.W.2 was seated. He saluted. On entering he was holding the gun at port arms position and coming close to P.W.2 he held the gun by his left arm and saluted; he says it was not proper salute for it was halfway. He had then said to P.W.2: 'chief, we want chief Penane'. He demonstrates how juniors salute their seniors. P.W.2 had then said: 'who wants Penane; what for?' He says at the time he was seated next to Penane and Mr. Penane had cocked his pistol behind his back and before the policeman answered P.W.2 Penane said: 'do you know the Penane you are looking for?' The policeman had turned around towards where they were seated with P.W.2 at his back. As the policeman approached Penane the latter pretended to be standing up and he (Penane) pulled his gun - he says he drew it and the policeman had fired. As Penane was on his right he had thrown himself on the floor towards the left and Penane had fallen on his chair shooting at the policeman. The policeman had then fallen. He says there was another policeman at the door who seemed to be following the other policeman and this policeman had shot in the direction of where they were seated and he had been shot through his right arm to the left arm via the chest by a single bullet. He says he does not know who shot him for he had just arrived in Maseru. He says the shooting from the doorway went on for some time and it was rapid fire going tata-ta-tata-ta. After the shooting stopped he noticed he had sustained dangerous injuries. He had asked Mokolatsie to tear off the lumber jacket he was wearing to bandage him for he was bleeding profusely. From the doorway behind the door was Fonane and next to him Penane and he was the 3rd the 4th being Mokeki on his left and next Mokolatsie and at the corner was Chabeli. On the right side of the desk where P.W.2 was seated was Mr. Ntoi who for some


57


reason had been unwilling to take a seat. After the shooting he had crawled to the table where P.W.2 was seated and then he was not able to observe the condition of others and it was at the hospital he noticed other officers had been shot. He remembers saying P.W.2 was to come to their rescue as he was bleeding profusely. He had done so for he had heard the Deputy Commissioner's voice outside. He says after about an hour they were taken to hospital. He says though on the way he was tired, he was conscious all the time. The witness has testified he cannot say what caused the delay before being taken to hospital. He had seen Lt. Col. Penane at Makoanyane hospital on gaining consciousness. He was lying on the bed saying his sister was to be called. He had spent 7 days in hospital and had resumed duty after Christmas but by then he was not fully recovered and he was doing only light duty going to work late and knocking off after lunch. He says his small finger of the left hand and pointing finger of the right hand does not bend and cannot carry heavy objects with his left hand for it has lost its power. He says the wound on the breast was still to be medically attended and treated for it swells and becomes painful. He says he has suffered pain for a long time as a result of his injuries. He says he was given medication, had been referred to Lesotho Highlands Water Scheme hospital in Leribe where he got better treatment. He says he believes the policeman shot when he saw Lt. Col. Penane draw his firearm. Lt. Col. Penane had drawn an 9mm pistol. As for Lekhooe's salute, it was incomplete and it's not the sort of salute befitting senior officers - it was a disrespectful salute. The witness has testified he saw Lekhooe shoot Penane and another policeman from the doorway also shot. He says all policemen including Col. Ngatane had ducked under the table. Lekhooe had shot directly at Penane - he had shot once and had been shot by Penane. He insists Lekhooe shot once at Penane and shots had come from the direction of the door. He says automatic and rapid fire are one thing. He says he did say automatic and rapid are one thing though there is a slight difference because automatic was on


58


rifles. He says an M16 can be placed on automatic or rapid. There was also a safe position lever on M16. He says when M16 is on automatic, if you pull the trigger it releases many bullets at the same time and will fire continuously so long as the finger is on the trigger. He says an M16 rifle is either on automatic or rapid. He says rapid fire is a position where you want to fire hurriedly but it's not automatic and every time you pull the trigger it shoots. He says he is not able to say who shot him but the bullets came from the doorway; by the time he was shot he says Lekhooe had already been shot having fallen down. He says as for shots from the doorway, he had noticed before being shot and before Lekhooe and Penane shot at each other that there was a policeman at the door - he says he saw him through the door crevice and he was in operational uniform. He says the policeman on the doorway seemed to have been following Lekhooe though he had not entered the office. He says in the vicinity of the door there was a hail of bullets from the doorway and it is one of these that hit him. He says the bullets from the doorway were driven through the crevice. He says the bursts from the doorway were on and off and the muzzle of the gun seemed to be an M16 rifle. He says the fire was rapid for there were pauses; he says he could not see the assailant. He says he had a 9 mm pistol on him and he had not drawn it. He says apart from Lt. Penane he did not see any of his colleagues draw their firearms. He says after the shooting by Lt. Col. Penane there was no return fire with automatic weapons. He had not seen a big gun in the office. Cross examined by Ms Mahase the witness says he joined the force in 1966 and is experienced in gun functioning of the firearms he has used. He says he has used .303, M16, AK47 and 9mm pistol including a short gun. He says he has already elaborated on the slight differences between automatic and rapid fire and repeats for rapid fire the gun goes taa - ta - taa and automatic spews bullets so long as the finger is on the trigger. He says rapid and automatic are the same like running and running fast. He says a 9mm pistol does also have automatic for it has


59


automatic lever and you have to put it on automatic to shoot automatically. He says AK47 and M16 shoot same way if they are on automatic the difference being in sound. He says when M16 and 9mm are on automatic he can detect from which gun the sound comes. He says he did say Lekhooe was the one who shot first for he saw him shoot. The witness has testified Lekhooe was 2m from Penane. He says when Lekhooe shot Penane the latter held on to the chair the witness was seated on. He says Lekhooe and Penane were directly firing at each other. He says he does not know where Penane was shot but he had noticed later that he was shot on the lower abdomen and had noticed this when they were at Makoanyane hospital. He says because of the sound of shots it was as if the gun was on automatic but then Lekhooe had soon fallen. Lt. Col. Penane at Makoanyane hospital was losing consciousness. He was lying on the bed saying his sister was to be called. He had spent 7 days in hospital and had resumed duty after Christmas but by then he was not fully recovered and he was doing only light duty going to work late and not knocking off after lunch. He says his small finder of the left hand and pointing finger of the right hand does not bend and cannot carry heavy objects with his left hand for it has lost its power. He says the wound on the breast has still to be medically attended and treated for it swells and becomes painful. He says he has suffered pain for a long time as a result of his injuries. He says he was given medication, had been referred to Lesotho Highlands Water Scheme hospital in Leribe where he got better treatment.


He says Penane shot back once for he was holding on the chair when he shot. He says when Lekhooe shot, Penane was rising like this - he demonstrates with his hand sweeping the palm of his hand upwards and he says as Penane rose he was holding his gun in his hand. When Penane said: 'who's the Penane you are seeking' Penane was seated. He says he did not in his evidence-in-chief say that there were


60


pauses in shooting but had said the shooting was continuous. He says when Penane fired he had held on to his 9mm pistol. He says if Penane shot once he would have expected one shell to have been used. He says that if P.W.3 found 3 shells of 9mm pistol he does not know how for Penane shot once. He had heard no shots from a 9mn pistol. He says he has no comment about the other 2 shells. He says Lekhooe bled from the forehead and he believes this is where Penane shot him. He says they had been quite some time in the office and blood was not coming out profusely. He says it is the only wound he saw.


The witness says the door opens into the office. Ms Mahase says she would like a demonstration and the court agrees to go on a demonstration at 2.00 p.m. Mr. Suhr says the case cannot proceed as he will be available only on 8 May, 2000. Mr. Phoofolo says it is always advisable to have exhibits in court for their demonstration if need be. Mr. Suhr says he will endeavour to find weapons for demonstration as is required. The demonstration took place per annexure "D" hereof.


The witness continues his testimony under cross-examination saying he had not examined him and he did not know that Lekhooe had sustained more than one wound. He insists Lekhooe fired first. He says at the meeting Fonane was the last to arrive. That P.W.2 said the last person to arrive was Penane the witness disputes this for when he entered the office Penane was already present and Fonane had to be fetched. When Penane explained his late arrival he had been angry and frightened. The witness says as he said, he saw when Penane cocked his 9 mm which was held on his back. He says it was the first time he noticed Penane carried a 9 mm pistol. He says apart from Penane explaining he was late nothing else had been discussed. As far as he was able to remember there was no agenda for all they do is to submit reports emanating from their individual offices. The meeting


6


Annexure "D"

Demonstration by P.W.4 on 07.06.2000


For the crown Mr. Suhr.

For the defence Messrs Maieane and Mahase


It is to be noted that this is sequel to an application by the defence to have P.W.4 Major Raleaka demonstrate with the assistance an M16 rifle what he heard and saw at the door during the fracas that led to the shooting in Col. Ngatare's office.


As an M16 rifle was then unavailable, the demonstration was shelved and has now materialised because an M16 rifle as part of the exhibits before this court is now available.


The court having removed to the Maseru Central Charge Office in the office of former Col. Ngatane (P.W.2) appeared P.W.4 to make physical demonstration of what he saw and led in cross-examination by Ms. Mahase for the defence Major Raleaka testified:-


P.W.4 Maj. Raleaka demonstrates how somebody who was standing on the door step did to shoot Mr. Raleaka shows where he was standing 3rd seat from the door. The door is more than open and holding M16 (Exh.3). He says he only thinks the man was on the doorstep and this is not exact - the witness demonstrates how the man was standing with a face to the from and back with a rifle at a horizontal


7


position pointed being on the door frame hugging it forward and back. At the time everybody fell from the seat taking cover. He says he was holding on to the seat of a person next to him. He says the reason he was show on the arm and chest was because he was leaning towards the left of the seat he was seated on. Mr. Penane was leaning on a seat I was seated on. It is the reason he says he did not know the person at the door for only saw the gun. He says he did not count how many times he saw the gun - but it was more than two to three times.


By Mr. Maieane: He says the button stick and nuzzle looks alike in colour he says they cannot be the same and there are no similarities, he says perhaps they are similar in colour. The police button stick and nuzzle of the gun are not the same even were they compared. He says the police button stick is black in colour but it does not bear the same colour as the nuzzle of a gun. He says the police stick knob is at the handle and not where The confusion he could not clearly say it was nuzzle of a gun other than police button stick he says he used a police button stick and a gun for a long time as a police man and it is wrong to say he did not see clearly. He says he did not say after the door was closed and the nuzzle of the gun was pressed against the door he says he did not say that. He says it was Mr. Mokeke who said after the instance the door was closed by Mr. Ntoi and not myself.


Mr. Suhr: As for the button stick I think he referred to button sticks used by police now. I am referring to a police stick with a handle used by police as it is the only one.


61


according to the witness was a routine meeting. He says Mr. Ngatane was on the phone though he does not remember whether it was before the policeman entered. He did not know to whom Col. Ngatane had been talking to but he had kept on saying: chief, chief. He says there was no pause between Lekhooe talking to P.W.2 and Penane saying: 'do you know the Penane you are looking for?' The witness says he did not hear P.W.2 say the Commissioner was calling him at the Police headquarters; he says in his presence he did not hear Penane and P.W.2 talk in private though he could not say what happened before his arrival for he was late arriving. He says Lekhooe had opened the door though he could not say whether he knocked. He says he did make a report to the police and the report he is shown is his; he agrees in his report he had said he had heard a knock a few minutes after Captain Fonane had been seated as then a policeman wearing a brown uniform and armed with an M16 had entered. He says he did not know it was Lekhooe for then he did not know him. The witness says when Lekhooe spoke to P.W.2 he was facing the latter. He says when Penane said: 'do you know the Penane you are looking for' Lekhooe had turned towards Penane though when the question was put Lekhooe was still facing P.W.2. He says in the office P.W.2 was seeking what help he could get through the 'phone. The witness says he can't say how many calls P.W.2 made though he did not phone once. He says there was a lot of confusion with considerable moaning and Penane was crying saying they have finished me. He says he did say somebody fired from the doorway and it seemed the nuzzle was of an M16 rifle by reason of its appearance. The sound was also that of an M16 rifle. He says he can't explain the sound any more than he can of passing cars. He says he does not know Gallil or M65 rifles for he has never used them. He says the firing from the policeman and from the doorway did not occur at the same time. He says he heard the firing from the door after the policeman shot. He says though it is said there were no shells outside shells were found in the office. He says they


62


took quite some time in the office and it is possible shells were removed. He says if the M16 was fired from outside the shells should have fallen where the fire was or some distance away for shells are ejected and as to where they fall it depends on force used. He says as the firing was from the doorway shells should have fallen on the doorway or some distance away from it. He says it depends on where the assailant was and could have fallen anywhere including inside the office. He says the assailant was on the doorway but the nuzzle was protruding on the doorway and it was possible some shells could have fallen inside the office.


The witness says the door opens into the office. Ms. Mahase says she would like a demonstration and although the court had said it would take place at 2.00 p.m. Mr.Suhr says owing to his engagements the case cannot proceed the following week but on 8 May, 2000 besides, as weapons for demonstration have to be secured it would seem the demonstration is as yet not feasible. Mr. Phoofolo has said as soon as weapons are available they are to be informed.


Mr. Suhr has said the GPMG was not seized as an exhibit and his papers do not reflect this and he has failed to secure one. The court has directed Crown Counsel to secure available items to facilitate the procedure relating to required demonstration.


Cross-examination by Ms Mahase continues. The witness says he has shown there was firing from the doorway unless this evidence has been erased from the report. He says the shooting was not directed at him but the side on which they had been on. He says he cannot deny that he has not said this is his report. That he had not mentioned this in his report that he was injured by shots form the doorway he says if he left out this in his report it is an omission. Put to the witness mentioning


63


the fact now that he was shot from the doorway is an after thought the witness denies. He says his fingerprints were not taken.


No cross-examination by Ms. Majeng-Mpopo.

No questions by the Assessor.


By court: He says he knew nothing of the crisis in the police force and when he saw the men at the gate of the Charge office he thought they had come for an operation. He says P.W.2 had said he was late because it seemed Penane was going to be arrested by PTC police. He says if a police officer is to be arrested he is arrested by a senior policeman say the Commissioner of Police or a Superior officer. He says there was no advance notice of an emergency meeting. He says they were overtaken by events for they were in a relaxed mood.


Ms. Mahase arising the witness says P.W.2 had said he'd received a message that Penane was going to be arrested. He had said he had been telephoned by Mr. Penane and he had relayed the message to headquarters. P.W.2 had not confirmed headquarters had said Penane was going to be arrested


Mr. Suhr arising the witness says it seemed it was not an arrest for there was no breach of the law. The witness says he understood the arrest as catching Penane for torture and that was not lawful. Mr. Phoofolo has objected to the question as not a fitting question for counsel was asking for the witnesses opinion. He says the answer is to be expunged from the record i.e. both the question and answer.


Court: Judgment is reserved.


64


P.W.5 Mrs. 'Mamotlatsi Petlane sworn states: She is Senior Superintendent of Police stationed at Mabote police post and remembers October, 1995 when then she was a Lieutant at Maseru Charge office. She says she remembers 30 October, 1995 when she was on duty. She says then she was officer-in-charge of the station at nighttime. Her night shift had started at 8.00 p.m. on 30.10.95. She says her duties as commander were to receive all reports coming in. Her night shift had ended at 6.00 a.m. the following morning. The following morning on 31.10.95 at 4.00 a.m. police from the P.T.C. had arrived saying they had come for talks; she says these were Sgts. Mosae, Mokapela, L/Sgt. Ramakhula being A3, A7 and A4. She says its them who said they had come for talks with her superiors. She says she had seen these on the coridor of the charge office and they had gone into he office. In taking to her, the witness says A3 was with A7. She did not know how they got to the charge office and her response was to wait until her superiors had arrived. She had tried to use the telephone in the radio-room. She says the radio room is the building behind the charge office on top floor. She had wanted to telephone the late Lt. Col. Penane. Though there were policemen from the P.T.C., she had telephoned him. She says she does not know why they were in the radio-room save explaining that they had come for talks. She says as these people were listening, she was not able to talk to the late Lt. Col. Penane as they seemed interested in what was going to be said. She says she had to report to him events of the evening and the presence of police from the P.T.C. She had reported to him about the police personnel from the P.T.C. She says the behaviour of the two policemen in the radio-room was normal though when she was on the telephone they came closer to her to listen to what she was saying. They were troopers and this was not the normal behaviour of troopers. Before long one of them went out and A3 and A7 came in saying they were going to chat about something - A3 had said this and she had gone to the front hall below the topmost floor - she was on the


65


lower floor of the radio-room but not in the stone building. She says she was on the verandah. A3 had said it seemed the witness conversed by telephone and she was to stop using the telephone and said she was not to involve herself. The witness says she had then said she would not use the telephone. A3 was then normal showing no anger or being upset. She says a Lt. does not take instructions from a Sgt. She says she had stopped telephoning.


On 28 April, 2000 when the court resumed sitting the application to have question and answer raised by Mr. Suhr concerning Penane to be expunged from the record was refused.


On 28.4.200 owing to the congestion in court 6 the court transferred to a bigger court 5. Mr. Phoofolo standing in for Mr. Mosito who cannot be traced.


P.W.5 warned still under oath continues saying she did say A3 said she was to stop using the telephone. She says what happened was that her response was a big surprise. She had said nothing when A3 had said she was to stop using the telephone and she decided to drive away to seek means of using a telephone. She had decided to leave with her driver but approaching the charge office gate Tpr. Mabetha had closed the gate - he came from the P.T.C. He asked whether the witness had not received an explanation seeing she wanted to leave and before replying she had nevertheless posed the question:' are we under arrest or what?' He had then said I was not going to get out of the vehicle. She had chosen to sit outside but inside the charge office yard. She had done nothing but other officers namely Captain Mokolatsie, Captain Mokeki, Major Ntoi, Major Chabeli (late) and Major Raleaka had arrived. When they came the witness says she was outside the charge office forecourt. She had then gone into the office of the late Penane and explained


66


the situation. She says she had said there were P.T.C. policemen who said they had come for discussions with their superiors at the MCCO. Major Ntoi had asked if the witness explained to Lt. Cpl. Penane and Col. Ngatane and she had said they were aware of the situation. She says she had made the explanation in the presence of Captain Mokolatsie, Mokeki, Ntoi, Chabeli and Major Raleaka. Major Ntoi had telephoned the late Lt. Col. Penane's home and had said Lt. Col. Penane was saying his home was surrounded by police and that Lt. Col. Penane had spoken to Brigadier Makoaba the Deputy Commissioner of Police who said Lt. Col. Penane was to go to Police Headquarters but he had said he would not go to police headquarters for he had fears. Then Col. Ngatane had arrived and all the officers had gone to his office on top floor. She had also gone into Col. Ngatane's office. She says in there 'we were puzzled by the behaviour of these policemen' i.e. the policemen from the P.T.C. She says they were support policemen in operational uniform and armed with big rifles. She says she knew what they were doing at the Charge office. The witness has testified they behaved in a way showing something impending was going to happen and some of them were taking cover i.e. taking positions. After entering Col. Ngatane's office Lt. Col. Penane had, according to the witness, sent her to his office to do certain duties relating to transfers. She had gone into her office on the ground floor. Returning she had heard sound of guns on the top floor. Before going into Col. Ngatane's office she had seen these men in operational uniforms - some being near senior officer's toilet. She says she sees B2 and in relation to it, she was on the extreme side of the veranda on the right-hand side. She had seen 4 - 5 of them but had recognised only one person being Tpr. Mpao. According to the witness, they seemed to be taking cover and going to P.W.2's office. The witness says there are coolers and Tpr. Mpao seemed to be holding his rifle in a high port position. She says she was trained in arms and a gun held in high port position is ready for action waiting for the command to shoot. The witness


67


goes through the demonstration saying as there are pillars there, a person taking cover cannot walk casually in an open space but must go zig-zag to protect himself looking around. She says there are 4 pillars on the extreme end of B2 and this is where the men took cover. The witness has testified she met Lt. Col. Penane that morning finding them in Col. Ngatane's office (P.W.2) and it was then he had said the witness was to return to his office. The office was not in P.W.2's office but in the main charge office building. She says she was in Col. Ngatane's office when she saw the men take cover. In Lt. Col. Penane's office she had taken the letter intending to return to Col. Ngatane's office but before reaching it at the parade ground she had heard a gun report. She says the parade ground is between B2 and the main charge office. She says the sound of guns emanated from the top floor. She was terrified and returned to the charge office reception and there she had found other policemen she had been with namely War. Officer Khoele and L/Sgt. Masupha though she does not recall others. A' had arrived wearing an operational uniform and he was not from the P.T.C. but from the C.I.D. office which was at the time at Makoanyane. He had lifted the telephone and she had not known whether the telephone was left ready for him for he saw him already talking. After speaking he had left though the witness did not know where he was going. War. Officer Khoele had been in charge of the telephone and was near the telephone. She says she is not sure whether A1 asked for permission to use the telephone. She had known A1 at the time and he was a 2nd Lt. She says A1 was on the occasion as she had always know him. She had not seen A' again. She says she had not seen A1 ask for permission to use the telephone. She says the space lapse between the shooting and A1 coming to her office could have been one hour. As to A1's demeanour, he was normal. She had stayed at the charge office and left after a very long time. She had returned to P.W.2's office but before getting there she had found Col. Mpopo, Col. Moiloa, Brig. Makoaba while she was in company of Memela. Brig. Makoaba had


68


stopped them going into Col. Ngatane's office but they had gone therein and entering the door had seen Tpr. Lekhooe lying prostrate on the floor with Lt. Col. Penane on the left saying something but with difficulty; he looked as if he was severely injured. Major Chabeli was at the corner silent and bloodstained. Major Raleaka was being assisted by Captain Mokolatsie but he was also bloodied. According to the witness the situation in there was frightening and tears had streamed down her cheeks. When she went to P.W.2's office, she had heard gunfire an hour before. She had assisted Cpt. Mokolatsie in raising up Maj. Raleaka. They had then sought means of conveying them to hospital.


She says people that were being released were those who had asked for accommodation for the night at the charge office and when it became clear telephones could not be used she had given the order that these people be released. She says they were members of the public they had accommodated and these had wanted to leave at 6.00 a.m. She says the issue of their release was raised by her and with A3. She says the reason she raised the issue with A3 is because he seemed the most senior of the contingent from the P.T.C. They had been released and left. Before people were released the witness says as A3 was the one in charge she could not do as she pleased and she had said they leave for their homes. She says at 6.00 a.m. she could not leave for the gates were locked and she had noticed Tpr. Mabetha and others she cannot recall. She says under her authority were 2nd Lt. Mabaleha with other 5 men she cannot recall. She says as there was much confusion it was not clear when the relief shift would commence though the commander War. Officer Khoele was present. The witness says the reason for the armed men being at the charge office was that at 7.00 a.m. Major Lesiamo had informed them of the men's presence. Maj. Lesiamo was then stationed at the P.T.C. and had phoned inquiring who were at the radioroom and the witness had


69


said she did not know their names and he had said she was to ask them their names and when she did one of them had said: mother 'Mapetlane, we won't tell you our names for you have wronged us; she had then told Major Lesiamo that they had refused with their names and he had closed the telephone. At 7.00 a.m. she had been told he was looking for her outside the charge office and he had said: 'I have spoken to these men i.e. police from the P.T.C., they have come in connection with Ramoeletsi's affair.1 He had left and she had also left. She says it would appear police from outside were allowed in as Lesiamo was allowed to enter and police in the yard were not allowed to go out. She says she was stopped going out by Tpr. Mabetha and others. She says her night duties were over by 6.00 a.m. but as it was difficult to move out she had decided to stay. She says even if she was allowed to go out this would not have worked for she had to wait for senior officers to arrive. She says she has made a mistake for it was A4 with A7 with the latter doing the talking. A7 had said: Phoofolo (animal, reference to clan member) there is nothing, we have come for discussions and A4 was supportive. She says the L/Sgt was talking to her - she says they are members of the same elephant clan. She says by saying A4 was supportive is because A4 nodded his head when A5 said they had come for discussions. She says she joined the police force on 2 December, 1973. She says in her experience an operation has to be agreed on to take place at such-and-such time. She says this was not an operation for senior officers did not know of it and had discovered this when she spoke to Lt. Col. Penane and other officers who seemed to know nothing about the meeting. She says it was A4 and A7 who said they had come for talks. She says A3 they had met when he said she was to stop using the telephone and the release of those who had spent the night at the charge office.


70


Cross examined by Mr. Phoofolo she says she has told the court full story sequence by sequence and she had got the sequence right up to the time of shooting. She says she is now Senior Superintendent (Lt Col.). She agrees on 5 November, 1995 she made a report relating to the incident. Shown the report and having perused it she says it is her report. She says it was when senior officers had gone up to Col. Ngatane's office when she saw Mpao take cover and she says then it was before the shooting. She says when she saw Tpr. Mpao take cover she was with Captain Memela and 2nd Lt. Mabetha. She says when she wrote the report events were fresher than they are today. At p.5 of the report middle of the paragraph her report is read.


Asked by Mr. Phoofolo whether the sequence is right she agrees. Put to her she saw men taking cover after the shooting according to her report she says the report does not say that. Made to read the report by the court and whether the report is in her handwriting and she signed for it she agrees. She agrees she said in her report she saw men taking cover after the shooting including Tpr. Mpao.


On 28 April. 2000 the matter had been postponed to 08 May, 2000 at 10.00 a.m. The matter not proceeding on 08 May, 2000 had proceeded on 10 May, 2000. Mr. Phoofolo arrives late saying this was because of the talk of stay-away and him and junior counsel Mr. Nteso had not reported for duty either.


Mr. Phoofolo has said that him and Mr. Mosito are representing accused persons pro deo and they are paid minimal fee of M350-00 per day per accused. He says they are dissatisfied appearing pro deo and intend suspending their appearance until their grievances are settled.


71

The court had adjourned the hearing to 2.30 in the afternoon pending discussions by counsel with the authorities. At 2.30 p.m. matter being unresolved was further postponed to 11 May, 2000 and the matter had proceeded on the afternoon of 11 May, 2000.


Mr. Phoofolo proceeds with his cross-examination of P.W.5 who sworn had stated she did say Tpr. Mpao had held his firearm in readiness to shoot. She says in her statement she said Tpr. Mpao held his rifle as he did after the shooting. She says when a policeman or soldier hears gunshots he takes cover. She says Tpr. Mpao is not among the accused. She says Mpao is still a policeman though she does not know where he is stationed. She says Mpao is not one of the accused afterall there were many policemen around. The witness is given her report to peruse and she admits it is her report. She says at the time she heard the shooting near P.W.2's office she did not see any of the accused near P.W.2's office nor had she seen any of the accused take cover near pillars at the Regipol's office. She says she had not seen any of the accused take cover. Put to her, her report and evidence in court were at variance she says owing to the confusion of the time it is possible her evidence and report are not the same. She says what happened is that which is contained in her report. That she said she saw Tpr. Mpao holding his gun in readiness before the shooting is also at variance with her report she also agrees and repeats the correct version is what is contained in her report.


The witness has testified when she went downstairs to carry out Lt. Col. Penane's instructions she had met Captain Fonane going upstairs and she was with Captain Memela and she cannot remember whether she saw armed men enter P.W.2's office. The witness says if Captain Memela would say she saw such people, it would be a reminder to her for the events had taken place a long time ago


72


and she would agree with her afterall she was with her. The witness says she does not remember accused persons entering P.W.2's office armed though she remembers other officers. She says when she met Captain Fonane she told him to go upstairs as there would be discussions with P.T.C. men. By P.T.C. men she meant PTC police personnel who were present at the police charge office yard. She says when she saw Captain Fonane go upstairs she had also seen two P.T.C. men come behind her and it was at this juncture that Captain Memela said they were to go upstairs to hear what the people were going to talk about. She says when she saw the P.T.C. men she believed they were going for discussions as P.T.C. men had told her - the reason Captain Memela had gone upstairs to hear discussions.


The witness says she did say she saw 4-5 men along with Tpr. Mpao take cover and some going up to Col. Ngatane's office. She says if she said some others were taking cover it's wrong interpretation for it did happen for some others to go upstairs while others took cover. She says one of them was Tpr. Mpao and it was not before the shooting. She says those who took cover it was after the shooting. The witness says she did say Lt. Col. Penane found them in Col. Ngatane's office. She says when Penane arrived she believed Major Raleaka was present though she could not vouch this. She could not say who arrived first between Lt. Col. Penane and Major Raleaka. Put to her in her evidence she had said Raleaka arrived first and Penane after she says she does not recall their arrival in P.W.2's office. That Raleaka found Penane in the office she says she cannot deny considering these matters had taken place a long time ago. She says nevertheless the following officers arrived one after another: Capt. Mokolatsie, Mokeki, Maj. Ntoi, Maj. Chabeli and Maj. Raleaka. She says she had asked them to go into Penane's office where she briefed them of the situation; they had asked whether the witness had reported the matter to Col. Ngatane (P.W.2) and the witness said she had. Maj.


73


Ntoi had phoned Lt. Col. Penane and had said Penane was saying his residence was surrounded. The witness says immediately P.W.2 arrived they had all gone to his office and then Penane was absent exactly what she had told the court though from the report it would appear Penane arrived after Raleaka. The witness says before Penane arrived she had seen P.T.C. men scattered all over the Charge office yard and she believed they were waiting for her superiors for the purpose of a meeting. She says she did say in her evidence they were taking a stand, taking cover as if something was going to happen. She says before the shooting she had not observed P.T.C. men to be causing trouble in other words, they did not giver her the impression that they were about to cause trouble. She does say however there was something surprising for she was denied going through the gate by P.T.C. police. She says Tpr. Mabetha and others were at the gate. Tpr. Mabetha was not, according to her, among the accused. She says these accused had not stopped her going through the gate and the police from the P.T.C. had answered her normally. She says she did say police from the P.T.C. arrived at 4.00 a.m. though it could have been after. She says it is strange to have arrived as they did for if there was going to be an operation she should have been informed. She says if police go to an office in large numbers this is not an operation. She says the P.T.C. police had not come for an operation but discussions. She says she can't deny the fact that A3 arrived at 5.30 a.m. That he left the MCCO and police headquarters at 7.30 a.m. after the shooting she says she does not know when A3 left for her discussion with A3 was on the occasion of releasing people who had put up in the charge office and when he had refused her use of the telephone. She says she was alone when A3 said she was to stop using the telephone. She says she did say she identified A7, A4 and A3. She says the only contact with A4 was in the morning when he had said to her: 'phoofolo' (animal) don't worry we have come for discussions; she says this was said in presence of A7. As for A4, he had displayed no disrespect for the witness.


74


He had not disturbed her in her day to day duties. A4 had done nothing untoward and she had last seen him in presence of A7. She says she had gone to the radio room after speaking to A4 and A7. In the radioroom she says there was nobody save finding a policewoman and two others from the P.T.C. The witness says the policewoman Maqhama is now deceased. The two from the P.T.C. she knew facially but not their names. She says in the radio room she was attending to her duties. She says at the time she wanted to inform her superiors that police from the P.T.C. were present at the MCCO and in particular wanted to telephone Lt. Col. Penane. That she had not mentioned this in her report she says it's no matter for to telephone Lt. Col. Penane was one of her duties. She says though in her report she did not say that there was something afoot, this is the reason she went on telephone. She says she had telephoned after she had failed to go through the gate. She agrees the sequence is not the same but says this is because of passage of time since the incident took place. She says the sequence is wrong in her evidence-in-chief but right in her report. The witness says the P.T.C. men were in her office for the sake of listening to what she said on the telephone. She says the radio room is upstairs where P.W.2's office is. She says she did ask Mabetha whether they were under arrest. She says she was stopped at the gate after meeting A3. She says it was unnecessary to say she went anywhere for she was refused going out of the gate. She says once her discussions with A3 were at an end she had been stopped at the gate. The witness insists she met A3 on the day in question. The witness says she'd spoken to A3 on different issues. She agrees P.T.C. policemen stopped her talking to Lt. Col. Penane by telephone. She says in the radio-room they stopped her telephoning for they wanted to listen to what she was saying. That she said at one time she spoke to Lt. Col. Penane and at another to P.W.2 she says this could have resulted from the fact that she had to report to both men and says she was disturbed from talking to either. She says there was no disturbance in speaking to Penane.


75


She says the time she was not free was when P.W.2 telephoned her. The witness says the evidence that 3 policemen disturbed her by listening to her telephone calls is wrong. She says the reason she did not tell the 3 policemen to stop interfering with her and the reason she said it was wrong they interfered with her is because she was aware of their attitude. She says the 3 policemen were planted to collect some intelligence from her. She says she was senior to two of the officers. She says as her juniors, the policemen had not asked for permission to enter, it was not necessary to ask them to leave the room. She says what she was going to say to Penane was no secret. She says she had taken no firm stand against the men tor they were not misbehaving much as the radio room and all the officers were under her control. She says P.T.C. police presence at the MCCO on 31.10.95 was not authorised. She says according to her investigations they were not to be there at all and were not authorised to be there. She says she had inquired from the late Penane. She says when she refers to P.T.C. police she means A3, A4 and A7. The witness says amongst these she saw A3, A4 and A7. She says A1 was not stationed at the P.T.C. She says when she saw A3, A4 & A7 A1 was absent and had come along at his own time. The witness says she does not know what A1 wanted but he had gone to the telephone and then left. She says A1 was in some other station but not working with her. She says she knows Lt. Motenalapi who was stationed at the P.T.C. She says she did see Lt. Motenalapi in the vehicle with Major Lesiamo. She says she can't deny the fact that Lt. Motenalapi arrived long before Major Lesiamo. She doesn't remember whether Lt. Motenalapi spoke to her before Major Lesiamo arrived. That A3, A4's and A7's presence at the MCCO was authorised by Major Lesiamo she says she cannot deny this because he spoke to the Maj. About A3, A4 and A7. The explanation by Major Lesiamo according to the witness had been that he had spoken to A3 and A4 about discussions. Major Lesiamo was P.T.C. Deputy Commandant and P.T.C. Senior commander. He could give A3 and


76


A4 command. The witness says she did say she had spoken to Major Lesiamo who had said he had spoken to A3 and A4 and these had come in connection with Ramoeletsi's affair. The witness agrees Major Lesiamo said they had come for discussions and that she was to tell her superiors that the P.T.C. men had come for discussions. The witness says Major Lesiamo had said to her she was to inform her superiors that this was an order from Major Lesiamo. The witness says she did say juniors were disciplined for not obeying senior orders. She says she had carried out Major Lesiamo's orders. She says in her evidence-in-chief she had not mentioned this is the order Major Lesiamo gave her. She says not having mentioned it does not mean that she was holding back anything. Mr. Suhr objects saying there is no evidence that Major Lesiamo had ordered the men to be at MCCO. Mr. Phoofolo concedes the witness did not say this. The witness agrees Major Lesiamo had told her only that the men were there for talks. The witness says she did not ask Major Lesiamo whether the men were there by his order. She says she does not know whether Major Lesiamo ordered them to leave the premises for Major Lesiamo had said: 'I have spoken to these men —' without saying in respect of what. The witness says Major Lesiamo gave the PTC men stamp of approval for their presence at the MCCO. She says her superiors knew of the presence of P.T.C. men at the MCCO. She says when they went upstairs they knew there were going to be talks and had gone upstairs to hear what the P.T.C. men had to say. She says nobody had said let them go away, there are not going to be talks. She says they were surprised to see P.T.C. police dressed and armed as they were. She says Major Lesiamo was with Lt. Matsoso and Major Telukhunoana. She says she does not remember Lt. Matsoso saying anything. She says Lt. Matsoso was stationed at the PTC and was senior to all accused. Although he had come to the MCCO and left, she did not remember him saying anything. She says she was the first person to inform senior officers these PTC men had come for talks. She says she had known even before


77


Major Lesiamo disclosed this that they had come for talks.


