R v Mabilikoe (CRI/T/64/2000 )

Case No: 
Media Neutral Citation: 
[2003] LSHC 47
Judgment Date: 
14 April, 2003




In the matter between:




For the Crown : Mr. Kotele/Miss Shale

For the Accused : Mr. Khasipe


Delivered by the Honourable Mr. Justice T. Monapathi on the 14th day of April 2003

The Accused has been indicted of murder of Thabiso Mosenye (Deceased) who died on the night of the 18th April 1998 at or near Ha Nyoolo, Lesobeng in the district of Thaba-Tseka. Deceased died from gun shot wound a few hours after he was shot. Accused pleaded not guilty to the charge on the 8th August 2002.

A Preparatory Examination (PE) into the said murder was held in terms of the sections under Part VII of the Criminal Procedure and Evidence Act 1981


(CP&E) and completed on the 15th October 1999.

Nine witnesses were led in the PE and they were as follows: PW1 No 8228 Det/Trooper Ramochela, PW 2 Maselebalo Mosenye, PW 3 Mathakane Mosenye, PW 4 Bofihla Lekulana, PW 5 Lehlohonolo Tsoene, PW 6 Mokone Kopano, PW 7 Reentseng Lali, PW 8 Puseletso Rampeo and PW 9 Dr. Semakaleng Edward Ramokepa.

All witnesses led at PE were used in the trial except PW 9 who was the doctor who performed a post-mortem report of the body of the Deceased. The witness' deposition was admitted by consent and marked as Exhibit"A". The contents of the report was read into the machine so as to form part of the proceedings.

The post mortem report which was conducted at Queen Elizabeth II Hospital revealed that the death of Deceased was due to excessive internal bleeding. It appeared externally that there was a penetrating wound on the right breast. There was no point of exit seen. Furthermore as seen from inside, that this penetrating wound went through the right lung and lower lobe. There was also blood in the pleural cavity. A wound penetrating the liver was also found. Lastly, as additional observation, a bullet was removed from the left lumbar



What remained, having identified the cause of Deceased's death was the identification of the person who was responsible in law for the unlawful killing of the Deceased. And furthermore if such a person be identified whether or not he had killed the Deceased with the requisite intention. Significantly none of the witnesses professed to have truly (through the naked eye) identified the killer except PW 1. Nor were there any witnesses at the immediate scene where the alleged shooting occurred.

The first witness before this Court was a lady by the name of 'Maselebalo Mosenye (PW 1). She testified that she knew both the Accused and the Deceased as they were living in the same village (Ha Nyoolo) or that they were neighbours. Deceased was in fact her son. She remembered the events which led to the death of the Deceased. She said it was at night when she heard the dogs barking outside. She said it was around 2.00 am-3.00 am. She then went out and saw a group of (more than two) people coming towards her house on horseback. There was moonlight.

The witness stated further that that group of people passed along the forecourt and proceeded to the kraal. Deceased also went out and talked to


those people for some considerable time. One of them was on a grey horse and

another on a brown one. The witness was not able to identify any of them except that she came to know one of them "after the event". She had been a bit far from where the group of men had been. Thereafter the witness heard two gun reports from the spot where the group of horsemen and Deceased were standing. At this time the horsemen had dismounted. All were next to the entrance of the kraal. Thereafter she heard one of them saying "Let us go I have finished him." They later went away but passed nearer the forecourt. The witness had moved closer to her door after the statement was made.

She testified further that after the shooting many villagers arrived at her place. Then the group of horsemen had departed. She went to where the shooting had taken place. She found the Deceased already in a small hut in which he slept near the kraal. He was lying on a mattress.

When this group was at the forecourt there was more shooting at the place of Mathakane which is near the witness's place. They shot twice. One of the men had shouted "Let us go I have finished him" ("Ha re eeng ke mo qetile"). Still more men emerged after the gun report . The witness did attend at the house of Mathakane before looking into the house in which the Deceased was. It was the third in the line. Mathakane was already outside. She was carrying


a baby.

