R v Ntheri and Another (CRI/T/154/2004 )

Case No: 
CRI/T/154/2004
Media Neutral Citation: 
[2004] LSHC 41
Judgment Date: 
4 March, 2004

Downloads

CRI/T/154/2004

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

vs

MALERATO MARY NTHERI

TELUNTSO MAHLOANE


Judgment


Delivered by the Hon. Mrs Justice A. M. Hlajoane on 4th March, 2008.


Both accused appeared before me charged summarily with the murder of one Mohapi Tsolo, it being alleged that upon or about the 28th March, 2000 and at or near Qoaling Ha Ratsoane here in


2


Maseru the accused, one or both of them unlawfully and intentionally killed the deceased.


When the case commenced on the 23rd November, 2006 counsel for the accused reported to the Court that his client was saying he has a mental problem. The Court felt that it ought not to have been the accused himself reporting about his mental state but the doctor. The Court therefore ordered that accused 2 be taken to a Psychiatrist for mental observation and thereafter furnish the Court with the report.


The Psychiatrist attended to the accused and prepared a report. The report indicated that accused 2 had some mental problems and was not therefore fit to stand trial. On the basis of that report, the Court had to make an order committing accused 2 to prison pending the satisfaction of the King's Pleasure in terms of section 172 (1) of the Criminal Procedure and Evidence (CP&E) Act 7 of 1981. The Prosecution thus applied for separation of trials in terms of section 170 of CP&E Act and the application was granted allowing the case to proceed against accused 1 only.


The charge was thus put to the accused who pleaded not guilty to the charge and his Counsel showed the plea was in accordance


3


with his instructions. The plea of not guilty was accordingly entered.


The Prosecution in its opening address intimated that the accused had procured another person by the name of Teluntso to go and kill the deceased. This Court has thus been called upon to decide on whether there has been enough evidence adduced to prove beyond reasonable doubt that the accused did in fact incite another person to kill the deceased. And whether there was a promise to pay such incitee as a reward.

The Crown led evidence of three witnesses to prove its case. There were also some four admissions which included a post­mortem report. The statements admitted were handed in and marked as exhibits.


P.W.1 Pheello Mashaile has told this Court that he knew both the deceased in this case and the accused. They were doing the same job with the deceased as bus conductors. One day as he was at one 'Maneo Phamotse's shop, the deceased arrived on a bakkie accompanying a policeman to that shop. The witness asked the deceased to buy him some beer and he complied.


4


After a short while as P.W.1 enquired about the deceased, he was no longer there. A remark came from the accused that the deceased could never stay in the same room with her as she suspected the deceased had stolen her inventor. P.W.1 was then asked by the accused to talk to the deceased to bring back the accused's inventor or otherwise he was not going to see Easter.


Indeed P.W.1 did confront the deceased about the inventor but the deceased denied any knowledge of such allegations. On some other time P.W.1 met the accused who told him that he had told the deceased to tell his wife to buy a coffin. According to P.W.1 the accused was very angry as he was telling him all that.


This witness was amazed when after some two days he learned about deceased's disappearance. The report came from deceased's wife. P.W.1 then accompanied the deceased's wife to report to the Police, Lithoteng Police.


But before they left to report the matter, this witness had noticed a paper on the table with something written on it. On closer look at that paper, he found that it had some three names written on it with a note, "we are Thamae Police." The witness could no longer recall the names that were written.

5

The witness must have enquired from the Police about the three names that were written on that piece of paper at deceased's place. He then said the Police confirmed that the names were those of the Police Officers who worked with them. The Police even phoned Thamae Police to enquire if the deceased had to be arrested the previous day, but they showed that they had no knowledge of such arrests. P.W.1 had even reported to the Police about the threats which were made by the accused about the deceased. The witness learned of deceased's death the next day.


When this witness was being cross examined, it was suggested to him that the accused was never at 'Maneo Phamotse's shop on that day. Towards the end of the cross examination the witness was told that in fact there were some other men in the shop on that day to which the witness responded by showing that but he was drinking alone.