Cross-examined by Mr. Maieane the witness says she saw A1 after the gun report. She says it could have been an hour after. She says A1 was based at the C.I.D. office and was not part of the PTC complement. The witness says she knows A1 very well and she is not able to say A1 did something or took part other than what she had told the court. She says as for A7, he was in company of A3 and A4 had featured prominently while A3 was in the background. She says she does not remember what time the shooting took place. She says she left her office to P.W.2's between 7.30 a.m. - 8.00 a.m. She says the gun report could have been a minute after leaving her office. She says she has said A7 was in a warm, friendly mood passing jokes like 'phoofolo' (animal). Though she could not say what was in him, she says it didn't seem he had an ulterior motive. That at the time of shooting A7 had gone to the police headquarters for talks she says she does not know. That he left the MCCO to police headquarters at 7.45 a.m. because the meeting would commence at 8.00 a.m. she says she does not know.


The witness re-iterates at all material times A7 gave her no trouble doing her work. She says she does not know whether A7was at the MCCO at the behest of Major Lesiamo for she was absent when A7 given instructions. Re-examined the witness says she has her report with her. She says she has conceded that there was variance as to sequence of events before and after shooting at P.W.2's office. Concerning p.5 where she describes events before and after the gunshots, she says she agrees with the report. She says she has also agreed covers were taken and guns held as they were after the shooting. Page 5 line 6 from top read to her, that P.T.C. men could be seen at every corner of the office, she says by this she meant they were deployed and could be clearly seen for there was light. She says by


78


deployed she means they were waiting for command to take action. She says before the shooting they were just going up-and-down in the charge office. She says the positions they took was after the shooting. The witness says by the corner of the office she means they were at the gate of R.C.T.S behind P.W.2's office and were merely standing carrying guns.


Both Messrs Phoofolo and Maieane object to the line of re-examination saying new issues are being raised and if the re-examination goes on as it does they are to be allowed to cross-examine on the new issues. Mr. Suhr says the question arises from cross-examination. Mr. Phoofolo says in reply he was involved in the cross-examination of the witness and that the witness had said in examination-in-chief that she saw two men following Fonane and then it was crown counsel's opportunity to ask the witness who were following Fonane and crown counsel having failed to do this cannot raise the matter in re-examination for the reason that he had lost his opportunity. The court has allowed the objection in view of the fact that in re-examination the intention is to clarify. The witness says there were P.T.C. men and does not remember if she mentioned the number of P.T.C. men. She says she does not remember whether the number of P.T.C men increased or decreased. The witness says she is unable to say in what groups the P.T.C. men came for she saw them when they were already in the yard. She says she understood A3 to be in charge as he was the most senior in the group. She says she knew Motenalapi at the time who, then was 2nd Lt. Motenalapi was late. She says she does not remember talking to him and if she spoke to him would remember. In her report she had said he was behind Lesiamo's vehicle. There being no objection to hand in the report it is handed in and marked Exh "E". She says she did say P.T.C. police had answered her in a normal way and by normal she meant they were not wild or hostile. She says P.T.C. personnel are members of the disciplinary forces. As for


79


eavesdropping on her stopping her going out of the gate and stopping her from using the telephone, she says this is not police way of doing things and it was unacceptable behaviour. She believed P.T.C. men were there for discussions and she had been told this by A7 though he gave her no details about the discussions. She says she does not know what A7 was thinking and had not taken her into his confidence. She says the reason she did not assert her authority as their senior was because they had said they had come for discussions and it seemed she could do nothing. She says staff members under her were 8 including herself. She says the police under her command were not armed and in any event would not in the circumstances meet violence with violence.


Mr. Phoofolo has objected to the question on the ground that it reveals the fact that police under the witness were not armed when clients say they were armed. Mr. Phoofolo is not saying that this was not raised in cross-examination but that clients say police under the witness were armed. Well, if so this court expects accused to say so in their defence when the time comes.


Mr. Suhr is allowed to go on in his re-examination. The witness says she saw A1 in the charge office and it was after seeing A1 that she went to P.W.2's office. She says the hour she referred to was merely an estimation owing to the confused state of affairs at the time. She says despite her having said A3 arrived at 5.30 a.m., she cannot deny that A3 arrived at the time mentioned by him because she had not looked at her watch for her 4.00 a.m. is only an estimate. The witness says she expected that P.T.C. police would all attend the meeting or decide who was going to attend it. She says she does not know in which office the meeting was going to be held. She says there is a hall at the MCCO below the high rise building being on the ground floor of B2 - witness points at the door immediately above the cab of a


80


Toyota vehicle. She says she does not know what they wanted in the radio room. Mr. Phoofolo has said there were new points raised in re-examination in chief and it was desirable to reply to these. Application is allowed. She says she did say police under her command were unarmed. The witness agrees Robbery and Car Theft Squad (R.C.T.S.) Police remain armed. She says on the night she was in charge these were under her command. She says she agrees it was inaccurate to say police falling under her command that night were unarmed. In further clarification by Mr. Suhr the witness says the R.C.T.S. police though armed she can't say how many were armed that night since side arms and weapons are normally left in their office.


Assessor: She says it was the P.T.C. commandant who should have approached P.W.2 about what was to be discussed; in other words, the Commandant was to tell P.W.2 that his men wished to talk to him and according to her knowledge this is not what happened.


By Court: The witness says if there were orders for P.T.C. men to be at the MCCO between 4.30 a.m. and 5.00 a.m. there was nothing wrong with that. By the time P.T.C. men came to the MCCO the witness says she was still on duty. She says she had no information that P.T.C. men would be at the MCCO the time they came and she was surprised. She says it was not in order that they should have been at the MCCO for she had not been informed of this. She says it was difficult for her to give them their marching orders. She says she was satisfied with Major Lesiamo's explanation. She says when she was barred leaving the charged office she was dissatisfied and this left a question mark. Tpr. Mabetha had stopped and barred her leaving. She says she had no reason not to ask why he did so. The police had no ambulance. In case of injury police used own vehicles or hospital


81


ambulance.


Arising from court questions by Mr. Suhr the witness says it is not usual to have discussions early in the morning.


P.W.6 Sgt. Matlhole sworn states: he is a Sgt. in the R.L.M.P. and on 31.10.95 he was a Sgt. On 31.10.95 he was stationed as the MCCO attached to the R.C.T.S. On 31.10.95 he had gone to work at 7.30 a.m. In the morning they had gone to the High Court with Insp. Khoele to fetch exhibits and between 8.00 a.m. -9.00 a.m. had gone back to the office and between the Treasury and Agric.. Bank had seen armed policemen and had asked each other what was happening. Towards the MCCO they had noticed there were others armed in a similar manner. They had passed on to the office and while going about their duties a telephone had rung and he had answered it. Captain Mokolatsie had phoned asking for help saying they were to help by all means. He stated there were injured senior officers who had sustained injuries in the office in which they were and it was necessary to rush them to hospital adding there were armed men outside and they were unable to go out and we were to speak to them.


The witness says he had then reported to Inspector Khoele with whom he was. They had both gone outside the office and met 2nd Lt. Molise (A1), A3, A2 all before court. They were outside on the charge office grounds just standing; the three of them were in operational uniform. The witness says he had spoken to A1 in the presence of A2 and A3 saying he had received a telephone from Regipol's office to the effect that officers were hurt and it is necessary to rush them to hospital and because of some pressure the officers were not able to come out and it was better they moved away so people could be taken to hospital. A' had replied:


82


'how banna, ntate Penane (o men or folks, father Penane) has shed blood when all we wanted was to talk to him? Nevertheless we have our policeman in there and if they take him out we are going to leave so you can take people to the hospital.* He says he had gone back to the office and does not know what A2 and A3 did save standing outside the charge office on its grounds. He says before he called them A2 and A3 were separate from A1 and he had asked A1 to call the Sgts. so they could have talks. He says the 3 accused were carrying big guns. P.W.2 was carrying an AK 47 and A3 an Ml5. A2 carried a big gun but he does not remember which though he does not mean a side arm but means one like an M16 or AK 47 rifle. He says he had not spoken to A1 again but had spoken to A2 and A3 - he says they were conferring about rushing people to hospital. He says it is A' who spoke about Penane shedding blood when the intention was to talk to him. He says the brown uniformed, armed men were outside the charge office while others were on charge office grounds - they were armed. In relation to the gate they were near the fencing and others were close to the gate where many vehicles had parked. As Mr. Suhr wanted to consider his position regarding the witness the matter was postponed to 15 May, 2000.


On 15 May, 2000 the witness continued his evidence under oath saying when the court adjourned he was describing events at the charge office and there is something he had left out. He says after talking to A1, A2 and A3 and the words attributed to A1 the latter had further said: 'As for Mr. Penane, we want him.' He says he did not ask what for Penane was wanted. The witness says he had telephoned Regipol's office where he found Cpt. Mokolatsie to whom he spoke telling him he had spoken to A1, A2 and A3 and that they had said they wanted their man in Regipol's office and after his release they would leave. The witness says he did not know who their man was. The witness says Cpt. Mokolatsie had said: 'the


83


man you are talking of is dead' and the witness says he had communicated this to Insp. Khoele; they had then conferred how to relay the message to A1, A2 and A3. The witness says as they were deliberating on this Brig. Makoaba, Col. Moiloa, Col. Mpopo and Col. Monyeke had arrived and he had gone up to them and said: 'What a relief, have you received the report' and they said they had come for it. They had then called accused 1, 2 and 3 and others he is not able to identify. They had spoken to them though he does not know about what. After the discussions A' and A3 and others had left. Along with Col. Monyeke they had walked to P.W.2's office. At the door Col. Monyeke announced himself saying: 'we've come to rescue you -' talking to officers in the then closed office. After announcing himself 3 times the door had opened. P.W.2 had emerged and allowed them to enter. There were police officers following them and remembers Tpr. Kumi and owing to the confusion does not remember others. They had not inquired what had happened theirs being to help the injured. On entering the witness and three men were on their feet namely P.W.2, Major Ntoi, Cpt Mokolatsie and the others were lying down being Lt. Col. Penane, Major Raleaka, Major Chabeli, Cpt. Fonane, Cpt. Mokeki and L/Sgt. Lekhooe. He had noticed an AK 47 rifle on the floor next to Major Raleaka and had also seen an 9mm pistol on the floor between L/Sgt. Lekhooe, Lt. Col. Penane and Major Raleaka. L/Sgt. Lekhooe was on the right side as you enter the door and Lt. Col. Penane and Major Raleaka were near to each other and the gun was between them. There was another big gun looking like SLR rifle. He says their attention was focussed on the injured to take them to hospital. He says the SLR rifle was a little in front of L/Sgt. Lekhooe. He says to his observation it was an SLR though he is not able to describe it. He says he can explain injuries on 3 people only: Major Raleaka had an open wound above the breast but he does not remember which side; Lt. Col. Penane had a wound on the stomach above the nipple and says he did not notice the side. He says Lt. Col. Penane was till wearing a white shirt. Cpt. Mokeki


84


was injured on his arm though he cannot say which arm. He says he had not touched L/Sgt. Lekhooe but was touched by the others he was with. The injured had then gone into police vehicles outside. He says it was after this that he learned Lt. Col. Penane, Major Chabeli and L/Sgt. Lekhooe were dead. He says the injured were taken in police vehicles. He says he is unable to estimate the time spent between arriving on the scene and the injured being taken to hospital.


Cross-examined by Mr. Maieane, the witness does not agree he could have forgotten though he does concede he could have forgotten certain facts because of passage of time. He disputes the fact that A1 carried an M16 rifle and says he carried an AK 47. As for the statement attributed to A1, he says A1 said 'we' and not 'these people."1


Cross-examined by Ms. Mahase the witness says he did say asked by the court A1 and A3 left with the others. He says it is correct to say A2 remained behind. Put to him he had previously said he spoke to A2 and A3 he says he was speaking to A2. The witness says he did not speak to A3 nor had he said he spoke to A3. The witness says he spoke to A2 in helping the injured though it was true he had said he spoke to A1 and A3. He says he did speak to A1, A2 and A3 in that the police they were with were under their control. He says though he spoke to A3, it was on a different occasion. He says he spoke to A1, A2 and A3 though in helping the injured he spoke to A1 and A2 and not A3. He disagrees he spoke to A3 on the occasion of helping the injured. The witness says apart from speaking to A3 in company of A1 and A2, he did not speak to A3. He disagrees not having spoken to A3 at all. The witness disagrees A3 came on the scene following Col. Monyeke. He says he is not positive the gun was an SLR though it looked like one. The witness repeats he is not sure the gun was an SLR because he did not touch it. He says unless he touches


85


a gun he cannot identify it. He says he did see an AK 47 on the floor. He says he can't say whether the gun was on the desk. He says A1 and A3 had left after Col. Monyeke had spoken to them and A2 had remained behind. One of the vehicles he drove was used to convey the injured to hospital the reason he remained behind. He says he does not know if A2 was ordered to remain behind.


No questions by the Assessor.


P.W.7 Assistant Commissioner Mathealira Lesiamo sworn states in October, 1995 he was Commandant, P.T.C. college station at Police Training College where the Response and Band Unit stayed. The function of the response unit with the R.L.M.P. Was to address a situation beyond normal police functions. With regard to force, there was no other unit other than the response unit that could address the situation. The relationship between the response unit and band unit was to function hand-in-hand. Of the accused some belong to the response unit while others are on the band unit. A1 was not part of the units he had mentioned. A2 was on the band unit stationed at the P.T.C. as was A4. A5 and A6. A7 did not fall under any of the units he had mentioned and he could not say whether he was stationed at the P.T.C. or the MCCO.


On 31.10.95 at about 6.00 a.m. he had been called to the office by his ex-superior Col. Monyeke informing him the police response and band unit had surrounded the charge office. As the units were directly under him, he felt obliged to go and investigate but before leaving the P.T.C. he had telephoned the charge office and spoke to P.W.5 Capt. Petlane now a superintendent who was then a Lt. He says he had asked her what the reports were about P.T.C. personnel at the charge office and she had said there were such P.T.C. members at the MCCO. He


86


had asked her who they were and she had said she did not know them for when she asked them their names they did not disclose them. He had asked Lt. Matsoso to accompany him to the MCCO. He says then he was major. He says Lt. Matsoso's role at the P.T.C. was an instructor. He says at the MCCO he had found a batch of policemen at the charge office door and near the exhibit room he had seen another group of policemen amongst whom he identified Tpr. Nchai of P.T.C. Inside the office he had found A3 and other policemen he did not identify then and now. They were wearing brown operational uniform, armed. The weapons were an assortment of SLR, M65 and AK47. He says there is no difference between M65 and M16 for they are the same calibre though they would seem different to a layman. He says the differences are slight. He says when he saw A3 he stopped the vehicle, called him to him; he says A3 was hesitant but the witness was firm and called him saying: 'I have come to you people'. Approaching him he had said to him: 'what do you want at the MCCO for you are stationed at the P.T.C.?' A3 had said they were on duty. He had asked with whom he was from the P.T.C. and he said with a War. Officer Motenalapi, now late; as he spoke to L/Sgt Mokapela (A7); Motenalapi had come towards them and he had called him to hear their story. He says War. Officer Motenalapi had stopped and seemed to ignore his call going past him. The witness says he questioned A1 as to what they wanted there. War. Officer Motenalapi had said he was used to going via the MCCO so he could find a vehicle to take him to the P.T.C. He had said this in the presence of A3 while A7 had just gone past him. In their discussion with A3, the latter had said they were for discussions with the Deputy Commissioner Brig. Makoaba as was the custom for the Commissioner and Deputy Commissioner to hold joint discussions. The witness says this had deflated him from making further inquiries and had been satisfied by A3s explanation that they were going to discuss an anonymous letter picked up at the Police Headquarters and further that they were going to talk about Lt. Col. Penane's affair


87


and War. Officer Ramoeletsi's. He assured him the discussions would be peaceful and friendly. The witness says he had said to A3 they were to be informed should problems arise. A3 had said there would be no problems for Mr. Makoaba was going to chair the discussions. He says after the discussions he had approached P.W.5, explained to her his discussions with A3 around which peaceful discussions were going to revolve. He says he had also said to her she was to tell her superiors who had found it difficult to come to work to report for duty. The witness, Motenalapi and Matsoso had gone back to the P.T.C. He says they went back to the P.T.C. between 7.00 a.m. and 8.00 a.m. for him to report to his superior ex-Col. Monyeke. After some time ex-Col. Monyeke had said he was wanted at Police Headquarters. He says he had been briefed at about 10.00 a.m. and coming towards Metropolitan Insurance Co. it seemed something had happened at the MCCO. He had found reports of shooting. He says at the time he could not say that the P.T.C. men were on an operation though he agrees they were on operational uniform and armed with some wearing webbing. The witness says informed and armed as they were, there was nothing surprising for this is how they are dressed and armed ordinarily. He says in going to meetings he does not know how they are dressed. He says A3's initial reaction or response was he was reluctant when he called him though when he insisted he cooperated. He says it seemed to him A3 did not want him to know why he was there. He says this conduct was unlike A3. He says as for A7 who came with War. Officer Motenalapi, he seemed unwilling to stop. He says he'd said to A7 he was to stop so he could talk to him - he had not stopped but had overheard the discussions. The witness says in terms of the disciplinary code, this was unlike members of the disciplined forces. The witness says A7 was in response unit uniform holding a big gun though he could not say which calibre but it was a rifle. Concerning War. Officer Motenalapi, it seemed he was not part of the P.T.C. contingent. The witness says sometimes ago he was


88


informed of the meeting at the charge office though the venue was not necessarily the charge office but police headquarters. As for a general purposes machine gun (GP. & G), there were times when P.T.C. men were trained in GP. & G. exercises. Apart from exercises, the GP & G was used in operations. He says up to the time he left for the MCCO, he was not aware of what had happened to War. Officer Ramoeletsi and Lt. Col. Penance. As for A3 and A7 and their reluctance to obey his orders, this was in conflict with police discipline. The witness says the level of discipline at the P.T.C. at the time was not at normal police level and was below the expected level.


The witness has testified in the police service there was a so-called 'Codesa' whose members were primarily the accused persons. As for A1, A2, A7, this group advocated for the welfare of the police force and drew its membership from members of the Royal Mounted Police. The so-called Codesa had functioned with the then Commissioner of Police Major-General T. Pinda and Brig. Makoaba whose interest had clashed with that of most senior officers. That he tacitly or expressly authorised accused to be at the MCCO that day he says is terribly wrong. No cross-examination by Mr. Maieane or Ms. Mahase and the Assessor has not asked questions.


By Court: He says under normal circumstances if the unit must go elsewhere reports are to be made to him. He says Col. Monyeke was satisfied with what he reported to him. He says if the unit had grievances this could be reported to him or other senior officers. By Mr. Suhr arising the witness says in relation to this matter he had received no report of grievances through proper channels.


P.W.8 retired Major-General Bolutu Makoaba sworn: had stated he was


89


former Commissioner of Police and had since retired. In 1995 he says he was Deputy Commissioner of Police designated Brigadier. He remembered events of 31.10.95. He says early in the morning at 6.00 a.m. he had received a telephone call from the former Major-General Pinda asking if he knew anything about an operation taking place at the MCCO and he had told him he knew nothing. As a result of this, according to the witness, Col. Monyeke had sent Major Lesiamo to find out what the P.T.C. police wanted at the MCCO. He says he does not know what Lesiamo found for he had proceeded to Police headquarters at 6.45 a.m. and had arrived there at the same time with the Commissioner of Police. Proceeding to the office they had met Tpr. Mosala who had asked them to go into the conference hall; he had said others were in the hall and we were to go therein. The witness says he had instead proceeded to his office leaving the Commissioner on the passage. On his way to the office he had met the late Sgt. Senekane who was patrolling along the corridor of the offices. The witness says he had spoken to him asking what was happening; he says he had also asked him whether they were 'arresting us' and he had said no and he had said to him he is going to release his officers where they had kept them. He says he did say Tpr. Mosala had directed them to the hall where other officers were kept. The witness says he did not verify whether these officers were in the conference hall. The witness says he did ask Sgt. Senekane who had ordered him to keep officers in the hall instead of being in their offices and Sgt. Senekane had said he had not been instructed by anybody - the reason the witness went to the conference hall. In the hall he had found senior police officers and he had ordered them to go to their offices. The witness says these were senior police officers working at police headquarters. The witness says Mosala and Senekane were in operational uniforms, armed. If he remembers well Senekane was armed with AK 47 and Mosala Ml6. The witness says after he gave senior officers order to leave for their offices they had done this. The witness says at about 7.15 a.m. they had


90


heard gunfire from the MCCO and a call had been received from P.W.2 that they were being attacked by policemen from the P.T.C. and from police headquarters. He had then decided to go to the MCCO to inquire but before then he had telephoned the charge office wanting to speak to A1 who was a senior policeman then and he had spoken to him and ordered him to stop the shooting at the charge office with his men. In reply he had said he would not stop until his men in-divisional commander's office were released. He says he had asked A1 who those were and he had said it was L/Sgt. Lekhooe and the witness had said it was some of the things he was going to investigate. The witness says then he was accompanied by Co!. Moiloa, head of the CID and Col. Sekatle. He had gone to the office of the divisional commander P.W.2, when he got into P.W.2's office he had found him behind his desk, L/Sgt. Lekhooe lay dead on his right hand side. On the centre was Lt. Col Penane still alive but in great pain. On the lefthand side towards the corner was Major Chabeli already dead; some other officers were injured. He had contacted the Commissioner of Police to brief him about what he had found. He had also sought ambulance service to take the injured to hospital. At the MCCO he had ordered men gathered there to disperse and they had moved away. He had also sought assistance from the LDF to take the injured to hospital but had been informed Col. Penane had died. He says he also ordered A1 to take his men away from the MCCO and he did this because A' was the senior most of the operation directed by him. As for telephone calls he says he did say P.W.2 phoned the headquarters reporting about the shooting at the MCCO. The witness says he should have said that in his evidence-in-chief for he does not now recall whether he telephoned for he telephones ever so often. He says he can't remember calls P.W.2 made that day but remembers a phone fall from the charge office. As for Mosala's and Senekane's conduct he says he can't say there was ill-discipline though to order senior officers by junior officers is ill-discipline. He says he remembers something


91


about the so-called ' Codesa'. He says this is related to 1994 police strike when they had elected a negotiating committee being a police negotiating committee but given the nickname 'Codesa'. A1 was chairman and leading light of the committee and the committee had outlived the strike of 1994 as there were other matters to be straightened. He says it was this crisis committee the police authorities recognised. He denies there is evidence that there was to be a meeting chaired by him on 31.10.95 for he had not been informed of the meeting. The witness denies ever detailing A5 and the late Lekhooe to fetch P.W.2 and the late Lt. Col. Penane and to bring them to police headquarters and he never authorised the conduct of affairs at the MCCO.


Mr. Maieane complains that the defence is not informed of the order of crown witnesses so as to prepare themselves by consulting with clients about the evidence of a prospective crown witness. Mr. Suhr says he is aware of the request but on his part is not able to say what witnesses will attend on a particular day.


Cross-examined by Mr. Maieane the witness agrees he has no personal knowledge of who shot except what has been represented to him and those that were present were the only ones to say who shot who. The witness admits he did communicate with A1 over the telephone. He says his order to A1 was to stop shooting at the divisional commander's office. That this account is devoid of the truth the witness says these are the orders he gave A1. He agrees he communicated with A1 over the telephone. That this is what was discussed namely by A1 saying: 'setlokotsebe sane se Penane se se se thuntse Lekhooe' (that rascal Penane has shot Lekhooe). (Note: there was a bit of a tiff as to the equivalent of 'setlokotsebe' in English). 'Setlokotsebe' means a man prone to mischief and I think rascal is closer than psychopath. The witness categorically denies ever having heard the words for


92


it was not known who had shot who. The witness says he had not been to the charge office and had no means of knowing who had shot who. The witness says in going to the charge office it was because P.W.2 had reported to him and the Commissioner of Police that they were being shot at. The witness agrees considering the exigency of the moment they could not have taken 3 minutes to reach the MCCO from police headquarters though because of other arrangements having to be put in place it had taken them 15-20 minutes. He says it is his evidence that he found two men dead and Lt. Col. Penane in great pain. He says it was the same P.W.2 who contacted them. The witness says P.W.2's life was in danger and in reporting could not be forthright for all he requested was assistance. The witness denies he knew before that Lekhooe was shot for it was only on arrival at the charge office he knew Lekhooe had been shot. The witness says P.W.2's request was to be rescued and it was the witness who sought an ambulance to take the injured to hospital. The witness says he took A1 to be the senior because A1 was in fact the senior most of the lot. The witness agrees A1 was not part of the P.T.C. police and he was based at the police headquarters. The witness also agrees that A1 had been posted to Makoanyane by police command structure. That A1 was at the police headquarters attending a meeting of their committee the witness says he does not know the meeting A1 is referring to for he had not seen A1 at police headquarters on the day in question. That during meetings A1 wore an operational uniform the witness has said it would seem when there are incidents P.W.2 wears an operational uniform and when there are no incidents he prefers his civilian clothing. The witness denies A1 went to the scene after the shooting for he spoke to A1 when he called at the MCCO at about 7.30 a.m. - 7.45 a.m. The witness says he knows nothing of P.W.2 taking cover or not taking cover for he was absent. He says a cover is taken to narrow targets and to find chance to shoot the aggressor. He says A1 was in charge of P.T.C. personnel for orders by A1 were obeyed by P.T.C.


93


police. He agrees P.W.2 phoned during the fracas.


Cross-examined by Ms. Mahase the witness agrees he communicated with P.W.2 several times for P.W.2 did not call once and had telephoned the headquarters persistently seeking aid e.g. he had called the police headquarters reporting the deteriorating situation at the MCCO and had done this before the shooting and before the shooting it was a report to the effect that the MCCO was surrounded by P.T.C. personnel and from elsewhere. This is what P.W.2 had reported and thereafter that they were being fired at by the same people. The witness says he does not remember saying Lt. Col. Penane was to take refuge at the police headquarters nor does he remember when it had been reported to him that Lt. Col. Penane's home was surrounded he had said Penane was not to go to the MCCO but to the police headquarters in order to remove him from the target. He says Penane's life was endangered by the fact that it had been said his home was surrounded by police. The witness says at the MCCO he felt Penane to be safe enough. The witness questioned why if Penane was safe at the MCCO he had told P.W.2 that Penane was to go to the police headquarters, the witness says the situation at the MCCO was unsafe considering that it was surrounded by the same people. The witness says this was the reason he suggested police headquarters. The witness says he had thought by going to the headquarters Penane would not be stopped and he would meet him on the way to assist him in a friendly manner. He says he was not dishing out an order it was merely a suggestion. He also says the idea was also to remove the target for the situation needed to be defused. The witness says he was on the verge of going personally but then shooting had taken place. The witness says he knew of the situation at MCCO at 6.00 a.m. and Major Lesiamo had been detached. The response from Col. Monyeke had been that he had not send anybody to the MCCO. The witness says Col. Monyeke had said this after


94


Major Lesiamo had reported to him. He says there was no detailed report from Major Lesiamo. He says although information was not detailed, they were in the same office with the Commissioner of Police when Col. Monyeke spoke by telephone saying the P.T.C. police had gone to the MCCO on their own and there were no instructions from them to go there. He says during the commotion he was in the Commissioner's office. He says he left the commissioner on the corridor but had returned to the hall to release all officers that were herded into the hall. That he had not said in his evidence-in-chief that he went into the Commissioner's office with the latter he agrees though he says he thought this was understood that in referring to the officers he also referred to the Commissioner of Police. He says it was not that necessary to mention i.e went into the Commissioner's office for as the Commissioner's Deputy he goes into his office all the time. He says when he ordered officers to go to their offices the Commissioner was not in the hall. He says when he says he ordered officers out of the hall he included the Commissioner and nothing stopped the Commissioner going to his office for then he was free. He says it was unusual for junior officers to surround a divisional commander's office. He says he has said in his evidence that Lt. Col. Ngatane had said junior officers were surrounding his office. He says there were a number of telephone calls to the effect even before shooting. He says it is true if in his evidence-in-chief P.W.2 said even before the shooting they were being attacked. He says he does not remember seeing A3 at police headquarters for he had seen him at the MCCO. The witness says it is totally untrue A3 had been called along with Sgt. Senekane. The witness says he spoke to Sgt. Senekane at police headquarters for it is him who had told them about the shooting at the MCCO and had never said to A3 or Senekane that Lekhooe was dead.


95


Re-examined the witness says he does not remember the meeting A1 was called to at the headquarters. According to the witness, any grievances were to go through proper channels and in this case this had not happened. He says he did in the past attend many so-called Codesa meetings relating to police grievances. He says the meetings were called on Wednesdays and there was always notification of such meetings. Junior officers were expected to report back to their officers what was deliberated at police headquarters. As for settlement of grievances by A1, such meetings were held at 10.00 a.m. and does not recall such a meeting being called on 31.10.95. He says as 31.10.95 was a Tuesday, it was unusual to call such meetings on a Tuesday. He says he sees no reason for meetings to have been held early in the morning not unless the Commissioner had some operation in mind in which case meetings can be held in the morning as where, for example, police are going to mount road blocks, or there are going to be raids in which case detectives would be instructed to wear uniforms. As to whether P.W.2 phoned after the shooting ceased the witness say his understanding was not 'cease-fire' but after the firing stopped and there was no suggestion of the kind to him.


No questions by the Assessor.


By Court. He says the so-called 'Codesa' started as a negotiating committee where police went on strike for pay rise and the committee remained as police mouthpiece of the police in general even if they were not complaining of pay rise but had other grievances which they wanted addressed, these were directed at police authorities through 'Codesa' appropriately called the crisis committee and the committee dealt directly with the Deputy Commissioner of Police who happened to be the witness. As to events leading to 31.10.95, he says he had received no complaints. He had not known beforehand that there was going to be a meeting.


96


Of accused persons A1, A3 and A7 were on the negotiating committee.


Ms. Mahase to witness on question's arising. The witness says he has said he had never received complaints from the working committee of the so-called 'Codesa'. That grievances had arisen from August, 1995 and were brought up in the grievances committee of which he was Chairman, he says he did not have anything to solve on 31.10.95. The witness says the crisis committee functioned apart from money complaints. That he knew about grievances leading to the crisis of 31.10.95 which grievances he had to solve on 31.10.95, the witness says much as there were grievances, these were not enough to have resulted in the disaster of 31.10.95.


Mr. Suhr says he had intended calling Senior Superintendent Telukhunoana but unfortunately he is not able to attend because he is bereaved.


P.W.9 Inspector Maloisane sworn has stated he works at the C.I.D. office as an Inspector in the LMPS. In 1996 he was stationed at the police headquarters and at the time the witness says his superior was A1 in charge of the office and bureau office. He says he sees the 9 mm pistol with serial No. A 550634. The witness says he was given the gun by A1 saying he should keep it and it had since been in his possession since 1996 though he does not quite remember the date until 24.01.97 when head of the C.I.D. Mr. Letsaba inquired about the gun and he had said he had it and handed it over to him.


The witness says A1 gave it to him when he was in the polaris office. He says A1 gave it to him saying he was to keep it without giving him reasons. In time A1 was transferred to Leribe district and said he had remembered leaving a firearm with


97


me and said [ should go on keeping it. He says he kept it in his safe and had given it to Col. Letsaba on 24.01.97. He says at present the pistol has no magazine and had none when he received it. Mr, Maieane objects the pistol being handed in by the witness saying the proper person to hand it in is Col. Letsaba. It is marked for identification to be handed in by Col. Letsaba.


Further cross-examined by Mr. Maieane the witness says he did say he was asked by A1 to keep the gun without knowing from whom it came and says he cannot contradict A1's version of where the gun came from. The witness says he does not know that A1 was given the gun by Sgt. Senekane who found it in a vehicle used by Sgt. Lekhooe. The witness also says he does not know that the gun was handed for safe keeping on 01.11.95.


No cross-examination by Ms. Mahase


P.W.10 Jobo Moshoeshoe sworn stated: has stated he is now on pension. He remembered 31.10.95 when then he was a Col. stationed at Mabote police station in the department of traffic. He remembered events of 31.101.95 when arriving for work at about 7.30 a.m. - 8.00 a.m. in his vehicle. He had found police on the grounds of the office. One of them was War. Officer Ramoeletsi. The police were in operational uniform with big guns. He says he had found a police van parked where he parks his vehicle and War. Officer Ramoeletsi had instructed a policeman to remove the vehicle so he could park. Ramoeletsi had saluted him with a police salute and asked another policeman to do the same. Ramoeletsi had asked him what was happening and the witness had said he knew better. He says his vehicle had a slow puncture and as he went into his office near a cell he realised Ramoeletsi was being led into a cell; he says he was surprised and had telephoned


98


Col. Mpopo asking him whether he knew what was happening. Col. Mpopo had said he had heard. He says Ramoeletsi had said nothing to him and had not interfered with what was taking place there - the reason he had reported to his superiors. He says he would not interfere with what he knew nothing about. He says he is not able to identify those who put Ramoeletsi into the cell nor does he know how many they were. No cross-examination by either Ms. Mahase or Mr. Maieane and the Assessor has not put question to the witness.