When the witnesses attended on the Deceased she asked who injured him the Deceased said that it was Seiketelo of Letsema of Sefateng. (Seiketelo oa Letsema oa Sefateng). The witness testified that Deceased knew the Accused very well and there would be no room for a wrong or mistaken identity of the Accused on Deceased's part. Later police arrived and conveyed the Deceased to the hospital.

PW 1 stated that the relation between the Accused and the Deceased had been cordial except that at one stage earlier there was a squabble over animals between the Deceased's brother and Accused with his people. She later told the Court that they were not in good terms. Both families were not in good terms.

As Mr. Kotele conceded this witness became confused because she could not remember all the events of the day. He submitted however that her story should be taken as the truth as these events took place a long time previously in 1998 and she was relatively old having been born in 1940 (as the PE record showed). What was important to me was the extent to which her evidence would be corroborated in those respects which were material to the proof of the charge.


When the witness reached the Deceased who was in his hut she called out Thabiso, Thabiso: He replied "Mother Seiketelo has shot me" (Seiketelo o nthuntse) Seiketelo is the Accused. The witness herself inquired further as to which Seiketelo the Deceased was referring to. He replied that it is "Seiketelo of Letsema" (Seiketelo oa Letsema oa Sefateng). That is this Accused. The witness reiterated that Seiketelo was well known to the Deceased. The witness also vouched that she knew the Accused (Seiketelo) very well because they reside in the same village. At this time when the witness was speaking to the Deceased 'Mathakane also came to attend. She was present.

The Deceased then pointed to his left breast area and said "Look where Seiketelo has shot me." There was a lot of blood oozing therefrom. He even said "Here is the spot where the bullet came out." He then pointed to a spot on his back where a spot "protruding" was shown where it had lodged. The witness felt the presence of the bullet inside the skin with her hand. It was a hard object. It was below the shoulder blade.

The Deceased remarked as to why Accused sought to harm him "Seiketelo, what have I done to you?" (Seiketelo o ntsekisang). Those were the Deceased's words. Other people, fellow villagers, arrived soon thereafter . An alarm had been raised. They all listened to the Deceased's words which he was


able to say for half about an hour. One was Puseletso Rampeo (PW 7), Mokone Kopano (PW 5), Bofihla Lekulana (PW 3), Reentseng Lali (PW 6), Lehlohonolo Tsoene (PW 4).

The villagers arrived at the time the Accused was still alive and reciting the story of his injury. It was close to an hour. Accused had already gone away. He had never come back to the scene. Afterwards he was called by Chief Ntsukunyane by means of a letter. He did not come. Chief Lerotholi Chief of the area also came. He sent for the Accused. It was then about 12.00 midday. He refused to comply. Another letter was written which instructed that the Accused must come with his father. His father came and made a report. He did not come with the Accused. The Deceased had already died. He passed away at about the hour of 5.00 am. Deceased's body was carried off by the police and the witness's other son accompanied the police.

The witness commented towards the end of the evidence-in-chief that the Accused and the Deceased were not in good terms. The witness' family and the Accused's were not friendly because of the witness' cattle which were unlawfully taken away by the Accused and his group and sent to Ha Mafa and driven to Ha Toka police post. The Deceased's body was brought back after the autopsy. It was reported the Accused later surrendered himself to the police.


Under cross-examination the witness agreed that she was confused and frightened. The witness explained that it even had to do with the shooting of another son of hers. The witness denied however that she might as well have not seen what happened or heard what was being said. She said she was very brave all along because she realized that she had to report well to the chiefs and the public about what she saw. She had even said a short prayer before the event.

The witness was in mourning cloth for a week following the death of her elder son when the events of the death of the Deceased took place. It was again put to the witness that if she had been brave she should have chased after those people who had come to shoot her son. She appeared to refer to the events relating to the other son.

