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CRI/T/62/2001

THE HIGH COURT OF LESOTHO

In the matter between:-

REX

VS

MONAMOLI HLOELE

JUDGEMENT

Delivered by Honourable Acting Justice M. Manase On 6th June, 2006

The accused appeared before this court charged with having committed the crime of murder. It is alleged that he unlawfully and intentionally killed Khotso Shale. The incident is alleged to have occurred upon or about the 6th October, 1996 and at or near Bus-stop Area in Mafeteng district.

The case was first enrolled for prosecution before this court on the 6th December 2005. It could not be prosecuted on that day because Ms. Ngcobo who was to represent the crown was alleged to have gone to Mapoteng in relation to another case which she was handling. The defence lawyer, Mr. Teele was not in court presumably because he already knew that the case would not be prosecuted on that day. Mr. Mokorosi had appeared before this court for the crown and at the request of Ms. Ngcobo.

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This case was then postponed for hearing from the 6th to the 9th June 2006 Messrs L. Maqutu and Teele for the crown and defence respectively appeared before this court for the case to be prosecuted on the said dates.

The accused pleaded not guilty to the charge. The plea was said to be consistent with the instructions which the defence counsel had received:

BRIEFLY THE FACTS OF THIS CASE ARE AS FOLLOWS:

The deceased, one Khotso Shale, the accused's wife, one Mary Hloele were working together in Mafeteng at the National Security Services (N.S.S.) offices. The deceased was the officer commanding the N.S.S. in Mafeteng while Mary Hloele was a Senior Clerk in the said offices.

Mary Hloele resided at what are referred to as police lines next to the Mafeteng Bus-stop. (These are government houses). The deceased resided in Mafeteng, a short distance away from Mary's house. The said Mary Hloele resided thereat with one Likomo Maele (Pwl) who was Mary's domestic-helper.

The accused Monamoli Hloele is an ex-police officer who resided in Butha Buthe where he was operating a taxi business. He was in the habit of visiting his wife in Mafeteng. If accused had come to Mafeteng with his taxi, he used to park it next to the kitchen but just outside the fence.

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The accused and his wife had two children who were also residing at Mafeteng with their mother. The said Likomo used to sleep in the kitchen with the accused's two children while their mother slept in the bedroom.

On the deny in question; the 6th October, 1996, the accused had gone to Mafeteng to visit his wife and children. He had arrived thereat in the afternoon. He had not come with his taxi.

His wife duly proceeded home after work. They all later went to bed to sleep. The accused and his wife were sleeping in the bedroom. Their house was a four roomed house but the other two rooms were occupied by another officer who was also a member of the N.S.S.

When they were sleeping, there were some gun shots reports outside that house. Pwl was awoken by the said gun shot reports. She realized that the exit door to the kitchen was closed and locked. The lights had all been put off. Pwl went to the bedroom in which the accused and his wife had been sleeping. She found her employer, Mary kneeling on the bed but she realized that the accused was not in the bedroom.

Pwl inquired from Mary as to what was happening. Mary explained to Pwl about the gun shot reports and that the accused - her husband had gone out to investigate but there were then suddenly some gun shot reports. Pwl then hit the wall adjacent to Mr. Moorosi's room in an attempt to wake Moorosi up.

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Shortly thereafter Moorosi and one Mokebisa went to Mary's house. Mary, Moorosi, Mokebisa and Pwl then went outside to see what was happening. When they reached the veranda of Mary's house they heard a sound of someone gasping for air. The accused was then nowhere to be seen around that place.

While they were standing there, looking at the man who they had found fallen down, the accused then arrived thereat in the company of the police. They were traveling in a police vehicle. The accused later went away with the police after the accused had dressed up. Pwl told the court that she did not know what had happened but she heard on the next day that the deceased had passed away.

Pw3, one Neo Mokebisa told the court that he was a colleague of the deceased and Mary. That he too stayed in Mafeteng and that his house was the second house from Mary's house. He had been with the deceased and others at the restaurant of one Bulara. That he left the deceased and others there when he went to his home at about 8:00 pm on that day. That when he was sleeping at or between 1:00 am and 1:30am, he was woken up by Moorosi one of his colleagues. That just before Moorosi went to him, Pw3 had heard a gun short report coming very close to where he resided.

Moorosi then reported to him about an incident which had occurred between the accused and the deceased. Following that report, they both proceeded to Mary's home. There they found a group of people already gathered thereat. He also found the deceased who was already dead and covered with a lot of blood lying down. The deceased's body was lying down next to the house

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of the accused's wife. This witness was there when the body of the deceased was taken to the mortuary.