P.W.I 1 Lebabo Patrick Mokeki sworn stated: he remembered 31.10.95 when then he was Captain in the RLMS stationed at the Central Charge office. He says he was in charge of stock theft unit. On the morning of 31.10.95 at about 7.00 a.m. or 6.00 a.m. he had gone to the MCCO. At the gate of MCCO he had noticed a number of policemen on the charge office yard. Entering the gate he noticed it was P.T.C. police in brown uniform; they had greeted him and he had proceeded into the charge office. He says these police were armed with some weapons stuck into the ground. They carried Ml6 rifles. On the ground he had seen a machine-gun and though he was not close he had seen it was a machine-gun; - there were two of them. The first was next to Central Charge office armoury; another one was at R.S.T.S. office and he had noticed some P.T.C. police and notably Sgt. Mosae (A3). He had gone into the charge office. In the charge office he found police on night duty still present though he did not know the reason thereof. They had greeted him by standing up saying nothing. He had asked them what was happening and they had not replied. He had then proceeded to the radio room and found those who worked there present. He says he does not recall their names. He had also asked them whether there was nothing new and they did not reply. He had asked which officer was in charge of night shift and there had been no reply. The radios were not functioning. He had returned to the charge office where he met Lt. Petlane (P.W.5)


99


who, before he put a question to her said: 'we've been captured.' He had asked by whom, what was happening and she said: 'those men outside the gate from the P.T.C. came under the leadership of A3 saying they were capturing us.' He had asked for more details but she gave no reply. They had parted and he had waited in the charge office. After some time he had seen P.W.2 entering the charge office in a vehicle. Thereafter, he had gone upstairs to P.W.2's office. He noticed officers Ntoi, Releaka, Chabeli, Mokolatsie going up and also going up had met Capt. Memela and P.W.5 as if they came from P.W.5's office but he had met them on the corridor and asking them where they were going they said Lt. Col. Penane had given them instructions relating to transfers in his office. Along with the police officers mentioned he had gone into P.W.2's office. Whilst in there Captain Fonane had arrived and after being seated Major Ntoi had exclaimed: 'what's happening outside!' They had stood on their chairs and pipped through windows and saw the men from the P.T.C. He had noticed A1 who seemed to be talking to them telling them something. He says A1 was wearing a brown uniform and on top wearing a bullet proof vest carrying a rifle and he says he did not realise whether he was carrying a sidearm. He says he did not notice the type of gun. From the group 3 policemen wearing brown uniforms had left towards where vehicles are parked though the place is out of view. After sometime a door creaked and there was a knocking sound and Major Ntoi opened with two policemen entering and a third just pipping in. The other one stood before P.W.2. He says the three policemen were in brown uniform carrying M16 firearms. He knew the second one who was Tpr. Mafeto (A5). The policeman had greeted P.W.2 and saluted him. He stands and demonstrates. He says the policeman was holding the gun with his right hand to the left arm with the click of his heels. The witness says according to him the salute was proper. He says the policeman had then said to P.W.2; ' we've come to fetch Lt. Col. Penane'. P.W.2 had asked who wanted him, what had he done, where is


100


he taking him to but the policeman had not replied to these questions. He says he was seeing the policeman for the first time. He says he did not know the first policeman who came into P.W.2's office. After the policeman had asked P.W.2 the question Lt. Col. Penane had stood up and said: 'u oa ntseba?' (Do you know me) and as he said this he felt for his firearm - it was a 9 mm pistol. He says he then heard sound of a gun - it was a 9 mm pistol. He says he heard sound of a gun. He says after Penane drew his gun there was sound of a gun from the policeman who said he wanted Penane and Penane had shot the policemen and both had fallen. He says they had dugged for cover. He says when he rose he noticed Penane was writhing and turning on the floor and so was Mr. Raleaka. Him and Cpt. Mokolatsie tried to help them but in the end he had tired and set on his chair. Cpt. Mokolatsie had noticed the witness was bleeding on his lefthand - something he had not noticed. Capt. Mokolatsie had wrapped him with the uniform he was wearing and the injury seemed to be on the left elbow - it was a bullet wound. He says from then on he did not know what was happening. The police had come and taken them to different hospitals. He had gone to Makoanyane Military Hospital with Raleaka and Mokolatsie where he spent a month. He says after the injury his left arm does not function as before and as for the shooting he is not able to say who shot first. He says when L/Sgt. Lekhooe turned to Penane he held the rifle in a position to shoot. As for A5, he had not seen what he did for he was next to the door. He says there were 3 sounds of gunfire. He says he can distinguish between rapid and automatic fire and the gunfire was rapid and automatic. He says he is able to say rapid fire came first. He says he was conscious of himself and other than L/Sgt. Lekhooe and Lt. Col. Penane no other person shot.


Cross-examined by Mr. Maieane the witness has testified he said there were two types of gunfire rapid and automatic. Lt. Col. Penane had fired from a 9 mm


101


pistol while Lekhooe had fired from a rifle. He says a 9 mm pistol fires rapid and automatic. Lekhooe had held an M16 rifle and says it fires automatic and rapid. He says in firing rapid you shoot loading and you keep on shooting. He says when one presses the trigger one bullet comes out followed by another in punctuated succession. He says when a bullet is fired you have to keep on pressing the trigger while in automatic firing you only press the trigger and bullets will come out until they are finished. He says automatic firing happens with a 9 mm pistol. He says the sound will tell whether the automatic fire comes from an M16 or a 9 mm pistol. He says he has said a rifle has rapid and automatic fire. He says he has said rapid fire came first. He says of the two people who shot rapid came from Lekhooe. He says he has said Lekhooe saluted P.W.2 properly and had said he had cone to fetch Penane and the latter had drawn his weapon and cocked if after inquiring whether he knew him. That when he cocked his firearm he was ready for action he agrees for one cocks one's weapon to shoot. He agrees cocking is the last drill before shooting and he says this is what Penane did. He says after greeting P.W.2 Lekhooe held his rifle ready to shoot. The witness says Lekhooe was holding the weapon with his right arm with the gun pointed upwards. The witness says according to police discipline after saluting the gun must return to its resting place being on one's side as at attention.


Put to the witness the attention position in which Lekhooe was, the ready position in which Penane was, if they had to shoot at each other - Mr. Suhr objects to the question saying one can cock and point a gun and one has to say what ready position of a pistol is. Court: Mr. Maieane is allowed to go on with the question: the one who is ready to shoot. Mr, Suhr says but it has not been proved that the witness is an expert. The court agrees and asks Mr. Maieane to establish whether the witness is an expert. Mr. Maieane questions the witness as to his expertise and


102


the witness says he has been in the police force from 1965 to 1997 and is now retired. He had undergone police training and had been tutored on firearms handling. He had also been taught arms drill. He had also been taught firing at different targets at different ranges with different firearm calibres. He says he has been taught use of 9 mm pistol and he knows its shooting drill from A - Z. He was similarly trained to handle a rifle. Throughout his career there had been refresher courses and seminars which he attended in weapons handling. He says this is the experience he has gained and it would be unfair to say he has no experience. Mr. Maieane says in so far as establishing the witness's experience is concerned he has done enough to enable the witness to answer the question and the court agrees.


Witness being warned he is still under oath continues and says he recalls it has been said he is sufficiently experienced. He says he has said Lekhooe fired first. He says if Lekhooe was shot first he would not have been able to shoot. He says the one who would have shot first is the one who had a chance to shoot. That logic dictates Penane shot first he agrees but says had Penane shot first he would not have been shot by Lekhooe. The witness says he is answering questions properly. He says if Penane had shot first he could not have been shot by L/Sgt. Lekhooe. He says he does not know which is more powerful between Ml6 and 9 mm. He says he had seen A' at the MCCO before the shooting. That this testimony is untrue he says it is true. That A1 came to the MCCO after hearing gunshots for he had been at police headquarters he says may be he went away and returned but he had seen him before the event took place. The witness denies he is not telling the truth for reasons best known to him.


Cross-examined by Ms. Mahase the witness says Penane spoke standing while he had been seated. He had stood up after Lekhooe said he had come to fetch


103


him. He says Penane suddenly stood up and said: 'do know me', standing up and cocking his gun. When Penane said:' u oa ntseba' (do you know me) then Lekhooe turned and before Lekhooe could respond he heard gunfire. He says he was then seated on a chair and he was next to the wall facing P.W.2 - it is the wall behind the door. He says he was seated next to Raleaka and Mokolatsie. He says he was seated between Raleaka and Mokolatsie. From where he was seated he says he could see a person coming behind Lekhooe. He says the person was in brown uniform holding a firearm - an M16 or 'SLR.' After the shooting he had not seen the person. He says he sees him here in court. He had known him before. He does not know the order of arrival at P.W.2's office but he knows whom he found in the office being P.W.2, Major Ntoi, Major Chabeli, Cpt. Mokolatsie, Major Raleaka and Lt. Col, Penane. He says Cpt. Fonane found them in the office. He says P.W.2 was briefing them as he always does though he did not know what it was all about. In the office P.W.2 had spoken over the telephone. He does not know how many times. He says he had only seen P.W.2 once speak over the telephone. He had not seen P.W.2 speak over the telephone before the shooting. He says when P.W.5 said they had been captured she was normal though surprised. He says he does not know P.W.5 when frightened. Put to the witness P.W.5 has testified and in her evidence had not said they had been kept captive the witness says this is what P.W.5 told him. He says he does not know whether P.W.5 had said police from the P.T.C. were not violent. He says by the time the injured were attended to the door was closed. He says the door was closed by Major Ntoi with a shooter inside and it was after the shooting. He says at this time the person following Lekhooe was not inside but outside having been locked outside. He says Major Ntoi locked the door after the firing and while the injured were being attended to. He says he does not know how he came to be shot. He says he did not know he was shot. He says he heard 3 gun reports and of these one was rapid and the other automatic. He says the


104


rapid said: 'taa-a-taa' and stopped and the automatic 'tr-r-r-';.he says the 3rd shot was like automatic 'taa-a-taa-' He says he had seen P.W.2 speak on the phone after shooting; he says he heard as if he was telephoning headquarters but he does not know to whom he was talking for he had said: 're batla thuso (we seek help) . He says he did not hear P.W.2 say why he needed help save saying he needed help as officers were shot without mentioning names. He says he was down on the floor wounded. He says Major Ntoi was also on the 'phone reporting the shooting and asking Queen II and other places to help with ambulance. The witness does not remember who else spoke on the phone. The witness says he does not know what P.W.2 did. He says he did not see an AK 47 in the office or on P.W.2's desk. He says he saw A5 carrying a rifle and disputes the fact that he was not carrying it. That A3 was carrying a walkie-talkie and police swagger he says he did not see these. He says he was not mistaken for he did not see a swagger stick. Put to him A5 was 2 - 3 m or less from the door the witness says though he did not measure he was close to where he was seated. He says he was seated behind the door but a little distance away and Cpt. Fonane was exactly behind the door and Penane was next, Raleaka and himself. He says from where he was seated he could see A5 clearly and the door could not obstruct him seeing A5. He disputes the fact that A5 was on the doorstep not having entered. The witness says if A5 had not entered, he could not have seen him. The witness says when he saw A5 he was standing at the door. The witness says from where he was A5 was 6 m away. He say this is estimated distance from the door inside to where A5 was.


Re-examined the witness says he says he said A5 was inside the office next to the door. He says the distance is from where they were seated to where he is. He says he understands the distance that was being established. He says it is the distance from where they were seated to where A5 was standing. He says if the


105

witness box is the door, he could have been 2 paces from the door i.e. 1 meter. He says for rapid fire you have to pull the trigger for every shot and for automatic you pull the trigger and the firing is endless until bullets are all spent and the magazine is empty. He says a 9 mm pistol is rapid and has no tr-r-r. As to the scenario put to him, he says this is not what happened in the room. He says when Lekhooe turned towards Penane he had his gun in a ready position to shoot. He says his identification of A1 was not malicious for he has no reasons to implicate A1 falsely. He says the basis for saying P.W.5 was surprised and frightened was because she was unable to talk. He says P.W.5 is not a loud mouth and is a soft spoken person but did say they had been captured - the reason he said she was frightened. As to swagger stick or police button, the police take either ordinarily when not carrying a firearm. A swagger stick was carried for minor riots. He says a button is made of wood and swagger stick is made of rubber.


No questions by Assessor.


P.W.12 Inspector Mphatsoana sworn states: Mr. Maieane says he got the witnesses statement the previous day and although it was at all material times known that the witness would be available the statement had only been taken the previous day. Mr. Suhr objects to the perception that the Crown is playing games and the witness has been called to correct Moshoeshoe's (P.W.10) evidence. He says it was clear P.W. 10 could not identify any of the accused. He says as early as April the witness was mentioned and the witness is properly before court and it is wrong to say the witnesses statement is improper. He says there is no fabrication for in April P.W.I mentioned Sgt. Mphatsoana.


106


Ms. Mahase says the defence can't help being suspicious since P.W.I gave evidence a long time ago and other statements were made available to the defence while this one wasn't except being made available only the previous day. Ms. Mahase says the witness cannot testify now or at all. Mr. Suhr says the court must decide whether the witness is competent.


Court: Competency of the witness is reserved to be decided in this judgment.


P.W. 12 evidence-in-chief continues. I am an Inspector working at the P.T.C. I am an instructor. He says he remembers events of 31.10.95 when at 7.30 a.m. he was going to work as usual to the P.T.C. He says he had met a combi driven by Sgt. Makateng. He had stopped the vehicle they were travelling in driven by Sgt. Maime. Sgt. Makateng had called him outside the vehicle to talk and said L/Sgt. Lekhooe was saying they should go for a talk at Mabote police station. At Mabote he had found L/Sgt. Lekhooe present and there was somebody in - the combi; it was A1. He had found L/Sgt. Lekhooe at the parking area of Mabote police station. He was with Sgt. Leuta (A2), Tpr. Mafeto (A5) and Tpr. Koekoe (A6). They were with Sn Inspector Ramoeletsi (P.W.I) whose rank he did not recall. They were with other people he did not recall. They were with Senior Inspector Ramoeletsi and he had noticed there was trouble with Senior Inspector Ramoeletsi (P.W.I) and the people he had mentioned. A5 had said Ramoeletsi (P.W.I) was to hand over his pistol. P.W. 1 had asked him what was happening and he had said he did not know what was happening. He says Senior Inspector Ramoeletsi was wild and he had said he was to come down so we could talk. By wild he says he was angry. He says he spoke to P.W. 1 so he could come down in order to talk to those people. He had said they wanted something in his possession being a pistol. The witness says he had told him he was to tell them the pistol was not in his possession for he had


107


handed pistol to L/Sgt. Lekhooe. They had then got into the office with Inspector Ramoeletsi (P.W.I) - he says he means A2, A5 and A6. He had not gone into the office. He had spoken to the late L/Sgt. Lekhooe and asked what for he wanted the witness. He had said he could not talk to the witness and the witness was to go back to the P.T.C where he would talk to him. He had gone back to the P.T.C. He says Lekhooe was his friend. As for A2 he was his senior and worked with A3 at P.T.C. A5 was his junior at the P.T.C., A6 his co-worker at P.T.C. A1, 2,4,5 and 6 were wearing operational uniform and were armed though he does not remember whether A5 was armed. He says the others were armed with M16 rifles i.e. A1 with Ml6, A2 with M16 and not sure what A5 carried while A6 was armed with an Ml6 rifle. As for P.W.I he knew him at the P.T.C. where they worked together as a colleague. He says when A' got into the office he was outside with P.W. 1 He had not seen A' again. The witness says P.W. 1 had asked him if the mission was A1's and he had said he did not know. He says A1 was the senior most of the lot. The witness says he was outside with Lekhooe and he had not gone into the office. He says at the parking lot P.W.10 came and parked next to them. The witness says P.W.10 came in his vehicle, parked it and went into his office. He says there were other policemen at the parking lot though he does not remember who they were and he thinks they came with A2 and others. He says Sgt. Makateng was next in seniority to A1. He says he made the report yesterday and he had not been asked to make a report before. He says he was summoned by Mr. Ntaote (Mr. Suhr's assistant) to make a report. Except yesterday when he was so summoned, he had not made a report before anywhere. He says he had consulted with Mr. Suhr before making the report and during the consultation he was not asked about any of the accused. As for A2, A5 and A6 that they were not at Mabote's and the allegation that they were there is fabrication, he says they were present at Mabote's. He says he bears no grudges against accused.


108


Mr. Maieane says concerning depositions made by the witness before court, concerning the charges, the witness does not implicate A' and A7 but nevertheless he stands by his application.


Cross-examined by Ms. Mahase the witness says when he arrived at Mabote police station he had alighted from his vehicle and the driver had gone into the office. He had gone to Lekhooe and found him with the accused persons he had mentioned with P.W.I. Before speaking to Lekhooe he says he spoke to P.W.I though it is P.W.I who spoke to him first He says in speaking to P.W.I he was at the parking lot at Mabote police station along with people who were with P.W.1 and must have heard what he discussed with P.W.1 He says P.W.1 had asked him what was taking place there and P.W.1 had said the men had arrested him and demanded his pistol. He agrees P.W.I has given evidence. He says this is all he discussed with P.W.I He denies in talking they were in P.W.l's vehicle and says P.W.I is wrong to have said so. He says he can't recall whether A5 carried a gun and the reason for this is that he had not been long with him though he had spent sometime with some of the accused. He says he was with some people from the P.T.C. and had seen people with guns at Mabote's. Those from the P.T.C. carrying guns were A1 and Sgt. Makateng. He says at Mabote's it was A2, A6 and the late Lekhooe and he had some discussions with them. He says he also spoke to A2. He says he saw A6 doing nothing much as he was with him. He says A6 did nothing being merely present there at Mabote's. He says A5 was also present at Mabote's but had not been long with him - the reason he did not see whether he was carrying a gun. He was A5's senior. He denies A5 was at headquarters and not at Mabote's for he saw him at Mabote's. He says he said A3 was senior for not understanding the question. He says he does not know the investigator in the case. He says he met crown counsel before court and these are the people who interviewed him yesterday


109


at about 9.00 a.m. They had called him and he came to court. He does not remember the date but this case had then been postponed. He says he was given another date being that which followed the postponement and he had been told he would be informed when wanted. He says he was wanted to give evidence. He had been told to report to Mr. Ntaote assistant crown counsel. He had been interviewed and made a report the previous day to this hearing. As tor P.W.1 saying he followed him into the office, he says he did not enter Mabote office.


Re-examined the witness says when the matter was postponed he does not remember who crown counsel was and there was then nothing discussed. He says he does not remember the date when the matter was postponed though it could have been the court's first sitting. He says he came to report to crown counsel yesterday.


No questions by Assessor.


By court: He says the statement he made related to events of 31.10.95 and before he made the statement no statement had been taken from him. He says he remembers some facts and others he does not remember. He says he had before given evidence at magistrates' court and he used to write a report and he had then been made to write a report at once.


P.W.13 Tpr. Kota sworn had stated he is Tpr. in the LMPS and on 31.10.95 he worked at Robbery and Car Theft Squad (RCTS). He says having knocked off from duty in the morning he had resumed duty on 30.10.95 at 10.00 p.m. He says his duty that night was to inspect and give security to vehicles and business. On 31.10.95 he had returned to Maseru Charge office at about 3.30 a.m. Along with his senior officer L/Sgt. Masoabi they parked their vehicle under a tree next to the


110


office where he worked and took a rest in the vehicle with his senior aforesaid. He says after a while he heard a knock on the window of the passenger seat where he was seated and found it was Sgt. Mosae (A3) wearing a brown uniform called operational dress. A3 was alone carrying an M16 rifle. He had said: 'Hey man, we are not here to fight and we do not want bloodshed of any kind, we have come for discussions - we want to meet senior officers to talk to them. He said the three of them were to go into the office. In the office A3 asked whether they (the witness and his senior) had information of the reason why A3 and others were there. He had asked them about a letter found at police headquarters inside women's toilet which depicted police at headquarters as women and that A1 and his so-called Codesa are to take precautions from the 7th day of the date of the letter; he then said the witness and his senior were to put their property in the chubbs i.e. lock it up in the safe. After saying he did not want bloodshed but had come for discussions, he showed if necessary they would effect arrests and that the witness and his senior if they went out they were to report to A3's colleagues as to where they intended going. The witness says he had not seen these people before. The witness says as for locking their guns in the safe, these were their rifles which they carried on daily duty and had said as their work required that they have these weapons they could not dispense with them. He says they were altogether four in the office. He says they put their firearms where they used to keep them and refused to have them locked in. A3 had said in getting out of the MCCO they were to. report to his men at the gate as to where they were going and what for. He says he had then seen people standing in groups except A3 whom he had seen before. The others in groups were in operational uniform. He says he identified some policemen namely: Chaole, Tonkha and at the gate where they sought permission to go out he saw A1 near the charge office armoury where vehicles are impounded. He says he was not wearing a uniform or carrying a firearm but was merely standing and it was about 6.00 a.m.


111


just about the end of his shift. He had seen another group near Makoanyane square below the road going past the charge office. He says he saw a huge gun, a GP and G mounted facing R.C.T.S. and other offices. The witness says they left at 6.00 a.m. to fetch people to relieve them and they had said they were going to hand over vehicles to those who were going to relieve them. The witness says the police officer in charge that night was P.W.5 with A3 having just come in. He says most of the men came from P.T.C. and at the gate A3 was in charge. He says he saw Sgt. Makateng whom he saw late in the morning and he was in operational uniform like the others near a combi written 'Police and Community Relations'. He says he knows A4 before court who was near Chaole and others mentioned. A4 was armed with Ml6 rifle.


Cross-examined by Mr. Maieane the witness disagrees that at 6.00 a.m. A1 was not at the MCCO but came after the shooting.


Cross-examined by Ms. Mahase the witness says at the time he spoke to A3 who explained how it was he was at the MCCO, A3 was normal, afterall he is a man of affairs. He says A3 could not be happy considering he was speaking of something so serious. He says A3 was firm. He says when they had said they are not locking their firearms in the safe A3 had understood for he knew their type of work. That A3 came to the MCCO at 5.30 a.m. he says it could well be that their watches were different and in any event he was drowsy. That A3 denies he said arrests might have to be effected the witness says this is what he said. Concerning A4 the witness says these events happened a long time ago and it is difficult to follow the sequence. He agrees passage of time might result in loss of memory. He says he was ordered to make a report and shown the report he says it is his. That in the report Tpr. Chaole is normally called 'teacher' he says that is why he told the court he is liable to


112


forget.


The matter was on 19 May, 2000 postponed to 5 - 6 June, 2000.


On 05.06.2000 the crown calls P.W.14 Assistant Commissioner John T. Telukhunoana who sworn states he is Assistant Commissioner in the RLPS and in

1995 he was a major stationed in the technical department of the RLMP as a firearm examiner. In the field of firearm examination he had been first trained as Laboratory Examiner for 3 years and the 3rd year was at Dublin College of Technology and then with Arrows in Police Science Laboratory and the training had commenced in 1995. He says he has been practising as firearm examiner from 1985 - Jan. 1999 and his duties include examination of firearms and giving evidence in Lesotho courts. He says he has been trained in microscopic and photomicrography and restoration of obliterated numbers on metal. He says exhibits were brought to him for examination and he had prepared a report of his examination while facts were fresh in his mind. He says he has the report and reads the report dated 22 March, 1996 and marked Exh. "F". He says 21 bullets were fired from an M16 rifle and the other cartridges he cannot say from which rifle they were fired. As for 9mm calibre bullets, these were fired from a Beretta pistol. He says an M16 rifle is a military weapon and has no civilian application in that this is not usual for it is to be used except as a weapon of war. He says to discharge an M16 rifle one has to place a loaded magazine inside the weapon and secondly to place first round in the chamber to cock the weapon and it is by pulling back the bolt of the weapon and when the bolt relieves to its position, it drives the top cartridge into position. The next step is to select whether to use the weapon singly or rapid or on automatic. A liver is used to select whether to fire rapid or automatic this being what is normally called the safety pin. The last step is to take an aim at the intended target by pulling the


113


trigger. The witness says as to shooting it depends on individual speed for some take 2 -3 seconds or less. He says one may choose to load first for if not loaded it takes a longer time. There are, according to the witness, three safety positions of the lever i.e. safe position for rapid and automatic fire. He says single or rapid and automatic are different. He says when the weapon is on safe if you pull the trigger it won't shoot; on the other hand, if it is on single, each time you pull the trigger a shot is tired. If the weapon is on automatic, when you pull the trigger it is a hail of bullets until you remove the hand from the trigger. The pistol Parabellum which fired three cartridges the same steps have to be followed in order to shoot. He says in cocking there is a mechanism much as in a pistol it is called breach much as one still has to pull the weapon. He says the 9 mm Parabellum referred to can only fire singly. He says firing singly is the correct terminology. The witness says exhibits were given him by Major Sekatle who is late. The witness says at present he is stationed in Mohale's Hoek. He says in June, 1999 he was stationed in Leribe being the time he left the forensic department.


The witness has testified in October, 1995 he was A1's superior who then worked at the LMPS criminal record room comprising fingerprints and photographing or photography. He says A1 is a photographic expert. On 30.10.95 he had attended a meeting at police headquarters with A1 and P.W.1 though he does not quite remember the date. The meeting had been convened by Col. Nalede C.I.D. deputy and present in the meeting were Lt. Col. Penane, P.W.1, 2nd Lt. Molise (A1) and himself. He says he attended the meeting as A1's superior. In the meeting Col. Nalede had explained there was a dispute between A' and P.W.1 and A1 and his group had lodged a complaint with the management necessitating Col. Nalede to resolve the dispute. After Col. Nalede explained Penane had said he had made a written complaint to the police management complaining about the conduct


114


of A1 and his group towards him and his police officers and the issue to date had not been addressed and had asked the Col. to attend to the matter, Lt. Col. Penane had not been prepared to continue with the meeting saying he would attend the meeting if his complaint was addressed first. As for A1's nature of complaint, the witness says he had not explained to him what his complaint was. He had however had some discussion with A1 who said there was an anonymous letter found at police headquarters and the letter had been sent to his office so as to find out if anything could be done. A1 had said he could not remember the contents of the note as he had not seen it.


The following day 31.10.95 this witness says he had seen A1 while travelling along constitution road near the charge office being the road he used going to work and he had parked his vehicle at the MCCO at about 7.00 a.m. and had gone to the bank to an automatic telly machine and on his return he had seen A1 entering the MCCO. He says he tried to call him but he had ignored him. A1 had gone into a combi used by Police Community Relations and drove off i.e.. the combi was driven away with him. He says the driver of the combi was Sgt. Makateng. He says the purpose for calling A1 was that he was dressed in an unusual manner. The witness says in attending normal duties A1 dressed in civilian clothing but then there he was in operational uniform and he had wanted to know why he was wearing the uniform. The witness says when A1 ignored his call, he must have heard him. He says at the MCCO he saw A3 with whom he chattered for some time. He says when he went to bank A3 had jokingly said he was to bring him some money but then this was no more than a friendly gesture or talk. The witness says when he returned he had asked A3 what they were doing there and he had said what they were doing there did not concern him. The witness says then he was talking to A1 in a friendly manner. He says he had seen A1 at the MCCO at 7.15 - 7.40 a.m. He says his relationship


115


with A1 did no show there were differences between them and he had nothing against him.


The witness says he has said the M16 has a missing spring and if the spring is properly handled the firearm would still shoot; he says by this he means if the weapon is dismantled the spring can be returned to its position and the normal handling and firing of the weapon would not be compromised by the missing spring. The witness says as far as he is concerned, the proper terminology is single and automatic fire. The witness says he examined all the weapons brought to him. As for 3 (4) (being a 1.9 mm Parabellum Beretta pistol S/no. C 452462), the witness says it did not have the capacity to fire automatically. He says the shells he sees on B13 are 4 cases first on the extreme left, 2nd on extreme right and 2 near the centre of the picture. He says the 1st is clear in focus and from the posture it is 5.56 mm x 45 mm cartridge; he says this could have been fired from a rifle and an Ml6 rifle; he says the 2nd cartridge case is not in focus but looks like the first. The two in the centre are not in focus and he is unable to give an opinion as to their calibre though the one near the deceased's ear appears life for at the head of the cartridge there are different colours and one can see the head of the cartridge which has lead though he can't give an opinion in this regard. The witness says he can't make an opinion as to the second one either or can he say whether it's life or dead. He says the ones out of focus he doesn't think they were fired from a pistol. He had examined rifles 3 (1), (2) and 3 (15). He says he can't say whether these came from Ml6 or AK 47.


He says he has said on the morning of 31.10.95 he saw A1 between 7.15 a.m. - 7.40 a.m.


Cross-examined by Mr. Maieane that at the date and time he had not seen A1


116


the witness says he saw him. Put to him there was no communication between him and A1 the witness says he saw him. Put to him there was no communication between him and A1 nor did A1 refuse to speak to him, the witness says he ignored him. The witness says Col. Nalede convened a meeting because A1 had a complaint against P.W.1. He says A' had said he did not know what for he was called. The witness says although as said none of the two had reported the matters information having come from personnel at police headquarters, Col. Nalede had nevertheless received instructions from Col. Mpopo to settle the matter between A1 and P.W.1 the latter having claimed A1 shot at his house. The witness says he cannot comment about what he does not know.


Cross-examined by Ms. Mahase the witness says he has said he cannot identify use of cases on rifles of the same calibre that is to say, whether cases came from an Ml6 or AK 47 rifle. He says he can't say whether cases came from an M16 for the cases came from 5.56 mm x 45 mm which includes an M16 rifle. He says these can be fired from M16, Gallil and R4 rifle. He says the cases could only have been fired from an M16 rifle. Having examined the 2 x M16 rifles given him, the witness says he was not able to determine whether the cases were fired from any of the rifles. He says the clarity of marks on cartridge can be affected by the amount of powder inside the cartridge which generates the amount of energy able to affect the depth of the marks which are left by the bullet's pressure in the cartridge; he says they can only be affected by the dirt of the deposit in the weapon. The witness says he is not excluding the fact that the cases could have come from these weapons. As for 3(15), he says the firing mechanism cannot be affected by the missing pin and can fire properly without the pin.


117


Re-examined he says bullets from an Ml6, Gallil and R4 can be fired from an AK 47. He says an AK 47 fires 7.62 mm x 49 mm - he says this is unique to an AK47 rifle; he says S.L.R. also fires 7.62 mm x51 mm. As for 3(8), he says he did not compare for the rot could have destroyed the wood. As for B12, if cartridges on it and B13 are the same, he can safely say it was a 5.56 mm x 45 mm cartridge fire. The witness says as for the cartridge in the chamber, if you want to make it safe, take out the magazine and the cartridge in the chamber will fail down.


No questions by Assessor.


By Court: The witness says by looking at the wound, unless he has attended postmortem, one cannot tell with what calibre gun the wound is caused. He says he does not know anything about rapid. Single shot comes from all the weapons depending on the mechanism of the weapon. The witness says rifles and pistols can fire single shots.


Arising by Mr. Suhr. the witness says any weapon can fire a single shot. He says basically there are 3 mechanisms for shooting; he says lateral single fire weapon is where a round is manually loaded after every shot; 2nd, semi-automatic fire the difference being that a round is loaded manually every time you shoot whereas in the second one where there is a magazine only the first shot is manually loaded whereas the others are chambered though in either you have to pull the trigger. In the automatic he says you fire until the chamber is empty. He says even the so-called rapid remains single fire.


P.W.15 Assistant Commissioner Thabo Letsaba sworn has stated he is Assistant Commissioner of Police, Lesotho. He sees identification 1 Smith and


118


Wetson serial A550634. He says he knows the weapon being from Inspector Maloisane. He had received information that the weapon was in his custody and he had ordered him to bring it to him and he had done so. He had given an explanation regarding it. Maloisane had brought the weapon to him on 24 January, 1997 if he recalls well when then he was head of the C.I.D., Lesotho. He says the pistol had been handed to the late L/Sgt. Senekane who had said the pistol had been used by the late Lekhooe and A1 had asked Maloisane (P.W.9) to keep it. As to whether it was proper for a senior officer to order a junior officer to keep a weapon, the witness says it was proper for A1 to have handed the weapon over to his senior -especially it was for duty purposes.


No cross-examination by either Mr. Maieane or Ms. Mahase and the Assessor has no questions.


Mr. Suhr through the court to the witness: the witness says he took the pistol in his possession and has been so until the time of his handing it in as an exhibit. The witness says he hands in the pistol as an exhibit - marked Exhibit 1.


P.W.16 Inspector Seturumane sworn states he is stationed at the police armoury and has brought to court a register kept there. He says the register is Firearm Issuing Register being firearms issued to Lesotho Mounted Police stationed at P.T.C. He says he sees the issue dated 01.12.94 to Sgt. Lekhooe and the register has details as reflected on the register. He says L/Sgt. Lekhooe was on 01.12.94 issued with an M16 rifle serial No. 9502170 and he was given the gun by Sakoane with 60 rounds by the issuing officer Sakoane. He says it does not appear that the gun was returned.


119


Following the date 27.09.95 he says it appears the entry has no date though rank, serial no. and type of gun have been properly filled; there is also no signature by the issuing officer and receiving office only FOR RECORD in capital letters appearing. He says it does not seem rounds were issued and whether the gun was returned except the entry: 'Taken by Major Sekatle 26.02.96'. The witness says it would appear Mr. Sakoane issued Major Sekatle with the gun serial no.950310 signed for by Major Sekatle. He says the exhibit is a current register as the Register is still in use and he says the last copy is now rectified. He says the 3 copies are true copies of the Register.


The defence having no objection Mr. Suir is allowed to hand in the copies which are marked Exh. "G"collectively.


No cross-examination by Mr. Maieane.


Cross-examined by Ms. Mahase the witness says as for the entry at the end of the 2nd page, he has said the entry is not normal because it has no date. He says at the time of the entry he worked with Lt. Sakoane and the entry is by him. He says Lt. Sakoane is better qualified to say what was happening. He says the entry was not filled in as it should normally have been the case. He also says according to the entry of 26.02.96 it would seem the gun was received by Major Sekatle for the gun was given him by Lt. Sakoane. The serial No. 9500310 according to the record it does not appear A5 received the gun from a particular person nor is he able to say Major Sekatle received it from a particular person.


Concerning the writing, it is that of Superintendent Sakoane with whom he worked. He says there can be human errors but one is expected to fill in the


120


columns. He says it is not clear who issued the gun and received it. The witness says at p.3 the issue was to Lt. Sakoane and the recipient was Major Sekatle. The witness says according to the entry, he can't say whether Mafeto (A5) received the gun for he did not sign for it. As for Major Sekatle, he was issued with the gun and signed for it much as it does not seem it was returned for it was not signed for on returning it. The witness says he sees the entry of 01.12.96 when the gun was issued to L/Sgt. Lekhooe plus 60 rounds. He says he is aware L/Sgt. Lekhooe was issued the firearm before events of 31.10.95 and gun had not been returned. He agrees the gun was in Lekhooe's possession from 01.12.94 - 31.10.95 and it was usual for police to hold firearms as he did except on being on leave when it has to be returned for issue to someone else. The witness says there is nothing wrong holding a gun when one is on duty.


Re-examined the witness says Supt. Sakoane is now at the MCCO.


By the Assessor the witness says 'for the record,' it was written and inserted thereafter.

P.W.17 Sgt. Khotso Raphael Ntili sworn states he is a member of the L.M.P.S. and a Sgt. He says he is a police officer in the armoury. He says he sees firearms before court. He says he knows the weapons for they have been in his possession given him by Major Sekatle. He understands he has since died. He says he sees the gun an M16 rifle serial no, 9502170. The witness says he hands it in as an exhibit.


The defence has an objection to the witness handing in the exhibit in that only an investigating officer or an investigation officer who worked with the team can


121


hand in the exhibit and the witness is not such a person. The defence say P.W.3 Inspector Mokhesi is part of such a team. Mr. Suhr. has said the witness has said he was in custody of the exhibit and there is no reason why he cannot hand in the exhibit.