P.W.2 Ramohapi Lichabe was declared as an accomplice and he was accordingly warned in terms of section 236 of Criminal Procedure and Evidence Act of 1981. The Defence Counsel objected to the calling of this witness as an accomplice. His reasons being that there could not be an accomplice in a murder trial. I must say that I did not quite appreciate what was meant by this but my ruling was that the witness was allowed to give his


6


evidence as an accomplice if at all he had had a role to play in the killing of the deceased. The Defence had referred to the Criminal Law Book by CR Snyman, 3rd Edition p.261, but the book ends at page 255.


But my reading of the same text at p197 in the judgment of Joubert JA in S v Williams 1980 (1) S.A 60 I came to realize what the Defence Counsel was saying. That the attitude of an accomplice to murder is to be found in the fact that he has the intention to assist the perpetrator or joint perpetrators to kill the victim. In the case of murder an accomplice's fault lies in the fact that he has the intention to promote the commission of murder, thus intending to kill the victim.


It would be clear from the above that as the Court I would not have been in a position to have known what P.W.2 was going to say. The exchange of statements would have been between both Counsel only and the Court would first have to listen before making an assessment.


This witness told the Court that one day in 2000 as he was enjoying his drink at 'Manhlapho's place, one man by the name of Teluntso Mahloane arrived in the company of George Phakisi.


7


The two asked P.W.2 to accompany them to Ha Peter to collect money from someone who owed them. They never told him as to how much money was owed and from whom it had to be collected, and he too did not bother to ask them.


On their way to that place, P.W.2 said he noticed that Teluntso was carrying a gun. They continued on their journey till they got to what he said were flats built of block bricks and were facing East. They were at Ha Peter. P.W.2 saw Teluntso knock at the door of the first flat and when a person inside asked as to who was there, Teluntso showed they were CID Police.


P.W.2 said as Teluntso introduced them as Police, he even gave out names of the alleged Police Officers. The owner might have opened because he identified the names of those Police Officers.


Teluntso talked to the owner of the flat and told him that they had come to collect him. Teluntso then started kicking at everything inside the house as if he was searching for something. He managed to get some handcuffs between the mattresses. He then handcuffed that man and started kicking him. They left the house and on their way the witness asked Teluntso as to why he had handcuffed that man but he was angrily rebuked by Teluntso to


8


keep quiet. They were all coming following the handcuffed man as Teluntso had said the man was going to show them the way. They moved for a distance of from the High Court to the Magistrate's Court. They entered a house there with a single door. Teluntso entered the house with the man who was handcuffed leaving the two outside. They later came out and they proceeded through a passage till they got to a hillock. Up that place, the witness tried to run away but Teluntso pointed a gun at him.


As Teluntso pointed a gun at the witness, the handcuffed man tried to escape but Teluntso left P.W.2 and chased that man and the person fell in the process. Teluntso was seen stabbing the man several times with a knife. He even stabbed him on his throat and the witness said he heard a tl—tl—tl— sound as though cutting a hen on its neck. This witness saw Teluntso throw the knife away after the stabbing to a distance estimated at 5 paces. P.W.2 was not able to see the type of knife that was used possibly because it was at night.


The three of them then left the scene leaving behind the person who was stabbed. They went back to that house with a single door. Teluntso was the only one who entered the house leaving the two of them outside the house.


9


He later came out and they left. On their way home Teluntso said he was going to collect his money from that woman the next day. P.W.2 did not even know the woman referred to. He said Teluntso warned them not to report to anyone else they were going to suffer the same fate as the man they had left at the mountain. The three of them were later arrested. This witness only came to know the accused when she was introduced to them by Teluntso as they attended remands. He came to know of the name of the person who was stabbed over the radio.


P.W.2 further said in his evidence that he was seeing the deceased for the first time on that fateful night. This witness said he accompanied Teluntso to Ha Pita that night because they were friends. It was not their first time going out together. He said when Teluntso was stabbing the deceased, he was only 2 1/2 paces away from them.


