S v Notobo and Othera (CRI/T/68/2000)

Case No: 
CRI/T/68/2000
Media Neutral Citation: 
[2001] LSHC 115
Judgment Date: 
16 November, 2001

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CRI/T/68/2000

IN THE HIGH COURT OF LESOTHO In the matter between:

REX

v

LEFU NTOBO 1st ACCUSED

ABDUL WAHAB ABUBAKER 2nd ACCUSED

JIAN ZIN YAN 3rd ACCUSED

AFZAL ABUBAKER 4th ACCUSED

JUDGEMENT

Delivered by the Honourable Mr. Justice M.M. Ramodibedi on the 16 day of November 2001

On 22 May 1999 a report was made to Maseru CID office concerning an alleged conspiracy to murder three Indians, namely Abdul Rauf Abubaker (hereinafter referred to as the deceased), his wife Fatimabai Abubaker and his son Ashraf Abubaker. The identities of the suspects were also disclosed to the police who in turn investigated the conspiracy and traced the suspects but in vain at that stage. The police also mounted surveillance around the deceased's residence at Maseru West in the city of Maseru where they even placed police guard at the premises as a precaution.

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Due to shortage of manpower however the police guard was withdrawn after one week with catastrophic results that the murderers immediately took advantage of the lapse in security, pounced in and shot and killed the deceased in his own house execution-style. This was on the 9th June 1999 and the Crown evidence suggests that the killing was motivated by a long standing family feud in the Abubaker family.

Consequent upon the tragic episode described above, the accused have stood summary trial before me on a charge involving four (4) counts namely, Murder, Contravention of Section 183 (2) of the Criminal Procedure and Evidence Act No.7 of 1981 (conspiracy to kill one Ashraf Abubaker), Conspiracy to kill one Fatimabai Abubaker and contravention of Section 3 (1) read with Section 3 (2), 3 (3) and 43 of Act No. 17 of 1966 as amended by Act No. 4 of 1999 (unlawful possession of a firearm). I should add that this last count was only directed against accused No. 1 (hereinafter referred to as A1) and there was no objection thereto by the other accused.

The full particulars of the indictment (as amended) read as follows :

COUNT1: Murder

In that upon or about the 9* of June, 1999 and at or near Maseru West in the District of Maseru, the said accused, acting in concert, one or the other or all of them did unlawfully and intentionally kill one ABDUL RAUF ABUBAKER" (The deceased).

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COUNT II: Contravening Section 183 (2) of The Criminal Procedure and Evidence Act No. 7 of 1981

In that during March, 1999 (the exact date to the Prosecutor unknown), and at or near Maseru in the district of Maseru, the said accused, acting in concert, one or the other, or all of them, did unlawfully and intentionally conspire with KHOPISO KHOLUMO SEMPE and others, to aid or procure the Commission or to commit the offence of unlawfully and intentionally killing ASHRAF ABUBAKER, an adult Mosotho male."

"COUNT III: Contravening Section 183 (2) of the Criminal Procedure and Evidence Act No. 7 of 1981

In that during March, 1999 (the exact date to the prosecutor unknown), and at or near Maseru in the district of Maseru, the said accused, acting in concert, one or the other, or all of them, did unlawfully and intentionally conspire with KHOPISO KHOLUMO SEMPE and Others, to aid or procure the commission or to commit the offence of unlawfully and intentionally killing one FATIMABAI ABUBAKER, an adult Mosotho female."

COUNT IV: Contravening Section 3 (1) Read with Section 3 (2) and 3 (3)& 43 of Act 17/1966 as amended by Act No.4 of 1999.

In that upon or about the 9th day of June, 1999 and at Maseru in the district of Maseru, the said accused (A1), without being granted or being the holder of a certificate issued under section 4 of the said Act, (Act, 17/1966) did unlawfully and intentionally have in his possession and or under his control a firearm to wit;

(a) a 9mm Parabellum Lumber M80 firearm, and 9 rounds of 9mm ammunition

and did thereby contravene the provisions of the aforesaid Act."

The accused pleaded not guilty to the charge and the Crown called six (6) witnesses in support of its case namely PW1 Thebe Ramotšekhoane, PW2 'Mamosotho Mosotho, PW3 Khopiso Kholumo Sempe (accomplice), PW4

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Detective Inspector Mosili, PW5 Tseko Mohai and PW6 Lefa Seutloali.

At this point it also requires to be mentioned that at the close of the Crown case the Court discharged A2 and A4 (the Abubakers) on the ground that there was no prima facie case against them.

It will no doubt be convenient to start at the beginning namely with the evidence relating to the alleged conspiracy to kill the deceased and his family as narrated by the accomplice witness PW3 Khopiso Kholumo Sempe. As will become apparent in the course of this judgment the evidence of PW5 Tseko Mohai is also crucial in this regard in so far as corroboration of the alleged conspiracy is concerned.

The Law relating to accomplice evidence.

Since the Crown case partly rests on accomplice evidence (PW3) this is perhaps a convenient stage to deal with the law relating to such evidence. In this regard Section 239 of the Criminal Procedure and Evidence Act 1981 provides as follows:

"239. Any court may convict any person of any offence alleged against him in the charge on the single evidence of any accomplice, provided the offence has, by competent evidence other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of the court to have been actually committed."

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Apart from the statutory rule quoted above the courts have developed the so called cautionary rule which a trier of fact is enjoined to adopt in dealing with the evidence of an accomplice.

See for example Bereng Grifrith Lerotholi and Others v The King 1926-53 HCTLR 126 (PC)

Perhaps the classical exposition of the law on the subject is that of Schreiner JA in R v Ncanana 1948 (4) S.A. 399 (A) at 405-6 wherein he expressed himself as follows:

"The cautious Court or jury will often properly acquit in the absence of the other evidence connecting the accused with the crime, but no rule of law or practice requires it to do so. What is required is that the trier of fact should warn himself,. .. of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by someone; so that satisfaction of the requirements of sec 285 does not sufficiently protect the accused against the risk of false incrimination by an accomplice. The risk that he may be convicted wrongly although sec 285 has been satisfied will be reduced, and in the most satisfactory way, if there is corroboration implicating the accused. But it will also be reduced if the accused shows himself to be a lying witness or if he does not give evidence to contradict or explain that of the accomplice. And it will also be reduced, even in the absence of these features, if the trier of fact understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is, in such circumstances, only permissible where the merits of the former as a witness and the demerits of the latter are beyond

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This principle was restated by Holmes JA along the same vein in S. v Hlapezula and Others 1965 (4) S.A. 439 (A) at 440 D-H and has been applied in several cases in this country including Manamolela and Others v Rex 1980-84 LAC 202: Malefetsane Phala Mabope and Others v R 1993-94 LLR and Legal Bulletin 154 at 176.

So much for the law. I desire only to mention at this stage that it is upon the above mentioned principles that I approach this matter more particularly the evidence of the accomplice PW3 which 1 now proceed to consider.

The evidence of the accomplice witness PW3 Khopiso Kholumo Sempe shows that he is a farmer aged 37 years old and lives at Boleka in Mafeteng district. He is married with two minor children aged 17 years and 13 years respectively. He has gone only as far as sub-grade B at school which he did not complete.

It is the evidence of PW3 that he knows one Sechaba Ramaema as well as Kid Theko Seeiso (hereinafter referred to as Seeiso). The latter who has since been killed after the deceased's death was his friend. He was shot dead after the particular incident about which PW3 testifies in this matter.

Day1

According to the evidence of PW3 he had a discussion with his friend

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Seeiso and Sechaba Ramaema sometime in March 1999 at a place called Sandra I in Maseru. In this discussion Seeiso told him that there was a lot of money which he wanted the three of them to discuss about. They then arranged to go and meet at Buti's shop at Ha Thamae the following day.

Day 2

The three men met as arranged. They however met at Sechaba Ramaema's place and not at Buti's shop as previously arranged. PW3 found Sechaba Ramaema with someone he did not know holding a cell phone. He later got to know this man as A1 whom he pointed out in Court.

Eventually at about three o'clock in the afternoon Seeiso arrived with someone called Speed. The former then went outside with A1 and the two returned after about two minutes.

Seeiso then called PW3 and introduced him to A1. PW3 also introduced himself.

At this stage A1 then asked PW3 whether Seeiso had related "something" to him to which PW3 replied in the negative. Thereupon A1 said "okay, I want to tell you then" and in PW3's own words: "he (A1) said there are three Indians who are supposed to be killed. He showed that there are two old Indians and a young one or a boy" adding that the latter was very wild and was in the habit of wearing a bullet proof shirt. Since he was also driving fast he needed someone who was experienced in shooting. Indeed it was PW3's evidence that A1

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"showed that he (the young Indian) is supposed to be shot on the head."

According to PW3's evidence A1 indicated that the gender of the old Indians referred to in the preceding paragraph was a man and a woman and the reason for killing those Indians was, according to A1, that one Indian had indicated that the three intended victims had hired someone to kill his father at Mafeteng.

A1 further indicated to PW3 that the killers would be paid M120,000.00 for disposing of the deceased and his family and that one Chinese by the name of Jimmy would pay. In this regard A1 further disclosed to PW3 that Seeiso had already been paid M700-00 to make police uniform for the killers as it would be easier for them to enter the victims' premises wearing uniform.

PW3 testified that he indicated his willingness to participate in the proposed killings and said he was going to do the job.