Court disallows the objection and the witness is allowed to hand in the exhibit. The witness hands in the exhibit and it is marked Exh.2. The exhibit is labelled L/Sgt. Lekhooe, M16 serial no.9502170 without magazine. He says he also sees the rifle M16 rifle no.9500310 labelled Tpr. Mafeto and wishes to hand it in as an exhibit and it is marked Exh. 3. He sees the Parabellum Beretta pistol serial no. C452462 on the label inscribed 9 mm Beretta auto pistol and the other side RCI 183/10/95 station, Maseru and he hands it in as an exhibit marked Exh 4. He says he sees the gun an AK 47 serial no. ZL10080 RCI 183/10/95 station: Maseru. He says he hands it in as an exhibit and it is marked Exh 5. Also the gun 9 mm Parabellum Browning serial no rubbed off. Cpt. Mokolatsie RCI 183/10/95 he says he hands it in as an exhibit and it is marked Exh.6. He says he sees the packet containing bullets being AK 47 and 9 mm life bullets - there's no label and no tag; there are 27 rounds of AK 47 and 8 x 9 mm parabellum. He hands them in as an exhibit - Exh. 7 collectively. He sees the packet not knowing what it contains and labelled exhibit RCI 183/10/95 Maseru Station, Charge; Murder, the other side being 6 x lead fragments of bullets inside an envelope and he hands them in as an exhibit- Exh 8 collectively. He sees the packet containing 23 x shells of M16 - RCI 183/10/95 station: Maseru - Charge; Murder; contents of envelope containing 23 shells of 5.56 mm from an M16 rifles and many other rifles inscribed 23 shells x M16 RCI 183/10/95 Station: Maseru; Charge: Murder. He says he sees the envelope labelled RCI 183/10/95 Station Maseru - Charge: Murder 9 mm round lx 5 x 56; on the big envelope is 2 rounds ammunition 1 bullet x 5.56 and 1 x 9 mm


122


Parabellum - they are life bullets. He says he hands them in and are marked Exh. 10 collectively. He sees the envelope inscribed RCI 183/10/95 Station: Maseru -Charge: Murder inscribed 1 x round AK 47. Contents: 1 x AK 47 life round. He hands it in as an exhibit - Exh. 11. Also this packet RCI 183/10/95 station: Maseru Charge: Murder inscribed 35 shells x 9 mm containing 3 x 9 mm cartridge cases. He says he hands them in as exhibits. Exh 12 collectively. He sees the label RCI 183/10/95 Station: Maseru - Charge: Murder; dead bullet attached to a wooden tile. Contents : a plank, a plastic containing bullet fragment. He says he hands them in Exh 13 collectively. He sees the label with nothing attached - is RBI 183/10/95 Station: Maseru - Charge: Murder. On the one side is written Major Ntoi no. C51382Z. He says he does not know what the labels say for they were not written but was together with other exhibits. He says he hands it in as an exhibit - Exh. 14. He says the label reads RBI 183/10/95 Station Maseru - Charge: Murder, and the other side is a Browning 9 mm No. 8T7051. He says he hands it in as an exhibit -Exh. I. He says RBI 183/10/95 was written by him on 19/06/96 Item 1, C4526ZP Beretta pistol: 9mm Parabellum x 1 magazine Item 2: Browning Pistol calibre x 9 mm Parabellum 1 x magazine. Item 3; 2L10080. AK 47 rifles 1 x magazine x 27 rounds. Item 4 : M16 rifle serial No. 9502170 plus sling. Item 5: M16 rifle serial no. 9D00310 plus 1 x magazine all handed in by Major Sekatle for safe keeping. He says he hands them in as exhibits - Exh. J collectively. As for the Beretta exh. 4 he says he does not recall this to be a government issue. He says government issues are Browning, Smith Wetson and Beretta but Exh. 4 Beretta is not a government issue for it does not appear in the records.


Cross-examined by Mr. Maieane the witness says he is an armourer who lends and issues firearms to police if ordered, to buy arms and ammunition if so ordered, to keep private weapons if so ordered and exhibits and any other guns he


123


may be ordered to keep. To keep records and government property like guns. He says he also keeps exhibits to be exhibited before courts of law. He says he has not been called to testify in murder and attempted murder charges. He says it is safe to keep exhibits he does not know whence they come and what they did as they were left with him by Major Sekatle. He says he has handed in tags in conjunction with firearms and the last tag was written by himself being summary of the property collectively.


Cross-examined by Ms. Mahase the witness says he has said he keeps court exhibits if so ordered. He says sometimes he is told they will be exhibits and at other times he is not told. He says Major Sekatle merely asked him to keep the exhibits. He says in his officer he is not the only one who keeps the exhibits. He says on 19.06.96 he compiled a list of items handed over to him. He says he had not been told of where they had been kept before and he did not ask. He says when he compiled the list Major Sekatle had only read them to him. He says at the time he handed in tags he mentioned magazines. He agrees in handing in guns he said nothing about magazines on account of a magazines being part of a gun. He agrees in his evidence he separated guns from magazines. He says magazines were separated from guns for safe keeping. He says he has come to court merely to hand in Sekatle's guns and ammunition. He says he was not handed guns described on the tags. He says some tags came as they are with numbers. He says he notices some of these for the first time now for Major Sekatle had not shown them to him when lie gave them to him. Re-examined the witness says it's the last exhibit which has his writing.


No questions by Assessor.


124


By Court: He says he wrote the last exhibit J. He wrote serial numbers and ammunition which Major Sekatle gave him. He says Major Sekatle would take out a gun from the bag, give him a serial no. and he would in turn write it down. He says tags he has said have nothing are those without guns.


Arising by Mr. Maieane the witness says other than keeping and writing information read to him by Major Sekatle, he had no dealing with firearms. He says he was seeing some of the tags for the first time here in court.


By Ms. Mahase he says he wrote the list as Major Sekatle read to him. He says he did not ensure or made a checklist.


P.W.18 Superintendent Sakoane sworn states in 1995 he was at the P.T.C. He says the register before him is the firearm register he maintained. He also sees the entry dated 01.12.94 which is names, ranks and guns issued with serial nos. Exh. G. He says he was the issuing officer and the signature thereon is his. He issued 60 rounds and the rifle appears unreturned. He says he also sees the entry regarding Mafeto (A5) and the writing thereon is his. He says the entry is not the same as the previous one. He says he does not recall what was happening. He also sees the writing regarding "taken by Major Sekatle re: 24/07/96' and date of 26/02/96 that the M16 was taken by Major Sekatle - he agrees the writing thereon is his. He says he can't say where, according to the record, the M16 was given Mafeto (A5).


Cross-examined by Mr. Maieane, he says he had worked at the P.T.C. before. He says he is familiar with arms and ammunition operation. Counsel refer to p. 13, Exh B being bullets and exhibits before court - Exh. 9 & 11. He says he sees the shells around Lekhooe on B.13. He says as an instructor at P.T.C. he can


125


distinguish shells between M16 and AK 47. He says he sees the 5 shells one on the right side of deceased and 4 on the left side of deceased's head. He says on the photograph he cannot distinguish them nor can he say from which rifle they come. He says they seem dead. Looking at them he says he can't say they are the same calibre for they are of different calibre.


Cross-examined by Ms. Mahase he says he can't say when the entry Mafeto was made though the entry was made by him. He says as for the date 27/09/95, this could be an omission. He says he is not sure when Mafeto was tilled in. He says it's not wrong for him to say he does not know when the entry was made. He agrees he was issuing officer along with P.W 17. He says he was issuing officer in charge of the register. He says the last writing is that of Inspector Seturumane. It can happen for an entry to be made by both of them. The witness says he is not confused by the entry. As for the entry made by him, he says he cannot comment on it. He says the entry is not normal for there are omissions i.e. date, signature of recipient and issuing officer. He says the entry is nevertheless valid. He says it's valid because the entry shows the person who took the property. He says he asks the court to take into account the serial no. and gun calibre. He says he wants the court to believe the gun was taken by Mafeto even though Mafeto has not signed for the gun and the issuing officer has not signed either. He says the entry is valid because Major Sekatle took the gun on 26/07/96. He says the register shows Mafeto took the gun. He says the gun cannot be taken by two people at the same time. He says the gun was issued to Mafeto because under the column issued is written Mafeto. He says as Mafeto has not signed for the gun this is an omission. He says he wrote 'for record' showing the gun was then out of the armoury. He says Mafeto did not sign that he took the gun having regard to the fact that there is no date as to when Mafeto was given the gun or received it. He says the statement


126


was made by him and the report supports his evidence that the gun was given Major Sekatle. He says he has also said that the gun was issued Tpr. Mafeto and that he brought it back to the armoury owing to a defect he does not remember. He says this is his handwriting and he signed for the gun. He reads the report to the effect that Tpr. Mafeto owing to a defect it was taken by Major Sekatle. He says Mafeto brought the gun back to the armoury and he doesn't remember when he brought it back. He says if the gun is returned he has to sign that it is returned. He says it seems there was some negligence in the Register. He agrees the gun went to the armoury owing to a defect. He says he is not sure the gun was returned to the armoury in June, 1995 and he can't deny that it was not returned.


Re-examined, he says the last date on the register is 27.09.95 and the next date is 11.10.95 he says the entry was made between 27.09.95 and 11.10.95 though he does not remember the date well. He says 'for the record' is his writing meaning it can be referred to the record. He says Tpr. Mafeto returned the M16 in June, 1995. The witness agrees the gun stayed in the armoury after June, 1995. The witness also agrees when he made the entry the gun was not with Mafeto but in the armoury and it would seem it was already in the armoury.


By consent of the defence the crown has handed in postmortem reports dated 02.11.95 relating to the late Penane; another dated 02.11.95 in respect of the late Chabeli and the 3rd one dated 08.11.95 relating to the late Lekhooe. Postmortem reports read into the machine and marked Exhs. "K", "L" and "K" respectively.


Mr. Suhr for the crown says he is closing his case.


127


The court reminds Mr. Suhr that although he says he is closing his case it would seem the closure would be premature in view of the fact that results of the last inspection-in-loco dated 27 April, 2000 were not typed or read the reason being that it was said there would be a demonstration of the GPMG firearm by Major

Raleaka.


Mr. Suhr now says the demonstration is not necessary because P.W.2 has conceded the gun was not pointed at the building they occupied; the defence subscribes to this view and accordingly the court rules demonstration of the GPMG will not be necessary.


The court has also ruled that results of the Inspection-in-loco of 27 April, 2000 however much there may be difference of opinion on the procedure the draft be typed and read. Results of the Inspection in loco are read without comments from counsel for the crown or defence and marked annexure "C". The court has cautioned that strictly speaking Inspection-in-loco is a matter for the court alone, any questions relating to the inspection being raised in court though in the present instances the court had removed to the MCCO for purposes of the inspection and demonstration.


Mr. Maieane says the court did remove from its seating to the MCCO and did the same thing on subsequent occasions and that any examination done at the inspection-in-loco be treated as if it was done in court.


Ms. Mahase aligns herself with the submission.


Mr. Suhr has re-called P.W.4 who has said he is still under oath and confirms


8


Annexure "C"


Further inspection-in-loco: 27.4.200 at 2.00 p.m.


Present: Crown Counsel Mr. Suhr, Accused's counsel Ms. Mahase (instead of Mr. Phoofolo) and Ms. Majeng-Mpopo (instead of Messrs Mosito and Maieane)

Pointing by P.W.4.


P.W.4 points to where he was seated. Next to him is Penane on a chair next to the door Fonane was seated. On his left is Mokeki, Mokolatsie and Chabeli. Mr. Ntoi is seated next to the bookrack looking over the window. The table was where it is though he cannot say whether it was placed as it is though there was movement on its front and back. From the witness the desk is 3.5m . There looked through the crevice and saw a policeman wearing an operational uniform. He did not see what he was carrying by the time P.W.2 and Lekhooe were interacting. He demonstrates with a curtain railing. He demonstrates how the nuzzle appeared and Fonane was right behind the door. He says the way he stands which is on the threshold is how the assailant was positioned and he pumped bullets into the office. He says he saw the nuzzle and not the assailant. He says he did not see the butt of the gun. He says shells could have fallen against the wall lying SE from the door and on the doorway. He says some bullets hit the western wall - he says the bullets hit the 2nd window on the facing west and the panes were shattered and have been repaired. He says the shells could also have fallen along the passage outside the door.


Cross-examined by Ms Mahase he says it depends on where the assailant


9


stood and would fall where he stood alongside him or behind him. He says he saw the nuzzle of the gun and can't say of certain where the assailant was standing. He says he believes the assailant was where he is standing being on the threshold of the door a little inside. If the assailant was on the doorstep he could have shot. As a policeman being 1.2m from the doorway he says he saw no such policeman. He says the door was only ajar-half-open when Lekhooe entered he says the door was 90% open. When everything had subsided the door was closed. He says he can't say who closed the door.


Cross-examined by Ms Majeng-Mpopo, He says when Lekhooe was talking to P.W.2 and turning towards Penane he was 2m from P.W.2. He says by the time Lekhooe spoke to P.W.2 he was holding the gun like i.e. port arms. He says in talking to his senior officer he should not hold his gun as port arms - he shows how he should have held the gun being at stand ease - he demonstrates and says it should have been at attention - shoulder arms. He says when Penane said: do you know the Penane you want, Lekhooe turned 2 steps about turn. When Lekhooe turned towards Penane he was holding his gun port arms as he had held it. Penane drew his pistol from his waist and tried to stand up but before he got upright Lekhooe shot Penane. He says when Penane was short he stumped against the seat on his left hand side and with his right hand shot and Lekhooe fell 1,7m from where Penane had stumped on the seat.


By Mr. Surh. The witness shows how the door was pushed further after the shooting, the door being pushed another 45%.


128


knowledge and belief.


Mr. Suhr has said he is closing the crown case. Court: Crown case.


During the progress of the crown case, the court reserved a number of questions of law to be decided, namely:


  1. who is a competent witness? Can a witness be excluded from giving evidence by reason of his statement not having been taken timeously?


    1. his statement having been taken belatedly in an effort to plug holes in crown case?


    1. by reason of his statement not having been taken and not having given evidence in other tribunals or courts regarding the subject matter of which he is now testifying?


When P.W.12 Insp. Mphatsoana was called by the crown to give evidence the defence had objected to this witness testifying on the grounds that he is not a competent witness. The grounds were primarily based on the fact that Insp. Mphatsoane's statement had not been taken immediately after the events of 31st October, 2000 but had been taken by Crown Counsel a day before he testified. The defence alleged the witness would never have been called but was called for the sole purpose of buttressing the weak testimony of P.W.10 Col. Moshoeshoe. Mr. Suhr for the crown has said although P.W.12's statement had not been taken earlier, since


129


crown witnesses and in particular P.W.1 had been mentioning him, it was necessary to call him.


As to competence of a witness, s.215 of the Criminal Procedure and Evidence Act, 1981 reads:


'Every person not expressly excluded by this Act from giving evidence is competent_______to give evidence in a criminal case in any court in Lesotho______."


While s.219 reads:


'No person appearing or proved to be afflicted with idiocy, lunacy, or incapacity or labouring under any imbecility of mind arising from intoxication or otherwise whereby he is deprived of the use of reason, shall be competent to give evidence while so afflicted or disabled.'


Present case as shown above has nothing to do with the statutory exclusions above and it was not necessary for this court to apply procedures to be adopted by the court in determining statutory competence of a witness. Since the law in its wisdom has defined the exclusions from testifying, I can think of no other disability precluding a witness from testifying for even late evidence coming, as it were, after the Crown has closed its case but before judgment, maybe and is often allowed depending on its merits. This is not a case where the prosecution has introduced new evidence after closing its case. P.W.12 was called during the progress of the prosecution case not so much to bolster the crown case but to give his side of the story by reason of having been present at Mabote Police station on 31 October, 1995. Indeed even when a witness has set in court during the progress of a trial, if he is called in evidence in the same case, the question of competence to give


130


evidence does not arise save the amount of weight to be attached to such evidence.


Accordingly, this court holds that P.W.12 Insp. Mphatsoana was property called as a crown witness.


Another objection was raised by the defence regarding a question asked by Mr. Suhr arising from questions put to the witness P.W.4 by the Court. Mr. Suhr had asked the witness what for Lt. Col. Penane was being arrested and the answer was 'I understood the arrest to be catching him for torture.' Asked whether this was lawful the witness had said it was unlawful whereupon Mr. Phoofolo had stood up objecting to the question in that it sought the witnesse's opinion and that accordingly both the question and answer were to be expunged for the record.


P.W.4 was not an investigating officer; knew nothing of the intended arrest of Lt. Col. Penane and that Penane was going to be arrested for torture was sheer guesswork for he could also be arrested to be murdered. It is not every arrest by the police that is legal and the arrest by junior officers of a senior officer unless sanctioned is no arrest at all. This court sustains the objection regarding the reason why Penane was going to be arrested and overrules the objection regarding whether the arrest was lawful.


During evidence in chief by P.W.2 Col. Ngatane, Mr. Phoofolo had objected that the witness cannot tender albums as exhibits for this can only by the person who took the photographs or in whose custody they are. Mr. Suhr has said photographs are not to be confused with documents for the question in relation to photographs is whether a witness can identify what's on the photograph and that in this context


131


it was different from putting a statement to a witness for in the event this would amount to hearsay. He says the course pursued is not at all prejudicial. In so far as official documents are concerned, sec.243 of the Criminal Procedure and Evidence Act, 1981 says any original document in the custody or under control of a public officer can be produced in criminal proceedings before any court upon the order of the Director of Public Prosecutions so that a public officer like the Prosecutor who has such an official document in his custody or control can have it produced before court as an exhibit. I have not found any particular section relating to production of photographs in the C.P. and E. Act above but it would seem a photograph in criminal proceedings is admissible without further identification if the photographer has acknowledged its accuracy. In this particular case though it is to be observed that Mr. Phoofolo raised the objection while P.W.2 was giving evidence and in acknowledgment of the objection the evidence of P.W.2 had been interrupted and P.W.3 who, along with the late Selebalo, had taken the photographs had been called to identify and hand in the albums. By interrupting P.W.2's evidence and calling P.W.3 to hand in the albums, Mr. Phoofolo's objection was answered.


In opening the defence case, Mr. Maieane had called P.W.1 Phakiso Robert Molise who stated his counsel had explained to him what his rights are and duly sworn had stated he is aware of charges preferred against him. He agrees testimony by crown witnesses had been led in his presence. He says he has heard the evidence which inculpates him and exculpates him though he heard the evidence as talking about him . Going straight into allegations against him, the witness says the allegations are unfounded and not based on fact especially that by P.W.1 that he (the witness) kidnapped P.W.1 who was then a War. Officer. He denies he locked P.W.1 in a cell at Mabote Police Station and also denies he had Mabote Police station keys. He says the allegations cannot be true for then he was not working at


132


Mabote Police Station and if he had the keys to the Police station there would have been evidence to the effect. He says there is no evidence he requested the keys from Mabote Police officers or committed robbery. The witness has testified on the evening of 31 October, 1995 he met P.W.1 at Mabote Police Station. He says on the morning of 31 October, 1995 at 03.00 a.m. in the morning he had received a call from Sgt. Senekane saying there were police officers at his home saying there was going to be a meeting at Maseru Charge Office and he had said he knew nothing about the meeting. The witness says at the time Senekane was a member of the Police Committee code named Codesa being a Police Crisis or Grievances Committee. According to the witness, Senekane was a co-ordinator of Maseru region while the accused was Chairman of the Committee. He had inquired from other committee members about such a meeting and amongst others he had called Tpr. Mohale who was vice-secretary of the committee. Though Mohale was unaware of the meeting they had decided to call all committee members; he says this was not unusual for once it comes to the notice of the committee that there is a crisis they normally meet to resolve the crisis or anything brought to their attention. They had agreed all members assemble at the MCCO as early as they could afford. The witness says what was unusual was the meeting to be held because his committee did not know about the meeting; their approach to intervene was, though, usual for the Crisis Committee. He says he had then called Sgt. Makateng who was one of the committee members to collect all committee members to Police headquarters. He had requested Makateng to do this because he had at his disposal a government vehicle. He had done so and at 00.5 hours in the morning he and the late Senekane had called him at police headquarters. Sgt. Senekane had said they had collected a substantial number of committee members and further said there was, already, some police officers at the MCCO who claimed to have come for a meeting. They had then agreed to sent some committee members to the MCCO to oversee and


133


ensure nothing went out of hand. As for the meeting at the MCCO at the time, he says they could not tell with whom the police were going to meet at the MCCO and theirs was to intervene in a meeting they were not aware of. He says he had learned some of the committee members were seen at the MCCO these being Sgt. Mosae (A3), L/Sgt. Mokapela (A7) and Tpr. Ramakhula (A4) in their capacity as committee members. He had been told this and had confirmed the story as true in that he as Chairman had authorised them to go to the MCCO.


The witness has testified at 00.70 in the morning Sgt. Makateng had come to his place of residence at the old Police Station next to police headquarters saying all committee members were at the police headquarters and had asked him (the witness) to take Makateng to his home at Khubetsoana so the latter could get ready for the meeting. On his way to Makateng's they'd gone via Mabote Police Station as Sgt. Makateng was going to leave a message to the effect that he would not report for duty. Sgt. Makateng then worked at Police Public Relations Department and as there was going to be a meeting he wanted to defer his matters to the following day. Arriving at Mabote Police station they had found P.W.1 War. Officer Ramoeletsi with a number of police officers but not more than ten (10) in number. Amongst them he remembered Liname working at Mabote Police Station.


The witness says he recalls where they left off yesterday and that other than him, L/Sgt Liname and the group with P.W.1 there was also Sgt. Mphatsoana who was talking to L/Sgt Lekhooe and at the time Maj. Moshoeshoe was going into Mabote Police station building he and had followed following Maj. Moshoeshoe and as he passed P.W.1 the latter said he wanted to see him (the witness) namely, in his office at Mabote Police station. He had asked P.W.1 what he meant and he had repeated he wanted to see him in his office. The witness says he scoffed at this for


134


P.W.1 knew he did not have an office at Mabote Police station. He says P.W.1 had followed him mumbling things he did not pay attention to. The witness says as he went towards Maj. Moshoeshoe's office through the corridor there was an open door and it happened one of the doors was a door cell and jokingly he had said: 'this is my office' and P.W.1 had gone in. People following P.W.1 had asked why he went into the cell with a police radio and as he was about to enter Maj. Moshoeshoe's office P.W.1 had thrown the radio at them. In Maj. Moshoeshoe's office he found the latter was still on the phone. Maj. Moshoeshoe had asked him what was happening to P.W.1 and he (the witness) had said he knew nothing about P.W.1. Maj. Moshoeshoe had said as he was not sure of what was happening he had called Col. Mpopo who had said he already knew about P.W.1's matter. He had then left Mabote Police station with Sgt. Makateng. He says this is all he is able to remember about his interaction with P.W.1 at Mabote Police station. He had then left Makateng at his home at Khubetsoana and had gone to police headquarters. He says at police headquarters he found other committee members inside police headquarters but outside. Among them was Sgt. Leuta (A2), Sgt. Mosae (A3), Tpr. Molapo, Tpr. 'Mota, Sgt. Ramakhula (A4) and others he could not recall. A3 and other committee members had told him all those at the MCCO had been called to the police headquarters under the instructions of the then Deputy Commissioner of Police Brig. Makoaba. He says his excursions at Mabote Police station were about 08.00 in the morning, he had also been told that one of the committee members L/Sgt Mafeto (A5) and Lekhooe and others had been sent by Deputy Commissioner Makoaba to get Col. Ngatane and Lt. Col. Penane to a meeting at Police headquarters. He says at the time he was being briefed Deputy Commissioner Makoaba had been told about police grievances and their presence - the reason the Deputy Commissioner had decided to call Col. Ngatane and Lt. Col. Penane to him. He had learned from the committee that Col. Ngatane and Lt. Col. Penane had been


135


called by the Deputy Commissioner but had not shown up - the reason the men were sent to call them. The witness has testified it was while he was being briefed at police headquarters that he heard the sound of guns and then it was about a minute or so after 8.00 a.m. The gunfire had come from the direction of the MCCO. He says they had become puzzled what was happening and it had been agreed A2 rush in the direction of the MCCO. A2 had gone there using police signal departmental vehicle which had just arrived driven by Sgt. Mapeshoane. Sgt. Leuta (A2) and other policemen had left in the vehicle. Sgt. Mosae (A3) had gone into Brig. Makoaba's compound to warn him of what they had just heard. The Brig, with other policemen had walked towards the MCCO. They had left for the MCCO almost simultaneously having about five (5) minutes start of each other.


The witness has testified when he got to the MCCO some of the police officers were in a position of reducing cover or as it were, target. He says the situation then was tense and it was difficult to say who was who. He says he was coming into the MCCO and cannot say how far he was from the other group headed in the same direction. He says his focus was to determine whence the gunfire emanated from without determining who was who. The witness says he took a pause at the MCCO but had noticed inside the MCCO there was free movement. He had seen 2nd Lt. Fonane emerge from the investigation office; they had met and he had asked what was happening and he had said he knew nothing save that he had heard gunfire he estimated to have come from Regipol's office and at any rate from the same building. He had espied Sgt. Leuta (A2) who was by the Charge office but outside. He had asked if he had found out what happened and he had said he found nothing. The witness says it was at this point in time when War. Officer Khoele, Sgt. Matlhole came delivering a message from Col. Ngatane to the effect that some police officers were injured and had to be taken to hospital. The witness says they


136


did not object but merely wanted to know what had happened. He says it was not specifically said where the incident occurred but had assumed it was in Col. Ngatane's office. War. Officer Khoele and Sgt. Matlhole had then left with the purpose of finding out from Col. Ngatane exactly what had happened.. They had not returned but shortly after they left another War. Officer Khoele the shift commander at the MCCO had arrived saying Brig. Makoaba had wanted to speak to me (the witness) by telephone. The witness says he had gone into the charge office and spoken to Brig. Makoaba who had said: 'He monna, setlokotsebe sane se Penane se se se thuntse Lekhooe o se a bile a shoele.' Translated (that rascal Penane has shot Lekhoeoe who is dead). He had further said he the witness was to cool down for he was on his way. He says the reason the Brig. asked him to cool down is because he could have known from some of the committee members that he had moved in the direction to find out what was happening. He says the Brig. arrived in about 15 minutes - an hour since the incident; he was in company of Col. Moiloa together with the Commandant at the P.T.C. Mr. Monyeke, they could have been more but did not remember others. They had then informed all police officers to go to police headquarters where they would be briefed as to what happened. They had left Police headquarters on being told by Brig. Makoaba together with other police officers that the Commissioner of Police would brief them at the Police Training College in the afternoon and the same afternoon the police within Maseru had gone to the Police Training College where the commissioner had told the police he did not figure how and what exactly happened though he had understood there were outstanding grievances within the police which he blamed on immediate officers under him for these grievances had not been brought to his attention. The Commissioner according to the witness had gone further to say on the scene in the office where the incident took place 23 shells of 5.56mm calibre and 3 x shells of 7.62mm calibre of A.K.47 rifle, 3 shells of 9mm and live rounds of A.k.47 rifle


137


were found in the room. The witness says the Commissioner was speaking off the cuff on a podium and can't recall whether he was reading from a paper. He says the Commissioner also mentioned an A.K.47 and an M16 rifle. The witness says Sgt. Senekane gave him a pistol which he had said he found from a vehicle used by Lekhooe. He had inquired from police officers whose firearm it was and nobody had acknowledged it as his. He had asked War. Officer Maloisane to keep the firearm in the safe for which he was responsible. He says the firearm was kept with him because he was responsible for the safe the purpose being to keep the firearm in the safest place while he made inquiries as to ownership. He says he was not successful until January or February, 1997 when checking on the armoury to determine whether it was not an official firearm, it appeared the firearm had been originally issued to the then War. Officer Ramoeletsi (P.W.1). He says this surprised him for it was never said Ramoeletsi's (P.W.1) firearm was missing. According to the witness, he had gone to the Deputy Commissioner of Police and made him aware of the firearm and his discoveries. He says at this time was the time when the police were complaining of the so-called MCCO incident or episode that it was not properly investigated. He says the police concern was legitimate for in its investigation the gun could not be left out of the investigation.


The witness now says he wishes to delf into events of 30 October, 1995. He says on this day the then Maj. Telukhunoana who was Major and his supervisor had said they had been called for a meeting with Lt. Col. Nalede who was then Divisional Commander on crime. He says despite his inquiries he had not been informed of the agenda. They had arrived at the Police headquarters for a meeting schedule for 16.30 hours. In the meeting Lt. Col. Nalede had stated he had been ordered by Assistant Commissioner operations Col. Mpopo to hold the meeting. He had said he could not recall who arrived first between himself and Maj.


138


Telukhunoana. There were also present Lt. Col. Penane and War. Officer Ramoeletsi (P.W.1). Lt. Col. Nalede had told them it had come to the attention of the management that War. Officer Ramoeletsi (P.W.1) went about saying that he (witness) fired at his house and his function was merely to ascertain if War. Officer Ramoeletsi (P.W.1) was able to substantiate the allegation and if he had to channel such information to the investigator of the case and not to bragg about it for otherwise this would amount to defamation of character. The Col. had further explained this had come to the notice of the police management in a meeting where a police officer came up with this. The Col. further explained he was aware neither the witness or P.W.1 had raised this though the matter was of concern at police headquarters. Lt. Col. Penane had turned saying they too had been complaining at the behaviour of some police at Police headquarters and he is not prepared to deal with the matter until their complaints had been addressed. On being asked to respond War. Officer Ramoeletsi (P.W.1) had aligned himself with what Col. Penane saying even though he cannot remember the exact words used by Telukhunoana, he had said something like there were suggestions that there were factions within the police namely those of the witness and P.W.1 and the meeting had been called because the witness had complained of P.W.l's faction. The witness testified he had not had any personal clash with P.W.1 nor with Lt. Col. Penane. He says it is not correct the meeting was called at his behest. The witness says he knows P.W.l's problems being a person devoid of telling the truth though this had not in any way affected the relationship between himself and P.W.1. He says at the end of his evidence he intended to hand in Lt. Col. Nalede's report. The witness says in the meeting he was not asked to say anything and the meeting had been closed without saying anything - a meeting that lasted for about 15 minutes when they dispersed to their different destinations. As for the gear he wore on 30 October, 1995, he says on this day he was in his civilian clothing though on 31


139


October, 1995 he was in operational uniform. He says he was then C.I.D. and the reason he was in operational uniform was because it was customary to wear operational uniform on attending committee meetings; according to him, manner of dress went with the arms he carried namely an M16 rifle, a 9mm pistol together with webbing. He says he is aware some witnesses say he wore an armoured vest. He says he did not have it and wore webbings though had he worn it there would have been nothing criminal. Clarifying on weapons, he says his was normal gear issued him for a long period ranging from 1990-91 and he moved around with these in his car or office and never parted with them until he was arrested. He says it was the usual outfit - as for the webbings, he says he made them himself. He repeats he did not have an armoured vest. He says he had teargas, grenades of different make. He says he has heard what Lebabo Mokeki (P.W.11) has said of him that he saw him (the witness) on the morning of 31 October, 1995 at the MCCO before the shooting though under cross-examination he had said he came on the scene after the shooting. He says the truth of the matter is he had come on the scene after the shooting. He says P.W.ll says he had seen him talking to some police officers he says the witness is wrong for he (the witness) does not deny he was near the armoury nor does he deny he spoke to some of the people save that this occurred after the shooting. The witness also refers to the evidence of P.W.2 who said he saw the witness after the shooting though P.W.2 had not said how long after the shooting he had seen the witness. He says it would be after 15 - 45 minutes when he was seen at precincts of the shooting. As for P.W.12's evidence who said he met the witness from the PTC and went to Mabote's with him, he says the fact of the matter is that this did not materialise. He says he found P.W.12 at Mabote Police station talking to Lekhooe. The witness says the fact of the matter is that P.W.12 and Lekhooe were like twin-brothers, staying in the same area at Mabote's, came to work together returned home together and it could not be true that Lekhooe had sent


140


Makateng to fetch P.W.12 at the P.T.C. Again according to the witness, P.W.12 says when Maj. Moshoeshoe arrived at Mabote Police station P.W.1 gave Maj. Moshoeshoe (P.W.10) compliments for if he (the witness) was with P.W.12 and P.W.1 he the witness as senior officer would have given such compliments. The truth was P.W.12 had seen him going to Mabote Police Station but what for he did not know. He says P.W.12 could also have seen Makateng entering.


The witness agrees P.W.5 saw him speaking on the telephone; he says this is correct for it was on the occasion of being called to speak to Brig. Makoaba.


As for P.W.8 Gen. Makoaba's (P.W.8) evidence, he says most of what he said about him is hearsay in that the witness thinks it is what ought to have happened. Concerning the telephone conversation he had with him, it was not true P.W.8 called him on telephone and told him either to cease fire or tell his men to cease fire. He says this is not true for even were he shooting, P.W.8 could not see that he (the witness) was shooting. He says if there was shooting P.W.8 could not have called him to speak to him. The witness says P.W.8 gave the court a wrong impression that he was there doing something for the truth of the matter is that P.W.8 had called him 45 minutes after the shooting. He says it is not true he said he would not cease fire until one of his men namely L/Sgt. Lekhooe had been released. He says this is not true for at the time P.W.8 called he was not aware of what had happened and who was who. He says P.W.8 had said to him 'the rascal' had killed Lekhooe.


Concerning P.W.15 Tpr. Kota who said he saw him (the witness) at the MCCO around 06.00 in the morning he says P.W.15 is mistaken for then he was not there as he had not left his residence. The witness says he has heard P.W.6 Sgt.


