IN THE HIGH COURT OF LESOTHO
In the matter between:
THAPELO MORATHA 1st Accused (Al)
REMAKETSE RASETHUNTSA 2nd Accused (A2)
THEBE MATJOBA MONARE 3rd Accused (A3)
'MAMOTSEARE MORATHA 4th Accused (A4)
For Crown : Ms L Mofilikoane
For Accused : Mr T Monyako
Delivered by the Honourable Mr. Justice T. Monapathi on the 26th day of November 2003
The Fourth Accused is charged with the offence of record to which all the accused including this Accused have defended themselves against having not pleaded guilty. A4 is related to Al who is said to be her husband. She has also testified in her own defence. The defence has closed its case.
About 99% of the defences that A4 raises this Court's head of about for the first time when she testified including her explanation as to how she came into
possession of that leather jacket and earrings (which were exhibited) that she was found with. Well, on her defence she discloses a lot of exhibits were found at her home where she stays with Al. This is the accused who was identified or who was found with this stolen goods on her as explained by PW 5 'Mamojalefa Motsoahae. In the end there was no doubt that these were goods that had belonged to the Deceased, Mrs Makae. And the Accused did not go to an extent of denying that the goods may have belonged to Mrs Makae.
First, one must look at the conduct of A4. I have already indicated that this explanation that she gave in the witness box had not been given before nor had it been intimated nor put to any of the Crown witnesses. When the Crown witnesses were examined this explanation that the Accused gave had not intimated to any of them.
Her explanation when in the witness box is that the goods were brought by her husband from an aunt or from an employer of her husband. These goods were bulky. She agreed that these were expensive items and she agreed that they appeared to belong to someone who was careful buyer. I would have safely concluded that she must have suspected that these goods were unlawfully taken or she strongly suspected it.
I now come back to the conduct of this Accused after she was apprehended and after she was asked to explain. It is that this explanation given by her that led police taking her to her sister at Lithabaneng. As it transpired her sister refused to associate herself to the Accused's story. That is why the Accused thereafter led the police to her place at Ha Tsolo after her change of tune. It can only mean that the story that she told when she was confronted with her sister was an untruth. To that extent one may easily conclude that she was
a liar or she did not tell the whole truth. There she is, she testified. She gave her story.
At this stage when I must address the question of this Accused's guilt, the test according to the law is not whether she is telling the truth or complete or perfect truth. But the test is whether her story may possibly be reasonably be true or whether the Crown could have proved its case beyond a reasonable doubt. That is the true test. That means that an accused may be a liar but in law there is nowhere an accused is bound when he defends himself that he has to tell the whole truth. Ideally every witness or accused will tell a lie here and there. Sometimes this is deliberately done but the test is whether the story may possibly reasonably be true.
There are certain things that worry me about Accused's story. Surely she must have suspected that there was something wrong with this loadful of goods and quality goods at that. And there is no doubt that every bit of clothing or item that have been taken from a household has got a smell inasmuch as an item from a shop will have a certain smell. These were obviously used goods. Surely the Accused must have suspected that there was something wrong with them. But the Crown agrees however that the story might reasonably be true. Much as we may suspect that she is liar but I have no alternative but to acquit and discharge her.
I can only warn the Accused that she is lucky. I warn her further that she must not get herself involved in things like this in the future. Do you understand Madam? But the impression that you gave is that you showed remorse. I have no doubt about that. Or in the end you were decided to show remorse. Or may be you saw that the game was up. But that is not important
for my decision. What is important is that the Crown cannot obviously prove this case beyond reasonable doubt as far as you are concerned. You may have lied so many times. There is no need for me to retain you in the box as an accused. There is no value in our procedural law to retain you as an accused. You may go because you have been acquitted and discharged.
26th November 2003