Asked who else was going to be involved in the killings apart from himself PW3 testified that it was himself A1 and Sekete Mopeli (hereinafter referred to as Sekete).

Day 3

PW3 further testified that on the following day he went to Chaltin's place where he met A1 and Sekete by prior arrangement. A1 introduced the latter to him (PW3) and "he said I should not fear Sekete we are supposed to do the job

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with him." Asked to describe the job in question PW3 testified that it was "the job of killing three Indians.' It was at this stage that Sekete stated in the presence of A1 that the amount of M120,000.00 would be available only if the Indians were dead.

The trip to Mokhalinyane

After the meeting referred to in the preceding paragraph PW3 testifies that he went to Mokhalinyane with A1 and Sekete although the latter remained on the way because the person they were going to recruit namely one Tšoeu or Chaisa (hereinafter referred to as Chaisa) was perceived to be "wild" and would apparently not like being approached by a crowd of people. PW3 himself knew Chaisa because he was a friend of his.

PW3 and A1 did meet Chaisa and speak to him. It is PW3's evidence that the reason why they went to see Chaisa was because they were in a hurry to perform the killing of the Indians and "he was to be incorporated in the killing." According to PW3's evidence they picked on Chaisa because they needed someone who was experienced in shooting such as Chaisa was, having gained the experience from Gauteng.

According to PW3's evidence he then asked A1 to relate the mission or as he put it "everything" to Chaisa. The latter obliged and related everything after which Chaisa demanded a deposit of M10,000.00 immediately but A1 told him he could go to Jimmy in Maseru as he was the one who would make the payment.

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The three men namely PW3, A1 and Chaisa then left for a place called Ha 'Majane collecting Sekete on the way. From there they went to Maseru at Chinese Garden which is described as a business next to Basotho Hat. It was here that A1 left the vehicle these men were traveling in saying he was going to phone one Jimmy. Later someone namely Jimmy himself arrived. PW3 pointed out A3 in court as the said Jimmy.

It is PW3's evidence that A1 spoke to A3 in English and Chaisa was telling A1 to demand M10,000.00 from A3 who however refused to pay it and said that M11,000.00 had already been paid.

According to PW3's evidence A3 insisted that the job be carried out first and only then would the amount of M120,000.00 be paid. All this information was relayed to them by A1 who said it came from A3.

It is further the evidence of PW3 that he was shown two premises by A1 and Sekete as belonging to the intended Indian victims that is one at Metro Wholesale at the Industrial Area (being the office of the young Indian Ashraf Abubaker) and the other being the deceased's residence itself. The men then parted ways with PW3 himself going to Ha Tšiu.

Day 4

On the following day after being shown the premises in question PW3 either developed cold feet or had second thoughts. He then proceeded to the

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deceased's residence alone. It is his evidence that he spilled the beans and warned the deceased's family about the conspiracy to kill them. He was taken to the young Indian's office where he repeated the warning and proceeded to do so again at the police station. It is his evidence that he was not prepared to kill for money and was unhappy that so many people would get killed.

In cross examination by Mr. Sello for A2 and A4, PW3 conceded that he was recruited by Seeiso for killing for a fee. He does not know why the other conspirators picked on him except that he was told it was because he was once a Russian. According to PW3 Russians are a gang of men who teamed up to protect themselves when attacked. PW3 conceded that Chaisa was also a Russian and that Seeiso was a hired killer.

According to PW3's evidence in cross examination firearms would be used to kill the intended Indian victims.

In cross examination by Mr. Sooknanan for A3, PW3 testified that A1 was talking to the Chinese outside the vehicle they were travelling in. He further testified that he was taught the Chinese in question by A1 and that his name was Jimmy. According to his evidence this is all that he told the police and he was never asked to identify A3 at an identification parade.

Cross examined by Mr. Phoofolo for A1, PW3 was adamant that he met A1 at Sechaba Ramaema's place at Ha Thamae where they had discussions as fully described above. He conceded that he was strangers with A1. He testified

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however that A1 introduced himself as a runner and said he should not be afraid of him.

At this stage Mr. Phoofolo for A1 put the following crucial question to PW3:-

"Q. Ntobo (A1) will tell his Lordship he was not with you and Sekete on the day you were shown deceased's premises.

A. 1 show that I was with him."

It seems to me from a close examination of this question therefore that it was actually conceded on behalf of A1 that PW3 was in fact shown the deceased's premises in accordance with the alleged conspiracy to kill the deceased and his family. I find therefore that this provides some measure of corroboration to PW3's version of a conspiracy to kill the deceased and his family.

PW3 conceded that he would have wanted part payment before the "job" and that he was not pleased with the fact that there was no payment.

Although under cross examination by Mr. Sello for A2 and A4, PW3 had given the impression that he did not recruit Chaisa nor did he want him to participate in the killing because he did not know who would pay the money he now conceded that he is the one who suggested the idea of going to recruit

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Chaisa because he was the type who could do the job quickly. I am alive to the fact that there may be a slight discrepancy here. I observe however that according to his evidence PW3 avoided speaking to Chaisa in person when the latter was actually recruited even though he was present. He was consistent on his version that he did not want to commit himself since he did not personally know who would be responsible for payment of the money after the job had been done.

PW3 insisted in cross examination that A1 was part of the conspiracy to kill the deceased and his family and also that he (A1) went to Ha Mokhalinyane with him to recruit Chaisa.

In answer to the Court's questions PW3 disclosed the following:-

That the Chinese Jimmy was a stranger to him and that he never saw him again since the day he allegedly met him at China Garden. His description of Jimmy to the police was that he was young, slim and a Chinese man. He conceded that there are many such Chinese men in the country. Significantly he confirmed that he was not asked to identify Jimmy at an identification parade and he was unable to say by what features he identified him. He had not done the business of killing people before.

I got the impression, as I watched and listened to PW3 give evidence, that he was all out to make a clean breast and tell the truth to the best of his ability. He is an unsophisticated man with very limited education. Nevertheless I warn

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myself of the dangers inherent in the evidence of an accomplice witness as fully set out in the authorities quoted above more especially as some of the people PW3 allegedly conspired with were strangers to him such as A1 whom he was seeing for the first time at the time of the alleged conspiracy. Once more the Court shall hereunder look for corroboration as a safeguard against a wrong conviction as the case may be.

It is convenient next therefore to consider the evidence of PW5 Tseko Mohai on the question of corroboration of the alleged conspiracy to kill the deceased and his family.

The evidence of PW5 discloses the following:

He is aged 34 years old and lives at Ha Tikoe in Maseru district. He is a married man with three children. He went as far as Form 1 at school. He does plumbing, welding and sheet metal work but in 1999 he was unemployed.

It is the evidence of PW5 that one day in March 1999 he was at the Maseru Bus Stop with a person called Motsoto Seatlana. They were seated inside a motor vehicle described as a taxi behind the driver's seat. The following people subsequently entered the taxi: Lefu Ntobo (A1), Motlatsi Maoeng (who is PW5's own cousin) and Sekete. These people went to the back seat where they engaged in a discussion. PW5 overheard them talking about work although he did not hear properly what was being said. As they left the taxi he called A1 and asked him about the nature of the work they were talking

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about because he was himself unemployed at the time. A1 then responded by saying that "that kind of work needs a man who is brave" and that "the work to be performed was that of killing" adding "he said a person was going to be killed." That person was an Indian and the motive for killing him was that his family wanted him to be killed. All this information was supplied by A1 himself

It is the evidence of PW5 that he told A1 he was not going to be able to do the job. He declined to participate. At this stage A1 told him that there were many ways of seeking money and that he (PW5) would "remain hungry." A1 did not mention how much money was involved and the two parted company. He next saw A1 under arrest at Ha Tikoe in June 1999.

In cross examination it was repeatedly suggested to PW5 that he made two written statements to the police in June and September 1999 respectively. Although he no longer remembered the month in question as the incident "happened a long time ago" he was adamant however that he only made one statement to the police. The reason why he remembered this was that he made such statement at the time when he was under arrest for two days for the killing of the deceased. Indeed the Court was not shown two statements allegedly made by the witness nor has it been shown that he was arrested more than once. I have no hesitation therefore in accepting the version of this witness to the effect that he made only one statement to the police most probably in June 1999 (the exact month does not really matter) when he was arrested.

PW5 was released after he had told the police that he only heard about the

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conspiracy but did not participate therein or in the killing of the deceased. It seems to me nevertheless that the Court must approach his evidence with caution even though he might not be an accomplice in the strict sense. I am alive to the danger, for example, that he may be shielding either himself or his companions (including his cousin Motlatsi Maoeng) from prosecution and thus substituting them with perhaps an innocent person namely A1. I bear in mind however that no such suggestions were made by the defence in cross examination of this witness. Nor was he shown to be a liar.

The witness (PW5) further denied a suggestion by Mr. Sello for A2 and A4 that A1 could not inform him about a conspiracy to murder the deceased because he (A1) was a stranger to him. He testified that he had known the latter for three months by then. He had met him "on many various days." In fact PW5 used to go in the company of the driver of the taxi in question Motsoto Seatlana referred to above. Sometimes A1 used to drive the taxi himself. This indeed was not disputed as even A1 himself conceded in his evidence that he was a taxi driver.