141


Matlhole's evidence. He says the witness was right in his evidence except where he says the witness wanted Lt. Col. Penane. He says the Deputy Commissioner knew well about his matter concerning Penane and the reason for wanting to mediate. He says in going on the scene after the shooting he went there like any police officer hearing or concerned with the firing. He says apart from being a policeman, when he went on the scene he did not go there by reason of being a committee member per se, he had gone there to find out what happened. He says the function of the committee ceased when the Deputy Commissioner had called them together to the police headquarters from the MCCO and that anything that happened thereafter was the responsibility of the Commissioner of Police and his Deputy so that even if the committee was around for mediation purposes, things were properly in the hands of the Commissioner of Police and his Deputy. He says for P.W.8 to say he (the witness) was commanding a certain group of officers was unfounded. He says though he may have been the most senior officer of the P.T.C. grouping he was not associated with the P.T.C. band and rapid response unit his association only stemming from the fact that he was Chairman of the Crisis or Grievances Committee. He says on the MCCO premises the most senior officer was P.W.2 and not himself and it was wrong for P.W.8 to stigmatise him. He says P.W.8 had not clarified the statement that he (the witness) was the most senior The witness had denied Maj. Telukhunoana's evidence that he saw him at the MCCO between 7.15 and 7.40 a.m. for the witness says at the time he was between Mabote and Khubetsoana. He says it's not true that when P.W.14 wanted to speak to him he ignored him for the fact of the matter is that he was not at the MCCO at the time and did not go there until after the shooting


The witness has testified he would like to move back to the kidnapping matter at Mabote's. He says in so far as this is concerned, proper people to account for


142


P.W.l's detention are Mabote police for even were he brought by police not based at Mabote, the people responsible for a detainee are those who receive him. He says the police receive a detainee without knowing where he comes from and what for he is detained. He says even if he had ordered P.W. 1 to go into the cell as he was not responsible at Mabote Police station, this cannot be his responsibility. Where a person is detained there has to be proper entries and this is the responsibility of the detaining person. He says P.W.1 and P.W.12 have implicated accused persons for their own good possibly to gain promotions at their expense. He says considering how P.W.1 claimed to be strong and powerful, he does not understand how he could have subjected himself to kidnapping. He says police are not easily intimidated on the sight of a firearm. He says whatever he did in his academic career it was before joining the police force and the expertise he had had been already acquired. He says his educational qualifications are a Certificate in elementary/primary education, a diploma in communication for national development and an AA degree in mass communication and it is in the field of mass communication that he got associated with radio production, television production, film making and photography namely, taking pictures, processing films and making prints which goes with 'photo journalism' which includes scenes of incidents or crime. He says against this background there is something he wishes to say about evidence tendered for the crown. He says he joined the civil service in 1980 when, then, he was doing an internship and transferred to the police force in 1988. He had gone through normal basic police training these being normal police duties which included discipline, basic laws, weapons and weapon handling. He says he was trained through weapon and accessory training and on a variety of side arms; 9mm pistols, revolvers. In rifles he trained in A.K. 47's, M16's, M65's which is same family as Ml6. Gallil or R4 and their family, beretta rifles which are more like M16. He was also trained in GP and G (General Purposes Machine Gun). He says


143


in particular he would like to comment of B13. He says his training is both academic and technical. He says he wishes to comment on shells on Lekhooe's left ear. He says the shells are A.K.47 whether live or dead. He says even with a naked eye the shells are shorter and thicker than others. As for P.W.14's evidence that the picture is not in focus, he says this does not detract from the fact that the pictures are the same. He says even should the picture be out of focus it nevertheless remains the same size. He agrees though that the picture is a little out of focus. He says if M16 shells are compared to these on Lekhooe's left, one can easily tell that they are different. He says it is the perspective that determines the size of the picture and this normally is the angle at which a picture is taken; effectively it depends on the distance at which a picture is taken lor the nearer it becomes larger and smaller as one draws away from the object. He says a shell closer to the lens is one on the right side of the deceased and the bullet was closer to the lens, the reason it is larger than others lying on the left though even by a naked eye they are larger than those on the left. He says these are larger being 7.62 mm which is the thickness of the bullet which goes with the hole on the rifle; he says these are for an A.K. 47 rifle. He says the shell on the right is 5.56mm from an M16. He says the one on the far left is indistinct as it is difficult to designate it. He says on B12 only one shell appears for the other one is hidden by deceased's shoulder. Looking at the bullet though, it is still larger and thicker and one can't speak of perspective for it is on the same line and he draws the conclusion that shells on B13 and B12 are not the same calibre. He says since the shells i.e. A.K.47 shells do not appear in the evidence of scene of crime officer (P.W.3) or her reports and evidence of P.W.14, he reaches the conclusion that scene of crime scene was closer on B13 though features on B12 and B13 would not change no matter the distance at which they were taken.


He says on B5 on the lefthand side it appears there was something there as

144


if somebody was seated on the chair for there is spill of blood supporting the proposition the scene was tempered with but not by the scene of crime officer. He says B14 shows bullet entry while B15 suggests the exit showing the deceased was shot at an angle from the rear side. He says the deceased was not shot frontally. He says the point of entry is the left armpit; he says it is the right armpit and it went through the left side on B15.


The witness now says he wishes to wind up on the so-called Codesa. The witness says three (3) months before the 31 October, 1995 incident, police were concerned about the proper way of addressing labour disputes and this had been brought about by senior police officers who consistently ordered junior ranks to act against certain parties in labour disputes. For example in July, 1995 Prison warders had embarked on a strike and there had been allegation that they had killed some of the officers and at some stage they had locked them up in deep freezers and senior officers would order to act against those people who had embarked on a strike without verifying whether the allegations 'were true or not. It is at this juncture that the police brought their concern to the police committee and the police committee had passed this to the senior management namely Brig. Makoaba and the Ass. Commissioner of Operations Col. Mpopo but nothing had come of it. Orders were given which could have led to direct confrontation between the police and prison warders on strike. This had become so serious that the response unit which at the time included military personnel had forced these to go back to their unit for they felt misused. After the prison warder strikes, was the teachers' strike in which teachers engaged in picketing and during this strike police were used to remove the striking teachers. Again the police raised their concern which was referred by the police committee to senior police management. The police committee had stressed if teachers were doing something wrong they were to be brought before courts of


145


if teachers were doing something wrong they were to be brought before courts of law to be dealt with accordingly instead of being assaulted. He says forced removals meant beating up teachers on whom electrical appliances were used. He says some women were burned with paraffin. The police committee had then recommended if the police management was reluctant to take teachers to court it was time for the Ministry of Education to approach courts of law to have the teachers removed. He says the police authorities were aware that picketing was based on the Labour Code. He says what the police committee was saying is: 'ha ba batle hore ba sebelisoe' or 'ba nyatsa hore mapolesa a khorohe joaloka poho e tsoeroeng ke seboba' translated meaning they don't want to be misused or to be the objects of police rushing like a bull bitted by a leech. The witness says what he understood by this was that the police should refrain from the old habits or attitude of being a law unto themselves. He says the suggestion met a lot of resistance within the police management who wanted to stick to their 1970 methods. He says in particular people who acted brutally against teachers were the late Lt. Col. Penane and War. Officer Ramoeletsi (P.W.1). According to the witness, the police committee realising their grievances were not taken seriously by the police management, they suggested the police management give this a special task force and here they were concerned with the two characters namely Lt. Col. Penane and War. Officer Ramoeletsi. Concerning P.W.1, they were saying he was a person who could hardly tell the truth and his person in the then crisis would worsen things. Against Penane they were saying it was somebody who could not handle the crisis as he was in nature aggressive and several instances had been quoted where instead of pacifying he enraged as for example, and incident where supporters of the present government in 1994 and at Quthing petitioned against the overthrow of the government by the King and Lt. Col. Penane had fired into the group of petitioners resulting in the killing of a pregnant woman. These complaints had been tabled


146


he did not take action, seemed sympathetic on account of his wife being a teacher and a direct victim of assaults referred to above. The witness says in the meetings Brig. Makoaba did not seem happy. He says during this period many incidents took place. One of this was that P.W.1 was attacked or somebody fired at his house. The Police Committee had suggested the matter be investigated thoroughly and in particular that Ramoeletsi's firearm or anybody suspected of wrong-doing be checked. P.W.1 was included because he could not be trusted the suspicion being that he could have shot. P.W.1 was also claiming there was a letter threatening him in connection with the strike.


The witness says he recollects where he left off when the court adjourned for lunch. He says another thing which P.W.14 spoke of was a letter in female toilet of the police headquarters. The letter had not been presented directly to police committee but was presented to police personnel at police headquarters. He says it came to his office to check on fingerprints if these could be uplifted. He understands fingerprints appeared on the document but the person in charge of the investigation was the late 2nd Lt. Selebalo who had reported to him he was not able to compare the fingerprints with anything for the police management was refusing to take fingerprints of suspects. He says it is not true that P.W.8 knew nothing of police grievances at the time. He says the note which claimed 'lona basali ting ba headquarters le kate Molise and Codesa ea lona hoba le tla ba hloka' within seven days translated: you women at Police headquarters, give security to Molise and your Codesa for you will lose them. He says these were some of the grievances which came from the police who felt there was need for a meeting on 31 October, 1995 though it was not specified who needed the meeting. He says earlier in his evidence he had indicated Sgt. Senekane who was co-ordinator within Maseru area had called him on the morning of the 31 October, 1995 and asked him if he knew


147


anything about the meeting for some police officers had awakened him saying there was going to be a meeting on the said morning. He says he had spoken to no one other than members of the committee he met and spoke to.


He says as Chairman of the Police Crisis Committee if anybody had grievances, according to plan, any member of the police would have warned him if a meeting was called for the 31 October, 1995. The witness has gone on to testify when the meeting of 30 October, 1995 failed there was no indication that another meeting would be called to resolve the impasse. He says he was surprised about such a meeting for the police were saying they no longer trusted the Police Crisis Committee as their grievances were not attended to - the reason they decided to meet the police management directly for their grievances to be attended to. He says being their duty they intervened and managed to pass their concern to the Deputy Commissioner of Police whose responsibility it was to make necessary arrangements for the meeting to be convened.


No questions by Ms. Mahase


Cross-examined by Mr. Suhr the witness had said his date of birth was 25 October 1957. He says AA degrees are awarded by American University Colleges. He says he attended the American school for three years but had done the course in two years time at Asnuntuck in Connecticut. He says he is fluent and comfortable in English though he cannot commit himself on knowledge of abstract concepts. He says the Police Crisis or Grievances Committee was formed during the strike of 1994 and he became chairman after the strike and has remained so. In October, 1995 there were 23 members in Maseru but altogether including district representatives there were 45 members. All accused except A6 were members of


148


representatives there were 45 members. All accused except A6 were members of the committee. Except himself and A7 accused were stationed at the P.T.C. He did not know where A7 was stationed. He says before the case started he was provided with crown witnesses' evidence though it is not in respect of all of them. He says P.W.12's evidence was given him a day before P.W.12 testified. Mr. Maieane rises saying it was the same day he testified. As for Sgt Ntili (P.W.17) he says he does not remember seeing his report and so is Ass. Commissioner Letsaba's and Inspector Seturumane's. Apart from these he had been given statements of the witnesses and had sufficient time to consult with his counsel and during the trial he was in physical proximity of his counsel even when he gave his evidence-in-chief and there is no suggestion there was poor communication between him and his counsel. During the police strike of 1994 he says then he did not take part and during the 1995 teacher's strike he was not involved either. He says he thinks the police management should have reconsidered its position; he says not that the management was necessarily wrong but that the trouble was the approach which the management adopted. He says he shared no opinion with Lt. Col. Penane because the latter knew nothing of these affairs. As to the killing of his father the suspect was Lesaoana and did not know his relationship with Lt.Col. Penane. He had not taken the matter any further. He thinks the investigator was Sgt. Molefi and had nothing to do with the investigation except assisting the investigator with information. He says in the investigation he had not suspected Lt. Col. Penane and does not see how he could suspect him though, of cause, it's an old matter and he is reluctant to commit himself. As for the meeting of 30 October attended by P.W.1, P.W.14 and Lt. Col. Nalede he says he remembers Col. Nalede saying he did not want them to fight and this was not challenged. He says Police Crisis Committee meetings were held on Wednesdays at 10.00 a.m. depending on the kind of meeting held for there were different meetings. He says Wednesday 10 o'clock meetings


149


meetings here in Maseru were liable to be held at anytime if needs be and several such meetings were held by the executive committee dealing with local matters. He says meetings were held at any time when the need arose. He says it was possible to hold meetings at 5.30 a.m. He says during the period he does not recall if any meeting was held at 5.30 a.m. though nothing stopped the committee holding such meetings. He says he can't say whether there were meetings held with the Commissioner of Police at 5.00 a.m. If the committee wanted to speak to the police management the Assistant Commissioner would in the event have to be informed or his persona] secretary and the meeting would have to be fixed by agreement. He says times of the meeting would have to be during working hours though they were not confined to this. On most occasions meetings were held during working hours though at times after working hours attended by the Commissioner of Police. He says the normal working hour is up to 4.30 p.m. He says he does not remember when, after working hours, meetings are held and there is nothing unusual holding a meeting at anytime. He says he does not recall whether the Commissioner of Police evidence that meetings were at 10.00 a.m. was challenged. He agrees an agenda accompanies notice of a meeting. He agrees the meeting of 31 October, 1995 was not authorised by him personally or the police committee or for that matter the Deputy Commissioner until he was told there was such a meeting. He says he was told by Sgt Senekane that there were police officers at his home saying there was going to be a meeting at the MCCO though time and venue had not been specified. Senekane stayed at the southern part of Maseru. He says he has said he was not aware of the meeting and had been called by other committee members. He says Senekane did not know anymore than he knew. He says he was surprised to receive a telephone call at 3.00 a.m. of a meeting. He says nobody suggested a meeting was going to be held at 3.00 a.m. He says if a meeting is going to be at 7.00 a.m. it is safer to be up at 3.00 a.m. and sees nothing wrong with this He says


150


the steps he took was to telephone other committee members to ascertain if they knew of the meeting and one of these was Tpr. Mohale and Sgt. Makateng whom he finally called and nobody knew about the meeting. Makateng was at Mabote Police Station and they had agreed with other committee members to meet immediately. After receiving a telephone call from Makateng early in the morning he had called other committee members and Makateng had been instructed to call other committee members. Makateng, according to the witness, was to bring other committee members to police headquarters though he did not understand the meeting to be held necessarily there. According to him, committee members were to go to Police headquarters. He knew there were committee members at the MCCO; he also says there was an indication there were some police officers at the MCCO saying they had gone for a meeting but he could not verify this. He says they had not gone there with members of the committee and had gone there on realising there were police at the MCCO. At the MCCO were A3 and A7 and he thinks A4. He says they had gone there as representatives of the Police Committee to mediate or intervene if needs be. The witness says others were there on their own accord and he does not know who they were. He says he does not know the objective of some police present at the MCCO. He says the duty of the Police Crisis Committee was to safeguard breach of discipline and goes on to say the presence of police at the MCCO concerned him and he intended to report to the Assistant Commissioner as to their identity and whence they came. Makateng had made a report to him about the grievances of the people and he was yet to find out from them when they met at the MCCO. He says his residence is next to the police headquarters and not far away from the MCCO and he had left his residence at about 7.00 a.m. He says he cannot dispute the fact that it takes 3 minutes from the police headquarters to the MCCO. The witness says Makateng was in a police public relations vehicle and this is the reason he gave him errands. He says


151


Makateng asked him to take him to his home from collecting committee members and then he was alone. He had left other committee members at police headquarters and Makateng at Khubetsoana north of Maseru. He had left with Makateng to drive the combi back for Makateng was going to spent some time with him and he was, afterall, a committee member. It was on the way he had gone round Mabote police station and he was in operational uniform, with 9mm pistol and an Ml6. He says he was not arming himself it was routine equipment especially for band and response unit. He says for committee meetings they wore operational uniform. He says he also said he had 3 type grenades though he had not taken these as he was attending a meeting - he says these were his issues and he was free to go anywhere with them. In uniform he carried the arms he has mentioned - he agrees the arms would attract attention. The witness has testified when he went to the meeting he had an M16 rifle, 9mm pistol, ammunition and hand grenades. Once one is issued with arms and ammunition it is safe to have these on oneself. He says he cannot part with them unless he finds a safe place for them. In civilian clothing he leaves them in a safe place but otherwise they are always in his car as he travels. He says police headquarters is a protected area though once there he would still ensure the car is locked. That uniform and firearms could only be worn if ordered to do so and the evidence was not challenged he says he does not remember Brig. Makoaba (P.W.8) saying this. He says he'd been asked on what occasion police wear operational uniform and says his weapons have to be within reach. He says he wore and armed himself as he did because it occurred to him he might be attacked. He says there is also always the prospect that he might have to attend to state duties. He says the armoured vest is not his issue. That it is P.T.C. issue he says he knows nothing for he has not worked with the response unit. He says there are several armoured vests. He says the type of webbing he had could easily be mistaken for an armoured vest. That he had not challenged the fact that he was armed with 2 x


152


9mm pistols he says he had only one 9mm pistol and as he had webbing it was impossible to arm himself with another extra pistol He says he went to Mabote Police Station because Sgt. Makateng wanted to leave a message there and it was sheer coincidence he had encountered P.W.1 and several other policemen there. He says there were about 11 policemen he could not identify and not all of them were in operational uniform nor can he say whether or not they were armed. L/Sgt. Lekhooe was not a member of the Police Crisis Committee. He says A5 and Lekhooe were not necessarily committee members. He says Lekhooe was not a committee member for committee members had been sent in the morning. He says that he saw P.W.1 at Mabote Police Station was sheer coincidence. He says it was strange for P.W.1 to have said he wanted to see him (the witness) in his office - he finds it totally irrational. He says P.W.1 was confused and because of his peculiar behaviour he had pointed at the cell and said: 'there's my office' and all he did was to get rid of P.W.1. P.W.1 had gone into the cell voluntarily and behind P.W.1 were 2-3 policemen and did not see anybody force P.W.1 into the cell. He says if a man throws a radio down there is nothing anybody can do save that he drew P.W.l0's attention to what P.W.1 did. He says he does not know what happened to the radio and P.W.10 had said he communicated with Col. Mpopo. He says he does not know what happened in the cell for that was not his business. The witness says he did not concern himself with what was taking place at Mabote Police Station for, afterall, senior police officers knew what was happening. He says P.W.l's evidence is different from his and that he pushed P.W.1 into the cell he denies. He says P.W.1 fabricates because he is a notorious liar. He says P.W.1 is a compulsive liar and lies even when unnecessary to do so. He says he agrees it was not put to P.W.1 that he is a habitual, compulsive liar and counsel may not have done so for the reason that this was not a defence. He says it was enough to say P.W.1 is not telling the truth. He says it was put to P.W.1 that his behaviour was irrational concerning


153


the act of throwing the radio. He denies that P.W.l0's evidence is critical In that he saw P.W.1 being pushed into the cell for P.W.10 did not say he pushed P.W.1 into the cell and it was unnecessary to question P.W.10 on this. He agrees P.W.l0's version is not consistent with his. He says P.W.12 was wrong to say he was in the combi with Makateng going to Mabote Police Station and at the police station was A2, A5 and A6. He says there was reason why in this respect P.W.12 was not cross-examined for the entire testimony was false. He says the fact that P.W.12 was not asked to make his report in time is because he merely came to court to close gaps on crown evidence and moreover, anything he said did not connect them with the charges. Put to him when it was suggested to P.W.1 that he went into the cell voluntarily P.W.1 had said he was not mad and that the version is improbable and fantastic, the witness says what he said is the correct story. He agrees that the fact that he made inquiries from P.W.10 was not put to P.W.10. He says he does not know Mosala. He says Senekane was co-ordinator of the Maseru branch of the police committee and was answerable to him. As far as 31 October, 1995 was concerned, the witness says there was never a meeting scheduled by the police committee. He agrees it would seem certain police took it upon themselves to have a meeting that morning. He says his committee acted merely to mediate and intervene and were not participants of the meeting. He says they went there to learn of the grievances and he did not know who these people complaining were. He says he did not know who were at the MCCO. He says Senekane was regional co­ordinator, Maseru. He says Senekane was not aware there was going to be meeting but having learned there was going to be one, had decided to mediate and intervene. He says there was no authorised police committee meeting on 31 October, 1995 and Senekane was not aware there would be such a meeting but had said police officers had awakened him saying there was going to be a meeting that morning though the venue had not been specified. He says Senekane having said this, it is the reason he


154

venue had not been specified. He says Senekane having said this, it is the reason he called other members to inquire whether there was such a meeting. He says theirs was a crisis committee and it would be negligent not to address or attend to 'members' aspirations and desires. He says he was surprised to be awoken at 3.00 a.m. in the morning. He says their efforts would not be successful until some committee members and those at the MCCO had been found. He says though the committee had not met fully the question of resolving to meet was attended. It was said people at the MCCO had grievances and these had before come to them and had been passed on to the Commissioner of Police. He says resolution of the problem was considered urgent afterall policemen were already gathering. He says things were getting out of hand for policemen were saying the committee was not attending to their grievances.


Mr. Suhr says the record confirms that it was put to A1 that in conversation over the telephone with Sgt. Senekane it had been agreed that the meeting be held at the MCCO. The court notes that this had been objected to but the record being played back confirmed what Mr. Suhr said. The witness goes on to say he does not deny that initially he had said what the machine recorded and says there is no contradiction for he corrected himself in evidence-in-chief to the effect that they talked about the MCCO as venue. He says from Mabote's he went to Makateng's home and from there to police headquarters though he had in the mean time authorised A3, A4 and A7 to go to the MCCO. He says at the MCCO he had met Sgt. Leuta (A2), Sgt. Mosae (A3), Tpr. Molapo and others. He says he had also said Sgt. Ramakhula (A4) was there. He says it was not specifically reported who were at the charge office. He says there was no spokesperson and he thought he spoke to Sgt. Mosae (A3) whom he can't say was spokesperson. He did not know who between A2 and A3 is senior. He agrees A3 was present and he says he agrees he


155


dispute it. He says notwithstanding that he does not recall well, A3 was not a spokesperson and could have spoken to him (ike anybody. He says A3 was merely reporting what they found at the MCCO namely, some policemen. He says there were many reports but the key report was that there were policemen at the MCCO demanding a meeting and they were saying the Deputy Commissioner had been informed and he had said they were to go to police headquarters while A5 and Lekhooe were to call Col. Ngatane and Lt. Col. Penane . He says with regard to calling the colonels, it was Sgt. Mosae (A3) who said this and it was at this juncture while they were deliberating that they heard gunfire at the MCCO. He says Sgt. Senekane was at police headquarters. He says after receiving the information the committee decided to meet, the reason why Senekane and others went to police headquarters. He says at this point in time the Deputy Commissioner of Police had not been informed of the meeting. He says it was not Sgt. Senekane's affair to fix the meeting for the Deputy Commissioner could himself be informed or through his personnel officer. He says that morning Senekane did not have a specific function and was present purely as a committee member. After it was agreed and Makateng had rounded up everybody, Senekane had gone to the police headquarters to answer a call to meet there. Had Senekane been asked what he wanted at the police headquarters, he would have said he did not know for the other police were at the MCCO. He says he does not know what Senekane would say asked why he was at the police headquarters. That P.W.8 had asked if they were being arrested Senekane had said no. He says Senekane had said nobody had given the order and evidence was not challenged and he does not know why on this score Senekane was not challenged for after all, he had since died. He says he went to tell P.W.8 that he heard gunfire and had arrived within 5 minutes of the shooting. He had found police having taken cover.


156


The witness says at the MCCO in Col. Ngatane's (P.W/2) office he does not know what happened there and what he knows is as a result of the telephone call from P.W.8. He says all he knew was gunfire and he had not said it came from Col. Ngatane's (P.W.2) office. He says it's 2nd Lt. Maname who said the gunfire came from Col. Ngatane's (P.W.2) office. He had before met Matlhole (P.W.6) and had said P.W.2 Col. Ngatane had said certain people had been injured. It was not known how the injuries had come about. As for Sgt. Matlhole (P.W.6) saying he said: 'O. Lord, Col. Penane has caused bloodshed, we only wanted to talk to them ___ ' he says he did not say this for what he said ___and though he does not remember, this is not what he said and specifically denies 'we only wanted to speak to him.1 That Matlhole said he said 'we only want Mr. Penane'. he says he did not say this.


He says the statements were challenged. He says he cannot remember the specific words but he denies "we" for he had no problem with Mr. Penane. He says there is no way he would know Penane was involved in the shooting for he was not there. He says it's impossible for him to have known what happened in Col. Ngatane's office. He had received a message from Brig. Makoaba that Lekhooe was killed. That P.W.8 denies what he said the witness says it was for his own good. The witness repeats it was for his own good. He says Lekhooe was mentioned only because he died instantly and the others were fatally wounded. That according to him Makoaba (P.W.8) is responsible for what happened at the MCCO he says the point he is making is that after the committee told him of the situation he should have liaisoned with proper people to ensure a meeting is held to resolve the situation. He says the committee had nothing to do with meeting of 30 October, 1995. He says he was not in P.W.8's office but Sgt. Senekane was and him and others are the ones who advised P.W.8. He says he has reason to believe that Sgt.


157


Senekane tabled all grievances before P.W.8 for the latter would not have sent Lekhooe to call Penane and Ngatane to go to police headquarters. He says he has reason to believe Sgt. Senekane apprised P.W.8 of all police complaints and he was refuting P.W.8's statement that he knew nothing of police grievances. He says he was taxed on this and he denied. He says P.W.8 was saying he knew nothing of grievances or a meeting that morning. P.W.8 had said this prior to incidents of 31 October, 1995. He says only grievances were put to P.W.8 without tabulating them. That he was asked to attend a grievances meeting at police headquarters, the witness says this is a question of semantics in Chat when the committee was apprised of the meeting it had been decided to convene the next meeting at police headquarters. Put to the witness that at no time during P.W.8's evidence was it ever said the police committee was intervening and that the operation (unknown policemen) was unknown to police elements of Codesa, he says the police committee did not know of police grievances that morning and if there was such a link the crown would have called such witnesses.


The witness says he has said he was not at the MCCO before shooting and Chat 3 witnesses have identified him as being there, he says he was not there for when he left his home he was in uniform and yet Kota says he was in plain clothes. He says he never said his uniform is always with him for he had said his weapons are always with him. As for P.W.1 I Mokeki that it was not suggested he was implicating him falsely he says Mokeki did not insist he saw him before the shooting incident. That Mokeki did not resile from his evidence the witness says he did not understand Mokeki to be firm. That P.W.14 Maj. Telukhunoana had seen him and called him but he had ignored him he says the fact is that he was not there and had not met him and as far as he is concerned this is a made up story for this is not in Telukhunoana's report and it would seem he invented it in court. As for Exh.l, he


158


says though he gave Maloisane (P.W.9) the firearm, he remained custodian though he had not claimed it on transfer to Leribe in that he wanted to locate the real owner. He says he was aware it was a government issue. He says there are no special marks showing arms issued to policemen all he wanted to do being to check whether the gun was issued to the police; he had made P.W.8 aware of this in January, 1997 when he set investigations in motion.


The witness says at the MCCO P.W.8 ordered them and not him personally to remove the men. He says this was the group which left police headquarters after hearing gunfire. He says as there were many senior police officers, he does not recall who but the message had been that they should go to police headquarters where they would be briefed. He says in the group were A2, A3 who arrived at the same time as the Commissioner. He says these are the men he remembers. He says he did not see A4, A5 and A7. That the order was made to him and complied with he says he did not take P.W.8 to direct the order to him but otherwise agrees the order was complied with. He says all the police officers present including himself complied with the order. He denies he was in command. He says they had not dispersed as a result of what happened P.W.8 had said he was in command by virtue of him being the most senior officer in the group and the fact that he was Chairman of the Police Crisis Committee. The witness disagrees he was in command for command goes with a job in hand. He says there was no job in hand though as a senior officer policemen would obey his command. That P.W.8's evidence to the effect that he gave him a command was not challenged, he says he cannot quite recall whether it was P.W.8 or some other officer that gave the command and is of the view it was not P.W.8 who gave the command. The witness says in any event the men went to Police headquarters. He says P.W.8 had informed the committee the Commissioner of Police would brief the police that afternoon. He says he


159


cannot say whether at police headquarters he had any dealings with P.W.8. He says it is not true that P.W.8 did not see him at police headquarters on 31 October, 1995 for he saw him. The witness says he cannot recall whether he was in P.W.8's office or in the hall. He says on his arrival at police headquarters P.W.8 had said the Commissioner of Police would make an address that afternoon. Committee members present were A2, A3 and A5, Tpr. Mohale, Tpr. 'Mota, Tpr. Molapo and others. He says in any event he had not seen A7. The witness says he sees B13. Beyond basic training in firearms the witness says he is not trained in ballistics. Whether he knows the technical description of an M16 the witness has said he would want to know what is meant by SRL whose length is 7.62mm x 50;an A.K.47 was 7.62mm x 39. He says P.W.14 was justified in not passing judgment on the two bullets on the hat as appears on album B13. Though he could not commit himself, it did not need an expert to say whose photo this was for looking at them he can tell that they are A.K.47 cartridges dead or live. He says he remembers M16 and A.K.47 bullets were exhibited and what was significantly different was colour and even those exhibited did not bear the same colour. He says the ones before court are darker. He says colour is determined by the amount of lead. He says as for B12 the colour is the same as on B12 and B13 he can answer in the positive or negative because colours on B12 and B13 are different and this also goes for objects around it for example, deceased's uniform on B12. The witness says the uniform looks green whereas it is brown and yet on B13 where the uniform is evenly exposed, it is closer to its real colours. The witness says he has said the photographs have been turned around. He says the crime scene witness (P.W.3) said photographs were taken as they were though shifting of objects destroys scene of crime. He says it is not a matter of angle at which photographs were taken for the background is different. The witness says the photographs are inadmissible because too many things are missing. He says the difference in the board on B12 is a question of taking


160


the picture from a different angle though, notwithstanding, the picture has to remain the same. He says the pictures are not the same for shells are in the same position in both pictures showing it is only the background that has shifted. He says there is something sinister for A.K.47 shells appear for which the scene of crime witness (P.W.3) could not answer. He says the scenes of crime officer was not necessarily responsible for these faults. He says if there were negatives and contact print it would help for in the event the court would see every picture taken to ensure that all pictures resemble their negative. He says what he is concerned with is the admissibility of evidence.


The witness says he sees B14 and B15. He says B14 is the right hand of the deceased and reflects an entrance wound and that this is marginally more to the centre. He says the wound on B l5 is bigger and smaller on B14. He says he is not the author of the document though he has seen it before. He says weapons carried by him were loaded. As for firearms carried by other members of the committee, he assumed those who had gone there had them loaded though he could not know if some had loaded blanks and this was possible. He says blanks are rounds which can only make a noise and are not lethal. He says it has not occurred to him there would be blanks and he has no reason to believe anyone can load blanks. That deeds speak louder than words and there was common cause to overwhelm P.W.1 and Lt. Col. Penane by weight of numbers and force of arms, the witness agreed deeds speak louder than words but he has denied the intention to overpower P.W.1 and Lt. Col. Penane by weight of numbers and force of arms for there was no evidence to the effect. The witness says he did not have common purpose to do anything with anybody save what he told the court. That lethal weapons were used to overcome resistance by P.W.1 and Lt. Col.Penane, he says he does not know and is not aware of this. The witness says he does not agree that by use of lethal


161


weapons and weight of numbers the intention was to intimidate P.W.1 and Lt. Col. Penane. Put to him the deaths and injury of those affected was foreseeable he says it is normal for police to be armed without shooting at each other. That where police band together for an illegal purpose depending on the circumstances they may shoot each other, the witness says he is not aware of police who had gathered for an unlawful purpose. He says he is not saying police have not been committed for crimes in the past.


Re-examined by Mr. Maieane the witness says a police officer is expected to be on duty 24 hours a day and there is nothing abnormal to have held meetings after 4.30 p.m. He says he has never commanded any group except committee members who had agreed to meet. The witness says after learning there was a crisis his command was confined to the committee and in particular to go to the police headquarters with the purpose of intervening and liaising with the police management as usual. He says he was in command as Chairman of the Police committee. The presence of members of the committee at the MCCO that morning had been agreed to by the committee to go to oversee and mediate. As to other incidents which occurred done by the police body and perhaps some committee members as individuals of which he was not aware, he says neither the committee or himself can be held responsible including the stage when he learned P.W.8 had sent some police officers to call P.W.2 and Lt. Col. Penane. The witness has said the grouping at Mabote Police station and at the MCCO and at police headquarters where some senior officers were deprived of their liberty he does not know of save hearing the same here in court. As for A7, the witness says he is not sure whether he worked at the P.T.C. The witness says he does not appreciate where common purpose could have arisen since he has shown that he was not aware of the meeting to be held by the police body that morning. Secondly, he could not know that P.W.8


162


would sent some people to call P.W.2 and Lt. Col. Penane nor did he know that Penane would be so aggrieved as to fire at somebody sent to call him. He says the evidence at scene of crime does not suggest that Lekhooe entered the office with the intention to harm anybody. He says Lekhooe was not his committee member for he worked at the P.T.C. He says he never worked with him at any stage. He says the way Lekhooe entered does not show he conspired or had common purpose with anybody. He says according to the evidence Lekhooe did not say he was sent by anybody. He says if P.W.1 was kept in the cell it means he was arrested and he says he is not accountable for he does not know the instructions under which he was arrested. He says if he got in as a result of his joke, when he left he could have gone out. He says all in all since he was followed and was asking funny questions, this is the reason he asked Maj. Moshoeshoe (P.W.10) what was happening. He says both of them were puzzled as to his presence in the cell. Of importance was the fact that Maj. Mpopo had said to P.W.10 he knew about the matter. He says by uniform one refers to operational dress enabling one to put on webbings and firearms and to walk freely about in these other than when one is in civilian clothing; he says operational dress is issued for special duty and in his case it was from 1990 -9lowing to specific state duties until he was arrested. He says it is not surprising he has been seen in these assortment of firearms.


By Assessor: If a gun has not been used that is to say if an A.K.47 is cocked and there is a bullet in the chamber, the bullet will fall but the shells will show that the A.K.47 rifle was used. That Matlhole (P.W.6) said I said 'we want one policeman in there' namely, Lekhooe, the witness says he did not know there was a policeman in there for he did not know there was Lekhooe in P.W.8's office. He says all that occurred to him was to call committee members to ascertain what was happening; he says it did not occur to call all committee members to him.


163


By court he says in the morning at 3.00 a.m. Senekane had said there were police who wished to hold a meeting. Senekane was at his home and he had said the policemen were with him. He had considered this unusual. He says he did not establish there were policemen who wanted a meeting; in the course of the morning he says he did not establish that there were people who wanted a meeting. He says he had not verified information from Senekane. The witness says he went to the MCCO when he heard gunfire but they had not met as a committee. He says he did not confront P.W.1 with the firearm and knows nothing about it. He says as police were clashing for the first time, he could not say who should investigate. He knew Lt. Col. Penane very well at the MCCO from April, 1993. He says according to him his tempter was normal and Penane was more of a friend to him than an officer. He says he is not sure whether bullet proof vests are issued from the store or armoury. He denies he had a bullet proof vest. He says he could not be issued with a bullet proof vest else he had stolen it. The witness says he was not asked about the bullet proof vest; he says he used to see response unit personnel wearing them. He says when P.W.1 went into the cell it was opened already. He says if a person is detained a register has to be filled by police at the station. He says the only proof of arrest is the register.


Arising by Mr. Maieane the witness says he did not find out who the policeman Senekane was talking about was but he had explored other means and these were working in unison. He says as a team they did not have the opportunity to sit down and resolve the situation because of the current situation. He says what was unusual was being called to a meeting they did not know though for police officers to meet at that time was not unusual and by being at Senekane's at 3.00 a.m. did not mean the meeting was going to start at that time. He says the committee had suggested a commission of inquiry and it had been held. He says once he was


164


aware of the fact he had reported to P.W.8 about the firearm appearing as P.W.1s. Regarding P.W.1's detention procedure, he says formal procedures should have been followed.