The witness added that despite her confusion she was able to identify Accused who came in the direction of the witness and then said "Let us go we have finished him". That was the time the witness came to identify the Accused. He had then dismounted. His horse was being led on the other side of the houses. He was coming in the direction of the witness. She said she saw when Accused shot the Deceased because she was standing outside.


Asked as to how Accused was dressed the witness responded that he was putting on a grey blanket. The witness was however unable to confront the Accused because she was then suspecting that the gun shot was directed into the kraal but not onto her son. I was satisfied that the witness was telling the truth and gave a good impression short of having directly identified the Accused. I doubted this aspect of the alleged direct identification. On the statements made by the Deceased before his death the witness was however amply corroborated by PW 2, PW 3, PW 5 and PW 6.

Incidentally she could have spoken about this on the night of the injury to Deceased. And secondly it was not even suggested by her at the PE. The claim that she saw the Accused was obviously made up or was an afterthought if not sheer imagination on her part.

Mathakane Mosenye who was PW 2 testified that on the day in question she was sleeping with a ten (10) year old child in her house. Towards the early morning hours of around 3.00 am to 4,00 am she heard dogs barking outside. At about the same time she heard Deceased going out of the other house which was very close to hers. She then heard people speaking loudly as if they were engaged in a quarrel nearby the kraal.


PW 2 said after a short while she heard a gun report on two occasions. At the same time she heard someone say "Come, I have finished him". After these people had left she also went and tried to find out what was happening. She then went into Deceased's house together with PW 1. She found Deceased lying on a mattress. She then heard Deceased say: "Why does Seiketelo cruelly kill me". (Seiketelo o mpolaelang ka sehloho) She said the Deceased repeated this remark until he died soon thereafter.

This she repeated under cross examination. In her evidence in chief she had actually stated that PW 1 had actually asked the Deceased (Thabiso) as to what was the matter. His reply was: "Seiketelo has shot me." And the Deceased had actually pointed at the breast area where he was shot. I found the witness as true and unshakable and a witness to the truth. She fully corroborated PW 1 inasmuch as they had at about the same time got into the hut where Deceased was when Deceased made the statement in the presence of PW 1. 1 found no reason to doubt her evidence.

PW 3 was Bofihla Lekulana. He said he knew the Deceased who was a fellow villager. Accused came from a neighbouring village. He recalled the events of the night when Deceased died.

On the night in question the witness had heard a gun report. He then saw a group of people coming towards his house. One of them was not on horseback


but he was pulling his horse and walking together with others who were on horseback. He went to the home of her paternal uncle to find out where the gun report came from. It was reported that it came from the direction of the Deceased's home. He was told further that a child had just called his uncle to the Deceased's home. He accompanied his uncle to the Deceased's home.

At the Deceased's home he found Deceased who was reported to have been shot. The witness himself asked the Deceased as to what had happened. His reply was that he had been shot by Accused. And then followed the remark as to: "Why Seiketelo has killed me so cruelly". (E be Sekitelo o mpolaelang ka sehloho se sekale!)" It was thereafter that the witness was detailed to report the matter to the chief.

When the witness came back from the Chief's place he found that the Deceased was already dead. The witness was not disturbed in his testimony. He appeared to testify to the truth.

The next witness was PW 4 Lehlohonolo Tsoene. He testified that both Accused and Deceased were known to him because they came from the same village.


On the day in question he received a report from the Deceased's mother

that he should come to her place and take Deceased to hospital. The witness was detailed by the chief to call the Accused. Accused did not come. He was sent for the second time. Still he did not come. Later as the witness testified the Accused's father arrived and told them that the Accused had said he was coming and was following after the witness. Accused never came altogether as the witness further testified.