I have watched PW5 as he gave evidence before me and despite my concerns raised above he impressed me as a truthful witness. I am satisfied that whatever discrepancies there may be in his evidence are not a result of dishonesty or deliberate untruthfulness on his part. On the contrary and bearing in mind what has been said above I believe that he told the Court the truth to the best of his ability. In my view, as I have indicated earlier, his evidence corroborates PW3 on the issue of the conspiracy to kill the deceased and his

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family.

I turn then to the evidence of PW1, PW2 and PW6 on the actual shooting of the deceased and identification of A1.

The evidence of PW1 Thebe Ramotšekhoane shows the following: he is aged 52 years old and went as far as Std. IV at school. He is employed as a day-watchman at the deceased's house at Maseru West where the latter met his death.

On the 9th June 1999 PW1 was on duty guarding the gate to the deceased's premises. There arrived two gentlemen who claimed they came from the High Court and wanted to see the deceased whom they wanted to serve with summons. One of them was carrying a black bag similar to the one exhibited in Court as Exh. "8".

PW1 informed the deceased about the presence of the two gentlemen through PW2 'Mamosotho Mosotho (a domestic servant at the house) after which he opened the gate for them on the instructions of the deceased himself. They then entered the house accompanied by PW2 and still carrying the black bag and proceeded to where the deceased was.

While the two gentlemen were still inside the deceased's house PW1 testifies that he heard a sound like a stone falling on the roof. This apparently aroused his curiosity as he did go and investigate but found nothing. He then

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returned to his post at the gate.

After "quite a long time" (the witness was unable to estimate the time) the two men came out of the deceased's house and he testifies that "as they left (the gate) they ran". They were running downwards towards the taxi rank. PW1 continued with his work as he didn't think of anything until PW2 shouted asking him about the whereabouts of those two men. She informed him that they had just shot "the boss" namely the deceased.

PW1 called one Kamorane and together they entered the house and confirmed that the deceased had been shot in the bathroom. He was already dead. The witness observed injuries on the deceased's body, one on the forehead, the second on the upper part of the chest and the third on the midriff on the chest. An alarm was raised by PW1 and those present. The police eventually arrived and so did the deceased's son Ashraf Abubaker.

It is the evidence of PW1 that he did not know the two men in question. He however attended an identification parade where he failed to identify any of them.

Asked by Mr. Nel for the Crown whether he could identify those men in Court PW1 was already hesitant or at least sounded unconvincing in his reply which was as follows:

"Yes when I look I think I can identify only one" namely the one who

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called himself Lephallo when they arrived at the gate. PW1 then identified A1 in Court as that person.

I pause here to say that this Court attaches very little weight to PW1's pointing out of A1 in Court mainly for two reasons:

  1. He failed to identify him at the identification parade on
    15/6/99 which was soon after the incident and while the
    matter was still fresh.

  2. It is very easy to point out an accused in the dock on the
    assumption (often erroneous) that he would not be sitting
    there as the accused unless he is the real suspect. Generally
    speaking such evidence of pointing out is unfair and
    prejudicial to the accused.

In any event PW1 testifies that he did not observe any peculiarities in the features of the man who got to the deceased's gate. He had these two men under observation for about one (1) minute.

It emerged in cross examination by Mr. Phoofolo for A1 that PW1 had in fact previously seen the latter (A1) in custody with prison staff. He even disclosed this to "Mamosotho. Indeed PW1 was driven to concede in cross examination that he did not have a proper look at the man he alleges was A1 as he did not know that he had "bad intentions."

Apart from his evidence on the question of the identification of A1 it was not suggested that PW1 is not a truthful witness. I clearly got the impression

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that he was honest even though his evidence on identification of A1 is unreliable and it would therefore be unsafe to rely on such evidence standing alone. I believe the rest of his evidence which is unchallenged for that matter.

This is perhaps an appropriate stage to digress a little to consider the law relating to evidence of identification, In this regard it is pertinent to bear in mind that the evidence of identification requires to be approached with due caution because such evidence is potentially dangerously unreliable to the extent that it depends on a witness's recollections of a person's appearance. Experience shows that the average witness's capacity for observation and ability to recognise faces is poor and may often lead to grave mistakes and injustice unless approached with caution notwithstanding how sincere and honest the witness may be. It is the task of the Court in each case to ensure that an innocent person is not convicted as a result of honest but mistaken identity.

It will no doubt be sufficient for me to say that I approach this matter in the light of what was said in S v Mthetwa l972 (3)S.A. 766 (A) 768 in which Holmes J.A. expressed himself in the following remarks with which I am in respectful agreement:

"Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, build, gait, and

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dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities; see cases such as R. v. Masemang, 1950 (2) S.A. 488 (AD); R. v. Dladla and Others, 1962 (1) S.A. 307(A.D.)Atp. 310C;S.v.Mehlape, 1963(2) S.A. 29(AD.)."

I turn then to consider the evidence of PW2 'Mamosotho Mosotho. She is aged 53 years old and went as far as Std. IV at school. She is married with eight children and is employed as a domestic servant at the deceased's house since 1992. Her work entails cooking in the kitchen and cleaning the rooms.

It is PW2's evidence that the deceased lived in the same house with his son Ashraf Abubaker referred to in Count II and his (the deceased's) wife Fatimabai Abubaker referred to in Count HI.

PW2 confirms PW1's evidence that on the 9th June 1999 two men arrived at the deceased's house and that she accompanied them from the verandah where she was waiting for them and led them to meet the deceased in the sitting room where the latter was seated with his wife Fatimabai Abubaker.

It is the evidence of PW2 that the deceased offered the two men seats and before she left the sitting room she heard him ask these men: "why didn't you go to the shop because I promised that I would go to the shop?" At this stage PW2 left for the kitchen and it is her evidence that she does not know what transpired in her absence. She however saw the deceased's wife proceeding to

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the bedroom adding "after quite a long time after Mrs. Abubaker had entered the bedroom I heard the sound of something as if it was falling to the ground. It was a big sound." I am satisfied that the only reasonable inference to be drawn from the proved facts of this case is that this was at the time the deceased was being shot. She felt frightened but had the courage to go to the sitting room to see where the two men were. She found none in the sitting room.

At this stage the deceased's wife emerged from the direction of the bedroom running and with her clothes covered with blood. The latter appeared "very frightened" adding "her mental state wasn't good". She (deceased's wife) requested PW2 to phone Ashraf Abubaker and inform him that his father had been shot. PW2 pressed the alarm bell presumably to alert the security. An attempt to phone was unsuccessful as the phone did not work and yet prior to that it had been functional. She no longer saw the two men and does not know what happened to them.

PW2 testifies then that she left for the Charge Office where she reported the incident after which she returned to the deceased's house where she found the latter's wife "behaving abnormally".

It is the evidence of PW2 that it was her first time to see the two men in question. I consider therefore that this is more the reason why the Court must approach her evidence with caution and why it must look for corroboration to rule out mistaken identity.

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PW2 testified and indeed she was unchallenged on her version that she had "a closer look" at the complexion of one of the two men in question and she "realised that his complexion was not light. He was dark in complexion." He was not tall but was short.

According to the unchallenged evidence of PW2 there was moderate sunlight in the sitting room sufficient for one to read a newspaper. The lights were not on and the lace curtains were closed. An inspection in loco revealed that there is a large window on the western side or the left side as one enters the sitting room.

PW2 is further unchallenged in her evidence that she came very close to the two men in question that is to say only one pace from where they were sitting in the deceased's sitting room. In fact in cross examination by Mr. Sooknanan for A3 it emerged that PW2 took about five (5) minutes in the sitting room with the two men before she returned to the kitchen.

Significantly PW2 testifies that she attended an identification parade at which she duly identified one of the two men in question as A1. This indeed is common cause. What is crucial about PW2's evidence in this respect is that she identified A1 from many men who were standing there. She did not count them nor could she estimate their number but she testifies that "it was a long line."

PW2 further identified A1 in Court. There was no suggestion that the identification parade was flawed with any material or fatal irregularities.

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What is of concern to the court is that it emerged in cross examination of PW2 by Mr. Phoofolo for A1 that the men on the identification parade were not of equal height or perhaps of the same complexion. I have taken this factor into consideration and must therefore exercise due caution as stated above.

Asked how A1 differed from the rest of the men on the identification parade PW2's answer simply was that he did not differ from them but that she saw him. Again the Court is cautious of the danger of relying on the ipse dixit assurance of an identifying witness without more.

The Court is also alive to the fact that in trying to identify the other man who was at the deceased's house PW2 picked on the wrong person. She could only explain that her eyes "deceived" her and that the man she picked on was similar to the one who was at the deceased's house. She further explained that she never looked face to face with that other man who had been standing on her side in the deceased's sitting room.

PW2 corroborated PW1 that one of the two men carried a black bag hence she was curious "to have a closer observation" because she had received a report that the two men's mission was to serve the deceased with summons. She had expected the man with the black bag to produce the summons. According to PW2 that man is A1 whom she pointed out again in Court.

PW2 further testified in cross examination that the discussion between the deceased and the two men was friendly.

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At the Charge Office where she made a statement soon after the incident PW2 testifies that she was so frightened that she was even taken to a separate room where she was given water to calm down. She attributes any discrepancy that there may exist between her testimony and her statement to the police to that factor.

In my view the fact that PW2 was so terrified and confused as she herself concedes must put the Court on guard in approaching her evidence.