D.W.2 Manuel Tsokolo Mosae sworn has stated he has heard the evidence before court and the charges against him. He says he joined the police force in 1977 and received basic equipment training. He says he is a Sgt. and has received other training being that of scene of crime officer and a paramedic officer and underwater diving. He says he worked as a scene of crime officer in the police force for about 6 or more months and the course was for 6 months. He had heard P.W.3's evidence and can comment on the evidence. As far as P.W.3's evidence was concerned, many things were missing. P.W.3 had failed to give the number of rifles nor had she taken fingerprints in respect of them and fingerprints of people who used them. Apart from this, P.W.3 had not taken enough photographs on the scene of crime. He does not deny she gave excuses, but it was her bounden duty to complete her task and it is wrong for her to pass the blame. According to the witness P.W.3 has said the photos before court were selected and the question is: who selected them? The witness says there was no division of labour between P.W.3 and the ballistic expert P.W.14 . He says scenes of crime officer (P.W.3), ballistic expert (P.W.14) and fingerprint bureau and the other officer he forgets are the four officers who team up to form scene of crime officers. He had heard when it was said the late Senekane was not scene of crime officer but a member of the investigating team. He says an investigating team is five (5) member in relation to scene of crime officer though there is another office being that of the late Sekatle which covers weapons. The office takes weapons from suspected offenders and passes them to ballistic expert to determine whether they were used or not. If the investigation is led from the C.I.D. there is no relationship between scene of crime officer and the C.I.D. He


165


says there are certain events in which scene of crime officer cannot be involved and it is where the C.I.D. takes the weapon for examination by a ballistic expert. He says scene of crime officer can be any officer of general duties or the C.I.D. He says the scene of crime officer is the one who should have done the job and having done so to forward weapons to the ballistics.


The witness says he wishes to refer to P.W.14's evidence. He says P.W.14's evidence is not enough for he has not shown the steps he took in examining the guns save merely showing there were two guns which were used of which he does not show how he tested them in order to reach the conclusion that the guns were used. He had not brought empty shells with which he made tests to prove the weapons were used comparing them with those that were not used. According to the witness, P.W.14 has not shown what made him belief the weapons were the ones found on the scene. He says as an accused nobody asked or informed him that his gun would go for ballistic tests. He says not all weapons are before court. The witness says his knowledge tells him that the ballistic expert's evidence was interfered with. He says from P.W.14's list of weapons examined by him, some are not before court.


He says there should have been a report showing from whom the late Sekatle received the weapons. In the event the court is left in the dark in the belief that because Sekatle is late it is convenient to hide negligence on his part. He says he was member of the Grievance Committee and merely a member to be fed information relating to police grievances and to pass this to police management namely: Brig. Makoaba and other committee members who were not members of the so-called Codesa or grievances committee. He says this was the duty of the committee as a whole. He agrees the court is concerned with events of 31 October, 1995. He says 31 October, 1995 was a Tuesday and a committee member one


166


Makateng had come to him saying they were to meet with other office members of Codesa at police headquarters. He had been then engaged in family duties that morning and he had left his work. They had gone via the Charge office using Constitutional road which passes near the Charge office. As they went past near the gate there was a group of policemen and he had identified 2nd Lt. Mabaleha and Motenalapi who was the superior officer at the time. At police headquarters they had gone into the junior rank hall. In there he had found some members of Codesa namely Sgt. Senekane, Sgt. Makhele, Tpr. Mohale, Tpr. Molapo, Sgt. Leuta, Sgt. Ramakhula, L/Sgt. Mokapela and Tpr. Mafeto. He says these are the ones he recalls. Sgt. Makateng had said: here is Sgt. Mosae and Sgt. Senekane who had told them there were policemen who fetched him from his home that morning wishing to have a meeting with some senior police but had not said who they were. He had gone on to say he had parted company with those members as they went to the MCCO. He says he had confirmed he had seen a number of officers at the MCCO amongst whom was Lt. Motenalapi. He says they had decided to investigate from the people whom Senekane said went to the MCCO. He says Codesa had chosen him and Ramakhula (A4) to investigate about officers at the MCCO and this had been agreed on by him, Sgt. Leuta (A2), Mokapela, Ramakhula (A4), Mohale, Mokhele and others mentioned. He says the ones he mentioned were all members of Codesa. L/Sgt. Ramakhula and Mokapela (A7) had left immediately and he was leaving for the police headquarters the reason being he wanted to communicate with A1 telephonically but had failed to communicate with him at the time. He had then gone to the MCCO. As he spoke to 2nd Lt. Motenalapi he had noticed it was 5.30 a.m. and could have left for home a little after 5.00 a.m. He had asked 2nd Lt. Motenalapi as to what was happening at the MCCO as he knew nothing about what was happening and Motenalapi had said: 'we came here as a result of our grievances which we put before you, Codesa and you failed to respond to our grievances and


167


we as the police have lost faith in you. We have also come here about matters raised in Radio Lesotho in which P.W.1 alleges some members of my office attacked him and abuse of orders by Penane.' He also said there was a letter giving them an ultimatum that Codesa members would be killed. He said it was as a result of the letter that they were prompted to come to the MCCO on the particular day. 2nd Lt. Mabaleha had backed him by saying: 'Here at the Charge office there is a misunderstanding and we work only because we are police officers and have no option. He had said Mrs. Petlane (P.W.5) had been briefed though he did not know by whom. 2nd Lt. Mabaleha had then said he (the witness) was to inform office of Robbery, and Car Theft, an office within the MCCO of the developments. He had gone there and met the following officers: L/Sgt. Masoabi, Tpr. Kota, Tpr. Mthabi and Tpr. Moliea and had told them what he had discovered from the two lieutenants. They had subsequently left with Masoabi and Kota in a vehicle. He says it was while he was having a discussion with L/Sgt. Masoabi at Robbery and Car Theft office that Mrs. Petlane (P.W.5) found him and told him she'd found what was happening though she had asked for further details and to tell her what grievances him and his committee had passed to P.W.8. He says he had told her all he knew and what he had heard for the first time was a letter threatening Codesa members. After parting company with her he had gone back to 2nd Lt. Motenalapi. He says at this time P.T.C. men other than Motenalapi were: Tpr. Mokolokolo, Tpr. Thonkha, Tpr. Ngatane, Tpr. Mpau, Tpr. Ramatsella, Tpr. Mpoko, Tpr. Mosene and Tpr. Moseli. He says the last mentioned he does not know where they came from other than that Moseli came from Mabote and Ramatsella was MCCO radio operator. Mabaleha being stationed at the MCCO and he worked at the P.T.C. with L/|Sgt. Ramakhula (A4). He says the men he has mentioned were all in operational uniform. Members of Robbery and Car Theft did not wear operational dress. He says he had told P.W.5 in the past 2-3 months there were grievances placed before


168


Codesa; he says they had been ordered to attack prison officers who were on strike orders being verbal and some of the constables had been unlawfully detained and it had been alleged they had shot at a minister but this was untrue; it had also been alleged senior prison workers were locked up in fridges but this was non-existent and certain constables had been ill-treated by the police. Police had also been used in the teacher's strike instead of there being a lawful court order to deal with the strike. He says headquarters police and P.T.C. police were not allowed to enter the MCCO except in reporting crime. He says this is what he told Mrs. Petlane and that Codesa had placed these before the police management namely, P.W.8 Deputy Commissioner Makoaba. He says having narrated all these to P.W.5 she had decided to inform her superiors and P.T.C. officers for he had said these strikes were narrated to her to act and as to what to do about the police at the MCCO. He says on this note they had parted company with P.W.5.


The witness says between 6.00 and 7.00 a.m. he went to R.C.T.S. where he phoned police headquarters and asked to speak to Sgt. Senekane to tell him what he had found at the MCCO and that they were to know Mrs. Petlane (P.W.5) had said she would inform the management about the reason for police officers gathering at the MCCO. He says at 7.15 a.m. officer Mokeki had arrived and found him with Mabaleha, Motenalapi and other policemen at the gate where he was given compliments and had entered the yard to go about his duties. He had left the gate to the R.C.T.S. while Mabaleha and Motenalapi went into the MCCO offices. Mrs. Petlane (P.W.5) had then called him saying there were some people who had asked for sleep at the MCCO and could they be allowed to go to their homes and he had said he had no power he had nothing to do with them. He says he had gone back to the R.C.T.S. He says as he was at R.C.T.S. Maj. Lesiamo and Matsoso had arrived and he was called by Maj. Lesiamo saying he wanted to hear from him and


169


other policemen at the MCCO what they wanted there. He says he had said the best man to tell was Motenalapi and would only tell if Motenalapi gave the order for him to tell. As he spoke to Maj. Lesiamo Motenalapi, Mokapela, Ramakhula and others had arrived. He agrees to be reluctant and to refuse are one and the same thing but agrees he was reluctant to tell Maj. Lesiamo what for they were at the MCCO namely that there were grievances to be redressed. Maj. Lesiamo had said he knew some of the grievances as some reports had come to him. What he had not known was a letter recently found about the assassination of Codesa members.


The witness has gone on to say when he phoned police headquarters he had found from Senekane that they had contacted P.W.8 who had been briefed of what was going on at the MCCO. He says he had informed P.W.7 and Matsoso that P.W.8 was aware of what was happening. According to the witness, he says as he was within earshot he had heard when P.W.7 was taking responsibility. The witness says P.W.7 had then said to the police present, if there was anything they needed he was to be informed so as to report to the commandant. He says in fact P.W.7 was speaking to the P.T.C. staff. P.W.7, Matsoso and Motenalapi had then left for the P.T.C. leaving the witness and others at the MCCO. Shortly P.W .4 had arrived, and was given compliments as usual. He had then left the MCCO for police headquarters where he had gone to ascertain what arrangements had been made for the holding of the meeting of which the police were at the MCCO and P.W.8 knew of their presence. At police headquarters he had met Sgt. Makhele who told him the police at the MCCO were expected to come to police headquarters. He says it was 9.45 a.m. at the time he returned to the MCCO to fetch police and he had said all police with grievances were to go to police headquarters. He says he had called the police and having assembled gave them the message and where a meeting would be held relating to their grievances and they had then proceeded to the police


170


headquarters. He says there were many police at the MCCO and they had mostly moved to the police headquarters. He says the police who were in operational uniform and armed had come to the police headquarters in batches and they had gone on the eastern side of the block. Meeting Codesa members near the gate he had said here are police from the MCCO we are waiting to see what's going to happen. He says it was at this juncture that him, A3, Senekane, Lekhooe, A5 were walking into the hall to play darts and on their way were called by P.W.8 who gave an order to L/Sgt. Lekhooe, Tpr. Mafeto (A5) and Mpao saying: 'Hey, you small pieces (short men), go to Mr. Ngatane's office and tell him he and Penane are to report to me; I phoned them to report to me but up to now they have not come. Ngatane tells me he is holding a meeting in his office. I don't know what the meeting is all about, I have long ordered him and Penane to report themselves here.' He says he had asked P.W.8 whether it was right to send such junior officers when there were senior officers and he had said: 'You are a policeman and you know what I mean to do'; by this he says he understood P.W.8 to say he was going to take disciplinary action against Penane for defying his orders. After the discussions Lekhooe, Mafeto (A5) and Mpao had gone to the MCCO and him, P.W.8 and Senekane had gone to the junior rank hall and he understood this was to assess whether the hall would accommodate the meeting; P.W.8 had said the hall was to be cleaned and had then proceeded to his office. The witness and Senekane had secured brooms to clean the hall. He says before cleaning he and Senekane had gone back to members of the police committee where for the first time he found A1, Sgt. Leuta (A2) Sgt. Mokapela, Sgt. Ramakhula (A4), Tpr. Molapo and others and had informed committee members that preparations were being made for the meeting and meantime Lekhooe, Mafeto and Mpao had been detailed to fetch P.W.2 and Penane. The witness says it was at this point in time that gunfire was heard and everybody was confused for the sound seemed to come from either the MCCO,


171


Radio Lesotho or Agricultural headquarters. A' had ordered A2 to drive a technical vehicle towards the area to ascertain what was happening. After A2 left he had gone to the radio room with Sgt. Senekane aimlessly. He says he went to the radio room to call the MCCO to inquire where the gunfire emanated from. On their way to the radio-room along the corridor they had met Mr. Monyeke, Mr. Moiloa going in an opposite direction and were in a hurry. He says he does not know with whom they spoke near the parking lot because after getting into their vehicles there was a flow of policemen in the direction of the MCCO. He says near the radio-room P.W.8 had called him (the witness) and Sgt. Senekane and they had gone into his office together. In his office he had said: 'Banna ba heso, hantle-ntle se etsahalaug ke eng har'a sepolesa see matsatsing aa?' Translated 'countrymen, exactly what's happening to our police force these days?' He says they had looked at each other with Senekane since they did not know what he was talking about. P.W.8 had continued: 'banna ba heso, ke letselistse Penane ho tloha ha a le ha hae hore a itlalehe ho 'na mona. Ke letselitse Ngatane ka mokhoa o tsoanang hore a itlalehe ho 'na mona' translated: 'Countrymen, I telephoned Penane from the time he was at his home to report himself to me. I also telephoned Ngatane in the same way to report himself to me -'. There was a smoking cigarette on P.W.8's ashtray, he took the cigarette which was alight and lit it again and from this we deduced that something must have happened. P.W.8 had then proceeded: 'Ngatane o mpolella hore tseke-tseke eane ea lona e thuntse mapolesa ka ofising ka mane' translated: Ngatane informs me that that half-wit of yours has shot policemen in the office. The witness says Senekane had interrupted: who is our stupid officer? P.W.8 had drawn his breath and looking down had said: 4ke bua le long tjenana L/Sgt. Lekhooe is dead' translated: i talk to you now, Lekhooe is dead.' The witness says he had asked P.W.8 what was to be done in the circumstance since the man he sent had been killed and P.W.8 had said: 'Banna ba heso, mona kea le kopa and he said


172


this twice translated: countrymen, here I beg you: 'tsamaeang le ee ka Charge office le tlose mapolesa oohle a ka mono a tle mona headquarters e le hore ho thusoe ba ntseng ba phela' translated: 'go to the Charge Office to remove all policemen therein to come here to the headquarters so that casualties may be rendered assistance.' The witness says P.W.8 had answered later who the stupid officer was after Senekane had repeated the question who the stupid officer who killed police officers was. He had said it was Penane. The witness has said on being asked by him how he came by the information of what happened at the Charge office he had said P.W.2 had called him and given the information. They had risen from their seats, saluted P.W.8 customarily and Senekane had said he was afraid of going to the Charge office for he might lose control but he had allowed the rest of them to go. The witness says as the door was about to close behind him Senekane had said: hey you lean or emaciated one - (this being the way he customarily referred to the witness). The witness says he looked back and Senekane said to him: how do you leave your gun behind since I told you there is fighting, are you going merely to swear or just stand there and watch? The witness says it was then he noticed he had left his gun where he had been seated. He had gone to the MCCO. At the MCCO he had found Monyeke and Moiloa besides many other policemen who had gathered there as onlookers and watching. He says he had gone to the MCCO alone and did not know what happened to Senekane for he had said he would not go to the MCCO. P.W.8 had come on the scene followed by Col. Mpopo and Maj. Sekatle. He says Col. Monyeke had then asked him to drive a vehicle closer to P.W.2's door. Brig. Moiloa had raised his hand signalling that he was to stop and he had stopped for further instructions. He had said the witness was not to use the vehicle and he was to secure a driver from the office and had secured one from the R.C.T.S. though he could not remember his name. He says it was at this time he saw P.W.2 pipping through the window and he was at the same time


173


called by P.W.6 in company of Makhele requesting that him, A1 and A2 to remove all police officers from the MCCO in order to assist injured officers in P.W.2's office. He says as he spoke to P.W.6 and Khoele, Mr. Monyeke had called him shouting and had said: 'Sgt, tell all the police here to go to the police headquarters where we will tell them what happened.' He had done this and everybody had gone to the police headquarters. Before going Mr. Monyeke had ordered A2 to drive the vehicle he was driving to assist injured persons. He says this is all he recalls about events of 31 October, 1995.


He says he did say they went to the junior officers hall and therein were only Codesa committee members. When Makateng fetched him, he had merely said A1 wanted him at police headquarters on an urgent matter. On the way a police meeting had been mentioned. He says he stayed at Hoohlo's. He says of the committee there were 3 members himself, A7 and A4. He says he can neither deny or admit that Senekane was given specific orders. Makhele was a sergeant then. Makhele and Mohale were members of Codesa. He says when he left police headquarters he had met two members of the committee notwithstanding that people were going up and down. These were A7 and A4 whom he met near police headquarters gate. He had heard P.W.13's evidence. He denies he ordered P.W.13 and another to keep their weapons in the safe; he says he denies for he worked in the office and knew its problems. He says he could not make such an order. He says the problem is that safe keys are not kept by officers on duty but by the officer-in-charge Mokolatsie. He says on the occasion P.W.5 spoke to him he was not the senior most officer from the P.T.C. for 2nd Lt. Motenalapi was his senior. He says he saw P.W.2 pipping through the window a man who is his elder brother and senior in the police force and does not understand why a senior officer like him does not tell the truth for none of the officers was in control of a General Purposes Machine


174


Gun. He says all P.W.2 said was untrue afterall they had seen each other after the shooting. As for P.W.4 Maj, Raleaka, he says he was fair to him and does not deny anything he said. As for P.W.6 Matlhole and that Motenalapi had said he was awaiting a vehicle to take him to P.T.C., he says this is not true for the bus that transported police at the time arrived at Maseru Charge Office at 9.45 a.m. If he was at the MCCO at 5.30 a.m. it would be expected he would be at the P.T.C. by 6.00 a.m. He says P.W.5 sought full explanation from him and it appeared from what she said she already knew something.


No questions by Mr. Maieane.


Cross-examined by Mr. Suhr the witness says he was born on 01 February, 1955and his educational standard is Form B. So far as events of 31 October, 1995 were concerned his evidence was the same as that of A1 that Codesa had nothing to do with the purported meeting and that Codesa was dragged into it. That 2nd Lt. Motenalapi was officer spokesman of men who were arranging the meeting he says he cannot commit himself for he knows nothing of this. He says Motenalapi is the officer P.W.7 spoke of and was his superior officer at the P.T.C. and is the officer who told him why they were at the P.T.C. He says it is the same Motenalapi he said could speak to the commandant. He says much as A1, he was close to his counsel and has had ample opportunity to consult with him and give him his side of the story. He says then he was in operational uniform and armed and members of Codesa were similarly dressed and armed though some but not all of them. He says A2 was armed and so was himself (the witness) and A4 who held an M16. A5 was not armed but was in operational uniform. He says A5 was armed with a swagger stick and held a radio. He says he was not in his office and did not know with whom he was communicating. He says Codesa is made up of a number of police


175


sub-branches and A2 and A5 were members of the band unit the reason he does not know with whom he was communicating by radio. He says he did not see A5 communicate by radio. He says he did not see A6 on 31 October, 1995 or at any stage. He had seen A7 who was in operational uniform and armed with M65 rifle which is not the same as an M16 rifle. He says an M16 rifle has no carrier and the M16 has though the mechanism is the same. He says he heard P.W.5 Mrs. Petlane testify and that she said less about him except he had instructed her not to use the telephone. He does not know why she fabricates against him seeing she said she met him three times. The witness says she was sympathetic to their course so much so that she described in detail their grievances. He says he heard when it was said explanations regarding people assembled at MCCO was from A7 and that the explanations were of artificial nature. Asked why the allegation that explanation in detail of their presence at the MCCO was not put to Mrs. Petlane, or that she was not to use the telephone or involve herself, the witness says this is not true. That it was not challenged that Mrs. Petlane regarded him as senior he says it was put to her but P.W.5 had said she had not seen Motenalapi. Asked why it was not put to P.W.5 that Motenalapi was in charge and not him he says it was put to P.W.5. He denies he was reluctant to speak to P.W.7 for the reason that he did not want P.W.7 to know he was at the MCCO. That his reluctance to speak was in presence of Motenalapi and A7 he says he denies nothing in this regard. That in his presence Motenalapi had said he was merely waiting for transport he says he did not hear Motenalapi he say this though to his knowledge this is not what Motenalapi said. The witness says it is surprising on one occasion Motenalapi is with them and in another he is awaiting transport. The witness says it is surprising and he does not know why Motenalapi was at the MCCO. He says what's surprising is Motenalapi told him what for the police were at the MCCO. He says it is Motenalapi who ordered him to tell R.C.T.S. office about what he had informed him. He says he did


176


not say to P.W.7 why he would not speak to him but merely remained silent and says this does sometimes happen. He says he was at the MCCO on behalf of the police crisis committee attending to police grievances. He says he cannot say police were represented by Motenalapi.. He says he did not tell P.W.5 the police at the MCCO were answerable to Motenalapi for he did not know how they got there save what he was told by Motenalapi. He had given P.W.7 the story on behalf of Motenalapi. He says they were not at the MCCO for bloodshed but for discussions. He said this to P.W.13. He says there was no such thing as him having said there was a threat to have some people arrested. He denies he said to P.W.13 if anybody wanted to go out he was to ask for permission. He says the instruction by him to have firearms locked up was challenged. He says if P.W.13 did not heed his instructions by reason of being P.W.13's senior he could have taken steps against him. The witness says he does not know why P.W.13 gave misleading evidence for the officer in charge L/Sgt Masoabi in whose presence things alleged were said can give evidence. He says P.W.13 gives false evidence against him on orders though he is not so sure he has been so ordered. He says they were called to police headquarters to make reports and some people appeared knowledgeable when later they appeared to know nothing the reason he says P.W.13 was under orders. He says his report and A2's should be in the docket otherwise it would mean all reports are not in the docket. He agrees it was not put to P.W.13 that he gave false evidence against him on orders. He says he has said P.W.8 ordered Lekhooe,, A5 and Mpao to go to P.W.2's office to fetch P.W.2 and Penane and has said he did say there was an objection to these instructions as the men ordered were junior officers. As to why this was not put to P.W.8 the witness says it was not so put for the following reasons, namely: P.W.8 refused to speak to P.W.2 or that he called any officer on that day and also denied he met the witness at police headquarters but at the MCCO after the shooting and his evidence mentioned none of the witnesses


177


save A1 and it was clear anything put to him he would deny. He admits these allegations are serious. He says the instruction was not to arrest P.W.2 and Penane and bring them by force. He says P.W.8 had given orders disobeyed by the two senior officers P.W.2 and Lt. Col. Penane. He says when orders were made he was not present but in his presence it was said the two officers were to be brought to P.W.8 for disobedience of orders and knows nothing whether P.W.2 and Penane changed their minds.


In farther cross-examination the witness says he does not think the policemen would have persuaded the two officers to go to P.W.8. lie is adamant three policemen were sent. He says in his view one messenger was enough. Put to him this is not the message Lekhooe relayed to P.W.2 or Penane he says he cannot comment for he does not know. That the message concerned Penane only he says Lekhooe was interrupted. That in cross-examination there was no suggestion the message affected P.W.2, the witness says listening to the evidence it would seem there was some misunderstanding between P.W.2 and Lekhooe. He agrees committee members exchange information. He says he knows nothing of Mabote or what happened to P.W.1. That his evidence is calculated to exculpate Lekhooe, A5 and Mpao he says he is not testifying to innocence but to what he knows. That it would appear there was an arrest team to effect arrest the witness says he knows nothing of what happened at Mabote's. That the three (3) policemen who went to P.W.2's office went there for purpose of arrest as P.W.1 had been arrested, the witness says they went there on P.W.8's instructions. He says the three policemen were messengers. He denies he was manning a General Purposes Machine Gun. He says some policemen cannot tell a gun from a gun with bi-pots for the latter is not necessarily a machine gun. He says there was a gun with bi-pots an Ml6 belonging to Tpr. Thonkha and it's not his fault if senior officers cannot distinguish


183


committee had met and decided to sent A4, A7 and A3 to where the policemen were alleged to be at the MCCO and find out from the police what could be done. He says after A3, A4 and A7 left, it was them in turn to report to P.W.8 what their findings were; though he did not remember when P.W.8 arrived, himself and Senekane had reported to P.W.8 saying, in addition, how they came to the police headquarters and P.W.8 had said he already knew about the affair for he had heard from P.W.2 and had said Lt. Col. Penane was to report to police headquarters and not at the MCCO. He says they had parted on this note and P.W.8 had proceeded to his office. The witness says after some time P.W.8 had called Mohale a committee member saying members of the committee sent to the MCCO were to be informed to proceed to the police headquarters where a meeting would be held. He says before he spoke to P.W.8 he had received a report from members at the MCCO via A3 relayed to them by Senekane saying how far they had gone it being said that the police at the MCCO wanted a meeting to be held relating to their grievances which they had placed before the committee 2-3 months earlier and had come to the MCCO by reason of the fact that it seemed the committee had not placed their grievances before P.W.8 and per Motenalapi the police had said they could themselves on 31 October, 1995 table their grievances. He says this was Senekane's report to them. He says after a few minutes Mohale was called by P.W.8 and returning had said P.W.8 had said it was better if the meeting was held at police headquarters as he had made arrangements for P.W.2 and Lt. Col. Penane to report at police headquarters and that accordingly all committee members at the MCCO were to assemble at police headquarters. Tpr. Molapo had left but at the gate he had met A3 and related what's just been said to him and A3 had gone back to the MCCO returning with police officers to the police headquarters and there he was able to identify Tprs Ramahloko, Mpao, Ngatane, Mokolokolo, Ramabele, Mothobi and many others. They had met Tpr. Mpao and A3and at the gate was Sgt.


184


Senekane. Some police had gone behind the police headquarters while some were strolling and playing drafts. Himself, A3, Mpao and Lekhooe had decided to play darts whilst awaiting the meeting to start. It was about 7.45 a.m.; before entering the main door P.W.8 who was pipping from an upper floor window had called them saying: 'hey you small pieces come here' and they had understood him to be calling them (the witness and Lekhooe for he was used to calling them 'small pieces'). The five of them had gone to him and to them he said:


'I phoned Penane from his home to say he must report here at headquarters and not the MCCO and I went on to tell his senior Ngatane and he tells me Penane is present and they are going on with their meeting and yet I have said all police officers should come to police headquarters where the meeting will be held. As for you 'small pieces' and Mpao, go to MCCO and send a message to the effect that Col Ngatane and Lt. Col. Penane are to report to me here at police headquarters.'


He further said the two were to come as he had said Lt. Col. Penane was to come and both of them were to come then; he had also told Ngatane to inform Penane once he arrived he was to report at police headquarters. Before leaving A2 had asked P.W.8 why he sent them and not police officers stationed at police headquarters. P.W.8 had said: you are police officers and you have to understand what I mean to do. They had left with Mpao and Lekhooe. The witness says Lekhooe was in operational uniform, carrying an M16 rifle and so was Mpao carrying a commando rifle while the witness was in operational uniform, a small radio and a swagger stick and they had come to P.W.2's office. L/Sgt. Lekhooe had knocked and Maj. Ntoi had opened the door for him. He says he saw Maj. Ntoi


185


when he opened the door and he and Mpao remained on the door outside. He says as the door opens it leaves a small opening and through it he had seen Capt. Fonane next to whom was Lt. Col. Penane and he was not able to see the others through the crevice. He says Lekhooe passed on, stamped his foot holding his gun right hand 'shoulder arm' and near P.W.2 he stamped his foot and gave an armed salute and the witness demonstrates how Lekhooe moved his hand namely, placing his left hand against his right arm - and the witness comes to attention and the firearm which is vertical moves forward a few degrees from vertical and moves back to vertical and the left arm goes back to its original position with the witness still at attention and the firearm still at shoulder arm position. The witness says when Lekhooe's firearm was at shoulder arm he spoke to P.W.2 and said: 'we have come to ask for Lt. Col. Penane'. Before he proceeded P.W.2 interrupted him saying 'who wants him' and before Lekhooe answered through the crevice he had seen Penane stand and producing a 9mm pistol at a time when Lekhooe was facing P.W.2 and there were two 9mm gun reports and after these two sounds, Lekhooe had turned around to face other officers and had shot with his M16 automatic and as he shot with his automatic there was another sound of an M16 calibre or automatic and the sound seemed to come from where the officers were seated. After this Lekhooe fell and the gunfire stopped and the door closed. After it closed for about two minutes there was another 9mm sound. They were standing outside with Tpr. Mpao and after sometime they went down to the MCCO; they stood there and witnessed the flow of police officers from police headquarters to the MCCO. It was their intention to go to P.W.8 to explain what happened but were stopped by Tpr. Ngatane, Ramahloko, Marite and Tpr. Mokolokolo. Tpr. Ngatane had asked them what had happened as they had heard gun reports and he had explained what happened. After giving the explanation he had felt weak and asked if Tpr. Ngatane could find a vehicle to take him to the P.T.C. At the same time Tpr. Ntlhoaea was entering the


186


gate in a response unit vehicle. Tpr. Ngatane had stopped him asking to take the witness to the P.T.C. He says at the time he did not believe what he had seen with his own eyes. At the P.T.C. about lunch time he had been informed Gen. Pinda had said the police were to assemble at the P.T.C. to address them at 2.00 p.m. At 2.00 p.m. police had assembled at the P.T.C. hall and Gen. Pinda had addressed them. In his speech Gen. Pinda had said there was an unusual event which had taken place within the police force where a senior officer Lt. Col. Penane and junior officer Lekhooe were shot and had gone on to say where the incident took place was at P.W.2's office. Lekhooe's M16 rifle had been found; also an A.K.47 bullet, a 9mm pistol and 3 x 9 mm cartridges. The meeting had dispersed and he had been driven home by Tpr. Ntlhoaea. He had met Lekhooe and Mpao at police headquarters main gate after A3 brought police officers from MCCO; this was the first time to meet Lekhooe. He says Lekhooe was not a committee member of the Crisis Committee. At P.W.2's office he had stood outside the doorsteps to the entrance. He had not heard Penane say anything. When he heard gunfire he just stood there rooted to the ground. He says whenever a member of the police force has been sent, when he gets to his destination he must go straight to a senior officer and accompanying messengers were to be mentioned only by name, thought it is the messenger who must speak to the senior officer until the latter can give other directions and while the messenger interacts with the senior officer there can be no interruption. He says he is saying this because he knows the message they were to deliver and yet even before Lekhooe finished the message given him, he saw Lt. Col. Penane stand, draw a gun and then heard two single shots; he did not understand how Penane could do this while a message was being delivered to a senior officer. He says this took him aback. Through the opening in the door, he says all he saw was Penane standing up, producing a 9mm pistol and had noticed nothing about Fonane. As for P.W.2's reaction he says he does not know what he


187


did. He says he saw Lekhooe fall. He says after the gunfire many police came running from police headquarters and the MCCO. He says at P.W.2's office precincts there were no police and they only came after the incident. He says at the time of shooting he carried a police radio and swagger stick while Mpao was holding a commando firearm on his shoulder with a sling. Mpao worked at the P.T.C. He says there was no gunfire from the doorway whatsoever. He says if there was fire from a big gun at the doorway, he would have demonstrated this as P.W.4 did. He says Maj. Mokeki (P.W.1 1) should also have demonstrated as Maj. Raleaka did. He says from the photos before court it would appear P.W.3 attended scene of crime the same day of the incident and it stands to reason bullet holes on the walls should have been found. He says from the photos it would appear windows were shattered and similar marks should have been seen. He says it is surprising that in giving evidence P.W.11 does not say he saw people shooting from the doorway. He says the photos he is referring to is the photo album Exh. B. On 31 October, 1995he had met A' at the P.T.C. where Gen. Pinda was going to address police. He had heard P.W.12's evidence about him. He says this evidence puzzles him in some respect for Sgt. Mphatsoana (P.W.12) is his senior officer. He says it puzzles him because P.W.12 says at Mabote he had found many policemen from the P.T.C. and easily was able to name accused before court and yet if he saw Mafeto and Leuta he should be able to say who other P.T.C. police were at Mabote. He says P.W.12's evidence does not tally with that of P.W.1 who claimed to have been arrested. P.W.1 had said he met P.W.12 in the latter's vehicle and this was a private meeting whereas P.W.12 disclaims having met P.W.1 privately in the vehicle. P.W.1 also shows he went into Mabote's office followed by P.W.12 and yet P.W.12 denies this. According to P.W.12's evidence, it gives the impression that the witness was disputing a firearm with P.W.1 whereas P.W.1 said his gun had been taken by Koekoe and Lekhooe. He says its impossible to seize a gun and


188


quibble about seizure when a gun has already been seized. The witness says P.W.12's evidence was purely a devise prearranged to give evidence against those charged with murder. That there is evidence that he was part of a team to arrest P.W.1 he denies this. The witness says PW. 1 did not say who put him into the cell. He says he went to the MCCO to deliver a message from P.W.8 and having done so was to have reported to the sender. He says he was not on the arresting team on 31 October, 1995 or for that matter a team going about to arrest people. He says P.W.8 did not send them to wage war for it was merely to leave a message with P.W.2 and report back to him. He says there was reckless shooting from Penane, shooting a humble, submissive person. As for Lekhooe, having heard gunfire, he shot in self-defence. He says Lekhooe followed all necessary steps to seek admission by knocking and being admitted. Lekhooe also followed his training instructions by saluting a senior officer while in arms. He says according to Lekhooe's training, if he had gone there maliciously to effect an arrest, there is no way Lekhooe would have gone into the office, gone past people who had undergone the same training, and were armed.


By Mr. Maieane the witness says on the fateful day namely 31 October, 1995 he had told the court he had seen A7 who was in brown operation uniform, unarmed.


Cross-examined by Mr. Suhr the witness agrees every gun is deadly. He says it is deadly and Lekhooe's M16 rifle was loaded. He says he can't say what bullets Lekhooe had loaded for there was no parade. He says some people use blanks and if guns are not checked one cannot tell whether its live bullets or blanks. He says in order to determine whether a gun is loaded the following procedures are followed every morning when there is an inspection parade. The parade is called cleanliness


189


parade and there were times when him and others loaded blanks. He says on 31 October, 1995 he did not know whether or not Lekhooe loaded blanks for there was no parade. From his point of view the mission of 31 October, 1995 was innocent. He says communication was by means of calling committee members for a discussion at police headquarters and apart from this there was no other meeting except A3 who told them what he found at the MCCO. He says he did not speak on the radio; when he was transferred to Phororo's and in A2's office he was from duty as radio operator and one who holds this post can be called any time over the radio he carries in the band unit to be given direction as to where the band may be required. He says it is the reason he had the radio to make contact with his unit. He says he knows nothing of what transpired at Mabote's. As for P.W.1 and P.W.12 not making a mistake about his identity, he says they know him very well. As to why P.W.1 implicated him falsely the witness says too many things happen. He says on 16 February, 1997 he was arrested after a number of victims were pointed out to be charged with their number. He says it was a case of choice because people were invited to choose victims. The witness says all that happened was: here are the chosen ones, and they must be saddled with the deaths of the victims. He says in such a situation there was no turning back for they were labelled with murder. He says Col. Letsaba (P.W.1 5) and other officers were used and after they pin-pointed others these were told to go home and the he keeps on asking himself why us! He says the answer is easy for they have to answer for themselves. He says Brig. Malewa had said he chose his men who were to go to gaol and the witness was among these. He says he was pointed at by Brig. Malewa to be charged. He says he does not know if P.W.1 pointed him out as a victim. As for P.W.12, he is his band unit senior officer and was his Sgt. There was no bad feeling between him and P.W.12 but what he said before court about him left him astounded. He says though he knew what happened to his gun it seems P.W.12


178


between GP & MG and an Ml6. He says a GP and MG is not intimidating. Mr. Maieane has objected saying there is no point in belabouring the question of GP and MG for P.W.2 has said there was no such machine. Mr. Suhr says P.W.2 did say there was such a machine, though it was not pointed in their direction. The court sustains the objection in that the machine was not exhibited and the court is unable to say there was such a machine. What's more, the court cannot say that the machine is intimidating not having seen it and it's properties explained to court. The witness agrees he complained about P.W.3's evidence for taxed by his counsel P.W.3 had said she was ordered to make the selection though she did not say by whom as it would either be her office or the crown. He says this came about because photos in exhibit B were not the same as those given the defence and the crown and it emerged from P.W.3's evidence that her photographs were not all brought before court. He says it was the crown's duty to bring all the photos.