The third witness was D/Sgt Khanyapa, who investigated this case. He had visited the scene of crime and found the deceased with multiple stab wounds and was still handcuffed. It was a dead body of a Mosotho male adult. He also found a blood stained okapi knife some 3 paces away from the dead body. The body had


10


sustained an open wound on the right side of the neck. Multiple open wounds at the back of his neck. Another open wound on the left jaws.


P.W.3 took the handcuffs off the dead body and took the body to the Chiefs place and later taken by Police van to the mortuary. He also took away the exhibits he had collected from the scene, the okapi knife and the handcuffs. They were handed in as exhibits and were market as such. Senior Inspector Tsolo who transported the dead body to the mortuary identified the body as that of the deceased Mohapi Tsolo as his relative.


His investigations led him to the arrest of the accused. After giving her the necessary caution, the accused gave him an explanation. Because the explanation that she gave was implicating her, the Defence Counsel challenged its admissibility. He said the explanation amounted to a confession and as such was not admissible as was never taken before a Magistrate in terms of section 228 (2) of the Criminal Procedure and Evidence Act of 1981.


In giving a ruling on the admissibility or otherwise of such a statement, the Court had to first start from the premise of


11


explaining what a confession is. Hoffman 4th Edition at 208 gives the meaning of a confession in R v Becker 1929 AD 167 at 171 as


"an unequivocal acknowledgment of guilt, the equivalent of a plea of guilty before a Court of law."


In this case the witness was asked to state what he alleged the accused said to him in her explanation. The explanation given by the accused was that, "I requested Teluntso Mahloane and other boys to kill the deceased because he (deceased) had taken my inventor."


Hoffman further showed that, "in crimes which required mens rea, an account by the accused of his actions however detailed and damming, will hardly ever amount to a confession as it would almost always be possible to give some further explanation which would negative the necessary mental intent."


The statement by the accused conveyed a message that the accused killed the deceased or caused the deceased to be killed as a revenge, the reason being that the deceased had taken her inventor. There was obviously a reason for killing the deceased. The accused had formed an intention to kill and therefore that statement amounted to a confession.


12


Considering the admissibility of that explanation, section 228 (2) of the Criminal Procedure and Evidence Act reads:-


"If a confession is shown to have been made to a policeman, it shall not be admissible in evidence under this section unless it is confirmed and reduced to writing in the presence of a Magistrate." (my emphasis)


For a statement to be a confession according to Petlane v R 1971 -73 LLR 85 it must exclude the possible defences of self defence or accident. I could not agree with the submission by the Crown that the explanation was just an informal admission which was given freely and voluntarily and extra judicially. That the statement was exculpatory as was given with the intention to prove innocence, by somehow raising a defence.

The fact that the statement was never confirmed and reduced to writing before a Magistrate would not make it admissible. The omission on the part of the Police Officer to take the accused before a Magistrate would not render the statement admissible. Even if the witness would have said that he had intended to take the accused before a Magistrate but that the accused had refused to go before the Magistrate.


13


The statement was given by the accused when asked for an explanation by a Police Officer. It is therefore inadmissible as a confession which had not followed the provisions of section 228 (2) of the Criminal Procedure and Evidence Act.


Through his investigations, P.W.3 came to know that both the accused and the deceased were staying in the same village. The accused's house, a normal house built of cement bricks, and the deceased's house, rented flat built of bricks. The distance from accused's and deceased's house estimated at being from the High Court to the Magistrate's Court. After giving her explanation the accused was given a charge of murder.


The admitted statement of one 'Maliako Lerotholi, Exhibit "A", was to the effect that on her way to work on the morning of the 9th March 2000, she saw a lot of blood, and not far from that blood she saw a dead body in a ditch. She raised an alarm and people came to the scene.