The witness went to report the incident at Mantsonyane police post. He later came to Maseru to inform Deceased's elder brother and sister of the Deceased's demise. According to this witness' knowledge Accused's and Deceased's family had had no quarrels or misunderstanding resulting from arrest of Deceased at a cattle post alleged to have occurred in the past. Finally as the witness had found the Deceased already dead he did not hear him say anything. The witness' evidence was not disturbed in anyway.

PW 5 Mokone Kopano similarly knew the Deceased and Accused who come from the same village. As a result of information from one Mahasa the witness, accompanied by one Reentseng (PW 6), went to Deceased's home. He discovered that the Deceased had a gun shot wound as it was also reported. It was then when he heard Deceased say: "He finished me Seiketelo" (A tla nqeta


Seiketelo). The witness was candid enough to say those could not even possibly

be the exact words but Accused made more such like statements there and then immediately died thereafter. I had no reason to doubt the evidence of the Witness who was like all others cross-examined by Mr. Khasipe.

Reentseng Lali was PW 6. He knew both Deceased and Accused. On the fateful night having been awaken by someone, he went out of his house to investigate. He then heard a person crying. A child then arrived looking for one Makara. The witness then accompanied by PW 5 and one Ntaitsane proceeded to Deceased's home.

On arrival the witness and the two gentlemen found Deceased still alive but in great pain. In their presence the Deceased uttered words similar to:

"Oh Seketelo has killed me cruelly!" 0o Seketelo a tla a mpolaea ka sehloho oe!).

Deceased uttered statements similar to that several times. When it was suggested to the Deceased whether that he could not ride on horseback Deceased declined saying that he was already finished. The witness testified further to say that the Deceased even demanded poison to finish himself off because he wanted to die. The poison was not made available to the Deceased. The Deceased died soon thereafter. It was not suggested nor was 1 persuaded hat this witness spoke anything but the truth. [ believed the witness.


Puseletso Rampeo was PW 7. He knew Accused who came from neighbouring village. Deceased was his neighbour. On the night of Deceased's death he was called by PW 2 and asked to go to deceased's home quickly. So he went.

The witness found Deceased lying on a mattress. He looked in great pain. The witness was given a report by the Deceased's mother on what had transpired.

The witness himself said he never knew Accused and Deceased to have quarrelled at anytime in the past. Later Chief Lerotholi arrived. He gave instructions that Accused be called. Accused did not come altogether.

The witness having seen the Deceased went outside for a moment and then came back. It was then that he heard Deceased utter the words "Seiketelo has killed me cruelly" (Seiketelo a tla mpolaea ka sehloho). The witness testified further that he did not know if the Accused was a member of an anti-stock theft association. The witness was cross examined but stuck to his guns. He appeared to tell the truth as he knew it.

I might as well record my finding that the statement by the Deceased that


the Accused killed him was heard by more than five witnesses each corroborating the other, him was overwhelmingly proved . PW 6's testimony is also compelling that the Deceased saw his death, he expected his death, he and had lost any hope of ever living. The ever present reference by the Deceased to his having been "killed" by the Accused suggests beyond doubt, in the circumstances of this case, that the statements were indeed dying declarations. This cannot be judged separately from the observations of other witnesses that the Accused was in great pain.

The Accused's defence mainly consisted in the challenge that the words used or uttered by the Deceased before he died were said in many and different fashions (not ipressima verba) could not therefore be Accused's words. It was not however suggested that the witnesses were schooled or that their heads had been brought together. Mr. Kotele replied thing in this regard that moreover most witnesses arrived on different times while the Deceased was still alive and able to speak. That furthermore it also had to be borne in mind that the crime happened a long time before the witnesses testified and their recollection could not be expected to be at their best. He contended further that exact words said by the Deceased could not accurately be remembered unless the witnesses were schooled. He submitted that in any event where mischief or subterfuge was not even suspected our law dis not require ipsissima verba. See R v Baloyi 1949(1) SA



The last witness to testify was Police Office No. 8228 Det/Trooper Ramochela. He said in May 1998 he was on duty when he received a letter from the Chief of Khutlo-se-metsi. The letter contained a report about the death of someone who had been shot at the place of the chief's jurisdiction.