The witness says he has in addition complained of P.W.14's evidence. Though he was cross-examined, his counsel had elected that the issues were to be explained from the witness box. He says he did say P.W.14's evidence was interfered with. That this was not put to him the witness says it could not be because at the time P.W.14 gave evidence exhibits were not before court. He says Senekane and P.W.8 did not work together. The witness says he thinks P.W.8 had a look at the hall to determine whether the hall could accommodate all police officers present. The witness says when the 3 policemen were given instructions Senekane was present. That Senekane was patrolling outside when senior officers were being detained, he says this is a wrong interpretation. The witness says the way crown counsel puts the matter is not the way P.W.8 put it. He says P.W.8 has reneged from all the things which occurred because he tries to avoid the negligence that occurred under his leadership. He says this is the way he perceives the


179


situation. That P.W.6 Sgt. Matlhole did not say anything about him when it was put to him (A6) that A3 did not talk to P.W.6 at all the witness says P.W.6 spoke to A1 and others on two occasions. He says it appears P.W.6 said it was on the first occasion whereas it was on the 2nd occasion when he spoke to A1 and others. Ms. Mahase butts in saying what was put to A6 was that A3 did not speak to P.W.6 while P.W.6 was talking to A1 and A2 i.e. A3 not present when P.W.6 talked to A1 and A2. He says at the Charge Office he spoke to A1 after the orders that they cause police to be removed after the incident. He says A1 was with him, P.W.6, Lesita and Khoele when the order to go away was made by officer Monyeke. He says he did not see P.W.8 talking to A1. That the witness was not merely at the MCCO to find out what was happening but played an active role having regard to the evidence of P.W.5 and P.W.13, he says this is the way crown counsel see things for he (the witness) has given his side of the story and cannot argue with counsel. That the witness carried out his mission with deadly weapons to overcome resistance the witness says if this were the intention no officer would have entered the charge office should there have been an evil intention towards the officers.


Re-examined the witness says he agrees Motenalapi was a senior office in respect of the P.T.C. group. He had not given the reason for being where he was. As for P.W.5 that she was not to use the telephone or involve herself, he says what he denies is that he is a junior to P.W.5 and there is no way he could give her orders and he denies he said anything of the sort as suggested to P.W.5. Concerning orders P.W.8 gave to Lekhooe, A5 and Mpao, if what a senior officer tells a junior officer is taken as orders, then P.W.8 was saying you pieces go to fetch those officers. That the 3 men were an arresting team the witness say this is crown counsel's perception for this was an order made in his presence. He says the 3 men had been ordered to summon officers and not to do anything else. As for P.W.14 and that the


180


scene of crime was tempered with, he says this was with reference to P.W.14 who said it seemed his evidence revealed tempering at the time exhibits were to be shown for in course of his evidence there were no weapons as in his evidence there was only a list of weapons he examined and yet when weapons were exhibited some were not available. He says this is how the evidence was tempered with.


As regards A7 that he had an M65 while P.W.4 said A7 saluted him in bare hands, he says it is correct in the morning there was a gun near A7 and he assumed it was his but at the MCCO he had noticed A7 did not have a gun. That policemen were armed the witness says there is something which surprises him for Lekhooe carried an Ml6 rifle and A5 was not armed while Mpao had a 9mm pistol and he is lost how this could be an arresting team. He says it is normal for a policeman to carry a gun.


By Assessor he says he told his counsel the many suggestions he made about P.W.8 and he does not know why his counsel did not take up these.


By court: He says the excursion to Mabote had nothing to do with him and concerns those who went to Mabote's. He agrees Lekhooe had said 'we have come to fetch Penane' and the version does not give the impression that he was sent. He says he dealt with this matter for a long time and discussed the matter with P.W.8 until their arrest on 17 February, 1997. He says he had noted these in his diary during the 1997 discussions; he agrees he did not ask the court to have him refresh his memory though he had taken part in some of the discussions. He says it was only on that day that they knew the committee was not wanted there having been no attempt to remove the committee. The committee had been removed after the incident of 31 October, 1995. He says he got to the MCCO at 5.30 a.m. for police


181


offices are never closed. He says he was sent to investigate presence of police at the MCCO. He says having investigated he had met Mabaleha and Motenalapi and explained to them and then there was no challenge.


Arising by Ms. Mahase the witness says when he inquired from Motenalapi as to the presence of the police at the MCCO, he had been told many stories by policemen and had come out with the information that policemen were not satisfied with services of police crisis committee.


D. W.3 Tpr. Motlalepula Peter Mafeto sworn had stated he joined the police force on 1st January 1986 and was 47 years old. Apart from his police training, he was in 1993 trained in riot prevention. In the police force he was stationed at the P.T.C. on police unit. He was arrested on 16 February, 1997 and his work at the P.T.C. was riot prevention; he was on the band unit. On 31 October, 1995 he was stationed at P.T.C. band unit and he was member of the police grievances committee. The witness says in his day to day duties he wore a brown operational uniform. The unit he served required him to be armed at all times. He had been issued with an M16 rifle and an M16 rifle and M65 rifle were for the band unit plus a sterling sub-machine gun using 9mm rounds. He had in October, 1992 arrived at the P.T.C. from Quthing and in January, 1993 he was issued with an M16 rifle no.9500310. He did not have the weapon until 31 October, 1995. On 18 June, 1995 as the requirement was to have guns at all times, on this day at the range course on shooting session he had been issued 15 rounds and the officer-in-charge was Sgt. Leuta (A2). After ordering them to load their guns, he had said they should shoot using same rounds that were issued. When he pressed the trigger to use single shot the mechanism of his gun could not function and he had alerted the officer in charge of this. The weapon's problems having been discovered it was taken to the


182


armourer one Sakoane and the weapon was not returned to him. He says he is the Sakoane who gave evidence before court (P.W.18). The witness says he was not issued with another gun. He says it is the same gun exhibited before court (Exh. J). He says he sees the register and the entry thereof. He says it is the same gun that was given Col. Sekatle that was issued him. He says at the P.T.C. people are divided into sections to perform duties and everybody knows his section and its commander. He says he was withdrawn from Makhetha and taken to the band leader and there made a radio operator. He was given a small and a bigger radio and went about with a smaller radio. He says he heard the evidence relating to 31 October, 1995 and an allegation by P.W.1 that he was at Mabote in the morning and that he was one of those who arrested him. The witness says he was not at Mabote's that day. As for other allegations against him, he says he had no dealing with P.W.1 nor did he arrest him. On 31 October, 1995 he had not met P.W.1. On 31 October, 1995 he was at police headquarters at about 4.45 a.m. and Sgt. Makateng had come to him at Qoaling where he stayed accompanied by A2 and reported he was from A2 at Seoli saying they were wanted at police headquarters as committee members of the grievances committee. He said he did not have details of why they were being called. They had left together and repaired to police headquarters and there within the yard had found Sgt. Senekane, Tpr. Mohale and Tpr. Molapo and had gone into junior officer's hall within the headquarters building. He says he learned of what for they were wanted on arrival at police headquarters and the information had come from Sgt. Senekane. Sgt. Senekane had said certain police officers had come to his home and had since left for the MCCO and were saying they requested a meeting on 31 October, 1995. Makateng and Senekane had come with A3 who was the last to arrive and had found them in the junior officers hall where Senekane informed them of his findings. Mokapela and Ramakhula (A7 and A4) were found there and were members of the police committee. The


190


could only mumble incoherently as to what happened. He had said although he was not sure the witness had a gun, he had nevertheless gone on to say he could not say for he had not spoken to the witness. He says it is unnecessary to speak to a person in order to determine whether he carried a gun, a big gun as it were. He says if P.W.12 saw him, he could have called him and found out from him what he wanted there. He says he has already said people were selected as victims and he does not know what the criterion was. He says these are old events for the incident happened a long time ago and yet it is only now that P.W.12 was called to make a statement and since P.W.1 had made allegations against A5 and A2 it is only now that P.W.12 has been brought into the picture to corroborate such evidence. He says there must have been some discussions, some agreement short of force to have P.W.12 testify. If P.W.12 saw A5 and A2, why not others why has he not said he saw some other people unless he is keeping certain facts to himself? He says on 31 October, 1995 he was not at Mabote's but at police headquarters and P.W.8 had selected him to deliver a message and they were five (5) when he called them. A commando used 9mm bullets and is a sub-machine gun like sterling though it is shorter - he indicates how long it is - about 1/2 a metre. He says the gun unfolds. He says the instruction was: 'tell Ngatane that I phoned him to say Lt. Col Penane is to report himself at police headquarters and having telephoned to say Lt. Col. Penane was to be here they proceed with their work they seem to have proceeded with their meeting; tell him Penane should report here at police headquarters'. He gave no further instructions. He says the three of them were to send one message. He says he cannot say why, according to the tenor of P.W.8's statement, having called Penane several times he wanted a direct reply from people who would bring a clear message why he was disobeyed; but then it seemed since P.W.8 would have evidence of why they had not come, this would enable him to take further steps against the officers concerned. He says all P.W.8 said was to leave the message and return to him. He


191


says it's well known that when one is sent one is to return the reply-he says at least this is what's done in the police service. He says he understood their task as taking a message and favouring P.W.8 with a reply though P.W.8 had not said this. He says in the police force if one is sent it is expected that a reply will be returned that is to say, there will be a report back. He says there is a reason why there was no report back. He says since he joined the police force, he had never seen a senior police officer shooting a junior officer. After the event they were together with Mpao until he returned to the P.T.C. He says they were surprised by the incident. He says in going to the P.T.C. he does not know where Mpao went. He says after the shooting he had stood in front of the charge office for two minutes and other police officers had come asking what had happened. That the version was not put to P.W.8 the witness says he heard when P.W.8 gave evidence. He says the reason his counsel did not tax P.W.8 on this namely whether he sent policemen to the MCCO is because P.W.8 denied this. He says on his part P.W.8's answer to this was clear. He says the name Mpao goes with Mafeto and Lekhooe. He says the problem was his counsel instead of saying Mpao was saying Mpaooa. He says he mentioned Mafeto, Lekhooe and Mpao. He says it may well be his counsel Mr. Phoofolo did not put it to P.W.8. That a third erson had not been suggested to P.W.8, the witness says he told his counsel Mr. Phoofolo about Mpao and if his counsel did not put it to P.W.8 this could be attributed to his forgetfulness. He says the three of them went to P.W.2's office as messengers. He says normally there is one footman and it is not necessary for all of them to go in. He says according to police discipline if three persons are sent only one enters to deliver the message. He says P.W.8 is wrong that he entered the office. He says he was not eavesdroppingbecause he stood where everybody would see him. He says he heard L/Sgt. Lekhooe say: 'I am requesting Penane be released to me'. He says he did not hear Lekhooe say 'chief;' he heard P.W.8 better for he was positioned where he could


192


hear him clearly. He says what happened he had not expected and had Lekhooe finished everything he wanted to say he might have been heard. He says not hearing chief cannot mean he did not hear anything. He says he did not hear what Lt. Col. Penane said because events had happened so fast by Penane standing up and shooting. He says by saying he did not hear Penane it does not mean Penane did not say anything for he could have said something he did not hear. He says he saw Penane draw a gun and heard sound of a 9mm pistol. He says it could well be that Penane missed Lekhooe though not necessarily. Ms. Mahase objects saying Mr. Phoofolo was merely suggesting from the photographs that Penane shot Lekhooe on the left side not that this is what the witness told him. Court: as the objection was baseless and uncalled for, it is overruled. The witness goes onto say he does not know whether in shooting Penane Lekhooe was hit on the left side. He says Lekhooe turned and faced whence the gunshot came and shot with his M16 rifle which was on automatic. The witness says when Lekhooe turned he shot towards where the gunshot came from. He says in turning Lekhooe put the weapon on automatic, pumping it. In demonstration the witness turns from right to left indicating automatic shooting pr-r-r. He says he did not seem to be aiming he merely turned to where the gunfire came from. He had heard another sound of a gun from where he was and it was rifle sound like an Ml6. He had then seen Lekhooe fall and when he fell he was still shooting in the manner demonstrated. He says as soon as Lekhooe fell the door got shut. Lekhooe fell face up. He had not seen bullets. He says Lekhooe did not shoot intentionally for he was repelling the earlier 9mm pistol gunfire. That the gun was already cocked when fired the witness says a trained person can cock at the same time and shoot. He says he was with Lekhooe on being send and had not seen him cock his gun. That according to the evidence Lekhooe turned on hearing Penane, the witness says he turned on hearing the 9mm pistol shot. That Lt. Col. Penane could not have missed at that short range, the


193


witness says it is possible to miss even at close range. Put to him despite his training he did not report to the officer who sent him, he says he never went back to P.W.8 to confront him with the trouble he had put him in. He says if a policeman is sent on a mission and does not report back he has defaulted. He says Tpr. Mpao is the same person P.W.5 testified to that he took cover outside. He says they did not part company. He says that Mr. Phoofolo did not deny allegations by P.W.5 against Mpao and that it was not put to P.W.2 that Mpao was not one of the three (3) sent and that evidence about Mpao is inconsistent with his evidence, he says he was with Mpao who never took any cover. That Mpao was carrying his rifle at high port and was holding a commando sub-machine gun he says P.W.5 was referring to a Mpao carrying an M16. He says there are many Mpao's. He says on 17 June, 1995 he does not recall what he was doing nor does he recall what he was doing on 20 June, 1995. He says he remembers 18 June, 1995 because there was an activity at the range the reason he remembers the exact date because he had written in his notebook and had handed the rifle to P.W.18. He says P.W.18 mentioned the date 18June, 1995. He says the date was put to P.W.1 8 by his counsel. He says his rifle was so defective it could not operate. That the rifle had a defective butt spring and could still fire shots he says P.W.14 did not come with shells from the range and had not said in examination he used A5's gun and it shot. He says P.W.14 did not say what shell he discharged from the gun. He says no question was evaded for it was answered. That even if his rifle was defective there were many rifles he says there were many policemen carrying Ml6 rifles. That he could have borrowed one he says one cannot borrow a firearm from another person for it is signed for to signify responsibility for the issue. He says whoever allows another person to use his rifle is answerable for any consequences.


That he had said A7 had an Ml6 and then said it was because the Ml6 was


194


near A7 he says if people are seated next to each other and a gun is next to a person seated next to you, you may be mistaken as. to the true owner.


Re-examined by Ms. Mahase the witness says in the police force one is not issued with a defective weapon. He says after the shooting he was greatly confused for he was seeing what happened for the first time. He says in his training he was not trained to anticipate that as police they could shoot at each other. When they were sent to P.W.2 they had not anticipated injuries especially between junior and senior officers. He had not made a report of the incident although it had been said he was to make an oral statement at the P.T.C. He was expected to make a statement to P.W.8 and Col. Moiloa. He says in the gathering were heads of Churches and chiefs called by P.W.8. He says in the meeting at the P.T.C. he had discussed the incident with Mpao. If he had anticipated or known there were going to be injuries Lekhooe would not have entered the office.


No questions by the Assessor.


By Court. He says P.W.8 did sent them as he did and had been sent there collectively. He says of those sent a senior delivers the message. He says if police are sent to arrest and a person does not come out he is forced out. He says Lekhooe entered and the two of them remained outside because this is a procedure enforceable in the police force. He says they remained outside for no reason other than obeying police discipline.


D.W.4 Moeletsi Koekoe sworn had stated he heard the evidence before court. He had joined the police force in 1988 and was on 31 October, 1995stationed at the P.T.C. On the morning of 31 October, 1995 he had left his home at about


195


7.10 a.m. He stayed at Lithabaneng and had left his home going to work as usual at the P.T.C. At the bus stop he had found a highway patrol from which he got a lift which took him to police headquarters his aim being to connect a bus to P.T.C. and there he had found many policemen amongst whom he identified one Matsora and Ramahloko. He had asked them what was happening at police headquarters. He asked them because they were many as if something had happened. Matsora had informed him as a result of a letter found they had come for discussions. He had heard what was said while he was awaiting his transport. He had however decided he would find clearer explanation at the P.T.C. the reason being that if there is something to be solved people are normally selected to attend discussions and others remain behind as standbyes. When the bus arrived he had left and it was about 7.45 a.m. At the P.T.C. he had come by the explanation. He says he has nothing to do with Codesa for he is neither a member or a committee member. He says he received an explanation from L/Sgt. Ralebea to the effect that at the MCCO there were policemen who were selected as the ones who would go to police headquarters to attend a meeting regarding their grievances and apart from this there was nothing more. He says he was on standby at the P.T.C. the whole day. He says sometimes he boards a police bus at police headquarters or Lancer's Inn.


He says he has heard the evidence of P.W.1 that he was at Mabote Police Station next to the home of Lt. Col. Penane. He says this is not true for he never went to such a place. He says the reason P.W.1 gave evidence that him, D.W.3, Mafeto and Lekhooe forcibly stopped him on his way from Penane's home is because he has specific intentions about them. He says what's funny is that P.W.1 says they forced him and yet at the same time he gave orders such as ordering people to remove vehicles and ordering A2 to remove his vehicle so that P.W.10 could park and yet he was under arrest. On 31 October, 1995 he had met accused


196


persons at 2.00 p.m. at the time a meeting by Commissioner of Police was going to be held to address the police in connection with the events of the day at the MCCO. Matsora and Ramahloko worked at the P.T.C. as band members.


No questions by Mr. Maieane.


Cross-examined by Mr. Suhr the witness has said he was born in 1964. He says on the morning in question he was wearing an operational uniform and carrying an M16 rifle. P.W.1 had trained him. That he could not have misidentified him the witness says P.W.1 made a mistake by implicating him falsely. He says P.W.1 is a noted liar and he knows him very well for he was once under his training. He says P.W.1 compulsively lies as saying he can drive a vehicle at high speed with one hand. He says he lied about him because he habitually lies. He says when crown witnesses gave evidence he was close to his counsel and consulted with him. He says he told his lawyer to put it to P.W.1 that on the morning in question he was at police headquarters. He agrees this was not put to P.W.1. He says P.W.1 was not telling the truth that he was at Mabote's. That it was neither put to P.W.1 that he is a habitual liar the witness says it is enough to have said he was not at Mabote's for this implies that P.W.1 is lying. That P.W.12 has also testified that he saw him at Mabote's he says this is true for he stays at Mabote's. The witness says he admits P.W.12 knows him very well for they work in the same yard. That there could be no question of PW 12 mistaking him the witness says he instructed his counsel to put it to P.W.12 that he was not at Mabote's. He says P.W.12 could not have been telling the truth for it was only the 18 May, 2000 when his counsel ordered him to make his report, a surprising thing because this matter was dealt with a long time ago in 1995 and it would seem P.W.12 has been lectured to He against the witness because P.W.1 in his evidence did not say P.W.12 had seen him at


197


Mabote's. He says what Mphatsoana has said cannot be true. He says his counsel has disputed P. W. 12's alleged presence of himself and A5 at Mabote's. He says he does not agree P. W. 12 was not challenged regarding his absence. He categorically denies he was at the police station. That he acted in common purpose to arrest police officers senior to him the witness disagrees saying he personally had no clash with any senior officer. He says as a Tpr. he acts under instructions but on the occasion he acted under no instructions.


No re-examination.


D. W.5 L/Sgt. Mokapela sworn has stated he was bom on 6th June, 1966. He says he calls himself ex L/Sgt. because he has been discharged from the police service being on 20 July, 1996. He says he has heard the evidence of crown witnesses and defence witnesses. As for A3's evidence, he has comments to make regarding this evidence. As for 31 October, 1995 for being in possession of a rifle M65, he says he was never in possession of an M65 rifle that day. He says he was holding a police swagger stick dressed in an operational uniform. Then he was based at the MCCO in the investigation office. He says at the time he did not have a rifle issue. He says at the time he commuted between the MCCO and P.T.C. and it was end of August and beginning of September. He had been transferred form P.T.C. to MCCO investigation office. He says on 21.09.1995 he returned an M16 rifle to the armoury at P.T.C. He says he sees Exh "B" confirming what he has just said that he was issued with the gun on 11 February, 1995 an M16 rifle for which he signed before War. Officer Sakoane (P.W. 18) on 21.09.1995. As for witnesses who say they saw him he wished to comment on this evidence especially that of Mrs. Petlane P.W.5; he says P.W.5 is right to say she met him on the morning of 31 October, 1995 with A4 L/Sgt. Ramakhula. He agrees he spoke to her in the normal


198


way by colloquially referring to each other as 'Phoofolo' (animal). He says he disagrees with her when she says at a certain time Sgt. Mosae (A3) and him called her from the radioroom; further, that A3 said P.W.5 should stop phoning though then he was a L/Sgt. and A3 a Sgt. He says if so, he could advice A3 to stop what he was doing for their mission had nothing to do with telephones. He says he was member and committee member of Codesa. As for P.W.4, he told the court the truth for he had demonstrated how he greeted him that morning. As for P.W. 7, it was true he saw him with the 2nd Lt. Motenalapi that day. He says then Motenalapi was standing with 2nd Lt. Matsoso and A3 and they had gone to P.W.7. They had given their compliments as usual and had moved a few paces from them though he could hear what they said. He says he moved off because he believed P.W.7 wanted to talk to 2nd Lt. Motenalapi. He says he heard when A3 told P.W.7 what for they were at the MCCO and P.W.7 seemed satisfied for he went to tell P.W.5 as to their mission namely; talks. He says it was only at police headquarters he knew of the meeting. He got to the MCCO at about 4. 50 or 5. 00 a. m. and had been collected from his home by Sgt. Makateng saying there was something urgent which the committee members needed to discuss.


By Ms. Mahase the witness says on the morning of 31 October, 1995 he was already with A4 for when Rev. Sgt. Makateng arrived he had suggested to call at A4's home who was his neighbour. He says he was for the most time with A4, and does not think they parted company until they got to the P.T.C. He says the period

of parting was very brief.


Cross-examined by Mr. Suhr the witness says Codesa was made up of committee members only and it represented police grievances. The gathering that day was not arranged by Codesa and he says he was not stationed at the P.T.C. but


199


at the MCCO. He says the reason he dressed in operational dress was his usual manner of dress though he did not work at the P.T.C. He says police at MCCO and Stock Theft unit wear operational uniform. Those who work in the investigation office as their job is rough, they wear operational uniform or plain clothes at times. He says his commanding officer is War. Officer Mfundis and investigation was the responsibility of Lt. Col. Penane. He says he knew about the gathering or meeting some Codesa members held at police headquarters. He says he and L/Sgt. Ramakhula went to the MCCO where there was a number of policemen and he spoke to Tpr. Ngatane, Lenka and Boseka. He says he can't say there was somebody in charge for they were mixed, some from the charge office and others from the P.T.C. They had said they were to hold a meeting with senior officers at the MCCO concerning their grievances which they had provided 2-3 months previously to Codesa. He says he was speaking to troopers. He says he does not know whether the meeting was authorised or not authorised. He says whenever a meeting is to be held concerning police grievances Codesa is informed but in this instance Codesa was not informed. He says their purpose as Codesa was to go to the MCCO to investigate what was taking place and they had found out why the police were at the MCCO. They had gone there on their own because they had fallen out with the committee which was to forward their grievances to senior officers. He says by then he could not say the meeting was authorised by anybody and he says he only knew there was an anticipated meeting and that if held it was to be peaceful and this explained Codesa presence when, to this end, they made the overall commander P.W.5 Mrs. Petlane to know so she could inform her superiors for them to decide whether the meeting was to held or refused. The witness says their mission as Committee members was to find out what was going on and they did find out. To have talks, according to the witness was not their mission because they did not know there would be a meeting for theirs was to mediate and intervene.


200


As to why it was necessary for them to inform Mrs. Petlane he says she had said she did not know why the policemen were there for she thought they were just walking around while theirs was to mediate if possible. He had explained to P.W.5 in detail about the discussions. He had explained to her police grievances and the propaganda against them spread by P.W.1; the misuse of some officers, with regard to the police strike which created divisions among the police. He says he said they were there to mediate and intervene. That P.W.5 said he said he was there for discussions and that he did not take her into his confidence he says he does not remember this. That a fundamental part of his case was not put to P.W.5 the witness says he does not remember if it was put to her though he does not think that was necessary. As for ignoring P.W.7 when he called him he denies this; that P.W.7's evidence was not challenged on this aspect he says even if it was not challenged this was of minor importance for he stated he was within hearing shot. He does not remember whether Motenalapi said he was waiting for transport.


The witness has testified as far as his weapon is concerned, on 31 October, 1995 he did not have a firearm. That at the gate P.W.4 said police at the gate were armed with rifles and in operational uniform, he says he greeted P.W.4 with his hand and not an armed salute. He says it was unnecessary to challenge something so clear. He says it is impossible to greet an officer by hand while armed. The witness says if he greeted P.W.4 as alleged, it does not account to a salute. He says he does not recall P.W.7 saying he was in operational uniform and armed with an M16 rifle. That P.W.7 was not challenged on this score he says P.W.7 did not say this and in any event he is now telling the court that he was not armed with a rifle. He says he agrees A3 went into some detail about the M65 he was carrying; he says Sgt. Mosae said there was a rifle next to him but not that he carried a rifle. As members of Codesa, he knew nothing of events at Mabote's and the events at Mabote had


201


nothing to do with Codesa. As between accused 4 and himself, he says he was the leading role player for he did the talking. He says he does not know if he commands English well and is a forceful speaker. He says the role he played at the MCCO was intervention an mediation and not taking over the premises.


Re-examined by Mr. Maieane the witness says between himself and Ramakhula the latter is his senior.


By Court: He says his presence, Mosae's and Ramakhula1 s was authorised by reason of being committee members for whenever there were trouble spots the committee had to intervene by authority of the Commissioner of Police. He says their presence at the MCCO was lawful because they were doing a duty they had to do as policemen. As for Sgt. Mosae, Ramakhula and himself they were not responsible for who came in and went out and it would have been right for P.W.5 to have told him who of the committee members resisted her. He says he does not remember P.W.5 saying him, Mosae and Ramakhula had gone to the MCCO to mediate as committee members of Codesa. He says from P.W.7's manner of talking he had deduced he had been sent from the P.T.C. He says he had heard P.W.7 ask A3 why they were at the MCCO and Sgt. Mosae had explained. In talking to P.W.5 P.W.7 had said he had already spoken to police from the P.T.C. who said they had come for talks and he had then said to P.W.5 that she was to tell her seniors that P.T.C. policemen had come for talks.


Arising by Mr. Maieane the witness has said at the time it was not necessary to inform P.W.5 that he was a committee member of Codesa for this was common knowledge. He says the sole reason for their presence at the MCCO was to intervene. As for P.W.7's presence at the MCCO, he did not know why he was


202


there.


D. W.6 Matamo Leuta sworn states: He is 44 years old and joined the police force in January, 1977. On 31 October, 1995 he was a Sgt. stationed at the P.T.C. attached to the band unit. He had heard the evidence of P.W.1 and P.W.1 2. That he was at Mabote police station on this day he says on this day in the morning, though he does not recall time but before sunrise, Sgt. Makateng had come to him at his home driving a community public relations combi and had said there was an urgent matter requiring attention at the MCCO. He had put on his operational uniform and armed himself with an M16 rifle. They had gone via A5's home as it is near the road and found others at the MCCO and there he had found policemen assembled. Some committee members had been detailed for specific tasks and though not one of them he was nevertheless a member of the committee. These were A3, A7 and A4. They had gone to the Charge Office. The witness says though P.W.1 had testified he was with the witness at Mabote police station, and the witness was angry inquiring if P.W.1 had not been locked up, it was surprising P.W.1 says he was still able to dish out instructions to the witness. The witness says he was not at Mabote's on 31 October, 1995 and knew of no activity there. He had never on 31 October, 1995 met P.W.1 and had met him months after it being claimed he came from Pretoria. He says P.W.1 knows him very well for they worked together for a long time. As for P.W.12, he says he was once his immediate supervisor and were band members at the P.T.C. As for P.W.12's evidence that he was at Mabote police station, it is not true for P.W.12 says when he got to Mabote's, he went to P.W.1. He says he fails to appreciate how P.W.12 being his junior and P.W.1 his senior P.W.12 could have passed over the witness to go to P.W.1. He says nowhere in P.W.12's evidence has P.W.12 mentioned he spoke to the witness. He says it is not true he was at Mabote's for he was never there. Apart


203


from P.W.1 and P.W.12's evidence, he says the evidence is true and he has no quarrel with it including the defence evidence.


Cross-examined by Mr. Suhr the witness says he has had ample opportunity to consult with his counsel. He says he has heard P.W.l's evidence about him afterall they work together. He says since his birth he has not come across such a habitual, compulsive liar like P.W.1 who appears to have been born a liar. There was no bad blood between him and P.W.1 save that P.W.1 is a liar. He says he can give an example; he told the court that from a T - junction he came driving at 60 kilometres per hour. From Mabote to Khubetsoana it is impossible to drive without stopping and that at 60 kilometres per hour. The witness says he has driven for twenty-one years. There were other lies. He had bayoneted a government vehicleand having done so claimed to have

been besieged by the response and band unit personnel with a hail of bullets and when the vehicle was examined by experts, they had found it was bayonetted but he was an officer and it was said he should repair the government vehicle. The witness says blood is thicker than water. He says the reason P.W.1 gave evidence against him was that he lied naturally for lying is in his bloodstream. As for P.W.12 putting him at Mabote's, he says because he comes immediately after the witness in rank, he wanted to bury him alive so he can be promoted above the witness. He says since his arrest on 16 February, 1997 P.W.12 has since been promoted. As to why this was not put to P.W.12 he says denial of being on the scene does not need to be put to a witness for his lawyer had said he was not at the scene. He says even if it was not put to P.W.12 this is what he is now telling the court. He says the reason he went to the MCCO was after hearing gunfire he drove in X 2174 a signal car, to find out what had happened. He says at police headquarters it was to mediate in connection with policemen gathered at the MCCO as they did not know of their presence there and after the gunfire he had


204


gone to the MCCO because it was said some police were sent there by P.W.8. He says the committee was there to mediate. That this was not put to any of the crown witnesses he says he cannot say why. He says he was armed with an M16 and the rounds were live. He says loading or not loading is a matter of individual conscience though he cannot load blanks. He says P.W.1 is not telling the truth when he says he had gone there to arrest him for how could he obey P.w.1's instructions if P.W.1 was under arrest?


No re-examination by Ms. Mahase.


Defence case.



Mr. Suhr's address to court can be summarised as having said that the evidence discloses that events of 31 October, 1995 took place against a background of dissent and ill-discipline in the Lesotho Mounted Police and that tensions which existed between A1 and P.W.1 had remained unresolved leading directly to the organised and co-ordinated operation of 31 October, 1995 and that those who participated in the events of 31 October, 1995 had common purpose and the motive was to force a meeting with police at police headquarters.


Mr. Suhr has also submitted the weapon carried by L/Sgt. Lekhooe was lethal (and I may add it had been described by P.W.14 as a weapon of war with no civilian application) and in the event of being used death was a possibility which those who joined in the common purpose should have foreseen. Mr. Suhr has also said generally speaking, the case of accused was not put to crown witnesses.


Mr. Suhr has quoted a number of cases postulating the doctrine of common


205


purpose and has given a number of categories emanating from the decision in Mabaso and Another v. Rex, LAC (1980 -1984) 256 at 258-9 where the dictum from S. v. Makala, 1969 (2) S.A. 637 (A) 640 was quoted and approved by the Court of Appeal which dictum was summarised by Mr. Suhr as capable of being divided into a number of categories of which in the instant case he relied on the third category namely:


that accused being a party to a common purpose to commit some other crime, and seeing the possibility that one or both of them might cause death to someone in the execution of the plan, yet he persisted, needles of such fatal consequences - see S. v. Malinga and Other, 1963 (1) S.A. 682 (A.D.) at p.694F - H and p.695.


Mr. Suhr has also said in view of the remarks by A1 in the cell at Ha Mabote and later A2 and A5, category (b) was also applicable being: 'that accused were a party to a common purpose to murder and one or both of them did the deed-'.


Basically, Mr. Suhr's submission is that irrespective of accused's participation in the murder or injuries sustained, and there being no causal connection between Lekhooe and may be Mafeto or for that matter Mpao's conduct, since these had acted in furtherance of common purpose they were all guilty irrespective of who inflicted the fatal injury or other injuries complained of. Actually, according to Mr. Suhr, the fact alone that accused conspired and did arrest and detain P.W.1 makes them guilty of murder and serious bodily harm. With regard to kidnapping time for which P.W.1 detained was irrelevant for the only question which arose was whether P.W.1 was deprived of his liberty. Against Mr. Suhr's contentions Mr. Maieane for the 1st and 7th accused has said since the Crown's case is based on common purpose this court was to carefully examine the


206


individual role of each alleged participant. On the other hand, Mr, Phoofolo for A2, A3, A4, A5 and A6 has said since the case is. based on common purpose association and metis rea of each accused is the prerequisite for conviction. He has also complained that a huge body of armed police gathered at the MCCO on the fateful day and yet the crown appears to have picked and chosen who to prosecute. Quoting from a judgment by Corbett, C.J. (as he then was) in Magwood v. Janse van Rensburg and Others, 1993 (1) S.A. 777 (A) at 810 B-C and G-H, he has said accused cannot be found guilty of sharing common purpose with others by a process of osmosis and that in the absence of a prior agreement or conspiracy the doctrine cannot be used as a method or technique to subsume the guilt of accused -, nor can it operate as a dragnet operation to systematically draw in all accused.


The court now wishes to go into a comprehensive analysis of the crown evidence.


