C OF A (CRT) NO.l OF 2002
IN THE COURT OF APPEAL OF LESOTHO
In the matter between
LEFU NTOBO Appellant
HELD AT MASERU
CORAM Steyn, P.
The appellant and three other accused appeared before Ramodibedi J and an assessor in the High Court. The assessor died after all the evidence was led but before counsels' addresses to the court. Thereafter the trial proceeded before the learned judge sitting alone. The accused faced one count of murder and two of conspiring to commit murder in contravention of s183 (2) of the Criminal Procedure and Evidence Act, 1981. Two of the appellant's co-accused were discharged on all counts at the close of the Crown case and one was subsequently acquitted on all
charges. Despite his plea of not guilty, the appellant was convicted on all three counts and was sentenced as follows:
Count I: Murder of Abdul Rauf Abubaker ("the deceased") - 25 years imprisonment;
Count II: Conspiring with others to kill Ashraf Abubaker (the son of the deceased) - 5 years imprisonment;
Count III: Conspiring with others to kill Fatimabai Abubaker (the wife of the deceased) - 5 years imprisonment.
The sentences on Counts II and III were ordered to run concurrently with the sentence on Count I.
This is an appeal against all the convictions and against the sentence on Count I.
It is not disputed that on the morning of 9 June 1999 two men gained admittance to the deceased's house in Maseru, that one of them fired a number of shots at the deceased and that the deceased died as a result of three gunshot wounds to his body. After the shooting, the assailants immediately left the house and ran towards a taxi rank. The weapon used to fire the shots was a 9 mm parabellum pistol.
What is in issue is whether the appellant was one of the assailants. If he was, it matters not whether he or his companion fired the fatal shots as it is clear that they acted with the common purpose of killing the deceased.
The perpetrators were admitted to the grounds of the house by Thebe Ramotsekhoane, a watchman employed by the deceased, on the pretext that they were court officials who had come to serve documents on the deceased. Ramatsekhoane took the men to Mamosotho Mosotho, a domestic servant in the deceased's employ, who, in turn, ushered them into the lounge where the deceased and his wife were sitting. Mosotho closed the lounge door and went to the kitchen. She did not see the assailants again on that day.
Both Ramotsekhoane and Mamosotho Mosotho claimed that the appellant was one of the assailants. A third employee of the deceased, Lefa Seutloali, was on his way to the deceased's house on the morning of the killing. He told the trial court that as he reached the house he saw two men running towards the gate. One of these, he said, was the appellant. The men went through the gate and hurried down the road.
So much for the evidence of what occurred at the deceased's house. Some of the background to his death emerged from the evidence of Khopiso Kholumo Sempe who testified about a plot to kill the three members of the Abubaker family in retaliation for their past alleged transgressions. For carrying out the mandate the conspirators would receive Ml20 000, the payment to be made by the third accused apparently on behalf of those who wanted the Abubaker family to be killed. Sempe claimed that he had been invited to join the conspiracy by a friend, Seeiso. He was subsequently introduced to the appellant who, he said, gave him details of the operation and showed him the Abubakers' house and Ashraf Abubaker's place of business. Thereafter Sempe had second thoughts about his participation in the conspiracy. He warned the deceased's family and the police about the plot. The police posted guards at the deceased's house for about a week but then discontinued this security arrangement, apparently due to a lack of manpower.
Sempe disclosed the names of the conspirators to the police and one of these, Seeiso, furnished the detective branch with details of the appellant's whereabouts. This led to his arrest on 12 June 1999 by Detective Inspector Mosili and other members of the force.
Mosili told the trial court that after his arrest the appellant led the detectives to the home of a man called Thelingoane 'Mota. The appellant, said Mosili, asked 'Mora to hand over the gun that he (the appellant) had given to 'Mota a few days earlier whereupon 'Mota produced a firearm (wrapped in a yellow piece of plastic) from the seat of a scrapped vehicle on his premises. This, it is common cause, was the 9mm parabellum pistol from which the cartridges that killed the deceased were fired. Some days later, according to Mosili, the appellant requested 'Mota to produce the black bag which he (the appellant) had left at 'Mota's house. 'Mota went to his house and returned with two black bags. One of these was claimed by the appellant and handed to Mosili. Ramotsekhoane, Mosotho and Seutloali testified that they saw a similar bag in the appellant's possession on the morning of the murder.