PW2 conceded in cross examination by Mr. Sooknanan for A3 that the deceased's death has affected her badly and that she wants the killers punished "if possible." Once more to the extent that a suggestion is made that PW2 has a motive to lie, the Court must be on guard and cautious that her evidence is not tainted by this and that there is no possibility of her identification of A1 being mistaken either deliberately or genuinely.

Another blemish that Mr. Sooknanan was able to show in PW2's evidence under cross examination is that at the identification parade she was never told that the suspects might not be on the parade after all. While I consider that each case must depend on its own circumstances I am prepared, however, to exercise due caution in approaching PW2's evidence as a result of this omission by those who held the identification parade and also as a result of the fact that PW2 admittedly expected to see the suspects on the parade.

Despite all that has been said above, PW2 impressed me as a truthful and

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honest witness. For example she readily conceded that her identification of the other man at the parade was wrong. That aside, I am satisfied from the evidence, however, that she had a reasonably proper opportunity for observing the man whom she subsequently identified as A1. Indeed Mr. Sello for A1 was constrained to concede on page 15 of his revised heads of argument on behalf of A1 that "this witness (PW2) struck one as being an honest witness." This concession, which was repeated during addresses, was in my view very fairly and properly made in the circumstances. I must still, however, exercise caution as to whether the identification of A1 by PW2 might not be mistaken in the same way that she mistook the other man at the identification parade. For this the Court must look for corroboration as fully set out below.

The evidence of PW6 Lefa Seutloali discloses that he is sixty (60) years old and is married with 3 children. He went as far as Junior Certificate (JC) at school (although he did not complete it) and lives at Thabong in Maseru. He is a carpenter by profession and is self employed.

PW6 testifies that on the morning of the 9th June 1999 as he was approaching the deceased's gate at the latter's house he saw two men running towards the gate from the deceased's house. They were ten (10) paces away from him when he first saw them and they were "moving toward my direction."

In his own words PW6 "suspected that they (the two men) had done something inside the (deceased's) house" adding: "so I decided to look at them so as to identify their faces." He is unchallenged on this version and there seems

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no reason to doubt him.

PW6 is also unchallenged in his description of the two men in question and I accordingly accept his version that one man was short with a dark complexion carrying a black portfolio or case (bag). It was his evidence that this man also had prominent ears although he conceded in cross examination by Mr. Phoofolo for A1 that this latter aspect did not appear in his written statement to the police as well as the colour of the bag in question. The Court accordingly approaches this evidence with caution as it may well be a product of PW6's observation of A1 in Court.

That aside, PW6 is unchallenged in his evidence that as he looks at A1's ears in Court he (A1) has prominent ears. This accords with my observation.

It is then the evidence of PW6 that he looked at what the dark short man with prominent ears was carrying and he noticed that he was carrying a black portfolio or case similar to the black bag Exh. "8". Again it is not disputed that one of the two men in question carried such a bag.

According to PW6 the other man was tall and hefty with a dark complexion.

Although the two men were strangers to PW6 who was seeing them for the first time, a fact which must put the Court on guard to ensure there is no possibility of mistaken identity, I consider that he had a reasonable opportunity

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for a proper observation of the two men in question by reason of the following factors which are not disputed in his evidence:

  1. Nothing disturbed his view.

  2. The two men had no hats on. Indeed there is no
    evidence that they disguised or masked their faces.

  3. The two men ran passed where PW6 was standing.
    I consider that this was no doubt close enough to give
    PW6 a reasonable opportunity of observing and
    identifying them.

  4. PW6 had the two men under observation for about
    two (2) minutes in broad daylight (although it was
    cloudy).

Significantly PW6 pointed out A1 in Court as the man who was carrying a black bag similar to Exh. "8". A1 of course denies this and as I have said elsewhere above it is the task of the Court to be cautious and to look for corroboration to ensure that there is no possibility of a mistaken identity. It will be recalled in this regard that PW6 corroborates PW2 on the version that it is A1 who carried the black bag Exh. "8"

As an example of the need for caution it emerged in cross examination of PW6 by Mr. Phoofolo for A1 that in his written statement to the police he had said that it was the tall man who carried the black bag and not the short man. Although he had testified in chief that his written statement to the police which was in Sesotho was read back to him he retracted from this in cross examination

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and sought to explain the discrepancies between his written statement and his evidence before the Court to the effect that the statement was never read back to him as it was said it was late.

Another factor which the Court has taken into account in PW6's evidence is the fact that he was admittedly never called to an identification parade to identify A1. There is no explanation why this was not done and indeed there is no justification for such an omission.

Apart from the blemish in PW6's evidence as fully set out in the two preceding paragraphs I did not gain the impression, however, that he was a lying witness and no motive was suggested why he should lie. I believe his evidence bearing in mind, however, that he may be honest and truthful and yet mistaken. The Court shall therefore look for corroboration as a safeguard.

Finally I deal with the evidence of the Chief Investigating Officer in the case namely PW4 Detective Inspector Mosili whose evidence discloses the following:

He is a senior police officer with twenty (20) years experience in the Criminal Investigation Department (CID) where he has spent his entire police service to date having first joined same in April 1981.

PW4 confirmed that on the 22nd May 1999 he received information from PW3 of a conspiracy to murder three Indians being the deceased, his wife and

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his son Ashraf Abubaker. PW3 further revealed the identities of the suspects as Sekete, A1 and others. On 23rd May 1999 PW3 also brought the other conspirator namely Seeiso to him. Seeiso also apparently spilled the beans about the conspiracy to kill the three Indians.

Upon receipt of the information set out above PW4 duly instructed the uniform police to go and guard at the deceased's premises and as earlier stated this surveillance went on for a week but was called off due to shortage of manpower. It is the evidence of PW4 that he traced the suspects with other policemen but in vain and that it was during this time that the deceased was killed.

PW4 further testified that on the 9th June 1999 he received a telephone call as a result of which he proceeded to the deceased's residence at Maseru West. On entering the deceased's bedroom he found three (3) 9mm empty shells Exhibits "3", "4" and "5" on the floor leading to the bedroom in question. He handed them to Tpr Thulo whom he also instructed to take photographs of the scene of crime.

According to PW4's evidence he found the deceased lying down on his left side. He observed the following wounds on the dead body of the deceased:

  1. an open wound on the forehead;

  2. an open wound on the right side of the body;

  3. an open wound on the left collar bone; and

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(4) an open wound in the middle of the head. The brain had got out of the skull.

According to the unchallenged evidence of PW4 which I accept as a fact the wounds described above were bullet wounds.

Significantly PW4 testifies that he also found the deceased's bundle of keys to his safe and car keys lying on the floor. The safe was not tampered with and although it was open it was full of money.

This piece of evidence described in the preceding paragraph suggests, in my view, that the motive was clearly not robbery but simply to execute the deceased.

In carrying out his investigations with his team of investigators PW4 met Seeiso on the 11th June 1999 and following the information furnished by the latter PW4 and his team traced A1 whom they finally tracked down at his house at Mazenod at 4 o'clock in the morning of the 12 June 1999. PW4 duly cautioned and warned A1 who admittedly freely and voluntarily gave an explanation in his sound and sober senses. He was arrested and taken to Maseru CID office.

At about 7 o'clock in the morning on the same day (12 June 1999) A1 freely and voluntarily led PW4 and his team to Mazenod at the home of one Thelingoane 'Mota.

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Significantly PW4 testified that A1 freely and voluntarily (while in his sound and sober senses) asked Thelingoane 'Mota to give him "his" gun that he gave him on the 9th June 1999. He was never challenged on this version in cross examination and taking into account the cumulative effect of all the circumstances of the case as a whole there is no reason to doubt it. Thelingoane 'Mota then proceeded to the scrap yard within his premises and pulled out a yellow plastic from the seat of a scrap vehicle. He unwrapped the plastic and took out a gun (firearm) which he handed to A1. The latter handed the firearm to PW4. The firearm is Exh "1" before Court. It is a 9mm parabellum pistol Serial No. B11850 and it was loaded with five (5) live bullets. PW4 seized Exh "1" with the five live bullets including the magazine Exh "2". The party then returned to the CID office in Maseru.

PW4 testifies that Thelingoane 'Mota arrived at the CID office and that A1 then called him (PW4) to summon the latter (Thelingoane 'Mota) into the office where A1 was. Upon the arrival of'Mota in that office A1 then asked the latter "where is that black bag that I had left at your house?" Significantly PW4 is unchallenged on this version and there is no reason to doubt it. 'Mota's reaction was that he did not know anything about the bag. He however requested permission to return to his home. He then went back to his home and brought back two black bags. It is the undisputed evidence of PW4 that A1 picked the black bag Exh "8" before Court and handed it to PW4 while freely and voluntarily giving an explanation about it. All this happened on the 12th June 1999.

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PW4 is further unchallenged in his evidence that in continuing with the investigations A1 and Seeiso furnished him with the particulars of the other suspects he was looking for. He also confirms that an identification parade was held on the 15th June 1999 by the late Sgt. Ntsau to whom he handed A1.

It is further PW4's evidence that he forwarded the firearm Exh "1" and the three empty shells Exhibits "3", "4" and "5" together with "6" and "7" to the ballistic experts and thereafter received reports namely Exhibits "B" and "C".