As far as P.W.l's evidence is concerned, the anonymous letter received appears to have opened a can of worms for later, according to P.W.1, an attack with weapons had been mounted at his home and A1 was the suspect. Although the source or authorship of the letter was not established, in his evidence-in-chief or as it were defence, D.W.I bitterly complained of the brutality which Lt. Col. Penane and P.W.1 displayed towards in particular female teachers on strike. Efforts to have these two removed from dealing with the strike had failed and the question to be posed is: since the police management had not listened or heeded the advice to remove P.W.1 and Penane from dealing with the teacher's strike, it is possible A1 took it upon himself, with the assistance of others, to remove P.W.1 and Penane by force. Noticeably, the evidence throughout relating to police grievances has hinged on P.W.1 and Penane.


207


I must say however P.W.1 's evidence apart from telecommunications he may have had, his evidence relating to events at Penane's home was not essentially corroborated and that P.W.l's evidence standing alone has to be approached with caution for P.W.1 appears to be a split character now submissive and cowering and then mighty and valiant under the same prevailing conditions. He has castigated every policemen he met at Mabote imputing to them conspiracy with A' and company even though it seemed they were fearful of what was taking place. P.W.1 was also guilty of gross exaggeration as he claimed to have driven at high speed on a congested road with his vehicle belching smoke and that at a four-way stop! Personally I was not much impressed with his testimony though in essential respects he was corroborated by A1 himself and P.W.12. I was impressed with P.W.12's evidence for the witness did not seem to have an axe to grind save relating his experience of the time


Police cells are normally under lock and key unless there are inmate(s) inside. How A1 got hold of the cell keys is a mystery unsolved though, of course, there can be no doubt that there were police elements who were sympathetic to A1's inclinations and solution of problems besetting the police force.


As for P.W.2's evidence, he has testified that on 31 October, 1995 he was preparing to go to work so that, for police servicemen, there are no alarm bells going to work early in the morning and consequently, going to work early in the morning taken alone, is hardly anything to raise eye brows about.


According to this witness, there was tension, the situation was threatening and required to be quelled but how, he did not seem to have a ready made solution for, according to him, raising or appealing to another force would have been counter-


208


productive. From this witness's testimony, it is unlikely Penane knew Lekhooe had been harassed looking for him for Penane did not seem to know Lekhooe. Though P.W.2 denied this, it is possible Penane overreacted for why did he not ask Lekhooe what for do you want me instead of resorting to aggressive if defensive tactics? Evidence was of course to the effect that Penane was short-tempered. But Penane already knew he was a wanted man and had expressed this to his fellow officers in P.W.2's office. Was he expected to sit tight, pawn and fawn before a junior officer who wanted him for whatever reason? From this witness's testimony, I am satisfied that Penane, in spite of himself, reacted as he did to resist and thwart Lekhooe's sinister, unexplained motives. I do not accept that it was prudent of Penane to have awaited his fate instead of pre-empting it. If events at Mabote are taken into account plus the defence evidence in this regard and the fact that in the teacher's strike P.W.1 and Penane worked as a team, it becomes patently clear that Lekhooe wanted Penane for the same reason for which P.W.1 was wanted at Mabote. Rather strange, it would appear until there was a meeting between A1 and P.W.1 hosted by Col. Nalede difference between A1 and P.W.1 had not manifested themselves or come out into the open as prophesied by Col. Nalede when he said 'I do not want either of your men to come with your men to fight each other'. Surely Col. Nalede must have known that there were two hostile camps within the police force. Can it therefore be said the wisp of smoke that developed into a fully extended conflagration enveloping, as it did, the entire MCCO in its human devastation was the result of P.W.1, however much his denial to the contrary, claiming that A1 had attacked him at P.W.l's home or are there other reasons? Of course as I have shown above, there were plenty according to A1's evidence. Has to be remembered that A1 or his committee were supposed to act in other's interests and not their own and could not be expected to descent into the arena like gladiators. According to P.W.2's evidence, differences between A1 and P.W.1 went


209


back to the teacher's strike and in this context, it would appear Codesa' s intervention was used as an excuse and undercover to achieve A1's objectives against P.W.1 and Penane. There can be no doubt that the purported arrest and detention of P.W.1 and the attempted arrest and detention of Penane was only the tip of an iceberg. I do not agree that there was reason for Penane to run from pillar to post like a threatened rodent as P.W.2 has testified. He was free to go to where his duties demanded his presence. There was no emergency or like threatening circumstance behoving him to flee his enemies or seek sanctuary as P.W.2 has testified. I have believed P.W.2's evidence that Penane was threatened and that the threat could not be countered lest there be bloodbath. One would also have thought the so-called Codesa was designed for amicable settlement of disputes; if so, why was Lekhooe and his co-conspirators sent to fetch Penane? P.W.8 Deputy Commissioner Makoaba has denied sending Lekhooe and company to fetch Penane and P.W.2; if Codesa's intentions were peaceful, why then was Lekhooe and company detailed to fetch Penane? I have believed P.W.2 and other supporting crown witnesses that Lekhooe's venture into P.W.2's office was to fetch Penane to an undisclosed destination and further, that Penane was entitled to resist the unlawful invasion of his freedom of assembly and association.


From P.W.2's evidence too many disquieting features emrge. Counsel for the defence keeps on saying the position of the rifle as demonstrated by the witness is in accordance with instructions; whose instructions since Lekhooe is dead and A5 claimed to be outside was unable to witness everything that transpired in P.W.2's office? If, as it was put to P.W.2 members of Codesa had come for a meeting purportedly to be held in P.W.2's office, exactly what did Penane and P.W.1 have to do with the discussions? Why was Penane wanted by Lekhooe, was it to make him attend Codesa meeting by force? And yet one would have thought Codesa was


210


a voluntary association to settle police grievances and that attendance was optional? In any event, was Lekhooe a member of Codesa? If not, what did he have to do with Codesa affairs save being an interloper and a mercenary? If anything, P.W.2's evidence does not show that there was just cause for the assembly at the MCCO by the response and band unit of the P.T.C. or for that matter the so-called Codesa.


As I said above, because it was necessary to hand in photographs and the person who took the photographs was P.W.3, P.W.2's evidence was interrupted by P.W.3's evidence in order to hand in the albums and be cross-examined on them. Having done this P.W.2 had been recalled for cross-examination.


The impression by the defence was that P.W.2 was reluctant to hand over his service pistol to P.W.3 for some sinister motive. P.W.2 has denied this saying it had been agreed the weapon would be handed in later along with other weapons and in fact it was handed in later. Moreover, P.W.3 was considerably junior to P.W.2 and the latter could have chosen to have the weapon handed in by him to a more senior officer. I do not see anything untoward in P.W.2 having traded-in the weapon for from the evidence before me, it does not seem that P.W.2 discharged a weapon during Lekhooe/Penane's confrontation. If he had, certainly the weapon would be required for ballistic tests. There was also an allegation that P.W.2 had disturbed the scene of crime making it difficult for P.W.3 to do her job properly. It has to be remembered that the occurrence was of enormous proportions with occupants in P.W.2's office in a state of panic and confused. Mistakes could have occurred because of the messy state of things but I do not think that it was to hide anything afterall evidence was clear what transpired.


I do not think it is important on which side of the body Lekhooe was shot so


211


long as he was shot and the culprit has been identified. Part of the body where a victim is shot is important if there is controversy as to who shot between two or more people. In this case crown evidence points only to Penane as having shot Lekhooe.

As for P.W.3's evidence, clearly it was contused and incomplete for reasons she stated but largely her evidence was in material respects complemented by that of P.W.14 and P.W.17. I do not agree that her evidence had an ulterior motive.


P.W.4's evidence was clear and forthright and in some respects was admitted by the defence. This was a good witness and the court had believed the witnesse's testimony.

As it were, P.W.5 was a star witness and gave her evidence forthrightly and without bias. Although she was subjected to lengthy and strong cross-examination she was unshakeable in the witness box. What's more, I do not think there is much difference in 'are we under arrest' and P.T.C. police have 'taken over the MCCO' -it's all a question of semantics and I do not find that the statements are conflicting. That her evidence was self-contradictory because she had testified she had seen P.T.C. police take cover before the shooting when in her statement she had said it was after the shooting, the witness had conceded the right version was in her statement. It has to be remembered that events had taken place almost five (5) years before the witness gave evidence and loss of impressions cannot be excluded.


P.W.6's evidence was the most damning against A1, A2 and A3 showing common purpose between A1, A2 and A3 and Lekhooe. Why agree to disperse if their presence at the MCCO was innocent like the rest of the police? Efforts to


212


discredit the witness had not succeeded and the court had believed the witness's testimony.


P.W.7's evidence left much to be desired. He was a senior officer at the Police Training College and yet he did not know the whereabouts of the police response and band unit directly under him. Detailed to find out about them he had found them at the MCCO where a few cursory inquiries revealed to him that the response and band unit was at the MCCO for talks. He has nevertheless thought if the response and band unit was to absent itself it could only do so on an operation sanctioned by the Commissioner of Police otherwise the unit was to obtain permission from him for it's absence. Since the unit had not obtained permission from him or Col. Monyeke the Commandant, one wonders how P.W.7 found the unit was properly at the MCCO for a meeting. Strangely, instead of verifying from P.W.2 as to the presence of the unit at the MCCO instead P.W.7 had dished out orders to P.W.5 to inform her superiors that the unit was properly at the MCCO. One could not have been more credulous and easy of circumvention! When everything is said and done, this is the man who could have averted the unhappy events of 31 October, 1995 had he recalled the response and band unit as he should have done. It is no excuse that discipline in the response and band unit was at it's lowest at the time.


P.W.8 Gen. Makoaba's evidence was convincing, well-reasoned and I have found nothing wrong with it. I am satisfied that he did not sent Lekhooe, A5 and Mpao to fetch Lt. Col. Penane and P.W.2. P.W.9's evidence was not challenged and the court has no reason not to have believed it.


P.W.l0's testimony for what it was worth did not take the crown case any


213


stage further. He seemed uninterested in the whole episode and did not care a hoot as to the presence of A1 and others at Mabote Police Station - possibly because, as he said, he had telephone Col. Mpopo who confirmed he knew about what was happening.


As for P.W.11's evidence, I have already said that I find nothing conflicting in him having said P.W.5 said 'we've been captured' 'when P.W.5 had said 'are we under arrest' for to arrest is to capture and it is not possible for people to reproduce words and statements like a machine. This witnesse's testimony favours the proposition that between Penane and Lekhooe it was the former who shot first but as I have said Penane was entitled to act as he did for he was not a child to be herded into a kraal like an animal for slaughter. He was entitled to resist interference with his person and freedom of movement. The witness was not shown to have lied and the court believed his testimony.


I have already dealt with the evidence of P.W.12 who, despite his statement being taken belatedly was impressive in the witness box with no axe to grind. The court has believed his testimony. Neither was P.W.13's evidence shown to be false and accordingly the court believed his testimony.


P.W.14 was the ballistic expert who testified as to weapons and ammunition brought to him for tests. I did not take his evidence to have been sufficiently challenged to cast doubt on it and I have believed it as true nor indeed have I found anything wrong with P.W.15's evidence which the court believed.


As for P.W.16 he was responsible for a messy register. There were omissions in his register unaccounted for and this court was constrained to take his


214


evidence seriously. This also goes for the evidence of P.W.18 and I have not found anything wrong with P.W.17's evidence which I believed.


I now wish to return to arguments raised by counsel on either side and in particular Mr. Suhr's principle of common purpose and the starting inquiry is who, at Mabote's, had the intention to arrest; who arrested P.W.1 and detained him? Crown evidence has shown that it was A1 and his company. Can, as Mr. Suhr has submitted, the intention and subsequent act be transferred to events at P.W.2's office or the basis of common purpose? Has to be accepted that common purpose applies to murder cases. Also, does the possibility not arise that others at Mabote's could have ended their mandate at Mabote Police station having washed their hands off events at P.W.2's office? Mustn't there be a chain of events with an unbroken link for the doctrine to operate? Unfortunately P.W.1 was arrested at a different place, by different policemen at different times. What link then exists between events at Mabote and those that materialised in P.W.2's office? Importantly, as to physical participation, it is not all those at Mabote that participated at P.W.2's office.



Significantly, and unless I am wrong, I am not aware that Mpao participated at Mabote's but appears to have suddenly emerged at the MCCO. Nor indeed am I unmindful of the fact that trained as they were then, accused were militaristic and it is not uncommon to ask for volunteers for a mission. It was not on the flipping of a coin that Lekhooe, A5 and Mpao went to P.W.2's office. They volunteered for there was no evidence that it was in honour of superior orders P.W.8 having denied he sent them. Perhaps in the instant case it may be said the intention was to arrest both P.W.1 and Penane and that since the intention was shared by accused by reason of their agreement or conspiracy, it is immaterial who carried out the plan. But then as 1 have said, common purpose applies to murder cases. But then again,


215


But then as I have said, common purpose applies to murder cases. But then again, is Mr. Suhr saying if P.W.1 had resisted, murder would have resulted and it is immaterial whether he offered no resistance since, Penane having resisted the common design of accused, murder occurred making all accused who participated in the arrest of P.W.1 equally guilty of events at P.W.2's office?


As this court sees things, there were different patterns to the episode. There were some among accused who wanted P.W.1 to be brought to book and there were some who desired the same of Penane being those who surrounded his home if there is sufficient evidence to the effect and of course those who were at the MCCO walking up and down aimlessly. Against the accused is the fact that they have not testified that they were misled, taken for a ride by the more cunning and scheming. Despite weighty evidence against them, they have seen it fit to deny involvement.


Despite what Mr. Suhr has submitted that accused were heavily armed ready to render assistance should matters come to a push, matters had come to a push and yet, outside P.W.2's office, those expected to render assistance were conspicuous by their absence except devastating fire from the doorway which could have come from A5 were he outside and being inside P.W.2's office, came from Mpao who, it was claimed, remained hanging outside when Lekhooe and A5 ventured into P.W.2's office. I have no doubt that a person(s) who was ready to render assistance should anything go wrong to Lekhooe was A5 and Mpao both inclusive. According to the evidence, A1 was passive but nevertheless in sympathy with Lekhooe. When firing occurred in P.W.2's office, there was no reaction but bewilderment. And yet, given these conditions, Mr. Suhr would have me stretch the principle of common purpose this far and make the principle an all consuming monster or as is sometimes said, a lose cannon ball or, as Justice Corbett said in Magwood case above, find


216


accused guilty of common purpose by a process of osmosis. As the learned Chief Justice said in the same case, I do not think the magic phrase 'common purpose* can be used or allowed to operate as 'a dragnet to systematically draw in all accused.


The truth of the matter is that had police who gathered at the MCCO been allowed to go about their business independently of the so-called Codesa, all would have gone well for in the event of disruption or riotous behaviour resulting in bloodshed, the police gathered at the MCCO would have been individually and collectively responsible. As it is, they are not for Codesa has claimed responsibility for the gathering for purposes of mediation and settlement of grievances. As it turned out, the so-called police grievances were nothing but orchestrated clamour and vendetta against P.W.1 and Penane for their misdeeds particularly in the teachers strike.


As this court sees things, since the police management had foiled to settle the dispute between A1 and P.W.1 and by extension Penane, it was time A1 settled the dispute on his own terms. A1 could not have been more influential with lower ranks of police cadre; by reason of his charisma, he was to them their little Napoleon and redeemer of problems besetting the police for in him they saw salvation of the police force which, at the time, was rudderless, steering in stormy waters. I could never understand how, according to P.W.8, a whole Commissioner of Police submitted himself to tantrums of junior officers herding him into a hall, patrolling passages only to be rescued by P.W.8. But then again it would seem the Lesotho Mounted Police was undergoing a metamorphosis, being the case of the old order giving place to new.


The truth, as I see it, is that the old, fossilized police force was becoming


217


transformed by the entry, into the force, of young, vibrant intelligentsia who were intolerant of the old order. In the event, clashes were inevitable. A1 was nothing but standard-bearer of reform and perceived progress. In his defence he has spared no words to say that the sum total of their grievances was that the police force was to abandon its old ways and embrace the new ways. According to him, the old ways, were the misuse of the police force as had happened in the prison strike where police were pitted against prison warders. Concerning the teachers strike, A1 had understood picketing as within the Labour Law and that it was wrong for teachers to be subjected to the demeaning treatment meted out to them by the police when they were exercising their democratic right. It would seem, them, that A1 was prepared to stick his neck out and suffer the consequences for the sake of reform and modernity. In ecclesiastical circles it has been said the blood of martyrs is the seed of the church; in A"s case, perhaps the blood of reformers is the seed of progress.


In this judgment, I must point out how irresponsible and bereft of judgment the police force was as demonstrated by the action of the then Commissioner of Police Pinda who was prepared to be herded into a hall and jumped over by his junior officers; by P.W.7 Lesiamo who did not verify his facts despite the fact that he did not know the whereabouts of his P.T.C. response and band unit who careered around the countryside unchecked. The fact of the matter is the police force of the time was so demoralised it was ready for the taking.


Common purpose, the integral part of the crown case has ben described by Prof. BurchellS.A Criminal Law and Procedure, Vol.1, 3rd Ed. at p.307 as: 'where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one


218


of their number which fells within their common design. Where the participants are charged with having committed a consequent crime'; according to Prof. Burchell (ibid), it is not necessary for the prosecution to prove beyond reasonable doubt that each participant committed conduct which casually contributed to ultimate unlawful consequence for all that is necessary to establish is that they agreed to commit a particular crime or actively associated themselves with the commission of the crime by one of their number with requisite fault element. If this is established, then the conduct of the participant who actually causes the consequence is imputed or attributed to the other participants. Moreover, the learned Prof. Burchell says it is not necessary to establish precisely which member of the common purpose caused the consequence, provided that it is established that one of the group brought about the result.


With common purpose in mind, it was held in Garnworthy, 1923 W.L.D.17 and R. v. Itumeleng 1932 O.P.D. 10 where further crimes are committed by one of the parties after the attainment of their joint design, responsibility therefore is not collective but individual, their association having ceased at that stage. It was also held mere presence at the commission of a crime does not, in itself, constitute an implied common purpose with the actual perpetrator for to be an accomplice the accused must in some way make common cause with the actual perpetrator and thus participate in the crime - see R. v. Motaung, 1961 (2) S.A. 209 (A) at 201-11; S. v. Macale, 1962 (3) S.A. 270 (A) at 274; S. v. Xoswa, 1965 (1) S.A. 267 ©at 269. S. v. Thomo, S.A. 1961 (1) S.A. 385 (A) at 399; S. v. Madlala, 1969 (2) S.A. 637 at 641; S. v. Ngobosi, 1972 (3) S.A. 476 (A) at 1044 - 5 (per Hoexter, A.J.A.). The decision was the same in Macala above and R. v. Kgolane, 1960 (1) PHH-100 (A).


But apparently becoming a member of a band with common intention to kill


219


coupled with presence at the scene of the killing would attract liability - see S. v. Macala ibid, R. v. Kholane, 1960 (1) PHH110 (A).


The only accused persons brought within the purview of these cases are A1, A2, A3, A5 and Mpao notwithstanding that participation and involvement by A2 and A3 was minimal as the crown conceded.


As to intention, accused persons had not only the cognitive but also the conative element of intention in that they knew that by arming themselves, arresting P.W.1 and attempting to arrest Lt. Col. Penane their advances could cause injury and despite this persisted in the plan not mindful whether injury or death resulted. Accused should have been aware that their conduct was not covered by any ground of justification. Accused were well aware of the consequences of their act and in engaging in it regardless had the necessary intention to murder and cause serious bodily harm. Accused appreciated that death or serious harm would result from their act. It is not material whether there was desire to achieve the result the important consideration being whether the accused recognised that death or serious bodily harm would result. In faking a meeting and discussions with the police management when the real reason for assembling at the MCCO was to cause Penane's arrest; accused were well aware of the consequences that might follow from their unlawful assembly and therefore had the necessary intention to cause death and serious bodily harm.


This is a case where accused have committed the actu reus well aware it may cause death as opposed to where the will of accused is directed to compassing the death of the deceased.


220


evidence relating to firearms and ammunition and the fact that the crime of scene may have been disturbed. The court has, however, found that this was attributable to the panicky, macabre and weird state of affairs reigning after the shoot out. Besides, the court has not been told it was a case of police officers shooting at each other and covering their tracks.


The court has believed crown evidence and rejected defence evidence as false, and a tissue of lies; a hoax and ruse designed to mislead the court.


Accordingly, the crown having proved its case beyond reasonable doubt on


Count 1: Accused 1,2,3,4, 5, and 7 are found guilty as charged.

Count II: Accused 1,2, 3,4, 5 and 7 are found guilty as charged.

Count III: Accused 1, 2, 3, 4, 5 and 7 are found guilty as charged.

Count IV: Accused 1, 2, 3, 4, 5 and 7 are found guilty as charged.

Count V: Accused 1, 2,3,4, 5 and 7 are found guilty as charged.

Accused 6 is found not guilty and is acquitted and discharged

on all counts.


221


counts.


Count VI: Accused 1,2, 5 are found guilty as charged and accused 3, 4, 6 and 7 are found not guilty and they are acquitted and discharged.


G.N. MOFOLO

JUDGE

1st March, 2001.


My Assessor agrees.


For the Crown: Mr.Suhr

For Accused: 1 and 7 : Mr. Mosito

For Accused 2, 3, 4, 5 and 6: Mr. Phoofolo


EXTENUATING CIRCUMSTANCES


Extenuating circumstances have come to be accepted by courts of law as 'circumstances which lessen the seeming magnitude of an offence, which tend to diminish culpability_______.' see

It would seem to this court when all is said and done, accused did not have the foresight to foresee and forestall consequences of their act to assemble police


222


at the MCCO and proceeding to have Penane arrested and detained. That they took a very narrow and shortsighted view of the situation. To put it in another way, it would seem accused were not conscious of what might eventuate in arresting and incarcerating P.W.1 and attempting to arrest and incarcerate the late Lt Col. Penane. All accused were concerned with was effecting arrests without calculating the fatal results that might eventuate from these exercises in the event of resistance. I did not see accused as either having compassed or directed their will towards causing the fatalities. The reason I found accused persons guilty of murder on the principle of dolus eventualis. As to dolus eventualis as an extenuating circumstance, it was said in S. v. Mnyando, 1973 (4) S.A. 603 (N.P.A.) That 'the key question is not what a reasonable person in the position of accused would foresee, but the existence of an actual awareness of the dangers which might result from his conduct.' Without blurring the distinction between dolus evantnalis and negligence, something to be guarded against, it would seem dolus eventualis is concerned with an accused's conscious foresight. It really would seem dolus eventualis is nothing but a court drawing an inference from a set of circumstances that an accused should have been conscious of consequences that might eventuate from his act, because it is hardly possible for an accused to accurately calculate the occurrence of the consequence. All that this means is that where the doer did not become conscious of the consequence, he is guilty on the principle of dolus eventualis.


In this court's view, the crime was not committed from inherent wickedness but in the belief (albeit wrongly) that since the authorities were weak-kneed and indecisive it was necessary to discipline P.W.1 Ramoeletsi and the late Penane by arresting them and incarcerating them.


Largely accused were petulant displaying amazing immaturity despite their


223


age and training. Amount has also to be taken of the tact that the Crown has conceded there were extenuating circumstances. Moreover, it was conceded by the crown that indiscipline in the police force was rife at the time with senior police taking sides with the reformist accused who were sick and tired of the impotence and the fossil that the police hierarchy of the time was and they attempting, instead, to usher in an enlightened police structure and leadership.


Having taken into account a combination of these circumstances, the court had found there were extenuating circumstances.


IN MITIGATION OF SENTENCE


The court having found accused guilty as shown above and the crown having submitted there were no previous convictions against accused, in mitigation of sentence on behalf of accused 1 and 2 Mr. Maieane had submitted during the period of incarceration accused had not been paid and they had lost their salary for a period of four years. In particular accused 1 had been arrested on 16 February, 1997; he was a married man with three children all school-going; he had a sickly mother and was the only breadwinner. He was head of family and as such assumed family responsibilities. Wife not employed and because of the long period of incarceration his policies had lapsed. Further, in consequence of the conviction he would lose his job. Accused 1 had been in solitary confinement and had developed hypertension and related deceases.


As for accused 7, he was also a family man married, and with five children


224


ill school-going. Wife was not working. Accused had two elderly dependants aged 73 and 81 years. He had not been paid since incarceration spanning a four year period. Insurances had lapsed and he had been discharged from the police service. Accused's health since incarceration had become frail and suffered from rheumatism. According to counsel, accused had not resisted police and accused having served the punitive element of sentence they were to be sentenced to corrective sentence. Mr. Maieane has submitted for purposes of sentence accused were negligent. Also, accused were eligible for pardon in terms of sec. 4 of the Pardons Act No. 7 of 1996 in terms of which murder is covered by the legislation and attempted murder and kidnapping not covered.


Ms. Mahase for accused 2, 3, 4 and 5 has submitted where the crown concedes that accused played minor roles it follows that a court will in like manner impose minor sentences by amongst other things, cautioning and discharging accused. She says accused 4 was only seen in the morning at the MCCO. According to Ms. Mahase, for purposes of sentence the court was to look at each individual participation for, according to the evidence accused 2 was just present at the scene. Accused 2 was a married man with four children and wife worked at L.C.U; last born child was four years old and accused was arrested withing three months of the child being born and accordingly accused had already been punished. Accused was head of the family with family responsibilities. He had a sickly 81 year old father. Accused 3 was 43 years old, married and with three minor children at High School and wife was not working. In addition accused supported his mother and sister-in-law. Accused since incarceration suffered from rheumatism. Accused 4 was 39 years old with an unemployed wife and three minor children the eldest being 12 years old and the youngest six years old. He supported a mother and sister. Both accused 3 and 4 had lost their formative years and it was not going to


225


be easy to make up for the lost ground. According to Ms. Mahase, accused 4 played a minor role in the events. The accused had been dismissed from the police service. Accused since incarceration had been diagnosed with a minor stroke and was not able to use his right hand.


Accused 5 was 27 years old with an unemployed wife and a seven years old child doing standard III. Like accused 3 and 4 he had also lost his formative years and since incarceration had developed rheumatism. All the accused had lost their policies and by reason of the conviction were liable to lose their jobs. Older accused had lost the chance to make up for lost ground. He says accused showed remorse in that they assisted the injured. Ms. Mahase says the court was to take into consideration the fact that accused 4 and 5 had been paroled but the parole had been reversed. She also says for purposes of mitigation the Pardons Act applies.


Mr, Ntaote for the crown has submitted despite the crown having conceded that accused 2 and accused 4 played minor roles, the court was obliged to consider the totality of evidence against them and that despite accused having been found guilty of common purpose the degree of participation was to be considered. As for the Pardons Act, there had been an application to quash the indictment in relation to the Pardons Act and the application had been dismissed.


The court had adjourned for lunch and when it resumed at 2.30 p.m. Mr. Thetsane for the Crown had continued crown argument in mitigation of sentence referring in particular to the Pardons Act No.7 of 1996 in relation to accused. This court was much attracted by Mr. Thetsane's argument and wishes to reproduce it in full. Mr. Thetsane has also referred to s.162 of the Criminal Procedure and Evidence Act, 1981. He says in terms of the section the defence is barred from


226


raising the question and if the court entertains the submission it will be reviewing itself. Mr. Thetsane has made available to court the decision in CIV/APN/27/97 by Ramodibedi, J. He further says the Pardons Act relied on, should have been brought during trial and not mitigation of sentence for the only remedy available to accused is to appeal against the decision in CIV/APN/27/97 above. He also says sec.4 of the Pardons Act refers to conditions before prosecution besides, there was no claim that accused acted as they did in pursuit of a political objective. In reply Ms, Mahase has said it has been pointed out that accused 2, 3 and 4*s participation was minimal.


The court wishes to address the submission relating to the Pardons Act No.7 of 1996 whose section 4 provides:


'There shall be granted a pardon to a member of:-

  1. Lesotho Defence Force;

  2. The Police Force;

  3. The National Security Service;

  4. The Prison Service;

  5. The former Lesotho Liberation Army; and

  6. any other armed group that pursued a political objective,


who may be liable for criminal prosecution for or on account of or in respect of any act, matter or thing done or purported to be done during the period 27th March, 1993 to 31st December, 1995, by such member in the execution or purported execution of his duty, or in pursuit of any political objective, provided that no such pardon shall be granted to a member who has committed the offences of murder or culpable homicide.'


227


Needless to say that the learned Ramodibedi J. rejected applicants' contention, some of the same applicants namely accuses 1,2,3,4,5 and 6 appearing before me. This court is of the view that terms of section 4 of the Pardons Act above are not blanket terms applicable on the stroke of a pen and that to qualify affected persons are to apply, before prosecution, to a tribunal designated in the Act and that to be eligible for pardon an applicant is to show that he committed the act in the execution or purported execution of his duty, or in pursuit of any political objective. While it is true that kidnapping is not covered by the Act aforesaid, one does not see, even had accused applied, how they could have succeeded because in kidnapping P.W.1 Ramoeletsi it was not in 'execution of duty' nor was it proved before me that it was 'in pursuit of a political objective - the same goes for counts on attempted murder. On this basis, even had the Pardons Act, 1996 been raised during the trial, it would not have succeeded for the reason that accused did not kidnap and commit attempted murder in execution of duty or in pursuit of a political objective. Secondly I don't see how accused would succeed for a court in the same cause of action cannot agree and disagree for to do so is it revisits itself in an effort to review itself Importantly in this courts view, mitigation is resorted to lessen an accused's punishment not to wipe it off. The Pardons Act section 4 thereof if sustained and applied exonerates an applicant from criminal prosecution, it does not lesson his sentence and the Act can therefore not avail accused as a mitigating factor. Even were I to agree that attempted murder and kidnapping were not covered by the legislation aforesaid, in view of the sentences imposed, I do not see what useful purpose would be served by implications of the Pardons Act referred to above.


Except for accused 5, the court has taken into account the fact that the convictions were of a general nature based on common purpose and had facts been


228


narrowly construed, a higher sentence would be called for. As for accused 1, he is seen as the fulcrum and centre around which events revolved and carries major responsibility for occurrences of the fateful day. Concerning accused 3, 4 and 7, these accused masterminded the assembly at the MCCO and their campaign of intimidation and softening up process at the MCCO led directly to the fatal events in P.W.2's office. I agree accused 2 played a minor role. This court is also aware there are substantial mitigating circumstances in the case though a question arises whether the offences can be classed as isolated nor do I think accused are dangerous criminals posing a danger to members of the community and the police service much as sight is not to be lost of this being a violent and most foul murder. From the authorities, it would seem the principle of consecutive sentencing is not applicable to offences which arise out of the same transaction or incident even should they arise out of precisely the same facts (see It v. Lawrence, II Cv, App. R(S) 580, C.A.) though a court may depart from the principle requiring the concurrent running of sentences for offences forming part of the same transaction if there are exceptional circumstances (see R v. Wheatley, 5 Cv. App. (S) 417, C.A. and R. v. Dillon, 5 Cv. App. R (s) at 439, C.A and R. v. Jordan (1996) Cv. App. R (S) 481, C.A.).


According to judgment in R. v. Simpson (unreported) Feb. 1 case, where the court decides to adjust a series of sentences because the aggregate is too high, it is generally preferable to do so by ordering sentences to run concurrently rather than by passing a series of short, consecutive sentences.


Also, in passing sentence, it would seem responsibility is a factor to be taken into account as is the role in the commission of the crime and breach of trust attracts heavier sentences (see R. v. Wilson an unreported Jan. 25, 1973 case.) Accused 1


229


compared to the accused is a senior, responsible officer and him and accused 5 played major roles and all accused have betrayed the trust thrust upon them to bring criminals to justice instead of subverting the law.


As to personal mitigating factors, it would appear courts have declined to treat a combination of personal mitigating factors including financial difficulties, loss of career as exceptional circumstances - see R. v. Lowery, 14 Cv. App. R(S) 485, C.A.)

As for time spent in gaol on remand, in accuseds' case while it is admitted they spent an ordinately long time in detention, it was, however, because of the other cases against them that time in custody was prolonged and I do not think this is a factor to take into account for the sake of sentence. Grave as the charges against accused were, the court is nevertheless of the view that because of accused's committal to gaol the element of dangerousness has been removed. The case gains in particular accused 1, 3, 4, 5 and 7 appears to be that they were prepared to sacrifice their own careers and possibly their lives and lives of other policemen to gain ascendancy over the police force. But then again it has to be recalled that the police hierarchy of the time according to uncontested evidence was weak and prone to abuse with the lower police ranks ill-disciplined which general rot the accused wished to stop. The court is of the view that notwithstanding the aggressive tendencies which some accused have displayed, the public has sufficient protection by reason of their committal to gaol and in any event with ageing their instinct of pugnacity will die down - see R. v. Hercules, 2 Cv App. R(S), 156 C.A. In particular, as accused are first offenders, it would seem a determinate sentence will suffice. One is reminded of Lord Denning who, before the British Royal Commission on capital punishment in 1953 is reputed as having said:


230


'The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider. It is a mistake to consider the object of punishment as being deterrent or reformative or prevent for active and nothing else_____.


The ultimate justification for any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community of the crimes____.'


In the same breath and before the same commission Gordon is reputed as having said:


'There is perhaps one positive good provided in the retribution theory, but it is of a rather vague kind. It is that punishment expresses and canalises the moral indignation of the community; and that it thus operates as a re-assertion of the law that has been broken. To leave an act unpunished may be regarded as equivalent to condoning it, for the connection between crime and punishment is a very close and fundamental one in the ordinary men's moral thinking. It is because it clings so strongly to the concept desert that the retribution theory retains its strength and its popular appeal in spite of its futility.'


I agree the retributive theory is futile though given the moral depravity of the crime committed and the baying mood of the community to have this crime punished, it is only sensible that the community expectations having been weighed against factors which favour accused, be seen to have been satisfied.


Having taken into account factors personal to accused persons and the gravity of the offence, accused are sentenced to:


231


Count I: Accused 1 and 5 are sentenced to 15 years imprisonment. Accused 3, 4 and 7 are sentenced to 10 years imprisonment. Accused 2 is sentenced to 6 years imprisonment 1/2 of which is suspended for 3 years on condition accused is not found guilty of committing an offence involving violence during the period of suspension.


Count II: Accused 1 and 5 are sentenced to 15 years imprisonment. Accused 3, 4 and 7 are sentenced to 10 years imprisonment. Accused 2 is sentenced to 6 years imprisonment 1/2 of which is suspended for 3 years on condition accused is not found committing a crime involving violence during the period of suspension.


Count HI: Accused are sentenced to 2 years imprisonment. Count IV: Accused are sentenced to 2 years imprisonment. Count V: Accused are sentenced to 2 years imprisonment.


Count VI: Accused are sentenced to 2 years imprisonment. It is ordered that sentences run concurrently.


232


Exhibits are to be forfeited to the crown.


G.N. MOFOLO

JUDGE

6th March, 2001.


For the Crown: Messrs Suhr,Thetsane and Ntaote

For Accused 1 and 7: Messrs Mosito, Maieane and Majeng-Mpopo

For Accused 2,3,4,5 and 6: Messrs Phoofolo, Mahase and Nteso