On the following day PW 8 was accompanied by Trooper Mpesi and Det/Sgt Morolo to the Deceased's place. They travelled in a motor vehicle because the village was quite a distance away. At the Deceased's place he found a dead body of the Deceased. It had a wound on the right hand side of the breast. The wound was still bleeding. It looked like a bullet wound. There was also a swelling on the left hand side of the rib-cage.

After examining the corpse they went to the alleged scene of the crime where they found nothing tangible relating to the alleged offence. They afterwards carried the corpse until they reached a place where they had parked their vehicle. They further conveyed the corpse to Mantsonyane mortuary. On the way the body did not sustain any further injuries. The body was later taken to Queen Elizabeith II Hospital after two days for a post-mortem examination.


PW 8 said during the post-mortem examination the doctor was able to extract from the rib-cage a dead bullet. It was a .22 calibre bullet. This he kept as an exhibit in Court. The Deceased's body was afterwards taker to Mantsonyane mortuary.

The witness said that after a few days Accused did arrive at his office having prior to that date attended but having found the witness absent. It was on the second occasion. He was cautioned and given a charge of murder of the Deceased in this case.

The Accused gave evidence in his own defence. No other evidence was led for the defence. Accused said he stayed at Sefateng. He was illeterate and did not know how many years that had passed since the Deceased died. He knew the Deceased during his lifetime. He and Deceased grew up together as herdboys. Deceased's home was at Ha Nyoolo. He estimated the distance between his village and that of the Deceased as about fifteen kilometres.

Accused said during this night of the Deceased's death (during the month of April 1998) he was at his home. He said on the following day he was still present at home but went to Thaba-Tseka later to buy mealie-meal with one herd-boy who was hired at his home. He said after arrival at Thaba-Tseka when


they were at one shop he saw a policeman who called him.

Accused testified further that he was told by the policeman that, police officer Ramochela, who became PW 8, at Mantsonyane police post were looking for him. Accused said the officer should allow him to go to his home first and would report himself later. This was on the 3rd May 1998 when he duly complied. Accused had first gone to his home. He reported himself later at the police post where he was arrested and later sent to Thaba-Tseka Magistrate's Court for remand.

Accused denied having shot the Deceased nor that he had any firearm. He said he knew PW 1 and suspected she knew him too. PW 1 had been present at the PE held at Thaba-Tseka magistrate's court. Accused contended that there was bad blood between him and the Deceased because Accused caught Deceased when he had stolen. He however denied that he ever went to the home of Deceased to shoot him. Nor did the police go to Accused's home to look for him or search for a firearm. The first time he knew of the death of the Deceased was when he was informed of the same by a police officer at Thaba-Tseka.

That he first knew of the suspicion at the police cannot be so because the


chief had detailed someone to call the Accused about the incident. This was done twice. His father even reported that the Deceased would be following. He did not follow. This is extremely credible inasmuch as it was unchallenged. The Accused cannot therefore convincingly speak of his having not known of the incident. He merely can suggest that at the time he was called he was present at his own village which is not far by horseback from Deceased's village. Obviously nothing in the Crown suggest that the question of Accused's alibi was even cursorily followed. See Tseliso Lempe v Rex 1997-1998 LLR-LB 195 at 227.

Again to be emphasized, as in this case, is that an accused never bears the onus of proving his alibi. Indeed Mr. Kotele neatly added that the prosecution should have strong evidence to the effect that the Accused is the one who in fact committed the offence by seeking to disprove his alibi. Afterwards the accused would be expected to prove his alibi. He referred the Court to Tjalekile Kolokolo v Rex CRI/A/33/69 and R v Biya 1952(4) SA 514. See also remarks of Guni J in R v Matobo and Others CRI/T/433/92 25 March 2003 at pages 16-18. But unlike in the case of Tseliso Lempe (supra) there is nowhere the Accused said he disclosed his whereabouts to the police under interrogation or in any form of report.