The only other Crown witness whose evidence needs to be mentioned is a man by the name of Tseko Mohai. During March 1999, and while he was a passenger in a taxi, the appellant, who was seated behind him, was discussing work with some companions. As Mohai was unemployed, he approached the appellant when they left the taxi and asked about the nature of the work that was the subject of the earlier discussion. The appellant, according to Mohai, replied that the work involved killing, that an Indian man was to be killed and that the motive
for killing him was that his family "wanted him to be killed." Mohai said that he was not prepared to be involved in that kind of work and after the appellant warned him that he would remain hungry, they parted company.
The appellant, too, gave evidence. He denied that he was part of a conspiracy to kill members of the Abubaker family, that he had participated in the killing of the deceased or, indeed, that he had ever been to the deceased's house. He also denied that he had spoken to Tseko Mohai about killing a person. He told the court a quo that at the time of his arrest he was employed by Thelingoane 'Mota as a taxi driver. They both lived at Mazenod. He testified that after his arrest he was asked by the police about the whereabouts of the firearm of a certain Sekete Mopeli who, it may be noted, was also a member of the conspiracy. He told the police that the firearm was at 'Mota's place at Mazenod, that he took the police to this place where he asked 'Mota to hand over the firearm "that Sekete asked me to give you." He explained that Sekete, who was employed by 'Mota as a mechanic, had some days earlier asked him to hand the pistol to 'Mota and he did so. At the time the pistol was wrapped in a yellow plastic wrapper. The appellant also denied that he had requested 'Mota to produce a black bag. He denied, in fact, that he picked out the bag in question or, indeed, that he ever saw it prior to the trial.
With that outline of the Crown and defence cases, I turn to evaluate the evidence, having regard, inter alia, to the findings of the trial court and the submissions of counsel at the appeal.
Although the witness Ramotsekhoane pointed out the accused in court, he had failed to identify him at an identification parade held a week after the shooting. This was the main ground for the trial court's finding, which, in my view was quite correct, that the witness, though honest, was unreliable in relation to his identification of the appellant.
The court a quo, was satisfied that the witness Mamosotho Mosotho was honest and this finding was not challenged on appeal. It is also clear that Mosotho had sufficient opportunity to observe the men in question and that she was very close to where they were sitting in the deceased's lounge. What is more she pointed out the appellant as one of the assailants at an identification parade. The learned Judge a quo was nevertheless at pains to approach her evidence with caution. Mosotho admitted being confused and terrified as a result of the shooting of the deceased. Moreover, at the identification parade, in attempting to point out the man who was with the appellant, she picked a person who was admittedly not involved in the crime. The learned Judge sought - and
found - corroboration for Mosotho in the evidence of Lefa Seutloali. He concluded that Seutloali's opportunity for observation and the proximity of the witness to the two men made it unlikely that he could have been mistaken in his identification of he appellant. Although Seutloali was not called upon to attend an identification parade, he had no hesitation in correctly mentioning the appellant's physical features in the court a quo. In the result the trial judge correctly accepted the evidence of both Mosotho and Seutloali concerning the identification of the appellant.
Counsel for the appellant drew our attention to inconsistencies in the evidence of both Mosotho and Seutloali. He submitted, moreover, that before attending the identification parade, Mosotho was not told that the appellant might not be on the parade and that, according to her evidence, the men on the parade were of various complexions and builds. All of these factors were, however, taken into careful consideration by the trial court. In the result the imperfections in the Crown case relating to the identification parade and the testimony of the two identifying witnesses are not of great significance in the overall picture.
Further corroboration for the appellant's participation in the murder of the deceased is to be found in the evidence of Sempe. This witness not only gave evidence about the conspiracy but he directly linked the
appellant to the victim in testifying, as he did, that the appellant took him to the deceased's house. It is true that Sempe was an accomplice and that his evidence was not completely free from blemish. It is also true, as counsel for the appellant emphasized, that according to Sempe's evidence, the appellant was most forthcoming in providing Sempe with details of the plot at a time when the appellant and Sempe were virtual strangers. The trial court was alive to these factors and it was also aware of the peculiar danger inherent in accomplice evidence, namely the possibility that the accomplice might substitute in accused person for the real culprit. We are satisfied that the learned judge was entitled to rely on the fact that the appellant showed Sempe the deceased's house.