The second admitted statement, Exhibit "B" was that of D/Tpr Likate. He was in the company for D/Tpr Moloi and Tpr Mohlalisi when they proceeded to Motimposo on the 3rd April, 2000 in search of Teluntso Mahloane and his gun. They must have been


14


acting on the information they had reached because they could not have just out of the blue gone to that particular somebody. They were already armed with the information that the deceased Mohapi Tsolo was found dead at Ha Ratsoana.

The statement showed that as they came back with the said Teluntso Mahloane, he had told them that the gun would be found at Police Headquarters with D/Sgt Matlole. Indeed when they got to the Police Headquarters they got the said gun from D/Sgt Matlole as Teluntso had intimated to them. He had said he handed the gun himself to the said Police Officer.


The third admitted statement Exhibit "C" was the statement of Tpr Moloi. They proceeded to Motimposo on the 31st March, 2000 with Tpr Likate and Tpr Mofolo. There they arrested Ramohapi Lichabe and George Phakisi. Mofolo cautioned the suspects charged and arrested them. He kept them in police custody. He again proceeded to Motimposo on the 2nd April, 2000 to arrest Teluntso Mahloane. He cautioned, charged and arrested him. He kept him in police custody.


The post-mortem report was also admitted in evidence and marked Exhibi "D". The body was identified by one Jacob Lehloa Tsolo


15


as being that of the deceased Mohapi Tsolo. According to his examination the doctor formed the opinion that death was due to head injury and or resulting in pulmonary failure. That the injuries could have been a result of assault. The external injuries showed multiple scalp lacerations with skull fracture with subdural haematoma. A cut trachea and a penetrating would on the right side of the neck and wounds on the right upper chest. And this was the Crown case.


At the end of the prosecution's case the Defence applied for the discharge of the accused. Having considered the evidence by the Crown I had found that there was a case for the accused to answer but showed that reasons were going to form part of my judgment.


The accused was called in the witness box and gave her evidence. She showed she stayed at Lithoteng and that she had lived there for 14 years. She stayed with her husband and children and has been living with her family ever since. She was arrested from her work place at Thetsane factories on the 29th March, 2000.


In her evidence, the accused showed that she knew both the deceased and P.W.1. She knew that the deceased stayed at Ha Pita but that she was not used to him. She knew P.W.1 as a son to her


16


neighbour. She said she only came to know about the deceased's death when she got to Lithoteng Police under arrest.


The Police had told the accused that she was being suspected of the death of the deceased Mohapi Tsolo and when she asked why they were suspecting her she was told that P.W.1 had explained to them that she was a suspect. It was at this stage that the accused started denying what P.W.1 had said about the deceased when she was at the bar. It was at this late stage that she was denying ever saying the deceased had stolen her inventor as she did not even possess any inventor. It would seem she did not even know what an inventor was as she said in her evidence that she only came to know of what it was as Police explained it to her. She then told the Police that she was using electricity at her home and not a solar heating.


The accused said in her evidence that she did not even know where the deceased lived. She only knew that it was at Lithoteng but did not know the exact place. When giving a description of her house she said, it was a three roomed house built of grey bricks with two doors leading to the outside and was facing East.


17


As it were, the Defence has not discredited the Crown witnesses in her cross examination. She had left their evidence unchallenged on material respects. He only said she had thought that she was going to be given time to explain herself after all the evidence had been led. In some instances she was saying she did not know why her Counsel failed to deny such allegations against her.


It was thus submitted by the Crown that the accused should be taken to have admitted the evidence by P.W.1 where P.W.1 said accused made allegations to kill the deceased whilst they were at a bar. The Defence had asked P.W.1 whether he believed the accused and P.W.1 answered in the positive. The Crown therefore contended that in posing such a question the defence was admitting that she did in fact utter such words except that she ought not to have been believed as they were at a beer drinking place. The Crown felt that that question was not posed to discredit P.W.1.


Concerning the evidence of P.W.2 who was declared as an accomplice, he had narrated all steps leading to the killing of the deceased by the accused. He was there when the deceased was taken from his house to the place where he was killed. He has estimated the distance from the deceased's house to that of the


18


lady's house. P.W.3 has also given the same distance between the two houses.


