R v Sakoane and Another (CRI/T7234/02 )

Media Neutral Citation: 
[2004] LSHC 71
Judgment Date: 
24 May, 2004

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CRI/T7234/02

IN THE HIGH COURT OF LESOTHO


In the matter between:


REX

Vs

1. MOLOI SAKOANE

2. TSEKISO HESHEPE


For the Crown: Miss. Shale

For Defence : Mr. Molapo


JUDGMENT


Delivered by the Honourable Mr. Justice WCM Maqutu on the 24th May, 2004


HL: This is my Judgment:


This is a ruling at the end of the Crown case.


I have heard defence counsel saying there is no evidence which a reasonable court might convict on the counts before court.


Count (I) is that of Murder, Count (II) is that of Stock Theft. We will start with Count (I). I am conscious of the fact that the Crown Counsel says she has made out a case, now I will go briefly over the facts. The facts are the following:


There is no dispute whatsoever that cattle were stolen from the deceased, the late Ts'otleho Tuoane or Tuoane Ts'otleho. There is also no dispute that he was badly assaulted and that as a result the injuries he sustained, he died. So we have only two issues here, one, whether the deceased was assaulted by these two accused when he was going to look for his animals and following them. The second one is whether it is the accused who stole the animals.


Now there is clear evidence that Pwl and Pw2 did not know the people who assaulted them including the deceased. They had never seen them before and that is the first major point. If they had identified them at an identification parade among many people the suggestion that they saw them and marked their features - and were able to identify these accused would have substance because it would be clear that they remained in their minds and they were able to distinguish them among other people. To see people at Salang where they are put before everybody and to memorize their features or learn or study their features so that they can know them is not acceptable in courts. It is unfair because it amounts to manufacturing evidence.


Now when you come before courts who have to examine circumstances then if it is clear that the witnesses were able to learn the feature of the accused somewhere, who can accept if the witness says to the court: "I identified them." That evidence becomes suspect, that is why there are identification parades, to remove this suspicion


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that being the case I cannot act on what these two witnesses say in respect of identification of these two people because it is just not the way courts work. It is full of suspicion such evidence may be said that was evidence created after the event.


The second idea is that of evidence of a circumstantial nature. If the animals of the deceased were found with either of the accused, then that would lead to a suspicion that they had something to do with the theft or his death. Let us start with the saddle and boots. Those were found with Tholang Ramokobo, that is the man on which suspicion falls. None of these accused are connected with the saddle and the boots. The production of the sticks by the accused does not help at all. People who confess must confess before a Magistrate freely and voluntarily. We are not told why the sticks are before the court. Now Crown Counsel could not even refer to this because it probably has evidence that is inadmissible in courts. So the fact that the sticks were taken from the accused or which the accused handed sticks to a policeman is nothing. There is no evidence of how these sticks came to be given, so that too does not help. So on the first Count, there is nothing that connects the accused with the death of the deceased. The only person so far who has something connecting him with the deceased is Tholang Ramokobo who is not before me.


Now the last charge is that of Stock Theft. Pwl told us that they went early to the home of Accused 2. According to him they found accused still in bed and they went there to the kraal and cattle came out. At the door of the kraal one of the animals of the deceased was identified,


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but then the policeman says this animal was found below the kraal and that witness was Pw4. He says those that were there, were satisfied that that animal came from Kekeletso Heshephe and he was charged for the theft of this animal. There was nothing at the kraal, which was supposed to be used by Accused 2. So once things are like this it becomes very difficult for the court to say on this very sketchy evidence there is anything for the accused to answer. This animal even the way it was (described for the person who understands anything about cattle) the description of the animal creates difficulties for me because the policeman describes a different animal from the one that was described by Pw2. Usually when the Basotho describe a animal, an animal which is lebotha, sebotha or botha this always comes up in the description. The one that Pwl described was a black and white (phats'oana). Now lebotha to English speaking people might be said to be black and white. But when the Basotho who know cattle describe an animal and it has this white under belly that comes out because it is not just phats'oana. The marks on this animal, the way they were described by Pw2 became difficult for me to understand. How the two half moons behind the ear can just become two snips is very difficult. Even the fact that the ear-marks were bleeding was significant even if it had been established. Even if it had been so, the animal was found below cattle kraal among the cattle that had been in the kraal of accused. Someone else was charged for the theft of this animal - that does not connect it to Accused 2. It even creates difficulties whether that animal was the one of the deceased at all, unless Daniel Habanyane Pwl did not quite know the animals of the deceased.


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With this type of evidence I have no option but to say the Crown has failed to establish any case against the accused. It does not mean the accused are innocent, this means there is no evidence and therefore I cannot do anything to them.


Stand up accused.


As I have already said the Crown has not made prima facie case against you. The accused are therefore found not guilty and discharged.


The court will adjourn.


WCM MAQUTU

JUDGE


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