Pw4, No8158 Tpr. Likhama was, on that day in question on duty from 10:00 pm to 6:00 am. At around 2:00 am, the accused went to Mafeteng Police Charge Office. He surrendered himself to Pw4; made a report to him about this incident. Accused who, according to the testimony of Pw4, was half naked then handed a 7.65 pistol of serial no. 66526 with no rounds of ammunition to Pw4. Pw4 then telephoned Sgt. Letsie and Tpr. Ranyali to whom the accused later repeated his report.

Sgt. Letsie and Tpr. Ranyali then went to the scene of crime with the accused. Pw4 later cautioned the accused and gave him a charge of murder. He also handed the gun in question to the CID police. This gun was handed in as an exhibit. It was marked exhibit 1.

Pw5, No. 2357 Sgt Letsie corroborated the evidence of Pw4. He further testified that he too had earlier at about 2:00 am heard some gun shot reports towards the direction of police houses at Mafeteng bus stop. Following a radio message from Pw4, Pw5 went to the Mafeteng Charge office where he found ex-Tpr. Hloele who made a report to him and handed to them a 7.65mm auto pistol about which he made an explanation.

He later went to the scene of crime where he also found and saw a body of a male person lying down next to the veranda of the house in which the accused's wife resided. That body was later identified as being that of one Khotso Shale. Pw5 also found a 9mm gun under the window of Mary's

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bedroom. It was lying down close to where the deceased was lying down. It had an empty magazine and it was open. It was of serial numbers 245 PNO 3943. This was later handed to Mr. Mothibeli who was in-charge of the CID in Mafeteng. The said gun was found to have been in a good operating condition.

The deceased, whose clothes were covered in blood was subsequently transported to the mortuary. He did not sustain any further injuries from the said scene of crime to the mortuary. It was later discovered that the said 9mm pistol belonged to the deceased. Pw6 who was then commanding CID in Mafeteng attended the scene of crime with same of his colleagues. He is the one who examined the body of the deceased who he had identified as being that of captain Khotso Shale. Pw6 testified that he identified 11 open injuries which the deceased has sustained.

Pw6 repeated the examination of the deceased's body once more at the mortuary. His observations were that the injuries upon the deceased were still as when he saw same at the scene of crime. It is his further evidence that the deceased did not sustain any further injuries from the scene of crime to the mortuary.

This witness went back to the scene of crime on the next morning at about 6:00 am. Here he found, and picked up six (6) empty shells which were verified to be of a 7.65mm pistol and some five (5) empty shells which were verified to be of a 9mm pistol, and also some 2 dead bullets.

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He also saw a pool of blood at the place where he had found the deceased lying down on the previous night. The evidence of Pw7, No. 6413 I/O Mofoka was admitted excluding those positions which are irrelevant hearsay evidence. This witness corroborated evidence that the 9mm pistol was an official firearm which had been issued to the deceased.

Pw9 who also attended the scene of crime with Pw7 corroborated the evidence of Pw7 as to the finding at the scene of crime. This witness was handed the pistols/guns in question and the empty shells and dead bullets found at the scene of crime. He later took some swabs from the deceased's body and had all the said items send for ballistic examination. Same were duly tested and were later returned to Mafeteng CID together with the 9mm and the 7.65mm pistols.

According to the P.E. record, the swabs were labeled exhibit 3 collectively, the dead bullets exhibit 4 collectively while the empty shells were collectively labeled exhibit 5. Very unfortunately and as often happens when there has been a delay in the prosecution of criminal cases, some of the above-named exhibits were lost, to wit the swabs. They could no longer be found in the exhibit room in which they had been kept.

Only the dead bullets, empty shells and the two pistols were handed into court as exhibits and labeled 1 collectively. Pwl testified that the purpose for having taken the swabs from the deceased's hands was to determine whether or not the deceased had himself fired any of the guns which were found at the scene of crime.

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Unfortunately, no written report was filed as to the results or the findings of the ballistic expert with regard to the said swabs. This court is therefore not in a position to say whether or not the deceased ever fired his own gun.

That is a sad situation and one may point out that it is absolutely essential and imperative that proper exhibit rooms and storage facilities for exhibits be provided and that they be manned by trained/qualified personnel. The loss of exhibits hampers the administration of justice.