P.W.2 had said that Teluntso handcuffed the deceased as he drove him to where he was killed and indeed when P.W.3 found the dead body the hands were still handcuffed. Again P.W.2 had said Teluntso threw the knife some paces away from the dead body and when P.W.3 came the following day to inspect the scene an okapi knife was found some paces away from the deceased.


P.W.1 had also said that as he went to the deceased's place on the information from deceased's wife concerning her husband's disappearance, he found a paper on the table at deceased's place. The paper had names of three men written on it. On further enquiry P.W.1 came to know that those were names of three police officers.


P.W.2 had also said in his evidence that he was with Teluntso Mahloane and George Phakisi when they went to the deceased's flat at Ha Peter. When Teluntso knocked at the decased's place he told the person inside that they were CID Police. This must have been a ploy used so that they could gain entry into the house.


19


Teluntso, as he was still outside even gave out names of such Police Officers.


P.W.2 had shown in his evidence that from the second house they had gone to before going up to the place where the deceased was killed, the four of them went back to the deceased's house. Inside the deceased's house Teluntso asked for a pen and paper from the deceased. Teluntso was seen by P.W.2 writing down names of Policemen on that piece of paper and he put that paper on the table and they left.


P.W.2 had further shown in his evidence that Teluntso Mahloane introduced the accused to them when they were attending remands. P.W.2 had also heard Teluntso say that he was going to collect his money from that lady. This Teluntso said as they were proceeding home after killing the deceased.


The Crown therefore submitted that since the evidence of P.W.2 was not challenged on material respects that the only reasonable inference to be drawn must be that the lady whom Teluntso Mahloane referred to was the accused. The accused did not even deny when P.W.2 showed in his evidence that he introduced the accused to him and George Phakisi.


20


P.W.2 had described how Teluntso stabbed the deceased. P.W.3 also on inspecting the body of the deceased described the same wounds as those that were described by P.W.2. The post-mortem report also described the same wounds on the dead body. But as was said in Tseliso Lempe v Rex (and cases therein cited) 1997 - 98 LLR & LB 195 at 212 where the Court showed that there was particularly some damning evidence concerning some discovery of some items found on appellant's clothing. The Court then said, "a recitation of these facts indicates the persuasive force of the Crown case. Moreover, not each of these factors should be accorded weight in isolation of each other. It is their cumulative effect that needs to be evaluated."


In casu, P.W.2 was declared as an accomplice witness and as such his evidence had to be corroborated by some independent evidence. P.W.2 told the Court that he was in the company of one George Phakisi when the deceased was stabbed to death. The three of them, that is, Teluntso, P.W.2 and George Phakisi were together when the deceased was taken away from his home. We were not told why George Phakisi was not called as a Crown witness.


Again, P.W.3 who investigated this case never mentioned in his evidence that he actually visited the deceased's flat and the place where the accused lived. He only mentioned that he was only shown the accused's place as he passed near it, meaning he had not


21


specifically gone to identify the place. The Court did not also go out on an inspection in loco for identifying the accused's and the deceased's places. So that it could not be said that it was made very clear that the houses referred to by P.W.2 were the same as those referred to by P.W.3. The investigation never led P.W.2 to point the house with a single door because the accused in her evidence told the Court that her house has two doors leading to the outside.


It was not also proved beyond doubt that in fact the accused did own an inventor, so that it could be inferred that she in fact uttered words which P.W.1 said she uttered because of anger for loss of her inventor. The accomplice evidence has not also been corroborated by an independent evidence.


The accused may well have been guilty but because the Crown has failed to prove his guilt beyond a reasonable doubt as has been clear from the record, the accused is given a benefit of doubt and is thus found not guilty, acquitted and discharged.


22


My Assessors agree with my findings.


  1. M. HLAJOANE

JUDGE


For Crown: Ms Kanono

For Accused: Mr Tlapane