It is clear that crucial evidence implicating the appellant in the murder was given by Detective Inspector Mosili. It is not disputed that the appellant acted freely and voluntarily in requesting 'Mota to produce the firearm. The only question is whether he asked for his gun (as Mosili stated) or whether he asked for Sekete's firearm (which was the defence case). The appellant's version was not put to Mosili by the defence. Nor was it suggested to Mosili that the appellant had allegedly acquired a firearm from Sekete. Moreover there was no reason why Sekete could not have given the firearm to 'Mota himself: it is most improbable that he would have entrusted this unusual task to the appellant, particularly
because 'Mota was in his close vicinity at the time. Furthermore the appellant's counsel did not challenge Mosili's evidence relating to 'Mota's production of the two black bags, one of which the appellant picked out. The appellant's denial of Mosili's evidence on this aspect was clearly a fabrication and was rightly rejected by the trial court.
Counsel for the appellant argued that Mosili's evidence was unreliable. During the course of the police investigations, Mosili, his assistant, the Director of Public Prosecutions and the deceased's son had gone to Johannesburg to interview accused No. 3. Mosili denied that the purpose of the visit was to recruit accused No. 3 as a witness for the Crown. This, counsel submitted, was a false denial. If this is so - and I am certainly not satisfied that it is - it does not affect the veracity of Mosili's evidence relating to the handing over of the firearm and the black bag. There were also inconsistencies between Mosili's evidence and a previous affidavit which he had made. These, too, do not have a direct bearing on his evidence relating to the implication of the appellant and, in my view, are peripheral matters which can safely be ignored.
The appellant was a poor witness. He was both evasive and contradictory. What is more, his evidence relating to the firearm and the black bag demonstrate his cynical approach to the concept of truthfulness.
The trial court had no difficulty in rejecting his evidence and accepting that he was one of the men who entered the deceased's house on 9 June, that he participated in killing the deceased and that he subsequently attempted to conceal the murder weapon and the black bag by handing these items to 'Mota. In our view the trial court's approach cannot be faulted in this regard. The appellant was therefore correctly convicted of murder on Count I.
The next question for determination is whether, in the light of all the circumstances, the guilt of the appellant on Counts II and III was established beyond reasonable doubt. In the circumstances of this case this depends on whether there was corroboration of Sempe's evidence in respects implicating the appellant. The learned judge approached the evidence of Tseko Mohai with great caution but nevertheless accented his testimony. He went on to hold that Mohai's evidence corroborated that of Sempe "on the issue of the conspiracy to kill the deceased and his family." Assuming, without deciding, that Mohai was a reliable and truthful witness, the question that remains is whether his evidence does corroborate Sempe with regard to the conspiracy to kill the deceased's wife and son. Mohai's evidence was to the effect that an Indian man was to be killed, presumably by the appellant and others. There was no evidence that the intended victim was the deceased's son. Clearly,
therefore, the evidence falls far short of showing that the appellant was involved in a conspiracy to kill either Ashraf Abubaker or the deceased's wife.
It follows that Mohai does not corroborate Sempe in respect of the Counts II and III. We have carefully considered whether, on a consideration of all the evidence, corroboration is a prerequisite for convictions on these counts and in our view it would not be safe to convict the appellant on Sempe's evidence alone, despite the unsatisfactory nature of the appellant's testimony. It may also be noted that the deceased's wife was not harmed although she was with the deceased when he was killed. Nor did the evidence disclose any attempt to kill the deceased's son. This is not to say that there was no conspiracy to kill them. All that needs to be said is that the guilt of the appellant was not established beyond reasonable doubt on Counts II and III.
There was also an appeal against the severity of the sentence on Count I but very little was said in support thereof. The crime was a cruel, calculated and premeditated murder of a defenceless man. The motive was money. The appellant showed no remorse. The murder warranted a very severe sentence and the appellant can consider himself fortunate that
he was sentenced to no more than 25 years imprisonment. There is no merit in the appeal against the sentence and it is dismissed.
The following orders are made:
COUNT I: The appeal is dismissed. The conviction and sentence are confirmed.
COUNTS II & III: The appeal is allowed. The convictions and sentences are set aside.
ACTING JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered on the .11th... day of April, 2002
For Appellant: K. Sello
For Crown: J. Nel