In the instant case, the accused has allegedly killed the deceased using a gun. There is evidence that the 9mm pistol which was found at the scene of crime near where the body of the deceased was found belonged to the deceased. The accused's story is that the deceased had fired at him (accused) first at the time when the accused went out to investigate as to who the intruder who was at his (accused's) house was at that time of the night.

The truth will never be known because the swabs which could probably shed some light at least on the issue as to whether or not the deceased fired his gun was never unearthed due to the loss of the said swabs. This court will never know if indeed the deceased did empty his magazine while he shot at the accused.

The accused has raised the defence of self-defence. Accused's evidence is that the deceased was an intruder at his (accused's) home, who in turn was the one who shot first at the accused. The accused claims that he had a right to defend himself and his family against that intruder who had gone to his home at that late hour of the night. This intruder did not respond when after

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knocking on the window in the room in which the accused and his wife were sleeping, was asked to identify himself.

Indeed, the accused had no idea at all as to the identity of such an intruder. It is a matter of common cause that the accused was not at all injured in the shooting incident between him and the deceased. The post mortem report indicates that the deceased's death was due to ruptured heart. It shows clearly on item (9) that the deceased had sustained multiple gun shot wounds mostly on the left side.

It is clear from the evidence adduced by the crown that there were no other people outside the house of the accused's wife when the shooting incident occurred. What is clear is that the deceased died as a result of the injuries he sustained during the shooting incident which occurred between him and the accused at the house in which the accused's wife resided in Mafeteng.

The only story as to what happened at that place on that fateful night is that of the accused. All the crown witnesses who testified at the preparatory examination, whose evidence has been admitted in this trial did not see nor witness that incident as it occurred. Even Pw2 who was then in the house with the accused and his wife when that shooting incident occurred out of her employer's house had not seen it. She did not know what let to that shooting incident.

None of the crown witnesses, including Pw9 D/Tpr. Chonelanga (No.8165 who gave viva voce evidence during this trial, could tell the court what happened that ultimately resulted into the shooting incident between the

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accused and the deceased. Pw9's evidence as to his observations at the scene of crime and as to what he later did once he had found the deceased's body outside the accused's wife's house and at the mortuary did not assist in anyway in advancing the evidence of the crown.

The story of the accused that the intruder who knocked at the window of the house of his wife at such late hours of the night, was the one who shot at accused first cannot be challenged. It is his (accused's) story that he shot at that intruder in self-defence as he believed that the intruder posed a threat to his (accused's ) life. This story can not be denied and in the circumstances of this case it is reasonably possibly true.

The court has been invited by the crown to determine whether in the circumstance of this case, the accused acted as he did because he believed that his life was in eminent danger, and or whether the said intruder posed an eminent threat to the accused's life justifying the actions of the accused upon the deceased.

The above question can be answered in the affirmative; regard being had to the circumstances of this case. It has already been shown that it is a matter of common cause that accused, his wife, their children and their domestic helper were already asleep when between the hours of 1 and 2 am there was a knock on the window of the accused's wife bedroom. That the person who knocked thereat did not respond when asked by the accused to identify himself. That when the accused went out to investigate who that person was, that person then shot at the accused and the accused then returned that fire in self-defence.

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Indeed the accused had a duty to defend himself and his family against whoever was at their house at such late hours of the night. The accused could not run away from there when he had been attacked at his own house.

There is nothing placed before this court showing that the accused exceeded the bounds of self-defence in shooting at the deceased as he did. It is also clear from the crown evidence that the accused did not even know the person he had shot at until much later after this incident had occurred, (see Pw4's evidence at P.E.).

The crown has not and it could not gainsay the accused's story. That explains why the crown ultimately conceded that it had failed to make a prima facie case against the accused herein.

In the circumstances, this court has no alternative but to come to the conclusion that the crown has not made a prima facie case against the accused for the accused to answer.

The accused is accordingly discharged and acquitted.

My assessors agree.

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DISPOSAL OF EXHIBITS

a) The gun, a 7.65mm of serial numbers 66526 should be returned to the accused on production of a valid/lawful proof that he is licenced to possess same.

b) The gun, a 9mm of serial number 245 P.N.O 3943 which was a service issue issued to the deceased should be returned to the office of the Director of the N.S.S. or

COMMPOL.

Whoever will come to collect it should produce written authority that he/she has been authorized to collect same for onward transmission to the said Director of N.S.S. or to

COMMPOL.

M. MAHASE ACTING

JUDGE

For Crown : Ms. L. Maqutu

For Defence : Mr. M. Teele

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