On the case against A3 it was the evidence of PW4 that he proceeded to Sandton in Johannesburg with Superintendent Maduna, the Director of Public Prosecutions (DPP) Mr. Mdhluli and the complainant Ashraf Abubaker to meet A3 "who had fled this country after the deceased was brutally murdered." It later emerged however that this latter piece of information is what PW4 was told and must therefore remain inadmissible evidence.

According to PW4's evidence he then warned and cautioned A3 who freely and voluntarily said "he knows everything about the case I am investigating. He also knows the people who carried out the mission but he cannot tell us anything unless the DPP issues him an indemnity letter that he is not going to be charged."

I digress there to observe that it is clear to me therefore that if accepted this evidence would at least render A3 guilty as an accessory after the fact for shielding the actual perpetrators of the crime from prosecution.

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To return to PW4's evidence, it is his version that the DPP refused to issue A3 with an indemnity letter because he did not know what A3's statement would be. A3 promised to come back the following day at 10 o'clock after he had thought about the matter. He however failed to turn up until PW4 and his party returned to Lesotho.

PW4 further testified to recalling an incidence when A3 subsequently approached the office of the DPP with a view to turning State witness. This was followed by a confession statement "obtained by a magistrate" and handed over to the witness. There was however no such evidence led and no explanation was furnished for this omission.

According to PW4's evidence, however, the acting DPP turned down A3's request for turning State witness as he was found not fit to be an accomplice. The problem with this evidence as I see it, however, is that PW4 does not claim to have been present when A3 allegedly requested the DPP for permission to turn State witness. I consider therefore that it would be dangerous to rely on such evidence which has the hallmark of being hearsay evidence and therefore inadmissible.

It emerged in cross examination, and PW4 himself conceded this, that he stated in his affidavit in opposition to A3's bail application that the latter "refused to assist us with evidence relating to the death of the deceased."

Most importantly PW4 conceded under cross examination by Mr

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Sooknanan for A3 that in his written statement to the police he does not state that A3 said he knows about the case and the people who carried out the plot. I return to this aspect later.

As far as the case against A1 is concerned I should mention at this stage that the cross examination of PW4 by Mr. Phoofolo for A1 was surprisingly very brief and it left PW4's evidence intact. In view of Mr. Phoofolo's long experience in the legal practice I shall assume that this was by design. PW4 remained completely unshaken and impressed me as a truthful witness. It was never suggested that he was a lying witness.

I turn then to the admissions made by the defence in this case. In terms of Section 273 of the Criminal Procedure and Evidence Act 1981 the defence made the following formal admissions which I accordingly adopt as the findings of the Court namely:

  1. That the deceased was one Abdul Rauf Abubaker.

  2. That the deceased died on the 9th June 1999 after being
    wounded with three (3) gunshots on the same day. He died
    on the spot at his place of residence.

  3. That the body of the deceased was removed from his
    residence in Maseru and taken to Queen II Hospital
    Mortuary where he was certified dead on arrival whereat Dr.
    Moorosi conducted a post mortem examination of the body
    commencing at 2.30 p.m. on the 9th June 1999.

  4. That the body received no further injuries from the scene

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where the crime had been committed up to the time when the post-mortem report was conducted.

  1. That the medical officer conducted an autopsy and made
    findings in terms of Exh "A" the correctness of which the
    defence duly admit.

  2. That the cause of death was due to multiple perforating
    wounds and severe brain contusion.

  3. That one firearms examiner, Second Lieutenant M.P. Pali,
    conducted an examination on Exh "1" namely a Luger M80
    pistol B1 1850 together with three (3) 9mm by 19mm fired
    cartridge cases (exhibits "3", "4" and "5"), one (1) fired
    bullet Exh "7" and two (2) bullet augments.

  4. That after conducting the examination in question the
    firearms examiner, Second Lieutenant M.P. Pali, compiled
    a report Exh "B" the correctness of which is admitted by the
    defence wherein his findings was that the fired cartridge
    cases (empty shells) exhibits "3", "4" and "5" had been fired
    from the pistol Exh "1". Due to lack of sufficient marks for
    comparison purposes he was unable to determine whether
    the fired bullet Exh "7" (which had been extracted from the
    body of the deceased during the post mortem examination)
    had been fired from Exh "1" or not. Similarly he was unable
    to identify the two bullet fragments Exh "6" with any pistol.

  5. That a private ballistic expert by the name of Mr. J.D.
    Duplessis from South Africa also conducted similar ballistic
    tests on the exhibits as listed in Exh "B" together with other
    exhibits such as items of clothing worn by the deceased and
    that after conducting the tests he compiled a report Exh "C"
    the correctness of which is once more admitted by the
    defence. His findings were once more that the three fired
    cartridge cases Exhibits "3", "4" and "5" had been fired
    from the pistol Exh "1" and that the fired bullet Exh "7" had

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also been fired from the same pistol or firearm Exh "1". It is pertinent to emphasise that Exh "7" was extracted from the body of the deceased and the defence duly admitted this fact as well. This provides, in my view, conclusive proof that the firearm Exh " 1" is the murder weapon that was used to kill the deceased and I so find.

(10) Finally the defence admitted a photo album Exh "D" which was compiled by police officer Thulo on the instructions of PW4. It comprises 16 pages with various photographs depicting:

  1. the residence of the deceased;

  2. photographs of the deceased in relation to where
    he was found lying dead by the police after they
    had been summoned to the scene of crime.

  3. photographs of the bathroom within the residence
    depicting large amounts of blood on the floor and
    surrounding areas.

  4. photographs of three (3) cartridge cases Exhibits
    "3", "4" and "5" found on the scene by the police.

That in a nutshell completed the Crown case. I should perhaps mention at this stage that the Crown had intimated to the Court that it would call Thelingoane 'Mota as an accomplice witness. The latter however subsequently turned against the Crown, so the Court was told, at the Court precincts and as a result the Crown closed its case without him. As previously stated A2 and A4 were discharged at this stage on the ground that there was no prima facie case against them.

It is perhaps a convenient stage to turn to the evidence of A1. It is

38

pertinent to mention that at the close of the Crown case Mr. Phoofolo for A1 informed the Court that his client (A1) would make an unsworn statement. The Court drew his attention, however, to the effect that in terms of Sections 217 and 220 of the Criminal Procedure and Evidence Act 1981 an accused may not make an unsworn statement at his trial. If he wishes to testify he is obliged to do so on oath or, as the case may be, on affirmation and face the prospect of cross examination no matter how daunting it may be. The case was then adjourned to enable Mr. Phoofolo and his client to reflect on the matter.

When the case resumed Mr. Phoofolo then informed the Court that A1 had appointed Mr. Sello as his representative and that he would only be assisting the latter. A1 confirmed this arrangement and so did Mr. Sello who then took over the defence of A1 The initial strategy by the defence to let A1 make an unsworn statement was abandoned and A1 gave evidence on oath. As will become clear in the course of this judgment it seems understandable why the defence was reluctant to expose him to the danger of cross examination in the first place particularly with regard to the murder weapon Exh "1" which, as will be recalled, he freely and voluntarily pointed out to the police.

In a nutshell the evidence of A1 discloses the following:

He is aged 37 years and is married with two children aged 14 years and 6 years respectively. He confirms that he lives at Mazenod Ha Paki. He only went as far as Form B (Std 8) at school because his parents could no longer afford his school fees at that stage. He left school in 1982 and went to work for

39

6 years at Carltonville Mine in the Republic of South Africa until 1988 when he was retrenched and returned to Lesotho where he got employed as a taxi driver starting from 1989. On his own version he "kept on changing taxi owners" many times because "they were the ones who were expelling us."

It is A1's evidence that at the time of his arrest by PW4 and his investigating team on the 12th June 1999 he was employed by Thelingoane 'Mota as a taxi driver. The latter also lives at Mazenod Ha Paki. He confirms that this gentleman is the one referred to by PW4 in his evidence.

A1 testifies that after his arrest he was taken to Maseru CID office where he was asked whether he had a firearm and that when he replied in the negative he was then asked about the whereabouts of Sekete's firearm. He told them that the said firearm was at Mazenod.

I pause there to observe at once that this version was never put to PW4 Detective Inspector Mosili in cross examination. I return to this aspect later.

To return to A1's evidence he told the police that the firearm in question was at Thelingoane 'Mota's place. He freely and voluntarily led the police to this place and upon his arrival there he once more freely and voluntarily told Thelingoane 'Mota to hand over "the firearm that Sekete said I should give to him."

I pause there again to observe that this version was never put to PW4 in

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cross examination. No suggestion was ever made that A1 obtained the firearm in question from Sekete. In this entirely fresh piece of evidence however A1 now says that Sekete had given him the firearm to hand over to Thelingoane 'Mota in the following circumstances:

A1 had brought Thelingoane 'Mota's taxi which he was driving back to the latter's premises for repairs. Upon his arrival he found that Sekete who was Thelingoane 'Mota's full time mechanic was by coincidence not at work. The latter sent him to go and call Sekete who lived just across the road. By coincidence A1 met Sekete at Thelingoane 'Mota's gate proceeding to the latter's premises. For a strange reason Sekete suddenly told A1 that he was in a hurry going "somewhere" and that he should take the firearm Exh "1" (wrapped in a thin yellow plastic but which A1 could still see through the plastic) in question to Thelingoane 'Mota. What makes A1's version perhaps hard to believe is that Thelingoane 'Mota was on A1's own version only 30 - 35 meters away from them and within their view. A1 could not proffer any reasonable explanation why he would agree to handle a murder weapon or a firearm in those circumstances and why Sekete himself would not walk only 30-35 meters to hand over the firearm himself to Thelingoane 'Mota.