There are a few worrisome aspects about the arrest of the Accused. The


first one is the aspect of his having been only informed by police around the 3rd May 1998 that he should report himself at the police post. It could not be answered why, if having been known on the same day of the commission of the crime that the Accused was suspected. He was not arrested on the same day. No one spoke about meeting the Accused until the day when he reported himself at the police post. This is so except for the fact that his father was reported to have spoken to him that day of the Deceased's death or on the early morning. The date of his arrest is only shown as the 5th May 1998 in the PE sheet.

The fact that the police did not follow on the Accused after it was reported to them by the chief poignantly adds to the worry that no search nor inspection was done at the place of the Accused nor an investigation at his place about his whereabouts. That is why Mr. Khasipe correctly spoke of the need to have called rebutting evidence once the Accused spoke of or denied his having been present at the scene at the material time. In this regard he submitted that:

"The Crown is permitted to call rebutting evidence if the defence set up is the one which the prosecutor could not be expected to foresee". See R v Lipschitz 1921 AD 222, R v Maleke CRI/T/10/84 (unreported) as quoted in Handbook for Judicial Officers 1986 Ed. Page 110 - Hon. M.P. Mofokeng.

In this case on the contrary the Crown should have foreseen that the Accused


would deny his presence or alternatively the fact that his identifying would be

an issue surely called for such an approach.

In the circumstances that, as Mr. Khasipe contended, the Accused was not identified at the scene when the Deceased has spoken about him as testified to by the various Crown witnesses, when the Accused was well known with his place of above not being far from the Deceased's place, if this assertion is to hold true then the crisp question is:

"What prevented the villagers as well as the police investigators to find out his whereabouts particularly at his place of abode? For sure this may not be ignored as an oversight."

That is why Mr. Khasipe added that under the circumstances it could have been worthwhile, and even reasonably to be expected that the Accused's dwelling should have been visited by way of investigation. See my comments about Accused's alibi hereinbefore. With this worry is the fact that this Accused was only arrested on the 3rd or 5th May 1998 a good twelve days and not less after the event.

This delay in having Accused arrested must be read against the background that by the afternoon of the death of the Deceased police had arrived at the Deceased's village where the corpse was transported to the police


post and then to the mortuary. That the delay in arresting the Accused suggested bad investigations on the part of the police is beyond question.

The aspect that there was no search at the Accused's place is in addition more intriguing. It adds to the conclusion that that the police investigations left a lot to be desired. The question would therefore be whether by reason of "lack of integrity and efficiency of the police investigations" the Court should have less confidence to convict. See remarks of Steyn P in Tseliso Lempe's case (supra) on pages 277-278. In the instant case the answer should be in the negative.

Besides the facts of the dying declaration I have found none of the other facts either in isolation or cumulatively persuasive enough to conclude that it points at the guilt of the Accused beyond a reasonable doubt even if one would conclude that there was anything prima facie. Included in those conclusions I . have discarded is the alleged identification of the Accused by PW 1 as not only unreliable but unconvincing. That much would even be gathered from the Crown's reluctance to press this aspect.

The main question is therefore answered as to whether there was anything formidable or convincing enough except the aspect of Deceased's dying


declaration. There may not be anything formidable if those factors are considered in isolation. But that is not the approach. The approach would still surely not be that since the aspect of alibi has not been completely disproved by the Crown and the Accused having not been discredited, that is the end of the story and the Accused ought to be instantly acquitted.

The question would also be whether if the dying declaration is accepted it means that:

".... on all the evidence there is reasonable possibility that this alibi evidence is true ....". See R v Biya (supra) at page 521 as quoted in R v Hlongwane 1959(3) SA 337 at 341. (My emphasis)

Or is it otherwise? I have underlined "on all the evidence" to indicate that the converse would be that "if on all evidence there is no reasonable possibility that the alibi is true" then the Accused would not be entitled to an acquittal.