I shall bear in mind however that the real test is not whether the accused's explanation is true or not but whether it may possibly reasonably be true. The Court must still determine whether the defence case is so demonstrably false or inherently so improbable as to be rejected as false. See R v Difford 1937 AD 370 at 373 per Watermeyer AJA which has consistently been followed by this

41

Court in such cases as R v Lepoqo Seoehla Molapo - LLR (1997-98) 208. It is upon this principle that I approach this matter.

A1's explanation must be considered in the light of all the surrounding circumstances and other credible evidence least of which is the fact that on his own version he testified that he had never seen Sekete who was his co-worker holding the firearm in question. Nor had he previously seen him in possession of any firearm at all. Yet strangely enough he did not ask him where he got the firearm from nor did he inquire from him why he wanted to give him possession of the firearm allegedly meant for Thelingoane 'Mota who as previously stated was, according to him, standing within their view only 30 - 35 meters away. Significantly A1 concedes that he did not enjoy close relationship with Sekete because he (A1) used to leave for work in the morning hours coming back home late. He concedes therefore that he did not confide with Sekete. He concedes that they did not share confidential issues. It is most unlikely in my view, therefore, that Sekete could have given him a murder weapon in the circumstances.

As could well be expected from the peculiar circumstances of the case A1 fared very badly in cross examination where he was taken to task on his explanation that he received the murder weapon Exh "1" from Sekete. He contradicted himself and was evasive on a number of issues. For example while he had created the impression that Sekete was moving in the direction of Thelingoane 'Mota's house when he saw him he later changed to say that he was entering his own (Sekete's) gate which by implication would mean that he was

42

not taking the firearm to Thelingoane 'Mota anyway. Again while he had given the impression that he had seen the firearm even though it was wrapped in a thin plastic bag A1 became evasive and contradicted himself in cross examination by Mr. Nel for the crown and now said that he first saw the firearm at the time PW4 and his investigating team fetched it. Almost in the same breath he changed his version to say that the firearm was visible when he allegedly took it from Sekete "although you could not see the make of the firearm." He was pertinently asked:-

"Q. Could you see through the plastic that it contained a firearm? A. That is so.

Q. If that is so why were you so surprised when Mosili (PW4) (counsel obviously meant Thelingoane 'Mota) took it out?

A. I was surprised because it was my first time to see it. It was the first time in my life to see a firearm."

This despite the fact that on his own version he had allegedly seen the firearm with Sekete before. This in my view is a measure of how untruthful A1 was as a witness. Nor is that all.

It will be recalled that PW4 was unchallenged in his evidence that A1 freely and voluntarily pointed out the firearm Exh "1"as "his". A1 himself conceded the said pointing out in his evidence. No suggestion was made to PW4 and his investigating team that the firearm Exh "1" belonged to Sekete as A1 now wants the Court to believe or at least to accept as a reasonable possibility. Significantly it was never put to PW4 in cross examination that

43

Sekete asked A1 to hand over this murder weapon to Thelingoane 'Mota for safe keeping or at all. Nor was it ever put to PW4 that it is the police themselves who instructed A1 to hand over the firearm belonging to Sekete. I reject this explanation as a fabricated afterthought. Afterall there is no evidence that the police linked Sekete with any firearm at all. It would thus be strange and indeed illogical for the police to ask A1 about the whereabouts of Sekete's firearm as now claimed on his behalf. In this regard I have taken into account the fact that at the time of the cross examination of PW4, A1 was indeed represented by a very experienced attorney namely Mr. Phoofolo. Failure to cross examine on this issue cannot therefore be put down to the inexperience of the cross examiner but probabilities are that it was by design as an indication of how truthful PW4 was. In this regard it is also pertinent to recall, as previously stated, that A1 was initially very cooperative with the police. In these circumstances it is in my view highly unlikely, or indeed inconceivable, that Mr. Phoofolo would have negligently failed to put A1's explanation to PW4.

The question of the failure to put the defence case to Crown witnesses is one that has engaged the attention of courts for a long time. In this regard the remarks of Maisels P, in Phaloane v Rex 1981 (2) LLR 246 bear reference. The learned Judge of Appeal expressed himself as follows at page 252 thereof:-

"Making allowances for certain latitude that may be afforded in criminal cases for a failure to put the defence case to Crown witnesses, as to which see the remarks of Davis A.J.A. in Rex v M 1946 AD.p.1023 at 1028, it seems to me that as MacDonald J.P.

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held in S.v.P. 1974 (1)S.A. 581 it is important for the defence to put its case to the prosecution witnesses as the trial court is entitled to see and hear the reaction of the witness to every important allegation. And as Claasen J. put it in Small v. Small 1954 (3) S.A. 434:

"It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case of defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.""

Weighing all of the particular circumstances in this case I am satisfied that A1's explanation that he received the murder weapon Exh "1" from Sekete is an afterthought and is so demonstrably false or inherently so improbable as to be rejected as false. I believe the version of the Chief Investigating Officer PW4 that A1 freely and voluntarily led the police to Exh "1" and freely and voluntarily pointed it out to them as "his". That being the case I hold, on the authority of the Court of Appeal decision in Malefetsane Phala Mabope v Rex (supra) at pages 166 -169, that such evidence of pointing out by A1 is admissible against him.

Even if I may be wrong on the conclusion at which I have arrived in the preceding paragraph, I consider that A1's explanation that he received the

45

murder weapon Exh "1" from Sekete is, in any event, not good enough for him where it is not disputed, as is the case here, that Sekete was himself a co-conspirator or a socius criminis in the killing of the deceased in as much as at common law the executive statements and acts of a co-conspirator in furtherance of the common purpose as in casu are admissible against the other or others. See Rex v Cilliers 1937 AD 278 at 285) In this regard it will be recalled that it is the evidence of PW3 Khopiso Kholumo Sempe that it is A1 who actually introduced him to Sekete and that the latter said, in the presence of A1, that M120,000-00 would be paid for the killing of the three Indians in question. It will be recalled further that it is PW3's evidence that he was actually shown the premises of the three intended Indian victims by A1 and Sekete in furtherance of the conspiracy in question. This damaging evidence relating to Sekete was never challenged both in cross examination and in A1's evidence. There is accordingly no reason to doubt it in the circumstances of this case.

Indeed it is not seriously disputed that there was a conspiracy to kill the three Indians namely the deceased, his wife Fatimabai Abubaker appearing on Count HI and his son Ashraf Abubaker appearing on Count II. In this regard Mr. Phoofolo's cross examination of PW3 on behalf of A1 bears reference. This is how he crisply put it.

"Q. I am suggesting to you then that the reason why you changed your mind (about the conspiracy to kill the three Indians) is because you had not obtained the part payment, which displeased you?

A: Yes."

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Despite the aforegoing considerations, it is A1's evidence however that he was not a party to the conspiracy in question. According to him both PW3 and PW5 are lying on this issue. Strangely he now says that he does not know PW3 at all and gives the impression that he was seeing him for the first time when he gave evidence before this Court in the instant matter. This was in answer to a question by his own counsel Mr. Sello in chief as follows:-

"Q. Now I come to an interesting character Khopiso Kholumo Sempe PW3. Did you know him before he testified?

A. I don't know him."

Indeed, pressed further, A1 ultimately said that he first became aware of PW3's "existence" or that he first saw him in this Court.

Yet once more it was never put to PW3 in cross examination that A1 does not even know him and that he was seeing him for the first time when he gave evidence in the matter. On the contrary PW3's evidence was not challenged in cross examination to the effect that Seeiso introduced Alto PW3 and that they met for four days thereafter putting finer details to the alleged conspiracy such as going to recruit Chaisa. Nor, as earlier stated, does PW3's evidence stand alone. It will be recalled that PW5 Tseko Mohai corroborates PW3 on the question of the alleged conspiracy. A1 concedes that he knows PW5. Most importantly A1 could not suggest any reason why PW5 should he against him.

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Strangely, A1 denied any knowledge of Sechaba Ramaema, Seeiso and Chaisa yet once more this was never put to Crown witness PW3. A1 blames his counsel Mr. Phoofolo for the "omission." As I listened to and observed A1 give evidence 1 got a clear impression that he was a lying witness.

Similarly A1 made a very poor impression on me in his evidence relating to the black bag Exh "8". In this regard it will be recalled that the Chief Investigating Officer PW4 was never challenged in his evidence that upon the arrival of Thelingoane 'Mota at the CID office on the 12th June 1999 A1 called him (PW4) and asked him to call Thelingoane 'Mota to the office in which A1 was. Furthermore, the evidence of PW4 remained undisputed that upon the arrival of Thelingoane 'Mota in that office A1 asked the latter: "where is that black bag that I had left at your house?" To which Thelingoane "Mota showed that he did not know anything about the black bag and requested permission to return to his home from where he came back with two (2) black bags. Indeed PW4 was unchallenged in his evidence and I accordingly accept that "among those two black bags A1 picked the bag which is before the Court" namely Exh "8". A1 then handed this bag to PW4 while freely and voluntarily making an explanation about it.

Notwithstanding the undisputed evidence of PW4 as fully set out in the preceding paragraph A1 gave a completely different version in his evidence in which he now denies ever asking Thelingoane 'Mota about the whereabouts of the black bag that he had left at his home. He says he never even called for Thelingoane 'Mota and that he never saw the two black bags the latter came

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with. Indeed he denies ever handing the black bag Exh "8" to PW4 despite the fact that this was never put to PW4. Amazingly he denies ever making an explanation about Exh "8" to PW4 at all.

As 1 have stated previously Mr. Phoofolo is in my view too experienced an attorney to commit the kind of numerous "omissions" referred to in the preceding paragraphs. I have no doubt in the circumstances of this case that A1 was lying on the issue of the pointing out of the murder weapon Exh "1" and the black bag Exh "8" and that PW4 was telling the truth.

It is no doubt pertinent to mention also that for the first time in his evidence in chief A1 alleged that he was assaulted by the police after he had pointed out the firearm Exh "1". This again was never put to PW4 and I have no hesitation in dismissing it as not only an afterthought but as completely false. Indeed A1 fared so badly in cross examination on the issue that Mr. Sello was constrained to inform the Court that it was not the defence case that A1 was assaulted at all. A1 was truly exposed as a liar.

On the question of the identification parade A1 conceded that there were many men on the parade and he estimated that they could have been 10. He confirms that he was told to choose any position in the line which he duly did. He confirms further that PW2 pointed him out from a line of about 10 men. Although he complains that he was never told that he could change his position if he so wished I am satisfied from the particular circumstances of this case that the identification parade in question was both fair and reliable and so was the

49

pointing out of A1 by PW2 who was not even shown to have any motive to he against him. It will be recalled that she also pointed out A1 in court as one of the two men who came to the deceased's house when he was murdered. She also identified him as the man who was carrying a black bag similar to Exh "8". In this regard it will be recalled that she is corroborated by PW6 Lefa Seutloali who was also not shown to have any motive to lie against A1.

It requires to be mentioned that after giving evidence A1 closed his case without calling any witnesses. He did not even seek the Court's assistance to call or subpoena Sekete. This in my view must surely reflect badly on the bona fides of Alregarding his so called explanation that he received Exh "1" from the latter notwithstanding the fact that in law he bears no onus to prove his innocence.

Weighing all of the aforegoing I accordingly reject the evidence of A1 as not only inherently improbable but as false beyond reasonable doubt. I believe the evidence of the Crown witnesses PW1 (subject to what has been said above), PW2, PW3, PW4, PW5 and PW6 In this regard I find that Exhibits "1" (the murder weapon) and "8" provide damning corroboration and clearly link A1 with the killing of the deceased. It will be recalled that the unchallenged evidence of PW1, PW2 and PW6 is to the effect that one of the two men who attacked the deceased when he was shot and killed was carrying a black bag similar to Exh "8". I am satisfied that PW2 positively identified A1 as the person who was carrying the black bag. As earlier stated she admittedly identified him both at the identification parade and before this Court. Moreover it will further

50

be recalled that according to the unchallenged evidence of PW4 which I accept as the truth A1 pointed out and/or volunteered the production of the black bag Exh "8" himself Hence I consider that under these circumstances the Court can safely accept the version of the Crown witnesses and reject that of A1.

Exhibits "1" and "8" which were no doubt used in the commission of the offence also provide, in my view, evidence aliunde that the offence alleged against A1 was actually committed. This,coupled with the admitted fact that the deceased was found lying dead with bullet wounds, therefore fully satisfies the provisions of Section 239 of the Criminal Procedure and Evidence Act 1981.

Having found corroboration as fully set out above, I am satisfied that the identifying witnesses PW1, PW2 and PW6 were in fact not mistaken in identifying A1 as one of the two men who came to the deceased's house when the latter was shot and killed. I find that PW2 in particular was not only honest but also reliable in her evidence that she identified A1 as one of the two men who shot and killed the deceased. As I have pointed out above Exhibits "1" and "8" corroborate her. These exhibits further corroborate the evidence of PW1 and PW6 and thus put a stamp of reliability upon their identification of A1 which, standing alone, might otherwise not be reliable.

At this point it requires to be stated that on the question of the correct approach in evaluating and analysing the evidence in this matter I am respectfully attracted by the remarks of Marais AJA in Moshephi and Another v R 1980-84 LAC 57 at 59 F-H as follows:

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"The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the Appellants was established beyond reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in a body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood for the trees."

It is important to note that the case of Moshephi and Another v R (supra) was followed with approval by the Supreme Court of Appeal of the Republic of South Africa in S v Hadebe and Others 1998 m SACR422 (SCA)at426. I have accordingly considered the mosaic as a whole in this matter to determine the guilt or otherwise of the accused. In my view corroboration is crucial and in this regard I respectfully adopt the principle contained in Mohajane v R 1985-89 LAC 14 at 18 that such corroboration may be found if there is satisfactory evidence that the firearm used to kill the deceased was indeed the same firearm which was taken from the possession of the accused. In my view the same result may be obtained if the firearm used to kill the deceased is produced or pointed out by the accused as in the instant matter.

Having considered the mosaic of proof as a whole I have come to the conclusion that the only reasonable inference to be drawn from the

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circumstances of the case on the authority of R v Blom 1939 AD 288 is that the deceased was unlawfully shot and killed by A1 and his companion acting in concert on the 9th June 1999 (it really does not matter who actually pulled the trigger).

Furthermore, I am satisfied from the facts fully set out above that the killing of the deceased was not only unlawful but was premeditated and therefore intentional. A1 and his co-conspirators plotted the evil that they ultimately carried out. On a conspectus of all the evidence taken cumulatively 1 find that the Crown has succeeded to prove its case against A1 beyond reasonable doubt. Accordingly A1 is found guilty of murder on Count 1. He is also found guilty as charged on Counts II and III.

Regarding Count IV namely unlawful possession of a firearm it will be recalled that the evidence against A1 is that he handed over the firearm Exh "1" to one Thelingoane 'Mota on the 9* June 1999. On the 12th June 1999 he led the Chief Investigating Officer PW4 Detective Inspector Mosili and his team to Thelingoane 'Mota's home where he freely and voluntarily asked the latter to give him the firearm in question. As will be recalled Thelingoane 'Mota obliged and A1 in turn handed the firearm over to PW4.

The question that arises for determination in this matter therefore is whether in the circumstances described above A1 was found in possession of the firearm Exh "1". Put differently whether he can properly be said to have had possession of the firearm notwithstanding the admitted fact that it was retrieved

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from Thelingoane 'Mota. To answer this question it is no doubt necessary to have regard to the provisions of Section 3(1) read with Section 3(2), 3(3) and 43 of the Internal Security (Arms and Ammunition) Act 1966 as amended by Act No.4 of 1999 They require quotation in full as follows:-

"3. (1) Subject to the provisions of this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition to which this Part of this Act applies unless he holds a firearm certificate in force at the time.

(2) If any person -

  1. purchases, acquires or has in his possession any
    firearm or ammunition to which this Part of this
    Act applies without holding a firearm certificate
    in force at the time, or otherwise than is
    authorised by such a certificate, or in the case of
    ammunition, in quantities in excess of those so
    authorised; or

  2. fails to comply with any condition subject to
    which a firearm certificate is held by him;

he shall, subject to the provisions of this Act, for each offence be liable on conviction to the penalty prescribed in Section 43.

  1. Notwithstanding subsection (1) no person shall purchase
    a rifle or have it in his custody or control and any person
    who has such rifle in his custody or control shall
    surrender it to the nearest Police Station within a period
    of 6 months from the commencement of this Act.

  2. A person who contravenes subsection (3) commits an
    offence and is liable on conviction -

(a) in the case of a first offence to a fine of not less

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that (sic) M5,000.00 or to imprisonment for not less than 2 years; and

(b) in the case of second or subsequent offence to imprisonment for a term not less than 2 years."

Since the firearm Exh. "1" is in fact a pistol and not a rifle I have no doubt in my mind that a charge under subsection 3(3) of the Internal Security (Arms and Ammunition) Act 1966 as amended by Act No. 4 of 1999 is not competent in the circumstances.

To the extent that it is relevant to this case Section 43 (1) of the Internal Security (Arms and Ammunition) Act 1966 as amended by Act No. 4 of 1999 in turn reads as follows:-

"43. (1) Any person who is guilty of an offence under Sections 3(2), 4(10), 6(7), 10(6), 11(6), 13(5), 14(4), 15(4), 21(3), 23(5), 29, 30,33(3), 33(4), 34(5), 35(4), 38(2), 38(3) and 38(4) shall upon

conviction be liable to a fine not less than five hundred rands or imprisonment not less than six months, or to both such fine and imprisonment."

The meaning of the expression "has in his possession" has received judicial interpretation in such cases as S v Brick 1973 (2) SA 571 (A) where the court considered a substantially similar provision to our Section 3(1) and (2) of the Internal Security (Arms and Ammunition) Act 1966 as amended. That section is Section 2(1) of Act No. 37 of 1967 and it reads as follows:-

"Any person who has in his possession any indecent or obscene photographic matter shall be guilty of an offence."

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At page 580 of S v Brick (supra) Ogilvie Thompson C.J. who subsequently became Judge of Appeal of our Court of Appeal interpreted the expression "has in his possession" in the context of the Act in question to envisage "physical detention, custody or control of" the matter penalised.