Dying declarations are pieces of hearsay evidence admitted under the doctrine of res gestae, as exceptions to the rule against admission of hearsay evidence. As the learned authors of South African Law and Evidence, Fourth Edition, (LN Hoffman and D Zeffert) explain the doctrine of res gestae by saying that:

"The central notion of the doctrine, therefor, is that evidence may be admissible either because it is itself a fact in issue or a fact relevant to the issue, or because it is so closely associated in true


and circumstance with the transaction under investigation that it has a high degree of relevance."

In the present case, besides the credibility of the unshaken witnesses who testified to the statement made by the Deceased made in their presence, I took into account that the Deceased's injury was reported immediately to the chief and also to the Accused's father (as reported) who told Accused to report at the home of the Deceased or at the Chief's place. Unfortunately the Accused did not comply. Most importantly it was immediately after the event.

Under our law dying declarations are supposed to be admitted if made under certain qualifications. Section 226 of the Criminal Procedure and Evidence Act 1981 prescribes to following qualifications. Firstly, the statement should have been made by a deceased person upon the apprehension of death, that is, he should be in a settled and hopeless expectation of death. Secondly, the maker of the statement should be dead and further that he or she would ordinarily be a competent witness whose statement would be admitted at trial in a charge of murder or Culpable Homicide.

Lastly the statement should have been made at the time he was under a settled and hopeless expectation of death. I was in this regard referred to the case of R v Hine 1910 CPD 37, R v Nzobi 1932 WLD 198, R v Masenge and Another 1916 EDL 383.


Mr. Kotele further correctly submitted that the statement made should be unequivocal, that is, there should not be an element of doubt about it. Furthermore that the statement should be complete and the words should leave no room for speculation. See also South African Law of Evidence (supra) at pages 642-645. I agreed that the Deceased's words testified to, as having been said by the Deceased, satisfied all the necessary criteria.

Finally, Mr. Kotele referred me to an English case of Ratten v R (1972) AC 378(PC) at 389 (1971) 3 ALL ER 80 at 806 which was about admitting statements identifying the speaker's (deceased) assailant. In that case accused's wife died from a gun shot wound. He asserted that the discharge from a gun which was in his possession was accidental had occurred while he was cleaning the gun. He was unable to explain why the gun had been loaded. Evidence (allegedly hearsay) relating to three phone calls was adduced at trial. The evidence was held to be properly admissible essentially to prove that the words were spoken and that they related to the issue as part of the res gestae.

When the said decision in Ratten v Rex was applied in R v Andrews (D) 1987 AC 281 Lord Acker pertinently summarized the situation by saying that:

"the position which confronts the trial judge when faced with in a criminal case with an application under the res gestae doctine to admit evidence of statements, with a view to establishing the truth


of same fact thus narrated, such evidence being truly categorized as 'hearsay evidence'."

  1. "The primary question which the judge must ask himself is -can the possibility of concoction or distortion be disregarded?

  1. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

  1. In order for the statement to be sufficiently 'spontaneous' it must be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the even, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

  1. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion ... The judge must be satisfied that the circumstances were such that having regard to the special feature of malice there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

  1. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the


deceased had drunk in excess.....Another example would be where the identification was made in circumstances of particular difficult}' or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error" (pp.300-301). (My emphasis)

I took into account all the factors above inasmuch as most witnesses had stood to demonstrate them. Prominent among factors I took into account is that the Accused was well known to the Deceased. In addition immediately after the Deceased had approached the Accused who was among the group of men there was the fatal shooting. Deceased had gone to meet the Accused who he must have seen. In no way was any margin for error pointed out.

Again on the above tests, in reiving on the Deceased's dying declaration, I concluded that it was safe to convict the Accused of the murder as charged. He shot the Deceased recklessly and indirectly intended his death.

T. Monapathi