I find the interpretation referred to above attractive and indeed apposite to the instant case regard being had to the fact that the intention of the Legislature in our Act is, broadly speaking, concerned with the prevention of the mischief of physical handling or dealing with firearms without being in possession of a firearm certificate.

It is no doubt heartening to note that the interpretation set out above was followed by our Court of Appeal in Mahloane v Rex 1981 (2)(DLLR272 at 274 wherein Van Winsen JA expressed himself as follows:-

"The Act (namely the Internal Security [Arms and Ammunition] Act 1966) under which appellant is charged contains no definition of the word "possession" nor can it be deduced from its terms that the Legislature intended that mere physical detention of an uncertificated firearm would constitute possession of that firearm. I can see no reason to differ from the conclusion arrived at by Jacobs C.J. in the case of Ralitšoanelo Ralintši v Rex LLR 1971-73 p.68 that possession of an article under the Act in question envisages both the physical detention of the article and the mental element of an intention to control the article."

On the facts of the instant case it is common cause that A1 transferred the firearm in question namely Exh "1" to Thelingoane 'Mota from whom it was

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subsequently retrieved. It follows in my view therefore that as soon as he physically parted with the firearm Exh "1" A1 no longer became in possession of it. More importantly there is no evidence that he thereafter exercised any custody or control over the firearm or that he knew where it was hidden by Thelingoane 'Mota for that matter.

Since, as I have endeavored to demonstrate above, the intention or object of the Legislature in the Act was to prevent and/or penalise physical handling or dealing with firearms without being in possession of firearm certificates, I have come to the conclusion on the bare facts as they are in the instant matter that A1 was not found in possession of the firearm Exh "1" within the meaning of Section 3 of the Act.

All things being considered I find that the Crown has failed to prove its case against A1 beyond reasonable doubt on Count IV and he is accordingly found not guilty and acquitted thereon.

I turn then to the case against A3. Apart from what has already been set out above it is pertinent to mention at this stage that A3 closed his case without testifying or calling any witnesses at all. This, I observe, he was entitled to do in as much as it is trite law that the accused's failure to testify or call witnesses can only properly be used as a factor against him where there is prima facie case against him. See Mahanye and Another v R 1999 - 2000 LLR & Legal Bulletin 105 at 126. That aside, the general principle is that where there is direct evidence implicating the accused in the commission of the offence charged, the

57

prosecution case is strengthened if the accused fails to testify in order to controvert such evidence.

As will be recalled A3 was implicated by two Crown witnesses namely PW3 (the accomplice) and PW4 (the Chief Investigating Officer). PW3's evidence in a nutshell was to the effect that he saw A3 at China Garden where the latter allegedly said the sum of M11,000-00 had already been paid and thus refused to pay M10,000-00 demanded by A1 on the instruction of Chaisa. PW3's evidence is that A3 insisted that the "job" should be carried out first and that M120,000-00 would be paid afterwards. It will further be recalled that all this information is not what PW3 heard himself but it is what he says was relayed to him by A1 as allegedly emanating from A3 (it is not without significance that A1 denies it). To the extent that this is tendered as the truth I consider that it is patently inadmissible as hearsay. Once that is so it follows in my judgment that there is no direct prima facie evidence implicating A3 in the commission of the offence and thus obliging him to testify. See S v Mehlape (supra) at 34 and S v Mthetwa (supra) at 769.

The main difficulty with PW3's evidence of identification of A3 is that it is very poor and unsatisfactory. Moreover he was never asked to identify A3 in an identification parade. Bearing in mind that he is an accomplice witness his evidence remains uncorroborated in so far as A3 is concerned.

It will further be recalled that PW4's evidence against A3 was mainly to the effect that the latter freely and voluntarily stated that he knew everything

58

about the case which PW4 was investigating and that he also knew the people who carried out the "mission" but that he "could not tell PW4's party anything unless the DPP issued him an indemnity letter that he was not going to be charged."

What is, I believe, a matter of grave concern is the fact that PW4 conceded in cross examination by Mr. Sooknanan for A3 that what is stated in the preceding paragraph does not appear in his written statement. A suggestion was therefore made that this may be an afterthought. In my view, I consider that this is a valid criticism. I consider further that it would be dangerous and unsafe to rely on such evidence without more.

Apart from being an accomplice PW3 is clearly a single witness against A3. In the absence of an identification parade and corroboration his evidence in the particular circumstances of the case cannot by any stretch of the imagination be termed clear and satisfactory in every material respect as laid down in such cases as R v Mokoena OPD 79 at 80 and S v Sauls and Others 1981 (3)SA 172 (A) In this regard it is significant that under cross examination by Mr. Sooknanan for A3, PW3 was repeatedly asked what description of the person Jimmy he gave to the police. Each time he replied that he told them that he was taught this person by A1 and that he did not explain further. He was then pertinently asked:-

"Q: You merely told the police that there is a Jimmy who is a Chinese?

59 A: Yes."

It is further significant that on his own admission in cross examination by Mr. Sooknanan PW3 conceded that he had a "glance" at the said Jimmy only "for a brief moment.' It will be remembered for that matter that this took place while PW3 was seated inside a motor vehicle thus obviously restricting his view. In these circumstances I consider that PW3 did not have a proper opportunity for a correct identification of the Jimmy in question as A3.

As further proof of the unsatisfactory nature of PW3's evidence with regard to identification of A3 it is no doubt useful to refer shortly to his answers to the Court which were recorded as follows:

"HL: This man Jimmy (the so called A3), the Jimmy that you talked about, was he a stranger to you?

PW3: That is so my Lord.

HL: Did you ever see him after that day?

PW3: No my Lord.

HL: Did the police ask you to describe this man Jimmy?

PW3: I am the one who described him my Lord, they did not ask me.

HL: What description did you give of Jimmy?

PW3: I showed that we had gone to Jimmy with accused No. 1.

HL: No, I want to hear about the description if any?

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PW3: I explained that we went with Accused No.1 and Chaisa.

HL: Were you able to give the police the facial description of Jimmy?

PW3: I did my Lord.

HL: And what description did you give them?

PW3: I said he is a young man, slim and a Chinese man.

HL: Have you seen Chinese men in this country?

PW3: That is so my Lord.

HL: Have you seen young slim, Chinese men in this country?

PW3: Yes I used to see them my Lord.

HL: So you would say there are many young slim Chinese men in this country?

PW3: Yes they are many my Lord.

HL: Were you ever asked to identify this Jimmy at an identification parade?

PW3: I did not attend the parade my Lord.

HL: By what feature then did you identify Jimmy?

PW3: I had a closer look at him my Lord the time we met.

HL: Is that all you can say?

PW3: Yes that is all my Lord."

Nor does the Court attach any weight (in the absence of corroboration) to e fact that PW3 only identified A3 for the first time in the dock after a period

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of almost one and half (1½) years and in circumstances where A3 was the only Chinese person in the dock. No reasonable explanation was furnished to the Court why an identification parade was not held in respect of PW3. In these circumstances I consider that PW3's evidence of identification of A3 in the dock has no real probative value.

This Court is mainly attracted by, and does adopt, the following remarks of Williamson JA in S v Mehlape (supra) at 33:

"If in regard to a question of identification any reasonable possibility of error in identity has not been eliminated by the end of a criminal case, it could quite clearly not be said that the State has proved its case beyond reasonable doubt."

It follows from the aforegoing considerations that PW3's evidence on the identification of A3 is in my view clearly not reliable notwithstanding his apparent honesty. It must indeed now be regarded as settled law that in deciding the question of identification of a particular person in a case a court should be satisfied both as to the honesty of the identifying witness as well as to the reliability of his evidence to ensure a correct identification. See S v Mehlape(supra) at 32 A-B which was followed in S v Mthetwa (supra) at 768 A-B. I desire only to emphasise at this stage that the fact that PW3's evidence remains completely uncorroborated as against A3 (unlike in the case against A1) has weighed heavily with this Court. In the circumstances set out above, I would therefore give A3 the benefit of doubt. See S v Mthetwa (supra). I find that the Crown has failed to prove its case against him beyond reasonable doubt.

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There is no evidence implicating him on the other counts as well. Accordingly A3 is found not guilty and is acquitted on all the counts affecting him namely Count I, Count II and Count III. He must count himself lucky and thank our sound criminal justice system that is rooted in the presumption of innocence of an accused person until the Crown has proved its case beyond reasonable doubt against him/her.

In sum therefore:

A1 is found guilty as follows:

Count I: Murder

Count II: Contravening Section 183 (2) of the Criminal Procedure and Evidence Act 1981 by unlawfully and intentionally conspiring with others to kill Ashraf Abubaker.

Count III: Contravention of Section 183 (2) of the Criminal Procedure and Evidence Act 1981 by unlawfully and intentionally conspiring with others to kill Fatimabai Abubaker.

A1 is found not guilty on Count IV and is acquitted thereon. A3 is found not guilty and is acquitted on all the counts.

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As I indicated in my judgment of the 26th September 2001 my Assessor agreed with this decision before his sad demise.

M.M. Ramodibedi

JUDGE 16 day of November 2001

For the Crown: Mr. Nel

For A1: Mr. Phoofolo and Mr. Sello

For A3: Mr. Sooknanan

For A2 and A4: Mr. Sello